Bijuralism and Bilingualism in Canada: The Role of the Federal Courts

• Author: Martine Valois
• Pages: 183-228

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Bijuralism and Bilingualism in Canada:

The Role of the Federal Courts

Martine Valois*

 ,    based on the two European legal traditions:

the civil law and the common law.1 After the Conquest of New France in

, the Royal Proclamation of  stipulated that English laws would apply

in what was then the territory of the Province of Quebec.2 However, with the

adoption of the Quebec Act of ,3 French civil law was restored in matters of

property and civil rights,4 while English law continued to apply in all other

* The author would like to thank Ashley Saad and Sophie LaRoche for their excellent

research work, as well as Henri Barbeau and Sabrina Kosseim for their assistance in

the f‌inal revision of the manuscript.

1 Marc Cuerrier, Sandra Hassan & Marie-Claude Gaudreault, “Symposium: Canadian

Bijuralism and Harmonization of Federal Tax Legislation” (2003) 51 Canadian Tax Jour-

nal 160 at 163.

2 George R, Proclamation, 7 October1763 (3 Geo III), reproduced in RSC 1985, App II,

No1.

3 Quebec Act of 1774 (UK), 14 Geo III, c83, reproduced in RSC 1985, App II, No2.

4 Quebec Act of 1774, s8; Allan Lutfy & Emily McCarthy, “Rule-Making in a Mixed Juris-

diction: The Federal Court (Canada)” (2010) 49 Supreme Court Law Review (2d) 313 at

para 7.

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        

areas of law.5 is dual heritage was entrenched in the Constitution Act, ,6

which armed the provinces’ exclusive jurisdiction over matters of property

and civil rights.7 Under its provisions, the federal Parliament has the power

to legislate on certain private law matters, but the provinces have jurisdiction

over most matters of private law.8 While section  of the Constitution Act,

 gives the federal Parliament the power to standardize laws relative to

property and civil rights, this section does not apply in Quebec, an exception

that aims to protect the integrity of Quebec civil law.9 In the other Canadian

provinces, private common law was received, by way of the rules governing

the transference of English law to English colonial settlements.10

Just as it recognizes Canadian “bijuralism,” a term we will use to refer to

the duality of Canada’s legal traditions, the Constitution Act,  also recog-

nizes Canada’s linguistic duality. is recognition is ref‌lected in particular in

the guarantee of the use of French and English before the federal Parliament

and in the legislatures of Quebec,11 as well as before the courts of Quebec

and those created under the authority of the statutes of Canada. e Consti-

tution Act,  reproduced these guarantees in sections  and  of the Act,

and added a guarantee of the public’s right to communicate with, “and to

receive available services from, any head or central oce of an institution of

the Parliament or government of Canada in English or French.”12 Since ,

the Ocial Languages Act13 has guaranteed the use of both ocial languages

5 Public law, including administrative law and criminal law, is governed by the common

law. See France Allard, “The Supreme Court of Canada and its Impact on the Expres-

sion of Bijuralism” in The Harmonization of Federal Legislation with the Civil Law of the

Province of Quebec and Canadian Bijuralism, Booklet3 (Ottawa: Department of Justice,

2001) at2.

6 Constitution Act, 1867, 30 & 31 Vict, c3 (UK), s91, reproduced in RSC 1985, App II, No5.

7 Cuerrier, Hassan & Gaudreault, above note 1 at163; Alain Vauclair & Lyne Tassé,

“Civil Law and Common Law Balanced on the Scales of Thémis: The Example of the

Bankruptcy and Insolvency Act” (2003) 37 Revue juridique Thémis 5 at6.

8 See ss18, 21, 26, and 91(1) of the Constitution Act, 1867, above note 6, for the areas of

private law under federal jurisdiction.

9 Gérald-A Beaudoin, “Le Canada : droit civil et common law, quelques notes histo-

riques” (2002) 32 Revue générale de droit 87 at88.

10 Jean E Côté, “The Reception of English Law” (1977) 15 Alberta Law Review 29.

11 A provision similar in content to section133 was enacted for Manitoba (s23) in

theManitoba Act, 1870, 33Vict, c3 (armed by theConstitution Act, 1871, 34–35Vict,

c28 (UK)). Also, sections16 to 19 of the Constitution Act, 1982 extend the guarantees

of section133 of the Constitution Act, 1867 to New Brunswick.

12 Constitution Act, 1982, s20(1), being ScheduleB of the Canada Act 1982 (UK), 1982, c11.

13 Ocial Languages Act, RSC 1985, c31 (4th Supp).

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Bijuralism and Bilingualism in Canada: The Role of the Federal Courts

before the Federal Courts. As courts created by an Act of Parliament,14 the

Federal Courts are subject to the constitutional rules of bilingualism and the

rules stipulated in the Ocial Languages Act.

e Federal Courts are a natural forum for the recognition and develop-

ment of Canadian bijuralism: “with regards to procedure, evidence and sub-

stantive law, [they use] rules of law inherited from both common law and

civil law.”15 e Federal Court is the only national trial court in Canada that

applies the principles of common law and civil law in the ocial language

chosen by the parties.16 In addition, the composition of the Federal Courts

depends on Canada’s legal dualism. It requires that a minimum number of

judges17 be chosen among those who have been judges of the Court of Appeal

or the Superior Court of Quebec, or persons who are members of the Barreau

du Québec.18 e Federal Courts must interpret bilingual laws and apply the

rules that fall under Canada’s two legal traditions. Litigators trained in both

legal traditions who speak either ocial language represent parties who have

the right to choose the language in which they wish to express themselves.

ese parties are sometime s subject to dierent legal rules depending on the

province where the litigation arose. Federal Courts judges have, so to speak,

“four audiences for the law . . . : Anglophones and Francophones subject to the

civil law, on the one hand, and Anglophones and Francophones subject to

the common law, on the other hand.”19

Our f‌irst goal in this text is to state the predominant role of the Fed-

eral Courts in the development of Canadian legal duality and, in particular,

respect for the integrity of Quebec civil law in the exercise of its jurisdic-

tion over federal law. Second, we will examine the evolving interpretation of

14 Federal Courts Act, RSC 1985, cF-7.

15 Denis Lemieux, “La dualité juridique au sein de la Cour fédérale” in Cour fédérale du

Canada — Colloque du 25e anniversaire (Ottawa, 1996) at69 [our translation].

16 Lutfy & McCarthy, above note4 at para 14.

17 “At least f‌ive of the judges of the Federal Court of Appeal and at least 10 of the judges

of the Federal Court must be persons who have been judges of the Court of Appeal or

of the Superior Court of the Province of Quebec, or have been members of the bar of

that Province,” as stipulated in the Federal Courts Act, above note 14, s5.4.

18 Bilodeau-Massé v Canada (Attorney General), 2017 FC 604 at para 69, [2018] 1 FCR 386.

19 Lionel A Levert, “Harmonization and Dissonance: Language and Law in Canada and

Europe — The Cohabitation of Bilingualism and Bijuralism in Federal Legislation in

Canada: Myth or Reality?”in The Harmonization of Federal Legislation with the Civil

Law of the Province of Quebec and Canadian Bijuralism, Booklet7 (Ottawa: Depart-

ment of Justice, 2001), online: www.justice.gc.ca/eng/rp-pr/csj-sjc/harmonization/

hf‌l-hlf/b1-f1/bf1.pdf.