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

Introduction

For more than 130 years, the Department of Justice has acted as legal advisor to the Canadian government. However, researchers interested in the administration of justice in Canada have barely scratched the surface in telling the history of the legal counsel who advised the Department, and of the legal traditions they represented. This work seeks to lift the veil from the hidden aspects of this history, so that we can begin to understand the lives of the civil law specialists who worked at the Department of Justice since its creation in 1868. Fewer in number than their common law colleagues, these lawyers and notaries who specialize in Quebec civil law share a past when determination was essential, in order to overcome obstacles and take the place they deserved. This study, primarily based on the administrative records of the Department of Justice and on interviews with those who were witnesses to this history, paints a picture of these legal counsel and their civilian tradition, showing when and how the Department became aware of Quebec’s special nature as reflected in its legal system.

This history, which is divided into four sections, primarily aims to recount the events that led to the creation of the Civil Law Section and marked its development. To properly situate civil law and its practitioners within the Department of Justice, it is essential to review the origins of this legal system on Canadian soil. The first part of our study thus provides an overview of the colonial period, to highlight the circumstances that contributed to the survival of French civil law in Canada and led to the establishment of the principle of bijuralism.

The second section emphasizes the organization and activities of the Department of Justice from 1868 on, and also introduces the first civil law specialists who practised their profession in the Department. Accompanied by short biographical notes, these few pages help to bring the ancestors of today’s civilians out of the shadows. We will see that they were isolated and few in number, but that civil law matters already accounted for a considerable part of the Department’s legal activities. This situation is reflected in the various steps that preceded the creation of a section devoted exclusively to this type of law.

The third part, which is in a way the core of our study, deals with the Civil Law Section established in 1952, and with its development until 1986. We first discuss Guy Favreau and the young lawyers who joined the Department while Favreau was head of the Section. Through their frequent meetings outside work, these civil law specialists managed to create a team that had an atmosphere similar to that of a family. In a largely Anglophone environment dominated by common law, these ties of friendship were a way of escaping from isolation and of making work more pleasant. This part of our study also deals with the profound changes that occurred in the Civil Law Section in the 1960s with the creation of the position of Associate Deputy Minister (Civil Law), the recommendations of the Royal Commission on Government Organization, and the opening of a regional office in Montréal. All these changes resulted in important movements of personnel. During the 1970s, the Official Languages Act and the subsequent report of the Commissioner of Official Languages also produced a new willingness to find a more appropriate place for civil law, and for the French language, in the Department of Justice.

Finally, the last part of our study examines the more recent events that affected civil law specialists in the Department. Since 1986, their Sector has participated actively in various initiatives designed to bring the civilians closer together and to promote bijuralism. Here we examine more closely the harmonization of federal legislation with Quebec civil law in order to highlight its significance in administrative and political terms.

On the whole, our study describes the history of an organization to which we can put a human face thanks to the words we have collected from men and women who, through their presence, influenced the development of the Department of Justice. In adding to their collective memory, this study will surely help to develop, among the civil law specialists who are now working in the federal government, a spirit of belonging and identity.

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