Mr. Speaker, I want to put some comments on record with respect to Bill S-4. I will indicate at the outset that the Conservative Party is similarly disposed. We want to see the legislation pass quickly through the House and take effect. We recognize its importance and recognize the entire principle behind the bill.
As the title suggests, the bill is to harmonize federal law and civil law in the province of Quebec and to amend a number of acts in order to ensure that each language version will take into account common law and civil law principles.
The bill respects the traditions of both common law and civil law in Canada, as has been stated. It is also interesting to note that it originates in the other place.
Senator Beaudoin and Senator Andreychuk, both very learned counsel in their own right, have spoken in favour of the legislation, as have other senators including Senators Murray and Nolin. They have made very valuable contributions to the bill.
Canada is a country with two legal systems, public law and private law, better known as the civil and common law. Canada also has provincial jurisdiction set out under subsection 92(13) of the Constitution Act, 1867, which legitimizes most of what is considered property and civil law.
In Quebec these notions are traditionally included in the civil code of Quebec, which concerns itself with the following: successions, the management of immovable property, hypothetic securities and property laws, consumer protection, civil incapacity and tudorship, celebration of marriage, the obligations and contracts of civil liability, and the regulation of professions and occupations under Quebec's exclusive jurisdiction.
In other provinces the corresponding matters defined under the common law are also under provincial jurisdiction. The main role of civil law in this sense is to supplement federal legislation for the following reasons.
Since 1867 the Parliament of Canada has enacted more than 300 statutes. Some or all these provisions are designed to regulate matters of private law. It has done so primarily under parliament's exclusive jurisdiction over matters that had it not been for the division of powers established in sections 91, 92 and 93 of the Constitution Act, 1867, would have fallen under the province's jurisdiction.
The federal government has also done this indirectly by enacting statutes designed primarily to regulate questions of public law with some provisions relying upon private law concepts.
The field of private law thus is not solely a provincial jurisdiction. The federal government has exclusive authority in a number of areas under the private law which include banking, monetary transactions, interest on money, bankruptcy and insolvency, maritime law, patents, copyright, marriage and divorce.
Although the federal government takes away from or adds provisions to the civil law of each province, it does not mean all these statutes constitute a separate legal system. For example, the civil code of Quebec also supplements the federal statutes while assisting in their interpretation and application. It can therefore be said that there is a complementary relationship between the federal legislation and the civil law practices of the provinces.
The Progressive Conservative Party supports the principles underlying Bill S-4 on harmonization between federal law and the civil law in Quebec. The goal in this bill is to make sure federal law provisions are harmonized with those in the civil law.
The lack of harmony has been more crucial since the enactment of the new civil code in Quebec in January 1994. Bill S-4 reflects the need to have a smooth interaction between the federal and provincial legislation. Harmonization of federal law and the Quebec civil code will help reduce interpretation problems caused by the use of different terminology in federal and provincial legislation.
The need to harmonize therefore is clear. In 1994, after more than 50 years of talks and plans for reform, Quebec replaced the civil code of lower Canada, which had come into force in 1866, with the civil code of Quebec.
Since that time extremely important and existing federal statutes have had to be harmonized to be made consistent with current civil law. The changes in vocabulary and substance made to the civil code were not without effect on federal laws. The resulting change in vocabulary and language of federal statutes is no longer exactly that which occurred in civil law.
That language had to be modernized. It was a language of that period. Regardless of language there is often the need to modernize, particularly with technical aspects of a bill such as this one. Substantive changes, changes in traditional institutions and the formalization of new concepts and reform of existing rules are also taken into consideration.
Problems can exist through the survival of a number of provisions from the civil code of lower Canada which Quebec had not been able to repeal because they had related to matters since that time in 1867 and have been within the jurisdiction of parliament. The federal government has now looked at these since the new civil code came into force. They are thus isolated from the body by which they once were formed and in their relation with the civil code of Quebec may have become and have become to some extent controversial.
According to a number of experts the civil code reform is not the only reason for the law to be harmonized with federal laws and with private law. The federal government still has not managed to take into account Quebec's civil language and law in the wording of private law provisions that were enacted.
Since 1993 the federal Department of Justice has reviewed more than 700 statutes to determine which ones would be most affected by the amendments, substance and form planned in the new civil code. Based on that analysis it identified 300 laws that would have to be harmonized.
In June 1998 the federal government under the leadership of the Minister of Justice considered that it would be able to do so by tabling one bill a year over the following nine years.
According to the Department of Justice this harmonization would ensure that federal laws which are implemented under private law include Quebec civil law terminology, notions and institutions. It would also enhance the effectiveness of the courts by making parliament's intention clearer and by reducing the problems involved in interpreting federal laws when they are applied in Quebec.
Finally it would facilitate access to justice for all Quebecers. The details are often very critical to this process. The preamble of Bill S-4 recognizes in particular that Quebec's civil law tradition which finds its principal expression in the civil code of Quebec reflects the unique character of Quebec society.
This has been somewhat controversial. I refer to some comments on the record in the other place which touched upon that subject matter. There was a reference to the highest court of the land in terms of its use and expression of the terms Quebec society and distinct society.
In 1996 the late Brian Dickson, former chief justice of the Supreme Court of Canada, took a stand on the concept of Quebec's distinct character. At a conference organized by the Military and Hospitaller Order of St. Lazarus of Jerusalem, Grand Priory of Canada, which took place in Winnipeg, he stated the following:
I should say right from the start that I am very comfortable with this concept
He was speaking in this instance of Quebec society. He continued:
The courts are already interpreting the Charter and the Constitution with an eye to the distinctive role of Quebec in protecting and promoting its French-speaking character. In practice, therefore, enshrining formal recognition of the distinct character of Quebec in the Constitution would not be a great departure from what our courts are already doing.
To put this on the record, in 1997 the second red book of the Liberal Party of Canada said that a Liberal government would work toward the constitutional recognition of the distinctness of Quebec society which includes the French speaking majority, a unique culture and a tradition of civil law.
There should be no hesitation on the part of the Liberal government to wrap its arms around this initiative. It provides all Canadians who are certainly entitled to access to federal legislation with the common law and civil law traditions. It harmonizes the interaction of federal and provincial legislation in that it is essential and lies in the interpretation of both these common and civil law traditions.
The bill will receive smooth passage, certainly through this place. I would deem that it has received a significant review and attempts by the senators to improve and put before us a very sound piece of legislation. There was talk of amendments with respect to the harmonization of other statutes in the future. According to the federal Department of Justice, tax law, regulatory law and commercial law were identified as other key areas in which harmonization would be the subject of new bills in coming years.
It is also important to note that many organizations including the Barreau du Québec, la Chambre des notaires du Québec, le ministère de la Justice au Québec and a number of other law professors have assisted significantly in the drafting of the legislation.
Therefore, as a party that has a long tradition in the province of Quebec we are pleased to be supporting this legislative initiative. We support the minister in her efforts to bring forward other important bills. We look forward to having an opportunity to participate in those debates as well.