Quebec Law - Historical Development

Historical Development

Quebec's legal system 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 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, 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.