Michel+Morin,+«+Portalis+c.+Bentham?+Les+objectifs+assignés+à+la+codification+du+droit+civil+et+du+droit+pénal+en+France,+en+Angleterre+et+au+Canada+»,+pp.+170-195

Type in the content of your page here.

Codification of Civil Law in Quebec : Evolution of private law from 1774-1857, why decision to codify was greeted with enthusiasm. 1774: Quebec Act; civil & property rights= French Law applied. Some local laws added after this. 1804: Napoleonic Code in France some discrepancies with Quebec law. This code was, however, thereafter cited in Quebec courts. 1857: accumulation of disparate law à codification 1831: debate about revision of laws of Lower Canada. Some wanted to include private law of New France. Nothing came of these talks. 1840: Act of Union : numerous reforms occurred. 1861: text of each statute incorporated all amendments made since enactment. 1857: Legislature decided Civil Code and Code of Civil Procedure should contain same amount of detail on particular subjects as French Codes. Code as a “comprehensive body of practical rules of law, expressed in language pure, concise, unambiguous.”(Ritchie) à Jurists did not comment, however, on jurisprudence. Acknowledgement that problems of interpretation may later arise [assumption that legislature would eliminate them]. *Rules of common law on colonial legal systems did not favor English criminal law. *tendency by 20th century scholars to rely on concepts that did not exist in the 18th century to understand reception of law. Conquest vs. Settlement. *For Christians, CML held that local laws & customs remained in force until their modification by the conqueror. Acadia as first conquered colony: ceded to Great Britain by Treaty of Utrecht. Justice was dispensed here by a British governor. Situation with criminal law less clear; pre-established rules to be followed where death or penalties were imposed. Not enough people for a jury: //informal// readings of offences as a result. à 1749, Nova Scotia, British CML law applied by courts. Statutes however did not apply to colonies already in existence at time of their adoption. Exceptions to the rule of statutes created uncertainty for criminal law, so that judges decided application on a case by case basis. 1758 Nova Scotia adopted a series of criminal law statutes. Newfoundland and Ontario set their own reception dates in the 19th century; other provinces [not Quebec ] followed suit. *post conquest, military courts were established. CML not applied, until specified in proclamation 1763. Automatic application of criminal law was not taken for granted at the time; idea that although military law had applied for 3 years, French criminal law needed to be repealed. *Competing idea that criminal law of a Christian people did not change after conquest. 1766: Attorney General wondered what a judge would do if an act considered criminal in Great Britain was lawful by the Laws of Canada. à In early 19th century, some British colonies did keep rules of French criminal law post-conquest. *In Quebec, French criminal law ceased to apply post-1760. 1766-1774: talk of restoring in part French criminal law. Abandoned; sense that some punishments were excessively cruel; idea of King’s unilateral discretion. [People of New France barely been exposed to the torture of French criminal law; few comparisons glorifying English law.] *Proceedings and trials conducted in English; Francophones brought far fewer charges than Anglophones. à Nonetheless, no basis for asserting that English Criminal law was milder than French Criminal law. *Still difficult to determine whether statute that predated date of reception could be applied to colonial context. Certain statutes [habeus corpus] not received. 1774-1837: Legislators had minimal interest in criminal law. 1836: right to be represented by a lawyer [those who had committed a felony]; but English statute of 1731 requiring use of English in all proceedings remained in force. *In terms of CML, little was done to make this more accessible to Francophones. Creation of ‘barbarisms’ borrowed from English. - Francophones upheld a favorable view of British penal law [probably had to do with the Reign of Terror in France ]. 1840: Act of Union. Shared criminal law. 1841: legislature enacted certain statutes that had already been introduced in Upper Canada. 1869: Federal Parliament enacted first statutes re: criminal law. [John A. MacDonald: uniform criminal law= stronger Canadian identity]. 1850s: law reporters more interested in criminal law cases. To understand state of law pre-codification (1892), see criminal cases published in Quebec and those reported in SCR. Observations: *majority of cases in English [2/38 cases= in French], 1859-1867 1867-1876: 1/17 cases in French Francophone judges contributed to under-representation. [Fournier expressed himself in French]. *Attitude toward CML: one judge expressed frustration at the absence of precedents, and articulated his preference for “principles”. *Some judges attach more importance to English decisions. [refusal by judges to admit that their jurisprudence might depart from England ’s]. *Attitude toward foreign jurisprudence [i.e. American]= negative. *In one particular case, 2 justices relied on principles of civil law; another applied English law to dismiss the action. [No mention of French criminal code]. à //Remedies// as a source of consternation: if a felony had been committed, new trial could not be ordered. CML allowed certain questions to be answered: *naming [one name of two identified could be proven, and this would suffice]; in rape cases, right to question plaintiff about sexual relationships was indisputable. First Plans: 1769, discussion about codification. 1847: anonymous author called for codification of Code of Lower Canada. Mention of criminal law here, though this may have referred to a series of statutes. 1850: William Badgley submitted a bill for codification of criminal law, draft code of procedure. Re-submitted in 1851. Committee suggested that bills be revised by government-appointed experts. No committee was ever formed to study these bills, however. à Debates of 1851, Maximillian Bibaud, Montreal ; had “progressive” {relatively} opinions on women’s status as defined through criminal law, and on the punishment for drunkenness. Bibaud favored a code of the civil law type. *Movement in US in favor of codification. Some jurists of Upper Canada were familiar with this initiative [the “ New York initiative”]. Opposing sentiments that codification was dangerous, could create more obscurity. No discussion of codification of criminal law in law books pre-1892. *Arguments existed both in favor of, and against codification. Gowan was one of the drafters of the Code. During codification, only one of ten employees at the DOJ was francophone. New Code defined crimes & offenses dealt with by way of summary conviction proceedings. __Unlike English drafts, Canadian code contained no provision repealing rules of CML: preserved those that provided defense, justification, or excuse__. Justice Taschereau published a letter of criticism to minister of justice re: new code. Primary complaint= incompleteness. Taschereau deplored absence of certain fundamental rules in criminal law. Others defended incompleteness of Code in response. *Even after code came into force, CML continued to play a critical role in Canadian criminal law. 1950, SCC ruled that only Parliament could “create new crimes” as opposed to those already recognized by common law. *Rules of CML that constituted defense remained in tact; defense: controversy with the term. [Is it a defense each time the accused can argue that particular sections are negated by evidence; or necessary to rely on a rule separate and distinct from these requirements]. *see Jobidon case: majority: Gonthier; minority: Sopinka. *Case sheds light on role of statutes in a common law system. Code can always be supplemented with Common Law. In CVL, code can be considered an application of broader principles to which judges can give effect when no provision clearly applies. __Jobidon is at a crossroads__. à Different notions of codification à transformation of CML into legislative provisions vs. enunciation and improvement of rules. *Supreme Court has addressed rule of common law that allows courts to punish criminal contempt. Refusal to comply, or public defiance: this is also a civil issue. Cases involving contempt at SCC level have led to conclusion that the absence of codification alone is not fatal. [Here is a great quote: “Were his embalmed body not being well-cared for in London ’s University College, Jeremy Bentham would have turned in his grave.”] *Court’s finding is justified by 11g of the Charter. An offense may derive solely from the Common Law. à Criminal contempt, neither “vague nor arbitrary”. Criminal Code= a collection of principles whose scope the common law may modulate according to the circumstances, as jurisprudence is able to do in a system of codified law. *phraseology of text is disparaged. Law Reform Commission of Canada has prepared a draft of a re-codified document. *Idea of definition of defenses causes disconcerting reactions. This is risky. But it is beneficial to codify defenses recognized in jurisprudence. *Main users of codes: jurists, law enforcement officials. It must be readable. *perceptions of codification depend on context.
 * Morin: Canadian Experience of Codification **
 * Causes ** :
 * Revision of Statues, Codification ** :
 * Post-Codification of 1865 **
 * In Quebec CVL, jurists criticize method of interpretation used by judges called to apply CCLC. Argued that code was treated as an “ordinary statute”. Post-1970, civil law jurisprudence has been favorably received.
 * Quebec jurisprudence gives effect to principles that were absent in 1866 code: unjust enrichment, good faith, abuse of rights. [Gives weight to idea that civil law jurisprudence is not crippled by Code]
 * English Criminal Law ** :
 * Rules of Reception, 18th century ** :
 * Reception of English law Post-Conquest 1760**
 * Evolution of Penal Law, 1774-1892
 * ** S. 11 of Quebec Act allowed Legislative Council to amend rules of English Criminal Law. Wording seemed to refer to rules in force in 1764, but s. 4 repealed Royal Proclamation and ordinances made under its authority. It could be said thus that Quebec Act, 1774, introduced English Law.
 * Criminal Jurisprudence: 1851-1891 **
 * Codification, 1892: **
 * Pre-1892 Perception of Codification ** :
 * Adoption of Code, 1892 ** :
 * Code repeated many provisions of Canadian legislation. Francophones rarely intervened in codification process. Justification of Bill proposed by Ministers= vaunting merits of work done in England by authors of bills 1878-1880, underlining efforts to eliminate obscurities and technicalities.
 * Liberal Opposition generally approved of codification. Shorter debates in Senate. Following Senate approval, leader of opposition argued that Code would replace common law and “wisdom and experience” of centuries would be discarded.
 * In general, codification occurred without in depth discussion in newspapers- i.e with indifference.
 * __ 1892-Present: __**
 * b) Toward a Recodification of Canadian Criminal Law: **
 * Conclusions: **