Canada's Legal Traditions: Sources of Unification, Diversification or Inspiration?

Abstract

Quebec, the only province within Canada to follow the civil law tradition, is an ideal microcosm for the study of unity and diversity within legal orders. The question of whether Quebec’s civilian legal tradition should be interpreted and applied so as to be in unity with the common law or, rather, adhere to its own distinct legal culture has pervaded doctrine and jurisprudence for over a century. Interestingly, the pendulum has swung widely. Quebec has seen moments when the philosophy of the Supreme Court of Canada was one of unification and harmonization of Quebec law with the common law tradition, as well as moments when its advanced staunch diversity. The situation today is more nuanced. Quebec’s civilian tradition has undoubtedly survived as a distinct legal order within Canada due to legal interpretation but also interdisciplinary factors, including language and politics. Even within areas borrowed through legal transplantation from the common law, Quebec maintains a distinct civilian methodology and interpretation and the Supreme Court has held that Canada’s legal traditions should continue to evolve side by side, each maintaining its distinctive character. Diversity, however, has been recently tempered by a growth in comparative law as between Canada’s legal traditions. Increasingly, the Supreme Court is looking to Quebec civil law in appeals from common law provinces and Quebec continues to look to the common law in many areas. However, far from leading to unity, comparative law in Canada has been used as a tool for information, education and, most importantly, inspiration.

Keywords: comparative law, legal traditions, mixed jurisdictions, judicial methodology