Survival of Pre-Confederation Law:
Provisions on the Interpretation and Application of Statutes in the Civil Code of Lower Canada

Pierre-André Côté*

TABLE OF CONTENTS


INTRODUCTION

The purpose of this report is to determine the extent to which certain rules in the Civil Code of Lower Canada, which I will call "rules of interpretation", survived in the federal legal system pursuant to section 129 of the Constitution Act, 1867 and were consequently still applicable in that system following Confederation. For reasons that will be set out in the conclusion of this report, I will not state what became of each and every one of these rules of interpretation after Confederation. Rather, I will suggest guidelines for determining which rules still apply today and to what extent.

The rules discussed in this study fall into two very distinct categories. The first category includes all rules of general application set out in the Preliminary Title of the Code (arts. 1 to 17), entitled "Of the promulgation, distribution, effect, application, interpretation and execution of the laws in general". In contrast to these general rules, the second category includes rules of interpretation elsewhere in the Code that relate essentially to the interpretation or application of the Code itself, inter alia articles 396 and 397, which concern the meaning of certain words, and the final provisions of the Code (arts. 2613 to 2615).[1]

Certain special features of these rules of interpretation call for a specific analysis of how they are affected by section 129 of the Constitution Act, 1867. To the extent that they are, generally speaking, non-substantive rules, they cannot as such be categorized in terms of the division of legislative powers. It is clear that the directive found in article 12 of the Code - to seek out the intention of the legislature when a statute is unclear - cannot be placed in either the federal or the provincial legislative sphere. It can be so placed only by reference to the enactment to which it is applied, because it is ancillary to that enactment and provides instructions for its application. Every rule of interpretation may thus have two aspects, a federal aspect and a Quebec aspect, depending on whether it applies to substantive rules within the jurisdiction of one or the other level of government.

Rules of interpretation are also specific in that, in so far as they have been put into legislative form,[2] they apply to the statutes of a particular legislative body. Thus, the rules of interpretation now set out in the Interpretation Act of Quebec are not, as rules of written law, applicable to the interpretation of federal statutes. They are part and parcel of the legislative activity of a particular legislative body, the Parliament of Quebec.

Finally, the ancillary nature of rules of interpretation means that, even if they are repealed, they may remain applicable in interpreting statutes enacted before their repeal that are still in force. Since statutory construction requires that the meaning of a statute be established from the vantage point of the time at which it was enacted, a rule of interpretation in force at that time may remain applicable even if the enactment that expresses the rule is subsequently repealed.

With these three features in mind, I will examine the survival of the general rules set out in the Preliminary Title of the Code (Part I) and then the rules of interpretation specific to the Code itself (Part II).

I. - RULES IN THE PRELIMINARY TITLE OF THE CIVIL CODE OF LOWER CANADA

Articles 1 to 17 of the Civil Code of Lower Canada (C.C.L.C.), as enacted in 1866, set out rules that are quite diverse in nature: rules relating to the coming into force of statutes (arts. 1 and 2), the effect of the disallowance of a statute (art. 3), the publication and distribution of statutes (arts. 4 and 5), the determination of the meaning and scope of statutes (arts. 6 to 9 and 11 to 15), proving statutes (art. 10), the method of recovering penalties (art. 16) and the meaning of certain terms used in the Code or in other statutes of the Province of Canada (art. 17).

In proposing this Preliminary Title, the codifiers stated their wish to follow the example of the Napoleonic Code, which contains "some fundamental rules, relative to the promulgation, the effects and the application of the laws in general …; these rules collected under the name "Preliminary Title" serve as an introduction to the rest of the code".[3] While this source of inspiration is indisputable, it is equally clear that the Preliminary Title has many affinities with the interpretation acts passed in the various colonies to serve as a general framework for the interpretation and application of statutes. This influence is particularly clear in articles 1 to 5, 9 and 10, 12 and 15 to 17.

What became of these provisions as a result of the constitutional change that occurred in 1867? In my opinion, they ceased to be in force on July 1, 1867. However, the rules they state remained applicable within the federal legal system either as unwritten rules drawing their authority elsewhere than from statute, or as rules used to determine the meaning or scope of substantive pre-Confederation rules that have themselves survived within the federal legal system.

A. The provisions of the Preliminary Title are no longer in force within the federal legal system

The conclusion that articles 1 to 17 C.C.L.C. are no longer in force within the federal legal system is based on two events. The first is the coming into force of the Constitution Act, 1867 on July 1, 1867, and the second is the coming into force of the Act respecting the Statutes of Canada[4] on December 21, 1867.

Although the provisions set out in the Preliminary Title are diverse in nature and in terms of their sources, they have one feature in common: they govern the statutes of a specific legislative body, the provincial Parliament of Canada. Article 2 deals with the promulgation of the statutes of that body. Article 9 deals solely with whether the laws of the provincial Parliament of Canada applied to the Crown.[5] However, that legislative body disappeared when the Constitution Act, 1867 came into force. Could the provisions of the Preliminary Title have survived even though the legislative body whose intention they expressed had disappeared? In my view, the response to this question must be negative.

It should not be forgotten that a constitutional revolution took place in 1867. Legislative bodies disappeared and new ones took their place. Section 129 of the Constitution Act, 1867 was certainly intended to ensure continuity of the law, but it clearly could not have the effect of maintaining provisions the survival of which was incompatible with the constitutional change that had occurred. Indeed, the principles applicable to state succession provide that the continuity of pre-existing law is excluded where the former rules no longer correspond to the new constitutional situation.[6]

As a general framework for interpreting and applying the statutes of the provincial Parliament of Canada, the Preliminary Title likely did not survive the abolition of that legislative body, and it may be thought that it ceased to have effect on July 1, 1867. The Preliminary Title could not, on that date, become the general framework for interpreting and applying the statutes of the federal Parliament. As will shortly be seen, this does not mean that the rules in the Preliminary Title were ipso facto excluded from the legal system or became inapplicable to statutes previously enacted by the provincial Parliament of Canada. It is simply that the Preliminary Title ceased to be in force on July 1, 1867.

If this conclusion is not accepted, and if it is considered that the Preliminary Title remained in effect pursuant to section 129 of the Constitution Act, 1867 as a law in force at the time of Confederation and that it could therefore be amended or repealed by the federal Parliament to the extent of its legislative authority, one must ask what effect was produced by the coming into force on December 21, 1867, of the first interpretation act of federal Canada, the Act respecting the Statutes of Canada.[7]

That Act, which was modelled on pre-Confederation interpretation acts,[8] was intended to establish a general framework for the interpretation and application of statutes, just like the Preliminary Title of the Code. In theory, that framework applied to all federal statutes, both those already enacted and future statutes.[9] It included provisions on most of the matters dealt with in the Preliminary Title. In my opinion, the enactment of that interpretation act was incompatible with the survival of the provisions of the Preliminary Title and the rules of interpretation found in the various interpretation acts in force prior to July 1, 1867. First, it seems clear that the interpretation of federal statutes could not be governed by each and every interpretation provision in the pre-Confederation statutes of each of the colonies. Second, why should the Preliminary Title be established as the sole framework for the performance of the federal legislative function, rather than, for example, the interpretation act of the colony of Nova Scotia?

In my view, therefore, the more likely conclusion is that if the Preliminary Title survived the institutional changes brought about by Confederation, it was rendered of no force or effect as a general framework for interpreting and applying the statutes of Canada as a result of the coming into force of the first federal interpretation act.[10] However, this conclusion does not mean that the rules found in the Preliminary Title, or at least some of them, could not have remained applicable within the federal legal system after 1867.

B. The rules of interpretation in the Preliminary Title survived within the federal legal system

Two reasons, completely different in nature, can be cited for the conclusion that the rules set out in the Preliminary Title remained applicable within the federal legal system despite the repeal of the enactment in which they were found. As written rules, the rules in the Preliminary Title would apply to the interpretation and application of certain pre-Confederation statutes, including the Civil Code of Lower Canada. As unwritten rules, some of the rules set out in the Preliminary Title have survived the repeal of the enactment that gave them legislative expression.

1. Applicability as rules of written law

Rules on the interpretation and application of statutes are ancillary in nature: they serve to determine the meaning and scope of other rules. Consequently, they can cease to be rules of general application that apply prospectively while remaining applicable to certain statutes passed before their repeal, acting, so to speak, as instructions for using those statutes.

The general principle is that a statute should be interpreted from the vantage point of the time at which it was enacted; the meaning and scope of the statute must therefore, in principle, be determined by reliance on the rules that were applicable in determining its meaning and scope at the time it was passed. Therefore, the meaning and scope of the Civil Code of Lower Canada should in theory be determined under the rules of interpretation applicable to it at the time of its enactment, including rules in the Preliminary Title.[11]

It is accepted that certain substantive rules set out in the Civil Code of Lower Canada survived the constitutional change that occurred in 1867 and could be amended or repealed by the federal Parliament after July 1, 1867. In my opinion, the meaning and scope of those substantive rules, dealing with marriage, bankruptcy or maritime law, for example, must in principle be determined in accordance with the provisions of the Preliminary Title. Thus, the definitions set out in article 17 would in principle apply to those provisions of the Code.

Since it has the power to amend some of the Code's substantive rules, the federal Parliament can, a fortiori, amend the rules of interpretation applicable thereto. As far as I know, this has not been done, in any case not in a statute of general application. The first federal interpretation act applied prospectively only[12] and therefore did not replace the Preliminary Title for the purpose of interpreting the Code. Although subsequent versions of federal interpretation acts were made applicable to federal statutes enacted both before and after those acts,[13] their application was never extended to pre-Confederation statutes. They were always directed solely at statutes enacted by the federal Parliament, which, in my opinion, excludes their application to statutes enacted by the provincial Parliament of Canada.

Accordingly, although the Preliminary Title provisions relating to the interpretation and application of statutes have been repealed as general provisions applying prospectively, they can survive on the basis that they are ancillary to the substantive provisions of the 1866 Civil Code. Within the federal legal system, their application depends on the survival of substantive provisions falling within federal jurisdiction. In so far as those provisions are repealed, the rules of interpretation ancillary to them will cease to apply. This will also be the case where pre-Confederation rules are amended: the interpretation of amended provisions will be subject to the federal interpretation act in force at the time of the amendment.

2. Applicability as rules of unwritten law

The provisions of the Preliminary Title do not set out new rules of law; their purpose is either to give legislative expression to rules the source of which is elsewhere than in legislation, or to give new expression to rules already enacted as part of the statute law then in force. For example, article 14 provides that prohibitive laws import nullity, even if such nullity be not therein expressed. This provision merely restates a rule that is part of the Western legal tradition, a rule that existed in Roman law and instances of which can also be seen in English law.[14] As for the rule on the method of recovering penalties set out in article 16, it is wholly statutory in nature - it does not merely reflect a provision of pre-Confederation unwritten law.[15]

The question that arises is whether the repeal of a provision expressing a rule that would be applicable even if not in legislative form has the effect of abolishing that rule, or whether it can be concluded that the rule continues to apply as a rule of unwritten law even though it has been abolished as a rule of written law. The answer is essentially a matter of interpretation: should the repeal be interpreted as expressing an intention to abolish the rule itself, or merely its written expression?

It might seem unusual for the repeal of a legislative provision not to entail the abolition of the rule that it articulates, but this is entirely plausible, as clearly shown by an example drawn from modern-day experience. In 1969, the federal Parliament inserted an interpretation directive in the Official Languages Act that had been developed by the courts to resolve difficulties resulting from the interpretation of bilingual statutes.[16] That directive recommended seeking the meaning common to both versions and having regard to that meaning in construing the provision. Parliament thereby gave legislative expression to an interpretation guideline created by the courts. In 1988, Parliament repealed the provision.[17] What should be inferred from this - that the directive was abolished, or merely its legislative expression? I believe everyone would agree that the repeal of that provision of the Official Languages Act cannot be construed otherwise than as a decision to no longer give legislative expression to an interpretation directive, which could nonetheless continue to apply as an unwritten rule having its source in judicial decisions (which is effectively what occurred in practice).[18]

What are the consequences of this for the rules set out in the Preliminary Title? In my view, a distinction should be made between rules that are purely statutory in nature and those that express rules of unwritten law originating, inter alia, in custom, academic commentary, judicial decisions or general principles of law.

Based on the sources indicated in the codifiers' report, I consider that the rules set out in articles 1 to 5 and 15 to 17 clearly belong to the class of rules of pure statute law.[19] The provisions in articles 6 to 8, 11, 13 and 14, on the other hand, are merely the legislative expression of rules of unwritten law. Articles 9, 10 and 12 are doubtful cases and depend on the interpretation of the previous law. In any event, those three articles were discarded as general rules of interpretation when the first federal interpretation act came into force on December 21, 1867, since it contained provisions on the same subject matter as the articles in question.[20] It can therefore be concluded that if those rules have survived in the federal system, they have done so within the framework of the federal Interpretation Act.

In so far as articles 6 to 8, 11, 13 and 14 are merely the expression of rules of unwritten law applicable in Lower Canada on the eve of Confederation, how should the effect of the repeal of the Preliminary Title, as a result of the coming into force of the Constitution Act, 1867, be assessed with respect to them? Given the objective of continuity of the law expressed in section 129 of the Constitution Act, 1867, it seems to me that the most plausible theory is that the rules set out in those articles were maintained as rules of unwritten law despite the repeal of the legislative expression given to them by the Civil Code of Lower Canada.

I would therefore conclude that even though the rules in the Preliminary Title ceased to apply as rules of written law having prospective effect within the federal legal system, the rules set out in articles 6 to 8, 11, 13 and 14 retained their normative force as part of the unwritten law that survived within the federal legal system pursuant to section 129 of the Constitution Act, 1867.

The rules of interpretation set out in the Preliminary Title are not the only ones in the Civil Code of Lower Canada. Others can be found in the operative provisions of the Code and in its final provisions. Those rules can be distinguished from the ones in the Preliminary Title in that they are not rules of general application but rather apply specifically to the Code or to some of its provisions.

II. - RULES OF INTERPRETATION SPECIFIC TO THE CODE

Among the rules of interpretation specific to the Code, a distinction should be made between rules that seek to define certain concepts or terms and the Code's final provisions.

A. Definitions of terms or concepts

The Civil Code of Lower Canada contains a large number of provisions that seek to define concepts or, less often, the meaning of certain terms. For example, the categories of moveables and immoveables are defined in articles 375 et seq. of the Code. Those provisions define concepts, just as the first paragraph of article 1472 defines the concept of sale. In contrast, articles 396 and 397 clarify the meaning of terms such as "furniture" and "moveable things".

Whether they define concepts or terms, the definition provisions share certain characteristics that must be taken into account when examining the effect of section 129 of the Constitution Act, 1867. Unlike the ordinary rules on the interpretation and application of statutes, definitions of concepts or terms are substantive in nature and not merely methodological. Their purpose is not to indicate the means by which to determine the meaning or scope of a statute; they directly set out the meaning of certain elements of substantive law. Further, they establish the meaning of concepts that form part of substantive rules or determine the meaning of terms used in expressing substantive rules.

A definition, whether of a concept or a term, is not a rule of law, in the sense that it does not in itself command, prohibit or authorize conduct. A definition should rather be seen as a "part of a rule" - in other words, its purpose is to clarify an element of a rule of law, either by clarifying a concept used in the rule or by clarifying the meaning of a term used in expressing the rule.

As with rules of interpretation, definitions are thus ancillary in nature; they are ancillary to the rules to which they may apply. For example, article 1474 C.C.L.C. begins with the following words: "[w]hen things moveable are sold by weight, number or measure". To determine the scope of the rule enunciated in this provision, it is necessary to refer to the concept of a moveable set out in articles 375 et seq. and to the concept of sale defined in article 1472.

A single definition may apply to many substantive rules, some of which may be within the legislative jurisdiction of the Parliament of Canada and others within that of the Parliament of Quebec. An analysis of the impact of section 129 of the Constitution Act, 1867 must take account of this possible double aspect of each definition set out in the Civil Code of Lower Canada. A defining provision in the Civil Code of Lower Canada will therefore survive within the federal legal system pursuant to section 129 if it is necessary to rely on that provision to determine the meaning of a substantive provision of the Code that is itself within federal jurisdiction.

B. The final provisions of the Code

These provisions are set out in articles 2613 to 2615. Article 2613 provides for the repeal of certain components of the law that existed before the Code came into force and sets out the principle of the non-retroactivity of the Code. Article 2614 seeks to preserve the effect of certain rules of procedure until the coming into force of the new Code of Civil Procedure. Article 2615 sets out a rule of interpretation to resolve difficulties created by differences between the English and French versions of the Code.

I will not dwell at any length on the first paragraph of article 2613 or on article 2614, because those provisions served their purpose before July 1, 1867, and section 129 of the Constitution Act, 1867 therefore does not apply to them.

The repeal referred to in the first paragraph of article 2613 occurred on August 1, 1866, the day on which the Civil Code of Lower Canada came into force. The provisions covered by the repeal were thus no longer in force on July 1, 1867, and the rules they expressed could not have been maintained under that provision.[21] As for article 2614, it produced its full effect by June 30, 1867, when the Code of Civil Procedure came into force. Therefore, only the second paragraph of article 2613 and article 2615 will be considered below, in so far as their effect was lasting in nature and could continue beyond July 1, 1867.

1. The principle of the non-retroactivity of the Code

The second paragraph of article 2613 sets out the temporal scope of the rules in the Civil Code of Lower Canada. It essentially provides that the new law does not have retroactive application, which, according to the thinking of the time, meant not only that the new law would not apply to events that occurred before it came into force, but also that the previous law would, in order to protect acquired rights, continue to apply in the future to certain "transactions, matters and things" that existed or occurred before the Code came into force. In modern terms, one would say that article 2613 provided for both the non-retroactivity of the new law and the survival of the previous law for certain existing situations.

The temporal scope of an enactment is a permanent feature thereof, in the sense that transitional law establishes an enduring, and not passing or transitory, relationship between a rule of law and certain facts. This means that, in contrast to the repealing provision in the first paragraph of article 2613, the interpretation principle in the second paragraph is, in theory, of lasting importance. However, the more distant one is from the time the provision was enacted, the less practical importance it has.

The principle of the non-retroactivity of statutes is one of those general principles of law of which it has been said that [Translation] "since they are part of legal dogma, it would be as pointless to enact them as to repeal them".[22] This is why it seems to me there is something surreal about any discussion of the scope of the second paragraph of article 2613 in relation to section 129 of the Constitution Act, 1867. In my opinion, it should be concluded that non-retroactivity - as a principle governing the determination of the scope of all Code rules - is a characteristic of all the substantive rules of the Code, including those that the federal Parliament has the power to amend or repeal pursuant to section 129 of the Constitution Act, 1867.

2. Differences between the English and French versions of the Code

The above observations seem to me to be applicable to the interpretation directive set out in article 2615 C.C.L.C. as well. Just as article 2613 sets out a directive that was already part of the general law of statutory interpretation, article 2615 provides, in the case of differences between the English and French versions of the Code, for solutions consistent with those that would ordinarily result from the principles of interpretation where two equally authentic versions of an enactment conflict. If the aim of the enactment is to reproduce existing law, the version consistent with previous law is, a priori, to be preferred. If the aim of the enactment is to reform the law, the version most consistent with the reforming intention of the enactment should as a rule prevail.

Article 2615 assumes that the two versions of the Code have equal value. This presupposition could have a certain practical importance in so far as it applies to the rules of substantive law that can be amended or repealed by the federal Parliament pursuant to section 129 of the Constitution Act, 1867. Whatever the policy followed by the Parliament of Quebec with respect to legislative bilingualism, the equal authenticity of the English and French versions is, in my view, the only valid solution for the substantive rules of the Code the amendment or repeal of which is within federal legislative jurisdiction.

In any event, the solutions set out in article 2615 would apply in both federal and Quebec law even in the absence of that provision. The question of whether the provision is still in force, or whether it is in force with regard to both federal law and Quebec law, accordingly seems to me to be of no theoretical interest or practical significance.

CONCLUSION

I have attempted in the preceding pages to assess the extent to which the rules of interpretation found in the Civil Code of Lower Canada survived the institutional breach created by the coming into force of the Constitution Act, 1867. It is appropriate at this point to examine what became of these rules after Confederation in order to determine whether they may still be applicable within the federal legal system and, if so, what should be done about them. Before stating my views on this matter, I will summarize my conclusions.

(i) Summary of conclusions

  1. The provisions of the Preliminary Title of the Civil Code of Lower Canada were repealed when the provincial Parliament of Canada was abolished on July 1, 1867.

  2. Despite that repeal, the provisions of the Preliminary Title continued to apply to the Civil Code of Lower Canada of 1866 as rules of written law that were applicable in 1866 for the purpose of determining the meaning and scope of the Code.

  3. Moreover, the rules set out in articles 6 to 8, 11, 13 and 14 remained applicable within the federal legal system as general, unwritten rules of pre-Confederation law.

  4. The defining provisions of the Civil Code of Lower Canada, whether terminological or conceptual in nature, have survived within the federal legal system to the extent necessary to determine the meaning of the substantive rules of the Code that came under federal legislative jurisdiction after 1867.

  5. The same conclusion can be reached for the non-retroactivity rule in article 2613 and the interpretation directive in article 2615: both survived to the extent necessary to determine the meaning or scope of the substantive provisions of the Code that came under federal legislative jurisdiction.

(ii) Post-Confederation history of the rules of interpretation

Although this assessment of the effect of section 129 of the Constitution Act, 1867 is valid as regards the state of federal law immediately after the coming into force of that Act, it does not deal with the question of whether and to what extent the rules of interpretation examined here are still applicable within the federal legal system, nor does it enable decisions to be made as to what should be done about those rules in terms of federal legislation.

Answering this question would require a study of post-Confederation law, both federal and Quebec, to assess, for each rule or part of a rule, the possibility of its repeal, continuation or amendment by one of the two levels of government.

Such a study could be carried out using the methodology set out by Professor Macdonald, which requires (1) a determination of the extent to which the rule has been expressly or implicitly amended or repealed by the federal Parliament or (2) the provincial legislature before (3) consideration of whether the measures taken by the latter were constitutionally valid and (4) could have applied within the federal system as a simple "updating" of the ius commune, the whole (5) subject to the rules on federal Crown immunity, intergovernmental immunity and federal paramountcy.

This methodology, which is complex where one or a few substantive rules of law have to be considered, is in my view utterly impractical for rules of interpretation. Their number (think of the number of defining provisions in the C.C.L.C.) and the breadth of their application make it futile to claim an even slightly accurate picture of them following Confederation.

Another approach seems preferable to me for rules of interpretation. It involves distinguishing between provisions that are merely ancillary to provisions of the Civil Code of Lower Canada and those that qualify as general rules relating to the interpretation and application of statutes.

In my opinion, for the vast majority of the provisions discussed in this report, it would be premature to undertake a study using the methodology just outlined. Most of the provisions that have an impact on statutory interpretation are ancillary in nature, as we have seen; they apply only to the extent necessary to determine the meaning or scope of the pre-Confederation provisions of the C.C.L.C. that fall within federal jurisdiction. This is true of the provisions in the Preliminary Title that are essentially statutory in nature (arts. 1 to 5 and 15 to 17), as well as interpretation provisions that are specific to the Code. If it is determined, after harmonization of federal law with the new Civil Code of Québec, that all pre-Confederation rules in the C.C.L.C. that fall within federal jurisdiction should be repealed, then the rules of interpretation ancillary thereto will also lose their force, for lack of any purpose. In my view, therefore, it would be more economical to postpone studying the post-Confederation history of these purely ancillary rules until the fate of the substantive provisions of the C.C.L.C. has been more clearly determined.

However, not all the rules of interpretation are simply ancillary to the substantive provisions of the Civil Code of Lower Canada. The rules set out in articles 6 to 8, 11, 13 and 14 of the Code should be considered independent rules of interpretation having general application. As we have seen, these have survived as rules of unwritten pre-Confederation law applicable in Lower Canada on the eve of Confederation.

Articles 6 to 8 deal with the territorial application of the laws of Lower Canada and establish some of the fundamental principles of private international law. Although these articles survived without amendment until the coming into force of the Civil Code of Québec, they express rules that the new Civil Code has profoundly changed.[23] As for articles 11, 13 and 14, the principles they state have been maintained, but they are now expressed (in slightly amended form for article 14)[24] in the Quebec Interpretation Act.[25]

It appears to me that the situation with respect to articles 11, 13 and 14 is clear; the new legislation does not make any substantive change and the principles that these provisions articulate can continue to apply within the federal system as unwritten principles of interpretation or as suppletive rules, depending on the point of view one takes.

The situation with respect to articles 6 to 8 is different, because they were repealed by the coming into force of the new Civil Code and have been replaced by a new and more elaborate set of private international law rules. At first glance, it seems to me that an analysis using the methodology described above leads to the conclusion that these new rules would in theory be applicable within or with respect to the federal legal system. Since the new private international law regime established by the new Code results from the exercise by the Parliament of Quebec of its power to"update" its ius commune, it would be applicable within the federal system, subject to the immunities referred to above and to any conflict with a paramount federal statute. Given the highly specialized nature of the field of private international law, it will be understood that I cannot (nor do I intend to) give a more decided view on the subject.

In summary, as regards the interpretation provisions that are merely ancillary to the C.C.L.C. articles within federal jurisdiction, I recommend that a study of their post-Confederation history be undertaken only if a decision is made to allow the articles in question to remain as they are.

As for the rules of general application, the formal or substantive amendments made to them by the Parliament of Quebec do not seem to me to raise any difficulties that would justify the federal Parliament's taking action, subject to what a more thorough study might reveal about the specific impact of the amendments on the rules of private international law.

APPENDIX - Of the promulgation of laws


Footnotes

  • * Professor, Université de Montréal. Report submitted to the Department of Justice of Canada, March 1996.
  • [1] A reference to the Civil Code of Lower Canada should be understood as a reference to that Code as it came into force in 1866. The text of the provisions studied in this paper has been appended in order to assist the reader.
  • [2] As explained below, many directives concerning the interpretation and application of statutes originate in general principles of law, scholarly writings or learned custom. The enactment is not the source, merely the expression, of the directive. The fact that some rules of interpretation have been put into legislative form at a particular time does not mean that their application within a given legal system depends entirely on the applicability of the enactment that expresses them.
  • [3] Second Report of the Commissioners appointed to codify the laws of Lower Canada in civil matters, at p. 143.
  • [4] 31 Vict., c. 1. This was the first interpretation act of federal Canada.
  • [5] Article 1 is an exceptional case: it concerns statutes of the Imperial Parliament that affect Canada. This article, as the codifiers pointed out, is "the simple enunciation of a rule derived from the public law and the imperial authority" (Second Report, at p. 145). It therefore has no normative value; it restates a rule that could have been enacted only by the Imperial Parliament and is therefore looked on as an exception.
  • [6] In the case of state succession, [Translation] "the old legal order remains provisionally in force until it is changed by the successor state, it being however understood that constitutional statutes and other rules not corresponding to the new situation are eo ipso repealed". E.J.S. Castren, "Aspects récents de la succession d'État", Academy of International Law, Receuil de cours, 1951, Vol. 1, Leiden: Sitjhoff, No. 165, at p. 488 (cited by Jacques Brossard in L'Accession à la souveraineté et le cas du Québec, Montreal: P.U.M., 1976, at p. 565).
  • [7] 31 Vict., c. 1
  • [8] In particular, the Act respecting the Provincial Statutes, C.S.C. 1859, c. 5, and the statute entitled On the Promulgation and Construction of Statutes, R.S.N.S. 1864, c. 1.
  • [9] See section 3 of the Interpretation Act.
  • [10] It should be noted that this conclusion - that the first federal interpretation act rendered the Preliminary Title of no force or effect as a general framework for interpreting and applying federal statutes - cannot be accepted without qualification in the analysis of the effect of the coming into force of the first Quebec interpretation statute, the Quebec Interpretation Act of 1868, 31 Vict., c. 7. Section 10 of that Act provided that "[t]he civil code of Lower Canada and the code of civil procedure of Lower Canada, as printed before the Union, by the queen's printer of the former province of Canada, have been and are in force in this province". These words would appear to have the effect of making all of the Preliminary Title applicable. However, the first paragraph of section 2 of the Act provided that only some of the definitions set out in article 17 of the Code would remain applicable to the construction of Quebec statutes, and section 6 changed the scope of article 10 of the Code. For Quebec, the general framework for statutory construction and application was, from that time on, grounded partly in the Civil Code and partly in the Interpretation Act.
  • [11] However, an exception must be made for the rules set out in articles 1 to 5, 10 and 16, which are not in the nature of rules governing the interpretation or application of statutes.
  • [12] According to section 3 of the act.
  • [13] See, inter alia, section 2 of the Interpretation Act in the Revised Statutes of Canada of 1886, which provided as follows: "This Act, and every provision thereof, shall extend and apply to every Act of the Parliament of Canada now or hereafter passed".
  • [14] See the discussion of the impact of prohibitive language in S.G.G. Edgar, Craies on Statute Law, 7th ed., London: Sweet & Maxwell, 1971, at pp. 263-64. The Second Report of the codifiers reveals at p. 246 that article 14 had its origins in Roman law, and in particular the Justinian Code under the title de Legibus.
  • [15] According to the codifiers, article 15 restates the rule enunciated in the interpretation act of the Province of Canada, C.S.C., c. 5, s. 6(17).
  • [16] Official Languages Act, S.C. 1968-69, c. 54, s. 8(2)(b).
  • [17] Official Languages Act, S.C. 1988, c. 38, s. 110.
  • [18] Ruth Sullivan, Driedger on the Construction of Statutes, 3rd ed., Toronto: Butterworths, 1994, at pp. 222 et seq.
  • [19] A qualification is necessary, however, for the last paragraph of article 17(16) and for article 17(24)-rather than being strictly statutory, the source of these provisions was ultimately in academic commentary.
  • [20] The effect of federal statutes on the rights of the Crown or of third parties (article 9 C.C.L.C.) was dealt with in the 33rd paragraph of section 7 of the federal Interpretation Act of 1867 (31 Vict., c. 1). The subject matter of articles10 and 12 C.C.L.C. was covered in the 38th and 39th paragraphs of section 7 of that Act.
  • [21] In contrast, the rules of pre-existing law that were not repealed survived and became subject to the authority of the federal Parliament to amend or repeal them pursuant to section 129 of the Constitution Act, 1867. It should also be noted that, to the extent that the provisions repealed by the first paragraph of art. 2613 must themselves be seen as merely the legislative expression of rules of unwritten law, it can be concluded that the unwritten rules survived as such notwithstanding repeal and remained applicable after July 1, 1867.
  • [22] Jacques Lenoble and François Ost, Droit, mythe et raison, Brussels: Publications des Facultés universitaires Saint-Louis, 1980, at p. 94.
  • [23] Articles 3076-3168 C.C.Q.
  • [24] The Interpretation Act does not refer to the concept of good morals.
  • [25] Interpretation Act, R.S.Q., c. I-16, ss. 41.2, 41.3 and 41.4.
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