Out of the Shadows:
The Civil Law Tradition in the Department of Justice Canada, 1868–2000
The Upheavals of the 1960s
The upheavals of the 1960s profoundly affected the Department of Justice, including the Civil Law Section. The first blow to the Section was Guy Favreau’s departure in July 1960. The Assistant Deputy Minister had received an offer he could not refuse from a large law firm, and as someone who loved the practice of law, he wanted to return to private legal work in Montréal.17 However, those who had regular dealings with him believe that he left the Department because he was unable to have the position he wanted, namely Deputy Minister of Justice and Deputy Attorney General of Canada. Some people think that, in spite of his great abilities and reputation, Favreau was denied the highest legal position in the land because of his training in civil law.f At the Department of Justice at the time, it was assumed that a civil law specialist would be unable to deal with legal issues arising in the common law provinces. In addition, it was asked, how would he be able to supervise the work of lawyers with common law training? 18 It seemed to be forgotten that, more than 75 years previously, Augustus Power, also a civilian by training, had acted as Deputy Minister on several occasions, and that the Department of Justice had not been any the worse for it.g In spite of this historical precedent, another fifteen years were to pass before a person with a civil law background would be appointed Deputy Minister.
However, a few months before Favreau’s departure, the Department made an effort to recognize the existence of civil law by finding a place for it in the upper ranks of its staff. On March 9, 1960, section 3 of the Department of Justice Act was amended to specify the number of Associate Deputy Ministers.h In the House of Commons, the Minister of Justice, Edmund Davie Fulton, explained that a constant increase in the amount of work and the growing complexity of the cases warranted the appointment of two Associate Deputy Ministers. The idea of creating two such positions had emerged several years earlier, when the Liberals were in power. In the spring of 1957, Prime Minister Louis St-Laurent was supposed to ask Parliament to approve the creation of these positions, but his party was defeated in the elections. This delayed the tabling of this legislative amendment. Deputy Minister Varcoe, who was about to be replaced by W. R. Jackett, had then suggested that E. A. Driedger and Favreau be appointed to these positions, and it was expected that Favreau would become familiar with all aspects of the Department, so that he could act as Deputy Minister if Jackett had to be absent.i, 19 Three years later, the House adopted, without opposition, the bill tabled by the Diefenbaker government.
However, there was nothing in the amendment to indicate that one of the positions of Associate Deputy Minister had to be given to a civil law specialist responsible for civil law and for federal law issues in Quebec. Rather, the appointment of the first Associate Deputy Minister (Civil Law) marked the beginning of a tradition that still exists. Nonetheless, a number of people affirm that it was from that moment on that the Department officially recognized the presence of civilian lawyers within its structure, and thereby acknowledged Canadian bijuralism.20 Furthermore, from the moment that the idea had been advanced in 1957, the plan was to appoint the two Assistant Deputy Ministers in place. By 1960, however, it was already too late: Favreau had made his decision to leave the Department.21 He handed in his resignation, and the Minister had to appoint another candidate to the position of Associate Deputy Minister (Civil Law).
On November 9, 1960, Rodrigue Bédard, a municipal judge in Hull and a professor at the University of Ottawa, took up his duties as the first Associate Deputy Minister (Civil Law).22 Bédard had trouble asserting his authority, because he was unfamiliar with the workings of the Department, and with the procedures and culture of the environment he had just entered. In addition, some of the people with whom he was working saw his appointment by the Conservatives as the outcome of a political manoeuvre, and this did not ease Bédard’s relations with the managers in place. However, as a distinguished jurist with a strong sense of duty, he did his best to continue the work of his predecessor.23
In Bédard’s time, recruiting was initially done through the Civil Service Commission, which published notices of competitions (in law faculties, with the Quebec Bar and in the newspapers), and received applications. The Associate Deputy Minister then went to Montréal or Québec City to meet the candidates, accompanied by a representative of the Commission. Sometimes, these candidates were asked to take a written examination, and had to answer some questions in English. They thus had to be bilingual in principle, but they did not have to have a perfect mastery of English. It was expected that in time and with greater experience, they would inevitably acquire a good knowledge of English.24
New faces then appeared in the Civil Law Section. Some of the new arrivals had already been working for the Department of Justice. The first newcomer was Gaspard Côté in 1962, who had been working in the Criminal Section since 1957. He quickly became a close and trusted collaborator of his new director, Paul Ollivier. During his time in the Criminal Section, Côté participated, as lawyer for the Department of Justice, in the work of the Brossard Commission of Inquiry into the Coffin case and in the work of the Dorion Commission on the Rivard case (which resulted in the resignation of Favreau as Minister of Justice in 1965).25
Joseph Georges Rodrigue Bédard was born in Hull, Quebec, on June 9, 1907. He studied at the University of Ottawa, where he obtained a bachelor of arts degree and a licentiate in philosophy in 1927. He obtained his licentiate in law from the Université de Montréal in 1933, and was called to the Quebec Bar in July of the same year. He then practised his profession in Hull, where he was also Recorder, then a municipal judge (1938–1960). In addition to practising law, Bédard was very active in teaching. He served as academic dean at the University of Ottawa law school (1954–1960), and as professor of civil procedure from 1953 to 1970. A Queen’s Counsel since 1945, he joined the Department of Justice as Associate Deputy Minister in November 1960. Ten years later, he left this position to become a judge of the Superior Court of Quebec. Mr. Justice Bédard died in Montréal on March 10, 1978.26
When Côté asked to be transferred to the Civil Law Section, Maurice Charbonneau (now with the National Parole Board) soon followed the man who had been his mentor in the Criminal Section for the previous three years. Guy Favreau had recruited Charbonneau in 1960, during a train trip between Québec City and Toronto. Noticing the law book he was reading, Favreau asked him if he would be interested in a career at the Department of Justice, in Ottawa. After thinking about this offer, Charbonneau agreed to take an examination “which did not commit him to anything” at the Court House in Québec City. Two months later, he received a call from Favreau’s secretary, who told him that the Assistant Deputy Minister wanted to meet him. He was then offered a position on the criminal law team.27
In October 1963, Paul Coderre joined the Department of Justice, after pleading a case in which he had opposed Paul Ollivier. The two men were both natives of Ottawa. Coderre was practising law in Chicoutimi when Ollivier asked him if he wanted to return to the national capital. Coderre started his career at the Department of Health, but a few months later, he was called upon to replace Rolland Boudreau at Justice Headquarters.28 Boudreau had left the Department after three months as head of Minister Lionel Chevrier’s office to accept a position at the head office of Canadian National, in Montréal. He continued to work for this company until his retirement in September 1993 as Vice-President of Legal Affairs.29
In 1965, the Department of Justice hired its first notary on a permanent basis. Up to that point, most matters involving real estate law had been entrusted to outside notaries. The Civil Law Section could count on the services of Merry Del Val (“Val”) Richard, a clerk who had acquired a vast experience in handling property titles through his fifteen years in the business (he was nicknamed “Mr. Notary”). However, Richard did not have a degree in notarial studies. Assisted by Annette Laflèche, Richard was responsible for contacting the notaries retained by the Department, for examining notarial deeds and for submitting them to the director of the Section for approval. A twenty-year employee of the Department (he had originally been the secretary of Roméo Gibeault), Richard had been involved in show business in the 1920s. A tap dancer, violinist, singer and actor, he had played in Broadway theatres, and enjoyed recounting his adventures to his colleagues.30
Since 1961, Paul Ollivier had wanted a notary to be added to the permanent staff of the Civil Law Section, as legal counsel.31 In 1965, a young notary by the name of Jacques Roy saw one of the Department’s advertisements for a notary, but he had little interest in this position until he met Gaspard Côté at the monthly dinner of the Jaycees in Hull. The next day, Roy contacted Rodrigue Bédard, the Associate Deputy Minister, who was also a family friend. Bédard told him that the competition was over, but that he would make an exception for him. The interview took place a few days later, and Roy began working for the Department on April 26, 1965.32
During his first morning on the job, Roy was introduced to the Deputy Minister, E. A. Driedger, by the director of the Section. This was a rare gesture. It was explained to Driedger that, like other notaries from Quebec, Roy had taken the same courses as lawyers did, but had a somewhat different vocation. However, one crucial question remained unanswered: What salary was to be given to this rare bird? Roy’s presence was creating a precedent. To resolve this problem the Department relied upon the salary scale in effect, which was divided into two categories of lawyers, namely, barristers and solicitors. Solicitors earned less. By definition, a notary was closer to the category of solicitors, but an exception was made to place Roy in the group of barristers. Roy thus received a higher salary from the beginning. He inherited a very large office, which he decorated with a rug he found in the basement of the Department. According to custom, only directors were entitled to a rug. However, Roy, who was in a category of his own, was allowed to depart from tradition in this way.33
Roy worked with Richard until the latter retired a few months later, in his late sixties. Because so much land had been expropriated for the construction of Mirabel Airport, Roy was obliged to handle some 3,000 files by himself, not counting the other real estate transactions that the Section had to deal with. Since Roy was the only notary, the Department continued to hire outside agents, because the workload was simply too great.34 However, as a result of Roy’s arrival, senior management in the Department of Justice (and later, in the other departments) came to better understand and appreciate the work of notaries. As a result, notaries were treated as legal counsel, just like lawyers, not as “the plumbers of the profession.” 35
The Civil Law Section experienced other staff changes in the second half of the 1960s. Roger Tassé, looking for new challenges, left the Section in 1965 to become Superintendent of Bankruptcy.36 In 1967, Jean-Paul Fortin joined the group of civilians to replace Tassé, after four years in the Quebec public service. He even occupied the office that had formally belonged to Tassé, whom he had already met at the Université de Montréal.37 Also in 1967, Paul Ollivier was appointed Assistant Deputy Attorney General (Civil Law), while continuing to perform the duties of director of the Section. However, Paul Coderre took over as director in 1969.38 In the same year, Gaspard Côté left Ottawa to work for the Montréal Regional Office, a “close relative” of the Civil Law Section.
At that time, lawyers of the Section pleaded cases on a regular basis. However, Bédard assigned cases and requests for opinions according to the availability of legal counsel. There were still few civil law specialists in the Department, and if they were familiar with other types of law (constitutional, criminal, tax, etc.), they were also at the disposal of the Associate Deputy Minister with training in common law. In addition, the Civil Law Section was sometimes given responsibility for cases concerning Francophones outside Quebec, since the civilians were often the only people in the Department with a good command of French.39 This was indeed the distinction which gave the civilian group its cohesion, but which also made it feel isolated from the rest of the Department and from the public service in general. In fact, these lawyers formed a separate family group. Like their common law colleagues, however, the members of this group were affected by the recommendations of the Royal Commission on Government Organization (also known as the Glassco Commission).
A separate family group
In the first place, these lawyers were bound by ties forged by their common civil law training and by the various cases to which they devoted many overtime hours.40 The workload justified such dedication, but it was also tempting for new legal counsel, whose families did not live in the region, to spend evenings and Saturdays at the office. Time was precious, as this passage shows: “When somebody left, there was no real reception, even if the individual was a Deputy Minister. Everybody gathered at 2 p.m. in the big conference room on the third floor, in Ottawa. An Anglophone spoke a few words of praise, and somebody else might add something. That was it. The Deputy Minister looked at the time, saying ‘we still have a day’s work to do,’ and everybody returned to their offices. We had all lost three quarters of an hour.”41 These men thus spent much time together, but consulted one another only occasionally, since few cases required the simultaneous participation of two members of the Section.
It was thus outside the workplace that they could cultivate friendships that sometimes started in the office, sometimes went back to their law student days. When he was Assistant Deputy Minister, Guy Favreau was in the habit of inviting young Francophone lawyers (including those working in sections other than Civil Law) to lunch at a restaurant every Friday, to foster cohesion and harmony. These meetings, in Hull or at the Cercle universitaire, were used by Favreau as an opportunity to introduce young lawyers to such prominent figures as Justice Fauteux of the Supreme Court, and Charles Stein, who was then Under Secretary of State.42 Favreau’s successor, Rodrigue Bédard, continued this tradition with the second generation of civil law specialists.43 As the first members left the Section, the new arrivals were integrated into the team. However, the two groups remained in contact, in spite of the different careers they were pursuing, through these regular meetings.
Some of these men saw each other even more frequently, almost every noon hour at the bus station restaurant, “where they settled the constitution of Canada.” Ollivier, Beaudoin, Tassé, Charbonneau, Coderre, Garon, Landry and Pierre Carignan (who was with the Restrictive Trade Practices Commission) often became involved in animated discussions, which earned them the nickname of “the loud Frenchmen.” 44 They also met at the reception given at Christmas time by the Civil Law Section, and they occasionally saw one another in the company of their wives. Several of these men lived in the same neighbourhood and were active in their parish. Friends in both the workplace and outside work, they formed a family team, and this enabled them to confront together the obstacles they ran into because of their training and language.45
These ties of friendship were particularly meaningful in an environment that was clearly dominated by the common law and by the English language. In 1955, bilingualism was practically non-existent, and the few lawyers with civil law training were concentrated in the Civil Law Section. When he arrived at the Department five years later, Maurice Charbonneau realized that “there were almost no Francophones outside the Civil Law Division.” This situation was quite similar to that of the public service as a whole in the 1960s.46 For the few Francophones who were not members of the Section, the Friday lunches were a real opportunity for reunions.47
However, while most of the civilians felt they were fortunate to be able to work together in their own section, some felt isolated from the Department of Justice as a whole. The situation had undoubtedly improved since the time of Roméo Gibeault, but the limited scope of the Civil Law Section could still be perceived as an obstacle by those who wanted to broaden their horizons. For them, the section was like a ghetto in which nearly all the Francophone resources of the Department of Justice were concentrated. In the other departments, the handful of scattered, isolated civil law specialists were often called upon to provide services as bilinguals, in spite of their competence in law.48 While people were calling upon them for their linguistic knowledge, these lawyers were unable to participate fully in the legal challenges of the Department.49
At Headquarters, members of the Civil Law Section rarely communicated with other sections, but this did not prevent civilians and “common lawyers” from seeing one another occasionally outside the office. In this group, all the work was done in French, but its members had ample opportunity to practice English, the mandatory language for communications with the Deputy Minister and with departments that requested legal opinions.50 Bilingualism was mostly a Francophone affair, even though a few English-speaking senior public servants tried to “stumble through a little French.” 51 For the civil law specialists attached to legal departments, the isolation was even greater, since all communications, whether oral or written, had to be conducted in English.
In this context, the spirit of good fellowship that developed (and still exists) among Francophones, regardless of the section to which they belonged, made it possible to break through the civilians’ isolation. The creation of a Civil Law Section also had the effect of bringing them together and allowing them to work in French. They felt pride at the idea of having their own division, and when the Department proposed combining the Civil Law Section with the Civil Litigation Section (its common law counterpart), they resisted this form of encroachment, because they wanted to preserve the autonomy and identity of their team.52 They had to defend their linguistic rights and justify their presence, but this was a necessary step while waiting for mentalities to change and for the climate to become more favourable.53
These lawyers, who worked in the Civil Law Section under Favreau and Bédard, formed the core of individuals who enabled civilians to take the place they deserved at the Department of Justice. They were a source of inspiration for those who joined the Department after Bédard left in November 1970.54
f. It may be possible that Guy Favreau’s civil law training was detrimental to him. For his part, however, Paul Ollivier insists that he did not personally experience any such prejudice in his direction during his 29 years at the Department of Justice. His civil law training did not prevent Ollivier from moving up through the ranks to the position of Associate Deputy Minister (Civil Law). Conversation with Paul Ollivier (March 28, 2000), Hull.
g. In fact, Favreau’s training was only a pretext, since the Deputy Minister does not give legal opinions on his own. He is surrounded by a team of people who advise him on fields with which he is less familiar. A Deputy Minister, even if he has common-law training, cannot know everything. Furthermore, at this time, even though the Deputy Minister signed nearly all the opinions issued by the Department of Justice, these opinions were often written by legal counsel. The Deputy Minister then examined them, and could make changes before signing them. Interview with Roger Tassé (December 16, 1999), Cassette No. 3, Side A; conversation with Alban Garon (April 3, 2000), Ottawa.
h. Associate Deputy Ministers are chosen by the Cabinet and are entitled to certain privileges, while Assistant Deputy Ministers (and Assistant Deputy Attorneys General) are public servants appointed by the Public Service Commission. Interviews with Anne-Marie Trahan (January 4, 2000), Cassette No. 3, Side B, and with Alban Garon (January 18, 2000), Cassette No. 9, Side 2.
i. Someone went even so far as to suggest that the Department should appoint a second full Deputy Minister with a civilian background, who would be responsible for civil law issues. Varcoe quickly rejected the idea, explaining that the work of these two individuals would be unequal, because of the lesser number of cases requiring the intervention of a civil law specialist. He also found it inconceivable that a Deputy Minister with civilian training could supervise common law lawyers, and vice versa. Finally, he thought that it would be too complicated to have the legal counsel in the same section reporting to different authorities, depending on their training. See Department of Justice (DJ), Administrative Records, File 225-3, Volume 1, General Administration, Organization – General, Department of Justice, memorandum of F. P. Varcoe to the Minister of Justice, March 22, 1957, pp. 1-2.
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