Isabella Carter
Section 98 of the Constitution Act, originally known as the British North America Act, 1867, was added in 1867 and has not been amended since. It is a provision of the Constitution of Canada that establishes the qualifications for judges of provincial superior, district, and county courts in Quebec. This section, found in Part VII of the Constitution Act, ensures that Quebec's courts have judges knowledgeable about the province's civil law, which differs from the common law used in other provinces.
| Characteristics | Values |
|---|---|
| Name | Section 98 of the Constitution Act, 1867 |
| Other Names | article 98 de la Loi constitutionnelle de 1867 |
| Area | Part VII of the Constitution Act, 1867 |
| Topic | Judicature |
| Purpose | Ensuring that the courts of each province have judges who are knowledgeable about the law of their province |
| Application | Only to Quebec, as Quebec law is based on civil law, unlike other provinces, which use common law |
| Amendment Status | Not amended since the Act was enacted in 1867 |
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What You'll Learn
Part VII of the Constitution Act, 1867
The Constitution Act, 1867, originally enacted as the British North America Act, 1867 (BNA Act), is a major part of the Constitution of Canada. The Act, which came into force on 1 July 1867, created a federal dominion and outlines the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system.
Section 98 of the Constitution Act, 1867, is found in Part VII, which deals with the judicature. It outlines the qualifications for judges of the provincial superior, district, and county courts in the province of Quebec. Specifically, it ensures that the courts of each province have judges knowledgeable about the law of their province. This provision is specific to Quebec because Quebec law is based on civil law, unlike other provinces, which use common law. Thus, it ensures that Quebec court judges are trained and experienced in civil law as members of the Quebec Bar. Notably, Section 98 has remained unchanged since its enactment in 1867.
The Constitution Act, 1867, also addresses the pre-union constitutions of the provinces, extending them into the post-Confederation era. It outlines the powers of the federal government and the provinces, with Sections 91 and 92 being particularly significant in enumerating the subjects for which each jurisdiction can enact laws. The Act further establishes a fiscal union, with the federal government responsible for the debts of the provinces (Sections 111-116).
Additionally, the Act provides for the eventual admission of other parts of British North America into the union, demonstrating its forward-thinking nature. The provinces of Canada, Nova Scotia, and New Brunswick expressed their desire to unite under the Crown of the United Kingdom, with a constitution similar to that of the United Kingdom. This union was believed to promote the welfare of the provinces and the interests of the British Empire.
The Constitution Act, 1867, has been amended several times since its enactment, with the latest amendments occurring in 1982. These amendments included the addition of Section 92A, granting provinces greater control over non-renewable natural resources. The Act continues to serve as the foundational statute for the Constitution of Canada and is recognised as part of the country's supreme law.
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Qualifications for Quebec's provincial superior court judges
Section 98 of the Constitution Act, 1867, outlines the qualifications for judges of the provincial superior, district, and county courts in Quebec. This provision ensures that Quebec's court judges are well-versed in the province's civil law. Here are the qualifications for Quebec's provincial superior court judges:
The qualifications for judges in Quebec's provincial superior courts are outlined in the Constitution Act, 1867, and through various criteria set out in the Act to assess a candidate's application. Here are the key qualifications:
- Legal Knowledge and Experience: Candidates must possess a deep knowledge of Canadian law, with a focus on Quebec's civil law tradition. They should have specialized legal training and study, professional practice experience, and/or prior judicial experience.
- Impartiality and Open-Mindedness: Judges must demonstrate the ability to maintain an open mind and impartiality when handling cases. They are expected to weigh the evidence and arguments fairly, setting aside any prior personal opinions when rendering a decision.
- Communication Skills: Judges should be proficient in both English and French, as they may need to understand oral arguments and written materials in either language. Proficiency in both languages ensures effective communication with counsel and other judges.
- Professional Competencies: The selection committee assesses candidates based on their professional competencies, integrity, level-headedness, quality of expression, and level of awareness of social realities.
- Experience Requirement: According to the Court of Québec, only lawyers or notaries who have practised their profession for at least ten years may apply for a position as a judge.
- Appointment Process: The selection process for judges in Quebec involves a rigorous assessment by a committee, including the Chief Judge of the Court of Québec or a designated judge. The committee reviews applications, conducts interviews, and proposes the best candidates to the Minister of Justice, who makes the final appointment decision.
These qualifications and the selection process ensure that Quebec's provincial superior court judges possess the necessary legal knowledge, experience, and impartiality to effectively serve in their roles and uphold the province's unique legal traditions.
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Qualifications for Quebec's district court judges
Section 98 of the Constitution Act, 1867, outlines the qualifications for judges of the provincial superior, district, and county courts in Quebec. This provision of the Constitution of Canada ensures that Quebec's court judges are knowledgeable about the province's civil law.
Quebec's district court judges are required to possess a deep knowledge of the law, specifically Canadian law, and ideally, knowledge of indigenous legal traditions. This legal expertise may be acquired through specialised legal training and study, professional practice, authoritative or scholarly legal writing, and/or prior judicial experience.
Prior experience in adjudication is considered beneficial but is not mandatory. However, candidates must demonstrate excellence in judging and the ability to interpret and apply governing statutes and rules in a variety of proceedings, including hearings, motions, and appeals.
To be eligible for a position, candidates must be lawyers or notaries who have practised their profession for at least ten years. The selection process is rigorous and involves a committee of five people, including the Chief Judge of the Court of Quebec or a designated judge. The committee reviews applications, conducts interviews, and proposes the three best candidates to the Minister of Justice, who makes the final appointment decision.
The criteria for Quebec's district court judges aim to ensure that they possess the necessary legal expertise, professionalism, integrity, level-headedness, and awareness of social realities to effectively serve in their roles.
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Qualifications for Quebec's county court judges
Section 98 of the Constitution Act, 1867, outlines the qualifications for judges of the provincial superior, district, and county courts in Quebec. This provision ensures that Quebec's court judges are trained and experienced in civil law, as members of the Quebec Bar.
The qualifications for judges in Quebec's county courts are outlined in the Constitution Act, 1867, and subsequent legislation and regulations. Here are some of the key qualifications and requirements for these judicial positions:
- Legal Knowledge and Experience: County court judges in Quebec must possess a deep knowledge of the law, with a focus on civil law, as it is the legal system followed in the province. They must be trained and experienced lawyers or notaries, with a minimum of ten years of professional practice. This legal expertise can be acquired through specialized legal education, scholarly legal writing, and prior judicial experience, including in administrative tribunals, arbitration bodies, or lower courts.
- Adjudication Skills: As county court judges are responsible for adjudicating legal disputes, they must demonstrate the ability to interpret and apply the governing statutes and rules. They need to possess strong decision-making skills, providing sound and well-reasoned judgments that serve as precedents for future cases.
- Integrity and Impartiality: Judicial officers in Quebec's county courts must uphold the highest standards of integrity and impartiality. They should exhibit level-headedness, professionalism, and an awareness of social realities to ensure fair and unbiased rulings.
- Language Proficiency: Judges in Quebec's county courts should be proficient in the official languages of English and French. They must be able to understand and communicate effectively in both languages, including reading legal materials and engaging in discussions with counsel and other judges.
- Residency Requirements: While not specific to county courts, judges appointed to the Supreme Court of Canada, which includes representation from Quebec, must reside in the National Capital Region or within 40 kilometres of it.
- Selection Process: The selection process for Quebec's county court judges involves a rigorous evaluation by a committee. This committee consists of five members, including the Chief Judge of the Court of Quebec or a designated judge, a member chosen by the Bâtonnier du Québec, and a notary or law professor designated by the president of the Chambre des notaires du Québec. After reviewing applications and conducting interviews, the committee proposes a shortlist of candidates to the Minister of Justice, who makes the final recommendation to Cabinet.
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Quebec's civil law
Quebec's legal system was established when New France was founded in 1663. In 1664, Louis XIV decreed in the charter creating the French East India Company that French colonial law would primarily be based on the Custom of Paris, the variant of civil law in force in the Paris region. Justice was administered according to the "Code Louis", which included the 1667 ordinance on civil procedure and the 1670 ordinance on criminal procedure.
In 1763, France ceded sovereignty over Quebec to Britain in the Treaty of Paris, marking a shift in the legal landscape. The Royal Proclamation provided that all courts in Quebec were to decide matters according to "Law and Equity" and as near as possible to the Laws of England. This proclamation displaced the Paris customary law and introduced elements of English common law.
The Quebec Act, specifically Section VIII, played a significant role in preserving the province's civil law traditions. It provided that disputes relating to "Property and Civil Rights" were to be decided by the former law of Quebec. This provision was later carried forward as Section 92(13) of the British North America Act, 1867, granting Quebec and other provinces the power to legislate on private law matters.
The Civil Code of Quebec (CCQ), which came into effect on January 1, 1994, is the current civil code in force in the province. It serves as the foundation of Quebec's legal system, governing persons, relationships between persons, and property matters. The Code is frequently amended to remain aligned with modern societal demands. It is inspired by various sources, including the French Code Napoléon (Napoleonic Code), the Louisiana Civil Code, and the Civil Code of the Canton of Vaud (1819).
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Frequently asked questions
Section 98 was added to the Constitution in 1867.
Section 98 of the Constitution Act, 1867, deals with the qualifications for judges of the provincial superior, district, and county courts in Quebec.
Quebec law is based on civil law, while other provinces follow common law. Thus, Section 98 ensures that Quebec court judges are trained and experienced in civil law.
No, Section 98 has remained unchanged since it was enacted in 1867.
The Constitution Act, originally known as the British North America Act, 1867, established Canada and serves as the country's foundational statute, outlining its constitutional framework.
