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IN A PROUD TRADITION: A HISTORY OF THE DEPARTMENT OF THE SOLICITOR GENERAL OF CANADA

Lry ,n r y, - , "

1 8 2007

' • • -

Fred Mohlmann Senior- Policy Analyst

Corrections and Criminal Justice Directorate Public Safety and Emergency Prepareddess Canada JL 103 February 15, 2005 .S6 M5 2005 (ce document est disponible en français) ••••••••••••••••••••••••••••••••••••••••••••••••••••••• DEPARTMENT IN A A HISTORY PROUD OF THE OF CANADA Public TRADITION: SOLICITOR GENERAL Corrections and (ce document estdisponibleenfrançais) OF THE Safety and Senior February Fred Emergency Preparedness 1 82007 Criminal - • Policy Analyst Ottawa Mohlmann • 3 15, 2005 Justice Directorate Canada f) 0_23 • • • • • • • • • • • • • • • • • • • Richard Zublycki (January 31, 1944 — May 5, 2004) • • Richard Zubrycki, the former Director General of the Corrections and Criminal Justice Directorate in the Department of the Solicitor General, had a strong passion for the • history of corrections and criminal justice. He had an encyclopaedic knowledge of the historical influences on corrections and criminal justice. He valued history for the lessons that it provides and for the light that it is able to cast on the future. And he put • this knowledge to good use in establishing the trajectory for Canadian correctional and • criminal justice policy well into the future. • During his career in corrections, which spanned the better part of five decades, Richard Zubrycki led teams responsible for introducing 17 Bills to Parliament, reflecting a wide • range of policy issues, including high-risk offenders, sex offender registry, and the Criminal Records Act reform. A major achievement that he led was the development of • the current Corrections and Conditional Release Act, which replaced the outdated • Penitentiary Act and Parole Act in 1992. This legislation was novel in its introduction of • a statement of purpose and principles and for reflecting the relatively new Charter of • Rights and Freedoms and common law principles that have stood the test of time.

• Even more impressive than his achievements as a public servant was the way in which he • carried out his work every day. Richard's commitment and passion for his work was • inspiring. He displayed an extraordinary combination of wisdom, compassion, • generosity and humour, underpinned by an unerring sense for doing the right thing. He • was admired and loved by his colleagues.

• it is entirely fitting that this history of the Department of the Solicitor General be • dedicated to him. He supported its development and commented on early drafts. Richard • would have been delighted to see it take its place on bookshelves across the country. • • - • • •••••••••••••01/000011••••••••••••••••••••••••••••••••••• Introduction Prologue The Roots Observations andConclusions Solicitors Epilogue Biographies of Deputy Pre- Early antecedents Confederation "Departmental Headquarters" The "The The The Officeofthe Corrections and Attorney Criminal Conditional Release 21 Policing Department Con Department Secretariat" Solicitors Department federation General and National Law Selected Early of the General General of Canada of the of Solicitor Generalwithin TABLE OFCONTENTS Justice Solicitor General Solicitor General Security of Canada Solicitors and theOfficeof General to of Canada the Department 1966 Minister of of Justice Justice

21 28 35 28 LI 51 59 58 55 11 62 67 18 14 14 2 4 8 4 1 ••••••••••••••••••••••••••••••••••••••••••••••••••••••• began The productionof"Ina Depaiiment the Public Tradition", Prime later that Department Solicitor in the Safety year. of the summer and Within weeks Minister Emergency Preparedness Solicitor General of Proud 2003. General. Paul Martin Tradition" of the The ' intent thenwastoproduce completion in PROLOGUE time to announced isnotwithoutirony.Work Canada mark the of the the (PSEPC), manuscript creation renewal which signalled a of the historical overview of for "Ina its Department on Mission this Proud volume, the endof statement of of the 1 '• • '•• • INTRODUCTION • it is impossible to comprehend the present, much less guess at the future, without • knowledge of the past. ' • The history of the Department of the Solicitor General is a fascinating, but somewhat • tangled tale. However, once unravelled it leads to an understanding of not only how and • why criminal justice is administered in present-day Canada, but also of the role of the • Department within the Portfolio of the Solicitor General as it now exists. Moreover, a • knowledge of the history of provides important clues about the qualities required for the • • administration of criminal justice and public safety might be administered in the future. • • Before embarking on an exploration of the history of the Department of the Solicitor • General, it is important to understand the meaning of various terms that relate to the • present-day Solicitor General. The Department of the Solicitor General is a government department created by the Government Organization Act2. The Solicitor • General is the minister who presides over the Department of the Solicitor General. The • Portfolio of the Solicitor General 3 includes the following agencies: • The Royal Canadian Mounted (RCMP); the Canadian Security Intelligence • Service (CSIS); the Correctional Service of Canada (CSC); the National Parole Board • (NPB); and, the Canada Firearms Centre. • • The agencies within the Solicitor General's Portfolio are at the core of Canada's criminal • justice system. Individually, collectively and collaboratively they contribute to the • maintenance of a just, peaceful and safe society. And while the Portfolio agencies are • united under the Solicitor General to this end, their respective legal mandates and • operational focuses differ considerably. The Department supports the Solicitor General national • of Canada by advising and assisting the Solicitor General in exercising

ID. W. Gullet 2Stamtes of Canada, 1966-67, Chapter 25. • 3The RCMP, CSIS, CSC and NPB, respectively, are governed by the Royal Canadian Mounted Police Act • R.S. 1985, c. R-10; the Canadian Security Intelligence Service Act R.S. 1985, c. C-23; and Corrections and Conditional Release Act S.C., 1992, c. 20, as amended. Regulations for Canadian Firearms Centred are under development. 41• 2 leadership in policing, law enforcement, security, corrections and conditional release; providing direction to the Agencies of the Portfolio; and answering in Cabinet and Parliament for the Portfolio.

The Department of the Solicitor General has special relationships with other government departments, principally the Department of Justice from which it evolved in 1966; its various provincial and territorial counterparts and, increasingly with many jurisdictions outside Canada's borders. The historical considerations that led to the birth of the Department of the Solicitor General are as fascinating as they are complex and are inexorably intertwined with that of the Department of Justice.

3 ' • • • • • • ROOTS

• EARLY ANTECEDENTS

• Philip Stenning, quoted here at length, provides the following account of how the • principal components of Canada's modern criminal justice system developed from early • English legal traditions: • Th[e] principal institutions include: a sovereign who laid claim to jurisdiction • throughout the kingdom over offences against his or her "peace"; the concept of • the sovereign's "peace" which was broad, and which applied not only to the • sovereign's person and household, but also to all public and most private places; a system of royal justices and courts which serviced the entire kingdom, and before • which violations of the sovereign's peace (the so-called "pleas of the Crown") • could be prosecuted; and a system of law and procedure which gave standing both • to citizens and to various state officials to initiate and conduct such proceedings in • such courts. • Although such a system was well established in England by the early Middle • Ages, it was radically different from the prosecution process which we know • today. In the first place, the dispensation of justice was not the sole, or arguably • even the principal, function of the royal courts. They were concerned as much • with matters (such as the raising of revenue through the collection of taxes) . . . • Not only was there no clear distinction between politics and law at that time but, a fortiori, the modern distinctions which we make between criminal and civil • jurisdiction were far from having been clearly established. The criminal • prosecution process, then, such as it was, was not a discrete process which took • place in courts specially and solely designated for that purpose; rather, it was a • small part of the more general process of govermnent which was conducted in lb "courts" which were overtly political in character. More particularly, the earliest • procedures of "presentment" and "indictment" by which matters were brought to • the attention of such courts for consideration were not peculiarly criminal • procedures, but were procedures adopted with respect to all manner of matters which, today, we would consider far removed from the purview of criminal • courts. • Secondly, the royal courts of the Middle Ages had no monopoly on the • dispensation of justice in matters which we would regard as criminal today. This • was because the concept of "peace" was not universal and undifferentiated as it is • though to be today. Each free man, each lord, each small community . . . . enjoyed • his or its own "peace". The "King's Peace" or "Queen's Peace", therefore, was • one of many at that time, and any incident or disturbance might involve a breach • of more than one person's "peace". If it could be established that an incident • involved a breach of the sovereign's peace, then it gave rise to a "plea for the • Crown" which could be prosecuted in the royal courts. This fact, alone, however, • did not always ensure that the matter was dealt with in the royal courts and in • 4 • accordance with the sovereign's law (which was coming to be known as the "common law"). For the social and political realities of the time ensured that there would often be substantial competition for jurisdiction over such matters from more local and private authorities. This was because the political instability of those times made it necessary for the sovereign, on order to maintain the support of powerful Lords upon which the continuance of his sovereignty depended, to concede to them a substantial measure of jurisdictional autonomy in dealing with matters which arose within their fiefdoms or which particularly affected their interests. Sometimes this even included the right to hear and determine the lesser "pleas of the Crown". The right to dispense justice in particular kinds of cases was thus something of a commodity, with which the sovereign frequently had to bargain in order to secure his or her political survival as sovereign. Perhaps the most well known of such bargains is the famous Magna Carta of 1215, in which the beleaguered King John, in return for pledges of continued loyalty from his barons, undertook not to further encroach on their traditional prerogatives and jurisdictions.

Throughout the Middle Ages, and in fact until well into the 17th Century, therefore, the emerging criminal prosecution process in the royal courts was still competing with the jurisdictions of a multiplicity of other local and customary courts. And this period of English legal history may be viewed as one in which there was an ongoing, and ultimately successful struggle by the royal courts for ascendancy and dominance over the dispensation of justice in criminal and other cases. This was achieved not only through an ongoing expansion of the definition of the King's peace so that it increasingly "ate up" lesser peaces, but also by the adoption, by the royal courts, of common law rules of procedure . . . which were favourable to them in this struggle. Much of our current criminal procedural law originated during this period, and in this context. By the time the common law was formally adopted in the British North American colonies in the late lieh of course, this process of evolution was already far advanced. Century,

Thirdly, and perhaps most importantly. . . . there was in those early times almost no formal machinery for the prosecution of criminal offences (breaches of the sovereign's peace, which came to be known as treasons, felonies and misdemeanours.) Police forces, as we know them today, did not of course exist, and were not established until the 19th Century. The sovereign had no massive bureaucracy at his disposal to undertake the enforcement of his laws through the kingdom. Rather, he or she had to rely largely on the initiative of ordinary citizens, some of whom were placed in positions of authority through processes of local election and appointment. While the sovereign was supported by his own appointee at the level of the shire or county (i.e., by the "shire reeve" or sheriff), the administration of justice and law at a more local level depended upon his being able to persuade or coerce ordinary citizens or locally chosen leaders (notably the High and Petty ) to take responsibility for protecting and prosecuting his interests. All manner of inducements and threats were invoked to achieve this, chiefly through the medium of royal edicts (commonly called

5 ••• ••••••••••••••••••••••••••••• •••••••••••••••emeee e hsacut rte rm theperspectiveofan account, writtenfrom This immediately preceding the immediately preceding be noted.First,by punishments." authority, provides this historyoftheDepartmentSolicitor University. 6 5 authority 4 the death was relatively uncommon.Instead, elements ofthecriminal early 1800sthat "a AllenMartin Philip Mary bottomless pit E. C. justice), therefore,involved Middle Ages "assizes") which who, in turn, who, implementing representatives quicklyevolveinto fulfilled itsresponsibilities the Crown still had to rely almost entirely on the initiative of privateindividuals ontheinitiative Crown stillhadtorelyalmostentirely the mind, next by in the over, localinstitutions. of the(sovereign's) public were appointed administration for theinitiationand the local over the eclipsed in Canada, Campbell. Stenning. Faculty ofLaw royal "commissions four centuries, Linden. JudgeoftheFederal early leCentury—whowere however, isthatthroughoutthisperiod, prescribed penalty 5 prosecutorial agencysuch Secondly, the useof of Appearing for the Crown:A Appearing for Cowansville, "A Most we candetect the end a traditional authorityofthesheriffs, complex were heldresponsible and compressed constables, until by the constables, untilby as of justice.Gradually,over (1997) as ette ol.... ao ato h struggleduring Amajorpartofthe best theycould.. the royaljusticesand justice beyond Vexatious But-den":Jurisdiction such bythem. long-term imprisonmentwasconsidered the use colonization of the18 given law. conduct p. Québec: Brown case law, of thepeace"—thisprocesssawtheseearly 5. einn ihteitouto ofWardensthePeace the introduction Beginning with a system fromitsearlybegirmingsto Throughout thisperiod(from for for the narrow range ofcorporalpenalties narrow a but more and of prisons for the growing a th most felonies. of Century detailed pictureoftheevolutionmost struggle over Court ofCanadaand petty, anachronisticoffences almost allcriminalprosecutions.Therewas of BritishNorth supremacy ofroyal as The point, which The point, preservation legal Justices for Legal we knowittoday royal local as late 17 General, ensuring that in and punishment historian Publications England criminallawhadevolvedinto authority penetration the adwesapitdt hs position landowners appointedtothis sheriffs 6 historical reviewofcriminal prosecutorial the of the Peace (c. 1361) and, over (c.1361)and, of thePeace Itwasnotuntil th Centuryalmostallsuchconstables years, these Justices years, these in and hearts of the author several additionaldetailsshould and Canadian Correctional mrc. Forthe America. despite allthesedevelopments, on in must constantly bekept must and Inc., gained increasingcontrol in theMiddle justice the particular werechargedwith the subjectofprosecutorial of peace and themaintenance peace and in Canada. of, andassertionof the responsibility Canadian TortLaw. (1986) citizenry minds oftheseofficials le to (including criminal the as an was and the pp. period 4 late 1700s harsh the norm,and

6 —8. as a approach the 18 Ages was of thePeace royal purposes Law, for thelocal whole th McGill the Centuries), control and in for the no of 6 • • • dealing with crime more effectively.7 Finally, views on criminology and penology during • this period placed value on the benefits of religious instruction, hard work and discipline.

As the legal framework unfolded, so did the roles of the Attorney General and the • Solicitor General, whose duties were (and in Britain still continue to be) closely linked. • Together, the Attorney General and the Solicitor General were the "Law Officers of the • Crown". Their roles are deeply rooted in the history of English law: The first known use of the term "attorney general" occurred in England in 1398 in • a certificate from the Duke of Norfolk's four attorneys general. The "general" • indicated that these agents could act for their principal on any matter. "[Over • time] it became usual, especially in the case of great landowners, to appoint • attorneys to attend to all suits which might arise during a specified period during • the life of the appoint or, or in a particular county or court. Such an agent was • known at first as a general attorney, later as an attorney general." • The creation in England of the governmental post of attorney general apparently • came later. In the 13th and 14th centuries, there existed a fluctuating number.of • King's Attorneys or Attornati Regis. Only in 1472 was there a single Attorney • General, one William Husse, and thereafter the post was held by a single person. • Thus, the English history is that the Attorney General was singled out from among the king's many counsel. As attorney for the king, writes Holdsworth, • "[h]e could be a more general attorney than those of other men." The "general" • indicates nothing other than a general capacity to act for the king.8 • • • The position of Solicitor General came into existence somewhat later and served as a • general assistant to the attorney in handling of the King's legal business.9 The • • relationship between the two positions is explained by the British Attorney General, John • Morris, speaking in the British House of Commons on 24 July 1997: "The Solicitor • General has been regarded as the Attorney-General's deputy since the first Solicitor General, Richard Fowler, was appointed in 1461. 10 Moreover, a tradition dating from • •

7 /bid. p. 30. Also see, J. M. Beattie, Attitudes Towards Crime and Punishment in , 1830 — le 1850: A Documentary Study, University of Centre of Criminology (1977) p. 9 ff. 8 Hugh Bellot, The Origin of the Attorney-General, 25 L.Q. Rev. 400, 402--03 (1909). Olà 9 Ibid. 1° 11ttp://www.parli arnent.the-st at i onery- • office.co.uk/ )a/cni I 99798/cmhansrd/vo970724/debtext/70724-23.htm fe• 7 • • ■ • • • 1530 was to "appoint the King's solicitor to succeed the King' Attorney upon a vacancy • in the latter office, and this is still the general practice at the present day. " I • • According to early British legal tradition, Law Officers were not members of Parliament, • until the reign of Queen Elizabeth. At that time, the Solicitor General became an elected • member to the House of Commons in order to explain and defend the legal policies of the • government. It was not until later that the House of Commons called the Attorney • General to be a member. Many were concerned that he would bear too much Crown • influence on Parliament.I2 11

• In England, by the beginning of the 1 8th Century, when colonial administrations were • well under development in British North America, the offices of the Attorney General • • and the Solicitor General were well established as the Law Officers of the Crown.I3 • • • PRE-CONFEDERATION • The origins of Canada's criminal justice system can be traced to the letters of patent or • instructions issued by the Crown to the Colonial Governor, which then formed their • • respective constitutions. Over time, each territory developed a legislature with limited 01• power to amend existing laws or to enact new ones. Settlers of unsettled territory were • deemed to take with them the common law and applicable statute law of England. In • cases where settled territories were conquered or ceded, England did not always • a legal system. Such was the • immediately impose English law if the territory already had • case, for example, when New France was ceded to Great Britain. In this instance, the • civil (including criminal) law and customs continued until when they were replaced • 1764 • by English common law and statute law through The Royal Proclamation of 1763.I4As part of that proclamation, French colonial courts were abolished. The resulting confusion • • 11 Department of Justice memorandum for Mr. T.D. Macdonald, November 5, 1962, p.3, Depal tilient of • Justice Records File 152682. • 12 David M. Shoemaker, Sharing Justice, The evolved administration ofjustice in Canada, Draft III, • August, 1991. (Unpublished.) 13 Stenning, p. 16. • 14 Residents of New France () were guaranteed the enjoyment of their property and freedom of • worship "so far as the laws of England permit." Habitants were also to have "the enjoyment of the benefit • • of the laws of our realm of England". • 8 • • • • • • • led to the proclamation of the Quebec Act in 1774, which reinstated a variation of the •

• original civil law while retaining the criminal law of England.' 5 • • Generally, the development of both criminal and civil law in each territory of British • the date of initial settlement or conquest and • North America varied according to • continued to change through amendments to that legislation and the passing of new laws. • While all territories in British North America shared a common law base, therefore, there • fb were differences in the criminal laws of individual territories just before Confederation. While this account of the origins of Canadian criminal law is greatly abbreviated 16, its • • primary function is to provide a broad context in which the Law Officers of the Crown • operated. • • • In pre-Confederation times the Attorney General's influence grew over time and in direct • • proportion to prominence of self-governance and the formation of political parties. • Swainger notes: • The establishment of responsible government, the parallel emergence of political • parties, and the coincidence of party leaders being drawn from the legal • profession gave rise to yet another change when it became the practice for the • leader of the government party to take the office of the Attorney General. Once • again, the attorney general was placed in a position revealing the congruence of law and politics. . . By the time responsible government had been granted, the • offices of the attorney general for Canada East and Canada West had become the centres where parliamentary strategy was planned and major administrative • decisions where reached. It was no accident, then that found the two premiers • most frequently operating from these two offices. Indeed, in 1846 it was • recognized that the expanding political activities of the attorney generals made it • increasingly difficult to perforrn their traditional legal functions. 17 • • Debates of the Legislative Assembly of United Canada l8 reveal that a concern about • options from a detached source led to a motion in the Union • obtaining independent legal • O 15 The Quebec Act clarified matters a great deal by stating that property and civil rights were to be resolved • by reference to the laws of Canada; i.e. the French law that had been in force. The seigniorial land system • is continued and calls for a council of 17 to 23 members to which the French are to enjoy access as members. The Quebec Act also said that for criminal law, the law of England would apply. • 16 For a more detailed, but accessible history of the criminal law, see: • http://canada.justice.gc.ca/en/dept/pub/just/index.html • 17 Jonathan Swainger, The Canadian Department of Justice and the Completion of Confederation 1867-78, O University of British Colombia, 2000. p. 25. • 18 Debates of the Legislative Assembly of United Canada, Vol. VII, 1848, p. 513. • • 9 • • • legislature seeking to withdraw the Law Officers from the political business of the • executive government. • • • Swainson provides a general idea of the influence exercised by the Solicitors-General in • • the following account: • .. . 19th century solicitors general were theoretically supposed to conduct the • "nonpolitical" legal work of the government, but that in practice they and the • attorneys general ruled on points of law submitted by other departments. The law • officers co-ordinated much of cabinet business, directed political strategy in • parliament, and made rulings — not always on points of law — which were • considered rulings of the whole cabinet.I9 • • • The Law Officer's use of their official positions in the pursuit of political purpose in this • manner went greatly beyond that evidenced in the relationship between the English Law • • Officers and the government of the day.2° Indeed, the role of the pre-Confederation Law • Officers appear to have more in common with their earlier English counterparts as 111 • described in Stenning above.

• Solicitors General in the British-North American colonies appear to have been less fle prominent than that of the Attorneys General. Historical accounts of the activities of pre- • • Confederation Solicitors General appear to be few and relatively sketchy. Those that do • exist, indicate that appointments to the position of Solicitor General were based on • patronage, as were many positions of the day. A few Solicitors General of the day rose to • • positions of prominence, either as Attorneys General or Chief Justices, while others • • languished in relative obscurity. • • • • 41

19 Donald Swainson, Dictionary of Canadian Biography, Vol. IX, • 20 J. Li. Edwards, Ministerial Responsibility for National Security Minister of Supply and Services, Canada • (1980) p.1. • • 10 • • • • CONFEDERATION • THE DEPARTMENT OF JUSTICE AND THE OFFICE OF THE MINISTER OF JUSTICE AND • ATTORNEY GENERAL • • Sir John A. Macdonald would have been well aware of the issues related to the political • activities engaged in by the Law Officers of the Crown during the years before and after • Confederation. 21 One could reasonably surmise that he approved of and encouraged this • role, for as the first Prime Minister he also assumed the role of Attorney General, a • common practice before Confederation: • He wanted control over the Department of Justice during the period in which it • would have profound effects on the forging of the country. Thus in many ways, • the Department of Justice and Canada have become what Macdonald envisioned. • His will, his desires, his goals, and his views proved dominant in the period in • which the Department was moulded. 22 • Conspicuous by its absence, however, both in legislation of the day and in Sir John A. • Macdonald's government, was any reference to the position of Solicitor General. • •O No public record appears to exist to explain why first Prime Minister chose not to fill the • office of Solicitor General in his first term of office. One possible explanation for his • decision is that he did not see the need for one. Shoemaker makes reference to a letter23 traces the origins of the Law Officers of the • from Sir John A. Macdonald in which • Crown.24 The letter concludes that no demarcation in the duties of the Law Officers was • documented. It is a conclusion supported by more modern research, as has been • previously noted. In any event, and as shall be explained later, the position of the • Solicitor General did not re-appear in the federal government until 1886. • 9 O • • 21 Ibid. p. 36. O 22 David M. Shoemaker, "Sharing Justice, The evolved administration of justice in Canada", Draft III, (August, 1991) Unpublished. p. 17. • 23 National Archives of Canada, Record Group 13, Vol. 1851, File 2174. 24 Ibid. p. 7. • • 11 • • • • • Justice was enacted in the very first session of the Parliament of • The Department of Act25 • Canada and established an important model for subsequent legislation, both federal and • provincial, concerning the administration of criminal Over time, the • justice.26 • Department of Justice would initiate through legislation and subsequently operate the O individual components of the criminal justice system that would eventually fall to the • • Department of the Solicitor General almost a century later. a • The Act consisted of five sections. The first established the Department of Justice and its • agents: • There shall be a Department of the Civil Service of Canada, to be called "The of Canada, for the time • Department of Justice" over which The Minister of Justice the Governor by Commission under the Great Seal, and who • being, appointed by General of Canada, shall preside; and • shall, ex officio, be her Majesty's Attorney the said Minister of Justice shall hold office during pleasure and shall have the a management and direction of the Department of Justice. •

• Section 2 outlined the duties and functions of the Minister of Justice: • He shall be the official legal adviser of the Governor and the legal Member of Her • Majesty's Privy Council for Canada; It shall be his duty to see that the • administration of public affairs is in accordance with the law; He shall have • superintendence with all matters connected with the administration of Justice in • Canada, not within the jurisdiction of the Governments of the Provinces • composing the same; He shall advise upon the Legislative Acts and proceedings • of each of the Legislatures of the Provinces of Canada, and generally advise the • Crown upon all matters of Law referred to him by the Crown; and he shall be charged generally with such other duties as may at any time be assigned by the • Governor in Council to the Minister of Justice.

Section 3 stipulated that the Attorney General: • . . . shall be intrusted [sic] with the powers and charged with the duties which • belong to the office of the Attorney General in England by law or usage so far as • the same powers and duties are applicable to Canada, and also with the powers • and duties which by the laws of the several Provinces up to the time when the • British North America Act, 1867, came into effect, and which Laws under the Q. provisions of the said Act are to be administered and carried into effect by the • Government of the ; He shall advise Heads of the several Departments • 25 Department ofJustice Act, 1868, 31 Vict., c.39. • 26 Dale Gibson. "Development of Federal Legal and Judicial Institutions in Canada", Law • Journal, Vol. 23, No. 3, January, 1996. • 12 • • • • • • of the Government upon all matters of Law connected with such Departments; • He shall be charged with the settlement and approval of all instruments issued • under the Great Seal of Canada; He shall have the superintendence of the • Penitentiaries and the Prison System of the Dominion; He shall have the O regulation and conduct of all litigation for or against the Crown or any Public • Department, in respect of any subjects within the authority or jurisdiction of the • Dominion; And he shall be charged generally with such other duties as may at • any time be assigned by the Governor in Council to the Attorney General of • Canada. • • The Act is noteworthy, in several respects, in large part because it departed radically from • • certain aspects of the British legal framework from which it derived. The first is the • provision in section 1 combining the offices of Minister of Justice and the Attorney • • General in a single office (and thereby creating the Department of Justice.) To this day, • the executive head of the Department of Justice carries both titles. Yet, it is often • difficult to discern in which capacity he is acting.27 As noted earlier, this provision • blurred the political (executive) responsibilities of the Minister of Justice and those of the O • Attorney General an apolitical advisor to the Crown, whose primary duty was to give • objective and unbiased legal advice. • • By combining the duties of Minister of Justice and Attorney General the Department of • Justice Act differentiated the duties of the chief Law Officer of the Crown from those of O • its British counterparts. The distinction is described by Edwards as follows: • . . . English constitutional law has never formally recognised the existence of a O Minister of Justice, preferring instead to adhere to its distribution of the broad • range of functions connected with the administration of justice and the • maintenance of law and order between the Lord Chancellor's Department, the • Home Office and the Law Officers' Department. In brief, the Lord Chancellor's responsibilities include the judiciary and the courts. As senior member of the • Cabinet he is also the principal legal adviser of the Government, and presides over • the House of Lords as well as acting, from time to time, as government • spokesman in the Upper House. . . . It is fair to state that the Lord Chancellor and • the Minister of Justice of Canada have many duties in common and that the • underlying elements outnumber the differences between the two offices.28 O • O • • 27 Shoemaker, p. 14. • 28 Op. cit. p. 8. • • 13 • Another similarly striking aspect of the Act was that it assigned to the Attorney General the superintendence of an operational agency within the criminal justice system — Canada's penitentiaries 29. The complexity of those operations was reflected in the Penitentiary Act (1868), which in detail designated authority within penitentiaries, treatments, punishments, officers, discharges, and visitors, among other things. 3°

CORRECTIONS

The Act made provision for the government and inspection of Canada's penitentiaries by a board of directors, which proved ineffective. The 1875 Penitentiary Act 31 created the position of Inspector of Penitentiaries within the Penitentiary Branch of the Department of Justice. Further amendments to the Act in 1918 created a Superintendent of Penitentiaries, who: . . . shall under the Minister, direct and superintend the administration of business of the penitentiaries and perform such other duties as may from time to time be assigned to him by the Minister.32

While the Minister of Justice was the nominal head of the Penitentiary Branch of the Department of Justice, his direct involvement in operations was limited to such matters as authorizing the application of corporal punishment. 33 And while the Deputy Minister of Justice appeared to have had some oversight responsibility for the performance of the Penitentiary Branch, the administration of penitentiaries was left "very much in the hands of its own chief executive officer. . . . provided he [kept] within the powers given him under the Act.34

POLICING AND NATIONAL SECURITY

Other legislation that entailed administrative responsibilities on the part of the Attorney General for additional operational agencies that served the criminal justice system

29 By virtue of the British North America Act, responsibility for penitentiaries was a federal responsibility, while the provinces had jurisdiction over "public and reformatory prisons". 3° Shoemaker, p. 15. 31 38 Vie., c. 44. 32R.S.C, 1918, c.36. 33 C. W. Topping. Canadian Penal Institutions, Ryerson Press, Toronto (1929) p. 23.

" Ibid.

14 • • • • • followed. While the 1867 Constitution was clear on the responsibility for corrections, • • there was less certainty with regard to policing, given that provinces had responsibility • over the administration of justice. 35 However, spurred on by the assassination of D'Arcy existence the Dominion Police • McGee, Sir John A. Macdonald proceeded to legislate into • Force through the passage of the Police of Canada Act, which received Royal assent on • 22 May, 1868.36 • • The initial preoccupation of the Dominion Police Force was to deal with the menace of • • ' the Irish Revolutionary Brotherhood, commonly known as Fenians37 , who used terrorist • tactics to seek independence for Ireland from Britain. In addition to performing regular • • policing duties, therefore, the Dominion Police Force under a commissioner who reported • to the Minister of Justice provided a national security service. While the operations of the • Dominion Police Force were confined to -- where it engaged in wide- • ranging activities, including policing , protecting naval bases, combating • eye on enemy • counterfeiting, supervising a national fingerprinting bureau and keeping an • aliens38 -- its mandate extended to all parts of the country. 39 Its federal mandate was • effective in overcoming the cross-jurisdictional issues that constrained many of • extremely • the local police forces inherited from colonial times. This was a particularly important as • crime became less localized. 40 • • In 1873, Parliament passed An Act Respecting the Administration of Justice and for the • Establishment of a Police Force, in the North West Territories41 , which through an • • • • 35 Gibson. Op. cit., p. 459. 36 S.C. 1867-68, c. 73, s. 2. • 37 The Irish Revolutionary Brotherhood, whose cause was to bear up arms against Britain until Ireland was • given its independence, was held responsible for a number of terrorist-like activities in Canada and the • United States. In addition to the death of D'Arcy McGee, Fenians were involved in the dynamiting of a O lock on the Welland Canal in 1900 and the assassination of American President Mckinley in Buffalo, New York, the following year. • 38 William H. Kelly and Nora Kelly. Policing in Canada, Macmillan Press, Toronto (1976), p. 19 as cited • by Gibson, Op. cit., p. 461 • 39Gibson, Op. cit., p. 460. 413/bid. • 41 S.C. 1873, c. 35. • • 15 • • Order-in-Council led to the creation of the North West Mounted Police42, a para-military force patterned after the Irish Constabulary with the general mandate of subduing lawlessness in the Canadian West and guarding Canada's claims to the territories in the north and north west. The force's mandate was broad and included: i. "preservation of the peace, the prevention of crime; ii. attending upon and assisting judges and magistrates, executing any warrants they might issue; iii. escorting and conveying prisoners lunatics to and from places of confinement; and, iv. acting as justices of the peace"

By virtue of the Act, the control of the North West Mounted Police rested with the Department of Justice, but a provision allowed the Governor-in-Council to order the transfer of the NWMP to any other Department of the Civil Service of Canada.

From 1876 until 1966, responsibility for the NWMP and its successors, the Royal North West Mounted Police and, later, the Royal Canadian Mounted Police, created in 1920, was transferred as follows:

1873 to 1876 Minister of Justice and Attorney General 1876 to 1878 Secretary of State 1878 to 1883 Minister of the Interior 1883 to 1887 Minister of Indian Affairs 1887 to 1889 President of the Privy Council 1889 to 1891 Minister of Railways and Canals 1891 to1921 President of the Privy Council 1921 to 1922 Minister of Justice and Attorney General 1922 Minister of Militia and Defence 1922 to 1966 Minister of Justice 1966 -- Solicitor General

National Security concerns grew in the early nineteen hundreds. The close of the First World War gave way to fears about the rise of Communism following the Armistice. In

42 In 1904, in recognition of its exemplary service, the North West Mounted Police, became the Royal North West Mounted Police upon the decree of King Edward.

16 0 • • • • response to these and a growing number of other perceived threats43 the Department of • to a lack of co- O Justice created a Public Safety Branch which appears to have failed due • ordination between the Dominion Police Force, which reported to the Minister of Justice and the Royal North West Mounted Police, which at the time was under the jurisdiction • • of the President of the Privy Counci1.44 Following the Winnipeg General Strike of 1919, • the Prime Minister, , asked the Commissioner of the RNWMP to produce • a report that would outline issues related to national security. The report found that the • divided responsibility for national security to be an issue and recommended the creation • • of a nation-wide police force "that would not only act as the secret service but also come • to the aid of the local authorities when civil order erupted."45 At the request of Prime • • Minister Sir Robert Borden, a renamed national police force, the Royal Canadian • Mounted Police, formerly the RNWMP, was created on February 1, 1920.46 At that • O time, the RCMP absorbed the duties of the Dominion Police Force.47 •

As noted earlier, the responsibility for Canada's federal police force was, for relatively • • brief periods, transfe rred between several ministries; however, it is noteworthy that the • Department of Justice was its constitutional home. It is equally noteworthy that while the • • administrative structure of the RCMP was geatly expanded to handle the increasingly • complex duties that fell to it, the Minister of Justice remained the chief executive officer • • of the federal police force for most of the period from 1920 to 1966. • O

• 43 With the invocation of the War Measures Act in 1914, the Dominion Police Force was greatly expanded • and it interned roughly 8000 potential insurgents. The suspicion of Germans ran high in Canada. It was popularly believed that German spies were responsible for the burning of the Parliament Buildings and the incredible Halifax explosion.: Shoemaker, Op. cit. p. 48, citing S.W. Horrall , "Canada's Security Service, • a Brief History, RCMP Qua rterly (undated), p.43 and Carl Betke and S. W. Horrall, Canada 's Security • Service: An Historical Outline 1864— 1966 (undated), p. 222. • 44 Shoemaker, Op. cit. p. 49. 45 S. W. Horrall. "Canada's Security Service, a Brief History", RCMP Quarterly, (undated) pp. 44, 45 as reported by Shoemaker Op. cit. • 46 Shoemaker, Op. cit. p.49 and Gibson, Op. cit. p. 464. • 47 Gibson Op. cit., citing several sources, reports that, "In a formal sense [the Dominion Police Force] • continues to exist, since its constituting legislation, the Dominion Police Act, R.S.C. 1927, Vol. V has never been repealed. p. 460. Although the Dominion Police Force was never formally abolished, its members • were discharged with the opportunity to join the RCMP, p. 464. • • 17 O • • • •• ••0 0 •• 110 0.001111 11 00.•00 41 00 0.001100 011.•• 04)0 1111000110 000000 British police, handle allmatters The administration in the was still recommendations tobe On CONDITIONAL RELEASE Toronto. In1913 impressed Officer, staffedbySalvationArmy Dominion Parole the General by Cabinet asa General by Recommendations toreleaseoffendersunder In spite of the apparent In spiteofthe sometimes questionable,influence parole attempt toseparate significant departurefromtraditionalpractice Ticket August 11,1899, Department ofJustice of LeaveAct- judges, politicians be at legislation mentioned, during such portion of histermimprisonment, portion mentioned, duringsuch Branch triedto order grant toany Efforts conditions in while granted Governor Generalmayfromtimetorevoke h eatetwt i okognzn the Department withhisworkorganizing the large inCanada,or in on parole. It wasuseless. on by hands ofanelectedminister, ticket of writing. the the RemissionBranchwasestablished of and of the convict clemency, including all was enactedby the eiso rnht sttercr straightwereunavailing. settherecord Remission Branchto provided show successes, unrelenting put respects as hl. A whole. ev ewe 89 and1922 leave between1899 Act toProvidefor Ticket and thepublic, and, in1905,the decisions frompolitics.Even forward by under that, according to its records, that, accordingtoits the of Leave sentence subsequent amendmentto on such to Governor Generalwith the policy. the The critics, apparently,had The the part Canadian Parliament.Itwascloselymodelled Act mounted against Governor Generalmayseemfit; parole. Minister ofJusticeonly. Department of imprisonment the public opinion thereof placed enormousoperationalburdens the Act in theuseof pressure Conditional LiberationofConvicts- as in Brigadier Walter were initially had actuallycommitted ofJustice from several so, church's or alter in the Department in the such licenseshallbe the useof only 2.2 percent only 2.2 executive clemency;itwas because conditionalrelease would still the in a the Act authority such licenseby penitentiary Prison Gate created no made This directions, and conditional release: allowed interest Archibald whohad have a upon such to: to was the positionof and the ofJustice of prisoners the Ministry a strong, a in an license to including Governor a looking offence like The on the to and in an on 18 • • • • • at the actual conduct of parolees. There was intense pressure to tighten up the • rules for conditional release.48 • • • In 1925, the Remission Branch was reorganized following the resignation of its Chief, • who was replaced by a hardliner, Michael F. Gallagher. Rigid new criteria for eligibility were imposed, which significantly reduced the number of prisoners considered for parole. • Whereas 1,400 tickets were granted in 1923/24, only 750 were granted in 1925/26. • Moreover, most of these were releases for deportation or temporary licences for such • purnoses as hospital treatment. As the number of ticket of leave releases declined during • the years of the Great Depression, prison conditions deteriorated dramatically and several • riots, including a six-day uprising at Kingston Penitentiary in 1932, ensued during the • mid-1930s. Consequently, Mr. Justice Joseph Archambault was asked to head a Royal • • Commission of Inquiry with a mandate to inquire into and report on: the treatment of • offenders, the management of penitentiaries, co-operation between social agencies in the • • prevention of crime and the conditional release of offenders. • • The "Archambault Report" contained 88 main recommendations, which called for • • widespread reforms, among them: • • a centralized penal system under the control of the • • • the professionalisation of penitentiary administration and officers • • the classification of offenders • • a simplified disciplinary system subject to rules of due process • • rules restricting the use of weapons in most institutions • • • improvements in recreation, employment, education, health care, religious and • visiting programs • • • the housing of women offenders in various provincial institutions • various recommendations to amend the Criminal Code, including the decriminalisation of certain offences • • • • • 48 National Parole Board, A History of the National Parole Board • • 19 • • • ••••••••••••••••••••••••••••••••••••••••••••••••••••••• National ParoleBoard recommendations, but recommendations, The through reforms recommendedby of the The majority recommended by Today's http://www.ripb-eni 50 Ottawa, King's 49 Board Remission with considerablediscretionaryauthority Committee toInquireinto were notacteduponuntilsometime Court Service The • • the • Archambault Justice preceding accountborrowsheavily from judge, members wereappointed utc. Thereis justice. the the protecting society.Itis failure ofprison and contained characterized by Joseph of theDepartment ofJusticeCanada", The the Corrections and reorganization ofjuvenile reporting mode Service had. supervising prisoners enactment ofthe underlying principle made Printer, Archambault. rn in the report ization ofthe recommendations thatledto c.ge.calabout/part1_eltm 1938 this and Archambault also was To ensureimmunityfrompoliticalinterference management andthe p. the report no placein is remarkable,notonly recording Conditional ReleaseAct Report the 354 the a firm dignitythatistraditional completely independent Parole Act Principles is toevolve scope of the of the for ticket of leave ticket to befollowed Report. of l 0-year for it afier of courts Royal Commission greatest statistical the excellent its in and and a weak sentimentality the Second the vision a 1959. terms, with penal systemwith Procedures followedby

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of five "A 20 • • • • • CRIMINAL LAW • • The task of unifying and consolidating the new Canadian criminal law began almost • immediately after Confederation. Parliament enacted several pieces of criminal • legislation. Of particular importance was The Criminal Procedure Act, which formed the basis for much of today's criminal procedure. By 1892, the criminal law of Canada • • consisted of several elements: the common law and statute law of England as of the • various reception dates, the statute law of the individual provinces and federal legislation since Confederation.5I •

THE OFFICE OF THE SOLICITOR GENERAL WITHIN THE DEPARTMENT OF JUSTICE • The foregoing chronicles the considerations that led the Department of Justice to enact • laws that created the institutions that preceded Canada's criminal justice system from Confederation to the time just prior to the creation of the Department of the Solicitor • General. Moreover, this account also gives witness to a repeated pattern, namely that the and the Attorney General assumed Department of Justice, though the Minister of Justice 411 and largely retained responsibility for the executive operations of these institutions.

As noted earlier, the position of Solicitor General was not reintroduced in federal • govermnent 1886 when Parliament approved the Solicitor General Act. Under the terms • of the Act: 111111 The Governor-in-Council may appoint an officer called the Solicitor General of Canada who shall assist the Minister of Justice in the counsel work of the • Department of Justice and shall be charged with such other duties as are at any • time assigned to him by the Governor-in Council. 52 • • view that that Macdonald saw the Solicitor Shoemaker refers to Hansard to support a • General's office as a means of alleviating some of the problems associated with the dual • nature of the Minister of Justice and Attorney Genera1.53 Edwards suggests that the • • • • 51 Department ofJustice Canada website • 52 Solicitor General Act 1889, S.C. c. 14. • 53 Shoemaker, Op. cit. p. 57. • • •

• office was likely created to avoid the payments of large fees to outside counsel in • connection with the Department of Justice.54 •

• After receiving Royal Assent, the office of the Solicitor General remained vacant, until filled by John Joseph Curran on December 5, 1892. He remained in that • office until October 17, 1895, except for a brief period between December 13 and • December 20, 1894. • Edwards notes that the duties of Sir , Canada's third Solicitor General

• who served between 1896 to1902, "took briefs for the Crown in the Supreme Court and • the Exchequer Court."55 With the passage of the Ticket of Leave Act in 1899, the • the responsibility for advising the Gove or-in- • Minister assigned the Solicitor General rn • General on the exercise of the prerogative of mercy in all cases except those involving • the death That responsibility was eventually broadened to include both the • penalty.56 • review of the petitioner's file in a capital case and also the formal recommendation to the • Executive Counci1.57 Indications are that the workload of the early Solicitors General • was light, and it was not uncommon for holders of that office to continue in private • practice. gio • As noted by Shoemaker58 and Edwards,59 the status of the office of the Solicitor General • • was the subject of periodic debate in the House. More specifically, there was ongoing • concern that the salary and other entitlements attached to the office were excessive in • relation to its duties. This issue was the focus of a speech given by Frank Howard, the • • CCF member from Skeena, on the second reading of a private members bill (Bill C-27), • which, in effect, would remove the solicitor 's entitlement to a salary while sitting as a • • member of Parliament. During his speech Mr. Howard noted: • • • 54 J. Ll. J. Edwards, Ministerial Responsibility for National Security, Minister of Supply and Services • Canada (1980), p.22. • 55 Ibid. • 56Ibid. 57 Ibid. p.23. • 58 Shoemaker, Op. cit. p. 62. • 59 Edwards, Op. cit. p. 22. • • 22 • • For my part I think the post of solicitor general with its present attachments and responsibilities which I consider to be extremely light, is nothing more than a high or overpaid position of parliamentary secretary. I think the duties, functions and responsibilities of the solicitor general, as they are at the present time, do not warrant that position either being of cabinet rank or commanding a cabinet salary.6°

To be fair, Howard's concern was not that the office was unnecessary or superfluous, but rather that it was not accorded more responsibilities: I think that if we are to retain the post of solicitor general we should recognize the fact that it is a post worthy of more than the sort of scanty responsibility which is attached to it at the present time. I think we should place the solicitor general in a position comparable with other members of the cabinet by establishing some definite responsibility for the post in order that the rank and salary attached to the position will bear some equitable relationship to its responsibilities. 61

Howard then went on to suggest that some functions from the Department of Justice could be divided up to provide the Solicitor General with additional duties and responsibilities. One such suggestion proved unwittingly prophetic, for among the duties within the Department of Justice that Howard suggested could become the responsibility of the Solicitor General was " . . . the administration of the Parole Act or the penitentiaries branch . . ." 62

During the debate over Bill C-27, Frank McGee, representing the government, defended the Solicitor General's office, not necessarily in terms of the importance of the duties related to it, but by lauding the work performed by when he was Solicitor General between 1913 and 1917:

The Right Hon. Arthur Meighen brought to this post undisputed talent and while occupying it he undertook Herculean tasks. 1 do not think any other word can describe the undertakings which were assigned to and accomplished by him while he held this post.

In discussing Mr. Meighen's career it seems to me that the very arguments put forward by the hon. member for Skeena, in terms of the lack of departmental

60 Hansard, May 19, 1961,p. 5077. 61 Ibid. 62 Mid.

23 •

• responsibility and other particular, defined matters to occupy the solicitor • general's time, are defeated because Mr. was free to attach these serious • Meighen and important problems and give his full time and effort to them, and they were • better accomplished for that reason. 63

• Since few Solicitors General were as active as Meighen, the argument put forward by • • McGee was somewhat tenuous and made even more so by his assertion that: • . . . this post is also important, it seems to me as a training ground. The present • Minister of Transport (Mr. Balcer) . . . occupied that position [i.e., Solicitor • General] with great distinction and is now doing a most outstanding job as • Minister of Transport.64

• In the end, Bill C-27 was defeated and the office of the Solicitor General continued in the who saw the Solicitor General as a handy • role intended by Sir. John A. MacDonald " . . . 4111 man, always ready to go into business".65 • • • The elevation in 1966 of the Solicitor General from his relatively obscure role in the Canadian version of that office virtually severed it fi-om the English tradition from which • • the office takes its name. The event that gave rise to this iteration of the Solicitor • General's office was the political scandal associated with the Rivard66 case, in which the • Minister of Justice, Mr. , was accused by the opposition of the • misadministration of justice: •

" Ibid. • 64 Ibid. • 65 Hansard, 1978, Vol. 5, pp. 1584 — 1590. • 66 Rivard is most remembered for destroying the career of a federal justice minister, and nearly sinking Lester Pearson's government in one of the great scandals of recent Canadian political history. • • In 1964, Rivard was in prison fighting off extradition proceedings to the United States, where he was • wanted for heroin smuggling. That was when Pierre Lamontagne, the lawyer hired by the U.S. government, was offered $20,000 to secure Rivard's release on bail. The bribe was offered by an assistant to immigration minister René Tremblay. Lamontagne was also pressed by an aide to federal justice minister Guy Favreau, • and by Guy Rouleau, a member of Parliament and Prime Minister Pearson's parliamentary secretary. The RCMP investigated but said there was not enough evidence to lay charges.

• In November 1964, the opposition got wind of the affair and, led by Progressive Conservative MP Erik star in the Pearson cabinet. The • Nielsen, began a ruthless campaign against Favreau, who was then a rising scandal forced Favreau's resignation and, for the 1965 election, Prime Minister Pearson recruited three new • leading candidates in Quebec — , Gérard Pelletier, and . te • 24 • Questions had been raised in the House of Commons in November 1964, the gist of which involved allegations that the Executive Assistant and the Special Assistant to the Minister of Justice, together with the Parliamentary Secretary to the Prime Minister, had exerted improper pressures upon counsel who was representing the United States Government in extraditing Rivard in connection with narcotics trafficking.67

Frederic Dorion was the Chief Justice of Quebec commissioned to conduct an investigation into allegations of improprieties committed by the Minister of Justice Guy Favreau and others involved in the Rivard case. Chief Justice Dorion found that the Minister of Justice made a decision not to prosecute Rivard based on incomplete information. Moreover, Dorion concluded that, in any event, Favreau, as Minister of Justice, should have refened the file to the Department of Justice's legal advisors, rather than having made a decision. 68 While the Dorion inquiry cleared the Minister of Justice of any wrongdoing, he subsequently resigned.

The conclusions reached by Chief Justice Dorion inquiry clearly pointed to the need to separate the authority for the investigation of criminal investigations from the authority to prosecute. Moreover, it was suggested that the administrative burden placed on the Minister of Justice and the Attorney General had become onerous and that preoccupation with the administrative duties related to the portfolio of the Minister of Justice and Attorney General was interfering with his executive duties.

The way out of this dilemma was for the government to separate the responsibilities for police investigations from the Department of Justice. On March 7, 1966 Prime Minister Pearson announced: We hope to introduce legislation shortly which will establish, among other things, the Department of the Solicitor General, under a minister who will have responsibility for the RCMP and for security matters. This will be a responsibility to which he will be able to give considerable time, because this increasingly important aspect of the work of the Department of Justice will then become the responsibility of a separate minister. The new minister will be able to give much closer attention to these difficult problems than has been possible in the past. A

67 J. Li. J. Edwards, Op. cit. p.29. 68Canada. Report of the Commissioner, The Honourable Frederic Dorion, Chief Justice of the Superior Court for the Province of Quebec, Ottawa, King's Printer 1965, pp. 134 —135.

25 • • • high priority function of the new department will be to examine in detail the • problems of espionage and subversive activities, and to determine how best to • deal with them.

• The Department ofJustice and the office of the Attorney General of Canada will • be returned to the full time discharge of their functions in the drafting of • legislation and documents and the conduct of litigation and prosecution. • • Technically, the Government Organization Act (1966) was the legal instrument that • permitted Parliament to create the Department of the Solicitor General and to transfer • from the Department ofJustice duties, functions and powers relating to reformatories, • prisons and penitentiaries; parole and remissions; and policing. In streamlining the • Department ofJustice, and transferring the authority for the RCMP to the Solicitor • • General, the Government Organization Act accommodated the conclusions of the Glassco • Commission69 and the lessons of the Rivard Affair. • • The primary responsibilities of the Solicitor General were set down in Section 4 of the • Government Organization Act (1966). The sections of the Act pertaining to the • • Department of the Solicitor General appear below: 70 • • • 14 — 15 ELIZABETH II • CHAPTER 25 • An Act respecting the organization of the Government of Canada and 111 matters related or incidental thereto. 111 • [Assented to 16e" June, 1966] • Her Majesty, by and with the advice and consent of the Senate and House • of Commons of Canada, enacts as follows: • • 69 The Glassco Royal Commission on Government Organization, mandated by the Diefenbaker government • to rationalize goverrunent services, made specific recommendations in its 1962 report on the need to integrate the legal services throughout various government institutions within the Department of Justice. • As noted by Edwards (Op cit. p. 25), the Glassco Commission made no reference to the pressing need to • dissociate any major responsibilities from the Minister of Justice and the Attorney General of Canada. 70Pursuant to the Revised Statutes of Canada the Department of Solicitor General Act was created in 1970, • R.S.C. 1970, • • • 26 • • • • • SHORT TITLE • 1. This Act may be cited as the Government Organization Act, 1966. • DEPARTMENT OF THE SOLICITOR GENERAL 2. (1) There shall be a department of the Government of Canada called the • Department of the Solicitor General over which the Solicitor General of Canada • appointed by Commission under the Great Seal shall preside. • (2) The Solicitor General holds office during pleasure and has the management and direction of the Department of the Solicitor General. • te 3. (1) The Governor in Council may appoint an officer called the Deputy Solicitor General to be the deputy head of the Department of the Solicitor General and to hold office during pleasure. (2) Such other officers and employees as are necessary for the proper conduct of • the business of the Department shall be appointed in the manner authorized by law. • 4. The duties, powers and functions of the Solicitor General of Canada extend to and include all matters over which Parliament has ju risdiction, not by law assigned to any other department, branch or agency of the Governrnent of Canada, • relating to • • (a) reformatories, prisons and penitentiaries; • (b) parole and remissions; and • (c) the Royal Canadian Mounted Police. • 5. The Solicitor General shall, on or before January 31 next following the end of • each fiscal year or, if Parliament is not then sitting, on any of the first five days • next thereafter that Parliament is sitting, submit to Parliament a report showing 111 the operations of the Department of the Solicitor General for that fiscal year. • The Act is noteworthy in at least three respects. The first is that it establishes the office • of the Solicitor General by virtue of the Great Seal of Canada, thereby elevating the • office to full Ministerial status. Secondly, it signals an almost complete break with the • traditional use of the Office of the Solicitor General in England and in colonial Canada. Lastly, the Act provides no mandate for the Department — a feature that figured • prominently in the development of the Department, and to some degree continues to do • so. • • • • • • • 27 •

• • THE DEPARTMENT OF THE SOLICITOR GENERAL OF CANADA • • "DEPARTMENTAL HEADQUARTERS" • (1966 — 1972) • • • With the creation of the Department of the Solicitor General, a centralized "Depa rtmental • Headquarters" was established with a view to controlling agency resources and • maintaining a consultative and research role. The role of the Deputy Solicitor General • • under the Departmental Headquarters model included: • • Development of long-term correctional policy and plans • • • Development of new programs • • Evaluation of Agency programs • 41 • Coordination of Agency programs • • Forecast of requirements for resources • 111 • Provision of common services (RCMP and Correctional agencies)71 • • In effect, this role definition treated the Royal Canadian Mounted Policy, the Canadian Penitentiary Service and the National Parole Service as a single government department. • • Agency resistance to this role model proved strong: • With the creation of the Department of the Solicitor General, "Departmental • Headquarters" was created to play a role of controlling resources and maintaining • a consultative and research role. This resulted in strain between Departmental • Headquarters and the agencies as to what constituted an appropriate division of 111 authorities and responsibilities. Such strain may have resulted in questions being • raised with Departmental Headquarters and within the agencies as to the • appropriateness of the originally conceived role of Departmental Headquarters.72 • • In addition, the agencies, particularly the Canadian Penitentiary Service and the Royal • Canadian Mounted Police had long-established histories and traditions. Each had

• 71 Organization Implementation, Correctional Programs Step One, Department of the Solicitor General, • P.S. Ross and Partners, November 1967. p. 7 - 8 72 A summary of the Senior Policy Advisory Committee minutes; Canada Consulting Group as referenced • in "A review of the Role of the Secretariat of the Ministry of the Solicitor General of Canada, April 1983. • • • 28 411, • • • • • legislative mandates for their operations and accorded their respected executive officers • with deputy minister status. The National Parole Board was, by law, an administrative • • tribunal operating at anns-length from the Solicitor General. Departmental Headquarters, • on the other hand, had no legislated mandate to perform many of the proposed controlling • functions. Ongoing debates persisted during the late 1960s between the Department and • agencies about the appropriate division of roles and responsibilities. By the early 1970s, • • the need for a re-evaluation of the Departmental Headquarters model had become • apparent. • • • The way forward took the form of a contract with the Canada Consulting Group for a • study aimed at defining the most appropriate role for Departmental Headquarters and to • determine the distribution of responsibilities between itself and the agencies of the • 73, which • Solicitor General. A key element in this regard was the 1969 Ouimet Report • provided a systematic examination of the Canadian criminal justice system and its • relationship to Canadian society. That report painted a picture of a criminal justice • system characterized by fragmentation, strain and a lack of co-ordination among its • components. Further, it pointed to the need for improved federal-provincial relations so • • as to achieve greater uniformity in the quality of justice administered in the various • jurisdictions in the country and to foster innovation in the administration of justice.74 • • • Following consultation with the agencies, and likely influenced by the findings and • • recommendations of the Ouimet Report, a Treasury Board submission entitled, "A • Management Plan for the Ministry of the Solicitor General" was developed in late 1972. • submission emphasized a proposal for a new organization rather than a • The • reorganization of the Departmental Headquarters. The justification for emphasizing this • distinction was that the proposed entity was to assume a broader and more ambitious role • • than was originally conceived for Department Headquarters. 75 • • • 73 Toward Unity: Criminal Justice and Corrections, Report of the Canadian Commit-tee of Corrections, The • Queen's Printer, Ottawa, 1969. • 74 "A Review of the Secretariat of the Ministry of the Solicitor General of Canada", Office of the Auditor • General, April 1983. O 75 fbid,p. 8. • • 29 • • • • • EARLY 76 : • ACCOMPLISHMENTS • 1967/68 • • Staff strength in fiscal-year 1967/68 is 37 positions (including 9 for Minister's office). • • • The assessed requirement for fiscal-year 1968/69 is 57 positions. • • • The Correctional Planning Division is established. The division is responsible • for the development for plans for the correction and rehabilitation of • offenders, for the making of recommendations on correctional policy and to • • assist in implementing approved changes in policy. • Ten scholarships are approved to provide financial assistance to post-graduate 411 • social sciences students who were expected to enter the Public Service with • • either the Canadian Penitentiary Service or the National Parole Service. • • 1968/69 • • Planning for Departmental Headquarters continues -- "A small but competent staff which will provide a variety of services to the Department and its • • Agencies." The Organization and Personnel Division assists both the Con-ections • • • Agencies and the Royal Canadian Mounted Police in conducting organization • studies. • • The Correctional Research Unit and a Consultation Centre are established in • response to the recommendations of the Department of Justice Committee on Juvenile Delinquency in Canada. Its services included the gathering and • • dissemination of pertinent information on preventive and con-ectional • measures; the provision of advisory and consultative services; and, support for • demonstration projects designed to develop innovative programs. The • Con-ectional Research Unit is designed to conduct coordinated research • operations within the Department and to support research activities conducted • by provincial organizations, universities and private agencies in studies of the • prevention, apprehension and correction of offenders.

O • 76 Annual Reports of the Solicitor General of Canada. • • 30 •O • • • • • • Work continues on the complete revision of the Juvenile Delinquents Act. • on Corrections • • The Report of the Canadian Committee is completed. • • Work begins on providing some ex-offenders with access to fidelity bonding, • or • a type of insurance that protects an employer in case of any loss of money • property due to employee dishonesty. • • In cooperation with the Department of Indian Affairs and Northern O a study is undertaken on a strategy to implement Development, • recommendations of the Report on Indians and the Law. • • • Work begins on a funding scheme for provincial probation services and • private after-care agencies • • • 1969/70 • • • Bill C-5, the Criminal Records Act receives first reading. • • Most of the amendments to the Prisons and Reformatories Act, the • • Penitentiary Act and the Parole Act contained in Bill C-150 are promulgated. • • Work begins on implementing the approved recommendations of the P.S. • • Ross Report on the regionalization of the Canadian Penitentiary Service. • • The Management Consulting Service provides assistance to the Penitentiary • Service in the opening of new institutions and to the National Parole Board in • the establishment of a pilot regional organization. O • • The Personnel Division plays a significant role in the contract negotiations • with the Correctional Officer Group. • • • The Public Service Employment Act is extended to all three agencies, thereby • placing all civilian employees in the Penitentiary Service, the Parole Service • and salary • and the Royal Canadian Mounted Police on the same employment • standards. • • The Correctional Planning Branch, first know as the Youth Services Centre, • • (divided into two arms: the Correctional Consultation Centre and the • Correctional Research Unit) receives its first budget. • • • • , • , • 31 • • • • e • • 1970/71 • • Work continues on the development of an efficient and cohesive departmental • headquarters administration. • • • The Criminal Records Act is promulgated. • • C-192 (The Young Offenders Act), which was to replace the Juvenile • Delinquents Act receives first and second reading. • • The Parole Act is amended to clarify the sentence that must be served when a • parole is forfeited upon conviction for an indictable offence. Mandatory supervision for persons released • as a result of remission of sentence is • established. • • Two committees, both headed by the Special Adviser on Correctional Policy, • A. J. MacLeod, begin work on addressing the recommendations of the Ouimet • Report. • • • Information Services assists the Canadian Penitentiary Service to complete • documentary films on virtually every aspect of prison life. The material is for • use in social studies and political science classes at the high school level. • • In response to a growing public interest in the criminal justice system, the • Minister orders a Task Force on Information. • • The Management Consulting Services Branch prepares several studies on a • wide range of subjects including the organization of Headquarters of the • Canadian Penitentiary Service and the National Parole Service; improved • reporting systems; and computerization of inmate histories. • • The Correctional Consultation Centre sponsors projects tlu-oughout Canada on crime prevention; youth; diversion; community-based treatment; use of • • volunteers; and alternatives to prison. • • The Correctional Research Centre initiates new research programs with • several Canadian universities on various topics including: Dangerous • Offenders ; Late Criminality; Work Orientation of Staff ; Offenders of Native Origin in Manitoba; Cost of Crime and Crime Control ; Parole and Release; • • Penal Architecture; and Adult Female Offenders. • • 32 • • • • • • • 1971/72 • • The Annual Report notes, "the establishment of an effective Departmental • Headquarters is a fairly slow process. It is not being achieved as quickly as hoped for". • • Work continues on implementing the recommendations of the Ouimet Report. • • Thirty-seven recommendations resulted in changes to legislation; six • recommendations were contained in Bills before Parliament; twenty-two were • the Law Reform • implemented through policy and twelve were referred to • Commission. • • Bill C-192 (Young Offenders Act) dies at the end of the third session of the • • 28th Parliament. • • The Correctional Consultation Centre continues to participate in various • • studies and demonstration projects, including: a review of the • corrections system; services available female offenders in the Atlantic • O Provinces; testing and evaluation of community-based residential programs at • Edmonton and Regina; appointment of the Task Force on Community-Based • • Residential Services; use of community volunteers in probationary services; • community coordination to prevent crime and juvenile delinquency ; • • diversion. • • The Correctional Research Centre publishes the first of a series of Research • • Centre Reports, "The Cost of Crime and Crime Control". • • A contract is let to the International Centre of Comparative Criminology • (University of ) for a three-year study on the development, role • • function, and effectiveness of metropolitan police forces in Canada. • • Research projects are completed or underway in several areas: Dangerous • • Offenders; Solitary Confinement; Cognitive Needs of Released Inmates; • Effectiveness of Therapeutic Communities; Correlates of Trust, Cooperation • • and Treatment Potential in Penitentiary Workshops; Adult Female Offenders; • Parole Supervision; and Surveys on the Employment of Ex-inmates. • • • • • • 33 • • • • Library services are extended to include the district offices of the National Parole Services. A survey of all Penitentiary Service college libraries is commenced. • The Security Planning and Research Group comes into operation. Staff are seconded from the Canadian Armed Forces and the RCMP. • Practical communications and media training is delivered. • Financial Management Services begin to produce monthly management reports. • Management Consulting Services undertake a review of the "Inmate Cycle", which examined all the procedures pertaining to an inmate's progress from the time of initial placement from the courts to sentence expiry and reviews the medical services provided by the Canadian Penitentiary Service. • The Operations Audit Branch conducts operational audits of one regional headquarters of the Canadian Penitentiary Service as well as several institutions and community offices.

34 "THE SECRETARIAT" (1972 — 1994)

The role of the Ministry Secretariat was based on a comprehensive and detailed environmental analysis conducted from a broad government perspective. While the events to which it refers likely lie beyond the recollection of many, the concerns and concepts it embodies have enduring currency.

Among the several appendices that accompanied the Treasury Board submission that gave rise to the Ministry Secretariat, three major objectives for the organization that was to replace the Departmental Headquarters were identified:

(A) To ensure that the Ministry plays a national leadership role in the Canadian criminal justice system it is required that the Secretariat perform the following key functions in support of the Deputy Minister in his role of principal policy advisor to the Minister: (i) policy development, (ii) evaluation, (iii) research and statistics (iv) consultation (y) the development of a responsive Ministry management information system and information program.

(B) To ensure an effective crisis response within the Ministry and maintain its ongoing responsibility for security planning and analysis;

(C) To improve the efficiency and effectiveness of the Ministry in all program areas within its own jurisdiction.

The Treasury Board submission also provided a list of research and consultation proposals, as well as a list of 26 policy issues, which included responsibility distribution in the criminal justice system; sentencing; probation; victims of crime; emergence of new

35 ! • • • • • crimes; international criminal justice system coordination; criminal records; treatment of • offenders; corrections and security; and current law enforcement problems.

O • Rounding out the Treasury Board submission in a separate paper was a description of the • projected role of the Department of the Solicitor General, based on perceived needs in • • relation to its environment. Essentially, the paper defined a much broader role for the • Department than that of the "Departmental Headquarters", which it was to replace. It • • proposed that the concerns of the Department extend to: O • • . . . every element of the criminal justice system from the point of view of • prevention of entry into the system, treatment of the offender within the system, • and the ultimate resocialization of the individual. The content of the law, the • policies that the law articulates as they pertain to the criminal are of concern to • the Department of the Solicitor General. For this reason, the Department, in to its operational responsibilities will have a capability in, and be • addition concerned with, policy formulation and development, research and analysis, • statistics, policy and program evaluation, experimentation, consultation, federal- • provincial-municipal relations, information and communications on policy issues • that pertain to the criminal justice system.77 • • This expanded and ambitious vision, by necessity, recognized the shared nature of the • role and responsibilities the new department was to assume. The most significant of • these was its relationship with the Department of Justice. The role paper which • accompanied the Treasury Board submission, recognized that the Department of Justice

• had the responsibility for "super-intending all matters connected with the administration • of justice in Canada, not within the jurisdiction of the governments of the provinces, • in the constitution of courts, appointment of judges, general procedures in • particularly • court matters, and the conduct of litigation in court." However, the role paper also • indicated that the Solicitor General had a significant role to play in the development of • • certain laws, particularly those relating to public safety, the humane and fair treatment of • offenders and those that provided the basic mechanisms for the re-integration of • • offenders in society: •

77Treasury Board Number 715 713, October 23, 1972. • • 36 • • • • • • In its relationship with the Department of Justice, the concern of the Department • of the Solicitor General will extend to matters connected with the administration • of justice, especially criminal justice. But this concern relates to the criminal justice system and its dual purpose. In this respect, the Department of the • Solicitor General has a distinct contribution to make to the development of • policies, programs and legislation from the point of view of their effect on the • criminal justice system. However, it is not possible nor feasible to develop • specific hard and fast rules as to which department, given this general background • on their respective concerns, should have a primary role in the development of • specific policies or programs. These questions should be decided as the issues • arise and such decisions should be based on the impact that the proposals are • likely to have on each department's programs or areas of concern and the politics • of the situation at any given point in time.78 • • By this account, the boundary definitions between the respective roles of the two • • Departments in the development of criminal justice law tended to be fluid and situational. • The role paper paid considerable attention to the proposed department's role in the • • development of criminal justice legislation, since no such authority or responsibility for • the Department of the Solicitor existed in legislation. • • • Treasury Board receptivity to the proposal for a renewed Department was influenced by • several factors, particularly those dealing with federal-provincial criminal justice issues: • • • The report of the Ouimet Committee: • • The terms of reference for the Secretariat seemed congruent with the general • concerns of the 1969 Ouimet Committee. Basically, the Secretariat was seen as a • broad policy co-ordinating body with the policy formulation and analysis role • being made viable through relevant research and consultation, with research and • consultation supporting the policy branch. Given jurisdictional fragmentation in • the criminal justice system, this role implied that the Secretariat would endeavour • role with respect to federal-provincial • to take, or participate in, a leadership • relations.79 • • • • 78 Ibid. • 79 "A Review of the Role of the Secretariat of the Ministry of the Solicitor General of Canada", April 1983. • p 10. O • 37 • • • I •. • A perceived leadership void in influencing provincial criminal justice policy80: Depa ment of Justice was inactive mandate, • Until 1974, the rt with respect to its • under Section 4 (c) of the Department of Justice Act.81 • • The capacity of agencies to exercise leadership: • • The agencies, which tended to focus more on operational issues at the time, had • relatively little formal policy capability. • • The Department's leadership role in the reformation of the Juvenile Delinquents • Act (1908): Prior to the creation of the Department of the Solicitor General, the • Deputy Solicitor General in the Department of Justice assumed responsibility for • reforming the Juvenile Delinquents Act. When this individual joined the • Department of the Solicitor General, he took this responsibility with him. This • established a precedent for the Department having a policy responsibility in • criminal justice.82 • The foregoing were among the key external considerations against which the Treasury • Board examined the proposal for the transformation of Departmental Headquarters, • which was then renamed, the "Ministry Secretariat, Ministry of the Solicitor General". • By fiscal year 1974/75, the Secretariat had made considerable advances in filling the • responsibility and policy voids that were identified in the 1972 Treasury Board • submission that led to its creation. During this period the Statistics Division was created, 41 the Research Division was expanded and the Consultation Centre was regionalized. The • • Research Division published a Research Guide, which clearly delineated what its priorities were and the consultation had established priorities as to the funds it would • commit to demonstration projects in specific issue areas. As well, it established a 80 Ibid. p. 9. • 814. The Minister is the official legal adviser of the Governor General and the legal member of the Queen's • Privy Council for Canada and shall . . . (c) advise on the legislative Acts and proceedings of each of the • legislatures of the provinces, and generally advise the Crown on all matters of law referred to the Minister • by the Crown." R.S., c. J-2, s. 4. • 82 Ibid. p. 10. • • 38 0 responsibility for criminal justice policy leadership and played a lead role in the development of the Young Offenders Act.

One of the major accomplishments of the Secretariat during this period was to firmly establish a role for the Depaiiment of the Solicitor General in the development of criminal justice law and policy. This achievement came about largely through an iterative approach in the development of the Secretariat's relationship with the Department of Justice. That relationship was shaped largely by the interaction of the two Departments in the context of work performed during the work of the Law Refonn Commission, which had commenced in 1971 by the Department of Justice.

The work of the Law Reform Commission addressed the Department of Justice legislated mandate under s.4(c) of the Department of Justice Act, an area that it had previously left relatively unattended. Since this area was a policy vacuum that the Secretariat had also sought to fill as part of its mandate, issues about their respective roles developed. Specifically, conflict developed between the two Departments over their respective roles in developing policy on a number of criminal justice issues then under consideration including: diversion, young persons in conflict with the law, gun control, capital punishment and compensation to violent crime victims.

The debate between the respective roles of the two Departments was adjudicated by the Prime Minister in a letter of May 26, 1975 addressed to the Minister of Justice in which Prime Minister Trudeau referenced the "jurisdictional dispute" and the "fundamental role problem" that existed between the two Departments. In that letter, the Prime Minister recalled an earlier letter addressed to the Solicitor General in which he stated that, "the Department of Justice has responsibility for ensuring complete and co-ordinated advice on the content of the criminal law," but that "the government cannot receive complete advice without the active involvement and contribution of the Department of the Solicitor General."

39 • • • • The intervention of the Prime Minister resulted in the implementation of an • interdepartmental committee on the formulation of criminal law, which later became • known as the Joint Justice Committee. • • The major accomplishments of the Ministry Secretariat during this period indicates that it • • played a broad role in criminal justice issues at the Portfolio agency level, with the • Department of Justice and at the federal/provincial/territorial level: • The development of Gun Control Legislation, the successful negotiation of • various agreements with provinces, excellent research studies, Diversion projects, • and the development of Young Offenders legislation in addition to adjusting to several different Ministers • and responding over time to the many requirements of far, the most important • is an impressive record of accomplishment. By in particular, • accomplishment of the Secretariat, however, in the last few years it has earned with departmental agencies and with other • has been the respect criminal justice organizations across the country. 'Wounds' from the • departmental headquarters days of the late and early have healed. The • '60's '70's departmental agencies no longer feel "threatened" by the Secretariat. In fact, • Senior Managers in all three agencies spoke very highly of the competence of 83 • individuals now in the Secretariat and of the excellent cooperation they receive. • • This account testifies not only to the broad scope of the role the Secretariat had assumed, • but also to the quality of its work.

• Considerable credit for the Secretariat's performance between 1972 and 1977 must go to • the development of • Deputy Solicitor General Roger Tassé, whose former duties included • the Young Offender legislation at the Department of Justice. When he left the • Department of Justice in he brought this responsibility with him, thereby adding • 1972, • legitimacy to the Secretariat's role in the development of certain criminal law. 4111 Several environmental factors between 1977 and 1982 had a major impact on the • Ministry Secretariat. Perhaps foremost among these was the activation of the policy • planning function within the Department of Justice. Not only did this result in the • recruitment of members from the Ministry Secretariat, but more significantly, it also • • 83 Audit Services Bureau, "Solicitor General of Canada Ministry Secretariat: Corporate Review" prepared • for P. A. Bissonnette, Deputy Solicitor General of Canada. • • 40 •4111 • revived questions about respective roles and partnerships in the development of criminal justice policies.

Organizational stability during this period was affected by significant turnover in senior management. Key positions were left either vacant or staffed in an acting capacity. 84 ministers and governments within a relatively short period also contributed Changes in to a perceived lack of organizational stability.

By 1977 government fiscal policy required greater accountability and planning. This was in contrast to the late 1960s and early 1970s, a period in which there had been less emphasis on fiscal priority setting and evaluation.

Within this context, the role of the Secretariat came under continuing scrutiny, including an audit conducted by the Audit Services Bureau of the Department of Supply and Services in the early 1980s. While the recommendations put forward by the audit report were mostly not accepted, its observations about the role of the Ministry Secretariat confirmed the perception that role definïtion was an ongoing issue both inside and outside the Ministry Secretariat. Essentially the report, which was prepared for the then Deputy Solicitor General P. A. Bissonnette noted:

A wide range of opinion is held in the Secretariat on what the role should be. Some managers believe the role is a relatively narrow one responding only to the responsibilities of the Minister and to requests from agencies within the department. Other managers believe the Secretariat has a national role consisting of policy development and co-ordintation throughout the whole Criminal Justice System. Depending on which role, narrow or broad, in which the manager believed, alternative organizational arrangements were possible. . . In the absence of a clearly established role, to give common direction to the work of the Secretariat, these types of organizational problems and disputes have persisted.

Further to what has been said about internal problems, uncertainty about the role within the Secretariat has been detected as a managerial weakness by the department agencies. The agencies feel that the Secretariat has not explained its role very well. Although an abundance of goodwill.has been developed by the Secretariat with the agencies over the past three years, the attitude of the agencies

84 A Review of the Role of the Secretariat of the Ministry of the Solicitor General of Canada, April 1983.

41 • • • • • is one of scepticism with regard to the necessity of having the Secretariat play a • departmental role. While agreeing that a lot of what the Secretariat does is useful • the agencies feel they could do the policy development, research and statistics work, for their own use, just as well themselves . . . •

• In an organizational sense, when the department of the Solicitor General was set • up in 1966, the agencies used their strong legal basis to maintain their direct reporting relationship to the • Solicitor General of Canada, as some departmental managers of the time felt that they should. The Ministry Secretariat, on the other • hand, is a relatively new creation. Its role is not yet fully accepted or understood • either in the department or throughout the Criminal Justice System. The current • role of the Secretariat depends, to a large extent, on the influence that Secretariat • staff have with the Minister. This relatively informal but highly flexible role • makes the Secretariat organizationally v-ulnerable to changes in direction brought • about by management changes at the top. Also, since policy advice is a product • that is difficult if not impossible to quantify, the vulnerability of the Secretariat is • enhanced without a strong legal basis since "production" does not lend itself • easily to numerical reporting. El • The overall sense of the audit was not so much to question the role of the Secretariat as • defined in its 1972 Treasury Board mandate. Indeed, it could be argued that the audit report confirmed the strategic importance of that mandate. the report • While was • considered by some to be highly critical of management, its primary recommendations • related to the clear establishment of the Secretariat's role and mandate (relative to the • • agencies and the Department of Justice) in legislation and a corporate mission statement. • These recommendations ran counter to the notion, expressed in the 1972 Treasury Board • mandate that, " . . . questions of relative responsibility and role should be decided as the fle• issues arise and such decisions should be based on the impact that the proposals are likely • to have on each department's programs or areas of concern and the politics of the • situation at any given point in time."

• While the recommendations of the audit report were not accepted, questions of • organization and management leadership raised in the audit report were eventually • • addressed and the Ministry Secretariat continued to increase its influence in the area of p olicy • development. These included young offender legislation and the Justice for • Victims of Crime Study. By 1984, the year in which the Canadian Security Intelligence • • 42 • • • • • Service was established, the Secretariat employed 308 persons, with annual expenditures O of $40.3 million. By 1985/86 the Secretariat had grown to 333 persons, and an • expenditure level of $140.4 million, stemming primarily from responsibilities entailed by • the Young Offenders legislation.85 These figures tend to reflect the Secretariat's • increased role and influence in delivering on its original Treasury Board mandate. • O The Nielsen Task Force, conducted in 1985, provided the next context for a major review • of the role and mandate of the Secretariat's role. The Nielsen Task Force was established • to investigate and address inefficiencies in government generally, including Canada's • criminal justice system. Not unexpectedly, a focus of the Task Force was the competing • interface between the Ministry Secretariat and the Department of Justice, the Portfolio • agencies and the provinces and territories, respectively. As part of its review of the • Secretariat, the Task Force compared the existing environment to those extant in 1972. It • found considerable change: • • • • Portfolio agencies had increased their policy capacity and were increasingly "testing" • the boundary with the Secretariat; • O • Provinces and territories were showing an increased interest in jurisdictional criminal • justice issues and the opportunities for forrnal discussion with the federal government 41 had increased; O O • The Department of Justice had demonstrated a much-increased interest in criminal • justice policy that it had previously left to the Secretariat. O. • This comparison led to an acknowledgement that significant developments in the • environment had taken place since 1972 and the Secretariat's relationship with the • • various components of the criminal justice system could require review. The report • concluded that the Secretariat continued to be " well placed in the system to play a O dynamic coordinating and catalytic role, in cooperation with the Ministry agencies, the •

• • 85 This compares to 97 persons at the end of F/Y 1972, the year during which the Ministry Secretariat was established. • • 43 • • 0 • • • Department of Justice and the provinces".86 This proposition was based on the fact that • 95% of federal resources in criminal justice are directed at components under the direct responsibility of the Ministry of the Solicitor General and the well-recognized view that • • criminal justice is an inter-related system whose components have significant impact on • each other. The report found that: • • The close relationship with the agencies, and with other operational components • at the provincial level, gives the Secretariat a unique insight into the practical • problems and concems both of the people working within the system and those • coming into contact with it — as victims, suspects, accused and convicted • offenders.

O the day-to-day • At the same time, the independence of the Secretariat from same agencies, taken together with the • operational responsibilities of these statistical and consultative skills over the past • development of policy, research, in the establishment of an organization having a sufficient • ten years, has resulted degree of detachment, expertise, objectivity and independence to be able to offer • policy advice credible to all sectors of the system and the wider community. • • • The report to the Nielsen Task Force concluded by reaffirming the Secretariat's role as • expressed in the Secretariat Strategic Overview, namely: • • • to develop Ministry policy in the functional areas of law enforcement and • corrections as well as the general areas of criminal justice and national • security; • • to analyse policy initiatives, operational policy issues and operational • submissions prepared by the agencies of the Ministry; • • to advise the Minister on policy proposals and operational policy submissions; • • to coordinate policy development with the agencies of the Ministry, central • federal agencies, federal Department of Justice, other federal departments, • provinces and the private sector, and; • • to research and stimulate initiatives and innovation in the criminal justice • system.

• 86 Internal report to the Nielsen Task Force, November 22, 1985. • • 44 • • • • • These duties reflect the shared role the Secretariat played in the broader criminal justice • system and was likely not fully consistent with those of the Nielsen Task Force review • team who favoured the reamalgamation of the functions of the Solicitor General and the Attorney General with Deputy Heads assuming responsibility for the three areas of legal • services, police and operations, and policy. 87 • • • At the conclusion of its review, the task force review team recommended the continuation • of the following programs: Criminal Justice Research Program, Demonstration Program, • • Program of Grants and Sustaining Contributions to National Volunteer Organizations in • Criminal Justice, Employment Program, Consultation Centre Activities (on a modified • basis), National Victims Resource Centre (with a changed location), Firearms • Registration (with improved coordination), Publications (with the option to contract out) • and Ministry Library (with improved mandate). The most significant recommendation was the transfer of the Young Offenders Program to the Department of Justice to • • complement that Department's responsibility for adult criminal justice. 88 These • recommendations reflected a view that the Ministry Secretariat had "extended its • mandate into the general area or criminal justice research and policy development at the • • expense of providing the Solicitor General with support and advice in his direction of the Portfolio agencies89. • Subsequent to the publication of the Nielsen Task Force report, Prime Minister Mulroney • issued instructions that: • . . . in order to streamline federal activities in the justice sector and to free you to • concentrate on issues related to the four agencies for which you are responsible, I • have decided that responsibility for matters of criminal justice policy should be • consolidated with the Minister of Justice. This will necessitate the transfer of • certain programs currently located in your department. 9° • • "Internal briefing note to the Solicitor General (undated). A brief History of the Role of the Secretariat of the Ministry of the Solicitor General. O 88 Ibid. O 89 Internal report to the Deputy Solicitor General from Norman Moyer, Assistant Deputy Solicitor General, December 23, 1993. • 90Letter of Instruction from the Prime Minister to the Solicitor General (Hon. ), June 30, 1986: referenced in an internal memo of the Ministry of the Solicitor General, 13 July 1992. • • 45 • • The impact of this decision on the Ministry Secretariat was considerable. Structurally, it meant the transfer to the Department of Justice a portion of responsibilities that had been with the Solicitor General since 1966 including those for young offenders, firearms, victims, crime prevention, women and Natives in the criminal justice system, and international criminal justice. The Solicitor General retained responsibility for the policing, security and correctional aspects of these initiatives. 91 Consequently, the person-year allocation and budget of the Secretariat were reduced to 265 and $28.5 million.92

It is difficult to over-state the impact of the Prime Minister's direction on the Secretariat's role: The transfer of responsibilities was a wrenching one for the Secretariat as can be seen from the files, which highlight the natural tensions between the departments of the Attorney General and Solicitor General, and the difficulties of finding an acceptable line of demarcation between the realm of 'criminal justice policy' and 'social justice policy'. 93

If the Prime Minister's direction issued in May 1975 helped define these jurisdictional boundaries, those issued in June 1986 tended to re-open questions about the Secretariat's role. In more specific terms, the direction provided by the Prime Minister de-emphasized the Secretariat's role in the development of criminal justice policy while providing greater emphasis on issues that touched on the management of the Portfolio agencies.

To address the role issues that resurfaced through the implementation of the Nielsen Task Force report and in light of a government-wide initiative to transform the Public Service under PS 2000, the Deputy Solicitor General, John Tait, directed that work begin on developing a Secretariat mission document in 1988. This work proceeded on several fronts, both internally and externally with the Portfolio agencies.

91 Tallcing Points for the Solicitor General, February 19, 1987 and the News Release of March 25, 1987. 92 The program transfer reduced Secretariat resources and provided the Department of Justice with 45 person-years and $151 million. 93 Mona Brown. A brief History of the Role of the Secretariat of the Ministry of the Solicitor General. (Undated internal briefing note to the Solicitor General.)

46 • • • • • As in earlier exercises of this kind, discussions with agencies about the role of the Secretariat were protracted and sometimes arduous. On one hand, the Secretariat emphasized the importance of its central policy advisory role (both to the Minister and to • the agencies), particularly with regard to Portfolio-wide and broader inter-Departmental • initiatives, but also concerning thematic issues relating to policing and security and corrections within the agencies. On the other, the Portfolio agencies tended to guard their • independence and direct accountability to the Minister on operational and policy matters. • The development of the Secretariat's mission document involved careful coordination to • ensure ample opportunity for full and considered input by agencies. Consultation teams focused on the primary responsibility areas within the Portfolio (corrections and • a detailed consultation plan intended to clarify • policing). Each team proceeded guided by • roles and accountabilities at the Deputy, agency and secretariat levels and to promote clear and open lines of communications among them. Implicit in the consultation with 9 the agencies was a recognition that the complex and inter-related nature of the Minister's responsibilities could occasionally lead to conflict between various players in the Portfolio. A key focus of the Secretariat's mission document, therefore, was to promote mechanisms (including Senior Planning Committees) that would foster a collegial and • structured approach to managing the broad spectrum of strategic and operational issues • across the Portfolio. The final developmental stages for the Secretariat's mission • document were completed under the direction of Deputy Solicitor General, J. S. Stanford. •

The Secretariat's mission document was officially launched on July 12, 1990. At that time it was noted: • The statement speaks about the role of the Secretariat in providing independent • advice to the Solicitor General. This commitment to helping me, as the Minister, make decisions concerning agency issues and policies, is crucial to the proper discharging of my duties. Every day I need the advice and wisdom the Secretariat branches offer. That's • not a reflection on the quality of the advice I get from the agencies, only of the necessity to always seek independent counsel before making important decisions • about fundamental issues affecting the very safety and security of . I

• 47 • • • Your role is just as important in coordinating the policies, programs and research of the Ministry. Given the many different tasks the Ministry agencies must perform, any Solicitor General would be lost without the Secretariat's daily help in coordination of these elements.94

Viewed from the perspective of defining the role of the Secretariat, the significance of the mission statement is in the direction it provided by succinctly articulating the role of the Solicitor General, the Minister whom it served:

The Solicitor General Secretariat helps to promote and maintain a Canadian society in which all persons can feel protected fi-om threats to personal and national security and from infiingements upon their rights and fi-eedoms.95

This statement captures both the considerable scope of the Minister's responsibilities and his duty to protect fundamental values that are (and continue to be) central to Canadian society: public safety, human rights and personal freedoms.

The role of the Secretariat was then articulated in relation to the Minister's responsibilities:

The Secretariat contributes to this Ministry objective by advising and assisting the Solicitor General in discharging his or her responsibilities for:

• providing direction to the Agencies of the Ministry;

• exercising national leadership in policing, law enforcement, security, corrections and conditional release; and,

• answering in Cabinet and Parliament for the Ministry.

The key role, of the Secretariat, therefore, was to provide independent strategic advice to the Solicitor General in support of the Minister's considerable responsibilities, which involve the balancing of issues related to the fundamental values that lie at the core of Canadian society. That the Minister must do so by providing direction to individual

94 Notes for a statement by the Solicitor General at the unveiling of the Secretariat Mission Statement, June 22, 1990. 95 Mission• • statement of the Secretariat.

48 • • Portfolio agencies, each with sigmificantly different (and potentially conflicting) O mandates, continues to be one of the most challenging aspects of the Solicitor General's •0 leadership role. 9 • To address this challenge, the Secretariat's mission document speaks to its relationship to the Portfolio agencies, which are primary instruments within Canada's criminal justice •e ' system and whose operations account for over 90% of federal expenditures on criminal • justice: • We are committed to promoting a relationship with each Agency of the Ministry • that enhances the ability of both the Agency and the Secretariat to fulfill their • mandates. • Each Agency reports direct to the Solicitor General. Our relationships with the Agencies are defined by our relationship with the Solicitor General and his or her • role with respect to each Agency. The quality of the advice and support we provide the Solicitor General is affected by the quality of our relations with the • Agencies. These relationships must be founded upon respect for the 9 professionalism and dedication of our Agency colleagues, recognition of their • direct accountability to the Solicitor General, a commitment to our responsibility to provide independent analysis and advice to the Solicitor General, and a • commitment to open communication and cooperation founded upon mutual • respect and a sense of our common purpose.

This section of the Secretariat's mission document is significant because it recognizes • three different but interdependent relationships, which together serve the Minister in the • discharging of his or her duties. The first is the direct reporting relationship of each 0 agency head to the Minister. The second is the special reporting relationship between the O Secretariat and the Minister (through the Deputy Solicitor General). The third is the • collegial relationship that exists between the Secretariat and the agencies. Within this • framework, the primary role and raison d'être of the Secretariat was to provide • "objective, independent, sound and timely advice" to the Minister. This role was (and • continues to be) supported largely by the Secretariat's (Department's) ongoing capacity • 0 in the areas of research, policy development, program delivery and consultation. • Whether the Secretariat's mission document succeeded in establishing both a clearly • understood and accepted role is open to debate. While the mission document flowed • • 49 • 0•••••••• ■••9006•••••••••••••••••••••••••••••••••••••••• on directly form was stillunder prepared The These assessmentsserved immigration, borderserviceand further efficienciesbyreorganizingseveral 97 96 was re-established as General, December shortly following Secretariat would 1993, Aide ongoing providing reasons underlyingthisdebateweredocumentedalmost internal An the memoir preparedbyMona There was had devotedtoomuchoftheirtimeto Department between perceived by irritating micro-manager, the and Given for government created Minister across icl constraints fiscal should, therefore,refocustheirrole." report Deputy SolicitorGeneral,PeterHarder: direction the Prime the question: the 23, 1993. to the Secretariat's have played have a consensus in the and head the election October 1993. Deputy SolicitorGeneralfrom to theagencies,there Minister's Agency HeadsthatDepartment[MinistrySecretariat]officials Agencies of an as the fullrange and precursors to Brown, for of a the in the mandate, among agency Solicitor Generalresponsibilities.Whatrole, political considerationsled a cause Department ofPublicSecurity,whichcombined new government, as anobstacle direction newly createddepartmentislargelyunknown the and theMinister. Peter through of hisresponsibilities, of unnecessarypaperworlc, Privy Council a major Harder, to further review are indications the "micro-management" the Norman 96 to "getting the government departments.

Deputy Solicitor Solicitor Generaltofocushis the Deputy Solicitor 97 Moyer, Ministry oftheSolicitorGeneral Office, senior

of the that on the a Assistant year earlier in a year earlier with realwork", the the government toseek General, role oftheSecretariat Secretariat canbe role oftheSecretariat or an General, Deputy Solicitor officials of theAgencies 25 impediment February, In if briefing to June of the an attention any, the any, support for, 1993. 50 THE DEPARTMENT OF THE SOLICITOR GENERAL (1994 — 2003)

The post-election period provided the context for yet another review of the mandate and role of the Secretariat. Fiscal constraint and the newly elected government's commitment to cutting the deficit was an over-riding concern. At the same time, many of the "Red Book" commitments had direct implications for the Solicitor General. Among these were: • reducing the incidence of violent crime; • provision of treatment and rehabilitation services to offenders; • assurance of police restraining orders; and, community policing initiatives

These concerns were in addition to existing files, which included: • tobacco smuggling/border crimes; • the federal government's strategy for sharing forfeited criminal assets; • hate crimes; • youth gangs; • correctional legislative amendments; • aspects of the high-risk offender initiatives; • initiatives to deal with the rising offender population; • enhanced international cooperation to address the increasing globalization of crime and increasing movements of populations; • illegal goods and activities; • First Nations policing requirements, as well as the policing and corrections aspects of the Aboriginal Justice Initiative; • continuing rapid changes in the security environments; and • security implications arising from the government's defence and foreign policy reviews These initiatives would place a renewed emphasis on close working relationships with various government departments, provinces and territories and foreign jurisdictions.

51 To address these concerns within the prevailing climate of fiscal constraints, which focused on the elimination of the government deficits, the Deputy Solicitor General, Jean Fournier, directed a review to define the role and mandate of the Department of the Solicitor General, the organization that succeeded the Ministry Secretariat. 98 The review, conducted in 1993, was led by Norman Moyer, Assistant Deputy Solicitor General Corporate Services. Essentially, the "Moyer Report" 99 confirmed both the mandate and the role established during the mission development of the former Ministry Secretariat. It did so by first identifying traditional "core functions" of the department and the resources allocated to each, namely: • Advice and Support to the Solicitor General in Direction of the Agencies; • Statutory Operational Responsibilities of the Solicitor General and the Deputy Solicitor General; • Solicitor General Public Policy Leadership in Corrections, Policing and Security; • Strategic Communications; and • Executive Services In addition to these core functions, the report identified "discretionary" functions of the department, which were defined as: [those that are not] absolutely essential to the Solicitor General's primary roles. They do, however, relate to his role as a key partner in the criminal justice and security systems and to his leadership responsibilities in the areas of corrections, policing and security. By calling these functions discretionary, we do not mean that they are unimportant, indeed, they are a vital part of the criminal justice system and do need to be undertaken somewhere within the Government. The test of whether the Department should continue with these functions should be based on a relative assessment about whether the functions can be more effectively managed here or in another department or agency.

98 The change from the Ministry of the Secretariat to the Department of the Solicitor General was based, in part, on a legal analysis of the Solicitor General's mandate. That analysis, provided by David Akman, Counsel Secretariat Legal Services, Solicitor General Canada, on March 8, 1990 concluded that the "Ministry Secretariat" is, in effect, "the Department". There is no "Ministry" of the Solicitor General. While this recommendation was made in the context of the development of the Secretariat's mission documents, the name change was not implemented until 1994. 99 Norman Moyer, "Report to the Deputy Solicitor General from Norman Moyer, Assistant Deputy Solicitor General", Department of the Solicitor General, Solicitor General Canada (1993) Ottawa.

52 Viewed in these terms, the role and mandate review process that established the Department was performed through a priority setting and cost-cutting exercise, which was accomplished in the three following years.

This was admittedly a painful process, which led to a reduction in the number of Assistant Deputy Minister positions in the Department fi-om three to one and the number of Directors General from 10 to seven. During the same period the staffing complement fell fi-om 304 FTEs to 230 and the operating budget was reduced by the better part of $10 million.. This reduction was accomplished through the closure of the Department's regional offices, the elimination of many grants and contributions, the sunsetting of programs, a more targeted application of research to policy issues and the streamlining of the Department's executive and corporate services. 100 Divesting itself of these initiatives involved tough choices, since it disengaged the Department from involvement in areas that traditionally contributed to its role in fostering a robust and effective criminal justice system.

That the Department continued to deliver on its mandate to advise, support and inform the Minister since that time is to its credit. In each of the years following its reorganization the Department has compiled an impressive list of accomplishments as reflected in the Departmental Performance Reviews published since that time. These accomplishments include: • ongoing amendments to the Corrections and Conditional Release Act, which reflects the strategic direction established through the involvement of the Department a decade earlier and which seeks to maximize public safety through the preparation of offenders upon their return to society;

• a broad array of Aboriginal Policing arrangements, which provides First Nations communities across Canada with professional and culturally sensitive policing arrangements;

0 10 Jean T. Fournier notes for his address to staff at the Department's planning retreat, September 1966.

53 • an active citizens' engagement program designed to promote informed dialogue with voluntary and non-governmental organizations in the development of criminal justice policies;

• the development of a comprehensive and modern criminal justice information system to ensure the timely availability of quality information to all operational officials in Canada's public safety institutions;

• the development of integrated measures to promote and advance effective correctional policies and practices, including approaches based on restorative justice, that contribute to public safety by distinguishing between those offenders who need to be separated from society, and those who could be better managed in the community;

• the development, in partnership with key gove rnment departments and agencies of innovative strategies and improved todls to for law enforcement to respond to organized crime and other criminal activities both in Canada and abroad;

• the development and implementation of a National Counter-Terrorism Plan to strengthen cross-border and overseas collaboration against terrorists.

Noteworthy in this list of strategic activities and accomplishments are those dealing with organized crime and terrorism, public safety issues that have become increasingly prominent over the past several years, particularly following the events of September 11, 2001. In response to these issues, the organizational structure of the Department has been altered and increased resources have been allocated.

As of March 31, 2003 the Department of the Solicitor General comprised 311 FTEs and had an annual budget of $132.5 Million. 1°1

1°1 Department of the Solicitor General 2003/2003 Departmental Overview. (Includes Aboriginal Policing.)

54 OBSERVATIONS AND CONCLUSIONS

The office from which the Department takes its name has roots deep in English legal traditions and values, which placed great importance on the rule of law and the delivery of sound advice on the law as it relates to good government. In that tradition, the Attorney General and the Solicitor General played a central role in establishing the rules and procedures governing the administration of justice, including criminal justice.

The Law Officers of the Crown transplanted to Canada departed significantly from the traditional role of their British counterparts, particularly so following the creation of the Department of Justice, which defined the roles of the Minister of Justice and the Attorney General. The practice of many prime ministers (in the tradition of many pre- Confederation premiers before them) of assuming the role of Minister of Justice and Attorney General further separated the Canadian Law Officers from British tradition.

The speedy development and subsequent operation of criminal justice institutions by the Department of Justice were necessary and important steps in ensuring Canada's survival, in light of the economic, religious, military and other dynamics at play. However, the Department of Justice's, and more particularly, the Minister's direct involvement in the operations of these institutions as their executive head, had two important consequences: First, it added tremendously to the Minister's personal workload and that of the Department. Secondly, and most importantly, it compromised his ability to effectively separate himself from his duties of Minister of Justice and his responsibility for prosecutions in his capacity as Attorney General.

The creation of the Office of the Solicitor General in 1966 through the Government Organization Act served to create a separation of the Department of Justice and the Minister of Justice and the Attorney General (and his prosecutorial responsibilities) from the government department responsible for policing, thereby reducing the likelihood of lapses in the effective administration of justice as evidenced by the Rivard and similar affairs.

55 The Department of the Solicitor General Act has no objectives or purpose statements. Moreover, it provides no mandate for the Department. This has been a recurring issue, which has periodically preoccupied the Department in establishing its role with the agencies (each of which has its own legal mandate, which includes a direct reporting relationship to the Minister) and during times of program review. The development of the Department's Mission Statement has served to clarify and publicize the Department's role.

The achievements of the Department during its relatively short history have been considerable, particularly so absent a mandate within the Act. At the time the Department was created, various policy and leadership voids existed in the fields of criminology, penology and policing. The Department proved extremely energetic and resourceful in fostering activities (including research and education) that helped fill these voids and continues to play an important role in this area. Among its many achievements are the early contributions to the development of key legislation in the areas of corrections and policing.

The responsibilities of the agencies of the Portfolio, by their very nature, involve balancing the rights and freedoms of individuals against their collective rights to safety. History has shown that failure to maintain that balance can have far-reaching and public consequences. A key role of the Department is ensuring that that balance is maintained in the first instance and, when imbalances do occur, assisting the Minister in the performance of his or her Ministerial responsibilities to correct the imbalance through a coordinated and focussed response of all criminal justice agencies.

On this final point, the foregoing history has shown that unforeseen events that pose threats to public safety often demand a government response. While that response is often difficult to predict, the Department must stand ready to offer independent and

56 evidence-based advice, based on a sound knowledge of law and due regard for its application on Canada's social and economic fabric. 102

102 For a thought provoking commentary on this issue, see Reid Morden, "Spies, not Soothsayers: Canadian Intelligence After 9/11" Commentary No. 85, Canadian Security Intelligence Service (November 26, 2003).

57 EPILOGUE

On December 12, 2003, Prime Minister Paul Martin announced the creation of the Public Safety and Emergency Preparedness Portfolio (PSEPC).

The new department integrates the former Department Solicitor General, the former Office of Critical Infrastructure Protection and Emergency Preparedness and the National Crime Prevention Centre. The PSEPC Portfolio includes the RCMP, CSIS, National Parole Board, Canada Fireamis Centre, Correctional Service of Canada, and the Canada Border Services Agency. It also comprises three review Agencies: the RCMP External Review Committee; the Office of Correctional investigator; and the Commission for Public Complaints against the RCMP.

This structure facilitates enhanced integration across the public safety spectrum, linking front-end measures, such as emergency preparedness, crime prevention, community policing, and border management, with back-end interventions, such as corrections and parole.

With the coming into force of Bill C-6 (before the Senate as of January 25, 2005) the Department of the Solicitor Act will be repealed and the office of Solicitor General of Canada will officially cease to exist.

58 • • • • SOLICITORS GENERAL OF CANADAM •

Vacant December 3, 1892 to December 4, 1892 • Honourable John Joseph Curran December 5, 1892 to December 12, 1894 • Vacant December 13, 1894 to December 20, 1894 • Honourable John Joseph Curran December 21, 1894 to October 17, 1895 • Vacant October 18, 1895 to April 30, 1896 • Honourable May 1, 1896 to July 8, 1896 • Vacant July 9, 1896 to July 12, 1896 • Honourable Charles Fitzpatrick July 13 1896 to February 9, 1902 Honourable February 10, 1902 to January 28, 1904 • January 29, 1904 to June 3, 1906 Honourable • Vacant June 4, 1906 to February 13, 1907 • Honourable February 14 to 1907 to October 6, 1911 • • Vacant October 7, 1911 to June 25, 1913 • Honourable Arthur Meighen June 26, 1913 to August 24, 1917 • Vacant August 25, 1917 to August 30, 1917 • Honourable Arthur Meighen (acting) August 31 to October 3, 1917 • • Honourable October 4, 1917 to July 9, 1920 • Honourable Hugh Guthrie (acting) July 10, 1920 to September 30, 1921 Honourable Guillaume-André Fauteux October 1, 1921 to December 28, 1921 • • Honourable Daniel Duncan McKenzie December 29, 1921 to April 10, 1923 • Vacant April 11, 1923 to November 13, 1923 • • Honourable Edward James McMurray November 14, 1923 to May 22, 1925 • Vacant May 23, 1925 to September 4, 1925 • Honourable September 5, 1925 to June 28, 1926 • Vacant June 29, 1926 to August 22, 1926 • Honourable Guillaume-André Fauteux August 23, 1926 to September 24, 1926 • Honourable Lucien Cannon September 25, 1926 to August 6, 1930 • 1°3 The office of Solicitor General of Canada was created by Statute 50-51 Vic., c. 14, assented to on 23 • June 1887 and proclaimed in force on 3 Dec. 1892. By this Act the Solicitor General was designated an • officer to assist the Minister of Justice. The office was not a Cabinet portfolio per se, though considered of • the ministry. • • 59 •

O Honourable Maurice Dupré August 7, 1930 to October 22, 1935 Vacant October 23, 1935 to April 17, 1945 Honourable Joseph Jean April 18, 1945 to August 23, 1949 Vacant August 24, 1949 Honourable Hughes Lapointe August 25, 1949 to August 6, 1950 Honourable Stuart Sinclair Carson August 7, 1950 to October 14 1952 Honourable Ralph Osborne Campney October 15, 1952 to January 11, 1954 Honourable January 12, 1954 to June 20, 1957 Honourable Léon Balcer June 21, 1957 to October 10, 1960 Honourable William Joseph Browne October 11, 1960 to August 9, 1962 Vacant August 10, 1962 to April 21, 1963 Honourable John Watson MacNaught April 22, 1963 to July 6, 1965 Honourable Lawrence Pennell July 7, 1965 to April 19, 1968 Honourable John Napier Turner April 20, 1968 to July 5, 1968 Honourable George James McIlraith July 6, 1968 to December 21, 1970 Honourable Jean-Pierre Goyer December 22, 1970 to November 26, 1972 Honourable William November 27, 1972 to September 13, 1976 Honourable September 14, 1976 to January 27, 1978 Honourable Ronald Basford (acting) January 28, 1978 to February 1, 1978 Honourable Jean-Jacques Biais February 2, 1978 to June 3, 1979 Honourable Allan Lawrence June 4, 1979 to March 2, 1980 Honourable Robert Phillip Kaplan March 3, 1980 to September 16, 1984 Honourable Elmer Macintosh Mackay September 17, 1984 to August 19, 1985 Honourable Henry Perrin Beatty August 20, 1985 to June 29, 1986 Honourable James Francis Kelleher June 30, 1986 to December 7, 1988 Honourable Henri Perrin Beatty (acting) December 8, 1988 to January 29, 1989 Honourable Pierre Biais January 30, 1989 to February 22, 1990 Honourable Pierre H. Cadieux February 23, 1990 to April 20, 1991 Honourable Douglas Grinsdale Lewis April 21, 1991 to November 3, 1993 Honourable Herbert Eser Gray November 4, 1993 to June 10, 1997 Honourable June 11, 1997 to November 22, 1998

60 • • • • • Honourable Lawrence MacAulay November 23, 1998 to October 22, 2002 • • Honourable Arnold October 22, 2002 to December 11, 2003 • Honourable Anne McLellan l " December 12, 2003 • • • • • • O • • • • O • O • • • • O • O • • • • • • • • • • • • • • • • • • •

O 1°4 Also Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness

61 • • • BIOGRAPHIES OF SELECTED EARLY SOLICITORS GENERAL TO 1966

John Joseph Curran: • Born 1842, died 1909. • Judge, writer and a prominent member of the Irish community of Montreal. • Attended Collège Ste-Marie and Ottawa University; graduated from McGill Law School in 1862 and was appointed to the Bar Association in 1863. • Named Q.C. in 1882, and in 1885 became a judge for the Superior Court of Quebec. • Between 1 882-1 895 won three consecutive elections to become the Conservative Member of Parliament for Montreal Centre. • The Montreal Gazette October 2, 1909 described Charles Curran as "a good citizen, a model churchman, an ardent patriot, and an impartial judge" who was "respected for high character by men of all shades of opinion." 105

Charles Hibbert Tupper: • Born 1856, died 1927. • Entered parliament in 1882 and became Minister of Fisheries in his father's cabinet. • His knighthood was granted for his work on the Bering Sea sealing treaty. • Portfolios Minister of Marine and Fisheries 1888.06.01 - 1891.06.06 Minister of Marine and Fisheries 1891.06.16 - 1892.11.24 Minister of Marine and Fisheries 1892.12.05 - 1894.12.12 Minister of Justice and Attorney General of Canada 1894.12.21 - 1896.01.05 Solicitor General of Canada 1896.05.01 - 1896.07.08 Member of the Privy Council 1888.06.01.

Charles Fitzpatrick: • Born 1853; died 1942. • Sat in the Legislative Assembly of Quebec from 1890 to 1896, and in the House of Commons from 1896 to 1906. • In 1885, he won renown as defence counsel for , then accused of treason by John A. Macdonald's Conservative government. • In 1897, as Solicitor General met with Pope Leon XIII and succeeded in obtaining from the supreme pontiff the envoy of Cardinal Merry del Val to settle the issue of schools in Manitoba. • In 1905, took part, as the federal goverrnnent representative, in the negotiations that led to the creation of the provinces of Alberta and Saskatchewan.

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62 • • • • • • Was Solicitor General (1896) and Minister of Justice (from 1902 to 1906) in Sir • 's government. • • In 1906 resigned from polities and was named chiefjustice of the Supreme Court • of Canada. When he resigned from that position in 1918, he was made • Lieutenant-Governor of Quebec, a post in which he remained until 1923. • • Henry George Carroll: • • Born 1865, died 1939. • • Studied at the collège de Sainte-Anne-de-la-Pocatière and the University of Laval • in Québec. • • Admitted to the province of Québec bar, July 5, 1889. • • Became Queen's Council, June 9, 1899. • , • Elected to the House of Commons for Kamouraska in 1891. • • Solicitor General in the Laurier cabinet from February 10, 1902 until January 28, • ' 1904. • • Named Québec Superior Court Judge, January 24, 1904. • • Lieutenant-Governor of the province of Québec from April 4, 1929 to May 3, • 1934. • • Rodolphe Lemieux: • Born 1866, died 1937. • • Began his education at the Seminary in Nicolet; continued his studies at the • University of Ottawa. • • Remembered as Laurier's faithful lieutenant and under Mackenzie King the first • Speaker to preside over three Parliaments. • • Studied law in Montreal. • • Worked as a journalist and reporter for several English and French newspapers • before becoming assistant editor of La Patrie in 1886. • • In 1896 received a doctorate for his dissertation on imprisonment for civil debts • and at age 29 became the youngest member of Laval University's law faculty. • • In 1896 was elected to the House of Commons as the Libéral member for Rouville. • Became Solicitor General in 1904 and later Postmaster General, Minister of • Labour and briefly Minister of Marine and Fisheries. In the Labour portfolio his • Deputy Minister was none other than Mackenzie King. • • In 1907 undertook a sensitive diplomatic mission to Japan whose government was • protesting discriminatory Canadian immigration policies. • • Became a fellow of the in 1908 and served as its • President ten years later. • • When broke out, supported Canadian participation but not • conscription. His only son volunteered and was killed at the front. • • Under Mackenzie King, became Speaker of the House and managed to keep • control of the House during the constitutional crisis of 1926. • • Before the 1930 election was named to the Senate where he served for seven • years. • • • 63 • • • Arthur Meighen: • Born 1874, died 1960. • Studied mathematics at the and graduated in 1896 with a B.A. • Called to the Manitoba bar in 1903. • Regarded by some as the finest debater and orator ever to speak in the House of Commons. • In 1913, became Solicitor General and four years later Secretary of State. Following the election became Minister of the Interior. He was instrumental in drafting the Militaiy Service Act (conscription), the Wartime Elections Act, and the bills that nationalized the railways and created the Canadian National Railway. As acting Minister of Justice, was involved in ending the Winnipeg General Strike in 1919. • Succeeded Borden as party leader in 1920. • Attempted a political comeback when he resumed leadership of the Conservative party in 1941. Efforts to gain a seat in the House of Commons in a 1942 by- election failed and he retired from politics. • Appointed to the Senate, in 1932.

Hugh Guthrie: • Born 1866, died 1939. • Attended Osgoode Hall. • ln 1900 entered the House of Commons as a Liberal representing the riding of . • After 17 years in Parliament, spoke out against his own party and crossed the floor to remain a for the next 17 years. • Served as Chief Commissioner and member of the board of Railway Commission (1935-1939), Solicitor-General of Canada, Minister of Militia and Defence, Minister of Justice (1930-1935), and Attorney-General of Canada.

Daniel Duncan McKenzie: • Born 1859, died 1927. • Following Laurier's death in February 1919, chosen by caucus members to serve as acting leader until the 1919 convention. • Constituencies: North Cape Breton and Victoria, (1904 - 1906) North Cape Breton and Victoria, Nova Scotia (1908 - 1921) North Cape Breton and Victoria, Nova Scotia (1922 - 1923).

Lucien Cannon • Born 1887, died 1950. • Son of Superior Court Judge, Lawrence John Cannon. • Studied at the seminary of Quebec and the University of Laval in Quebec. • Admitted to the bar of the province of Québec on July 5, 1910. • First elected to the Québec National Assembly, June 2, 1913. • Named Superior Court Judge, January 15, 1936.

64 Stuart Sinclair Garson: • Born 1898, died 1977. • attended the Manitoba Law School. • 1919-36 practised law at Ashern and Eriksdale. • 1927-48 Liberal-Progressive MLA for Fairford. • 1936-48 Provincial Treasurer. • 1948-57 Liberal MP for Marquette; federal Minister of Justice and Attorney General.

William Ross Macdonald • Born 1891, died 1976. • Entered Knox College at the University of Toronto to prepare for a career in the Presbyterian ministry. • Enlisted in the First World War and was severely injured. After his recovery Macdonald abandoned plans to enter the ministry in favour of a career in law. • Graduated from Osgoode Hall in 1920. • Elected to the House of Commons in 1935. • Named Deputy Speaker of the House in 1945 and Speaker in 1949. • At the end of his term as Speaker he was appointed to the Senate. • In January 1954 he was appointed Solicitor General under St. Laurent and held that position until 1957 when he became Opposition Leader in the Senate. • In 1963 was named Minister without Portfolio and Government Leaderin the Senate. • Named Lieutenant-Governor of in 1968, which he held until 1974.

William Joseph Browne: • Born 1897, died 1989. • Well known Newfoundland, lawyer, politician and judge. • In 1915 won the Jubilee Scholarship, awarded to the top Newfoundlander student writing the matriculation exams of the University of London. • In 1918 won the Rhodes scholarship for Newfoundland and began studies at Oxford in the fall of 1919. • First elected to the House of Commons on June 27, 1949. • Parliamentary Functions: Minister without Portfolio (1957.06.21 - 1960.10.10) Solicitor General of Canada (1960.10.11 - 1962.08.09).

Léon Balcer: • Born 1917, died 1991. • Studied at Laval University • First elected to the House of Commons in 1949. • Parliamentary functions:

65 • r e r• r e Minister of Mines and Technical Surveys (Acting) (1957.06.21 - • 1957.08.06) • Solicitor General of Canada (1957.06.21 - 1960.10.10) • Secretary of State of Canada (Acting) (1960.01.21 - 1960.10.10) • Minister of Transport (1960.10.11 - 1963.04.21) • Secretary of State of Canada (Acting) (1962.07.11 - 1962.08.08). • • John Watson MacNaught: • • Born 1904, died 1984. • • First elected to the House of Commons, June 11, 1945. • • Parliamentary functions: • Parliamentary Assistant to the Minister of Fisheries (1948.06.11 - • 1948.11.15) • Parliamentary Assistant to the Minister of Fisheries (1948.11.15 - • 1949.04.30) Parliamentary Assistant to the Minister of Fisheries (1949.07.11 - • 1953.06.13) • Minister without Portfolio (1963.04.22 - 1965.07.06) • Solicitor General of Canada (1963.04.22 - 1965.07.06) • Minister of Mines and Technical Surveys (1965.07.07 - 1965.12.17) • Parliamentary Assistant to the Minister of Fisheries (1953.08.24 - • 1957.04.12). • • • • • • • • • • • • • • • • • • • • • • • • DEPUTY SOLICITORS GENERAL OF CANADA

■Eiti 'EFFECTIVE DATE

MacDonald, T.D. 01.10.1966 884 29.09.1966

Côté, E.A. 14.12.1968 2186 28.11.1968

Tassé, Roger 01.08.1972 1373 15.06.1972

Bissonnette, P.-A. 28.11.1977 3208 15.11.1977

Gibson, Fred E. 01.09.1982 2451 13.08.1982

Tait, John 25.08.1986 1993 19.08.1986

Glen, Ian * 03.10.1988

Stanford, Joseph 01.11.1988 2298 30.09.1988

Harder, Peter V. 10.02.1993 1244 10.02.1993

Fournier, Jean T. 04.11.1993 1897 04.11.1993

Jauvin, Nicole 19.06.2000 837 02.06.2000

* acting

67 •

Bibliography • • Publications

• Beattie, J. M. Attitudes Towards Crime and Punishment in Upper Canada, 1830— 1850: • A Documentary Study, Toronto: University of Toronto, 1977. • Edwards, J. LI. J. The Law Officers of the Crown: A study of the offices of Attorney- • General and Solicitor-General of England with an account of the office of the Director of • Public Prosecutions of England, London: Sweet & Maxwell, 1964. • • Edwards, J. Ll. J. Ministerial Responsibility for National Security: as it relates to the • Offices of Prime Minister, Attorney General and Solicitor General of Canada, Hull: • Canadian Government Publishing Centre, Supply and Services Canada, 1980. • • Rock, Paul. A View from the Shadows: The Ministry of the Solicitor General of Canada • and the Justice for Victims of Crime Initiative, Oxford: Clarendon Press, 1986. • • Pellew, Jill. The Home Office 1848 — 1914: fi-om Clerks to Bureaucrats, East Brunswick, • N.J.: Associated University Presses Inc., 1982. • • Swainger, Jonathan Scott. The Canadian Department of Justice and the Completion of • Confederation 1867— 78, : UBC Press, 2000. • • Philip C. Stenning. Appearing for the Crown: A legal and historical review of criminal • prosecutorial authority in Canada, Cowansville, Québec: Brown Legal Publications, • Inc., 1986. • • Topping, C. W. Canadian PenalInstitutions, Toronto: Ryerson Press, 1929. • Sim. Highlights of Initiatives in Criminal Justice: • Woods, Gerald and Heather Federal 1966— Ottawa: Research Division, Ministry of the Solicitor General of Canada, • 1980, • 1981. • • Articles • Bellot, Hugh. The Origin of the Attorney-General in Vol. 25 Law Quarterly Review, • 1909. • Edwards, J. LI. J. Penal Reform and the Machinery of Criminal Justice in Canada in the • Criminal Law Quarterly, Vol. 8, 1965-66. • • Gibson, Dale. Development of Federal Legal and Judicial Institutions in Canada in the • Manitoba Law Journal, Vol. 23, No. 3, January 1996. • Administration in Canada, Social Services • Strong, Margaret Kirkpatrick. Public Welfare • • • 68 Monogyaphs, Number Ten, Chicago: University of Chicago Press, 1930.

Commissions and Inquiries

Canada. Advisory Committee on the Principles and Procedures Followed in the Remission Service of the Department of Justice of Canada [Chairman: Gerald Fauteux], Ottawa,: Queen's Printer 1956.

Canada. Report of the Canadian Committee on Corrections: Towards Unity: Criminal Justice and Corrections, [Roger Ouimet, Chairman, G. Arthur Martin, J. R. Lemieux, Dorothy McArton, W.T. McGrath], Ottawa: Queen's Printer, 1969.

Canada. Report of the Commissioner, the Honourable Frederic Dorion, Chief Justice for the Superior Court for the Province of Quebec, Ottawa: Queen's Printer, 1965

Canada. Report of the Royal Commission to Investigate the Penal System of Canada [Hon. Mr. Justice Joseph Archambault, Chairman, R. W. Craig, J. C. McRuer, Allan J. Fraser, John L. Kent], Ottawa: King's Printer, 1938.

Canada. Royal Commission on Government Organization [J. Grant Glassco, chairman, F. Eugene Therrien, Watson Sellar], Vol. 1 — 5, Ottawa: Queen's Printer, 1962— 1963.

Unpublished Material/Internal Reports

Campbell, Mary E. A Most Vexatious Burden Jurisdiction in Canadian Correctional Law, (A thesis submitted to the Faculty of Graduate Studies and Research in partial fulfilment of the requirements of the degree of Master of Laws), McGill University, Montreal, 1997.

Moyer, Norman. Report to the Deputy Solicitor General from Norman Moyer, Assistant Deputy Solicitor General, Solicitor General Canada, Ottawa, December 23, 1993.

P. S. Ross and Partners. (Draft) Progress Report I: Organizational Study, The Correctional Agencies, Department of the Solicitor General, September 1967.

Shoemaker, David M. Sharing Justice: The evolved administration of justice in Canada, (unpublished report, Draft III), Solicitor General Canada, 1991.

Government Reports

Canada. The Highlights of the Peace and Security Program: The Criminal Law Amendment Act (1 and 2) 1976.

Canada. Solicitor General of Canada Annual Reports.

Commissioners of the Royal North-West Mounted Police. Opening Up the West: Being

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