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

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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 Duval

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

at the Supreme Court of Canada.^c He was first a reporter, but moved up through the ranks of the hierarchy to the top, namely the position of Chief Registrar.⁹

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

Augustus Power

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

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^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.

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