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Quebec law is unique in Canada because Quebec is the only province in Canada to have a juridical legal system under which civil matters are regulated by French-heritage civil law. Public law, criminal law and federal law operate according to Canadian common law.
Quebec law is under the shared responsibility of the federal government and the provincial government. According to the Constitution of Canada, these two governments are each responsible for enacting law when it falls under their sphere of competence. As such, the federal government is responsible for criminal law, foreign affairs, commerce, interprovincial transportation, and telecommunications.[law 1] The provincial government is responsible for private law, the administration of justice and several social domains, such as social assistance, healthcare, education, and natural resources.[law 2]
The four classic sources of law, legislation, case law, doctrine and customary law, together make up Quebec law.[1] Legislation is the primary source, but because private law is mostly exercised under a civil tradition, case law is also a strong source.[2][3] The law is made up of the Constitution of Canada, the laws of the Quebec Legislature and the rules related to legislating.
English is not an official language in Quebec law.[4] However, both English and French are required by the Constitution Act, 1867 for the enactment of laws and regulations, and any person may use English or French in the National Assembly and the courts. The books and records of the National Assembly must also be kept in both languages.[5][6]
In 1763, at the conclusion of the Seven Years' War, France ceded sovereignty over Quebec to Britain, in the Treaty of Paris. The British Government then enacted the Royal Proclamation of 1763[10] which set out the principles for the British government of the colony. In particular, the Royal Proclamation provided that all courts in Quebec were to decide "... all Causes, as well Criminal as Civil, according to Law and Equity, and as near as may be agreeable to the Laws of England." This provision displaced the Paris customary law for all things civil and criminal. However, in 1774, the British Parliament passed the Quebec Act,[11] which re-instated the civil law legal system for private law in general and property law in particular.[12]
The key provision of the Quebec Act was s. VIII, which provided that all disputes relating to "Property and Civil Rights" were to be decided by the former law of Quebec. This phrase was carried forward as s. 92(13) of the British North America Act, 1867.[13] This section granted all the provinces, including Quebec, the exclusive power to legislate with respect to private civil law matters. While the other provinces operate under common law, Quebec continues to apply civil law toward civil private law matters. In areas of law under federal jurisdiction, however, Quebec is, like its fellow Canadian provinces and territories, subject to common law. Quebec has therefore a bijuridical legal system.
Civil law and common law occasionally overlap or contradict each other. For instance, under section 91 (26) of the British North America Act, 1867, marriage and divorce fall under federal jurisdiction. However, marriage ceremonies are solemnized according to the Civil Code of Quebec, while divorce proceedings may apply federal laws and regulations and common law concepts such as in loco parentis, which has no equivalent at civil law according to which only the biological or legally adoptive relationship with offspring are recognized. Criminal law is, however, based on the common law system and applied at the federal level.
Public and private law
The 1865 commission with the mandate to codify the civil laws of Lower Canada.
Quebec law can be divided into 2 spheres: private law and public law. Private law concerns the relations between individuals, while public law deals with the rules that govern the Québécois government.[14]
Public law in Quebec is largely derived from the common law tradition.[18] Quebec constitutional law is the area of law that governs the rules surrounding the Quebec government, the Parliament of Quebec and Quebec's various courts. Quebec constitutional law is governed in large part by the Constitution of Canada, in particular by the Constitution Act of 1867, but also by various acts of the Parliament of Quebec.[19] Quebec administrative law is the area of law that governs relations between individuals and the Quebec public administration. Quebec also has some jurisdiction over criminal law, but in a limited fashion, since the Parliament of Canada is responsible for criminal law. Quebec criminal law nevertheless includes a wide range of offences (road traffic safety (Code de la sécurité routière)[fr], Quebec labour law[fr], etc.). Finally, Quebec, like the federal government, has tax law power.[20]
In 1866, the Parliament of the Province of Canada enacted the Civil Code of Lower Canada.[23] This Civil Code applied only in Lower Canada, which a year later became the Province of Quebec. The Code was comprehensive and covered all areas of private civil law. The Code was largely based on and inspired by the Napoleonic Code of 1804.
The Civil Code of Lower Canada consisted of four books:
In 1980, the Province of Quebec enacted a new Civil Code of Quebec,[24] dealing only with family law. This was an intermediary stage in the development of an entirely new civil code. The Legislature decided to enact this new Code because of the need for immediate reforms to the family law of Quebec.[25]
Quebec's current civil code, the Civil Code of Quebec,[26] was the product of a lengthy review of the civil law, beginning with the establishment of the Civil Code Revision Office in 1955. The new Civil Code of Quebec was enacted in 1991, and came into force in 1994. This Code repealed both the Civil Code of Lower Canada and the Civil Code of Quebec of 1980.[25]
Quebec is a free and democratic society that abides by the rule of law.[27] The Government of Quebec cites five statements that represent the key values of Québécois society:[28][29]
Court administration and appointment of judges under federal jurisdiction
Court administration under Quebec jurisdiction, but judges appointed by the federal government
Court administration and appointment of judges under Quebec jurisdiction
Although Quebec is a civil law jurisdiction, it does not follow the pattern of other civil law systems which have court systems divided by subject matter. Instead, the court system follows the English model of unitary courts with general jurisdiction. The provincial courts have jurisdiction to decide matters under provincial law as well as federal law, including civil matters, criminal matters and constitutional matters.[33] The major exception to the principle of general jurisdiction is that the Federal Court and Federal Court of Appeal have exclusive jurisdiction over some areas of federal law, such as review of federal administrative bodies, federal taxes, and matters relating to national security.[law 3]
All courts, whether federal or provincial, are protected by the principle of judicial independence. The Supreme Court has held that judicial independence is a fundamental constitutional principle. The courts must have complete freedom to decide cases which come before them based on the law and the facts, without any political interference. The federal and provincial governments have legislative authority with respect to court structure and court administration, but the core function of deciding cases is reserved to the courts.[law 4]
The Quebec courts are organized in a pyramid. At the bottom, there are the municipal courts, the Professions Tribunal, the Human Rights Tribunal, and administrative tribunals. Decisions of those bodies can be reviewed by the two trial courts, the Court of Quebec the Superior Court of Quebec. The Court of Quebec is also the main criminal trial court, and also a court for small civil claims. The Superior Court is a trial court of general jurisdiction, in both criminal and civil matters. The decisions of those courts can be appealed to the Quebec Court of Appeal. Finally, if the case is of great importance, it may be appealed to the Supreme Court of Canada, which is a court of general appeal, with jurisdiction over all legal issues which can arise in the lower courts.
The Parliament of Canada has legislative authority over the Supreme Court and other federal courts, subject to the principle of judicial independence. The federal government pays the judges of those courts and provides the necessary administrative supports, such as court employees and courthouses.[law 5] The federal government also appoints the judges of the Quebec Court of Appeal and the Superior Court, pays their salaries, and has exclusive power to remove them from office.[law 6] Although the judges of these courts are appointed and paid by the federal government, it is the government of Quebec which is responsible for laws regulating the court structure and the necessary administrative supports for the court system.[law 7]
The three main courts are the Court of Appeal, the Superior Court and the Quebec Court. Of these, the Court of Appeal serves two purposes. First, it is the general court of appeal for all legal issues from the lower courts. It hears appeals from the trial decisions of the Superior Court and the Quebec Court. It also can hear appeals from decisions rendered by those two courts on appeals or judicial review matters relating to the municipal courts and administrative tribunals.[law 8] Second, but much more rarely, the Court of Appeal possesses the power to respond to reference questions posed to it by the Quebec Cabinet. The Court of Appeal renders more than 1,500 judgments per year.[34]
The Superior Court of Quebec has the inherent power to rule on all cases other than those where jurisdiction is assigned to another court or tribunal.[law 9] This means that the Superior Court has the power to hear all civil claims under the Civil Code of Quebec, determine matters under family law, including under the federal Divorce Act, and hear class actions. It also has jurisdiction to hear appeals and judicial review applications from lower courts and administrative tribunals.[35] The Superior Court is also a cour of criminal jurisdiction under the federal Criminal Code. It is the trial court for the most serious criminal offences, and also is the appellate court from criminal decisions of the Quebec Court.
The Court of Quebec is a court of statutory jurisdiction, rather than a court of general jurisdiction. However, its criminal law jurisdiction is very extensive, as all but the most serious criminal cases are heard by the Court of Quebec. In addition, the Court of Quebec is made up of three chambers: the Youth Division, the Criminal and Penal Division and the Civil Division. The Civil Division includes the small claims division. Until recently, the Court of Quebec had exclusive jurisdiction over all civil matters where the amount in issue was under $85,000, but the Supreme Court of Canada has held that it is unconstitutional to assign exclusive jurisdiction over those matters to the Court of Quebec and take that jurisdiction away from the Superior Court.[law 10]
The municipal courts, the Human Rights Tribunal, and the Professions Tribunal are all trial courts. Their powers are limited to the powers that are given to them by the statute which created them.
Quebec has a large number of administrative tribunals responsible for seeing to the application of one or more laws. In total, the Quebec judicial system has more than 500 judges. Nearly 300 of them work in the provincial courts, 25 at the Court of Appeal and nearly 200 at the Superior Court.[36]
Lawyers
Unlike in the other Canadian provinces, Quebec possesses two distinct types of lawyers. In Quebec, lawyers are either advocates or notaries. Indeed, statute forbids a lawyer from having a dual practice, i.e. an advocate cannot practice both as an advocate and a notary at the same time.[37]
Notaries in Quebec, like those in other countries with legal systems based on civil law, are office lawyers who are restricted to non-contentious legal business such as real estate, law of inheritance, non-contentious family law, and company law. To practise as a notary, candidates must have, in addition to a law degree, a 1-year master's degree in notarial law and be a member of the Quebec notaries’ society (Chambre des notaires du Québec).
Law enforcement
The Sûreté du Québec is the main police force of Quebec, and it is responsible for the application of the law on the entire Québécois territory. The Sûreté du Québec can also serve a support and coordination role with other police forces, such as with municipal police forces or with the Royal Canadian Mounted Police (RCMP).[law 11][38]
Municipal police, such as the Service de police de la Ville de Montréal and the Service de police de la Ville de Québec, are responsible for law enforcement in their municipalities. The Sûreté du Québec fulfills the role of municipal police in the 1038 municipalities without a municipal police force.[39] The indigenous communities of Quebec have their own police forces.[40]
The RCMP has the power to enforce certain federal laws in Quebec. However, given the existence of the Sûreté du Québec, its role is more limited than in the other provinces.[41]
For offences against provincial or federal laws in Quebec (including the Criminal Code), the Director of Criminal and Penal Prosecutions[fr] is responsible for prosecuting offenders in court through Crown attorneys. The Department of Justice of Canada also has the power to prosecute offenders, but only for offences against specific federal laws (ex. selling narcotics). When it comes to the penal system, Quebec is responsible for operating the prison system for sentences of less than two years, while the federal government operates penitentiaries for sentences of two years or more.[42]
Canadian federalism involves the current nature and historical development of the federal system in Canada.
The legal system of Canada is pluralist: its foundations lie in the English common law system, the French civil law system, and Indigenous law systems developed by the various Indigenous Nations.
In common law systems, a superior court is a court of general jurisdiction over civil and criminal legal cases. A superior court is "superior" in relation to a court with limited jurisdiction, which is restricted to civil cases involving monetary amounts with a specific limit, or criminal cases involving offenses of a less serious nature. A superior court may hear appeals from lower courts. For courts of general jurisdiction in civil law system, see ordinary court.
The politics of Quebec are centred on a provincial government resembling that of the other Canadian provinces, namely a constitutional monarchy and parliamentary democracy. The capital of Quebec is Quebec City, where the Lieutenant Governor, Premier, the legislature, and cabinet reside.
The Charter of Human Rights and Freedoms, also known as the "Quebec Charter", is a statutory bill of rights and human rights code passed by the National Assembly of Quebec on June 27, 1975. It received Royal Assent from Lieutenant Governor Hugues Lapointe, coming into effect on June 28, 1976. Introduced by the Liberal government of Robert Bourassa, the Charter followed extensive preparatory work that began under the Union Nationale government of Daniel Johnson.
A tribunal, generally, is any person or institution with authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title. For example, an advocate who appears before a court with a single judge could describe that judge as "their tribunal." Many governmental bodies that are titled as "tribunals" are described so in order to emphasize that they are not courts of normal jurisdiction. For example, the International Criminal Tribunal for Rwanda was a body specially constituted under international law; in Great Britain, employment tribunals are bodies set up to hear specific employment disputes. In many cases, the word tribunal implies a judicial body with a lesser degree of formality than a court, in which the normal rules of evidence and procedure may not apply, and whose presiding officers are frequently neither judges, nor magistrates. Private judicial bodies are also often styled "tribunals." The word tribunal, however, is not conclusive of a body's function—for example, in Great Britain, the Employment Appeal Tribunal is a superior court of record.
The Constitution Act, 1867, originally enacted as the British North America Act, 1867, is a major part of the Constitution of Canada. The act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system. In 1982, with the patriation of the Constitution, the British North America Acts which were originally enacted by the British Parliament, including this Act, were renamed. However, the acts are still known by their original names in records of the United Kingdom. Amendments were also made at this time: section 92A was added, giving provinces greater control over non-renewable natural resources.
The court system of Canada forms the country's judiciary, formally known as "The King on the Bench", which interprets the law and is made up of many courts differing in levels of legal superiority and separated by jurisdiction. Some of the courts are federal in nature, while others are provincial or territorial.
The Court of Appeal of Quebec is the highest judicial court in Quebec, Canada. It hears cases in Quebec City and Montreal.
French law has a dual jurisdictional system comprising private law, also known as judicial law, and public law.
In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, and highcourt of appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of a supreme court are not subject to further review by any other court. Supreme courts typically function primarily as appellate courts, hearing appeals from decisions of lower trial courts, or from intermediate-level appellate courts.
The Civil Code of Lower Canada was a law that was in effect in Lower Canada on 1 August 1866 and remained in effect in Quebec until repealed and replaced by the Civil Code of Quebec on 1 January 1994. The Code replaced a mixture of French law and English law that had arisen in Lower Canada since the creation of the British Province of Quebec by the Royal Proclamation of 1763, as modified by the Quebec Act in 1774.
The constitution of Quebec comprises a set of legal rules that arise from the following categories:
Cushing v Dupuy is a Canadian constitutional law case decided by the Judicial Committee of the Privy Council, at that time the highest court of appeal for the British Empire, including Canada. The case was on appeal from the courts of Quebec, and dealt with the following issues:
Section 92(14) of the Constitution Act, 1867, also known as the administration of justice power, grants the provincial legislatures of Canada the authority to legislate on:
14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.
The Human Rights Tribunal of Quebec is a specialized first-instance tribunal of the province of Quebec, Canada, that has the jurisdiction to hear and judge litigations concerning discrimination and harassment based on the prohibited grounds stipulated in the Charter of Human Rights and Freedoms, as well as concerning the exploitation of elderly or handicapped persons and affirmative action programs.
In France the jurisdictions of the ordre judiciaire, of the French court system are empowered to try either litigation between persons or criminal law cases. They may intervene:
Section 96 of the Constitution Act, 1867 is a provision of the Constitution of Canada relating to the appointment of judges of the provincial superior, district and county courts. It provides that the judges of those courts are appointed by the Governor General of Canada. By constitutional convention, the Governor General exercises that power on the advice of the federal Cabinet
Valin v Langlois is a Canadian constitutional law decision from the Supreme Court of Canada, concerning the jurisdiction of the federal Parliament over federal elections, as well as the constitutional jurisdiction of the provincial superior courts. The Court held that the Parliament of Canada has sole jurisdiction to enact laws regulating federal elections, including provisions for controverted elections. The Court also held that the provincial superior courts have general jurisdiction over questions of federal and provincial law, and that Parliament could give provincial courts jurisdiction to apply federal laws.
Section 101 of the Constitution Act, 1867 is a provision of the Constitution of Canada giving the federal Parliament the power to create the Supreme Court of Canada and the federal courts. Although Parliament created the Supreme Court by an ordinary federal statute in 1875, the Court is partially entrenched by the amending formula set out in the Constitution Act, 1982. The composition of the Court can only be changed by a unanimous constitutional amendment, passed by the two houses of Parliament, and all of the provincial legislative assemblies.
↑ Mayrand, Albert (1994). "L'autorité du précédent au Québec". Revue juridique Thémis. 28: 771–797.
↑ Office Québecois de la langue francaise (June 1, 2011). "Charter of the French language". Government of Quebec. Archived from the original on May 2, 2003. Retrieved July 14, 2011.
↑ Édit royal de mai 1664, Édits et Ordonnances (édition de 1854), tome 1, p. 40; cited in Le Droit Privé au Canada - Études comparatives / Private Law in Canada - A Comparative Study, Ottawa: University of Ottawa Press, 1975, Vol. I, para. 1.
↑ An Act respecting the Codification of the Laws of Lower Canada relating to Civil matters and Procedure, S.Prov.Can. 1857, "Preamble."
↑ Royal Proclamation, 1763, R.S.C. 1985, App. II, No. 1.
↑ Baudouin, Louis (1963). "La réception du droit étranger en droit privé québécois (Ouvrage collectif)". Quelques aspects du droit de la province de Québec. Éditions Cujas. pp.16–22.
↑ Office québécois de la langue francaise (June 1, 2011). "CHARTER OF THE FRENCH LANGUAGE". Government of Quebec. Archived from the original on May 2, 2003. Retrieved July 7, 2011.
↑ Ministry of Justice of Quebec (June 1, 2011). "Civil Code of Quebec". Government of Quebec. Retrieved July 7, 2011.
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