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The Canadian Department of Justice and the Completion of Confederation 1867-78 (Paperback)
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The Canadian Department of Justice and the Completion of Confederation 1867-78 (Paperback)
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The federal Department of Justice was established by John A.
Macdonald as part of the Conservative party's program for reform of
the parliamentary system following Confederation. Among other
things, it was charged with establishing national institutions such
as the Supreme Court and the North West Mounted Police and with
centralizing the penitentiary system. In the process, the
department took on a position of primary importance in
post-Confederation politics. This was particularly so up to 1878,
when Confederation was "completed." Jonathan Swainger considers the
growth and development of the ostensibly apolitical Department of
Justice in the eleven years after the union of 1867. Drawing on
legal records and other archival documents, he details the complex
interactions between law and politics, exploring how expectations
both inside and outside the legal system created an environment in
which the department acted as an advisor to the government. He
concludes by considering the post-1878 legacy of the department's
approach to governance, wherein any problem, legal or otherwise,
was made amenable to politicized solutions. Unfortunately for the
department and the federal government, this left them ill-prepared
for the constitutional battles to come. One crucial task was to
establish responsibilities within the federal government, rather
than just duplicate offices which had existed prior to union.
Others were the establishment of national or quasi- national
institutions such as the Supreme Court (1875) and the North-West
Mounted Police (1873), the redrafting of the Governor-General's
instructions (which was done between 1875 and 1877), and
centralization of the penitentiary system (completed by 1875). The
Department benefited from a deeply rooted expectation that law was
both apolitical and necessary. This ideology functioned in a
variety of ways: it gave the Department considerable latitude for
setting policy and solving problems, but rationalized the
appearance of politicized legal decisions. It also legitimized
Department officials' claim that it was especially suited to review
all legislation, advise on the royal prerogative of mercy,
administer national penitentiaries, and appoint judges to the
bench. Ultimately, the fictional notion of law as apolitical and
necessary placed the Department of Justice squarely in the midst of
the completion of Confederation. The Canadian Department of Justice
and the Completion of Confederation will be of particular interest
to students and scholars of Canadian legal and political history.
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