QUID NOVI
Vol 43 No 11 8 Feb 2022
NCDH 305 - 3644 Peel Montréal, Québec H2A 1X1
quid.law@mcgill.ca @quidnovi.mcgill
McGill University Faculty of Law Faculté de droit de l’Université McGill
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EDITOR-IN-CHIEF RÉDACTEUR EN CHEF Mark Townsend ART DIRECTOR DIRECTRICE ARTISTIQUE Hanna Rioseco LAYOUT EDITOR ÉDITEUR DE MISE EN PAGE Luther Mourinet COPY EDITORS SECRÉTAIRES DE RÉDACTION Maïmouna Diallo Nathan Leung Roxanada Mirzac COLOUMNISTS CHRONIQUEURES ET CHRONIQUEUSES Sara Alarcon Carrillo Nicolas Kamran Anna McAllister Mario Michas CONTRIBUTORS TO THIS ISSUE COLLABORATEURS ET COLLABORATRICES Shi Tao Zhang
Special thanks to Prairie Koo for designing the layout. ~ The Quid Novi is published weekly by the students of the Faculty of Law at McGill University. Production is made possible through the direct support of students. All contents copyright © 2021 Quid Novi.
Les opinions exprimées sont propres aux auteurs et ne réflètent pas nécessairement celles de l’équipe du Quid Novi. The content of this publication does not necessarily reflect the views of the McGill Law Students’ Association or of McGill University. Envoyez vos commentaires ou articles avant jeudi 17h00 à quid.law@mcgill.ca. Toute contribution doit indiquer le nom de l’auteur, son année d’étude ainsi qu’un titre et un sous -titre pour l’article. Les images doivent être soumises séparément. L’article ne sera publié qu’à la discrétion du comité de rédaction, qui basera sa décision sur la politique de rédaction disponible sur notre Facebook @quidnovi.mcgill.
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QUID NOVI
CETTE SEMAINE...
INSIGHTS
COMMUNAUTÉ
5 | THE COMPLICATED
2 | LETTER FROM THE EDITOR
HUMANITY OF KINDNESS Lessons from my grandmother
6 | A GIRL’S GUIDE TO MARRIAGE
7 | A TRIP DOWN MEMORY
LANE THROUGH THE QUID NOVI ARCHIVES The colloquial conversational community
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Vol 43 No 11 8 Feb 2022
EVENTS
3 | FROM THE GELBER
PSA: The library may have your course textbook on reserve
4 | MEET THE TEAM
Luther Mourinet, layout editor
8 | BIG NAMES IN THE CIVIL LAW An overview of Justice Mignault’s civilian thought
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Vol 43 ● No 11
LETTER FROM THE EDITOR Mark Townsend| 3L
What is the Quid? Founded at the Faculty of Law in 1981, the Quid Novi is a weekly journal that is run by the students and for the students. The Quid is meant to serve as a platform and creative outlet for all law students to articulate their ideas, comments, and opinions – legal and non-legal alike. Can I send in a submission if I’m not a columnist? Absolutely! The success of the Quid relies on you, the student body, sharing your thoughts. I’d strongly encourage each one of you to submit at least one piece to the Quid before you leave the Faculty. What types of submissions do you accept? One of the most unique things about the Quid is that it does not have specific criteria for the style or content of submissions. In the past, we’ve had submissions in the form of poems, articles, short stories, cartoons, announcements, lyrics, photographs, and the list goes on. Whether you want your submission to be serious, controversial, or comical – the freedom lies with you! Do you still accept “overheards”? We do! Did you overhear something funny or bizarre on campus? Did your professor say something funny that’s too good to keep to yourself? Do you have an interesting anecdote? Share it with the Quid! How do I submit an article? You can send your submissions to quid.law@mcgill.ca by 5:00 p.m. every Thursday in order to be featured in the following week’s issue. Is the Quid available only online?
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The rumours are true, the Quid has officially moved to an online-only platform. However, the Quid team is working hard to get a website up and running that will hopefully be more reader-friendly than our current PDF format. How often does the Quid publish a new issue? A new issue is released every week, on Tuesday morning. Where can I find the latest Quid issue? You can follow us on our Facebook page Quid Novi – Droit McGill Law to stay up to date with the latest Quid Novi issue or keep an eye out for the Quid in the LSA’s The Brief email that is sent out each week. We will also be launching an Instagram account in the coming weeks.
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FROM THE GELBER PSA: The library may have your course textbook on reserve Sara Alarcon Carrillo | 2L
Course Reserves are one of the many hidden gems at the Nahum Gelber library. You may be asking, what is a course reserve? How do I access them? Fear not, this column will explain. Course reserves are materials for specific courses, held on “on reserve” by the library for students to borrow for 3 hours. You read that right. You may not have to purchase that $200 textbook after all. TIP: if you borrow a reserve book after 3:00 pm you can keep the textbook until 10 am the next day! On Fridays, when you borrow a reserve, again after 3:00 pm, you get to keep it during the weekend and it’s only due on Monday before 10:00 am. Katerina Daniels wrote a fantastic column on this in 2019 (you can find it in Quid Novi Vol 41 No 3). However, the library website has been updated since Katerina’s column and so if you are searching for a “course reserves” tab, you will be at a loss. Therefore, this column will serve as timely updated guide on accessing course reserves. For those of you who haven’t gotten around to finding a textbook this semester, this one is for you. Let’s say you are in Professor Narain’s Constitutional Law class. You require the book Canadian constitutional law by Patrick Macklem et al. Additionally, you have noticed that you often read pieces by Peter W Hogg. You are intrigued by this author. You want more information, more readings. But where to look? Below are the steps to find reserved materials in Course Reserves. 1. Access the McGill library website at www.mcgill.ca/ library/ (if you have not bookmarked this page, and more specifically the Law Subject Guide, you should) 2. Here is the tricky part: Course Reserves are found under the “Course readings” tab. Why the name change and who decided it, we will never know.
3. At the Course reserves & readings page, select “Search course reserves.” 4. Search the name of the professor or course you are looking for, in this case, Narain.
5. When you click on the course, you will find that the library has available “Canadian constitutional law” on reserve! Additionally, there are textbooks by Peter H Hogg and Jeremy H A Webber that you know you will want to check out. 6. IMPORTANT: material available online will be easily accessible via the “View eBook” link (See e.g. Legal traditions of the world: sustainable diversity in law by H Patrick Glenn, used in Foundations with Professor Crépeau). However, hard copies of textbooks will require you to ask at the library circulation desk for help accessing the text. You must bring the book’s call number with you. A call number is essentially the coordinates of a textbook in the library, an alphanumeric code found on the spine of a book that tells you the book’s location. It can be found on the course reserve website, as seen in the picture. For example, the call number for the Canadian constitutional law book is KE4219 C35 2017. Write this number down and ask your friendly Nahum neighbourhood librarian for help.
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Vol 43 ● No 11 Below is a full list of the 23 courses the Faculty of Law has available for Course Reserves in Winter 2022: Course ASPL 614 Airline Business and Law CMPL 501 Jurisprudence I CMPL 513 Talmudic Law CMPL 573 Civil Liberties LAW Law Library Reserves LAWG 100 Contractual Obligations LAWG 101 Extra-Contractual Obligations/Torts LAWG 200 Commercial Law LAWG 316 Private International Law LAWG 400 Secured Transactions LAWG 504 Death and Property LAWG 507 Critical Race Theory LAWG 517 Islamic Law LAWG 531 Arbitration and the Courts LAWG 562 Regulating Artificial Intelligence LAWG 582 Disability Law and Policy LAWG 625 Legal Education Seminar LEEL 369 Labour Law PRV4 548 Administration Property of Another and Trusts PUB2 101 Constitutional Law PUB2 101 Constitutional Law PUB2 500 Law and Psychiatry PUB3 116 Foundations
Instructor(s) George Petsikas Evan Fox-Decent Michael Whitman Pearl Eliadis Includes the Criminal Code, Code of Civil procedure, Civil Code of Quebec and many more! Fabien Gélinas, Omar Farahat, Helge Dedek Richard Janda , Shauna Van Praagh, Jaye Ellis Jeffrey Edwards Catherine Walsh Catherine Walsh Michael McAuley Sarah Riley Case Omar Farahat Andrea Bjorklund Peer Zumbansen Jonas-Sébastien Beaudry Shauna Van Praagh Adelle Blackett Marilyn Piccini Roy Johanne Poirier Vrinda Narain Derek Jones François Crépeau
MEET THE TEAM Luther Mourinet |1L
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Layout editor
What drew you to the Quid? I used to do multi-media art in high school and really enjoyed it. Once I saw the Quid was looking for someone to do the layout, I felt like it would be a fun to get back into it.
science. Après un an en science de la santé, j’ai compris que les sciences humaines et le droit m’intéressaient et me rejoignaient beaucoup plus. La profession d’avocat a toujours été dans mes choix de carrières, donc me voici!
What did you do before McGill Law? J’ai fait un DEC en sciences humaines profil individus avec mathématiques au Cégep Collège de Maisonneuve.
Qu’aimes-tu faire quand tu n’étudies pas ? I like to play volleyball especially with the mcgill law volleyball society (go follow them on IG @volleyball.lawmcgill )
Quel était ton cours préféré avant de commencer à la faculté de droit? I really enjoyed my French literature and philosophy classes. Where are you from / where have you lived? Je suis né à Montréal, mais j’ai grandi à Laval. Cependant, mes deux parents sont originaires de la France. 4
Was law school a dream come true or a happy accident? Do you want to be a lawyer? J’ai toujours eu un intérêt pour le droit, mais en arrivant au cégep je visais une carrière plus en
As-tu un quartier préféré à Montréal? J’adore le Plateau, mais rien ne peut battre le vue duVieux-Port. Où aimerais-tu travailler dans cinq ans? I would like to work in a big law firm in New York (fingers cross) maybe in IP litigation but it’s still early to say for sure.
THE COMPLICATED HUMANITY OF KINDNESS Lessons from my grandmother Nicolas Kamran | 2L
My grandmother never met a cashier she did not find interesting or worthy of her consideration: “Hello! You are so beautiful. Nico, look! They are so beautiful. Oh, my god (gasp). Thank you.” My grandmother believed that people were special. And she was intent on making sure they knew. I do not think it ever occurred to her that this was not something people usually say or do. I am unsure she ever fully grasped how she made others feel. I miss her terribly. And the more time goes on, the more I feel that I never truly understood how she lived. My grandmother was, for lack of a better word, a pushover. Her tendency to see the best in people usually meant that people got the best of her, in all senses of the expression. She placed faith and trust in all she met and more often than not, they took advantage of that. People routinely stole from her, bullied her, undermined her. She was an elderly foreigner in a place that cares for neither. She let her heart burn with loving kindness for all who crossed her path. And she got burned. As one could imagine, I found this state of affairs deeply frustrating. To see any vulnerable person denied their dignity is enraging enough; to see your own grandmother be exploited is enough to set the world on fire. And I was ready to do just that. My early teens saw me reach the age at which I knew I could fight people, without the maturity to know how stupid that was. Puffing my chest, I would routinely assure my grandmother that I was ready to beat down any and all who would disrespect her in the slightest. She would laugh. She knew I was serious. She laughed harder. My late teens saw me reach the age at which I knew fighting was no longer an option. With my fists, at least. By then, I was no longer a rough-and-tumble teenage boy. I had become a motormouthed young adult. I traded the headlock for the headnote, the punch in the face for the point of order. With my newfound verbal and intellectual capacities, coupled with the sense of superiority that only debate clubs can provide, I was ready to defend my grandmother against all comers. By all comers, I really only had one person in mind: the owner of the apartment building in which she lived. For years, he had refused to repair the railing that led to the lobby elevator. This was a dangerous situation for the elderly people who lived there. I thought of my grand-
mother falling and I was enraged. Having worked at the Administrative Housing Tribunal, I was ready to write letter after letter demanding that this railing be repaired. I was ready to call the owner in anger. I was ready to knock on his door and give him a piece of my McGill Law mind. How dare you risk my grandmother’s safety like this? I assured my grandmother that I would handle the situation. She laughed. She knew I was serious. She laughed harder. I enjoyed her laughter, but I do not think I understood it. How could she find this funny? Why would she let herself be treated like this? Did she not know how evil people could be? Over the past few weeks, I have tried to unravel her laughter one memory at a time. I thought about the content of her life. About how 9,252 kilometres separate the city where she was born from the one in which she passed. About how she spent as many years outside of her home country as she did within. I thought about the Revolution. I thought about the ones who did not make it out in time. I thought about how it would have felt to never have said goodbye. I thought about the time I asked her what kept her alive, and about the coolness with which she answered: “My daughter, your brother, you. And knowing that I may outlive the Regime.” She knew exactly how cruel this world could be. Better than I ever could. And she kept on laughing because she knew what it meant to be profoundly human. The late Archbishop Desmond Tutu said something to this effect when speaking about Ubuntu. The profound truth is you cannot be human on your own. You are human through relationship. We speak by imitating other human beings. We walk as human beings by imitating other human beings. And that is fantastic because it says we are really made for this delicate network of interdependence. I need you, in order for me to be me. I need you to be you to the fullest. We are made for complementarity. Adam has certain gifts. Eve has certain gifts. But it was only when the two made up what was lacking in the other that they became fully human. And that is the fundamental law of our being. Ubuntu says not “you are human because you think”, but “you are human because you participate in relationship”. It says a person is a person through other persons. That is what we see. But that is what the Bible says. That is what our human experience teaches us.
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Vol 43 ● No 11 Placing her trust in others was precisely what made my grandmother human. She knew trust to be so inextricably linked to the human experience that to refuse it to others would be to erode her own humanity. And she accepted the undermining, the betrayal, and the cheating as collateral damage. This, I think, allowed her to love freely. Before my grandmother passed, I had made the special effort to speak with her about her life. To learn every story, every detail, every face, and every name. In conversation with her, I could not help but notice a couple of things. When I would show her old pictures of her family, she would always pause for a second before speaking: “Ah. I love them so much. Ah. I love her so much. Ah. I love him so much”. The present tense, I feel, was deliberate. The love was enduring, it was present. I know, from her telling me, that she was particularly close with her sister Victoria. I never knew her, but my grandmother would speak to me as if I did. As if I had known her my entire life. As if she was in the room. As if it was impossible to know my grandmother without understanding what her sister meant to her.
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This is because the ones she loved never left her, not even for one second. If she walked with grace, dignity, and courage, it was because she was held up by a legacy of love. No time, geographical distance or deterioration in memory could change that. She walked carrying everyone she ever loved, their stories, their secrets, their dreams, their lives. Not once in her life was she ever alone. She had loved them presently; she had loved them with everything she was. She had done everything in her power to make sure they knew. These days, I find myself turning to W.S. Merwin’s poem Separation. It goes as follows: Your absence has gone through me Like thread through a needle. Everything I do is stitched with its color. My grandmother gave me everything. She has gone through me. Now everything I give carries a piece of her. Everything I do is stitched with her colour. I am made more dignified, more compassionate, and more human for it.
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A GIRL’S GUIDE TO MARRIAGE Shi Tao Zhang | 1L
Last year around this time, I was in my last year of CEGEP and a month away from my nineteenth birthday. As I was preparing my law school applications, I learned that I was part of an arranged marriage. What hurt the most is that my childhood friend’s parents were behind it. People my parents trusted as their own friends. People who came to my house every week and whom I affectionately called “auntie” and “uncle”. People who gave me gifts and money for holidays. People who saw me as nothing more than a pawn in their own twisted scheme. The masquerade unraveled when my friend offhandedly mentioned that I said I didn’t intend to marry in the foreseeable future. Furious, they jumped on the phone and accused my parents of “raising a daughter like this”. They proceeded to explain to my astonished mother that I have been “leading them on” and “whoring around” by having dated their child without the intention of settling down. More disturbing details were unearthed during the months of harassment that followed. They called mutual acquaintances to complain about me and revealed how they have been planning for me to marry into their family since I was eleven – eleven! – and that it was the reason why they befriended my parents in the first place. Unbeknownst to me, these people carefully laid out a detailed future for me before I graduated elementary school. They even planned where we would live and the children we would have. For them, my life started at eleven and ended at eighteen – the age at which I was seemingly expected to marry. The entire arrangement was so cartoonishly absurd that I felt like I could only laugh about it. I recounted it to my acquaintances as a big joke, brushing off their concerns with witty sarcasm. This was entirely too outlandish for me to take offense. But deep down, I was ashamed, embarrassed, and angry. Ashamed that details about my personal life had been exposed without my consent. Embarrassed that both my parents and my little brother had been
involved in this conflict. And angry that the people who knew me from since I was a little girl only saw my value as a baby machine. Loyal to my “eldest daughter from a first-generation immigrant family” persona, I vowed to ignore the entire fiasco and to work harder than ever at school. I thought that if I succeeded academically, I could prove that I was worth more than just someone’s future daughter-in-law. The few weeks between the end of applications period and my interview for McGill Law felt like decades. Every day, I would anxiously check my emails again and again while trying to come to terms with an eventual rejection. During many sleepless nights, I could not help but to dwell on everything these people said about me. I was part of a climate advocacy group. I played the flute in my school’s orchestra. I practiced rhythmic gymnastics and loved it. I aspired to become a human rights lawyer and help others. Yet the insinuation that I would never amount to anything outside of domestic life weighed heavily on me. When I received my acceptance from McGill, I was so, so relieved. I had won. I had demonstrated to everyone that I was more than a doll to be manipulated. I could be successful and pursue my ambitions, and I didn’t need anyone to force my hand into marriage. I thought the excruciating ordeal has ended and excitedly spent my summer preparing for law school. But my victory didn’t last long. The harassment continued, and so did my anxieties. Like my 1L classmates, I was soon inundated with readings, assignments, and papers. I continued to hold myself to high standards: do all my readings, participate in extracurriculars, speak up in class. It was not that I did it only for these people, but the urge to prove myself to them overtook the genuine enjoyment of learning. I quickly spiraled into a cycle of self-blame and exhaustion. I was aware of their hold on me, and I was ashamed. More than that, I was hurt. Hurt that the couple I saw as relatives would betray me. They had seen me grow up. They practically knew everything about me. But none of it mattered to them in the end. I was a good match, a strategic addition to their household, a desirable set of genes for their lineage. Nothing more.
ended, I realized how wrong they were. They preyed upon me when I was just a child. They expected me to marry into their household like I was a trophy to be brought home. They threatened to smear me publicly and blamed me because I had other dreams than marrying at eighteen. They were in the wrong, not me. I didn’t need to prove myself to them because, simply put, I should not care about what they thought. Knowing I shouldn’t care and bringing myself not to care are two separate things. It’s difficult, I think. I have been around these people for most of my life and saw them as my elders. I could not help but crave their approval. However, knowing that I am not responsible eases the feeling of guilt when I can’t do something perfectly on the first try. It has almost been a year, and I am still reeling from the aftermath of this. Despite everything that transpired, I grew a lot. I started university and volunteer at legal information clinics, where I help people and do what I like. Going forward, I am confident that I will strive towards my goals. I am more than someone’s wife or someone’s daughter-in-law. I am a person. A person with her strengths and weaknesses and emotions and failings. And I deserve to be acknowledged as such.
SUBMIT TO THE QUID NOVI! EMAIL US BY 5PM EACH THURSDAY
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I can’t pinpoint an exact moment of revelation during which I understood I was wasting my energy. It was more of a gradual process. Slowly, as the semester
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A Trip Down Memory Lane Through the Quid Novi Archives The colloquial conversational community Anna McAllister| 1L
By the standard of Quid Novi editions of the 1980s, 2021’s editions would be considered tame, vanilla, and perhaps even stuffy. As a Quid columnist myself, I love the chance to read the pointed, intellectual, and current reflections that our student body shares through weekly Quid articles. While this type of discourse was certainly present in Quid articles of the past, peppered in between were bits and pieces of colloquial conversation largely missing from today’s Quid. In the absence of social media, the Quid served a purpose similar to today’s McGill Law General Facebook group and class group chats. Shockingly candid at times, students openly shared their thoughts and musings about the life of a law student at the faculty. A prime example can be found in the November 28, 1989, edition, intended to tide readers over until the Quid would resume publishing following the holiday break. In the article, “Exams and Hedonism: A match made in heaven,” a question for every day of exam season was included to “fine-tune your brain cells” for upcoming exams. These questions embodied frank and humoristic observations about lacking elements at the faculty such as “Do you feel safe riding in either of the faculty elevators? If so, why?” and “How would you rate the ventilation in the photocopy room? Are those fumes toxic? Noxious? Probably criminal?”.
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While humoristic and sometimes critical observations about life at the faculty are certainly present in McGill Law’s online Facebook community, moving these sorts of remarks from the Quid to an online platform has resulted in this environment being exclusively for students. This creates a sort of safe space for comments without having to worry as much about offending professors or faculty administration. In past Quid editions however, it seemed like openly including professors in this colloquial dialogue was part of the fun. A regular column entitled “Quotes of the Week” was comprised of hilarious, out-of-context and zany remarks made by professors in classes. Another article entitled “The Good Student” from 1989 was dedicated to a Professor Sklar and provided advice such as “write ‘wrong!’ in the margins a lot, everywhere.” Most surprisingly however, was an article written by “Certain Female Members of the Quid Novi team who choose to remain anonymous” from 1984 entitled “Take it Off Bill!” This article openly advocated for one professor to shave his beard in order to be more likely to “join the ranks” of other Australian “heart throb[s]” and “super stars.” While this level of collegiality with professors may be taking it too far by 2021 standards, a playful and public dialogue with professors made up a large part of the sense of community Quid Novi sought to foster. Even regular, informative articles such as “From the Gelber,” which exists to this day to communicate vital information about library services, had a certain coy flare. One article from 1989 entitled “Sex Hints,” grabbed readers attention only to go on to explain step by step how to log into the new computer system installed in the library. Readers would arrive at the end of the article only to be met with a cheeky message: “(Tricked You!) P.S. Kiss with your eyes closed.” While the Facebook groups of today certainly serve a similar purpose in fostering colloquial conversation about life at the faculty, it is almost awe inspiring how willing students of the past were to formally publish and distribute casual discourse. I can only wonder what students of the future will think of our current Facebook musings, while also hesitantly pondering what kind of privacy parameters exist for ensuring only those who are a part of the faculty may join the McGill Law General group.
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BIG NAMES IN THE CIVIL LAW An overview of Justice Mignault’s civilian thought Mario Michas | 1L
As of the first year of law school, students in private law classes come across big names of the civil law. One of the most recurring names is that of Pierre-Basile Mignault, a former member of the Supreme Court of Canada from 1918 to 1929. A renowned author, professor of law at the McGill Faculty of Law, and a distinguished member of the Quebec Bar, Mignault was the author of the authoritative Le droit civil canadien, a nine-volume work on the entire history of Quebec Civil Law. In civilian circles, Mignault is seen as having “profoundly modified the history of interaction between the common law and the civil law at the Supreme Court”. Mignault was an ardent defender of keeping the civil law and the common law separate and of not allowing civilian concepts to be influenced by the common law. Mignault was known as the defender of the “purity of Quebec law”. Mr. Justice Mignault was part of a wider movement, described as an “epistemological rupture with the eclecticism of the past”, that denounced the common law’s influence on the civil law. The movement began as a reaction to a tendency on the part of the Supreme Court, early in its history, trying to unify Canadian law by not distinguishing civilian and common law principles. Initially, the Supreme Court of Canada treated all cases in a similar fashion, for instance, there were common law cases where civilian concepts such as solatium doloris were applied, and vice versa. A pioneer and proponent of allowing the common and the civil law to borrow from each other was Sir Henri-Elzéar Taschereau, Chief Justice of Canada. Taschereau C.J. remarked that it was not intended for one person to have a remedy in one province and not in another. Jurists such as Taschereau often resorted to the writings of common law judges such as Joseph Story to decide Quebec cases. Taschereau, and others, did not see the Civil Code as the ultimate source of civil law, they treated it simply as another
source out of many because they viewed the Quebec legal system more complex than what was embodied in the Code. In contrast, Mignault J. believed that even if the common law and the civil law shared a similar approach, resort could not be had to the common law. However, if a concept in the Quebec Civil Law had been borrowed from the common-law, common-law cases could be used as an interpretative guide. Mignault believed that each system had its own approach and was complete in and of itself. More importantly, Mignault held that the civilian jurists shared a distinct mode of reasoning that had its sources in Roman law as civil law requires deductive reasoning, while the common law an inductive one and the search for authorities is different. However, Mignault was not opposed to comparative law, in fact, he wrote extensively on the French legal system, and the English legal system. Mr. Justice Mignault also occasionally refused to draw from civilian thought from other countries such as France. Mignault J. rejected the writings of famed French civilians such as Josserand because they were too progressive. Mignault was opposed to the law evolving to meet new social or industrial conditions. Mignault was a “rule-oriented” judge that was opposed to judicial creativity or the use of judicial discretion as he criticized French judges who adopted creative approaches that saw the law as a living element. Justice Mignault subscribed to a narrow view of the judicial function, he held that civilian judges should be weary of “judgemade law” and should follow legal rules, rather than higher principles of justice. Mignault J. exemplifies the typical civilian judge of his time, as he only resorted to the precise meaning of the Civil Code of Lower Canada and the words of long-established civilian jurists such as Pothier to craft his judgments. However, Mignault believed that Quebec Civil law was part of a wider civilian family, that was complete
on its own, and that foreign civilian sources should be used where appropriate. Despite Mignault’s conservative, traditional approach to the law, his thought and mode of thinking had a profound effect on several subsequent generations of Quebec jurists, such as Pigeon J. and Beetz J. Mignault was concerned with the survival of the distinct Quebec Civil Law. His zealous guarding of the Civil Law of Quebec from foreign influence was an attempt to safeguard one of Quebec’s most distinct traits as a Province, that of the civilian system. In his desire to protect Quebec Civil Law, Mignault valued the rule of stare decisis, opining that it gave the law stability. Thus, Mignault was a civilian judge that operated in a common law fashion by relying on past civilian cases, in order to ensure the maintenance of the civil law. Yet, he acknowledged that traditionally, a civil law country such as France viewed decided cases as “merely arguments”. Moreover, Pierre-Basile Mignault believed that in Quebec it was in the interests of all to follow judicial decisions of higher courts. Mignault supported citing cases in Quebec because of the “mixture” of common law and civil law as trials in Quebec are held according to English tradition and elements of Quebec commercial law were heavily influenced from English law.While Mignault was weary of being influenced from common law precedents, he showed great obedience and admiration for Judicial Committee of the Privy Council decisions in Quebec cases. In conclusion, Mignault’s legal philosophy and civilian thought is more nuanced than one would think. While he was a stalwart defender of the “purity” of Quebec civil law and an advocate of the fixture of Quebec Civil law and its distinctiveness, he was also fond of common law concepts such as stare decisis. Mignault’s impact is undoutable, but it should be understood as a reaction to the Supreme Court’s misunderstanding of the differences between the civilian and common law tradition. 9
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