Bijuralism A Supreme Court of Canada Justice s Perspective

Author:Claire LHeureux-Dubé
Position::Justice of the Supreme Court of Canada

I. Introduction II. Legal Education III. Bilingualism III. History IV. Federal Harmonization V. Precedent In Québec VI. Conclusion: Bijuralism And Transnational Commercial Law

Justice of the Supreme Court of Canada. I would like to thank my law clerk, Christopher Rickerd, for his assistance in the research and preparation of this paper.

I consider it an honour to have been invited to deliver the Rubin Lecture at the Louisiana State University Law Center. I had the privilege and good fortune to know Judge Alvin Rubin. I am delighted to have an opportunity to pay tribute to this great jurist whose "intellect, scholarship and judicial leadership," in the words of one of his colleagues, "place him in a select group" including Holmes, Brandeis, Cardozo, Learned Hand, and Henry Friendly, all judicial icons.1 Alvin Rubin was a giant among jurists and, most importantly, one with a pronounced social conscience. The family tradition of excellence is shared by his wife Janice, his sons Michael and David, and his grandchildren.

Life sometimes gives you presents. For me, my initial encounter with Janice and Alvin was a precious gift. It was purely fortuitous that Alvin and I were members of the faculty together-way back in the 1970s-at judicial education summer seminars for superior court judges in Canada. I became an admirer of the Rubins, and we have deepened this friendship to this day. This lecture on bijuralism thus has great personal significance for me.

I. Introduction

Professor William Tetley of Montréal's McGill University, who recently published a brilliant paper in the Louisiana Law Review on mixed jurisdictions, wrote that "outside of Europe and such places as Québec, Louisiana and South Africa, there is little discussion of mixed jurisdictions; in fact the subject is usually met with indifference."2 I am glad, in light of his remarks, to be in front of this receptive audience, but I am also confident that the subject of my lecture today will not be relegated to the shadows of international legal affairs for long. Although it is not a household word outside jurisdictions with dual legal systems, bijuralism is likely to be a prominent subject of discussion on the international scene in the years to come. This is because bijural states provide valuable examples of the manner in which legal systems can co-exist harmoniously. They exemplify the very same elements of convergence and cross-pollination that we see taking place in the global arena when transnational legal encounters occur, especially those in commercial law, with NAFTA3 and the EU as prime examples.

Indeed, because mixed jurisdictions of common law and civil law include Louisiana, Québec, St. Lucia, Puerto Rico, South Africa, Zimbabwe, Botswana, Lesotho, Swaziland, Namibia, the Philippines, Sri Lanka, and Scotland, there are strongholds of bijuralism throughout the world ready to teach theoretical and practical lessons to their monoglot counterparts. Nevertheless, I do recognize that with civil-law jurisdictions representing forty-six percent of the world's jurisdictions and common-law jurisdictions representing twenty-six percent, the six percent with mixed systems are a distinct minority.4 It is not majority rule that leads to legal ideas triumphing, however, but their relevance to contemporary problems and, in this field especially, to the vastly increasing number of cross-cultural interactions that implicate private law. In this sense, I propose to offer the following observations on Canadian bijuralism in the spirit lying behind the words of New York University Law School Dean John Sexton, who stated last year that "perhaps the most profound impact of globalization on the enterprise of legal education can be captured in the word 'humility.' Discovering a premise that unconsciously shaped one's thinking is a dramatic moment intellectually, and the repetition of such discoveries should instill intellectual humility and a reluctance to assume that there is a single right answer."5

II. Legal Education

In this most appropriate setting, I would like to begin by considering the foundation of any bijural system-legal education. Several Canadian universities offer law degrees based on bijuralism, namely the "national program" that allows students to pursue a program of studies in both legal systems at the University of Ottawa; the integrated studies program in common law and civil law at McGill University in Montréal; and programs that promote the teaching of the common law in French at the Universities of Ottawa and Moncton. Other universities have established inter-faculty exchange programs that occur during school terms, and the federal Department of Justice sponsors a Student Mobility Program that permits students to complete one term of study at a law school teaching the other legal system. Students who take advantage of these opportunities to learn about both legal systems of Canada have a magnificent comparative legal education to offer their country and the wider world. In this respect, your fine institution is a shining example of the potential for innovative education based on two legal systems.

III. Bilingualism

Canada not only faces the challenge of educating lawyers in the intricacies of two legal systems but also must consider the role of two languages. In Canada, there are 22.5 million anglophones representing seventy-five percent of the population and 7.5 million francophones accounting for the remaining quarter. Canada still has to make progress before becoming a truly bilingual country in the legal field as in all others. Within the province of Québec, it is remarkable, as one commentator has noted, that "[e]ven the accepted interpretations of statutes, codal articles and cases have frequently been dual. Secondary-source materials . . . have tended to be deployed by those who practice law primarily in the language in which these doctrinal sources were composed."6

This linguistic divide is especially relevant because, according to Professor Tetley, "the long-term survival of a mixed jurisdiction is greatly facilitated by (and perhaps even contingent upon) the presence of at least two official (or at least widely-spoken) languages in that jurisdiction, each mirroring and supporting the legal systems there."7 The first Canadian Official Languages Act was passed in 1969, requiring federal government institutions to provide government services in the official language of choice. In 1982, the Canadian Charter of Rights and Freedoms entrenched the constitutional language rights of Canadians. The Supreme Court of Canada has played an important role in ensuring that the legal system operates in a comfortably bilingual manner. As an institution, it has made considerable progress in becoming bilingual; for example, of my eight colleagues, now only one speaks just English. With the appointment of my colleague Louise Arbour in 1999, the Court for the first time had a francophone majority. But the Court's real impact on national bilingualism comes, of course, from its jurisprudence.

One of the Court's early decisions in the post-Charter era exemplifies this commitment to bilingual legal practice in Canada. Two years before I was appointed, in its 1985 decision in Re Manitoba Language Rights,8 the Court considered the legality of unilingualism in the written law of Manitoba. Since 1890, the Manitoba Legislature had enacted almost exclusively unilingual (English) statutes and regulations despite the existence of an 1870 federal statute, the Manitoba Act, which requires the province to publish in both French and English. This mandate to use two languages has important jurisprudential implications because under the "equal authenticity rule," Canadian courts have consistently affirmed that the English and French versions of a statute are equally authoritative. Interpretation thus necessitates reading the two texts in light of one another.9

In Re Manitoba Language Rights, the Court ruled that all the unilingual laws were invalid but suspended this declaration temporarily to avoid an anarchic legal vacuum. In so doing, the decision emphasized the constitutive role of language and its inextricable ties to the law:

The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity. It is through language that we are able to form concepts; to structure and order the world around us. Language bridges the gap between isolation and community, allowing humans to delineate the rights and duties they hold in respect of one another, and thus to live in society.10

Despite this type of pronouncement, however, there is still much work to do. Canada's Commissioner of Official Languages, Dr. Dyane Adam, has made it one of her top priorities to follow up on the recommendations of a 1995 study entitled "The Equitable Use of English and French Before the Courts in Canada."11 She has recently mentioned the beneficial impact of our Court's decision in R. v. Beaulac in 1999,12 which cited the study. In Beaulac, the accused was charged with first-degree murder in British Columbia. In his third trial, which followed a mistrial and a conviction overturned by the Court of Appeal, the accused renewed his prior requests for a trial before a judge and jury who speak both official languages, as provided for by the federal Criminal Code. A judge dismissed this application, based on the accused's passable English, and the trial proceeded in English to convict him. Our Court ordered a new trial to be held before a bilingual judge and jury.

Our judgment observed that:

Language rights are not negative rights, or passive rights; they can only be enjoyed if the means are provided. This is consistent with the notion favoured in the area of international law that...

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