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

The Glassco Commission and Its Repercussions

The Glassco Commission, set up in September 1960, was given terms of reference “… to inquire into and report upon the organization and methods of operation of the departments and agencies of the government of Canada and to recommend the changes therein which [it considered] would best promote the efficiency, economy and improved service in the dispatch of public business.” 55 The Commission’s inquiry dealt with various problems that were common to all departments, and it was from this perspective that legal services became the subject of a more in-depth study. When they had completed their work, the three members of the Commission made recommendations that considerably changed the direction of the Department of Justice, and hence that of its civilian lawyers.

In spite of efforts at centralization that dated back to the birth of the Department of Justice in 1868, it became obvious, nearly a century later, that “a significant amount of legal work was being done for federal departments without direct involvement or participation of the Department of Justice.” 56 The various departments and agencies of the government had gradually set up their own legal services. This situation had already been denounced by Ernest Lapointe in 1935, when he was Minister of Justice. According to the Department of Justice Act, the Department was responsible for all the legal activities of the government, but other departments had taken the liberty of hiring their own lawyers.j, 57 In the early 1960s, it was estimated that more than 85 percent of the government’s lawyers (including legal counsel in the other departments and outside agents) did not come under the responsibility of the Department of Justice.58

The Glassco Commission examined this issue, and proposed that all legal services (with a few exceptions) be grouped together under the direction of the Department of Justice, in order to eliminate the many disadvantages of a decentralized practice.59 The Department quickly responded, and in 1965, it appointed Alban Garon to the position of Director of Departmental Services (at the same time being responsible for tax cases in Quebec).60 Garon’s role was to see that this first recommendation was implemented. A long process of negotiation with the departments then began.

Over a period of several years, Garon met with the Deputy Ministers and tried to persuade them of the benefits that their departments would obtain if they had lawyers reporting to Justice. The Director of Departmental Services also had to propose candidates, and he used this position to give equal opportunity to civil law specialists and Francophones. Garon’s changes sometimes met with resistance on the part of the Deputy Ministers, who had to accept the imposition of a new organization. The presence of legal counsel from the Department of Justice interfered with the cultural autonomy that had been developing since the time when departments had first started hiring their own lawyers.61 This was an enormous task for Garon, and in 1970, Jean-Paul Fortin left the Civil Law Section and was assigned to Garon as an assistant.62

In addition, at least two legal counsel left the Civil Law Section to become heads of departmental legal services. Maurice Charbonneau headed up the legal services at Customs and Excise from 1968 to 1971. He then moved to Indian and Northern Affairs, where he noted that his predecessor had never hired any Francophones, but that a civil law specialist had been “imposed” upon him just before his departure in 1971. Charbonneau tried to reverse this trend, or at least to establish a better balance between the two groups, by recruiting Francophone civilians. In 1973, Charbonneau was replaced by Jacques Roy, who became the first notary to head up a team of common law lawyers.63

Regarding the impact of integration on the number of legal counsel, it is estimated that between 1966 (the year in which the Government Organization Act came into force) and 1970, nearly 200 federal government lawyers became employees of the Department of Justice.64 In order to ensure proper management of all these legal counsel, the members of senior management who sat on the Department’s executive committee started to take charge of supervising the legal services in four or five departments.65 The Department thus returned to its roots, and “… the revamped Department more closely reflected the organization mandated by the Department of Justice Act.” 66

Apart from the question of delivering legal services to the departments, the Glassco Commission examined the process of legislative drafting and translation of texts of law. The Commission discovered that laws were first drafted in English by Anglophone lawyers, and were then sent to the translation services. The translators, who had not participated in the preliminary discussions, did not understand the real purpose of the laws, and could only provide a French version that was often cumbersome. Furthermore, a translator interviewed by the Commission noted that it was not uncommon for the English version of a piece of legislation to linger for months in the offices of a department, after which the translation had to be completed in great haste so that the two versions of a bill could be ready at the same time for a second reading.67

Following the suggestions of their advisors, including those of the Associate Deputy Minister (Civil Law), the three members of the Commission proposed that a Francophone lawyer with civil law training take part in the drafting process at an earlier stage. By participating in the discussions with the individuals responsible for the original version, the Francophone lawyer could detect certain subtleties and particular effects that the draft legislation in question might have on the Quebec population governed by the Civil Code.68 The concept of bijuralism in federal laws is thus not new, but it seems that the Glassco Commission was more open to this idea than the Department of Justice at the time.

In response to this recommendation, the Deputy Minister, E. A. Driedger, also believed that it was preferable to add a translator with civil law training to the legislative drafting team before the English-language version of a piece of legislation was completed. However, he was skeptical about the possible impact of a particular piece of draft legislation on the citizens of Quebec. Driedger believed that the new laws adopted by Parliament came under neither civil law nor common law, but rather under federal law, which in his view embraced the two systems. He added that if certain cases involving property or civil rights required special treatment, the Legislative Section could always consult members of the competent legal staff, namely those in the Civil Law Section.69 To ensure that translators were less pressed for time, the Department of Justice committee responsible for examining the Commission’s report suggested that civilian jurists be assigned exclusively to draft legislation put forward by the government, so that a more adequate French-language version could be drafted.70

The Glassco Commission also recommended that the Department of Justice seriously consider opening regional offices, in order to “facilitate the … conduct of litigation and prosecutions … in centres across Canada where the volume of work justifies such action.” 71 None of the members of the Department’s senior management were surprised by this proposal, for they knew that this measure was necessary so that the federal departments and agencies with offices elsewhere in the country could be better served. This decentralization allowed these clients to obtain the advice of specialists, and reduced the use of lawyers in private firms. In 1957, the Deputy Minister, W. R. Jackett, had advised the Minister, E. D. Fulton, of this possibility. The establishment of regional offices could only be done with an adequately trained and sufficient staff.72 For some time, the Criminal Section had been trying to recruit a member of the Quebec Bar in order to free up Louis-Philippe Landry, so that he could deal with criminal cases in Montréal.73 Deputy Minister Driedger agreed with this principle, but according to him, management of these offices could not be entrusted to just anyone. Experienced lawyers were needed to supervise activities, and in Ottawa, staff was already limited.74 In spite of these difficulties, the Department opened a small office in Montréal in 1965. This was the first of a group of nine regional offices.k

j. It seems, however, that for cases where civil law advice was required, the departments were already calling upon the Department of Justice. This meant they did not have to hire their own civilian, a solution hardly warranted by the workload. National Archives of Canada (NAC), Royal Commission on Government Organization (RG 33/46), Vol. 308, File No. 3, “Advisory Committee,” memorandums from various departments explaining the legal services they employed, 1961.

k. Other regional offices were added later: Toronto and Yellowknife in 1966, Vancouver in 1967, Winnipeg in 1969, Whitehorse and Halifax in 1970, Edmonton in 1972 and Saskatoon in 1974.