BIJURALISM IN SUPREME COURT OF
CANADA JUDGMENTS SINCE THE ENACTMENT
OF THE CIVIL CODE OF QUEBEC
This review of Supreme Court decisions from a bijural standpoint underscores the importance the Court attaches to the distinction that has to be made between public and private, but it also shows in particular the primacy that the Court accords to the provinces in the various fields affecting property and civil rights. It also gives rise to a number of observations.
The Supreme Court does not hesitate to give full effect to statutes of common law provinces enacted in the areas of property and civil rights when they codify, replace or repeal the common law. Similarly, it holds that in these areas, the Civil Code of Quebec represents the jus commune of civil law in Quebec and is the law that serves as the reference point for Quebec statutes.
As for Quebec, the Court has resolutely chosen to enhance the position and emphasize the autonomy of the civil law. Several times in the judgments examined here, it has upheld the notion that the civil law is a complete system in itself, that the Civil Code represents the jus commune of the province of Quebec, and that it is not a law of exception as is statute law under the common law. Finally, it often refers to French doctrine in interpreting Quebec civil law.
The Court certainly relies on its own precedents as well in considering private law cases brought before it. In so doing, it hears cases that originated in one province or another without regard to which legal system was involved. In hearing cases on appeal from Quebec, it generally makes clear that it looks at common law cases for purposes of comparison only, and notes that an outside legal principle must first be justified under the civil law system for it to be applicable. When it hears cases from provinces other than Quebec, it often cites civil law judgments for the purpose of comparing legal concepts of the two traditions, as well as comparing how they are interpreted.
In general, if it is noteworthy that the Court would rather leave things to the provinces in questions of private law, it does try to ensure that its decisions on these questions, while respecting each legal tradition, do not produce results too inconsistent with each other from one province to another, in order that a given act has similar legal consequences throughout the country.
In its private law decisions, however, the Court also appears to refer frequently to the law of jurisdictions other than the Canadian provinces, perhaps because of the bijural nature of its own country. It cites doctrine from both the civil law of France and the common law of England, and refers to English law and to law of civil tradition in other countries as well as to international instruments, which are becoming increasingly numerous. This tendency reveals a definite inclination on the part of the Supreme Court to attune itself to globalization, and in general to respond to the needs of modern society by seeking out models that will do the most good for those Canadians who become part of the legal process.
In view of this openness to the many available sources of law, the question arises as to whether this attitude can lead to a standardization of the law. In Canada, the law is evolving and will continue to do so, and Canadian common law has distanced itself from English law, just as Quebec law has developed differently from French civil law. The civil law runs a greater risk of being assimilated than the common law, given the predominance of the common law in North America.
Professor Jobin draws a quite accurate picture of the situation of civil law at page 116 of his article,
"L'Influence de la doctrine française sur le droit civil québécois : le rapprochement et l'éloignement des deux continents" (in Droit québécois et droit français : communauté, autonomie, concordance, éd. H. Patrick Glenn Cowansville, Qc, Les Éditions Yvon Blais, 1993, pp. 91‑117):
[translation] To a certain degree, of course, the law of Quebec is a mixed law. It is applied in the framework of a legal system of British inspiration. It lives in close proximity to the other major Western legal tradition—the common law governs the private law of all the other Canadian provinces, virtually all the American states and Quebec's public law, and forms the basis of the federal private law applicable in Quebec. But these are not reasons to resign ourselves to a "laissez-faire" legal stance.
The solution undoubtedly lies in the optimistic view of the future that Professor Glenn describes at page 213 of his article, "Le droit comparé et la Cour suprême du Canada", (in Mélanges Louis‑Philippe Pigeon, Collection Bleue, Ouvrages collectifs, Mtl, Wilson Lafleur Ltée, 1989, pp. 197‑214) and which he shares in this matter with Mr. Justice Pigeon:
[translation] This old tradition of comparative law is simply an attempt to find a better solution, the discovery of which can never stop the further search for an even better solution. In this search, no source can be ruled out, as the Supreme Court did to a certain extent in the first half-century of its existence. And since sources cannot be excluded in creating a new law, they cannot be excluded any more in the continuation of one's own law. Sources must be judged on their merits. This was one of the leitmotifs of Mr. Justice Pigeon, who constantly showed in his work how the civil law and common law traditions need each other, while respecting each other's integrity.
In short, Canadian bijuralism will probably continue to be an original and internationally envied feature of this country, if it can count on the support of the Supreme Court and the legal community in general, but also on the support of politicians.
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