Quebec law
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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]
Historical development
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, the variant of civil law in force in the Paris region.[7][full citation needed][8][9] 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[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
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
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]
Private law in Quebec affects all relationships between individuals (
Public law in Quebec is largely derived from the common law tradition.
Certain portions of Quebec law are considered mixed. This is the case, for example, with
The Civil Codes
Civil Code of Lower Canada
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:
- Persons;
- Property and its Different Modifications;
- Means of Acquiring and Owning Property;
- Commercial Law.
Civil Code of Quebec
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]
The current Code consists of ten books:
- Persons
- The Family
- Successions
- Property
- Obligations
- Prior Claims and Hypothecs
- Evidence
- Prescription
- Publication of Rights
- Private International Law
Civic values and social order
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]
- Quebec is a francophone society
- Quebec is a democratic society
- Women and men are equal
- Québécois have responsibilities
- Quebec is a laïquesociety
Québécois society bases its cohesion and specificity on a set of statements, a few notable examples of which include:
- The Quebec Charter of Human Rights and Freedoms[30]
- The Charter of the French Language[31]
- The Civil Code of Quebec[32]
Courts
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
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
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
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 must have a
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
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
See also
- Canadian Law
- Legal systems of the world
External links
References
- ^ Kélada 1970, p. 21
- ^ Brun, Tremblay & Brouillet 2008, p. 28
- ^ 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.
- ^ Canadian Legal Information Institute. "Att. Gen. of Quebec v. Blaikie et al., 1979 CanLII 21 (S.C.C.)". Government of Canada. Archived from the original on April 9, 2013. Retrieved November 24, 2007.
- ^ Canadian Legal Information Institute. "A.G. (Quebec) v. Blaikie et al., [1981] 1 S.C.R. 312". Government of Canada. Archived from the original on April 9, 2013. Retrieved November 24, 2007.
- ^ Tremblay & Le May 2009, p. 83
- ^ 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.).
- ^ Tremblay & Le May 2009, pp. 84–87
- ^ 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.
- ^ Émond & Lauzière 2003, pp. 37–38
- ^ (Brun, Tremblay & Brouillet 2008, pp. 474–491)
- ^ Émond & Lauzière 2003, p. 38
- ^ 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.
- ^ Brun, Tremblay & Brouillet 2008, pp. 9, 28
- ^ Morin & Woehrling 1992, pp. 141–144
- )
- ^ Émond & Lauzière 2003, pp. 39–40
- ^ Brun, Tremblay & Brouillet 2008, pp. 943–945
- ^ An Act respecting the Civil Code of Lower Canada, S.Prov.Can. 1865, c. 41.
- ^ Civil Code of Quebec, SQ 1980, c. 39, s. 1.
- ^ a b "A Short History of the Civil Code Reform." Archived 2005-12-18 at the Wayback Machine
- ^ Civil Code of Québec, SQ 1991, c. 64.
- ^ Quebec Portal (August 5, 2009). "The Rule of Law". Government of Quebec. Archived from the original on July 20, 2011. Retrieved July 7, 2011.
- ^ "Valeurs clés" (consulted April 2021)
- ^ "Installer et integrer" (consulted April 2021)
- ^ Ministry of Justice of Quebec (December 1, 2009). "CHARTER OF HUMAN RIGHTS AND FREEDOM" (PDF). Government of Quebec. Archived from the original (PDF) on June 13, 2011. Retrieved July 7, 2011.
- ^ 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.
- )
- ^ Vadnais, Louise (2000). "Les caméras en Cour d'appel". Le Journal du Barreau. 32 (8).
- ^ "La juridiction de la Cour supérieure du Québec". Tribunaux judiciaires du Québec. 2011.
- ^ L'Observatoire de l'administration publique, Judiciaire
- ^ See Article 55, Code of ethics of notaries, CQLR c N-3, r 2.
- ^ Gouvernement du Québec, ed. (2008). "Mission, vision, valeurs". Sûreté du Québec. Retrieved 27 September 2011.
- ^ Ministère de la Sécurité publique (2011). Gouvernement du Québec (ed.). "Sûreté du Québec". Retrieved 27 September 2011.
- ^ "L'État Québécois En Perspective" (pdf). Les organismes de la sécurité publique. 2011.
- )
- ^ "Sorties sous surveillance". Éducaloi. 2009. Archived from the original on 7 August 2011.
Sources
- Brun, Henri; Tremblay, Guy; Brouillet, Eugénie (2008). Droit constitutionnel (5 ed.). Éditions Yvon Blais. OCLC 233522214.
- Émond, André; Lauzière, Lucie (2003). Introduction à l'étude du droit. Wilson & Lafleur. OCLC 52798925.
- Kélada, Henri (1970). Précis de droit québécois. Centre éducatif et culturel. OCLC 17462972.
- Morin, Jacques-Yvan; Woehrling, José (1992). Les constitutions du Canada et du Québec: du régime français à nos jours. Tome premier. Études (PDF). Éditions Thémis.
- Tremblay, Guy; Le May, Denis (2009). Une grille d'analyse pour le droit du Québec. Montréal: Wilson & Lafleur. OCLC 312884195.
Law
- ^ Constitution Act, 1867, s. 91.
- ^ Constitution Act, 1867, ss. 92, 92A, 93.
- ^ Federal Courts Act, RSC 1985, c. F-7
- ^ Reference re Remuneration of Judges of the Provincial Court (PEI), [1997] 3 SCR 3.
- ^ Constitution Act, 1867, s. 101.
- ^ Constitution Act, 1867, ss. 96, 98, 99, 100.
- ^ Constitution Act, 1867, s. 92(14).
- ^ Code of Civil Procedure, CQLR , c. C-25.01, s. 29
- ^ Code of Civil Procedure, CQLR , c. C-25.01, s. 33
- ^ Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27.
- ^ "Loi sur la police, L.R.Q. P-13.1". Retrieved 27 September 2011.