LA DISPOSITION PRELIMINAIRE DU CODE CIVIL DU QUEBEC, L’IDEE DE DROIT COMMUN ET LE ROLE DU CODE EN DROIT FEDERAL

Abstract

The Constitution Act, 1867, provides for a number of exclusive federal powers over matters which would be within the provinces’ general jurisdiction over property and civil rights under subsection 92(13), were it not for the specific federal heads of powers under section 91. Notwithstanding the exclusive character of these powers, federal law remains nonetheless incomplete; to fully apply within a province, federal law must rely on provincial legal concepts and institutions. This division of powers and the incomplete character of federal law necessarily have an impact on the role the Civil Code of Québec in federal law, insofar as the Code is the primary source of the expression of provincial law in Quebec. In that respect, questions arise as to the nature of the rules that have a suppletive role in federal law. There are also questions as to the function of the Civil Code of Québec both in setting forth those rules and as a source of expression of this relationship of complementarity between federal law and the law of the provinces. To the extent that the Preliminary Provision states that the Civil Code of Québec lays down, in all matters, the jus commune of Quebec, can it have that same role in respect of federal law and as such constitute the basis of federal laws, at least when applied in Quebec?