Department of Justice
www.justice.gc.ca
Common menu bar links
| Vol. 7 No. 1 | [ Home | Next ] |
 |
Justice in the 60’s |
|
Fostering Justice in Fragile Countries
My Three Months in Haiti
Civil Action Challenges to Government Decisions
Where there’s a Will . . .
Leadership Across Borders
Justicia Awards 2008
The Department of Justice Canada celebrates its 140th anniversary in 2008.
In this essay excerpt, Wendy Burnham, General Counsel, Tax Law Services and a historian by training, describes life in the earliest days of the Department. Burnham’s full essay is available at www.justice.gc.ca/eng/dept-min/pub/1860.
OTTAWA – Spring came early in 1868, a welcome relief from some of the harshest winter temperatures to have gripped the capital in living memory. For Hewitt Bernard, the Deputy Minister of Justice, the warmth could not have come soon enough. He had been laid up for part of January and February with what the doctors called “rheumatic joint.” With every winter his affliction worsened; it would eventually leave him an invalid confined to a wheelchair for many years before his death in 1893 at the age of 68.
Parliament had remained in session until May 22 that spring. This had meant long, tiring days for Hewitt Bernard, days that often did not end until the wee hours of the morning when the House adjourned and Hewitt and Sir John A. Macdonald could return home together. Ever since the assassination of Thomas D’Arcy McGee, the fiery Member of Parliament from Montreal, early in April, fear of another Fenian attack had run high throughout the city. At 63 Daly Street, where Sir John and his wife Agnes lived, along with her mother and her bachelor brother Hewitt, it was agreed that Hewitt should accompany his chief to the House each evening and return with him at the conclusion of the day’s routine.
Hewitt Bernard,
1868
Photo: Library and
Achives Canada
Lest anyone should jump to the conclusion that Hewitt Bernard was Deputy Minister of Justice because he was Sir John A. Macdonald’s brother-in-law, let me at once dispel such thoughts. Hewitt Bernard had established himself as a well-respected member of the legal profession long before his sister Agnes knew Sir John. Indeed, it was only as a result of the close association between Hewitt and Sir John that he and Agnes became acquainted. A rumour even had it that Hewitt had counseled Agnes against the marriage, allegedly because of the drinking problems of his chief.
After the death of his father, a prominent plantation owner and member of the Privy Council of Jamaica, Hewitt had emigrated to Canada in 1851, bearing a letter of introduction to one of the foremost lawyers in Barrie, Ontario. He soon became part of the legal establishment of the town, and remained there until 1857 when he came to Sir John A. Macdonald’s attention through his able work as co-editor of the Upper Canada Law Journal. At the time, Sir John was the Attorney General for Canada West in the Province of Canada. He hired Hewitt as his private secretary and in March 1859 promoted him to Chief Clerk of the Crown Law Department, Canada West – the highest rank in the Department. During his visit to England to negotiate the terms of Confederation
in 1864, Sir John took on a new secretary, leaving Hewitt to devote his full time to the running of the Law Department. He retained his duties as Chief Clerk until Confederation, when he became the unofficial Deputy Minister of the Department of Justice.
During the years of the union of Upper and Lower Canada, from 1841 to 1867, significant changes had taken place in the way the Attorney General conducted business. A permanent department staffed by salaried clerks gradually replaced the old system whereby the Attorney General was paid a small fixed salary which he augmented by charging the Crown fees for specific services. As a result, the administration of justice became more integrated into the mainstream of the administration of government. At about the same time, the practice of treating his opinions as private property to be carried away on quitting office gave way to the regular recording of such opinions in departmental letterbooks.
Both the government and the civil service of the Province of Canada reflected the duality of the union between Upper and Lower Canada. There were two Attorneys General, two Solicitors General and two Crown Law Departments. This parallel structure ended with Confederation. On July 1, 1867, Sir John A. Macdonald not only assumed the role of Prime Minister of the new federation; he also continued to be the chief law officer of the Crown as Attorney General of Canada and Minister of Justice. His staff from the Crown Law Department, Canada West, became the staff of the new Department of Justice. The transition was so smooth that there was not even a break in the letterbooks of the Department. The personnel in the parallel Crown Law Department, Canada East, followed their Attorney General, George-Étienne Cartier, to his new Department of the Militia. The position of Solicitor General disappeared entirely. In this way the Department of Justice had its beginning, almost a year before the transformation was formalized in legislation setting out its responsibilities.
As a result, the administration
of justice became more integrated
into the mainstream of the
administration of government.
But let us return to June 1868. Now that the House had risen, the days were more orderly, and Hewitt could give his full attention to his duties as the Deputy Head of the Department of Justice. His staff, by today’s standards, was minute. There were only two barristers-at-law in the Department, including Hewitt himself. The remaining employees were one clerk and shorthand writer, who was Sir John’s private secretary; a copy clerk; a clerk articling under Sir John; and two messengers. The Department of Justice for the nation comprised a total of seven staff with a payroll amounting to $7,165.83!
Author Wendy Burnham
Photo: Patrick Walton
As Hewitt strolled to work on this fine, sunny morning, with the scent of the last of the lilacs in the air, his mind wandered back to the early days of government in Ottawa. When Queen Victoria decided in 1857 that Ottawa was to become the capital of Canada, the announcement was met with disbelief. Ottawa at this time was little more than a wilderness lumber town – or so thought those in government accustomed to the refined surroundings of the cities of Toronto and Québec, between which the government alternated every four years. And the move, when it finally came, did little to change their minds. Although there were a few fine buildings, Ottawa had a shortage of suitable lodgings for the 250 or so civil servants and their families who trickled in over September and October of 1865. Sir John and Hewitt had been lucky enough to visit the capital in advance and make arrangements to let a stone terrace house at the corner of Daly and Cumberland Streets in the fashionable Sandy Hill section of town. Until Sir John’s marriage in February of 1867, they shared this house with Alexander Galt, the Finance Minister, and the manager of the Grand Trunk Railway, C.J. Brydges. The house came to be known as “the Quadrilateral,” probably because of the four prominent men who lived there. According to one of his friends, Hewitt was the “superintending genius of the household,” since he was the only one of the four who occupied the house regularly, the other three being away much of the time.
Rounding the corner of Cumberland Street, Hewitt could see up the broad expanse of Rideau Street to the hill beyond and the Eastern Departmental Building where his office was located. All of the civil service was housed in the two buildings that flanked the new Parliament Building. Known as the Eastern and Western Departmental Buildings in 1868, these buildings are more commonly referred to today as the East and West Blocks. The Eastern Departmental Building was the larger of the two, although smaller than it is today. In addition to housing the Governor General’s Office and the Privy Council, it was home to the departments of The Secretary of State, The Secretary of State for the Provinces, Militia, Justice, Customs, Inland Revenue, the Receiver General, Audit and Finance.
The Department of Justice was nestled next to the tower in the southeast corner and occupied five rooms on the top floor. Oddly enough, at the time of Confederation, the planners of the new governmental buildings did not see any need for a separate office for the Prime Minister, since it was assumed that he would hold some other portfolio as well. And so it was that Sir John A. Macdonald as the Minister of Justice, and not as the Prime Minister, laid claim to Room 49, the large corner room overlooking Wellington and Elgin Streets. Directly next door to Sir John was the office of his Deputy Minister looking out over the Parliamentary quadrangle. The landscaping of the quadrangle was far from finished, but great progress had been made in removing the last of the construction materials and sheds which had littered the area for some time after the civil servants had arrived in 1865. Public Works was making steady progress in levelling and improving the rough ground around the buildings in preparation for its plans to lay out grass plots, ornamental walks, basins and fountains within the precinct.
As Hewitt mounted the stairs to his office he checked the time. The clerks and the messengers in the Department were expected to be at work by 9 o’clock in the morning. A Cabinet decision early in the New Year had extended office hours to ensure that the burden of work to be done before the spring session of Parliament ended would be completed. All civil servants were expected to be on duty from 9 a.m. to 4 p.m. six days a week, with the usual half holiday on Saturday revoked and no allowance for extra work. For the most part, Hewitt could count on his staff to provide a high level of service. The same could not be said for the whole of the civil service, however, as there was continual concern in the senior ranks that working hours were not being meticulously observed.
According to one of his friends, Hewitt was the
“superintending genius of the household...”
The last business of Parliament before it rose on May 22 had been a joint sitting of the Commons and Senate in which the Governor General gave Royal Assent to a number of bills, including the Department of Justice Act. The Act was only five sections long, with the duties of the Minister of Justice enumerated in section 2 and those which he exercised as Attorney General in section 3. Prior to this time, the Attorney General had played a dual role in government. On the one hand, he was a partisan political adviser to the Crown and wielded substantial political power in this role. On the other hand, he provided the more traditional legal services associated with the administration of justice. The new Act recognized that these two roles were distinct and allocated the political role to the newly created position of Minister of Justice, while retaining the non-political, legal role for the Attorney General.
According to a description Hewitt gave to the Civil Service Commissioners in 1868, the main business of the Department was to give legal opinions to other departments. He estimated the number to be approximately 1200 annually, with numerous verbal applications on legal questions on top of that. In addition, the Department had to examine provincial legislation and bills brought by private members, and to draft or revise government bills. And the fact that Sir John was also the Prime Minister resulted in a variety of non-legal business flowing through the Department.
... the main business of the
Department was to give legal
opinions to other departments.
Even a cursory examination of the departmental Register for 1868 in which one of the clerks, probably Anthony Atcheson, logged in all correspondence and recorded the action taken in respect of each, reveals the varied nature of these activities. The Register contains countless applications by citizens for letters patent for their inventions – from an improved plough to a gate hinge to a medicinal compound and everything in between; letters from members of the judiciary asking for advice in situations where they were unclear of the state of the law or for a leave of absence due to illness or to be excused from sitting in some remote locality that judicial term; complaints about judges; requests for appointments to positions in the penitentiary services or with the county courts; requests that death sentences be commuted or that bail for suspected Fenians being held in gaols throughout the country be granted; and a plethora of other miscellaneous requests.
A small portion of the correspondence was in the French language which, apparently, posed no problem for the Department. A decade and a half later, the then Deputy Minister of Justice indicated to the Civil Service Commission that with the exception of himself, the chief clerk 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. In 1868, it is likely that both Hewitt and his chief clerk were able to handle matters in French.
The memorandum received
the Governor General’s approval
in early June and was soon
being put to practical use.
Hewitt’s description of the Department’s work made no reference to litigation. However, under the Department of Justice Act, the Department was entrusted with “the regulation and conduct of all litigation for or against the Crown or any Public Department” within federal jurisdiction. Shortly after Royal Assent was given to the Act, the Minister sent a circular to all departments asking to be informed “of all suits or matters in litigation in respect of matters emanating from your Department, with the names and residences of the professional Gentlemen in whose conduct they may have been placed, to enable me to see that the same are in proper train.” The circular also requested that all future litigation be sent to the Department so that it could make “all necessary arrangements to have legal proceedings carried on at the seats of the various Courts of Justice in the Dominion.” In fact, this is not what happened, for a subsequent order-in-council confirming the prevailing practice indicated that the role played by the Department was a minor one, being to review the bills of all outside counsel hired by the individual departments before payment was made. The Department carried on no litigation itself, and, like the other departments, relied on private counsel to handle matters for it. Given the prominent place patronage played in government appointments of all kinds, it is not surprising that much of the profitable litigation was in the hands of a few well-placed barristers in the provinces.
Under section 2 of the Act, the Department was assigned the duty of examining all provincial legislation, in furtherance of the Governor General in Council’s power under the Britsh North America Act to disallow legislation passed by the provincial legislatures. The Department had already prepared a memorandum setting out the criteria to be applied and the procedure to be followed in reviewing this legislation. The memorandum received the Governor General’s approval in early June and was soon being put to practical use.
