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FOCUS - Reflective Judiciary N. 5 - 09/11/2018

 In Judiciary We Trust. The Reflective Judiciary in Canada

The study of the Canadian legal system has always awakened legal scholars’ interests, both in the field of public and private law, for its significant peculiarities which appear at the institutional, political, social and economic level. Canada has a federal organisation and  two legal systems coexist in its institutional framework: civil law, and common law; likewise, there are two official languages: French and English. Despite being an independent state with its own flag and its own constitutional system, the British monarch continues to be the Head of the State and the Queen is portrayed on Canadian dollars.  From an economic perspective, there is a strong divergence between the Western Provinces, strongly exploiting natural resources, and the Eastern ones – specifically Ontario and Quebec – with a strong industrial vocation. It is necessary to add some further remarks, symptomatic of the Canadian “duality”: first,  Aboriginal communities, occupying the territory before the arrival of European colonists, were recognized the status of Founding Peoples; second,  the population is conspicuously composed of people who migrated in Canada more recently. The choice of a federal asset is linked to the idea of keeping the Provinces autonomous, in order to limit the trend of decentralization resulting in the problematic coexistence of former French colonies and the Anglophone Dominion. The former French colonies are characterized by a civil law system, French as a common language and catholic religion, often invoked for nationalist  purposes; whereas the Anglophone Dominion is characterized by a system of common law, English as a common language, and Protestant origins. The causes of this coexistence depend on  historical reasons: a part of the Canadian territory which was colonized by the French, has been surrendered to the British Crown with the Treaty of Paris in 1763. The attempt to anglicise those territories (i.e. The Provinces of Quebec and New Brunswick) immediately failed. Consequently   the British Crown accepted and recognised the civil law system through the Quebec Act of 1774. This Act provided that the former could regulate civil and property rights according to civil law, while they had to conform to, the common law system for criminal law and all other matters. Keeping the former civil law system implies using the language related to that system. With the approval of 1774 Act, a process of biculturalism and bijuralism was triggered. Such dualism would strongly influence the Canadian legal asset. Accepting two Founding Peoples and being aware of the impossibility to reduce to a one-single-reality the dualistic legal nature Canadian political establishment to allow Provinces to regulate relationships between individual, as well as to let Quebec to adopt civil law. This was officialised by the British North America Act (BNA) of 1867, which would give birth to the Dominion… (continues)

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