Hon. Bernadette Clement moved third reading of Bill S-11, A fourth Act to harmonize federal law with the civil law of Quebec and to amend certain Acts in order to ensure that each language version takes into account the common law and the civil law.

She said: Honourable senators, today I rise to speak to Bill S-11, which I am proud to sponsor.

Bill S-11 is the fourth act to harmonize federal law with the civil law of Quebec and to amend certain acts in order to ensure that each language version takes into account the common law and the civil law.

To recap, our work on this harmonization has been going on since 1993. Bill S-11 makes technical amendments to 51 acts, particularly acts governing financial institutions.

[English]

I know that this bill doesn’t excite everyone, but our study at committee pulled me back to law school. It was fun to be back in a room of fellow geeks — and I say that affectionately — equally interested in the subject matter: Senator Harder inquiring about the harmonization process; Senator Pate pushing for clarity around whether harmonization is the right construct for inclusion of Indigenous traditions; and Senator Batters speaking to legislative drafting as a very particular expertise. I may not be able to do the committee meeting justice here — bad pun coming, I’m warning you. While I know that Santa Claus will not keep your Christmas free of any clause-by-clause, I hope that over the holidays, you check out this committee meeting of eager geeks studying Bill S-11.

Since it was introduced in the Senate in October, we have heard from Senators Dupuis, Dalphond and Carignan, all of whom have pointed to the importance of this work. They have my thanks for their contributions to this discussion.

[Translation]

Senator Carignan told us that all previous harmonization acts received multi-party support both here in the Senate and in the other place. He also told us that he supported this bill at second reading because it will strengthen the vitality of bijuralism.

Senator Dalphond said the following, and I quote:

Not enough people realize what Canada contributes. As a bijural federation, it is something of a rarity internationally. Our contribution, not only to common law in French and civil law in English, but to bijuralism at the same time, is entirely unique, in my opinion. In that sense, in Quebec and elsewhere in Canada, I think we can be proud. We are participating in two of the world’s great legal traditions, which is also fantastic.

My colleague Senator Dupuis very clearly explained that this harmonization initiative is based on a legal framework that is deeply connected to the history of Quebec and Canada and to this reality. The coexistence of common law and civil law dates back over two centuries. As we all know, these are just two of Canada’s legal traditions. It is important to add that Indigenous law deserves more of our attention.

[English]

The Honourable Serge Joyal sponsored a harmonization bill in 2004. In his third reading speech, he spoke of their conversations around Indigenous law as “totally new in parliamentary debate.” Honourable senators, it is no longer new to us, and it certainly isn’t new to the communities across Canada working on the revitalization of their traditions and cultures. I’m hopeful to see more progress, action and inclusion.

The Legal and Constitutional Affairs Committee considered Bill S-11 for two short but intense meetings. We heard from Justice Minister and Attorney General of Canada David Lametti and Department of Justice officials France Allard and Riri Shen. Minister Lametti told us that his department is working hard to support the reassertion of what he described as “Indigenous normative systems.” I was glad to hear that legal pluralism is in the minister’s DNA and that the flourishing of Indigenous legal systems is a priority. The minister spoke of integrating Indigenous law into our university programs:

I think the role of the Minister of Justice and the ministry is to facilitate and support that kind of work, and I think at some point there will be another stage of evolution in Canadian law.

[Translation]

The committee also heard testimony on the consultations, during which over 400 stakeholders were invited to provide comments and criticisms. We paid special attention to the proposals of the Chambre des notaires du Québec, and I quite enjoyed hearing the explanations the witnesses gave of the drafting process for this bill.

[English]

We know that harmonization does not mean that one system disappears at the expense of the other; instead, it is about the coexistence of common law and civil law in the same federal legislation.

To that end, a specific approach called co-drafting is used. It was highlighted during our discussion in committee. Instead of writing a code, constitution or bill in English, following the common law tradition, and then translating it to French, co‑drafting means that the text is written in both English and French, considering common law and le droit civil at the same time.

In the geeky fashion mentioned earlier, Senator Cotter and Justice Minister Lametti both proudly spoke to their experience of co-drafting.

When we draft legislation, we capture the terminology, concepts and principles of both legal traditions. It is worth pausing here to reinforce that co-drafting means we will not always have to retroactively harmonize; new bills are drafted according to the policy on legislative bijuralism. Ms. Allard told us that the co-drafting exercise forces the establishment of a dialogue between two languages, and I like picturing that. Instead of working in silos, the work is integrated and happens simultaneously, leading to a more thorough understanding of each other.

[Translation]

Now, here we are at third reading, and it is my responsibility to remind you of all the reasons why this bill is important and why it should be passed.

[English]

I have already used my “box of chocolates” analogy. That got me a gift of chocolates from Senator Bovey, by the way. Thank you. I have called out to individual senators to let them know that the acts that they care about are being amended by Bill S-11, and I have one more communication tactic left in my toolbox, and that is an appeal to the heart.

Nation-building is complicated and messy, and constantly changing. Lines are drawn on a map with various justifications and are often fought over, disputed and renegotiated. It is comparing and contrasting how one nation does things versus another. It is defining culture, rules, language, regions and so much more. Nation-building is a ceaseless process of choices, consequences, actions and reactions.

This bill is about nation-building, even though it doesn’t include all our legal traditions, even though it is not making the papers, causing an uproar on social media or inspiring hearts and minds across the country. Sometimes nation-building is technical and particular, and just a little niche.

[Translation]

However, this is fundamental work. We’re ensuring the coexistence and vitality of two legal systems, two languages and two cultures. I look forward to a time when we can move beyond the so-called duality into a reality that encompasses traditions other than English and French, common law and civil law, but I know this work will take time. I’m happy to be part of it.

As we conclude our study of Bill S-11, let me briefly remind you what it does. First, it makes our legislation more understandable to all Canadians by using concepts and terminology that are appropriate and familiar to them, regardless of their province of origin or whether their daily lives are governed by common law or civil law.

Second, Bill S-11 minimizes uncertainty in the implementation and interpretation of legislative intent, which helps facilitate access to justice. Third, this bill advances the equality of status of English and French within the Canadian legal system.

Finally, Bill S-11 is a collaborative effort. This bill is a painstaking dance to incorporate provincial private law terminology into federal legislation. The constitution of provincial and territorial institutions, in addition to the 400 other stakeholders who took part in the consultations, reflects a respect for the constitutionally mandated role and jurisdiction of the provinces and territories.

[English]

In 2004, the committee studied a previous harmonization bill, Bill S-10. In their report on the bill, the committee referred to the testimony of the Honourable Irwin Cotler, then Minister of Justice. The report stated that the minister:

. . . encourages everyone to take the view that bijuralism is by no means exclusionary. Rather, he emphasized that it is an open model that he hoped would lead to a plural model, as time goes on.

I want to thank all of the officials, analysts and geeks for their diligent work and remarkable contributions to Bill S-11. Honourable senators, I hope you will join me in this opportunity to further the project of nation-building and support the passing of Bill S-11. Thank you, nia:wen.