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

Paving the Way for Genuine Bijuralism: Harmonization and Recognition of the Place of Civil Law at the Department of Justice (1986 to the Present)

In the second half of the 1980s, a kind of break in tradition occurred for both the civil law specialists and senior management in the Department of Justice. For the first time since the days of W. S. Edwards (1924-1941), the position of Deputy Minister was given to an individual who had not had to climb up through the ranks of the departmental hierarchy. When Roger Tassé left the federal public service to enter private practice in 1985, he was replaced by Frank Iacobucci, a lawyer trained in the common law and a native of British Columbia. However, the new Deputy Minister proved to be very open to the presence of civilians. He, in fact, appreciated the opportunity that his new job gave him to handle cases involving civil law, but he made no claims to be a specialist on the subject.1 When Alban Garon (now Chief Justice of the Tax Court of Canada) retired from the public service in 1986, Iacobucci had to find a new Associate Deputy Minister (Civil Law),a and he chose Anne-Marie Trahan.

Trahan, who had been working at the Canadian Transport Commission since 1981, agreed to come to the Department of Justice in Ottawa as Associate Deputy Minister. She became one of the few women to hold such a high position in the public service. Like Iacobucci, she had not pursued her career in the team she was preparing to direct. Her predecessors, Paul Ollivier and Alban Garon, had been involved in the development of the Civil Law Section from its beginnings, and even though she knew little about it, Trahan continued their work. Drawing on the bijural achievements of the Department, she was determined to defend the position of civilians. She had no intention of letting her civil law colleagues be regarded as second-string legal counsel. During her term at the Department of Justice, Trahan made senior officials aware of the need to recognize the specific character of the Quebec legal system and to treat it on an equal footing.2

The new Associate Deputy Minister also had to forge closer ties between the Department, the Quebec Bar and the Chambre des notaires du Québec. At the ceremony marking the opening of the courts in 1986, the Minister of Justice, Ray Hnatyshyn, expressed the wish that these two professional associations would be “consulted on the policies and programmes of the federal Department of Justice.” 3 Since many members of the Quebec Bar (Hull Section) worked in the Department of Justice in Ottawa, Trahan tried to bring these parties together, to encourage contact at the departmental level, and to ensure that the activities of the Department would more closely reflect the concerns of Quebec society. She also found ways of inspiring the civilians and other Francophone employees with an esprit de corps and a feeling of belonging, by inviting them all to celebrate Saint-Jean-Baptiste Day with the Civil Law Section and creating various opportunities for them to get together.4 This cohesion proved useful when the time came to defend the group of Ottawa civil law specialists from pressures to centralize civil affairs in the Montréal Office.

Distribution of Cases Between Ottawa and Montréal

Anne-Marie Trahan was convinced that a federal presence in Montréal was necessary, in order to show Quebec’s lawyers and notaries that the Department of Justice in Ottawa was also their department.5 The original aim of setting up the Montréal Office in 1961 had been to bring the federal Department of Justice closer to its provincial counterpart, but as political conditions changed, it also acquired the implicit mandate of making the orientations of the federal government known.6 Even today, the Montréal Office is not perhaps as well known to the general public as the Department of Revenue, for example, but in legal and university circles, it helps to spread federal government influence, in addition to being a concrete expression of bijuralism.7 The importance that the Montréal Office had acquired in comparison with the Civil Litigation and Real Property Law (Quebec) Section in Ottawa had the effect of creating a certain rivalry between the two groups of civil law specialists. Trahan had barely started working at the Department when she had to defend the usefulness of having the Civil Law Section at Headquarters. The arrival of new managers, including Jacques Letellier who succeeded Jean-Claude Demers as Director of the Montréal Office, had only intensified the debate over the distribution of cases, especially since the Civil Affairs Section continued to develop more rapidly in Montréal than in Ottawa.b

This unequal growth forced the new Associate Deputy Minister to examine the redistribution of cases, and to reflect upon the future of the civil law administrated by the Department in Ottawa. Above all, Trahan did not want Montréal to absorb all the activities associated with cases involving the civil law in Quebec. According to her, the Department of Justice Act had, since 1960, recognized the duality of the Canadian legal system, although in an implicit form. To deprive Headquarters of a section devoted to civil law would be to eliminate the national aspect of this system. On a more practical note, Trahan found that most federal departments and agencies had their headquarters in Ottawa, and that it was in their interest to have easy access to civil law specialists, especially for cases that were likely to end in litigation. The agreement created between Demers, Coderre and Garon in April 1983 seemed to work well, but Trahan recognized that adjustments were necessary to ensure a clean division, while remaining flexible enough to respond to individual cases.8

Paul Coderre, who had been director of the Civil Law Section since 1969, had been using similar arguments. In 1990, when he was about to retire, he expressed his opinion about the need to have a section devoted exclusively to civil law cases coming from Quebec. In the first place, “… because of Quebec’s demographic and economic importance, legal affairs have usually been very intense in that province,” and Quebec cases accounted for a considerable part of the activities of the Department of Justice from the beginning. Furthermore, the Department’s civil law specialists, being in Ottawa, were closer to the senior officials of other departments, and could more easily consult with specialists in federal law. The opening of a regional office in Montréal had helped to increase the size of the family of civil law specialists, but there was unavoidably some overlapping in their areas of competence. Redistribution of cases was thus necessary. However, Coderre pointed out that this reduplication did not justify the systematic transfer of civil law cases to Montréal (especially if clients did not ask for it), and that such a manœuvre “[would lead to] the disappearance of almost all staff from the Section in Ottawa.” 9

This continued to be a pending issue until 1997, after the Montréal Office (known as the Quebec Regional Office or QRO since the restructuring of regional offices in 1995) hired a record number of legal counsel, in order to respond to an increasing demand for services in the immigration field. Representatives of the QRO understood the Department’s desire to maintain a civilian presence in the national capital, but nonetheless affirmed that “… maintaining a civil law section in Ottawa … [was] a departure from the rationalization of services seen in other provinces.” 10 They, therefore, proposed that the Civil Law Sector be reorganized. This would give Montréal its own cases, so that the Civil Litigation and Real Property Law (Quebec) Section would not become a mere branch office of the QRO. This proposal was adopted. However, a second suggestion was rejected, namely that the entire Quebec territory be assigned to the regional office, leaving a new Ottawa office to deal with cases originating in the national capital region.11 It was, however, clear at Headquarters that the two groups of civil law specialists should be maintained, and that what was required was a new sharing of tasks involving everyone’s collaboration.12 Any plan involving a threat to the existence of a civil law section in Ottawa would have been a departure from the department’s undertaking to promote bijuralism, which it had assumed since the beginning of the plan to harmonize federal statutes.13

Harmonizing Federal Laws: From Administration to Politics

Ever since jurisdictions had been divided between the federal government and the provinces in 1867, “civil law seemed to be an ‘anomaly’ …” because Quebec was the only province not governed by common law. As Canada moved into the 20th century, the avowed aim of the Supreme Court of Canada was to make private law uniform throughout the country, in order to eliminate this disparity. In fact, this policy was reflected in the frequent rejection of civil law solutions in favour of common law solutions. At the time, harmonizing federal legislation meant subjecting Quebec private law to the private law of the rest of Canada.14 The situation has never ceased to evolve, as is illustrated by the introduction of codrafting in the late 1970s. However, the codrafting method, which was proposed by the Department’s task force in response to the study of the Commissioner of Official Languages, had one significant defect. It was later determined that the unequal treatment of civil law would continue until the Anglophones of Quebec had access to an Englishlanguage version of the federal statutes drafted on the basis of civil law, and until a French-language version taking the common law into account was available to the Francophone communities in the other provinces.15 Consequently, more than ten years after the National Program for the Integration of Both Official Languages in the Administration of Justice (POLAJ) was created, its role was broadened to ensure that the four major interest groups c had access to the statutes of Canada in the language of their choice.16

The announcement that a new Civil Code of Quebec had been adopted gave the Department of Justice an opportunity to take real steps along the road to genuine legislative bijuralism. In June 1989, Anne-Marie Trahan had already recognized that it was essential to begin studying “the impact of the new code on the activities of the federal government,” since this work would take a considerable amount of time.17 The plan to harmonize federal legislation with Quebec civil law had a practical aim: to renew vocabulary and thus obtain a compatible, uniform language that would facilitate application of these laws to Quebec by reducing the problems of interpretation by the courts.18 However, this initiative also had political importance at a time of crisis in national unity. After the failures of Meech Lake (1987) and Charlottetown (1992), the Department of Justice was prepared to do, at the administrative level, what the men and women in politics seemed incapable of doing, namely to recognize officially the distinct nature of Quebec’s society.19

a When the federal statutes were revised in 1985, linguists specializing in legal language thought that the French title “sous-ministre associé” was a literal translation of “Associate Deputy Minister.” Since one of the aims of the revision was to correct translation errors and improve the French-language version of the statutes, the opportunity was taken to replace the French term by “sous-ministre délégué.” Department of Justice (DJ), Organizations – National Headquarters, File 227-24, Volume 1, Civil Law SectionSection droit civil, notes for a lecture given by Alban Garon at the annual meeting of New Brunswick French-language legal practitioners, concerning the current state of the administration of justice in the two official languages (Université de Moncton), October 20, 1984, p. 1; interview with Anne-Marie Trahan (January 4, 2000), Cassette No. 3, Side B.

b In 1986, the Civil Affairs Section of the Montréal Office had twenty-four lawyers and one notary, and handled approximately 6,000 to 7,000 cases per year. It was, as the Quebec Bar Association put it, “a real beehive.” Two years later, the Civil Litigation and Real Property Law (Quebec) Section had eight lawyers and three notaries. “Une véritable ruche : le bureau de Montréal du ministère de la Justice du Canada,” Barreau 86 (May 1986), p.1; Department of Justice, Annual Report 1987-1988 (Ottawa: Minister of Supply and Services Canada, 1988), pp. 43 and 44; Department of Justice, Annual Report 1988-1989 (Ottawa: Minister of Supply and Services Canada, 1990), p. 14.

c These four major interest groups comprised the entire population of Canada, which could only be fairly served if both common law and civil law were exercised in both French and English.

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