Quebec law
Encyclopedia
Quebec law is unique in Canada
because Quebec
is the only province in Canada to have a bijuridical legal system under which civil matters are regulated by French-heritage civil law
. Public law
, criminal law
and other federal law operate according to Canadian common law
.
was established when New France
was founded in 1663. In 1664, Louis XIV decreed that Quebec's law would be primarily based on the customary law of Paris (Coutume de Paris), which was the variant of civil law
in force in the Paris region. Justice was administered and courts proceeded under an inquisitorial system
.
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
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
, which re-instated the civil law legal system for private law in general and property law in particular.
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 Constitution Act, 1867
. 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 Constitution Act, 1867, marriage and divorce fall under federal jurisdiction. However, marriage ceremonies are solemnized according to the Quebec civil code, 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. See Law of Canada
.
enacted the Civil Code of Lower Canada
. 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:
, 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.
The current Code consists of ten books:
s, be they attorneys or notaries
, in Quebec are required to hold a degree in civil law
. There are various names for the degree, depending on the university which grants it. McGill University
and Université d'Ottawa grant a Bachelor of Civil Law
degree, while other universities, such as Université Laval
, grant a Bachelor of Laws degree (LL.B.). Candidates must then complete an articled clerkship, pass the professional bar course and be called to the Barreau du Québec
before being able to practise law.
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
because Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
is the only province in Canada to have a bijuridical legal system under which civil matters are regulated by French-heritage civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
. Public law
Public law
Public law is a theory of law governing the relationship between individuals and the state. Under this theory, constitutional law, administrative law and criminal law are sub-divisions of public law...
, criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
and other federal law operate according to Canadian common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
.
Historical Development
Quebec's legal systemLaw
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
was established when New France
New France
New France was the area colonized by France in North America during a period beginning with the exploration of the Saint Lawrence River by Jacques Cartier in 1534 and ending with the cession of New France to Spain and Great Britain in 1763...
was founded in 1663. In 1664, Louis XIV decreed that Quebec's law would be primarily based on the customary law of Paris (Coutume de Paris), which was the variant of civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
in force in the Paris region. Justice was administered and courts proceeded under an inquisitorial system
Inquisitorial system
An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense...
.
In 1763, at the conclusion of the Seven Years' War
Seven Years' War
The Seven Years' War was a global military war between 1756 and 1763, involving most of the great powers of the time and affecting Europe, North America, Central America, the West African coast, India, and the Philippines...
, France ceded sovereignty over Quebec to Britain, in the Treaty of Paris
Treaty of Paris (1763)
The Treaty of Paris, often called the Peace of Paris, or the Treaty of 1763, was signed on 10 February 1763, by the kingdoms of Great Britain, France and Spain, with Portugal in agreement. It ended the French and Indian War/Seven Years' War...
. The British Government then enacted the Royal Proclamation of 1763
Royal Proclamation of 1763
The Royal Proclamation of 1763 was issued October 7, 1763, by King George III following Great Britain's acquisition of French territory in North America after the end of the French and Indian War/Seven Years' War...
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
Quebec Act
The Quebec Act of 1774 was an Act of the Parliament of Great Britain setting procedures of governance in the Province of Quebec...
, which re-instated the civil law legal system for private law in general and property law in particular.
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 Constitution Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. 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...
. 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
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, Quebec continues to apply civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
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 Constitution Act, 1867, marriage and divorce fall under federal jurisdiction. However, marriage ceremonies are solemnized according to the Quebec civil code, while divorce proceedings may apply federal laws and regulations and common law concepts such as in loco parentis
In loco parentis
The term in loco parentis, Latin for "in the place of a parent"" refers to the legal responsibility of a person or organization to take on some of the functions and responsibilities of a parent...
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. See Law of Canada
Law of Canada
The Canadian legal system has its foundation in the British common law system, inherited from being a former colony of the United Kingdom and later a member of the Commonwealth of Nations. Quebec, however, still retains a civil system for issues of private law...
.
The Civil Code of Lower Canada
In 1866, the Parliament of the Province of CanadaProvince of Canada
The Province of Canada, United Province of Canada, or the United Canadas was a British colony in North America from 1841 to 1867. Its formation reflected recommendations made by John Lambton, 1st Earl of Durham in the Report on the Affairs of British North America following the Rebellions of...
enacted the Civil Code of Lower Canada
Civil Code of Lower Canada
Civil Code of Lower Canada was the civil code in force in Lower Canada from July 1, 1866 to June 30, 1867 and in Quebec from July 1, 1867 to December 31, 1993...
. 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
Napoleonic code
The Napoleonic Code — or Code Napoléon — is the French civil code, established under Napoléon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified...
of 1804.
The Civil Code of Lower Canada consisted of four books:
- Persons;
- PropertyPropertyProperty is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
and its Different Modifications; - Means of Acquiring and Owning Property;
- Commercial LawCommercial lawCommercial law is the body of law that governs business and commercial transactions...
.
Civil Code of Quebec (1980)
In 1980, the Province of Quebec enacted a new Civil Code of Quebec, 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.Civil Code of Quebec
Quebec's current civil code, the Civil Code of QuebecCivil Code of Quebec
The Civil Code of Quebec is the civil code in force in the province of Quebec, Canada. The Civil Code of Quebec came into effect on January 1, 1994, except for certain parts of the book on Family Law which were adopted by the National Assembly in the 1980s...
, 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.
The current Code consists of ten books:
- Persons
- The FamilyFamily lawFamily law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
- Successions
- Property
- ObligationsLaw of obligationsThe law of obligations is one of the component private law elements of the civil system of law. It includes contract law, delict law, quasi-contract law, and quasi-delict law...
- Prior Claims and HypothecsHypothecHypothec is a mortgage in Roman and Scots law, in other words, a legal right over a debtor's property that however remains in the debtor's possession....
- EvidenceEvidence (law)The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
- Prescription
- Publication of Rights
- Private International Law
Lawyers in Quebec
LawyerLawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
s, be they attorneys or notaries
Civil law notary
Civil-law notaries, or Latin notaries, are lawyers of noncontentious private civil law who draft, take, and record legal instruments for private parties, provide legal advice and give attendance in person, and are vested as public officers with the authentication power of the State...
, in Quebec are required to hold a degree in civil law
Bachelor of Civil Law
Bachelor of Civil Law is the name of various degrees in law conferred by English-language universities. Historically, it originated as a postgraduate degree in the universities of Oxford and Cambridge, but many universities now offer the BCL as an undergraduate degree...
. There are various names for the degree, depending on the university which grants it. McGill University
McGill University
Mohammed Fathy is a public research university located in Montreal, Quebec, Canada. The university bears the name of James McGill, a prominent Montreal merchant from Glasgow, Scotland, whose bequest formed the beginning of the university...
and Université d'Ottawa grant a Bachelor of Civil Law
Bachelor of Civil Law
Bachelor of Civil Law is the name of various degrees in law conferred by English-language universities. Historically, it originated as a postgraduate degree in the universities of Oxford and Cambridge, but many universities now offer the BCL as an undergraduate degree...
degree, while other universities, such as Université Laval
Université Laval
Laval University is the oldest centre of education in Canada and was the first institution in North America to offer higher education in French...
, grant a Bachelor of Laws degree (LL.B.). Candidates must then complete an articled clerkship, pass the professional bar course and be called to the Barreau du Québec
Barreau du Quebec
The Bar of Quebec is the provincial law society for lawyers in Quebec, Canada...
before being able to practise law.