Canadian Bijuralism At A Crossroad? The Impact Of Section 8.1 Of The Interpretation Act On Judicial Interpretation Of Federal Legislation

Abstract

Section 8.1 of the Interpretation Act affirms the equal authority of the common law and civil law in the field of property and civil rights. The section states, subject to two exceptions, that federal enactments based on rules and concepts that are part of the law of property and civil rights are to be interpreted in accordance with these rules and concepts. Prior to the enactment of section 8.1 in 2001, courts had a tendency to opt for a uniform application of federal legislation based on common law concepts, with often negative results for Quebec civil law. Since then, the Supreme Court of Canada (SCC) has had a number of opportunities to interpret federal legislation in light of section 8.1. Following an analysis of the Court's decisions, the author concludes that the SCC has had an ambivalent rapport with section 8.1, and has not yet subjected it to in-depth analysis or explained its underlying objectives. The author emphasizes that section 8.1 has the potential to promote exchanges between Quebec civil law and Canadian common law at the level of federal legislation and submits proposals in this regard.