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I have often heard that the state of Louisiana and the province of Quebec have systems of civil law rather than common law, and that the major difference is that in the latter system there are binding precedents.

However, although provincial legislatures in Canada have broad authority over matters of contracts, torts, property, and other things, all criminal law in Canada is federal. Thus the jurisdiction within which a criminal trial in Quebec takes place is not Quebec, but Canada.

In the U.S.A. the overwhelming majority of lawsuits involve state laws and not federal laws, and criminal codes differ from state to state. Thus presumably most criminal cases and civil lawsuits in Louisiana are in state courts and take place in a civil law jurisdiction. But cases involving federal laws in Louisiana take place in federal courts, and then the jurisdiction is the U.S.A. rather than the state of Louisiana.

So I'm wondering whether binding precedents apply when the jurisdiction is the country as a whole rather than the state or the province? (I presume the answers in those two places could be very different from each other, yet there is this thing they have in common.)

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  • All criminal cases in the US, being tried in federal or state court, "involve federal law" to the extent that the criminal law defining the crime and the details of the law's application to the case being tried must be consistent with the US constitution (and other applicable federal law, if there is any). Conversely, federal courts routinely consider questions of state law, for example when there are state law claims in a civil suit that also includes federal claims. It's not the case that a court can only rule on the laws of the jurisdiction that has constituted the court.
    – phoog
    Feb 28 at 10:57
  • @phoog : Proceedings in state courts must not run afoul of the federal constitution, but the issues about which the parties disagree would usually be about state laws. Did the defendant commit the murder? (With unusual exceptions) it is a law of the particular state, rather than a federal law, that would be violated by a murder. And as for state laws being involved in proceedings in federal courts, that certainly happens when the court hears the case because of its "diversity jurisdiction", i.e. the plaintiff and defendant are from two different states. Feb 29 at 4:26

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Provinces and provincial courts play a significant role in the administration of criminal law

In Canada, criminal law is federal only in the sense that it is the federal Parliament that has the exclusive jurisdiction to legislate in relation to criminal law, including procedure (s. 91(27) of the Constitution Act, 1867).

That does not mean that prosecutions happen "federally" or in "federal" jurisdiction.

To the contrary, the constitution has assigned to the provinces:

The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.

And the federal Criminal Code dictates that prosecutions generally happen at the direction of provincial prosecutors (Criminal Code, ss. 2 (definition of Attorney General) and 2.3). These prosecutions happen in provincial courts of criminal jurisdiction (with provincially appointed judges) in each province, as well as in the superior courts of each province (with federally appointed judges).

The principles of stare decisis operate normally in criminal law in Quebec

The Supreme Court of Canada has confirmed that the adjudication of criminal matters is not some sort of "federal" jurisdiction of the courts. The force of stare decisis from a superior court of one province (including Quebec) operates only within that province — courts of one province are not bound by decisions of courts of another province (R. v. Sullivan, 2022 SCC 19). The Supreme Court of Canada also recognized that this could result in non-uniform treatment of the criminal law between provinces until an appeal to the Supreme Court of Canada resolves the differences (ibid.).

Summary: Quebec is like all other provinces with respect to criminal law

In Quebec, as in every province or territory, criminal prosecutions are prosecutions of federally-defined criminal offences, following federally defined procedure, with holdings only binding within the province. Quebec is also no different than any other province in that the judgments of its courts and the superior courts within Quebec are ultimately reviewable by the Supreme Court of Canada. When the Supreme Court of Canada makes judgments about criminal law, this binds courts in Quebec and the country through the ordinary principle of vertical stare decisis. This unified nature of Canada's superior courts ensures national unity and the rule of law.

Another bit of context is that Quebec generally follows common law principles in the domain of public law (which includes criminal law) anyway.

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  • So you say that stare decisis binds courts in Quebec when the Supreme Court of Canada has decided something. But does it also apply when a judge in a criminal trial in Quebec decides something? Feb 29 at 4:37
  • BEGIN QUOTE Quebec generally follows common law principles in the domain of public law END QUOTE As I understand it, tort, contracts, and property, and maybe some other things, involve what is called "private law" rather than "public law". But what about criminal law? Is that part of what you consider "public law"? Does that mean Quebec normally follows common law principles in criminal law? All I've heard so far is that in contrast to other provinces and territories of Canada, Quebec is a civil law jurisdiction. Feb 29 at 4:47
  • BEGIN QUOTE The force of stare decisis from a superior court of one province operates only within the province — courts of one province are not bound by decisions of courts of another province END QUOTE This is analogous to the fact that the force of stare decisis in a county or judicial district (depending on which state you're in) in the U.S.A. operates on the in the county/judicial district/whatever and courts in other places within the state are not bound by it. Feb 29 at 4:50
  • BEGIN QUOTE To the contrary, the constitution has assigned to the provinces: The Administration of Justice in the Province, END QUOTE ... BEGIN QUOTE prosecutions generally happen at the direction of provincial prosecutors [...] These prosecutions happen in provincial courts of criminal jurisdiction in each province, as well as in the superior courts of each province. END QUOTE And yet the judges of superior courts that have been brought into existence by provincial legislatures are nonetheless federally appointed. Feb 29 at 4:54

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