LA COUR SUPRÊME DU CANADA, LE CODE CIVIL DU QUÉBEC ET LE RÔLE DES JUGES DE COMMON LAW

UNE ÉTUDE DES ARRÊTS DE 1976–2019

Abstract

This study examines the relationship between common law and civil law in the Supreme Court of Canada. To ensure that the Supreme Court of Canada has access to expertise in matters of civil law, at least three of the nine judges of the country’s highest court must be selected amongst lawyers and judges from Quebec. However, many cases dealing with the application or interpretation of the Civil Code of Quebec are heard by panels with a majority of judges with only common law training. Civil law jurisprudence is therefore shaped, in principle, by judges who generally lack any civil law training. What role do common law judges in the Supreme Court adopt when hearing civil law cases? We examine this question in three parts. First, a historical overview of bijuralism in Canada confirms that at one time the Supreme Court’s mandate was to standardize Canadian law at the expense of the civil law tradition. Second, we review all Supreme Court decisions that applied or interpreted the Civil Code of Quebec between 1976 and 2019 to assess the level of commitment of common law judges. Finally, based on the trends observed and the historical analysis, we offer insights on the role of common law judges in the Supreme Court.