Quebec law is unique in Canada because Quebec is the only province in Canada to have a juridical legal system (pertaining to the administration of justice) 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.
Quebec's legal system was established when New France was founded in 1663. In 1664, Louis XIV decreed in the charter creating the French East India Company that French colonial law would be primarily based on the Custom of Paris, which was the variant of civil law in force in the Paris region. Justice was administered according to the “Code Louis”, consisting of the 1667 ordinance on civil procedure and 1670 ordinance on criminal procedure. Trials were conducted under an inquisitorial system. The French law merchant was in force as regulated by the 1673 “Code Savary” on trade.
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 British North America 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 British North America 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 civil law system and applied at the Federal level. See Law of Canada.
The Civil Codes
The Civil Code of Lower Canada
In 1866, the Parliament of the Province 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:
- Property and its Different Modifications;
- Means of Acquiring and Owning Property;
- Commercial Law.
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 Quebec, 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:
- The Family
- Prior Claims and Hypothecs
- Publication of Rights
- Private International Law
Lawyers in Quebec
Unlike in the other Canadian provinces, Quebec possesses two distinct types of lawyer. 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.
Advocates are similar but not identical to the all-purpose lawyers of the common law system because Quebec advocates are restricted to litigation and any other contentious legal business (e.g. torts, crimes, will contests, divorces, etc.). Advocates must have a bachelor’s degree in civil law, complete an articled clerkship, pass the professional bar course and be called to the Quebec bar before being able to practise. Currently, 5 universities in Quebec and one university in Ontario offer an undergraduate degree in civil law, under various names: McGill University grants a Bachelor of Civil Law degree, the University of Ottawa grants a Licence en droit (LL.L) while the other universities, such as Université Laval, grant a Bachelor of Laws degree (LL.B.).
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).
- 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.
- Quebec Act, 1774, 14 George III, c. 83 (U.K.).
- Constitution Act, 1867 Archived May 31, 2012, at the Wayback Machine, 30 & 31 Victoria, c. 3 (U.K.), R.S.C. 1985, App. II, No. 11.
- An Act respecting the Civil Code of Lower Canada, S.Prov.Can. 1865, c. 41.
- Civil Code of Quebec, S.C. 1980, c. 39, s. 1.
- "A Short History of the Civil Code Reform." Archived 2005-12-18 at the Wayback Machine
- Civil Code of Québec, S.Q. 1991, c. 64.
- See Article 55, Code of ethics of notaries, CQLR c N-3, r 2.