The following is a guest post by Geneviève Claveau and Julia Heron, summer interns at the Global Legal Research Directorate, Law Library of Congress.
Every year on June 24th, the province of Quebec, Canada celebrates Saint-Jean-Baptiste day. Initially associated with Catholicism, this holiday goes as far back as 1834, when it was first used to celebrate cultural identity by some of the most important figures of the time, such as Georges Étienne Cartier, Louis-Hippolyte Lafontaine, and the mayor of Montreal, Jacques Viger. In 1977, the Quebec government proclaimed June 24th the National Holiday of Quebec. The National Holiday Act created a statutory secular public holiday within the province of Quebec. In 2010, there was an attempt to recognize Saint-Jean Baptiste day across Canada as a national holiday through a private members bill. Saint-Jean Baptiste remains a highly celebrated event by all communities of the province, although the holiday takes on a political significance for many of the proponents of Quebec sovereignty.
We thought that this would be a perfect occasion to briefly explain the Quebec legal system and what sets it apart from the rest of Canada. Quebec is the only province in Canada with a bijural legal system comprised of both common law and civil law traditions. This is due to the historical occupation of the land by both France and England.
New France
Originally, Quebec was part of New France, a vast territory in North America colonized by France following the expedition of Jacques Cartier in 1534. In 1663 and 1664, Louis XIV successively adopted two Edicts (p. 33-46) officially introducing French law across the colony. The Custom of Paris, written in 1580, became the applicable law, complemented by various other sources.
The Conquest and the Royal Proclamation of 1763
In 1760, the Capitulation of Montreal marked the beginning of the British regime. Three years later, the “Province of Quebec” was created under the Royal Proclamation of 1763 issued by King George III through his royal prerogative. Quebec inhabitants thus became subjects of the British Crown, and English Law was imposed upon them in an effort to encourage English settlers. However, despite these constitutional changes, the population remained mostly comprised of French settlers who could not speak English nor understand English law. The court system was very seldom used and the application of the law was not uniform. In fact, the period between 1763 and 1774 was very much a military regime. French settlers protested against the introduction of English law in private relationships and asked the King to restore their laws.
The Quebec Act, 1774
The protests of the French settlers, combined with the slow British immigration and strategic considerations – for example, the threat of the French settlers taking part in the movement that a few years later became the American Revolutionary War – led the British Parliament to adopt the Quebec Act, 1774. Amongst other things, the Act re-instituted the French-Canadian customary civil law in private law matters (subject to certain exceptions, like the freedom to test), but maintained English criminal law.
Quebec’s First Civil Code
Sixty-two years after the enactment of the Napoleonic Code and 10 years after the adoption of its enabling legislation of 1857, the Civil Code of Lower Canada (which would today correspond to the province of Quebec) came into effect on August 1, 1866, 11 months before the advent of the Canadian confederation. It remained in force until the end of 1993 when it was repealed and replaced by Quebec’s current code, the Civil Code of Quebec, which took effect on January 1, 1994.
British North American Act of 1867
Two other constitutional acts (1791 and 1840) eventually led to the British North American Act of 1867, which established the Dominion of Canada as a federal state with a constitution separating legislative powers between the federal Parliament and the provincial legislatures.
The actual state of the legal system in Quebec is one of coexistence between the civil and common law traditions. When stated simply, most say that public law in Quebec is common law and that private law is civil. However, this is an oversimplified explanation. First, the federal government has jurisdiction (§§ 91(26)(15)(21)) over some private law matters, notably “Marriage and Divorce,” “Banking, Incorporation of banks and the Issue of Paper Money,” and “Bankruptcy and Insolvency.” Furthermore, in section 2 of the preliminary disposition, the Civil Code of Quebec states that:
“The Civil Code comprises a body of rules which, in all matters within the letter, spirit or object of its provisions, lays down the jus commune, expressly or by implication. In these matters, the Code is the foundation of all other laws, although other laws may complement the Code or make exceptions to it.”
The wording of this paragraph is indicative of the wide scope of the Civil Code. It reaches past private matters, stretching into the public sphere and applying to the State and its bodies, as well as to all other legal persons established in public interest. (Civil Code, art. 1376)
Representation of Quebec’s Particularity at the Supreme Court of Canada
Section 6 of the Supreme Court Act provides that “[a]t least three of the [nine] judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.”
In a recent decision, the majority of the Supreme Court of Canada highlighted that:
“Section 6 reflects the historical compromise that led to the creation of the Supreme Court. Just as the protection of minority language, religion and education rights were central considerations in the negotiations leading up to Confederation (Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (“Secession Reference”), at paras. 79-82), the protection of Quebec through a minimum number of Quebec judges was central to the creation of this Court. A purposive interpretation of s. 6 must be informed by and not undermine that compromise.
The purpose of s. 6 is to ensure not only civil law training and experience on the Court, but also to ensure that Quebec’s distinct legal traditions and social values are represented on the Court, thereby enhancing the confidence of the people of Quebec in the Supreme Court as the final arbiter of their rights. Put differently, s. 6 protects both the functioning and the legitimacy of the Supreme Court as a general court of appeal for Canada. […]” (Reference re Supreme Court Act , ss. 5 and 6, [2014] 1 S.C.R. 433.)