Quebec Civil Law and Canadian Federalism

Abstract

Professor Valcke argues that Quebec's civil law tradition has eroded due to the influence of the common law institutions of the rest of the Canadian federation. She begins by providing historical and philosophical background to the civil law tradition. Valcke then argues that the law and legal method used in contemporary Quebec barely resemble the "pure" civil law tradition. First, the constitutional powers of the federal legislature have been interpreted broadly to encroach upon matters that would otherwise fall within the jurisdiction of the provinces. Quebec has been disproportionately affected because its legal system was originally the most distinct within the federation. Second, federal control over aspects of the provincial court system, and the adjudication of civil law matters by judges with inadequate backgrounds in civil law and often little concern for the preservation of Quebec's distinct legal identity have further weakened Quebec's civil law tradition. Finally, Valcke argues that the trend toward including the reasons for judicial decisions in Quebec's court opinions - ironically in an attempt to rescue the civil legal tradition from an unhealthy literalism - has caused those opinions to approximate common law opinions. At the same time, Valcke believes that internal factors have also contributed to the erosion of Quebec's civil law tradition, and she defers any consideration of a remedy for Quebec's situation until after those other issues have been examined.