Out of the Shadows: The Civil Law Tradition in the Department of Justice Canada, 1868–2000

The Beginnings of Civil Law on Canadian Soil: Historical Review (1663-1867)

The promulgation of the Civil Code of Quebec in 1994 is one of the most significant events in the history of Quebec and Canadian civil law.1 This new version, primarily intended to update a code that had been in force for more than 125 years, shows how civil law has been able to adapt to the needs of Quebec society today. This new legislation has also confirmed the identity-creating function of the civil law tradition, which was introduced into New France more than three centuries previously.

The Custom of Paris (1663)

In 1627, the French government entrusted the Compagnie des Cent-Associés with the mission of establishing a French empire in North America. However, the efforts of the Compagnie did not produce the desired result, and its charter was withdrawn in 1663. King Louis XIV then took possession of New France, for he thought it necessary to look after its development himself. He introduced the Custom of Paris to New France, giving it what it needed to set up a justice system similar to that of the mother country. Thinking that order was essential to the expansion of the colony, the King established the Sovereign Council at Quebec. This body, which was similar to the parliament in a French province, acted as a court of appeal from courts of first instance, in civil and criminal matters.2

However, the political and legal landscape of New France was altered by the imperialistic designs of Great Britain and France, which brought these two powers into conflict.

Following the Seven Years’ War (1756-1763) and the Conquest, the French colony was ceded to the British by the terms of the Treaty of Paris. The treaty ended a period of transition (1759-1763), during which military courts continued to apply the private law in force before the Conquest.3 After that, the new masters of the country did not make any firm commitment to maintaining French law. When Vaudreuil, the last governor of New France, asked what would happen to civil law in Canada, Amherst, the commander in chief of the British forces at the time, simply replied that the French Canadian inhabitants were henceforth British subjects.4

The Royal Proclamation of 1763 set out what George III, King of England, intended to do about administering his newly acquired North American colonies. The proclamation allowed the first civilian government to be established (but without an elected assembly). However, it also contained articles that disturbed the French settlers, in particular by introducing English law, which the new subjects were reluctant to accept. The Royal Proclamation of 1764 reduced tension somewhat by allowing French law to be used if both parties were natives of New France. However, this did not prevent the French Canadian inhabitants from protesting against the changes to the system with which they were familiar. One sign of their resistance was the continuing use of notaries to handle their legal affairs. Their stubbornness, and the threat of revolt on the part of the Thirteen Colonies, led the British Parliament to respond by adopting the Quebec Act, which mitigated the imposition of British institutions.

The Quebec Act (1774)

The British masters, fearing a massive immigration from the American colonies and wishing to standardize the political and legal systems of their possessions, had tried to eliminate French law from the Province of Quebec. The fate of French law in Canada had not yet been settled when political upheavals broke out in the English colonies, “forcing the imperial government to settle this issue promptly, in order to win the support of French Canadians for the struggle that was about to begin between England and its rebel colonies.”5 In 1774, the British authorities adopted the Quebec Act.

Although the Quebec Act did not offer a final solution to the problem, from a legal point of view, it did have the effect of restoring French private law pertaining to property and civil rights by allowing the “Canadians” to cite “the laws and customs of Canada.” In this sense, the Quebec Act greatly contributed to the survival of French civil law in North America, but without removing it from the sphere of influence of English common law. In fact, the Act weakened the seigneurial system by specifying that the British Crown would henceforth grant land in free and common socage; the Act also confirmed the hegemony of English criminal law.a, 6

This ambiguous attitude on the part of the British authorities provoked chaos in the administration of justice. Moreover, the arrival of the Loyalists at the end of the 18th century and the repercussions of the American Revolution gave impetus to a movement in which both Francophones and Anglophones called for the establishment of a parliamentary system. This situation of instability continued until the adoption of the Constitutional Act, 1791, which split the territory into two separate parts, Upper Canada and Lower Canada. Even though civil law was still subject to pressure from English law, its constitutional survival as a system of private law within the colony was now assured, at least in principle.7

The rebellions of 1837 and 1838 in Lower Canada arose from a conflict between the French majority, which wanted centralization of power in an elected assembly, and the British minority, which was determined to preserve its influence. The rebellions, fanned by economic and social tensions, led to the suspension of the Constitutional Act of 1791.8 Lord Durham, sent by the English government to assess the state of the colony, submitted his report in 1839. Durham recommended that Upper Canada and Lower Canada be united, and also commented on the existing legal system. Harshly critical of what he called the “outmoded” laws of Old France that governed the administration of justice in Canada, Durham advocated the adoption of English law to create uniformity in a legal system that he deemed to be hybrid, disparate, inconsistent and contradictory.9

On Lord Durham’s recommendation, the Act of Union was adopted in 1840 to unite the two Canadas. According to section 46 of the new Act, the law of each of the provinces remained in force unless it was amended by a law of the United Canadas. Legislators did not particularly want to make the legal system uniform, and continued to enact legislation that applied either to Canada West or to Canada East, thus perpetuating the distinction between the two provinces and preserving the civil law tradition. Nonetheless, the 25 years following the Act of Union were marked by “... major legal reforms …” driven by the emergence of a new political will to modernize the institutions of public and private law.10

The Civil Code of Lower Canada (1857-1866)

Codification of the laws governing private law in Canada East was among the reforms undertaken after the Act of Union came into force. In 1857, George-Étienne Cartier, who was then Attorney General for Canada East, tabled codification legislation in the Parliament of the United Canadas, and the members of the Codification Commission were appointed 18 months later, in 1859.11 The practical aim of the codification was “... to unify a confused mass of Old French laws, British Imperial Acts and local legislation…” so that lawyers, notaries and magistrates could have precise knowledge of private law.12 Laws and customs were gradually modified after the fall of the French Regime, and the Conquest made a further contribution to the legal confusion. Over the years, civil law moved away from French customary law in order to meet the needs of the French Canadian population, and it incorporated elements of common law.13

On August 1, 1866, seven years after the Commission had begun its work, the Civil Code of Lower Canada came into force, with its 2,615 sections. The new code reflected the laws that were already being applied at that time in civil and commercial matters. The new code was followed, in 1867, by the Code of Civil Procedure. This new enactment, which drew on many sources, helped to simplify private law, and its implementation “... was to inaugurate the entry of the future Province of Quebec into the modern era.”14 However, the Civil Code of 1866 was more than a simple collection of laws. It also fulfilled a symbolic function in confirming that Quebec belonged to the civil law tradition.15

Quebec was thus the only province to enter the Canadian Confederation with a codified private law and a system of statutes in the civil law tradition. It thus laid the foundation for Canadian bijuralism.

a. Given this problematic coexistence of two systems of law, Evelyn Kolish, a specialist in the history of law, has argued that the Quebec Act did not constitute a recognition of the rights of “Canadians,” but rather embodied a long-term assimilation policy. On this reading, it can hardly be claimed that the Quebec Act is a “charter that liberates and protects Canadian law …” As Ms. Kolish puts it: “Why establish a dual legal system, unless to protect the interests of the former subjects during the period of assimilation…?” See Nationalismes et conflits de droits : le débat du droit privé au Québec, 1760-1840 (Montréal, Éditions Hurtubise HMH Ltée, 1994), pp. 45 and 46.

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