Gouvernement du Québec - Justice

Historical note

This document1 outlines the development of the justice system in Québec. It gives key dates and is divided into the following sections:

Introduction
The French Regime: from the founding of Québec (1608) to 1663
1663 to the Conquest (1760)
The British Regime: absolute rule (1760 to 1791)
The Constitutional Government (1791 to 1840)
The Judicate Act (1793 to 1840)
The Union Act (1840 to 1867)
The Constitution Act of 1867
The Ministère de la Justice (1965)
List of the Justice Ministers since 1965
List of the Deputy Ministers since 1965


Introduction

Perhaps the most distinctive feature of Québec’s justice system is its dual structure. Like many other areas of government administration, justice in Québec has been split between federal and provincial jurisdiction since the 1867 proclamation of the British North America (BNA) Act, also known as the Constitution Act. In addition, the common law system, adopted in its entirety by all the other Canadian provinces, applies only to criminal proceedings in Québec, whereas civil matters are governed by the Civil Code, derived from France’s legal system.

The Ministère de la Justice (department of justice) has been known, over the years, by a variety of names, reflecting changes in its mandate. Although Québec’s government administration is generally considered to have begun in 1867 with the advent of Confederation, its justice system can be traced back to the founding of Québec in 1608.

The French regime: from the founding of Québec (1608) to 1663

The French regime can be divided into two periods: the first dates from the founding of Québec in 1608 until 1663; the second covers the years 1663 to the Conquest, in 1760.

Samuel de Champlain, when he founded Québec, was given sole legislative, executive and judicial authority for the new country. He dispensed justice and enjoyed extensive and arbitrary powers, as a governor handing down decisions based on principles of common sense and equity.

In 1621, on instructions from the King of France, Champlain began appointing assessors to represent him in more remote areas. These assessors, often clergymen by trade, were the country's justice “pioneers”.

Québec’s first courts, established in 1639, were presided over by judges who were still subject to the Governor's authority. Some seigniors were also authorized to dispense justice, but strictly within the bounds of their seigniory.

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1663 to the Conquest

Starting in 1663, a justice system, similar to that found in many provinces of France, was implemented in the colony. Under this system, justice was administered at three levels: seigniorial justice, royal justice and the intendant’s (district administrator’s) justice. As there was not yet any true separation of powers, legislative, judicial and executive responsibilities were often assumed by the same individual. The governor acted as the colony’s Attorney General. Except for certain cases which could be appealed before the Parliament of Paris, the governor remained the colony’s supreme authority.

Persons wishing to learn more about justice under the French Regime will enjoy the texts on the subject written by history students at Université Laval for the Fêtes de la Nouvelle France celebrations held in Québec in 2003 (in French only).


The British Regime: absolute rule (1760 to 1791)

The British regime can be divided into three periods: absolute rule from 1760 to 1791; constitutional government between 1791 and 1840; and from the Act of Union (1840) to Confederation (1867).

The era of absolute rule was punctuated by three successive forms of government. A military government held the reigns of power for a brief time between 1760 and 1763. This was essentially a transitional period, during which a military council assisted the governor in his duties. However, in terms of judicial organization, it was military in name only. In everyday life, the French laws and procedure continued to apply.

The military regime was succeeded by a civil government, which remained in power for ten years, from 1764 to1774. During this time a hybrid judicial system was adopted, with the governor performing all the duties previously shared between the governor and the district administrator under the French regime. Yet perhaps the most striking element of this period was the exclusion of French Canadians from key administrative positions, since the only way to obtain a position was to take the Oath of the Test which required them to renounce their Catholic faith. Most French Canadians refused. Two other key dates should be noted: cases began to be heard and judged under the laws of England in 1764 and, in 1766, lawyers made their first appearance in Québec courts.

In 1774, the passing of the Québec Act heralded the arrival of a new regime, endowing the province with its first constitution. Although this Act provided for the creation of local legislative bodies, the colony was not yet entitled to an elected assembly. The governor continued to enjoy absolute power. Under the Québec Act, British law was retained for criminal cases, but the application of French civil law was authorized for civil cases. The existing courts were dissolved and the orders issued in relation to civil matters were revoked.

Constitutional Government (1791 to 1840)

In 1791, the British Parliament proclaimed a new constitution and a new parliamentary regime for the province of Québec. Under the Constitution Act, the colony was divided into two distinct provinces: Upper Canada, covering most of modern-day Ontario, and Lower Canada, similar to modern-day Québec.

Each province was granted a separate elected assembly, a legislative council, an executive council and a Lieutenant Governor. However, both provinces remained subject to the authority of a single Governor. Under the constitutional government, individuals were still permitted to hold legal, political and administrative positions simultaneously. During this period, the question of excluding judges from parliament was first debated, but the judiciary did not become truly independent from the Crown until 1843.

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Judicature Act (1793 to 1840)

The adoption of the Judicature Act in 1793 resulted in modifications that laid the foundations for Québec’s current judicial organization. The Act provided for, among other things, the creation of three judicial districts, two Courts of King’s Bench, two provincial courts, and circuit courts. However, the same individual could still perform both governmental and judicial duties.

The period came to an end amidst widespread upheaval. In the wake of the Patriot uprising, martial law was declared in 1838 and the 1791 constitution was suspended. A special council was created to administer the affairs of Lower Canada and assist the governor in drafting legislation.

This three-year regime (1837 to 1840) saw many significant developments for the justice system: the introduction of registers of civil status, the construction of courthouses, prisons and registry offices, and a reorganization of the court system.

Act of Union (1840 to 1867)

Historians consider this as a period when French Canadians were placed under tutorship. However, with respect to the justice system, the 1849 Act of Union was a catalyst for sweeping reforms, the most significant by far being the decentralization of 1857, when the number of judicial districts rose from five to nineteen.

Another major development occurred in 1843, with the adoption of legislation making judges independent from the Crown. Under the new law, judges were no longer entitled to hold elected office or sit as members of the legislature. Indeed, this legislation went as far as denying them their right to vote. The independence of the judiciary was maintained and enshrined by the 1867 Constitution Act.

Constitution Act, 1867

Canadian federalism is based on the sharing of jurisdiction between the federal and provincial governments. The distribution of powers resulted in a dual judicial organization that has changed very little over the years.

A clear separation was established in 1867 between the political, administrative and judicial powers. At the administrative level, however, several laws have modified this structure over the years, particularly concerning the duties of the person holding the position equivalent to that of today’s Minister of Justice.

Under the British North America Act (the Constitution Act, 1867), the officials responsible for administering justice, the Attorney General and Solicitor General, were known as Law Officers and were appointed by the Lieutenant Governor. The Department of the Law Officers of the Crown was the predecessor of today’s department of justice, and the Department of the Secretary and Registrar of this Province was established in 1868. The responsibilities of the Registrar are now exercised by the Minister of Justice.

In 1885, the Act respecting the Law Officers of the Crown defined the specific duties of the Attorney General and Solicitor General.

In 1886, the legislative assembly adopted an act that led to the creation of the various administrative departments of the Québec government, the forerunners of Québec’s current departments, and defined their respective powers and duties.

In 1887, the Department of the Law Officers of the Crown became the Department of the Attorney General, while the position of Solicitor General was abolished. In 1897 the Attorney General was made responsible for the administration and supervision of the police force and related legislation.

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Justice Department (1965)

On June 4, 1965, the Justice Department Act came into effect, making Québec the first province to have a department of justice. Until then, the question of justice had been associated solely with legal proceedings before the courts and public safety issues, while in fact the field of justice was far broader.

The creation of the department of justice led to more emphasis on the role of legal adviser to the government. It also set the stage for a series of reforms that would gradually transform the system for the administration of justice, making it more humane and accessible.

Listed below are some of the major pieces of legislation and reforms since the creation of the Department:

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1. The information covering the period from the beginning of the colony to the creation of the Ministère de la Justice was taken from the book by Pierre-E. Audet: Les officiers de justice, des origines de la colonie jusqu'à nos jours (Wilson & Lafleur Ltd., 1986).

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Latest update: April 30, 2009



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