Out of the Shadows:
The Civil Law Tradition in the Department of Justice Canada, 1868–2000

Paving the Way for Genuine Bijuralism: Harmonization and Recognition of the Place of Civil Law at the Department of Justice (1986 to the Present) (cont'd)

Throughout this process, Anne-Marie Trahan was able to count on the support of the new Deputy Minister of Justice, John Tait. Tait had been appointed to this position in 1988, when Iacobucci left the Department to become Chief Justice of the Federal Court. He was the second person with a civil law background to hold this position. He had trained at the Department, more specifically in the Legal Planning and Research Section and in the Civil Law Section. In 1983, he came back to the Department as Assistant Deputy Minister (Public Law), and then became Deputy Solicitor General in 1986.20 Perfectly bilingual and aware of how the civil law and its practitioners were treated, he well understood the subtleties and implications of this harmonization plan.21 According to Anne-Marie Trahan, it was easier for Tait, as an Anglophone, to argue for relevance of this plan with those who saw it as neither useful nor significant. As she put it: “(H)ad it not been for his influence and his persuasion, the policy on bijuralism which I put forward would not be in place.” 22

In 1993, to support the Department in its adaptation efforts, the Civil Code Section d was created in response to the recommendation of a task force set up to examine the impact of the new Quebec enactment. The task force, consisting of eleven legal counsel, was given responsibility “to identify the fields of civil law of interest to the federal government,” and to analyze the legislative amendments that were required.23 The scope of the harmonization project quickly expanded as significant shortcomings were revealed: “Federal legislation has tended to make civil law…an orphan.” 24 In addition, after the Civil Code of Quebec came into force on January 1, 1994, the Quebec Bar and the Chambre des notaires offered courses to their members. However, the Civil Law Section went somewhat farther in providing the Department’s civil law specialists with additional training sessions adapted to federal law issues, while inviting common law lawyers to join them and thus to become familiar with civil law.25

It was primarily after 1994, when Anne-Marie Trahan became a justice of the Superior Court of Quebec, that the harmonization project took on a much more political character. Trahan had emphasized the advantages of Canadian bijuralism in a context of globalization of trade, since “80 percent of the world’s countries are governed by a legislation derived from either common law or civil law” 26 (an argument that was later adopted by the Minister of Justice). However, harmonization had not yet attracted the attention of ministers and members of Parliament. After Mario Dion became Associate Deputy Minister, the revision of federal statutes became “the reflection of a very definite political will.” 27 In late 1995, the House of Commons and the Senate undertook to respect the civil law tradition by adopting motions recognizing Quebec as a distinct society, in part because of its particular legal system.28 While the Canadian federation was being challenged, the harmonization project had assumed a political aspect that could help to reassure Canadians as a whole.

In November 1997, when the phase of public consultations on harmonization began, the Minister of Justice, Anne McLellan, described the project as “a tangible expression of our respect for Canada’s dual legal heritage,” and as a commitment by the federal government to renew and modernize the Canadian federation. Minister McLellan also emphasized the peaceful coexistence of the two systems, to show that the federal system could also undergo such changes.29 The minister employed similar language after tabling the first harmonization bill in the House of Commons on June 12, 1998. She stressed that Canada was setting a precedent in attempting “to harmonize the terminology and concepts of two legal systems.” According to her, in addition to giving civil law the place it deserved in federal legislative enactments, this initiative made it possible to “see how much the unique character of Quebec society, expressed in this case by its great tradition of civil law, is fundamental to Canada’s well-being.” 30

Apart from its political aspect, however, harmonization enabled the Department of Justice to reconsider its concept of bijuralism. This principle had existed well before the bill was tabled — the Civil Law Section and the presence of civil law specialists in other sections were tangible proof of this 31 but the two legal traditions had not always been treated on an equal basis. Harmonization would correct the legislative aspect of this problem, while civilians continued to obtain positions in the upper ranks of the public service (in July 1998, Morris Rosenberg became the third full Deputy Minister with a civil law background), and to increase their visibility in various ways.

Increasing the Visibility of Civil Law and Its Practitioners

In addition to laying the foundation for the harmonization project, Anne-Marie Trahan wanted to ensure that the specific character of the Quebec legal system was recognized at a more symbolic level, by making notaries eligible for the title of Queen’s Counsel. In the common law tradition, this distinction had originally been given only to barristers, lawyers who pleaded cases in court. In time, solicitors, lawyers whose practice primarily concerned contracts and matters not involving litigation,32 were also entitled to this honour. Notaries, however, remained excluded. When she arrived at the department in 1986, Anne-Marie Trahan had argued the case for the notaries with the Ministers of Justice of the day (first Ray Hnatyshyn, then Douglas Lewis and Kim Campbell), but as lawyers with a common law background, they remained unreceptive to the idea.33

By 1991, the Department had a new Minister, Pierre Blais. He had been trained in the civil law, and understood the importance of the question. Trahan had also sought the support of Prime Minister Brian Mulroney and, in 1993, the Cabinet handed down a favourable decision, broadening the criteria of eligibility.e The Associate Deputy Minister suggested a candidate: Jacques Taschereau, who was then President of the Chambre des notaires du Québec. In April 1993, at the conference of this professional association, Minister Blais conferred the title of Queen’s Counsel on Taschereau, who was the first notary to receive this honour. Today, Trahan acknowledges that this event did not “change the face of the world,” but that it still represented a step forward in achieving equality for all legal practitioners in Canada, in addition to respecting the specific nature of the legal profession in Quebec.f, 34

Within the Department of Justice, the hiring of a first permanent notary in 1965 had helped to spread the influence of civil law by offering a more complete picture of the legal profession in Quebec.35 Thirty years later, however, the notaries working at the Department of Justice still represented only a tiny minority (1.4 percent) of the Department’s 1,400 legal counsel. In 1998, there were nineteen notaries, but this figure did not reflect the precarious nature of their penetration of the Department, since a number of those positions were temporary. Nonetheless, the establishment of a training program with the help of the Chambre des notaires du Québec has enabled some graduates in notarial studies to join the Department of Justice in Ottawa.36

In February 1998, the Civil Law Section organized a symposium on the notarial profession in the federal government, so that notaries could meet one another and exchange viewpoints on their activities.37 This symposium, organized by Michel Vermette, had originally been an initiative of Mario Dion, who had returned to the job of Associate Deputy Minister in the summer of 1997. At that time, Dion got in touch with the president of the Chambre des notaires and its representative in Hull, and learned that the federal public service employed forty-five notaries. Since the Chambre des notaires was celebrating its 150th anniversary, Dion thought that it was timely to bring together these legal specialists, who rarely had an opportunity to meet.38 Some thirty notaries accepted the invitation, thus ensuring the success of this first meeting, which was intended to “enhance the pride of civilians presently working for the federal government.” 39

Since 1986, civil law lawyers and notaries have also been able to rely upon the Association des civilistes, an association of civil law specialists which enables them to meet regularly. This association, which aims to “attach value to and recognize civil law and bijuralism in the federal government environment,” primarily consists of legal counsel working in the public service. However, the association also includes private sector lawyers and notaries, university people and judges. During the first year of its existence, the head of the association was a former member of the Civil Law Section, Raymond Roger. The group allows civil law specialists in the national capital region, who are often “lost in a sea of common law,” to get together to discuss issues that directly concern them. These meetings are among the rare occasions where notaries and lawyers can share views on their common experience within the public service.40

With similar goals in mind, the Civil Law Sector started publishing the Civilians’ Forum in July 1999. This electronic newsletter is designed to “enhance the pride of civilians and promote the excellence of their work,” and also to enable them to draw closer together.41 It should, however, be noted that these rallying efforts are not new. As early as 1955, when Guy Favreau headed up a tiny civil law section in the Department of Justice, legal counsel with a civil law background created opportunities to meet one another, to break through their isolation and to promote their expertise. However, publications and associations could only come into being through the participation of an increasing number of members who, like their predecessors, found ways of “enhancing [their] special identity and sense of belonging.” 42

d The Civil Code Section, like the Civil Litigation and Real Property Law (Quebec) Section, comes under the responsibility of the Civil Law Sector. The Civil Law Sector has existed since 1988, when civil law was separated from public law. Under Anne-Marie Trahan, legislative services were subsequently incorporated into the Civil Law Sector, and with the appointment of Mario Dion, the Sector was amalgamated with Corporate Management. It is interesting to note that since the time of Alban Garon, Associate Deputy Ministers (Civil Law) have always been responsible for an additional area unrelated to civil law, according to their individual competencies. This practice perpetuates the idea that the responsibilities associated with civil law cases are not great enough in themselves, to justify full-time employment. However, this confluence of circumstances helped to make civil law and its practitioners more visible by associating them with fields that also concerned common law, and were thus more in evidence at the Department of Justice.

e Trahan believes that the approach of the federal election may have contributed to speeding up the process, but she acknowledges that political will was also a factor. Interview with Anne-Marie Trahan (January 4, 2000), Cassette No. 4, Side B.

f To this day, Taschereau remains the only notary to have the title of Queen’s Counsel. The eligibility criteria have been under revision since the Liberals came to power in 1993, and no legal practitioner has merited this distinction.

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