Quebec is a distinct society in many respects, even when it comes to justice. It relies on a Civil Code, derived from French law, which has marked its legal specificity for 160 years compared to the rest of Canada.
On August 1, 1866, the “Civil Code of Lower Canada” was introduced. This document came to put order in the rules and rights from different sources, languages and eras, says Michel Morin, professor at the Faculty of Law of the Université de Montréal.
“We wanted to make a work of simplification, of rationalization because we were starting to lose our shirts,” said Morin in an interview.
Before this codification, the law was “quite fragmented” in the province, composed among other things of the Coutume de Paris and an influence of Roman law, also points out Sylvio Normand, professor emeritus at the Faculty of Law of Laval University.
About 125 years later, the “Civil Code of Quebec” was adopted and replaced that of Lower Canada. This new text contains “on the whole a lot of innovations,” although some changes had been made since the 1960s, says Morin.
“It was really a document made for the years 1991 and the following. We were starting to talk about computer science, but very timidly, of course, because it wasn’t yet developed like it is today,” says Morin.
Important parts are modified in terms of personal rights, Mr. Normand points out. “Family law is going to be quite marked by a substantial revision of what the law was before,” he says.
Quebec was probably “a precursor” with the revision of its Civil Code to adapt it to contemporary reality in the early 1990s, says Morin.
“The Netherlands had started, and Quebec is one of the first territories where we made this effort by rewriting the code from A to Z,” he says.
This major overhaul of the Quebec structure served as a model for other states wishing to take a similar approach with their own code, according to Mr. Normand. The “Civil Code of Quebec” has also been translated, notably into Spanish and Russian, he says.
Civil law versus common law
The legal system in Quebec differs from the rest of the country in that it is governed by two regimes: civil law and common law.
The first applies essentially to relationships between individuals, such as contracts, family, property, and civil liability. The second, of English origin, covers criminal, administrative and constitutional law, as well as certain federal matters.
Civil law is distinguished by the existence of a code that contains the fundamental rules to which the public can have easy access, explain the two experts.
“Whereas in the common law, there are a lot of rules that you have to find in judgments that are obviously much more dispersed and less synthetic,” says Morin.
In his view, the presence of a Civil Code has had an influence on the way Quebec jurists reason, even those who practice common law.
“There is a way of writing, of conceiving not only the code, but also the laws and, even to a certain extent, the reasoning of judges that can be described as civil law.
“Some jurists in the common law provinces say, ‘Even when you do public law, constitutional law, criminal law or administrative law, you tend to reason a little more logically and Cartesianly, perhaps a little too much compared to what we would do common law lawyers,’” says Morin.
This difference does not mean that the common law results “are bad at the end of the day,” he says, but it does reflect a distinct legal culture.
Normand notes that the Supreme Court of Canada has sometimes cited the Civil Code of Quebec in a case in a common law province without applying its provisions, but only to draw parallels.
Keeping up with the company’s evolution
Morin points out that the sustainability of civil law in Quebec is the result of an attachment of Quebecers to this regime, both Francophones and Anglophones.
“There was really an alliance between some Anglophones and Francophones to preserve the civil law of French origin, whether it was at the time of the Quebec Act, the adoption of the Civil Code of 1866. Even in 1991, many jurists from McGill University’s Faculty of Law contributed to the work of preparing the Civil Code,” he says.
Morin points out that the Quebec Civil Code has been able to retain its French characteristics and resist “pressure to make these rules more modeled on those of the common law.”
According to him, the main challenge of the “Civil Code of Quebec” is to amend it regularly to incorporate issues that, even if they are not always brought before the courts, remain important to society.
Normand agrees: “I think we must always be on the lookout to ensure that there can be possible interventions. It’s been done a lot since the new code came into effect,” he says.
In general, there is “a good match between the company and the code” today, says Normand.
–This report by La Presse Canadienne was translated by CityNews
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