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

The Long Road to Recognition: The First Civilians at the Department of Justice (1867 –1952) (cont'd)

The Rise of the Civilians

An increasingly heavy and varied workload obliged the Department to increase its staff. Space in the offices of the East Block had become insufficient, and the Department’s staff moved to the Justice Building, to the east of the present Supreme Court. It was primarily after this move in 1936 that civil law specialists began to take their place in the Department of Justice. Since 1932, Paul Fontaine had taken over from Renaud as the person primarily responsible for civil law (Civil Law Assistant). His assistant, Roméo Gibeault, had become part of the Department’s team after responding to an advertisement of the Department, which was looking for a bilingual candidate.33

In 1938, the Department hired Charles Stein, who was at first assigned to cases from the Maritimes, under the supervision of J. F. Macneill. Although Stein had a civil law background, he dealt with cases involving acquisition of property or accidents involving federal government vehicles outside Quebec’s territory. These responsibilities enabled him to become familiar with the common law. Stein remained in this position for a number of years, and then began to work with the two civil law specialists who were already responsible for Quebec cases. At the time, three of the Department’s ten legal counsel were civilians, but there was still no section reserved for civil law. The structure of the Department was in fact not very rigid, and its divisions were rather informal. Moreover,

Roméo Gibeault

Roméo Gibeault was born on June 15, 1895 in Saint-Jérôme, Quebec, the son of Alfred Gibeault and Marie-Louise Beaulieu. After studying law at the Université de Montréal, he served as a lieutenant in the Joliette Regiment during the First World War. He was called to the Quebec Bar in 1918, and practiced his profession in Montréal until 1932. He then accepted a position as counsel at the Department of Justice. He became King’s Counsel, President of the Saint-Jean-Baptiste Society (Christ the King section) and member of the Société des juristes de langue française d’Ottawa- Hull. Gibeault died suddenly on May 15, 1947, at the age of 51, while he was still working at the Department. His son Lambert became a notary in Hull.34

Charles Stein

(Joseph) Charles Stein, a native of Rivière-du-Loup, was born on July 6, 1912. He was a son of Adolphe Stein, a judge of the Superior Court of Quebec, and Alice Hamel. He first studied at the Petit Séminaire de Québec, receiving a bachelor’s degree in 1931. A gifted student, he continued his studies at Université Laval, which granted him a licentiate in philosophy in 1932 and a licentiate in law in 1934. He was immediately called to the Bar, and practised as a lawyer in Québec City until 1938. At that time, the country was still feeling the effects of the Great Depression, and Stein, a young married man with a modest income, saw the possibility of working for the Department of Justice in Ottawa. He directly approached the Minister, Ernest Lapointe, a former associate of his father, and began his career in the federal public service in October 1938.

Stein began at the Department as a junior advisory counsel, and rose through to the ranks to become Assistant Deputy Minister, a position he held from February 1947 to January 1949. He was appointed King’s Counsel in 1947. He served as a delegate or representative of the Department on a number of occasions, in particular at the funeral of Ernest Lapointe in 1941, at the second conference of the Quebec Bar in 1944, at the United Nations, and on task forces. In 1949, he left the Department of Justice to become Under Secretary of State and Deputy Registrar General of Canada, a position he held until September 1, 1961. He then returned to private practice for ten years in Quebec City, where he still lives. At the opening of the courts in the fall of 1999, the Quebec Bar awarded Stein a medal to honour his 65 years of membership in that professional association.35

most of the legal opinions requested of the Department had nothing to do with civil law, and the Deputy Minister had the last word about assigning cases. It was thought that the quantity of cases involving civil law did not warrant creating a special section. Instead, the Department hired civilian lawyers to instruct outside agents in property acquisition and title search cases.36

In 1939, shortly before the beginning of World War II, Henriette Bourque managed to break into this male bastion,e thus becoming the first woman with a licentiate in law to work for the Department of Justice. While a number of people today regard her as the first female lawyer in the Department, it should be stressed that she never was given the title of “legal counsel.” Far from being the “Deputy Minister’s pet,” 37 Bourque performed duties similar to those of her male colleagues, but had to settle for the position of law clerk, even after her admission to the Quebec Bar.

After the beginning of the Second World War, the Department of Justice thus had four individuals who could advise the government on Quebec civil law issues. There were many litigation cases. This increase was due to the increased circulation of military vehicles (which belonged to the federal government), and also to the spectacular increase in the number and complexity of government activities. The Department’s legal staff was overworked to the point that an iron will and many overtime hours were not enough to ensure that all matters would be dealt with in a reasonable period of time.38

In 1943, faced with such a mass of work, Deputy Minister F. P. Varcoe decided that a reorganization was necessary. He expressed his intentions to the employees, and asked them to comment on his suggestions. He originally hoped that the

Henriette Bourque

A native of the National Capital Region, Henriette Bourque was the oldest child in a family of seven children. Her father was a well-known surgeon at the Ottawa General Hospital. A highly gifted student, she distinguished herself at the University of Ottawa before becoming a student at the law faculty of the Université de Montréal. The only woman among 80 students, she obtained her licentiate in law with a first-class standing. She then became an assistant to the President of the Canadian Bar Association, Emery Beaulieu, but was not called to the Bar. In the 1930s, the Quebec Bar did not accept women. Bourque had to go to British Columbia, where the Bar Association recognized her civil law training.

In 1939, after working for Mr. Beaulieu for five years, Henriette Bourque applied to work at the Department of Justice, which finally hired her, though reluctantly. In her opinion, the Deputy Minister felt obliged to accept her application because of her excellent studies, her recommendations and her contacts. However, in spite of her degrees, training and experience, she was never given the title of legal counsel. In the maledominated Department of Justice of the time, she was relegated to the category of law clerk, even though she was assigned to consultations and to drafting opinions.

Henriette Bourque was finally called to the Quebec Bar, but that did nothing to change the attitude of the people she worked with at the Department of Justice. Having received little support from a number of her colleagues, Bourque finally resigned from the Department in 1949, after spending ten years there without receiving a single promotion. In spite of these obstacles, she did not lose her enthusiasm for the law. In 1952, she returned to Canada with a doctorate in law from the University of Paris. She tried in vain to obtain stable employment, but returned to Europe when it became obvious that any authentic career was closed to her in Canada. She spent ten years in Fatima, Portugal, and then settled in Jerusalem. She eventually came back to Ottawa, where she died on January 15, 1997 at the age of 93.39

work would be divided into sections, each headed by a senior legal counsel assisted by one or two other counsel. Varcoe admitted that it was impossible to avoid overlapping, and that it was preferable to set up a rotation system in order to avoid excessive specialization and to allow legal counsel to acquire a thorough knowledge of the laws in particular fields. The Deputy Minister proposed eight sections, including a section for “civil law” (in the sense of private law), which could be subdivided into common law and civil law.40

People knew that such a situation would create a precedent, and everyone agreed that the Department should proceed gradually, in order to define the work of each section clearly and ensure a fair distribution of the work. Charles Stein suggested that the civil law subsections be more precisely defined as English Common Law and Quebec Civil Law. Stein also believed that a similar division between the English Provinces and Territories and Quebec was appropriate for the section known as “Lands, Deeds, Bonds, etc.” 41 The Department also relied upon the opinions of Roméo Gibeault with respect to Quebec’s particular characteristics, because of the experience Gibeault had acquired since his arrival in 1932.42

Some changes were made in 1946, but it seems that it was easier to talk about the plan than to implement it.43 Nonetheless, according to the Department’s administrative records, three legal counsel were henceforth responsible for civil law matters. Fontaine handled docket work in the district of Québec City, Gibeault performed the same duties for the district of Montréal, and Stein was responsible for litigation in Quebec to which the federal government was a party.44 Professional positions were also reorganized after two legal counsel left the Department. The Minister, Louis St-Laurent, and Deputy Minister Varcoe took the necessary steps to restore the second position of Assistant Deputy Minister, which had been eliminated in 1932 after the death of J.A.R enaud.45 In February 1947, the position was reestablished, and Stein became Assistant Deputy Minister until he joined the Department of the Secretary of State in 1949.

At that time, the Department continued to be a very Anglophone environment, and internal correspondence with the Deputy Minister was conducted exclusively in English. Communications in French were limited to two or three Francophone colleagues, who did not necessarily have the opportunity to deal with one another on a regular basis. Some people adapted to this environment, while others experienced difficulties.46 Among those who had problems was Roméo Gibeault, who “found that time dragged” and he “barely survived,” feeling himself “submerged by an Anglophone wave.” f, 47 The reorganization of the Department had done nothing to improve the linguistic situation. In the early 1950s, it was recognized that the Department had made the right decision in acquiring a structure, but some adjustments were necessary because certain issues concerned more than one section. Deputy Minister Varcoe proposed a new division, which now included a section entirely devoted to Quebec civil law, and it was suggested that Paul Fontaine be the senior legal counsel for that section.48 After more than 80 years of existence, the Department of Justice was beginning to be aware of the civil law and its practitioners, but it was still the case that the climate in the Department was more favourable when the Minister of Justice was a native of Quebec.49 Since 1868, the Department had never made the specific characteristics of Quebec’s legal system a major concern. The postwar period was, however, more favourable, and thus prepared the way for a true recognition of bijuralism (and of bilingualism).

e. From 1939 to 1964, the Department of Justice hired only five women lawyers. Wendy Burnham, “The Department of Justice,” in “Millennium Celebration,” Department of Justice, December 9, 1999, p. 9.

f. According to the recollections of Gibeault’s son, as told to Jacques Roy. Mr. Roy was a partner of Lambert Gibeault in the 1960s. Both men were then notaries in Hull.

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