Out of the Shadows:
The Civil Law Tradition in the Department of Justice Canada, 1868–2000
Gaining a Place at the Department of Justice: The Birth of the Civil Law Section and Its Development (1952–1986)
The Civil Law Section quietly came into being on October 1, 1952, for its creation was part of a larger restructuring project proposed by the Deputy Minister, F. P. Varcoe. This new structure, which was more functional than the previous organization, distributed the Department’s twenty or so lawyers into six sections, including a section for civil law.a The Civil Law Section “[was] essentially concerned with providing legal advice to the Minister of Justice, federal departments and agencies, and litigation cases before the … courts,” for all cases that concerned Quebec but did not have any criminal connotation.1 The Section thus had a fairly broad mandate, and it was now up to its members to make sure that the Section had a proper place within the Department of Justice.
The Civil Law Section experienced difficult beginnings, when it still only had two members. These were Paul Fontaine, senior legal counsel, and Jean Desrochers, who had joined the Department in December 1947 to replace Roméo Gibeault, who had died six months earlier. Most cases were then entrusted to private sector agents, a practice that continued even after the arrival of Paul Ollivier, in February, 1953. Most of the work consisted of handling automobile accidents involving vehicles owned by the federal government. Since the Department still did not have a tax division, the Civil Law Section was also responsible for tax cases concerning the Province of Quebec (until the creation of a separate section in 1961).2
In 1954, the small team of three legal counsel was again reduced to two when Desrochers left the Department to emigrate to California.3 No lawyer was hired to replace him. With such a small staff, the Civil Law Section, which was run by Fontaine, could only play a limited role.4 In April 1955, Fontaine retired from the Department to accept an appointment as judge of the new Citizenship Court in Montréal. After his departure, the Civil Law Section began a new period of development under Guy Favreau.
The Start of a New Era
On May 16, 1955, Guy Favreau replaced Paul Fontaine, taking over the duties of Assistant Deputy Minister (Civil Law). Favreau, already a Justice Building regular as a member of the Restrictive Trade Practices Commission since 1952, was a genuine source of inspiration for those who had the good fortune to work with him in the Civil Law Section. Under the leadership of this “great jurist,” 5 the Section was finally able to distinguish itself within the Department of Justice, where common law and the English language largely dominated. Favreau favoured recruiting young Francophone lawyers b with a civil law background to take over cases which, up to that point, had been entrusted to private sector agents.
As soon as he assumed his duties in the Civil Law Section, Favreau started looking for young lawyers under 27 years of age who had obtained excellent academic results.6 These new arrivals were to form the core group of civil law specialists that would enable the Section to develop, and would later lead to the rise of civilian legal counsel in the Department of Justice and throughout the federal public service. In 1955,
Guy Favreau was born on May 20, 1917, in Montréal, the elder son of Léopold Favreau, an animator and an editor for a weekly newspaper, and Béatrice Gagnon. After completing studies at the Collège André-Grasset, Guy Favreau obtained a bachelor of arts degree and a licentiate in law from the Université de Montréal. Called to the Bar in 1940, Favreau first worked in partnership with Georges F. Reid (1942–1946), and then with Gustave Adam (1946–1952). A well-regarded lawyer in the Montréal legal community, Favreau served on a number of commissions and special committees before arriving in Ottawa in 1952, where he became a member of the Restrictive Trade Practices Commission.
Guy Favreau was appointed Queen’s Counsel in 1954, and then became Assistant Deputy Minister of Justice in 1955, after the departure of Paul Fontaine. In addition to his duties at the Department, this champion of Francophones helped to create the Faculty of Civil Law at the University of Ottawa, where he subsequently taught. In 1960, he left his position as Assistant Deputy Minister to return to private practice in Montréal, but by that time, he had left his mark on a generation of young civil law specialists.
However, Favreau was soon back in Ottawa. Seriously courted by the Liberals, he jumped into federal politics, and was elected in the riding of Montréal-Papineau (1963–1967). Lester B. Pearson appointed him to his Cabinet, first as Minister of Citizenship and Immigration, then as Minister of Justice and Attorney General of Canada (February 3, 1964 – June 29, 1965). Favreau continued the work begun by the former Minister of Justice, E.D .F ulton (who had begged him to remain at the Department in 1960 “for the good of the country”) in developing a formula for amending the Canadian Constitution, known as the Fulton- Favreau formula.
However, what particularly attracted the attention of the media was Favreau’s position in the case of Lucien Rivard, a drug trafficker imprisoned in Montréal, whom the United States wished to extradite. Rivard managed to escape from prison, but was recaptured four months later. During this time, accusations of bribery associated with this escape plunged the Liberal government into hot water (the private secretary of the Minister of Citizenship and Immigration, Raymond Denis, had allegedly attempted to pay off the lawyer for the American government, who laid a complaint.) Thinking that the complaint would be difficult to prove in court, Favreau let the matter drop, without consulting legal counsel in his own department. In the opinion of Mr. Justice Dorion, who headed the commission set up to inquire into this matter, the Minister of Justice, in acting alone, showed lack of judgement. The inquiry commission did not question Favreau’s honesty or integrity, but it openly criticized his naiveté, and the press went so far as to accuse him of incompetence.
At that point, Favreau was Minister of Justice and Attorney General of Canada, Leader of the Government in the House of Commons, and leader of the Quebec Liberals (it was indeed said that such a workload might have affected his judgement, pushing him to make a hasty decision). After the report of the Dorion Commission was published, however, he tendered his resignation. While people were clamouring for his head, he was appointed President of the Privy Council by Prime Minister Pearson, who did not want to lose him completely. To all intents and purposes, however, his political career was finished. He was appointed as a judge of the Superior Court of Quebec on April 17, 1967, and died a few months later, on July 11, 1967.7
Alban Garon responded to a competition notice posted in the law faculty of Université Laval. Garon did not have specific career plans, but did want to practice law in Ottawa and learn English at the same time. The young graduate obtained an interview with Guy Favreau and Walter Regan (of the Public Service Commission). He had difficulty answering questions asked in English, but Favreau and Regan reassured him, telling him that he would certainly be able to learn English and that the work in the Civil Law Section was often in French. Garon joined the Department of Justice in July 1955 as legal counsel.8
In May of the following year, Gérald Beaudoin joined the civil law team after working in a private Montréal law firm with Paul Gérin-Lajoie. Beaudoin was interested in a career in the public service, and went to Ottawa after Gérin-Lajoie talked to him about his great friend, Guy Favreau, who was looking for young lawyers. The Department of Justice seemed to be an ideal environment for Beaudoin, who had a particular interest in political questions. In addition to serving as legal counsel in the Civil Law Section, Beaudoin played the same role for three days a week at the Department of Mines (where he was the only Francophone) as a “delegate” of the Section.9
In 1957, Roger Tassé joined the small civil law group after a one-year assignment to the Combines Section, which was directed by T. D. Macdonald. Tassé’s experience at Combines had enabled him to improve his command of English, but he felt that his work did not allow him to use the knowledge he had acquired in his law studies at the Université de Montréal. He was about to leave the Department when Favreau held a competition to find a lawyer for the Civil Law Section. Tassé and Gaspard Côté both applied, although only one position was available. They met each other in the library of the Supreme Court of Canada, where they had gone to answer the questions of the Assistant Deputy Minister in writing. Finally, Favreau decided to hire both lawyers. However, Gaspard Côté began his career in the Criminal Section, thus becoming thefirst Francophone with a civilian background to work in an area other than civil law. For his part, Tassé joined Garon and Beaudoin in the Civil Law Section, forming a group nicknamed “The Three Musketeers” because of their close ties of friendship.10 The other member of the team was Paul Ollivier, who had been made director of the Section on May 1, 1957.11
The Civil Law Section experienced staff increases in December 1958, when Raymond Roger joined the team, and in February 1960, when his colleague at McGill University, Rolland Boudreau, followed his example. A few months earlier, Boudreau had seen an advertisement in La Presse describing attractive careers in Ottawa for young law graduates. He knew of the Department only by name, but he was looking for a challenge and applied for a vacant position in civil law. He was told to report to the library of the Bar Association at the Montréal Court House, in order to meet Guy Favreau and the representatives of the civil service. Favreau, who was an “excellent salesman,” managed to convince Boudreau to think seriously about the job he was offered, although Boudreau’s fiancée was in Montréal and he did not feel particularly attracted by Ottawa. The young lawyer said that he did not have the time to answer the questions asked on the examination right away. For the Assistant Deputy Minister, however, this was not a problem. Favreau gave Boudreau the questions so that he could answer them in the evening, and told him where to find the answers. After some hesitation, Boudreau finished the examination paper, and sent it to the Department the next day.12
More than three months had passed when Boudreau happened to meet Roger Tassé at the Superior Court. Tassé told him that he had obtained the position: “So it seems you are coming to Ottawa to work with us?” A few days later, Boudreau did receive a letter from the Department of Justice (in English) confirming this news. Boudreau went to Ottawa on February 8, 1960, in the middle of a snowstorm, to replace Alban Garon who had left the Department of Justice six months earlier to become head of legal services at the Department of Public Works.c When Boudreau arrived at the Department, he found two piles of cases awaiting him. Some of the files were five months behind schedule. At the time, the Section had been reduced to four members, since Gérald Beaudoin had recently been transferred to the Advisory Section.13
Initially, the main task of these lawyers was to coordinate the work of outside agents (whom this Section continued to hire on the basis of its established list, because of the large number of cases it had to deal with). In time, however, they became more involved in dealing directly with cases, appearing before the Superior Court of Quebec, the Exchequer Court (now the Federal Court), and the Supreme Court of Canada.d Their activities at the Department of Justice gave them the opportunity, at the beginning of their careers, to deal with very interesting and complex cases, to which they would not have had access if they had practised their profession in the private sector.14
The Civil Law Section was still in its infancy, but under the leadership of a “prominent civilian,” 15 its future was very promising.e Guy Favreau, who was well regarded in the Quebec legal community, promoted the Section at the Federal Lawyers Club in Ottawa, and mixed easily with Anglophones. A good friend of Deputy Minister Wilbur Jackett, Favreau made his point of view known to senior officials of the Department, and thus obtained for the Civil Law Section the resources it needed for its development.16 However, the relative calm of the previous five years was followed by a more eventful period, which was of decisive importance for the Section.
- a. The five other sections were Civil Litigation, Criminal, Advisory, Legislation, and Combines.
- b. The hiring of young lawyers was a phenomenon that occurred throughout the Department of Justice. In 1961, it was estimated that the average age of the Department’s lawyers was 35, and that approximately 90 percent of them had been admitted to the Bar since 1951. Report of the Royal Commission on Government Organization, Volume 2: Supporting Services for Government (Ottawa: Queen’s Printer 1962), p. 403.
- c. According to Garon, Deputy Minister Jackett and Favreau decided on this transfer. He recalls that his English was far from perfect at the time, and that the Deputy Minister of Public Works, General Young, gave him a cold reception. When Garon arrived to take up his new duties, Young told him that he was opposed to the appointment because of Garon’s training in civil law, but that he would judge his work on its merits. When Garon left this department in 1965, relations between the two men were much friendlier, and when he retired in 1964, Young wrote a very laudatory letter about him. Interview with Alban Garon (January 18, 2000), Cassette No. 9, Side 1.
- d. The permanent members of the Section increasingly pleaded their own cases in court, rather than turning them over to outside agents. In September 1961, there were approximately 327 cases before the courts of Quebec, the Exchequer Court and the Supreme Court of Canada, of which 269 were being pleaded by legal counsel from the Civil Law Section and 58 by outside lawyers. National Archives of Canada (NAC), Royal Commission on Government Organisation (RG 33/46), Vol. 318, File No. 83, “Department of Justice – Civil Law (Quebec),” copy of a letter from D. S. Maxwell to G.W.T. Reed, September 4, 1961.
- e. Indeed, Deputy Minister Varcoe, in his year-end assessment, considered the reorganization of the Civil Law Section under Favreau as one of the major achievements of the Department in 1956. Department of Justice (DJ), Administrative Records, File 225-3, Volume 1, General Administration, Organization – General, Department of Justice, memorandum from F. P. Varcoe to Minister Garson, December 27, 1956.
- 1. Civil Law Offers Unique Opportunity for Lawyers Trained in Quebec Law,” Inter Pares No. 25 (November 1978), p. 1.
- 2. Department of Justice (DJ), Administrative Files, File 225-3, Volume 1, General Administration, Organization – General, Department of Justice, memorandum from D. S. Maxwell to E. A. Driedger, May 9, 1961; copy of a letter from E. D. Fulton to G. G. E. Steel, May 18, 1961.
- 3. Telephone interview with Charles Stein (January 15, 2000), Cassette No. 8, Side 2.
- 4. Interview with Alban Garon (January 18, 2000), Cassette No.10, Side 1; interview with Paul Ollivier (January 26, 2000), Cassette No. 17, Side 1.
- 5. Interview with Paul Ollivier (January 26, 2000), Cassette No. 16, Side 1.
- 6. Interview with Rolland Boudreau (February 8, 2000), Cassette No. 24, Side 1; National Archives of Canada (NAC), Royal Commission on Government Organization (RG 33/46), Vol. 317, File No. 80, “Dept. of Justice – Legal Services and Procedures,” “Department of Justice,” report of a meeting with D. S. Maxwell, June 30, 1961, pp. 1-2.
- 7. The Canadian Who’s Who 1964-66, Vol. X (Toronto: Trans- Canada Press, 1966), p. 332; Who’s Who in Canada 1966-68 (Toronto: International Press Limited, 1964), p. 1560; Ignace-J.De slauriers, La Cour supérieure du Québec et ses juges 1849-1er janvier 1980 (Québec City: no publisher, 1980), p. 186; Richard W. Pound, Chief Justice W. R. Jackett: By the Law of the Land (Montréal & Kingston: McGill-Queen’s University Press, 1999), p. 338, Note 6; John English, “Favreau, Guy,” The 1997 Canadian Encyclopedia Plus (Toronto: McClelland & Stewart, 1996); interview with Gérald Beaudoin (January 14, 2000), Cassette No. 7, Side 2; Quebec Regional Office (QRO), file of newspaper clippings concerning the Rivard case.
- 8. Me Alban Garon, 30 ans de droit civil à Ottawa,” Barreau 86 (May 1986), p. 4; interview with Alban Garon (January 18, 2000), Cassette No. 9, Side 1; curriculum vitae, Alban Garon, January 2000.
- 9. Interview with Gérald Beaudoin (January 14, 2000), Cassette No. 7, Side 1.
- 10. Interview with Roger Tassé (December 16, 1999), Cassette No. 2, Side B; interview with Gérald Beaudoin (January 14, 2000), Cassette No. 7, Side 1.
- 11. DJ, Administrative Records, File 225-3, Volume 1, General Administration, Organization – General, Department of Justice, copy of a memorandum from Deputy Minister W. R. Jackett to the legal staff (164723), undated; memorandum from the Deputy Minister Driedger to Minister Fulton, June 12, 1961.
- 12. Interview with Rolland Boudreau (February 8, 2000), Cassette No. 24, Side 1.
- 13. Interview with Rolland Boudreau (February 8, 2000), Cassette No. 24, Sides 1 and 2.
- 14. Interview with Roger Tassé (December 16, 1999), Cassette No. 2, Side B; interview with Alban Garon (January 18, 2000), Cassette No. 10, Side 1; interview with Paul Ollivier (January 26, 2000), Cassette No. 16, Side 1; interview with Rolland Boudreau (February 8, 2000), Cassette No. 24, Side 2.
- 15. Interview with Jacques Roy (December 14, 1999), Cassette No. 1, Side B; interview with Roger Tassé (December 16, 1999), Cassette No. 3, Side A.
- 16. Inteview with Rolland Boudreau (February 8, 2000), Cassette No. 25, Side 1.
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