Out of the Shadows: The Civil Law Tradition in the Department of Justice Canada, 1868–2000
The Long Road to Recognition: The First Civilians at the Department of Justice (1867 –1952)
In 1867, following the establishment of a federal system, the maintenance and development of civil law in Quebec depended on the governments of both that province and Canada. The British North America Act delimited the areas of competence of the two levels of government, in particular with regard to the administration of justice.Quebec thus became the only Canadian province governed by the Civil Code in respect of its private law. The new federation soon created a department of Justice, but the civilian tradition at first had only a limited place in it.
Birth of a Department
The Department of Justice Canada officially came into existence with the adoption of the Department of Justice Act by Parliament on May 22,1868. This Act set out in five sections the responsibilities of the Department and the duties of the Minister and of the Attorney General. The duties of the Minister, of the Deputy Minister,and of the jurists under his direction, consisted of “…advising the Government on legal matters, drafting the laws to be enacted by Parliament, appearing for the Crown in court and seeing that the administration of public affairs was in accordance with the law.” 1 However, there was nothing in the 1868 Act to indicate that the new Department had to take into account the coexistence of two systems of law.
This situation may be explained by the fact that in 1868, the Department of Justice had its roots in the government and public service that had been in place since the union of Upper and Lower Canada in 1840. The two provinces had parallel structures, each with an attorney general representing the Crown. Confederation eliminated this duality, but without combining the legal experience and traditions of the two departments of government. Sir John A. Macdonald, already Prime Minister, was also the first man to hold the position of Minister of Justice, thus maintaining control over the legal affairs of the country. He kept the staff who had assisted him when he was Attorney General for Canada West, while his counterpart in Canada East, George-Étienne Cartier, and his staff formed the new Department of Militia. The 1868 Act thus made official “the informal structure already in place,” 2 but also had the effect of confirming the predominance of common law, since the civil law specialists were working for another department.
As soon as he assumed office, the Minister of Justice tried to centralize the legal services of the federal government. On June 11, 1868, Macdonald sent a letter to all federal departments, informing them of his role in providing legal counsel and in handling lawsuits for or against the Canadian government. Wishing to be kept informed of any current litigation cases, he asked to be provided with “the names and residences of the professional Gentlemen in whose conduct they may have been placed” and with “all necessary documents or instructions to enable [him] to take such proceedings as may be deemed advisable.” 3 The Department of the Secretary of State, one of the departments that responded to Macdonald’s call, informed him that it most frequently sought the expertise of a certain G. L. Mowat, of Kingston. The Secretary of State also indicated, however, that for the less common cases concerning Quebec, James Armstrong of Sorel was retained.4
The Department of Justice thus had to come to terms with the existence of civil law. In fact, “… in 1867, the federal government had to employ civil law lawyers in order to harmonize laws and to determine the extent of the federal Crown’s prerogatives in the Province of Quebec.” 5 However, it was only in the mid-1870s that the first civil law specialist joined the Department. Up to that point, staff at the Department had consisted of only two lawyers (including the Deputy Minister) with training in common law, and a few clerks who had worked in the office of the Attorney General of Upper Canada before Confederation. The Department of Justice referred any problem requiring a thorough knowledge of the Civil Code to agents in Quebec.a, 6 During this period of definition, the new department thus reflected a continuity of individuals and ideas in which the civil law tradition was barely visible.7
The First Civilians
After the defeat of the Conservatives in the 1873 elections, the new Prime Minister, Alexander Mackenzie, put Antoine- Aimé Dorion in charge of the Department of Justice.b Before the end of his short term as Minister of Justice, Dorion hired Georges Duval as his private secretary. In March 1874, Duval became the first civilian and the first Francophone to join the actual staff of the Department of Justice. He subsequently served as secretary to Dorion’s successor, Télesphore Fournier. It should be noted that in addition to performing his duties as private secretary, Duval could act as legal counsel, since the Department had also made him an attorney for the Province of Quebec when he first arrived. However, Duval spent only a short time at the Department of Justice. In January 1876, he began his career
Georges-Arthur-Odilon Duval was born in Québec City in December 1843, the son of Joseph-Jacques Duval, merchant, and Adélaïde Dubuc. After studying at the Jesuit College in Montréal, from which he obtained a diploma in 1861, he began studying law with Mr. Holt and Mr. Irvine, and later with Mr. L.-B. Caron (before law schools were opened in the universities, it was possible to obtain a bachelor’s degree in law after serving an apprenticeship in a law firm). Called to the bar in November 1865, Duval practiced his profession in Québec City with Caron until he was appointed to the Department of Justice in March 1874. After less than two years, he left the Department (in January 1876) to become the official reporter (and secretary to the justices) of the Supreme Court of Canada. By the time of his death on June 2, 1895, Duval had attained the rank of Chief Registrar of the Supreme Court. On a more personal note, in June 1872, he married the sister of Augustus Power, Isabella, with whom he had worked briefly at the Department of Justice.8
On December 7, 1874, Augustus Power joined Duval, his brother-in-law, as first-class clerk at the Department of Justice. Power, who was the second legal counsel with civil law training to become part of the Department’s staff, quickly rose through the ranks to become the most senior public servant after the Deputy Minister. On January 1, 1879, he was promoted to the rank of Chief Clerk and Legal Counsel, a position he held for more than thirty years. During his career, Power handled cases of individuals who had received the death penalty, and all sorts of issues concerning Quebec and the civil law. On various occasions, he replaced the Deputy Minister of Justice, for the first time in 1885 when G. W.
Burbidge had to leave to supervise the trial of Louis Riel. Power later took over from E. L. Newcombe as Deputy Minister. In 1886 and in 1902, he was part of the team that revised the Dominion Statutes, and he participated actively in drafting the Criminal Code of 1892, as we learn from his correspondence on the subject with interested parties in Quebec.
In addition, Power took part in a number of royal commissions of inquiry.10
Born in Québec City on December 22, 1847, Augustus Power was the youngest son of Justice William Power, of the Superior Court of Lower Canada, and Suzanne Aubert de Gaspé, the daughter of Philippe Aubert de Gaspé, author of the book Les Anciens Canadiens. A Catholic of Irish ancestry, he studied at the Jesuit seminar at St. Mary’s College. He then studied law at McGill University, and obtained his Bachelor of Civil Law (B.C.L.) degree in 1868. The next year, he became a partner of Bernard Devlin (the future Liberal MP in the House of Commons), and continued in private practice until he joined the Department of Justice in 1874.
Starting as a first-class clerk, Power rapidly rose through the ranks to become Chief Clerk in January 1879. He held this position until his retirement in 1911. Appointed Queen’s Counsel in 1887, he declined an appointment to the Circuit Court of Quebec in 1895. For his distinguished career in the federal public service, he was made a companion of the Imperial Service Order (I.S.O.) on May 29, 1903.
After more than 35 years of loyal service to the Department of Justice, Power died tragically in September 1912 after choking in a restaurant in Vancouver, where he had been living since his retirement.11
In January 1883, a third civil law specialist joined the Department of Justice, which had not had any Francophones on staff since the departure of Georges Duval. This was Pierre Martial Côté, a recent graduate, who started at the bottom of
Pierre Martial Côté
Born on April 30, 1861, Pierre Martial Côté was the son of J.-O. Côté, a former clerk of the Privy Council. He graduated from Université Laval and joined the Department of Justice on January 11, 1883 as a third-class clerk. He pointed out to the Deputy Minister his experience and his ability to handle a large workload, and was promoted to various positions, including that of private secretary to the Solicitor General. He finally attained the rank of Chief of the Remission Branch in October 1913. He was made King’s Counsel in 1915, and rewarded for his loyal services with the Imperial Service Order (I.S.O.) in 1917. He also had three brothers in the federal public service, including J.-A. Côté, who was Assistant Deputy Minister in the Department of the Interior. An “educated man and discreet counsellor … always ready to serve,” Côté was “one of the most eminent and esteemed citizens of the National Capital.” He died suddenly on January 30, 1918, at the age of 56.12
the ladder as a third-class clerk. During his career, Côté held almost every position in the Department except that of Deputy Minister. In 1886, he was promoted to the position of second-class clerk. For three years, he combined these duties with the role of secretary to the Solicitor General. In 1894, Côté asked for a promotion to first-class clerk, which he received the following year. In 1907, a second Chief Clerk’s position was created, to help deal with the increasingly heavy workload at the Department.d As he rose in the Department, Côté continued to point out to his superiors the spectacular increase in his workload, the nature and importance of what he was accomplishing, and his experience and loyal services. In 1911, he attained the rank of legal counsel, and took over Power’s duties relating to the review of cases involving the death penalty. In October 1913, he was made Chief of the Remission Branch, reporting to the Minister. 13 This confirmed his criminal law vocation.
For nearly thirty years, P. M. Côté was the only Francophone to be part of the permanent staff at the Department of Justice, a situation demonstrating that, at the time, there was no bilingualism in the Department. In 1881, the Civil Service Commission raised this issue with the Deputy Minister, Z.A. Lash. Lash declared “… that with the exception of himself, the chief clerk (Augustus Power) and the Register keeper, there would not be a great advantage in having the clerks possess a knowledge of French, since the matters coming before the Department in that language would generally require the attention of the Deputy or chief clerk and the Register keeper.” Nevertheless, Lash acknowledged that mastery of the French language would unquestionably be an asset for all staff. 14 This statement suggests that Power possessed some understanding of French, but that bilingualism was not common.
In fact, internal correspondence within the Department was conducted almost exclusively in English, the only exception being where the parties concerned were both Francophone or residents of Quebec. For example, when Côté asked for a promotion in 1906, he sent a letter to Minister Fitzpatrick in French, but the same request was sent to the Deputy Minister, E.L. Newcombe in English.15 As far as communications outside the Department were concerned, Power was in the habit of communicating in French with the Francophone agents retained by the Department to represent it in Quebec. It seems that a certain effort was made to respond in French to those who communicated with the Department in that language. However, it would hardly be surprising that people like P.M. Côté were pressed into service to translate certain documents.
With “… the increasing size of the nation and greater activity of the Federal Government in diverse areas,” the workload of the Department’s legal counsel constantly increased. In 1914, the Department of Justice was deemed to be the largest law office in the Dominion.16 Since the turn of the century, a number of clerks had joined the Department’s team. In June 1909, the Department hired Aimé LeBlanc, who was then 29 years of age. LeBlanc, who had a licentiate in civil law, first worked as private secretary and clerk to the Solicitor General. On April 1, 1911, he was promoted to the position of legal counsel when Power retired. However, LeBlanc did not spend much time at the Department. Barely a year later, in May 1912, he resigned and went to work for a private law firm in Montréal.17 The Department quickly replaced him by hiring René de Salaberry.
De Salaberry joined the Department on June 16, 1912, with the position of law clerk. In 1914, The Department took the initiative of sending a legal counsel to Québec City to
René de Salaberry
On July 2, 1870, Joseph Alexandre René de Salaberry was born in Chambly, Quebec, the son of Lieutenant-Colonel Charles de Salaberry and Joséphine Allard. He studied at the Collège de l’Assomption and Université Laval, from which he obtained a Bachelor of Arts degree in 1891. He then studied law with Doherty, Sicotte & Bernard and was called to the Quebec Bar in 1894. He worked as a lawyer in L’Assomption, Ottawa, Hull and Pontiac, then left private practice in 1912 to join the Department of Justice as a law clerk. In the same year, he was appointed King’s Counsel. Faithful to the family tradition, he put his career on hold in 1914 in order to enlist in the army. In 1899-1900, de Salaberry was a captain of the 83rd Regiment in Joliette. During the First World War, he commanded the 230th Forestry Battalion. He returned to his duties at the Department of Justice in 1919, and left his position as legal counsel in 1927.18
assist a lawyer in that region, Mr. Doutre, in the latter’s inquiry into certain irregularities in the office of the Department of Marine and Fisheries. De Salaberry just had time to complete this assignment before leaving for the war. When he returned from the front, he resumed his position as legal officer. However, the Department assigned him to a number of cases that did not necessarily involve civil law.19
Shortly before the Great War, another civilian joined the Department of Justice. In June 1913, Arthur Beauchesne became a counsel in the area of civil law. Beauchesne had used his talents as a journalist to write a very laudatory memorandum concerning Prime Minister Robert Borden. According to him, Borden was one of the greatest Canadian parliamentarians, and he described Borden as an ally of the French Canadians and one of their great hopes. A few months after this document was published, Beauchesne received a letter of acknowledgement from the Prime Minister, and subsequently an offer of employment at the Department of Justice. Because of his career in journalism, Beauchesne was well known before he joined the Department, and on a number of occasions, he received special requests from individuals who had contacts in the political world. In 1916, less than three years after his arrival, he left the Department of Justice to become Clerk Assistant of the House of Commons.20
The Department hired Joseph Adolphe Renaud to replace Beauchesne. When he arrived at the Department on March 15, 1916, Renaud was in his fifties and already a King’s Counsel. He also had vast professional experience. As a legal counsel, he was responsible for cases where Quebec law was involved, and for docket work in Quebec. This type of work was distributed by the Department on a territorial basis.21 In 1924, the internal staff structure of the Department was reorganized and a second Assistant Deputy Minister’s position was created, which was given to Renaud. This change coincided with the appointment as Minister of Justice of
Arthur Beauchesne was born on June 15, 1876, in Carleton, Bonaventure County. The son of Caroline and Pierre Clovis Beauchesne, he studied at St. Joseph’s Classical College in Memramcook, New Brunswick. He received a Bachelor of Arts degree in 1895, and became private secretary to Pierre Évariste Leblanc, Speaker of the Legislative Assembly of Quebec. He subsequently performed the same duties for the Lieutenant Governor, Sir Adolphe Chapleau. In 1897, he began a career in journalism, and contributed to a number of publications including La Minerve, La Presse, La Patrie, the Star, the Gazette, and Le Journal, of which he was editor-in-chief. Not everyone agreed with his views, however. He was sued for libel and banished from the press gallery in Ottawa.
During the same period, Beauchesne began studying law. He obtained his law degree from Université Laval and was called to the Quebec Bar in January 1904. He then practiced law in Montréal until 1913, but continued to take an interest in political issues. On two occasions, he stood for election as a Conservative candidate, in the federal elections (1908) and the provincial elections (1912). However, he was defeated both times, and turned to analyzing federal politics. He wrote a memorandum praising Prime Minister Robert Borden, and this opened the doors to the Department of Justice for him in June 1913. “… Gifted with a quick, but solid judgment,” Beauchesne became King’s Counsel in 1914, and laid plans for a brilliant career in the Department. However, fate was to decide otherwise.
On February 3, 1916, the Parliament Buildings burned down, and the Clerk Assistant of the House of Commons, J. B. R. Plante, perished in the fire. The Speaker of the House, Albert Sévigny, thought that Beauchesne, with his detailed knowledge of parliamentary law and of the French language, was the ideal replacement for Plante. Beauchesne took up his new duties in March 1916, and in 1922, published the first edition of his Rules and Forms of the House of Commons of Canada, which remained the definitive reference work on the subject until very recently. Beauchesne was promoted to the position of Clerk of the House of Commons in 1925, and was the first French Canadian to hold this post.
Even after his retirement in 1949, Beauchesne continued to be interested in politics. From 1950 to 1952, he was a constitutional advisor to the Government of Quebec. In 1953, he made a last attempt to be elected to the House of Commons in the riding of Ottawa East, but suffered a third defeat. He died in 1959. Arthur Beauchesne was convinced that, “when a French Canadian gives proof of his ability, his nationality is no obstacle to his advancement.” 22
Joseph Adolphe Renaud
Joseph Adolphe Renaud was born in Quebec on September 10, 1862. He was educated in that province and became a lawyer in 1884. He was appointed Queen’s Counsel in 1896, and served as honorary Lieutenant-Colonel of the 83rd Regiment from 1898 to 1904. He practiced law in the city of Joliette, where he was also the Mayor, until he joined the Department of Justice in 1916. He was a Conservative candidate in three federal elections, but without success. At the Department, he started his career as a legal officer, and in 1924, he was appointed to the second Assistant Deputy Minister’s position. He died in 1932 while he was still working for the Department, one year after being appointed counsellor for Quebec.23
Ernest Lapointe, a Francophone and civilian, and marked the beginning of a more or less continuous tradition. Following the appointment of Renaud, one of the Assistant Deputy Minister positions was reserved for a lawyer trained in the civil law, and the other for one with a common law background.24
As Assistant Deputy Minister, J. A. Renaud continued to be responsible for Quebec legal issues, including the revision of the Criminal Code in 1927.25 From the late 1920s on, his name appears regularly in civil law cases. In addition to writing opinions for the Deputy Minister, he collaborated with outside agents, to whom he sent a copy of the “Instructions to Agents.” 26 As of 1929, Renaud could rely on the assistance of a new recruit, Paul Fontaine. However, when Renaud died in 1932 at the age of 69, he was no longer Assistant Deputy Minister, but Senior Counsel for Quebec. At that time, his duties involved dealing with cases that came from Quebec or required a knowledge of civil law or the French language, and directing the employees of the Department to whom these cases were assigned.27
As mentioned earlier, the Department of Justice continued to use outside agents because its permanent staff could not cope with all the work. The Department’s legal counsel thus had to collaborate with lawyers from the private sector. For cases concerning Quebec, notaries were also used, especially for particularly complex real property issues. These agents were often chosen on the basis of suggestions made by various parties, such as members of parliament, the Minister of Justice, the Solicitor General and even the Prime Minister,28 as a way of rewarding lawyers and notaries for the support they had given in the previous election campaign. In 1903, A. Bourbonnais, M.P., sent Minister Fitzpatrick a letter lauding the merits of his candidate: “Mr. Gladu is competent. The assistance that he and his son have given us in the last general elections deserves consideration for this favour. Please be assured that we will be most grateful to you for anything you can do in this regard.” Mr. Gladu was in fact
Jean Louis Paul Fontaine was born in Québec City on October 15, 1893, the son of Adalbert Fontaine, a lawyer and a professor at Université Laval, and Alexandrine Bergevin. In 1918, he obtained a licentiate in law and licentiate in philosophy from Université Laval. He was called to the Quebec Bar on January 1, 1919, and became King’s Counsel in the same year. Fontaine then spent three years studying in Paris, obtaining a degree in moral and political science. When he returned to Canada in 1922, he first practiced his profession in his native city, in the firm of Lemay, Beaulieu and Chaloult. He then joined the Department of Justice in Ottawa in 1929, as junior advisory counsel. Two years later, he became the senior person responsible for civil law in the Department, and in 1935, was appointed counsel. When Charles Stein left the Department in 1949, Fontaine was appointed Assistant Deputy Minister. After 1952, he retained this position and was also made responsible for the new Civil Law Section. When he retired from the Department in April 1955, Fontaine was appointed a judge of the Citizenship Court of Montréal. He continued to preside on this court until he was forced to retire in 1958 because of his age.29
hired as an agent of the Department.30 On the basis of these recommendations, the Department drew up a list that remained in effect until the next change of government.31 The list of lawyers and notaries for the year 1899 included the name of Lomer Gouin, the future Premier of Quebec and later Minister of Justice in Ottawa.32 However, while the Department hired outside agents to deal with matters concerning Quebec, the presence of civil law specialists continued to be exceptional on its legal staff.
a. It should be noted that the Department of Justice also retained outside legal counsel, even for cases in provinces other than Quebec, because its staff was limited. Furthermore, in spite of Macdonald’s efforts to centralize the delivery of legal services, each government department continued to hire its own lawyers in order to obtain advice on a day-to-day basis.
b. The aim of this history is to dispel the obscurity surrounding the first lawyers with civil law training who worked in the Department of Justice, rather than in the political sphere. Consequently, we have not studied the Ministers of Justice in depth. However, we cannot deny the presence of a number of ministers with civil law training over the years, and their influence on the Department’s desire to make a place for civil law. See the list of these ministers in Appendix 1.
c. In 1875, the Supreme Court had just been created. The Conservatives had tabled draft legislation to create a supreme court in 1869, but the French-Canadian wing was opposed to it. Only two of the seven proposed justices would be French Canadian, so the five others would not be familiar with civil law. Finally, it was Télesphore Fournier who tabled a bill to create the Supreme Court in February 1875. The Francophone Conservatives continued to oppose the bill but their Liberal counterparts, who were now in power, thought it better to have a Supreme Court in which two of the six justices would be trained in French civil law, rather than a Privy Council in which no judge would be familiar with this type of law. See P.B. Waite, Canada 1874-1896: Arduous Destiny (Toronto: Oxford University Press, 1971) pp. 38-39.
d. Côté pointed out to the Minister, Charles Fitzpatrick, that all members of the Department’s staff had been entitled to a salary increase or promotion since the Minister had taken up his position. If Fitzpatrick did not respond favourably to his request, Côté would have been the only person not to have “… benefited from his kindness and liberality.” National Archive of Canada (NAC), Department of Justice (RG 13), Vol. 142, File 1906-573, “PM Côté – Dept. Justice – Application for promotion,” letter from P. M. Côté to Charles Fitzpatrick, May 1906.
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