The Law and Medical Practice in Québec

The Legal System in Canada and in Québec

Under review

Modern societies have inherited one or the other of two great legal traditions: civil law and common law.

Civil law and its roots date back into antiquity, when the principle of a “code” was already being applied to summarize traditions, rules and customs and to formalize these rules in one text. By consulting the code, one could usually come up with a clear answer or, at least, articulate a general principle whereby a dispute could be settled.

Common law is all of the rules of an ordered society that are derived from judgments rendered by courts for centuries. In this  system of law, the judge must examine the previous decisions of courts, notably those of superior courts, with a view to finding precedents that have acquired the force of law.

Several European, Asian and African countries have adopted civil law. This is true of France, Germany, Italy, Russia, China and Japan. On the other hand, countries with a British heritage apply common law. Aside from the Great Britain itself, these include the United States, Australia, India and Canada, with the exception of Québec. For historical reasons, Scotland and Louisiana have also retained the civil law system.

Whereas the other provinces have always applied common law, Québec has remained an essentially “civilist” society. Indeed, its first civil code, adopted in 1866, was largely inspired by the French Napoleonic Code. It also contained a number of British rules, namely those applicable to commercial law.

The British North America Act of 1867, promulgated in London by the British Parliament, created the modern Canada and established the powers of the provinces and federal government by granting them the right to govern and enact laws in their respective areas of jurisdiction. The Act also gave the French language official status in the federal parliament and in the National Assembly of Québec. It recognized or created superior courts, among them the Supreme Court of Canada and a superior court in each province. The provinces were also empowered to create their own courts: the Court of Québec (Civil Division, Criminal and Penal Division, Youth Division), the municipal courts and the administrative courts such as the Administrative Tribunal of Québec and the government agencies. The latter are subject to the supervisory authority of the Superior Court. The federal government appoints the judges of the Supreme Court and the courts of appeal and superior courts in each province. The Québec government appoints the judges of the Court of Québec.

In 1982, Ottawa repatriated the British North America Act from London. As well, the Canadian Charter of Rights and Freedoms was made law and enshrined in the Constitution. Indeed, Québec has had its own Charter of Human Rights and Freedoms since 1975. These laws solemnly establish the values of our society by recognizing the fundamental rights of the individual, notably in his or her relations with the government. The charters also describe the limits of other legislative texts and allow the courts to invalidate a provision incompatible with the charters and to grant remedy to those whose fundamental rights have been violated.

In 1994, the new Civil Code of Québec came into force. It takes into account over 100 years of evolution in jurisprudence and bears witness to the modernization of Québec society. The Code’s preliminary provision elucidates its overall scope and reads as follows:

“The Civil Code of Québec, 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 and 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.”

2011-04-04