An Introduction to The Legal System of Quebec, Written for a Diplomat

What makes Quebec’s legal system unique in Canada? What are its essential features? The author was asked these questions by Mr. Jae-woo Kim, Consul of the Republic of Korea in Montreal, who was hoping for something akin to a magazine article. The result was rather more detailed, but perhaps it will be helpful to foreigners who need a basic knowledge of the applicable law in Quebec. In many ways, the distinct character of Quebec’s institutions is at the root of the federal union created in 1867. Federalism assumes that provincial legislatures and governments will have the power to adopt their own policies and priorities within their spheres of exclusive jurisdiction, no matter the criticisms expressed by other provinces or by the federal government. Federalism therefore allowed Quebec to maintain its civil law heritage in matters of private law, while all the other provinces adopted the common law in private law matters. The differences between the legal system of Quebec and those of other provinces also reflect a collective or national identity–indeed, in 2006, the House of Commons recognized that the “Québécois form a nation within a united Canada”. In 2021, it acknowledged “the will of Quebec to enshrine in its constitution that Quebeckers form a nation, that French is the only official language of Quebec and that it is also the common language of the Quebec nation”. However, there are other nations within Canada. Indigenous Peoples, for instance, are commonly termed “First Nations” in federal legislation. They are also considered “peoples” in the Canadian Constitution. Canada, then, is a multi-national state. Nonetheless, the status of Quebec within Canada has been the subject of intense controversies. At first glance, these may appear to be political in nature, but they have exerted a profound influence on the evolution of Canadian constitutional law. For that reason, they will be mentioned below. Historically, Quebec’s national identity has been defined by the French language, the Catholic religion and the civil law tradition, with the understanding that other languages and religions were an important part of Quebec society and could not be denied recognition. This consensus was achieved after many decades of political conflicts and a rebellion. We will recount these events in Part II of this document. Part III will examine the Canadian federal system, focusing on legislative and judicial powers. From the sixties, Quebec began its quest for increased responsibilities. This culminated with two failed attempts to obtain a mandate for the negotiation of a secession. In this turbulent period, the Constitution Act, 1982 established an amending procedure entirely controlled by Canadian actors. As well, the Canadian Charter of Rights and Freedoms (Canadian Charter’) empowered the judiciary to address controversial social issues. After this general presentation, Part IV will focus on some distinctive features of the legal landscape in Quebec: a dynamic civil law tradition prospering in the midst of common law jurisdictions, and the special protection given to the French language, both at the institutional level and in the educational sphere. In this regard, the Canadian Charter included novel linguistic rights; for instance, parents belonging to the Francophone or Anglophone minority of a province were entitled to have their children educated in their native language. As a result, some legislative provisions adopted earlier in Quebec were found to be unconstitutional, although many remain in place. Part V will discuss the negative reactions after some important laws were struck down by the courts because a fundamental right or freedom had been infringed. In 1975, Quebec adopted the Charter of Human Rights and Freedoms (Quebec Charter), thereby signalling …