BIJURALISM IN SUPREME COURT OF
CANADA JUDGMENTS SINCE THE ENACTMENT
OF THE CIVIL CODE OF QUEBEC

1. Rights of the individual

Canadian society is animated by a number of values that bind its citizens together, regardless of whether they live in a common law or civil law jurisdiction. These values are set out partly in the Constitution and partly in provincial legislation, civil law and common law.

On a number of occasions during the period surveyed, the Supreme Court has noted certain fundamental principles that guide the application of the laws relating to respect for the individual in Canada. These principles are a testimony to our society's deeply held convictions in this regard and it is recognized that in some sense they have no boundaries. In general, the Court holds that both the Canadian Charter of Rights and Freedoms and the Civil Code of Quebec, as well as the Quebec Charter of Human Rights and Freedoms, the various provincial human rights acts and the common law constitute a uniform reflection of this. The Court notes, however, through the comments of Wilson J. in Morgentaler [1988] 1 S.C.R. 30 that, despite our common respect for certain values, provincial law must nonetheless take the constitutional situation into account:

With the advent of the Charter, security of the person has been elevated to the status of a constitutional norm. This is not to say that the various forms of protection accorded to the human body by the common and civil law occupy a similar status. "Security of the person" must be given content in a manner sensitive to its constitutional position. (pp. 53-54)

In matters of public law, that is, in everything that does not relate to property or civil rights, the Court notes that the common law constitutes the basic law applicable to citizens in all jurisdictions. Thus, on all matters of municipal law, education law or administrative law in general, there must be an analysis based on the common law, including in Quebec. The Court also favours recourse to public law rather than to the Canadian Charter of Rights and Freedoms in cases where the principles of procedural fairness and natural justice have been violated.

The cases chosen as representing rights of the individual deal with the two legal traditions in the context of human rights and freedoms as well as administrative law.

1.1 Human rights and freedoms

The Court has examined a few notions relating to fundamental freedoms from a comparative perspective in recent years, notably in the context of the rights recognized for pregnant women and the fetus. The Court has striven for a degree of consistency in the decisions it has rendered on this matter in situations that apply in different jurisdictions in Canada. Furthermore, the protection of "privacy", as well as the question of "dignity", have been raised in the context of the rights of patients in the event of illegal strikes by hospital employees, and in matters involving the disclosure of the private records of sexual assault victims. In the latter case, the Court has dealt with the privileges generally granted in relation to respect for privacy not only in Canada but elsewhere in the world as well.

1.1.1 Rights of pregnant women and the fetus

If there is one area in which individual rights have been widely discussed, it is that of the rights of a pregnant woman and the fetus she is carrying. As far back as Morgentaler [1988] 1 S.C.R. 30, which recognized a woman's right to abortion, it has been asserted that granting a fetus the "right to life" provided under s. 7 of the Canadian Charter of Rights and Freedoms from the moment of conception creates a potential conflict with the woman's rights to personal dignity, bodily integrity and autonomy. In Tremblay v. Daigle [1989] 2 S.C.R. 530, it was determined that a woman could not be forced to complete her pregnancy since neither the Quebec Charter of Human Rights and Freedoms nor the Civil Code granted the fetus juridical personality.

Dobson (Litigation Guardian of) v. Dobson [1999] 2 S.C.R. 753

More recently, in Dobson (Litigation Guardian of) v. Dobson, which originated in New Brunswick, the Court rejected the argument that a child could take legal action against his mother for damages for the injuries he suffered before his birth as a result of an automobile accident caused by his mother's negligent driving. The Court recalled the civil law case Montreal Tramways Co. v. Léveillé [1933] S.C.R. 456, which established the legal fiction "borrowed from civil law" that the child who suffers injury is "deemed to have been born at the time of the accident to the mother", once the child is born alive. The Court nonetheless drew a distinction between this case and Dobson, because Montreal Tramways involved a case in which a child was taking legal action against a third party for negligence committed before its birth. In Dobson, despite the fact the child was born alive, the Court refused to apply the rules of tortious liability under the common law to the mother.

McLachlin J. made the following comments on the question of the rights of the pregnant woman:

In my view, to apply common law liability for negligence generally to pregnant women in relation to the unborn is to trench unacceptably on the liberty and equality interests of pregnant women. The common law must reflect the values enshrined in the Canadian Charter of Rights and Freedoms. Liability for fetal injury by pregnant women would run contrary to two of the most fundamental of these values—liberty and equality. (par. 84)

Again recently, the Court reiterated its refusal to amend the rules of common law with regard to tortious liability or to extend the State's parens patriæ responsibility to protect the fetus or to recognize its rights. It drew a comparison with the principles of civil law, in which the legal status of the fetus is the same as that at common law.

Again recently, the Court reiterated its refusal to amend the rules of common law with regard to tortious liability or to extend the State's parens patriæ responsibility to protect the fetus or to recognize its rights. It drew a comparison with the principles of civil law, in which the legal status of the fetus is the same as that at common law.

Winnipeg Child and Family Services (Northwest Area) v. D.F.G. [1997] 3 S.C.R. 925 

In Winnipeg Child and Family Services v. D.F.G., Child and Family Services applied to the Court for an order enabling it to hold a pregnant woman in a health care centre until the birth of the child on the ground that the health of the fetus was in jeopardy because of the mother's addiction to intoxicating substances.

McLachlin J., who rendered the decision for a majority of seven judges, reviewed the general principles that apply and examined the rules of law regarding tortious liability as well as the parens patriæ jurisdiction of the courts. She asserted that the Court was not being called upon to resolve an issue of biological or spiritual status but of legal status, as previously set out in Tremblay v. Daigle [1989] 2 S.C.R. 530, a case in which the issues were similar since the father of the unborn child had been asking for an injunction to prevent the mother from terminating her pregnancy.

A number of principles had already been established in that case, including the fact that neither the Quebec civil law nor the common law of England and Canada recognize the fetus as a legal person. The principle was that, while injury to a fetus due to the negligence of third parties is actionable, the right to sue does not arise until the infant is born.

McLachlin J. stated that, in Tremblay, the Court concluded that the Quebec Charter confers no rights on the unborn child, and cited this passage, which summarizes the applicable law:

The treatment of a fetus in tort law, property law and family law reveals a similar situation as found under the Civil Code, namely, that the fetus has no rights in private law. (par. 70, Tremblay c. Daigle p. 564)

With regard to tort law, Montreal Tramways Co. v. Léveillé [1933] S.C.R. 456, often cited in the case law outside Quebec, established as early as 1933 that the fetus had no legal personality. With regard to property law, Anglo-Canadian as well as Quebec law recognized that the fetus has the right to receive a bequest or gift, but its interests are not protected unless it is born live and viable. In the area of family law, although the fetus enjoys protection, its rights do not take effect until birth. In conclusion, the Court was clear in stating that neither the common law nor Quebec civil law recognizes the legal personality of the unborn child.  Once the principles were established, McLachlin J., addressing the appropriateness of extending tortious liability in such a way as to amend the applicable principles of the common law, wrote that this would be a major reform that would have complex ramifications entailing moral choices and creating conflict between fundamental rights and interests that are not within the purview of the Supreme Court to resolve. She noted that such reform would have:

[…] an immediate and drastic impact on the lives of women as well as men who might find themselves incarcerated and treated against their will for conduct alleged to harm others. (par. 20)

She was also of the view that the Court could not exercise its parens patriæ jurisdiction with regard to the protection of children in a manner that would change the legal status of the unborn child. She indicated that the extension of such jurisdiction would raise the same social, political, moral and even economic problems in the broad sense as would extending the rules governing tort. She added that the situation was dealt with in the same way in the European Community, in Great Britain and in Canada in general. In law, birth is a necessary condition for the acquisition of legal personality. This cannot be otherwise since there is a fundamental incompatibility between the protection of the unborn child and the liberty of the pregnant woman.

The Court refused to interfere with the privacy of the pregnant woman, to jeopardize her right to liberty and autonomy and to thereby enter into a moral and social debate that, in its view, would fall more appropriately to the elected legislature than to the courts. The Court affirmed that it is not up to the courts to amend the law in order to grant the unborn child rights or to protect it, but to Parliament to take a position on the matter through legislation, with respect for the fundamental rights set out in the Constitution.

The question of respect for "privacy" has given rise to two conflicting decisions with regard to the production of confidential records in the possession of third parties. The Court noted the similar recognition granted to this right by each system and addressed the class privileges attributed to certain types of private communication under the two legal traditions.

1.1.2 Disclosure of private records of sexual assault victims

L.L.A. v. A.B. [1995] 4 S.C.R. 536

In addition to raising a jurisdictional question, L.L.A. v. A.B. deals with the nature and scope of the production to the defence of records relating to social and psychological care following a sexual assault that are in the possession of third parties. The Court noted that these confidential records, which give rise to a reasonable expectation of respect for their private nature, include medical and therapeutic records (such as those involved in this case), school records, private journals, and social workers' activity logs.

The Court refused to recognize a class privilege with respect to the protection of the privacy of such records but favoured looking at each case individually, as it was doing with this one. At the constitutional level, it then became a matter of striking a balance between the values that justify recognizing a privilege in the particular case in question and those that support the production of records. The constitutional values at play in this context are the right to make full answer and defence, the right to the protection of privacy and the right to equality without discrimination, which are studied in depth in O'Connor [1995] 4 S.C.R. 411. The Court noted simply that respect for privacy is an interest protected by the Canadian Charter as well as by the common law, and that the right to such protection is also recognized in Quebec by the Civil Code and the Charter of Human Rights and Freedoms.

L'Heureux-Dubé J. reviewed the privileges that have been granted in Canada, the United States and the Commonwealth countries.

She noted that in Canada, very few communications are recognized as privileged either at common law or under statutory law. At common law, the solicitor-client privilege as well as the informer privilege are recognized, but are not absolute, the accused's right to make full answer and defence taking precedence in certain cases. By statute, communications between spouses are regarded as privileged in criminal and civil matters as well as under provincial legislation. Religious communications privilege has been recognized in the provincial legislation of Quebec and Newfoundland, and Quebec has recognized a statutory privilege in civil matters with regard to doctor-patient relationships.

Communications between counsellors and sexual assault complainants have not been recognized as privileged in Canada, either at common law or by statute.

In the other common law jurisdictions, in criminal matters, no generic privilege has been recognized for communications between a sexual assault complainant and their counsellor. In the United States this privilege does not exist at common law, and although some states have established a generic privilege for such communications, a number of them have been declared unconstitutional by the courts in those states because they interfered with the rights guaranteed to defendants by the Sixth and Fourteenth Amendments.

In the Commonwealth countries, such as England, Scotland, Ireland, New Zealand and Australia, privileges are classified according to whether the case is one of private law or whether the privilege is one of public interest immunity. In private law, no privilege applies to the professional relationship between a counsellor and a complainant who has been the victim of sexual assault, either at common law or by statute. As for communications between physician and patient, legislation grants them privilege only with regard to certain civil actions and it has not been extended to communications arising from consultations concerning sexual assault. In public law, public interest immunity is granted on a case by case basis based on the facts, depending on whether the tests developed for it in the case law are satisfied.

R. v. O'Connor [1995] 4 S.C.R. 411

The issues raised in R. v. O'Connor relate mainly, as in L.L.A. v. A.B., above, to the production of therapeutic and medical records in the possession of persons other than the Crown prosecutor. At issue was an appeal from a decision of the British Columbia Court of Appeal, in the context of which the Court examined notably the notion of "right to privacy" from the standpoint of the common law, civil law and comparative law.

While the Court established that there was no such right in the case of confidential records held by the Crown prosecutor, since their confidential nature had been waived in order to prosecute the accused, it considered that the question arose when records in the possession of third parties were involved, and had to be appreciated in light of the balance to be achieved between the reasonable expectation of the privacy of such records and the accused's right to make full answer and defence.

L'Heureux-Dubé J. noted that the Supreme Court had emphasized on a number of occasions the strong value placed on the protection of privacy in Canadian society. She highlighted this principle in the context of sections 7 and 8 of the Canadian Charter of Rights and Freedoms,and also emphasized its importance in the common law.

L'Heureux-Dubé J. cited Wilson J., who, she indicated, thoroughly examined in R. v. Morgentaler [1988] 1 S.C.R. 30 the connection between "liberty" and "security of the person" under the Charter on the one hand, and human "dignity" on the other. Wilson J. affirmed that "liberty" and "security of the person" mean a number of things but that an objective assessment of the provisions of the Charter demands that the "right to liberty" set out in section 7 be considered as "guarantee[ing] to every individual a degree of personal autonomy over important decisions intimately affecting his or her private life." (par. 111, Morgentaler, above, par. 171)

L'Heureux-Dubé J. affirmed that, while it was stated in Reference re Motor Vehicle Act (British Columbia) S 94(2) [1985] 2 S.C.R. 486 that "principles of fundamental justice" set out in section 7 of the Canadian Charter flow from the fundamental doctrines of the system of common law and sections 8 to 14 of the Charter, "[…] the terms ‘liberty' and ‘security of the person' must, as essential aspects of a free and democratic society, be animated by the rights and values embodied in the common law, the civil law and the Charter." (par. 113)

The Court indicated that respect for privacy is also recognized in the Civil Code of Quebec at art. 35 and 36 as well as in the Quebec Charter of Human Rights and Freedoms, which states in section 5 that "Every person has a right to respect for his private life."

Moreover, the common law has traditionally protected privacy through causes of action such as trespass and defamation. By way of example, in Hill v. Church of Scientology of Toronto [1995] 2 S.C.R. 1130, Cory J. observed that "reputation is intimately related to the right to privacy which has been accorded constitutional protection." (par. 121)

The Court mentioned that this right has also been recognized in the United States, notably in the famous case of Roe v. Wade 410 U.S. 113 (1973), which states that the protection of privacy is a right expressly included in the term "liberty" as it appears in the Fourteenth Amendment, as well as in international documents such as the International Covenant on Civil and Political Rights, the Universal Declaration of Human Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Among the rights and freedoms guaranteed, the concept of "dignity" is also a fundamental right that is expressed in both the Canadian Charter of Rights and Freedoms and in the Quebec Charter of Human Rights and Freedoms. The notion of "dignity" was raised in a recent civil liability case in the context of illegal strikes by employees of a hospital for the mentally disabled.

1.1.3 Rights of patients in the event of illegal strikes by hospital employees

Quebec (Public Curator) v. Syndicat national des employés de l'hôpital St-Ferdinand [1996]  3 S.C.R. 211

Quebec (Public Curator) v. Syndicat national des employés de l'hôpital St-Ferdinand, which will be examined in greater detail in the section on civil liability, served as an opportunity for the Court to emphasize that the notion of "dignity" contained in section 4 of the Quebec Charter has the same scope as it is given in decisions based on the Canadian Charter of Rights and Freedoms that refer to "human dignity". L'Heureux-Dubé J. indicated that the concept of "human dignity" had already been interpreted under the Canadian Charter, notably by Wilson J. in R. v. Morgentaler [1988] 1 S.C.R. 30, in which she had maintained that the Charter and the right to individual liberty guaranteed in it are inextricably linked to the notion of "human dignity". She noted that this notion finds its expression in almost all of the rights and freedoms that the Charter guarantees.

Furthermore, the Quebec Charter, in addition to expressly enshrining the right to the safeguard of the dignity of the person in section 4, makes the notion of "dignity" a value that underlies the rights and freedoms that it in turn guarantees by stating in its preamble that "[…] all human beings are equal in worth and dignity, and are entitled to equal protection of the law". The Court observed that section 4 seems to be cited mainly in defamation cases and that its application has been largely unexplored in Quebec in contexts such as the present case. The judge relied on the definitions given of the concept of "dignity" and on principles of large and liberal interpretation of human rights legislation to conclude that in this case, the safeguard of the dignity of patients was interfered with.

While fundamental freedoms are reflected at the constitutional level as well as in the various Canadian jurisdictions, the Supreme Court is of the view that not everything can be resolved through human rights legislation. On matters of procedural fairness and natural justice in particular it confirms that administrative law, based on public law, offers other avenues of redress. The common law thus constitutes throughout Canada the backdrop for seeking a legal solution, unless the legislation in question provides otherwise.

1.2 Administrative law

In Drafting and Interpreting Legislation (Toronto: Carswell, 1988), Pigeon J. states at page 66: "In everything not related to property and civil rights, then, common law is the fundamental law in the Province of Quebec."

However, while it is true that in Canada, in matters of public law—in criminal law as well as in administrative law—the common law applies as modified from time to time by legislation and case law, it is not always easy to establish the boundary between public law and private law. Beetz J. took note of this fact in the key administrative law case Laurentide Motels Ltd. v. Beauport (Ville) [1989] 1 S.C.R. 705 at pp. 721 and 726:

Because the common law makes, in principle, no distinction between public and private law, the identification of the "public" common law can be a difficult task. Nonetheless, because Quebec is a jurisdiction of two juridical regimes, the civil law and the common law, the identification must be made.

In any event, with regard to unjustified delays in proceedings before an administrative tribunal or questions of partiality and independence on the part of an administrative body, the Court refers to the rules of common law exclusively.

Blencoe v. British Columbia (Human Rights Commission) [2000] S.C.R. 44

Accordingly, in Blencoe v. British Columbia (Human Rights Commission), which dealt with unjustified delays in proceedings before an administrative tribunal in British Columbia, Bastarache J. noted that Parliament and the provincial legislatures were subject to the Canadian Charter of Rights and Freedoms. He cited Eldridge v. British Columbia (Attorney General) [1997] 3 S.C.R. 624, confirming that the Charter applies just as much to entities that, although independent of government, exercise an authority conferred by legislation, as in the Commission's case.

However, he maintained that in the present case the state-caused delay in the human rights proceedings initiated against the respondent did not interfere with the rights to liberty and the security of the person guaranteed by section 7 of the Canadian Charter of Rights and Freedoms. He considered that it was administrative law that offered the appropriate remedy, since the time that had elapsed in the case constituted a denial of natural justice, even through the respondent's ability to obtain a fair hearing was not compromised.

The Court affirmed that not all legal problems can be resolved by the Charter alone, since doing so would block the natural and necessary evolution of the common law and civil law in this country, and might suggest that possibly neither the Civil Code nor the Quebec Charter would apply in a similar situation in which the facts took place in Quebec.

2747-3174 Québec Inc v. Quebec (Régie des permis d'alcool) [1996] 3 S.C.R. 919

2747-3174 Québec Inc v. Quebec (Régie des permis d'alcool) concerned a motion to have a decision of the Régie des permis d'alcool quashed for reason of a lack of impartiality and independence. The majority of the Court held that the Quebec Charter took precedence but L'Heureux-Dubé J. was of the view that the analysis had to be carried out on the basis of the rules of administrative law.

Gonthier J., who spoke on behalf of the majority of the Court, found that art. 23 of the Quebec Charter of Human Rights and Freedoms was applicable and quashed the Régie's decision without invalidating that body's incorporating act. He noted that art. 23 of the Charter establishes the right of any citizen to "[…] a full and equal, public and fair hearing by an independent and impartial tribunal, for the determination of his rights and obligations or of the merits of any charge brought against him." (art. 23)

Subsection 56(1) states that a "tribunal" includes "any person or agency exercising quasi judicial functions."

The Court was of the view that the decision to revoke a permit on the ground of disturbance of public peace constituted the culmination of a quasi judicial process and that article 23 related to both penal and civil matters, the expression "rights and obligations" being common to civil matters even though it could extend beyond them, and the expression "the merits of any charge brought against him" being a concept from the penal sphere.

L'Heureux-Dubé J., like the majority of the judges, found that the Régie's decision should be quashed without invalidating its act of incorporation. However, she maintained that the case was a matter of administrative law and therefore had to be examined, not according to the methodology of civil law, but according to that of the common law since "administrative law, which is part of public law, is based on the common law in all Canadian provinces, including Quebec" (par. 76). She emphasized that this principle is very well established by the case law of Quebec and of the Supreme Court.

She referred to Laurentide Motels Ltd. v. Beauport (Ville) [1989] 1 S.C.R. 705, where the issue was the municipality's negligence in providing fire protection services, and reiterated the opinion she issued on that occasion:

The Quebec Act of 1774 sealed the fate of the two major legal systems that would govern the law applicable in Quebec: French civil law as it stood before 1760 with its subsequent amendments in Quebec for everything relating to property and civil rights, and the common law as it stood in England at that time, and as subsequently amended, for what related to public law. (Laurentide Motels, par. 82, p. 737)

She cites Me Louis Philippe Pigeon (Drafting and Interpreting Legislation (1988) at pp. 65-66), also mentioned in that judgment:

[…] English law is the basis of municipal and school law, and of administrative law generally. Our Court of Appeal rendered a very important decision on this point: Langelier v. Giroux, 52 B.R. 113 (Que.).

[…]

The judgment lays down an extremely important principle: in matters of public law in the Province of Quebec, the basic law is English law. Why? Because in keeping with the rule that general law is not derogated from beyond what is expressed, application of common law extends to all that is not formally excluded. (Laurentide Motels, par. 81-82, p. 738)

She goes on to indicate, repeating the words she used in that judgment:

[…] the common law which applies in Canada in the area of public law, in criminal as in administrative law, in the absence of legislation excluding it, is the common law as subsequently amended by statute and case-law. (Laurentide Motels, par. 82, pp. 739-740)

According to the approach advocated by L'Heureux-Dubé J. in this case, it is necessary to analyze, identify and set out the applicable common law, and then specify the effect of quasi-constitutional statute law (the Quebec Charter) on the common law. She noted, however, that when the common law is codified the resulting legislation takes precedence, in Quebec as well as elsewhere in Canada.

Agencies that perform quasi judicial or administrative acts, such as the Régie, are subject to the duty of impartiality that is part of the common law rule nemo judex in propria sua causa debet esse. According to L'Heureux-Dubé J., the Régie violated this rule by demonstrating that it was "biased on an institutional, organizational level".

She concluded that the Quebec Charter had pre-eminence over the common law because of its quasi-constitutional status, but that section 23 and subsection 56(1), which are relevant to the case at bar, were not applicable. L'Heureux-Dubé J. indicated that a "modern" interpretation approach must be adopted and that the method based on the "ordinary meaning of words", which is more suited to technical fields such as tax law, must be abandoned. The modern approach is to consider the text, the context, the other provisions of the Act, the provisions of other Acts in pari materia and the legislative history in order to determine the legislator's intention.

According to this approach, the intention of the legislator that emerges when section 23 and subsection 56(1) of the Quebec Charter are read together is to limit the scope of the expression "quasi judicial" to "matters of penal significance". The Régie's decision to revoke a liquor permit did not fall into the category of "matters of penal significance", which meant that the Quebec Charter did not apply in the case. According to L'Heureux-Dubé J., the case was a matter of administrative law, and thus common law, and consequently the motion in evocation (art. 846 Code of Civil Procedure) was justified and must be allowed in the circumstances, and the Régie's decision quashed.

While the Court affirmed that the common law is applicable to all persons when matters of public law are involved, in matters of property and civil rights-such as civil liability, family law and contracts-it confirmed that every province has an exclusive right to legislate under the terms of the Constitution itself, and sets out the principles that apply according to the jurisdiction.

In Quebec, the Civil Code prevails in constituting the basic law, applicable to all persons, and thus serves to complement specific statutes relating to the various matters it covers. Elsewhere in Canada, it is the common law that complements provincial statutory law.

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