Some thoughts on bijuralism
in Canada and the world

PART I
Characteristics and Context of
the Two Legal Traditions

Historical Background

One will recall the witticism of George Bernard Shaw, "England and America are two countries separated by the same language". What may one say, then, justly asks the Honourable Pierre Viau, Justice of the Superior Court of Quebec, of our situation in Canada and more specifically in Quebec, where, within the course of one hearing, we switch from one language to another, from public law to private law, from Quebec legislation to federal legislation, from civil law to common law.[3]

Canada is a bijural country because it applies two bodies of common law in the private sphere: the common law and the civil law. The existence of two common laws may be explained by history and by the colonisation of America by the English and the French.[4] The colony was first subjected to French law, then, following the British victory in 1759 60, to the English common law.[5] The preservation of this legal duality in Canada resulted from the historical relationship of complementarity within which the common law and civil law continued and which was entrenched by the Quebec Act of 1774[6] and later on by the division of legislative powers provided for by the Canadian Constitution of 1867.[7]

The Quebec Act[8] specifically provided that French law applied to matters of property and civil rights and English law to matters of public and criminal law. The British North America Act[9] divided legislative powers between the federal government and those of the provinces. Subsection 92(13) allowed for continued national legal duality by providing that property and civil rights would be under provincial jurisdiction.[10] Quebec was thus able to preserve its civil law and the other provinces their common law.

By conferring on the provinces exclusive authority over property and civil rights, subsection 92(13) forms the basis of the complementary relationship between federal law and provincial private law. Only those standards accordingly adopted by the provincial legislatures can complement federal instruments which are silent on an aspect relating to property and civil rights which appears essential to their application.[11] A number of matters with a private law component, such as bills of exchange, bankruptcy, marriage and divorce,[12] were placed under federal jurisdiction. There are only a few federal statutes that concern private law matters exclusively.[13] However, a number of acts interact with provincial private law, which, in the case of Quebec, is the civil law.

However, this satisfactory division of powers sometimes becomes less so when one thinks of the juxtaposition of both public and private law in the same law, such as the common law retained by the Federal legislator and the civil law of Quebec. Let us not forget either that legal drafting in these fields follows different fundamental structures. Moreover, as the Honourable Justice Viau maintains,

[translation] "Two languages mean, first of all, two styles, at least as regards drafting. And more than that also. French law and English law are conceived differently. The same ideas are not concealed in the same fashion within words whose meaning and import are sometimes difficult to discern".

In this regard, he cites Louis-Phillipe Pigeon, who later on became Justice of the Supreme Court of Canada, and who describes this situation particularly well:

[translation] "English legal style subordinates every consideration to the search for precision. It attempts to say all, define all, to intimate nothing, and to never assume the intelligence of the reader. Consequently, in formulating a rule, it begins under reserve of all exceptions. […] In the French style, which is tending unfortunately to disappear in France, because a lot more is legislated by decree than by law, the search for precision is dominant. One tries to find the precise word, and to formulate a general rule instead of enumerating multiple applications." [14]

We will now provide some more detail on these two legal traditions.

Characteristics of the two legal traditions

The civil law tradition

The civil law is often defined as a law which derives its source and inspiration from Roman law. However, this only partly reveals the essence of the civil law. Most civil law countries have, of course, rules that can be traced back to Roman law, but they also generally have canonical rules or rules of customary law. What characterizes the civil law is perhaps more precisely its "style",[15] even [translation] "a certain way of conceiving, expressing and applying a legal rule which transcends legislative policies which shift periodically in the history of a people".[16]

With this style, the civil law managed to conquer America, through Quebec, Louisiana and a number of South American countries. The French heritage remains alive today and the particular forms it takes have helped to enrich all the countries that share this legal culture. While remaining resolutely civil in form, Quebec private law differs from French law and features original rules that are at times based on English law. The civil law is that body of law consisting of the fundamental rules of private law—general legal principles, rules concerning the status of persons and the family, property and the theory of obligations—which constitute its common law. In Quebec, these fundamental rules are mainly stated in the Civil Code, as may be seen from the Code's Preliminary Provision:

Preliminary Provision

The Civil Code of Quebec, in harmony with the Charter of human rights and freedoms and the general principles of law, governs persons, relations between persons, and property. The Civil Code comprises a body of rules which, in all matters within the letter, spirit or object of its provisions, lays down the jus commune, expressly or by implication. In these matters, the Code is the foundation of all other laws, although other laws may complement the Code or make exceptions to it.

The common law tradition

Starting with the Norman Conquest of England in 1066, the common law was gradually developed by the Royal Courts which sought to standardize the law, contrary to local custom, on the basis of a general—and fictitious—custom applicable throughout the kingdom. The common law thus derives from the activity of the courts. It is the work of judges. The rules developed by the courts do not necessarily constitute common law rules in the strict sense because only those rules accepted and applied by the Royal Courts of Westminster form the common law. Starting in the XVth Century, however, the Court of Chancery added rules of equity to English law.

Jurisdictional duality was abolished in England by the Judicature Acts of 1873 to 1875 and a new jurisdiction was created—the High Court of Justice, comprising three divisions: the Queen's Bench (Common law), Chancery (Equity) and Probate (formerly Probate, Divorce and Admiralty). In the common law provinces of Canada, the equivalent divisions were gradually integrated into a unified judicial system. Although the jurisdictions were merged, the two systems of rules, (common law and equity), remained separate. Although all courts may apply both rules, equitable remedies (e.g., the right to an injunction) are even today contrasted with common law remedies (e.g., the right to damages). However, in case of conflict between the rules of common law and those of equity, the latter prevails.

Common law and equity are sometimes referred to generically as common law. In this sense, the common law must be understood as unwritten law based on judicial precedent (as opposed to statutory law which derives from legislative sources) and are applicable in the absence of relevant statutory provisions. "This method [strict construction of exceptions to general law] is based on the opposition between common and statute law. Historically, common law was the general law and statute law the exception."[17]

Common law is distinguished by its method and inductive reasoning, which consists of generalizing from precedents and observing similarities. Civil law, on the other hand, is characterized by its deductive method, high degree of abstraction and generalization.[18] In short, the method of the civil law is rational, that of the common law empirical.

Characterization of the two legal traditions: private law and common law in Canada

In Canada, the distinction between private law and public law makes it possible to determine the common law applicable to a legal relationship: the common law in public law, the civil law in Quebec private law and the common law in private law elsewhere in the country. As a result of the division of legislative powers, Canadian bijuralism is a significant presence whenever the application of a common law federal statute requires recourse to private law.

In this context, provincial private law applies [translation] "as a supplement to every federal statutory provision concerning a private law matter in order to complete it […]"[19] Although the notion of private law traditionally means the body of rules of law applicable to relations between individuals, these rules in some instances have an impact on the development, interpretation or application of rules which, at first glance, do not concern relations between individuals.

Common law means the law applicable in the absence of specific rules. It is a body of rules that may apply where unopposed and especially provides "the interpreter with conceptual resources to apply specific statutes".[20] The term supplementary law is at times used to describe the common law, but the common law is not an addition to special rules; it supports them.[21]

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