Federal Law – Civil Law Harmonization
When the Quebec Civil Code came into force in 1994, replacing the Civil Code of Lower Canada, the Department of Justice began a process to review federal law with an eye to harmonizing it with the new code, essentially in areas where federal law deals with matters that in other respects fall within “property and civil rights within the province.” According to the recent legislative summary [PDF] from the Legal and Legislative Affairs Division Parliamentary Information and Research Service, the aim seems more to acknowledge and “respect” the civil law tradition than it does to correct terminology that has been the source of mischief. (If you’re unfamiliar with this harmonization effort, as I was, you may find the Background section of the summary quite interesting.)
Now a third bill in that harmonization effort, S-12, to deal with various terms found in the Business Corporations Act, the Expropriations Act, and a dozen other lesser laws has received third reading in both houses. Again, this is not a matter of making consequential changes, but rather of adding terms that users of the Code would know and understand as belonging to Quebec law. Thus, for a typical example, here is section 2 of the Expropriation Act first as it now reads and then as it will read:
“registrar” means the registrar or master of deeds or land titles or other officer with whom the title to land is registered or recorded.
“registrar” means the officer with whom the titles relating to real property and immovables are registered or recorded.
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«registrateur » Le registrateur d’actes ou de titres de propriété foncière ou autre fonctionnaire auprès de qui ces titres sont enregistrés.
« registrateur » Fonctionnaire auprès de qui les titres relatifs aux immeubles ou biens réels sont enregistrés.
The “rationale” provided in the Summary is as follows:
An “immovable” in the civil law is the equivalent to “real property” in the common law. The problem in much of the legislation addressed by Bill S-12 is that only civil law terminology (“immeuble”) is used in the French version and only common law terminology (“real property”) is used in the English version.
The solutions proposed in the bill are to add the term “immovables” to the English versions of legislation to reflect the civil law, while adding the term “biens réels” to the French versions in order to reflect the common law.
At first I wondered why it wasn’t possible simply to deal with matters like this through translation, as it were; that is, to have the English version speak of “real property” and the French version speak of “immeuble” (if “propriété foncière” is inapt), or to set up an authoritative table of equivalences? Then I realized that the aim is not merely to have the same law, the same rules, apply in both arenas, as it were, but also to have each version use and acknowledge terms from the other. And because in truth it’s a matter of Quebec’s sensibilities, it comes down to the wish to have the word “immovable” appear in the English version of the Code, which, unless I have missed something here (as well I might), is very fine indeed and illustrates the tricky nature of Canada’s bijural situation.
Finally, let me be picky and wonder why the English version uses “and” where the French version has “ou.”
I don’t think it’s just about having each version ‘acknowledge’ the other or about Quebec’s sensitivities; it may be about the sensitivities of civil lawyers of whatever language – but only because they are quicker to recognize what those of us stuck knowing only one legal system and one language may not, which is the non-equivalence of terms that are therefore not good translations.
The terms in common law and civil law do not have exactly the same meaning. So to call a tort a ‘délit’ in French is not accurate, because a tort in common law is not the same as a délit in civil law, or a delict, for that matter (since there is good English for civil law – as spoken in Scotland, Louisiana and other anglophone civil law jurisdictions. Finding French for common law terms was a lot harder.)
Thus if you really want to have bilingual laws, you need bilingual common law and bilingual civil law.
Put another way, one has to translate not only between English and French but between common law and civil law, and that means that one has to use four terms not two.
That is what the harmonization effort is about. There are big thick books of essays about the process, published before the statutes started coming – say the early 1990s. I have not actually read the essays, but I skimmed some; they are almost impossibly learned. I recall seeing in the mid-1980s thick books of proposals for common law terms in French, too – with varying proposals for many terms, each supported by arguments, by terminologists in Moncton, Montreal, and Ottawa, among other places.
I agree that it is a good thing to do, in order to have a serious claim to a bilingual bijural legal system.
Thanks for your comment, John. Perfectly clear, as usual. But I’m still uncertain about what exactly is meant to be going on here, lots of thick books and jurists notwithstanding. Would the following analysis be right?
Let’s assume a federal statute that says in English anyone who commits a “tort” near a federal building must go into exile. Up until Bill S-12, the French version used the word “dèlit” in place of “tort.” You say that the words don’t mean the same thing, cover the same ground; and in the abstract I agree. But these words occur in the context of a single section in the same piece of legislation, where, I should have thought, their meaning would perforce have to be the same, whether it required an enlargement (or confinement) of our other understandings of “tort” or “dèlit’ or both. Put another way, a person in Alberta (whose judge only spoke English) might escape exile while a person in Quebec (whose judge only spoke French) would be banished, unless the terms were “harmonized” in effect, i.e in meaning.
The addition of “and delict” to the English “tort” and “ou un mal” (for argument’s sake) to “dèlit” either clarifies the situation I’ve outlined (taking pressure off the distortion of “tort”, perhaps by providing another target for interpretation). Or it alters the law somehow by… justifying (?) the juxtaposed English and French versions of the statue.
I think the first conclusion the more sensible. And I wonder still how necessary the change was.