Cecily Zamora
Quebec's legal system is a unique mix of civil law and common law traditions. Unlike other provinces in Canada, Quebec operates under a civil law system for private law matters, while public law matters, including constitutional and criminal law, are largely derived from common law traditions. This means that Quebec's legal system recognises both the principles of civil law, which are codified in a civil code, and the precedents set by judges in common law. In this way, Quebec's legal system differs from that of the rest of Canada, which operates primarily under common law traditions.
| Characteristics | Values |
|---|---|
| Type of law | Civil law |
| Court system model | Unitary courts with general jurisdiction |
| Court jurisdiction | Provincial and federal law, including civil, criminal, and constitutional matters |
| Federal court jurisdiction | Exclusive jurisdiction over federal law, such as federal administrative bodies, federal taxes, and national security |
| Judicial independence | Protected for all courts |
| Legal system basis | English and French systems |
| Common-law relationships | Couples living together without being legally married or in a civil union |
| De facto union requirements | Living together for at least two years |
| Inheritance rights in de facto unions | Partners are not considered heirs and do not inherit without a will |
| Public law basis | Common law traditions |
| Criminal law basis | Common law system |
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What You'll Learn
Quebec's civil law tradition
Quebec's legal system operates under a civil law tradition, unlike other Canadian provinces that follow common law traditions. Quebec's civil law tradition can be traced back to the 17th and 18th centuries when explorers and colonists brought English and French legal systems to Canada. After the Battle of Quebec in 1759, the country came under English common law, but Quebec retained its civil law system.
In contrast, public law in Quebec, which governs the rules relating to the Québécois government, is largely derived from the common law tradition. This includes areas such as constitutional law and administrative law. Quebec's constitutional law is governed by the Constitution of Canada, including the Constitution Act of 1867, as well as acts passed by the Parliament of Quebec. The province also has some jurisdiction over criminal law, but it is limited as the Parliament of Canada holds primary responsibility in this area.
The distinction between private and public law in Quebec highlights the unique nature of its legal system, which is considered bijuridical, with civil law and common law traditions coexisting and occasionally overlapping or contradicting each other. For example, while marriage ceremonies in Quebec are performed according to the Civil Code, divorce proceedings may involve federal laws and common law concepts.
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Criminal law in Quebec
Quebec law can be divided into two spheres: private law and public law. While Quebec courts operate under a civil law tradition, in areas of public law, Quebec courts follow common law traditions, like the rest of Canada. Quebec therefore has a bijuridical legal system.
In a criminal case, the government takes the accused to court. The accused can defend themselves and try to provide evidence of their innocence, or they can accept the punishment for their criminal actions. The aim of the defence is to put a reasonable doubt in the judge's mind. The judge must be almost 100% sure that the accused is guilty; if the judge has a "reasonable" doubt, the accused must be found "not guilty". If the accused is found guilty, sentencing normally takes place at another hearing. The judge may ask for a presentencing report from a probation officer, which will focus on the personality and criminal record of the accused, among other things. The judge must render a sentence that is fair, reasonable, and proportional to the nature and gravity of the offence committed.
Sometimes, one situation can lead to both a criminal case and a civil case. For example, a person punches a neighbour for damaging their fence and breaks the neighbour's tooth. The government can take that person to criminal court because punching someone is a crime ("assault"). The injured neighbour can also sue the other person in civil court to be compensated for the cost of fixing their tooth.
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Quebec's public law
Quebec's legal system is a mix of common law and civil law. While Quebec courts predominantly operate under a civil law tradition, in areas of public law, they follow common law traditions. Quebec's public law deals with the rules that govern the Québécois government, the Parliament of Quebec, and Quebec's various courts. This includes Quebec constitutional law, which is governed by the Constitution of Canada, particularly the Constitution Act of 1867, as well as acts of the Parliament of Quebec.
Quebec's administrative law governs the relationship between individuals and the Quebec public administration. Quebec also has some jurisdiction over criminal law, which is based on the common law system and applied at the federal level. Quebec criminal law covers a wide range of offences, including road traffic safety and labour law. Additionally, Quebec has tax law power, similar to the federal government.
The bijuridical nature of Quebec's legal system means that civil law and common law sometimes overlap or contradict each other. For instance, while marriage ceremonies follow the Civil Code of Quebec, divorce proceedings may apply federal laws and common law concepts. Quebec's approach to the concept of "ordinary residence" in family law also differs from that of common law provinces, as intention is not considered a critical factor in determining a person's habitual residence.
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Private law in Quebec
Quebec law can be divided into two spheres: private law and public law. Private law concerns relationships between individuals, while public law deals with rules governing the Québécois government. Private law in Quebec is largely under the jurisdiction of the Parliament of Quebec. However, the Parliament of Canada also influences Quebec's private law through its power over banks, bankruptcy, marriage, divorce, and maritime law.
The Droit civil du Québec is the primary component of Quebec's private law and is codified in the Civil Code of Quebec. The Civil Code of Quebec is the primary text outlining jus commune in Quebec and includes principles and rules of law governing legal persons, property law, family law, obligations, civil liability, conflict of laws, and more. The Civil Code of Quebec was enacted in 1980 and deals specifically with family law. This was an intermediary stage in the development of an entirely new civil code, as the Legislature recognised the need for immediate reforms to the family law of Quebec.
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. Later, in 1774, the British Parliament passed the Quebec Act, which reinstated the civil law legal system for private law and property law. This granted all the provinces, including Quebec, the exclusive power to legislate with respect to private law matters.
While courts in other Canadian provinces operate under common-law traditions, Quebec courts operate under a civil law tradition. Quebec's private law is mostly exercised under a civil tradition, with case law also serving as a strong source. Quebec's private law is influenced by the Civil Law and the Napoleonic Code from France, making its legal system unique compared to other Canadian provinces or territories.
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Common-law relationships
Quebec law differs from the rest of Canada in that it operates under a civil law system, whereas the courts in other provinces operate under common law traditions. Quebec's legal system is therefore a mix of civil law and common law, making it a bijuridical legal system.
In the context of common-law relationships, Quebec law officially recognises "de facto" couples or "de facto unions". A common-law relationship is when two people live together but are not legally married or in a civil union. To be considered a common-law couple in the eyes of the law, it is not necessary to live together or to have children together, although these are often criteria used to determine whether a common-law relationship exists. In Quebec, a couple must live together for at least two years to be considered a de facto couple for tax purposes, and at least three years for pension purposes.
Common-law couples in Quebec do not have the same protections as married couples. For example, they do not benefit from the protection of the family residence if ownership of the home or the apartment lease is in the name of one person only. Additionally, in the absence of a will, a common-law partner does not inherit anything under the law. This is in contrast to other provinces in Canada, such as British Columbia, Manitoba, Saskatchewan, and the Northwest Territories, where common-law partners have inheritance rights. It is therefore especially important for common-law couples in Quebec to have a will in place to ensure their partner inherits their desired share of their estate.
In other ways, common-law couples in Quebec have the same rights and obligations as married couples. This includes federal and provincial income tax, tax programs such as registered retirement savings plans (RRSPs), and tax-free savings accounts (TSFAs).
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Frequently asked questions
Quebec is a civil law jurisdiction and does not follow the common law system. However, Quebec courts operate under common law traditions in areas of public law.
Common law is law that is not written down as legislation. It evolved into a system of rules based on precedent and is flexible, adapting to changing circumstances. Civil law, on the other hand, is written down in civil codes, which contain a comprehensive statement of rules.
In Quebec, common-law relationships are referred to as "de facto" unions. Unlike in other provinces, de facto partners in Quebec do not have inheritance rights and are not considered heirs if their partner dies without a will.
Quebec courts and common law courts have been observed to differ in their approach to certain jurisdictional factors, such as the interpretation of "ordinary residence" and "habitual residence" in family law cases.
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