Hon. Bernadette Clement: Welcome, minister. On behalf of Senator Pat Duncan, I want to ask the following question:

You have an understanding of health care, and with your current responsibilities of Indigenous Services, your mandate letter includes a whole-of-government approach.

Status First Nations can be identified through provincial-territorial health care numbers. Why is assisting the renewal of status cards through Indigenous Services at such a bottleneck and causing such difficulty for First Nations? Why have we not seen quantifiable improvements after the millions you have spent to improve the system?

Hon. Bernadette Clement moved second 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, I rise today to speak to 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. I’m proud to sponsor this bill and grateful for the support of Department of Justice staff; they have done so much heavy lifting.

Bill S-11 is a technical piece of legislation and a long read. It clocks in at 161 pages and 639 clauses. It amends 51 statutes under the responsibility of nine federal departments. It’s also the result of several decades of work, and I’d like to give you an overview of the process that led us to this bill — the fourth in a series of harmonization efforts.

[Translation]

I would also like to tell you why I am sponsoring this bill.

I am a graduate of the University of Ottawa’s Civil and Common Law program. I mentioned this in my speech on Bill S-215, sponsored by Senator Moncion and entitled An Act respecting measures in relation to the financial stability of post‑secondary institutions. This unique gift, this unique opportunity to learn in French and in English, is something that I highly value.

Imagine my surprise when Bill S-11 was introduced in the Senate. When I heard the title, I suddenly looked up. I thought to myself, this is part of my history. As a former Quebecer turned Franco-Ontarian, this bill directly relates to the beginning of my legal career.

[English]

I remember my first day of law school. From that very first day, I learned about our country’s two unique legal systems, and it was important for me to understand both. If Canada has embraced both common law and civil law, then so will I.

Our inclusion of two languages and two legal traditions and the legacy of two colonial founders means we’re constantly grappling with complexity. This makes me hopeful for our country’s ability to further embrace diversity and do the work necessary for truth and reconciliation. I’ll come back to that in a moment. For now, let me tell you a little bit about the historical foundation of our current complex situation.

In 1774, the Quebec Act established and formalized the coexistence of civil law and common law traditions in Canada. After Britain’s decisive victory, they laid the framework for a colony that included Catholics and Protestants, anglophones and francophones, common law and civil law. The common law is law that is not written down as legislation; it’s law that has evolved into a system of rules based on precedent. This is a rule that guides judges in making later decisions in similar cases.

Civil codes contain a comprehensive statement of rules. Many are framed as broad, general principles to deal with any dispute that may arise. Unlike common law courts, courts in a civil law system first look to a civil code and then refer to previous decisions to see if they are consistent.

[Translation]

The coexistence of these systems was confirmed by the Constitution Act, 1867, which gives the provinces substantial residuary power in the areas of property and civil rights.

In 1993, the federal Department of Justice created the Civil Code Section, which examines federal legislation to ensure that it accurately reflects the legal traditions of both common law and civil law. The section was created prior to the coming into force of the new Civil Code of Quebec, which replaced the Civil Code of Lower Canada in 1994.

[English]

Since then, civil servants have been reviewing hundreds of statutes that regulate matters of private law. Private law deals with relationships between individuals or institutions rather than relationships between governments and individuals or institutions. Private law includes contracts like wills and marriages.

We’re making progress in harmonization efforts: Bill S-4 amended more than 50 statutes, Bill S-10 amended 26 statutes and Bill S-3 amended 12. Luckily, since 1995, new legislation follows the federal Department of Justice’s policy on legislative bijuralism. This ensures that bills are drafted with terminology, concepts, notions and institutions of both of Canada’s private law systems. New bills won’t be added to our list of statutes in need of harmonization.

I’ll pause a moment to stress that. The goal is not to have to harmonize statutes forever. New bills are written with bijuralism in mind.

[Translation]

Legislative bijuralism, as you have heard, is a project involving decades of work on hundreds of laws. It is worth the trouble. We are making sure we speak to Canadian citizens in English and in French in both legal traditions. The Charter Statement in relation to Bill S-11 emphasizes the importance of this work. We know that the Canadian Charter of Rights and Freedoms guarantees equality of status of English and French. The Charter Statement offers this reminder:

[English]

This bill contributes to the respect of the equal use of both official languages by seeking to ensure that federal laws are equally understandable in both English and French from a provincial and territorial private law perspective. It also facilitates access to justice by making legislation more accessible for all Canadians, whether they are English‑speakers or French-speakers, and whether they belong to the common law or the civil law legal tradition.

Since my appointment to this place, I have resisted the notion of a language binary: that French and English are our founding languages and the only ones worthy of recognition. Let me take a moment to make the same case here and remind us all that Indigenous languages and laws are worthy of recognition and revitalization too. Our common law and civil law tradition are a legacy of colonization by France and Great Britain.

We should not forget what came before, and what still exists — a tapestry of Indigenous laws and traditions that are valued by hundreds of unique communities.

Indigenous law is as diverse as the communities on Turtle Island. It is not static. Elders and knowledge keepers have carried and protected the laws of their communities — despite colonization, and despite residential schools.

Indigenous language revitalization is so important. Legal concepts are rooted in language. Language and law are connected. We can’t understand one without the other. As we promote language revitalization, we’re opening doors to the revitalization of law, too.

While Bill S-11 does not promote the use of Indigenous laws in Canada, there is plenty of work happening in other areas. For example, the national centre for Indigenous laws at the University of Victoria, once open, will provide space for learning, practice and research. This is one example of communities receiving support in response to the Truth and Reconciliation Commission’s Call to Action 50. This Call to Action speaks to the need for equity within Canada’s legal system. The commission calls for the federal government to collaborate with Indigenous organizations:

. . . to fund the establishment of Indigenous law institutes for the development, use, and understanding of Indigenous laws and access to justice in accordance with the unique cultures of Aboriginal peoples in Canada.

I hope that when we speak about harmonization in the future, we think about harmony as more than binary, but as a complex collection of traditions.

[Translation]

The Department of Justice is working to create a formal consultation process for future bills, since Indigenous communities were not formally consulted regarding Bill S-11. A formal consultation process with Indigenous Canadians will be put in place as part of Canada’s commitment to implement the United Nations Declaration on the Rights of Indigenous Peoples.

The consultations on Bill S-11 were completed in 2017. As we all know very well, although these consultations were completed four years ago, this bill was shelved for many years while the government responded to the urgent priorities brought on by the COVID-19 pandemic.

The 2017 consultation process for Bill S-11 involved over 400 stakeholders sharing materials. Justice Department staff received comments, met with banking institutions and heard from key stakeholders such as the Government of Quebec. Some groups recommended minor changes, while others stressed the importance of the harmonization efforts.

[English]

Indeed, as we look to pass this fourth harmonization bill, I’d like to take a look back at the first three bills, and highlight how significant this work is, both at home and around the world.

In 2001, Senator Pierre De Bané spoke to Bill S-4:

Harmonization will also benefit Canada internationally. The bijural nature of Canada requires respect for two great contemporary legal systems: the civil law and the common law. Globalization of markets and Canada’s ever-growing openness to some very diversified countries continue to have an impact on Canadians. Bijuralism, honourable senators, gives us a better understanding of the laws of countries operating under one or the other of these systems, and such countries account for almost 80 per cent of the countries in the world. It gives Canada a leg up when developing and negotiating international rules embodying concepts from either of these systems and makes it easier to adapt to these rules.

In addition, other countries with a dual system will be able to follow Canada’s lead, which has no equal or precedent. We are becoming a model for the entire world.

In 2004, while speaking to Bill S-10, the Honourable Serge Joyal told his colleagues:

We must recognize that the desired result of the overall exercise is that the civil code and the common law tradition will develop, both in accordance with their own genius and so that both will achieve something in common. Essentially, that is in keeping with the philosophy of this country, that is, we maintain our identity while we move forward together. We want to join our respective genius, talents, resources and diversities in creating a multi-ethnic and diverse society in which we can live and thrive together.

Finally, Senator David Angus took a different tack when, in 2011, he described Bill S-3 as a “gripping page-turner.” Folks, I’d argue Bill S-11 is even more interesting.

Senator Angus also said that:

. . . all Canadians benefit from harmonization. Not only does harmonization enable Quebecers to identify more with federal legislation, but it also clarifies federal statutes, which become more respectful of institutions proper to the civil law or the common law. In addition, it makes the application of federal legislation more efficient, which should improve the overall effectiveness of the administration of justice in Canada.

I’ve told you about my experience. I’ve given you the history. Now, let’s dive a bit into the bill. Truly, there is something for everyone. Bill S-11 is like a box of chocolates; you never know what you’re going to get.

I have to keep you invested in this speech. It’s dry, folks, but I’m trying.

As you flip through its many pages, you’ll see amendments to everything from the Privacy Act to the Dry Docks Subsidies Act. Senator Omidvar may be interested in the amendments to the Canada Not-for-profit Corporations Act. Senator Cormier, the Official Languages Act is also amended by Bill S-11. Senator Simons may have noticed the Canadian Radio-television and Telecommunications Commission Act is on the list of amended acts. And Senator Black may be interested to know that the Agricultural Marketing Programs Act is amended.

[Translation]

The objective of Bill S-11 is to ensure that the appropriate terminology and concepts from civil law and common law are used when federal legislation is based on provincial or territorial private law rules. For example, it adds the English term “hypothec” more than 100 times to various laws.

Many of the changes made by Bill S-11 are typical bijural changes, involving adding, deleting or changing a word to ensure that it respects the traditions of common law and civil law.

[English]

For example, some federal statutes respecting contract law are missing the civil law term “mandatary.” The solution is to twin the words “agent” and “mandatary” in the English texts.

Another example is replacing terms that we don’t use anymore, or that are incompatible with a new private law concept. For example, English texts use the word “letting” or “hiring” when they’re referring to leasing. Those terms are not applicable in civil law anymore. We’re replacing them with the term “lease,” which is the appropriate word in both civil law and common law.

[Translation]

Colleagues, thank you for listening. As we continue studying this bill, I hope that we will bear in mind the advantages of this process for Canadians, the decades of work accomplished by Justice Department staff, and the harmonization efforts that still lie ahead.

[English]

Harmonization makes statutes easier for all Canadians to understand. It’s an important modernization process that ensures accessibility and proper application of federal legislation where it refers to provincial and territorial private law.

I hope you join me in efficiently sending Bill S-11 to committee for further debate and discussion.

Thank you. Nia:wen.

(On motion of Senator Martin, debate adjourned.)

[Translation]