Out of the Shadows:
The Civil Law Tradition in the Department of Justice Canada, 1868–2000
Since the introduction of the Custom of Paris in New France more than three centuries ago, civil law has survived a number of more or less open attempts to eliminate it. Following the conquest of the French colony by Great Britain, there were no signs to indicate that Quebec civil law would develop and flourish and would now occupy a place within the Department of Justice Canada. However, the Quebec Act and the Civil Code of Lower Canada confirmed the presence of the civil law tradition in North America and the coexistence of two legal systems. With the division of jurisdictions between the federal government and the provinces in 1867, the foundations of bijuralism were in place, even though the Government of Canada was not, at the time, officially committed to this principle.
In this context, the civil law tradition could only find a limited place within the Department of Justice. In fact, the 1868 statute that made it possible to establish the Department of Justice had nothing to say about this legal duality. With Confederation, moreover, legal staff were divided between the two attorneys general, and the Department of Justice wound up with a staff consisting entirely of lawyers with common law training. Until the arrival of Georges Duval in 1874, the civil law aspect of the Department’s work was limited to temporarily hiring lawyers and notaries from the private sector, to deal with issues arising in Quebec. Duval’s presence opened the door to other legal practitioners with training in civil law, but for a long time, they were an exception in a department that was still trying to define its role. The first civilians in the Department were jacks of all trades, and their responsibilities went far beyond civil law matters – a situation that still applies to the Associate Deputy Minister (Civil Law). Some of these civilians, in addition to being responsible for a variety of cases, performed the duties of secretary and legal counsel. At that time, work was distributed on the basis of territory rather than type of law.
In 1924, the place of civil law in senior management was recognized for the first time, by the creation of a second Assistant Deputy Minister’s position. This position was given to a civil law specialist responsible for cases covered by Quebec law. A spectacular increase in the Department’s workload after the First World War contributed to the rise of civilians, at a time when the Department as a whole was expanding rapidly. In 1940, three of the Department’s ten legal counsel had civil law training. A growth in the Department’s activities, driven by the government’s increased participation in ever more complex activities, forced the Department to structure the delivery of its services. In 1946, an initial organization of the Department was put in place, and this step eventually led to the creation of a Civil Law Section in 1952.
The Civil Law Section, which was the concrete manifestation of bijuralism, really began to develop under the direction of Guy Favreau. He favoured recruiting young civil law specialists, who formed a small family team. In addition to seeing each other at work, these men were able to develop ties of friendship through their regular meetings in restaurants, the proximity of the places they lived and the sharing of activities within their parish. This cohesion could have been severely shaken by the upheavals of the 1960s, but the group of civilians was able to take advantage of these changes.
In 1960, the Department of Justice officially recognized civil law and its practitioners by creating the position of Associate Deputy Minister (Civil Law). This position was first given to Rodrigue Bédard, who tried to continue Favreau’s work. A few years later, the Glassco Commission proposed that all legal services be grouped together under the direction of the Department of Justice, and that the delivery of these services be decentralized through the establishment of regional offices. The Civil Law Section felt the effects of these recommendations, as some of its members left Headquarters to head up legal services in other government departments or to join the new office in Montréal, which opened in 1965. The Montréal Office, originally set up to deal primarily with criminal cases, experienced rapid growth and was soon dealing with civil and tax matters. While this growth helped to contribute to the extension of the federal government’s influence in Quebec, it also created a certain rivalry between the two groups of civilians. Ottawa and Montréal were both dealing with the same kinds of cases, and a distribution of work became necessary. This process required that the role of the Civil Law Section be redefined.
It was clear, however, that civil law and its representatives still had a place in Ottawa, if only to show that the Department of Justice was at the service of all Canadian citizens. The Department, determined to promote bijuralism, proposed that federal legislation be harmonized with civil law. This project was originally intended as a way of recognizing the specific character of Quebec’s legal system and of facilitating the interpretation of laws by the courts, at a time when Quebec was getting ready to adopt a new Civil Code. However, the erosion of national unity soon transposed this initiative to a political context, where it was presented as a sign of Canadian federalism’s ability to adapt and evolve. For the Department of Justice, however, harmonization is primarily the expression of a desire to take the particular nature of Quebec law into account and to offer its practitioners the place they deserve within the organization of the Department. Combined with other means that the civil law specialists had advocated to increase their visibility in the federal public service, this project drew upon the bijural tradition that had quietly developed in the Department since the arrival of the first specialist in civil law.
This history of civil law has also enabled us to trace the development of bilingualism at the Department of Justice, both in the workplace and in the area of legislation. When the Department was first set up, it had very few civil law specialists or Francophones. A command of the French language was certainly an asset, but the Department felt that the number of cases submitted in French did not justify a more extensive practice of bilingualism. In 1970 as in 1880, correspondence from Quebec was, however, usually answered in French, and people in the Department turned to the few bilingual legal counsel for their linguistic skills as much as for their knowledge of civil law. Within the Department, communications between senior management and the sections were conducted almost exclusively in English until the 1970s, when this practice changed following the adoption of the Official Languages Act (1969).
We can see, then, that changes had occurred more rapidly in the area of legal duality than in the linguistic field. However, the creation of a Civil Law Section gave most Francophone legal counsel in the Department an opportunity to come together at a particular moment in their careers, and to work in French. Following the tabling of the special study of the Commissioner of Official Languages in 1976, Francophone employees found it easier to assert their rights, and the Department made bilingualism one of its priorities. This change of attitude was felt in the legislative field, among others, through the introduction of codrafting, which made it possible to respect the spirit of the French language and to take the particular features of the Quebec legal system into account.
On the whole, it may seem that for a long time, the Department of Justice was slow to respect Canada’s legal and linguistic diversity. However, this recognition, like the law itself, “… is the slow, but progressive work of civilization, which provides its consistency and its development.” 1 In the course of time, and with the change of mentalities, civil law has ceased to be regarded as an inferior aspect of the Canadian tradition, and people now seek to promote bijuralism, and the economic, social, and political advantages that the coexistence of two legal systems can procure.
- Edmond Lareau, Histoire du droit canadien depuis les origines de la colonie jusqu’à nos jours, tome I : Domination française (Montréal: A. Périard, 1888), p. 21.
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