Out of the Shadows:
The Civil Law Tradition in the Department of Justice Canada, 1868–2000
Meanwhile, Back in Ottawa …
During the 1970s, the Department of Justice (and the public service in general) began to be more open to the presence of Francophones and their language. This new attitude coincided with the adoption of the Official Languages Act in 1969. This development was more beneficial to the civil law specialists than to anyone else, since in most cases, French was their mother tongue.p In addition to becoming aware of the use of French in the workplace, the Department of Justice looked into the issue of legislative drafting. Moreover, as the Glassco Commission had noted, the specific nature of the Quebec legal system had to be taken into account.
One of the first attempts to include the particular features of civil law occurred in the late 1960s, when the Expropriation Act was revised. People were beginning to become aware that the French version of laws had to be something more than a literal translation of the English version. The term “legal counsel” had initially been translated by the French word avocat and, at the suggestion of Jacques Roy, this term was replaced by conseiller juridique in order to include notaries.97
At the beginning of the 1970s, the Minister of Justice acknowledged in a speech that laws were still drafted in English and subsequently translated into French. It was hoped, however, that as bilingualism made progress in the public service, the Department would finally be able to reverse this process. In the meantime, some improvement in the French-language versions of legislation was noted, as translators made an effort to avoid literal translation and to concern themselves more with the underlying idea.98 On the subject of the presence of Francophones among his employees, the Minister of Justice was highly optimistic. He stated that more than 30 percent of the Department’s staff (including eighty-two lawyers and notaries, or 29 percent of legal counsel) were Francophones. In reality, however, this proportion covered both Headquarters and the Montréal Office. In addition, the speech emphasized that it would be wrong to think that most Francophones worked in the Montréal Office or in the Civil Law Section, since those who were attached to these two entities represented only 23 percent of all Francophones in the Department. Most Francophone employees worked in other sections, or were members of departmental legal services. He concluded that the use of French in the Department of Justice was not limited to the Civil Law Section and to the Montréal Office.99
In 1976, however, a special study by the Commissioner of Official Languages painted a somewhat more sombre picture than the image presented by the Minister. In his report, the Commissioner denounced a linguistic situation that had changed little since the beginnings of the Civil Law Section in the 1950s. The Commissioner acknowledged that there had been some improvement in bilingualism since 1969, but added, “… although senior officials were clearly open minded on the subject, the question of status of the two official languages was far from being a priority concern of the Department.” 100 Francophones still had to shoulder the burden of bilingualism, and French-language versions of laws still did not enjoy fair treatment.
Researchers estimated that 30 percent of agents at Headquarters (fifty-four out of one hundred eighty) were Francophones, while in the departmental legal services, this percentage dropped to 21.6 percent (thirty-three out of one hundred fifty-three).101 It was also noted that Francophones were rarely promoted to the higher ranks, and that they were scattered (except in the Civil Law Section). As a result, the English language was given a higher status and the chances of advancement reduced for Francophones.102 On this last point, the investigator suspected that the civil law training of most Francophones was perhaps a factor. The persons interviewed explained that “… the recruitment of Francophone lawyers, who were usually trained in Civil Law, was often limited by … predominance [of Common Law] in Canada.” Moreover, none of those interviewed thought that there should have been more Francophones with a civilian background in sections other than the Civil Law Section. In the case of Anglophone civilians, however, their training did not seem to be an obstacle, because out of one hundred nineteen legal counsel with civil law training employed by the Department of Justice, twenty were Anglophones (and not all of them were members of the Civil Law Section).103
As far as communications with the outside world were concerned, “the Department of Justice seemed to be adhering to the general unwritten principle of communicating with the province of Quebec in French and with the other provinces in English.” For example, the report states that the “Instructions to Agents of the Minister of Justice and Attorney General of Canada” were usually sent in French to agents in Quebec, and in English to those in the other provinces, unless the sender happened to know the language of the person to whom the instruction was addressed.104 In the case of legal opinions, whether oral or written, they were most frequently produced in English because the departments in Ottawa and the regions (except Quebec) and senior officials at Justice were for the most part unilingual in English. These were the “… impediments preventing Civil Law staff from exercising their linguistic rights.” 105
Finally, in the report on his inquiry, the Commissioner of Official Languages criticized the Department for its unequal treatment of French and English in the field of drafting legislation. It was noted that the French version of laws often left something to be desired and that, while the French translation conferred an equal legal status to the documents, it did not constitute fair treatment. In addition, the Commissioner declared that it was necessary to go beyond mere translation to take into account the specific natures of the two systems of laws: “The French versions are … deeply influenced by the Anglo-Saxon approach, whereas, by virtue of their actual and symbolic importance, laws should accurately reflect the spirit and intrinsic qualities of both official languages and of both legal systems.” 106 It was recommended that the Department of Justice take the necessary measures to correct this situation.
The Department quickly set up a committee to examine this issue. The committee wrote its own report, proposing the concept of parallel drafting (or codrafting), which was put in place in the late 1970s. This was a relatively simple system, but unique in the world. With this system, the task of drafting a bill was entrusted to two jurists, one Francophone and one Anglophone, in accordance with an initial plan. They then developed their own separate versions of the bill, consulting each other during the process and remaining in touch with the representatives of the departments concerned. This way of proceeding respects the spirit of the French language and results in two versions of better quality through reciprocal enrichment and of equal value from the legal and linguistic points of view.q, 107
It must, however, be pointed out that the working group that recommended codrafting had originally done so for linguistic reasons. It was believed that this method would undoubtedly ensure greater respect for both systems of law; however, bijuralism was not the main concern. The door was open to that principle, but concrete results were not yet achieved. The French version continued to be more reflective of civil law, while the English version was exclusively tied to the common law. The committee had not understood the full scope of its task, and had not grasped the fact that respect for the two systems of law required more than simply expressing oneself correctly in French.108
For the Civil Law Section, the decade of the 1970s was also a time of reorganization. As a result of the decentralization and integration recommended by the Glassco Commission, more responsibilities were given to the Associate Deputy Minister (Civil Law), including that of supervising the activities of the Montréal Office. In order to lighten his load, a reorganization took place and an Assistant Deputy Attorney General (Civil Law) was appointed, who would be responsible for overall supervision of the Civil Law Section. This position remained vacant after Paul Ollivier replaced Rodrigue Bédard as Associate Deputy Minister (Civil Law) in 1970. In 1974, Alban Garon was appointed Assistant Deputy Attorney General (Civil Law), a position that he held while keeping an eye on tax challenges.109
On March 4, 1974, a second notary joined the Department of Justice. Jean-Claude Marcotte replaced Jacques Roy, who became director of legal services at the Department of Indian and Northern Affairs.110 Marcotte arrived from Québec City, where he had been working in the provincial public service, without having to have an interview or show any mastery of the English language, and he was assigned to a unilingual Francophone position.r Since Roy had left his job six months earlier, Marcotte had to rely upon the explanations of Annette Laflèche (the former assistant of Val Richard), who informed him about internal practices. Many cases and files started to pile up. In 1975, Michel Vermette joined the Civil Law Section to help out Marcotte.111
In 1977, Roger Tassé returned to the Department of Justice after spending five years working as Deputy Solicitor General. He had received a call from the Clerk of the Privy Council, who asked him if he was interested in becoming Deputy Minister of Justice. Tassé accepted the offer without hesitation. He thus became the first Francophone and civilian Deputy Minister, holding a position that had eluded Guy Favreau fifteen years earlier.112 If there had been a myth concerning the inability of lawyers with a civilian training to direct common law lawyers, Tassé managed to dispel it. One of the concerns of the new Deputy Minister was to foster the complete integration of civilians within the Department, and he was a particularly strong supporter of codrafting. It was also during Tassé’s tenure that the Constitution Act, 1982 was adopted and the Criminal Code thoroughly revised. The Department of Justice was becoming more sensitive to the differences between the two systems of law, and sponsored an exchange program which enabled students of common law and civil law to acquire a better understanding of the other legal system and to appreciate it more fully.113
During Roger Tassé’s term as Deputy Minister of Justice, the Montréal Office continued to expand. It was so successful that in the early 1980s, the possibility of opening a regional office in Québec City was seriously considered, to serve the Department of Indian and Northern Affairs and the Royal Canadian Mounted Police, both of which had offices there.s Clients in Québec City had been asking for such a regional office since 1973 because they wanted to be able to obtain ad hoc legal advice without having to contact or travel to Montréal or Ottawa. There were complaints that the agents hired to represent the federal government did not always have the necessary skills, and this added to the workload of the Department’s staff lawyers, who had to go to Québec City. Moreover, the establishment of such an office would have facilitated exchanges between the federal Department of Justice and its provincial counterpart. However, such a plan would have required the reassignment of human and financial resources, which were already limited, and would have reduced the field of action of the Civil Law Section in Ottawa. After further study, the idea was rejected.114
The abandonment of the plan to open a regional office in Québec City did not end the uncertainty over the role of the Civil Law Section in Ottawa, but the Section did take advantage of this decision to get its second wind. Its existence was no longer questioned: “Given the importance and broad application of … the Civil Law system, it is necessary to have separate sections in Justice Headquarters, each specializing in one of these areas, to provide the backup expertise and functional direction required by legal services in client departments or by regional offices.” 115 In 1983, the name of the Civil Law Section in Ottawa was changed to Civil Litigation and Real Property Law (Quebec) Section. However, the duties of the group of civil law specialists remained the same, and the new name was simply intended to reflect more accurately the types of cases they dealt with.116 Alban Garon, who was appointed Associate Deputy Minister (Civil Law) in September 1982 when Paul Ollivier retired,t also redistributed cases between Montréal and Ottawa. In 1983, after an agreement had been reached with Paul Coderre and Jean-Claude Demers, respectively Director of the Civil Law Section and Director of the Montréal Office, cases were assigned on the basis of territory and field of law. Generally speaking, the Montréal Office was made responsible for litigation matters involving the federal government in Quebec territory in the judicial district of the Court of Appeal of Montréal, while the Section dealt with cases for the rest of Quebec. As far as notarial work was concerned, the Section assumed responsibility for real estate cases located anywhere in Quebec except the seven registration divisions in the region of Montréal. The real estate cases in those divisions were the responsibility of the regional office.117
Finally, in 1981, the Department of Justice took one more step forward towards a genuine awareness of the duality of Canada’s legal system, by participating in the National Program for the Integration of Both Official Languages in the Administration of Justice (POLAJ). This program, of which Garon was the first chairman, called upon the resources of the Secretary of State, lawyers in Ontario, Manitoba and New Brunswick, the Canadian Bar Association and the University of Ottawa, the Université de Moncton, and McGill University.
Working together, these partners developed “a … standardized French common law terminology …” and produced working tools for legal practitioners (glossaries, vocabularies, etc.).118 This development should be emphasized, even if it primarily addressed groups with common-law interests. The creation of POLAJ laid the foundations for the development of harmonization and bijuralism, two principles that were ardently defended by Garon’s successor, Anne-Marie Trahan.
p. It would, however, be wrong to think that only Francophones worked in the Civil Law Section. Though few in number, Anglophone civilians did work at the Department of Justice (and in the Civil Law Section), especially from the 1970s on. With the rise of the separatist movement in Quebec, some Anglophones came to feel, rightly or wrongly, that there was no future for them in Quebec. Not much is known about them but, by their presence, they undoubtedly contributed to the dissemination of civil law at the Department and in the federal public service as a whole. Interview with Paul Ollivier (January 26, 2000), Cassette No. 17, Side 1; interview with Maurice Charbonneau (January 7, 2000), Cassette No. 5, Side B.
q. Ten years after the introduction of codrafting, the Department conducted a series of consultations with judges, members of the Bar, linguist specialising in legal language, and revisers of draft legislation. Their reactions were very positive, for they had noted a distinct improvement in the quality of French-language versions of laws.
r. On a more anecdotal note, when Marcotte assumed his new duties the staff of the Department had settled temporarily in the West Memorial Building, while waiting for renovations of the Justice Building to be completed. The new employee was given a huge office, with a floor area of 30 feet by 40 feet, which nobody wanted because it led out to an interior courtyard. In spite of the size of his office, Marcotte was forced to stay in the corner where the telephone was located, because the telephone cord was only five feet long. Interview with Jean-Claude Marcotte (February 2, 2000), Cassette No. 21, Side 1.
s. In fact, since the 1970s, the Legal Services Unit at the Department of Indian and Northern Affairs has had two notaries working in Québec City.
t. Ollivier’s departure was a frightening development for the director of the Montréal Office, Jean-Claude Demers. Ollivier was Demers’s immediate superior, and Demers had great respect for him. When Demers learned that Ollivier was retiring, he was seriously affected. Afterwards, there was a misunderstanding over Ollivier’s successor. Several names were circulating in the community, including that of an individual Demers had met while doing his master’s degree. Demers was opposed to this candidate, and did not conceal the fact. However, it was believed that Demers was talking about Alban Garon, and Demers felt at the time that this was going to be very bad for his relationship with his new boss. However, the two men are good friends today, as is shown by the joint interview they granted us in connection with this research. Interview with Jean-Claude Demers (January 18, 2000), Cassette No. 11, Side 1.
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