Civil Law in Canada
The common law system, also known as traditional law, stems from the decisions of the British courts from as early as 1066. These decisions create precedents, which serve as points of reference for future cases that are of similar nature. These precedents, however, can still be overruled by newer laws passed by the Canadian government. When an appropriate previous decision cannot be found, the decision of English or American courts can also be used as a point of reference.
The common law system is used in all countries under British governance, including Canada, the only exception being Quebec, which is a former French colony. Thus, the Canadian common law has its roots in the English legal tradition, where developments were also incorporated into the common law of the country. Other major documents have also had an effect on it, such as the Magna Carta of 1215 and the Bill of Rights passed in 1689.
Civil law, on the other hand, stems from the Roman law, which is based on an established civil code. This system was adopted by France after the revolution of 1789. Civil law does not rely on precedents but instead of that, it employs already established rules, concepts, principles, and ideals. In this line of reasoning, civil law is meant to be easy to understand and apply by the courts.
Starting in 1663, the colony of New France began
to use the body of laws known as the Custom of Paris, as decreed by Louis XIV. After the British took control over Canada, they guaranteed that the civil law, which existed since the time of the French dominion, would continue to serve as the acting law (the Quebec Act of 1774). However, a split of the province of Quebec into Upper and Lower Canada followed with the passage of the Constitutional Act of 1791. Civil law was preserved in Lower Canada, while Upper Canada switched to common law.
A bilingual civil code was developed in 1857, and its major task was accommodating the needs of Lower Canada. Another key purpose was to resolve problems that arose from the mixing of the Custom of Paris and the British common law system. The Civil Code of Lower Canada was applied in this format, and no modifications were made until as late as 1955.
The new Civil Code of Quebec was enacted on February 1, 1994 and governs legal issues such as individual rights, privacy, marriage, child adoptions, inheritance, property, contracts, mortgages, etc. The Civil Code also integrates several common law concepts.
Quebec’s current law system can be described as hybrid. Private law follows the civil law tradition, whereas public law adheres to the British common system. The legal system of Quebec is unique in many aspects. In many cases, knowledge of both, the civil and common law systems is not sufficient for a lawyer to be able to practice within the province.