The Quebec elections usher in a potentially interesting period for the Supreme Court of Canada. Pauline Marios, Quebec’s Premier elect reaffirmed her party’s commitment to pursuing independence for the French-speaking province of Canada, in her victory speech. Quebec legal jurisdiction is unique amongst the Canadian states in that they have a civil law system. Should the new government’s ambitions of independence be achieved, the question arises as to what will happen to the Supreme Court of Canada’s status as the final court of appeal for Quebec?
Before finally being established as the final court of appeal for the commonwealth of Canada in 1949, the debate to delink from the Judicial Committee of the Privy Council had been going on since before the first recorded attempt to delink in 1875. At that time the argument was made persuasively by many in the Quebec legal community that breaking away from the JCPC would be bad for development of the Quebec Civil Code. There was a real fear that the new court would attempt to assimilate the code.
While the final decision to abolish appeals to the JCPC had more to do with economics, and the failure of the JCPC to respond to aftermath of the ‘Great Depression’ appropriately, by that time the consensus view was very much that the JCPC was giving precedence to the common law to the detriment of the civil code. Sensitive to the need to properly address Quebec’s concerns, the court was constituted to comprise of nine judges, at least three of which were to be from Quebec.
Will independence for Quebec necessarily equate to independence from the Supreme Court? If that were to occur, the outcome would certainly be monitored closely outside of North America. The Caribbean Court of Justice, constituted in 2005 inter alia to be the final court of appeal for the region has to date looked to the Supreme Court of Canada as being a beacon of success as a hybrid Court. As well as Haiti and Suriname in the Caribbean region having (dutch) civil law systems, Guyana and St. Lucia both have hybrid common law – civil law systems. The breaking up of the jurisdiction of the Supreme Court of Canada would definitely come as a blow to those proponents of the Caribbean Court of Justice’s ability to fulfil the appeals role for the entire Caribbean region.
Even if Quebec should become independent, it is clear that it would never become a ‘small jurisdiction’. The population of Quebec is almost 7 million. The Court of Appeal consists of 20 justices, with some 290 judges staffing the lower courts. Never the less as a potential soon to become independent jurisdiction, it is worth watching closely to see if there are any lessons that can be learnt by those concerned with small jurisdictions, in particular in the Caribbean region.
Original posted: http://www.sjs.brookes.ac.uk/blog/2012/09/18/changing-jursidictions-will-quebec-become-the-latest-small-jurisdiction/