Introduction
The British Common Law is applied in many nations, including the United States of America and England. Indeed, nations that were colonized by the British Empire have their legal systems based on British law. While many nations only have one system of law, Canada presents a unique case. The nation has one of its provinces, Quebec, using both the French Civil Law structure and the English common law system, despite other provinces adopting only the British law arrangement. In the province, criminal and public laws operate under Canadian common jurisdiction. This paper discusses the British Common Law System and the Quebec Civil Law framework with a particular focus on their features and the differences.
Using relevant supporting materials and legal cases, it first introduces their backgrounds and origins, unique histories, their development, and their co-existence in Canada. Nonetheless, the paper maintains that Quebec’s deployment of the Civil Law contrary to the situation with other provinces does not deny it the liberty to use the common law. In other words, although the two legal systems depict significant differences, the application of the hybrid of the two legal frameworks in Quebec has led to the applauded enriched legal bases in the province.
Background
Origin of the Mixed Jurisdictions in Quebec
In 1759, the English people defeated the French in Quebec. As a result, they introduced the English law in Quebec, a situation that caught the province in a state of confusion concerning the law it would apply. Indeed, Romanenko and Dekhnich (2016) reveal that the ten years that followed were characterized by conflicts, with French people in the province boycotting courts using the English law and opting to deploy it in settling private disputes. However, the stalemate was resolved in 1774 when a Quebec Act was passed permitting the application of French law in all universal disputes and procedures.
The 1774 Act declared that the English law would be applied to criminal jurisdictions in the province. However, years later, a massive migration of loyalists was witnessed, a move that led to the growth of the colony. Subsequently, the Constitutional Act of 1791 led to the splitting of the traditional Quebec into Upper Canada, currently called Ontario, and the lower segment or modern Quebec. The English law gained roots in Ontario while not prejudicing the primacy of the French law and civil procedures in Lower Canada. This experience established the mixed jurisdictional status of Quebec.
Unique Histories
Quebec’s Common Law (applied in public legislation) and French laws (applied in civil procedures) have exceptional histories. Common-Law originated in Britain following the Norman Conquest (Romanenko & Dekhnich, 2016). The tradition of French Civil Law has historical roots anchored on the Roman jurisdiction. The French Civil Law, which is deployed in settling cases of private matters in Quebec, originated from French rule before ceding power to Britain.
The Paris Pact of 1763 led to the ceding of New France to Great Britain (Laidler, 2012). However, before this new dawn, what is known today as Quebec used private law that was developed by the Customs of Paris. The traditional laws had been established in 1580 to govern the city of Paris. However, according to Laidler (2012), King Louis XIV imposed the laws on New France in 1663, even though a few regulations coupled with ordinances were applied.
The history of the English law in Quebec dates back to 1763 during the declaration of Paris Pacts after the ceding of power by French to Britain. The 1763 royal proclamation established the British colony principle in Quebec. Gaudreault (2017) posits that the proclamation stated, “Quebec was to decide… all Causes, as well Criminal, like Civil, according to Law and Equity, and as near as may be agreeable to the Laws of England” (para. 4). This proclamation implied that only the Common Law was permissible in Quebec under British governance (Laidler, 2012). Therefore, the customary law of Paris, as applied in criminal and Civil Law, became invalid, although the situation was reinstated in 1774 through the Quebec Act.
The Act required Quebec to resolve disputes in matters of civil privileges coupled with property rights by the former law. Section 92(13) of the British Act of 1867, which relates to North America, gives all provinces in Canada (apart from Quebec) the capacity to legislate matters that involve civil procedures by the Common Law (Ontario Justice Education Network, 2013). Similar to other provinces, Quebec is bound to use federal codes in criminal law while applying its unique civil jurisdiction in matters of civil and property rights.
Analysis
Development of Quebec Law Systems
Quebec is a mixed jurisdictional province of Canada. Canada has established federal criminal codes that are applicable in all territories and provinces, including Quebec. The codes are deployed during the process of making decisions concerning criminal cases. However, Quebec has a unique Civil Law compared to other provinces, which settle universal disputes based on precedents (Ontario Justice Education Network, 2013). The currently deployed civil codes in Quebec were inaugurated in 1994 (Report on the Quebec civil code, 2013).
Such codes are comprised of 3168 articles laid out in 10 sections. All the codes are used in resolving disputes governed by private law. The courts’ decision-making processes are focused on the codes, to select a principle that applies to a given case depending on its facts. While judicial precedence is binding under the Common Law, Quebec’s civil procedure does not require a judge to abide by the previous decisions, not even those made by the supreme chamber. The fact that Quebec’s public legislation is based on the English law makes courts’ decision a primary guide in the decision-making process concerning criminal matters.
Although the two systems of law used in Quebec are different, overlaps coupled with contradictions occur in their application. For example, the British North American Act of 1867 Section 91 part 26 offers the provision that allows divorce and marriage to fall under the doctrine of federal jurisdiction. Nevertheless, Quebec’s marriage ceremonies use the civil code during marriage solemnization while divorce cases are settled based on federal laws developed by the Common Law. A unique feature of Quebec’s Civil Law is that it is developed in the spirit of the 1802 Napoleonic code (Iftime, 2014).
Features and Differences
Quebec’s Common Law system draws its laws from various judicial precedents. Hence, decisions made by judges would then be deployed in guiding future verdicts given similar circumstances and facts of the case at hand. Opposed to the French Civil Law system, in theory, Common Law has the history of not being founded on legislations or any code. Rather, it only exists in the context of past decisions made in courts of law.
Romanenko and Dekhnich (2016) argue that this unique history concerning the development process of Common Law makes the system acquire the judge-made law title. Guided by the premise of stare decisis, courts make decisions in full consideration of the underlying precedents without causing any interruption to the already settled points. Where similar decisions do not exist after establishing the facts of a case, a court creates new rules referred to as the first impression.
Common-Law uses the inductive process. According to Romanenko and Dekhnich (2016), this process involves “generalizing from common points between distinct cases and then establishing legal categories with vague foundations and flexible limits” (p.10). In other words, it involves legal reasoning through previous cases. Judges then proceed in a case by way of comparing. Every stage of the analogy entails establishing a link to the principles established in a preceding case. Due to the inductive process, Common Law is also referred to as case legislation, thanks to its use of past cases to arrive at a decision.
For example, the judicial precedence of Balmoral Group Ltd v. Borealis Group Ltd establishes a rule that exemplifies the applicability of the battle of forms in any contractual relationship under the Common Law (Weitzenböck, 2012). The case involved two parties who had entered into a contract for the supply of large amounts of polythene polymer employed in producing containers for storing chemicals. However, Balmoral’s green oil reservoir that utilizes the material in large proportions failed.
The company moved to court suing Borealis for damages amounting to £50 million. Balmoral argued that a separate offer had been availed for every purchase order. The offer was then accepted through the delivery of goods or in a word of mouth. However, Borealis included his terms in his invoices. The terms limited the supplier’s liability to repaying the purchase price in the case of defective goods or replacing substandard items. During the legal tussle in court, Balmoral maintained that the invoices only came when every contract had been entered.
Therefore, every proof of purchase only amounted to the payment of price claims. The court ruled in favor of the supplier. The presiding judge ruled that when the supplier’s prices were quoted, it was done with the terms in mind and that the party intended only to enter into a contract only when the terms were valid and acceptable. Faced with similar cases, Common Law would bind a judge to respect the verdict made in Balmoral Group Ltd v. Borealis Group Ltd.
Quebec’s system uses a set of codes or regulations in the decision-making process. For example, the France Napoleonic codes constitute a set of rules and statements that reflect the architecture of the general principles of handling disputes. Opposed to common law, the decision-making process involves looking at any regulation in the form of codes and then establishing consistency by examining past decisions (Romanenko & Dekhnich, 2016).
The main feature of the Quebec Civil Law system is that laws are codified to form a coherent structure. Quebec’s Civil Law systems form the foundations of private law. However, this feature does not suggest that Quebec’s judges do not generate case laws and/or that civil codes are the only mechanisms for dispute settlement in courts. Decisions made by Quebec courts have precedential merit. The chief difference is that Quebec’s main principles of Civil Law are found in various codes, as opposed to judicial decisions, which are so dear in Common Law.
A deductive process is deployed in the decision-making process under Quebec’s Civil Law system. This process involves advancing from the general to specifics. Hence, as opposed to the inductive approach applied under the Common Law, Civil Law systems lead to the making of judgments based on the interpretation of various established codes. This situation reveals another primary feature of Quebec’s Civil Law, namely, the primacy of various written rules or laws. For example, in the case of Doré v. Verdun, it was indicated that Quebec’s civil codes had a substantial dominance over the Cities and Towns Act (Lavallee, 2015).
The Act placed a requirement that parties needed to issue notices within 15 days upon the occurrence of an accident if they wanted to sue the municipality for damages. The Civil Code Article 2930 imposed the limitation for cases involving personal injuries to 3 years. The presiding judge noted that Quebec’s civil codes applied to all parties, including municipalities, in the resolution of matters involving the private law. The case also clearly asserted the difference between Civil Law and Common Law (Lavallee, 2015). Compared to the statute law found in jurisdictions that deploy the Common Law, the judge noted that universal codes do not involve exceptions, an important issue that must be taken into full consideration in legal interpretations.
Co-existence of the Two Law Systems in Canada
The coexistence of different law systems in Canada has a central implication on the legal profession. Compared to other provinces in Canada, a successful admission into the profession in Quebec demands one to pass in bar tests coupled with articling for a specified period. However, one can only work as a solicitor or notary. Statutes prohibit any dual practice. The solicitors of Quebec, for all their purposes, are identical to those of the Common Law (Mélanie & Langevin, 2015). Nevertheless, they are constrained from engaging in litigations or participating in contentious proceedings such as torts and crimes. Hence, unlike other provinces, notaries of Quebec have an elevated role in their administration of legal processes.
Despite the civil tradition of Quebec, similarities exist between it and other non-bijuralist provinces. Quebec’s judges receive their appointments into office in a manner that is similar to those of other provinces in Canada. For example, the federal government appoints judges for all superior courts. Hence, the coexistence of the two legal systems does not change the mechanisms for judicial appointments.
Equally important to note is that Civil Law and Common Law systems have been undergoing a continuous change throughout their history (Romanenko & Dekhnich, 2016). Hence, no nation that uses Common Law lacks different codes. This observation suggests that no Civil Law judge makes decisions based purely on past court decisions. Although this argument reduces the distinction of Quebec’s dual legal systems, this province evidences a unique legal system compared to other jurisdictions across the world.
Summary
Many nations around the globe such as Canada, England, and the United States largely use the English legal system. However, Canada presents an exception considering that even though all other provinces use Common Law systems in civil cases, Quebec adopts the French system. Common-Law depends on judicial precedence in legal reasoning to avoid contradictions. Quebec uses this system in criminal law. As revealed in the paper, even though other nations across the world do not depict a scenario where their courts make decisions based purely on past cases without considering certain codes, Quebec’s unique coexistence of two systems of law stands out to reflecting its matchless history of power legacies in the colonial era.
References
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