McGill Law Journal ~ Revue de droit de McGill
BUILDING A LAW OF HUMAN RIGHTS:
RONCARELLI V. DUPLESSIS IN
CANADIAN CONSTITUTIONAL CULTURE
Eric M. Adams*
This article reveals how audiences, espe-
cially in anglophone Canada, initially received
and interpreted Roncarelli v. Duplessis as a
case, above all, about human rights. Ignoring
the judgments myriad complexities, commenta-
tors eagerly situated the case within the Su-
preme Court of Canadas implied bill of rights
jurisprudence then taking shape. Part of the
reason for the emphasis on Roncarellis rights
can be traced to the manner in which Frank
Scott and Louis Stein argued the case, and the
language of rights employed by Justice Ivan
Rands iconic judgment.
But Roncarellis meaning also took shape
in press accounts and editorials, radio broad-
casts, case comments, and law school lectures.
Exploring these often-neglected sources, this ar-
ticle exposes the role of constitutional culture in
creating jurisprudential meaning. In turn, it
also calls for greater recognition of the pre-
Charter Supreme Court of Canada in contribut-
ing to Canadas intellectual history of rights.
Cet article montre comment le public, no-
tamment celui du Canada anglais, a initiale-
ment reu et interprt larrt Roncarelli c. Du-
plessis comme tant une affaire ayant trait
avant tout aux droits de la personne. Laissant
de ct les innombrables complexits du juge-
ment, les commentateurs se sont empresss de
situer larrt dans la jurisprudence de la Cour
suprme du Canada qui se formait lpoque
sur la charte des droits implicite . Laccent
mis sur les droits de Roncarelli sexplique en
partie par lapproche adopte par Frank Scott et
Louis Stein pour plaider la cause ainsi que par
le langage utilis par le juge Ivan Rand dans
son jugement emblmatique.
Toutefois, la signification de larrt Ronca-
relli sest aussi forme travers des comptes
rendus de presse et des ditoriaux, des mis-
sions de radio, des commentaires darrt et des
cours dans les facults de droit. En explorant
ces sources trop souvent ngliges, cet article
expose le rle de la culture constitutionnelle
dans linterprtation jurisprudentielle. De plus,
il lance un appel pour une plus grande recon-
naissance de la contribution de la Cour suprme
du Canada lhistoire intellectuelle des droits
au Canada avant lavnement de la Charte ca-
nadienne des droits et liberts.
* Faculty of Law, University of Alberta. In particular, I would like to thank Genevive
Cartier, Robert Leckey, Sarah Krotz, and Andrea Willey for her excellent research as-
sistance.
Citation: (2010) 55 McGill L.J. 437 ~ Rfrence : (2010) 55 R.D. McGill 437
Eric M. Adams 2010
438 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Introduction
I. Roncarelli at the Supreme Court of Canada
II.
Roncarelli in Living Rooms
III.
Roncarelli in Classrooms
Conclusion
439
442
451
455
459
BUILDING A LAW OF HUMAN RIGHTS 439
Introduction
A few months after his momentous victory as co-counsel in Roncarelli
v. Duplessis,1 Frank Scott spoke to an audience of lawyers at the mid-
winter meeting of the Canadian Bar Association. I find it interesting to
observe how in the field of constitutional law, Scott began, certain parts
of the total structure seem to become floodlighted and to stand out from
the rest at particular periods of time.2 It was true that in the past,
[m]ost of the great cases in Canadian constitutional law … have turned
on questions of jurisdiction under sections 91 and 92 of the BNA Act, and
these we have always with us, but, he continued, a short look backward
over the past dozen years revealed courts and legislatures grappling with
a new set of constitutional issues and concerns.3 Constitutionally speak-
ing, Scott declared, the 1950s was predominantly the decade of human
rights.4
To prove his point, Scott turned his audiences attention to a series of
cases already on their way to being regarded as the golden moments of
the civil liberties decade:5 Boucher v. R.,6 Saumur v. Quebec (City of),7
Switzman v. Elbling,8 and Roncarelli. Collectively, these casesor,
rather, certain judgments within themhad become famous for their ar-
ticulation of a constitutional theory known as the implied bill of rights.9
Although judges on the Supreme Court of Canada never used that expres-
1 [1959] S.C.R. 121, 16 D.L.R (2d) 689 [Roncarelli cited to S.C.R.].
2 Frank R. Scott, Expanding Concepts of Human Rights in Essays on the Constitution:
Aspects of Canadian Law and Politics (Toronto: University of Toronto Press, 1977) 353
at 353 [Essays].
3 Ibid.
4 Ibid. at 354.
5 Max Cohen, The Judicial Process and National PolicyA Problem for Canadian Fed-
eralism (1970) 16 McGill L.J. 297 at 301. See also Dale Gibson, And One Step Back-
ward: The Supreme Court and Constitutional Law in the Sixties (1975) 53 Can. Bar
Rev. 621.
6 [1951] S.C.R. 265, [1951] 2 D.L.R. 369.
7 [1953] 2 S.C.R. 299, [1953] 4 D.L.R. 641 [Saumur cited to S.C.R.].
8 [1957] S.C.R. 285, 7 D.L.R. (2d) 337 [Switzman cited to S.C.R.].
9 The implied bill of rights cases also typically include the following cases: Reference Re
Alberta Legislation, [1938] S.C.R. 100, [1938] 2 D.L.R. 81 [Ref Re Alberta cited to
S.C.R.]; Winner v. S.M.T. (Eastern) Ltd., [1951] S.C.R. 887, [1951] 4 D.L.R. 529 [Winner
cited to S.C.R.]; Smith & Rhuland Ltd. v. Nova Scotia [1953] 2 S.C.R. 95, [1953] 3
D.L.R. 690; Henry Birks & Sons v. Montreal (City of), [1955] S.C.R. 799, [1955] 5 D.L.R.
321; Chaput v. Romain, [1955] S.C.R. 834, 1 D.L.R. (2d) 241; Lamb v. Benoit, [1959]
S.C.R. 321, 17 D.L.R. (2d) 369. For recent treatment, see Lorraine E. Weinrib, The Su-
preme Court of Canada in the Age of Rights: Constitutional Democracy, the Rule of
Law and Fundamental Rights under Canadas Constitution (2001) 80 Can. Bar Rev.
699; Andre Lajoie, The Implied Bill of Rights, the Charter and the Role of the Judici-
ary (1995) 44 U.N.B.L.J. 337.
440 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
sion to describe their jurisprudential efforts, a legion of admirers adopted
and promulgated the phrase in the years that followed.10 In grouping the
implied bill of rights cases together, scholars and commentators flattened
vast and subtle differences among a diverse body of jurisprudence in an
effort to find transcendent constitutional meaning in the decisions of the
Supreme Court of Canada. Most important to Scott and most of his con-
temporaries, the implied bill of rights had, even in the absence of an en-
trenched bill of constitutional rights, elevated human rights and funda-
mental freedoms into core features of Canadian constitutional law.
From the moment he first encountered the story of Frank Roncarelli,
Frank Scott saw the issue as one of individual rights and freedoms. As he
often did, Scott took his arguments first to the readers of the leftist maga-
zine, Canadian Forum. In his pithy 1947 article, Duplessis versus Jeho-
vah, Scott accused Duplessis of seeking to wreck all civil liberty in Que-
bec by punishing Roncarelli for exercising this ancient guarantee of hu-
man liberty, the legal right to provide bail.11 Throughout his short arti-
cle, Scott raised the postwar spectre of authoritarian state power directing
gang[s] of policemen in the mass persecution of a small religious
sect.12 Of the lessons to be drawn from these events, Scott suggested the
need for active civil liberties associations, not just in Montreal, but
across this country.13 And lest the incident serve as an excuse for an-
other attack upon Quebec, Scott reminded that the most serious breach
of civil liberties in this country is British Columbiasand the federal
governmentstreatment of Canadian citizens of Japanese origin.14 By
10 F. Andrew Brewin was, I believe, the first to use the phrase in his Switzman case com-
ment: F. Andrew Brewin, Case Comment on Switzman v. Elbling, (1957) 35 Can. Bar
Rev. 554 at 557 [Brewin, Switzman]. A decade later, the term implied bill of rights
had become common: Dale Gibson, Constitutional Amendment and the Implied Bill of
Rights (196667) 12 McGill L.J. 497.
11 F.R. Scott, Duplessis versus Jehovah Canadian Forum 26:312 (January 1947) 222 at
223, republished in Essays, supra note 2, 193 at 193, 195.
12 Ibid. at 195.
13 Ibid.
14 Ibid. at 196. The Japanese deportation was fresh on Scotts mind. Just as Scott penned
his article in Canadian Forum, the Privy Council upheld Canadas proposed deporta-
tion orders of Japanese Canadians. The interests of the Dominion are to be protected,
the Judicial Committee held, and it rests with the Parliament of the Dominion to pro-
tect them. What those interests are the Parliament of the Dominion must be left with
considerable freedom to judge: Co-operative Committee on Japanese Canadians v.
Canada (A.G.) (1946), [1947] A.C. 47 at 101, [1947] 1 D.L.R. 577 (P.C.), affg Reference
Re Persons of the Japanese Race, [1946] S.C.R. 248, [1946] 3 D.L.R. 321 [Japanese Ref-
erence]. Alongside Scotts article in Canadian Forum appeared Edith Fowkes article,
Justice and Japanese Canadians, and her dispirited conclusion that we can never
depend upon laws or constitutions to defend our rights: Edith Fowke, Justice and
Japanese Canadians Canadian Forum 26:312 (January 1947) 225. For a history of the
movement against deportation, of which Scott and Fowke were key parts, see Stephanie
BUILDING A LAW OF HUMAN RIGHTS 441
casting the Roncarelli affair as an issue of individual rights national in
scale and scope, Scott placed the battle between a Montreal restaurateur
and Quebecs premier in Canadas emerging constitutional politics of
rights.
Today, however, Roncarelli connotes a different constellation of mean-
ings. Although perhaps the best known of the implied bill of rights cases,
its jurisprudential authority is now more closely tied to the limited au-
thority of government officials and rule of law constitutionalism, propo-
sitions for which it is routinely cited,15 and even more frequently taught.16
Of course, the norms inherent in the ideals of the rule of laweven if no-
toriously slippery and ambiguously multifacetedare themselves derived
from notions of individual liberty, as A.V. Dicey himself well recognized.17
But while the rule of law, evocatively spare and malleably abstract, has
offered a rich vein for contemporary constitutional theorists, Roncarellis
initial audiences tended to overlook the judgments complexities in search
of more accessible and immediate constitutional meaning. Largely ignor-
ing or downplaying the cases ratio decidendi and private law dimensions
under Quebecs Civil Code of Lower Canada, commentators in anglophone
Canada in the late 1950s and early 1960s read Roncarelli through a lens
shaped by contemporary debates about the nature of constitutional rights
and citizenship. For them, Roncarelli was a case about the evolving role of
individual rights in Canadian constitutional law. In the process, Ron-
carelli, like the other implied bill of rights cases before it, came to express
meaning in Canadian constitutional culture not altogether synonymous
with its holdings at law.
In general, Canadian legal scholars have tended to neglect the richer
and more dynamic cultural histories of our constitutional jurisprudence.
It was not the black letters of the Supreme Court Reports that gave life to
the cases contained within them, but the reactions of civil society
politicians, lawyers, scholars, students, media, social movements, and
Bangarth, Voices Raised in Protest: Defending Citizens of Japanese Ancestry in North
America, 194249 (Vancouver: UBC Press, 2008); Ross Lambertson, Repression and Re-
sistance: Canadian Human Rights Activists, 19301960 (Toronto: University of Toronto
Press, 2005) at 106-42.
15 See e.g. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817
at para. 53, 174 D.L.R. (4th) 193.
16 See Neil Craik et al., Public Law: Cases, Materials, and Commentary (Toronto: Emond
Montgomery, 2006) at 91; The Constitutional Law Group, Canadian Constitutional
Law, 3d ed. (Toronto: Emond Montgomery, 2003) at 640; Joseph Eliot Magnet, Consti-
tutional Law of Canada: Cases, Notes and Materials, 8th ed. (Edmonton: Juriliber,
2001) vol. 1 at 193.
17 A.V. Dicey, Introduction to the Study of the Law of the Constitution, 10th ed. by E.C.S.
Wade (London, U.K.: MacMillan, 1959) at 183-205.
442 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
citizensto the formal judgment handed down by the Court.18 And just as
Roncarelli contributed to ongoing debates about the place of rights in Ca-
nadian constitutional law, so too did those debates influence the members
of the Supreme Court of Canada in the 1950s. As Robert Post argues,
constitutional law and culture are locked in a dialectical relationship, so
that constitutional law both arises from and in turn regulates culture.19
We catch glimpses of the processes of mutual influence and construction
in an array of formal legal and informal cultural sources: Roncarellis fac-
tum, press reports, editorials, case comments, law review articles, parlia-
mentary debates, classroom discussions, and personal correspondence,
among other less easily accessible nooks and crannies of Canadian consti-
tutional discourse. We should, of course, continue to puzzle over and de-
bate the doctrinal implications and theoretical dilemmas posed by a great
case like Roncarelli, but so too must we widen our gaze to view the case in
its lived contexts. Not only in the courtroom, but also in Canadian living
rooms and classrooms, we see the way in which Roncarelli becameeven
if partially and momentarilya case about human rights.
I. Roncarelli at the Supreme Court of Canada
Just as Scotts article on Roncarelli appeared in Canadian Forum,
Montreal lawyer Albert Louis Stein approached Scott, at Roncarellis urg-
ing, to see if he would join Roncarellis legal team. Though worried about
the transition from classroom to courtroom, Scott nonetheless agreed.20
Ten years later, preparing their factum for their appeal to the Supreme
Court of Canada, Scott continued to view the case as a matter of individ-
ual rights and freedoms, notwithstanding the essentially private law
character of his clients claim. To be sure, Scott and Stein comprehen-
sively addressed the issues of fault, causation, and damage under the
Civil Code of Lower Canada in their factum and over the course of a re-
markable five days of argument before the Supreme Court of Canada. Yet
18 On the idea of constitutional culture, see Robert C. Post, Fashioning the Legal Consti-
tution: Culture, Courts, and Law, Forward, (2003) 117 Harv. L. Rev. 4; Gnter
Frankenberg, Comparing Constitutions: Ideas, Ideals, and IdeologyToward a Lay-
ered Narrative (2006) 4 Intl J. Const. L. 439; David Schneiderman, Property Rights
and Regulatory Innovation: Comparing Constitutional Cultures (2006) 4 Intl J. Const.
L. 371 at 375; Reva B. Siegal, Constitutional Culture, Social Movement Conflict and
Constitutional Change: The Case of the de facto ERA (2006) 94 Cal. L. Rev. 1323.
19 Post, supra note 18 at 8. Almost a century ago, Benjamin Cardozo pointed out that
[t]he great tides and currents which engulf the rest of men, do not turn aside in their
course, and pass the judges by: Benjamin Cardozo, The Nature of the Judicial Process
(New Haven: Yale University Press, 1921) at 168.
20 At the time, Scott explained his involvement in the case to McGills Principal by claim-
ing he needed the money. See Sandra Djwa, The Politics of the Imagination: A Life of
F.R. Scott (Vancouver: Douglas & McIntyre, 1989) at 307 [Djwa, Politics of the Imagina-
tion].
BUILDING A LAW OF HUMAN RIGHTS 443
rights rhetoric remained a critical feature of the argument, and a compel-
ling framing device for Scotts presentation of the sympathetic facts. As
their factum declared, [t]his case raises grave questions of fundamental
freedoms and human rights namely, freedom of religion and the right to
give bail.21
In his oral argument, Scott granted Roncarellis rights claim even
greater prominence. This case, Scott stated in his opening remarks, in-
volves the right of a citizen to give bail.22 Bail performed a critical role in
a free society, Scott argued, because it underpinned the workings of the
criminal justice system, especially the presumption of innocence.23 But
Roncarelli had other rights at stake, too. Wishing to avoid possible preju-
dices on the Court, Scott downplayed Roncarellis religious freedoms, fo-
cusing instead on the property and procedural rights the common law had
always taken pains to protect.24 Scott stressed that Duplessis had sought
to punish Roncarelli for a non-existent crime (providing bail to others) by
executive fiat, without an opportunity for Roncarelli to know the case
against him or to defend himself. Such pre-trial punishment, Scott ar-
gued, amounted to an inversion of judicial rights because it purportedly
cloaked the wrongdoer with legal authority, while denying the victim his
common law rights of due process.25 Worse still, Duplessis imposed a sen-
tence of economic death26 by seizing and destroying Roncarellis property
and wrongfully revoking his liquor permit, not temporarily but definitely
and for always.27 Throughout his argument, Scott repeatedly invoked the
images of a law-abiding citizen exercising his rights versus the menda-
cious administrative lawlessness28 of Duplessis and the bureaucratic of-
ficials acting under his command. In closing, Scott accused Duplessis of
subverting the roots of our constitution and basic human rights, by in-
21 Roncarelli v. Duplessis, [1959] S.C.R. 121, 16 D.L.R (2d) 689 (Factum of the Appellant
at 80) [Roncarelli FOA]. See also ibid. at 72, 81 (references to the right to give bail).
22 Right to Give Bail, Roncarellis Case Montreal Gazette (3 June 1958) 25.
23 For an elaboration of Scotts argument, see F.R. Scott, Civil Liberties & Canadian Fed-
eralism (Toronto: University of Toronto Press, 1959) at 49 [Scott, Civil Liberties].
24 For John Williss complaints about the common law Bill of Rights, see John Willis,
Administrative Law and the British North America Act (1939) 53 Harv. L. Rev. 251 at
252, 274-75.
25 Doomed By Duplessis to Economic Death The Halifax Chronicle-Herald (3 June
1958) 1 at 2.
26 Ibid. A French version of the Canadian Press story also appeared in La Presse. See M.
Duplessis voulut punir F. Roncarelli La Presse (3 June 1958) 21. Scotts phrasing ob-
viously captured the attention of Rand J., for he repeated the phrase (in slightly altered
form) in his judgment. Duplessis, Rand J. wrote, had sought the destruction of [Ron-
carellis] economic life (Roncarelli, supra note 1 at 141).
27 Roncarelli FOA, supra note 21 at 18. The quotation was attributed to Duplessis.
28 Lawyer Calls Duplessis Lawless The Globe and Mail (7 June 1958) 4.
444 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
fringing the the right to a fair trial, the right to enjoy the ownership of
property, [and] the right to provide bail.29
Scott employed the language of rights and citizenship deliberately.
The idea of national citizenship offered the means to attach individual
rights to the legal subject, notwithstanding the absence of a formal consti-
tutional bill of rights. The concept of citizenry rights particularly attracted
Scott because it configured two constructs central to his constitutional
theory: individuals holding rights and freedoms equally among fellow citi-
zens; and a national community of citizens whose rights fell under exclu-
sive federal jurisdiction. The former appealed to Scotts civil libertarian
leanings, while the latter spoke to his pan-Canadian nationalism and
preference for constitutional centralism.30 In Roncarelli, Scott used Ron-
carellis status as a citizen to gesture to both of these constitutional vi-
sions. As a citizen, Roncarelli possessed the liberal rights to give bail, to
exercise autonomy in his private life, and to enjoy the due process protec-
tions of the common law. As rights shared and defined by a national
community, Scott argued, they lay beyond the constitutional reach of pro-
vincial legislatures and executives. Neither of these arguments had the
advantages of settled law, but they did draw upon nearly two decades of
writing, thinking, and debate on the idea of individual rights and citizen-
ship still unfolding in Canadian constitutional law.
Most famously, Chief Justice Duff and Justice Cannon had expressly
linked ideas of individual rights and citizenship in Ref Re Alberta.31 In
widely celebrated obiter, Chief Justice Duff argued that Canadas parlia-
mentary institutions must function under the influence of public opinion
and public discussion since democracy itself required the freest and full-
est analysis and examination from every point of view.32 Because the
powers necessary to protect the constitution as a whole fell to the federal
government, the working of legislatures and Parliamentincluding the
expressive freedoms on which they dependedmust be vested in Parlia-
29 Ibid.; Duplessis Under Fire As Damage Suit Ends The Halifax Chronicle-Herald (7
June 1958) 1 at 2.
30 See generally Frank R. Scott, Centralization and Decentralization in Canadian Feder-
alism in Essays, supra note 2, 251.
31 Supra note 9. The proposed bill would have required Albertas newspapers to publish
government statements and disclose the names and addresses of writers, editorialists,
or unnamed sources on demand. Breaches of the act were punishable with fines of up to
one thousand dollars, or an order suspending the papers operation. See generally Dale
Gibson, Bible Bill and the Money Barons: The Social Credit Court References and their
Constitutional Consequences in Richard Connors & John M. Law, eds., Forging Al-
bertas Constitutional Framework (Edmonton: University of Alberta Press, 2005) 191.
32 Ref Re Alberta, supra note 9 at 133.
BUILDING A LAW OF HUMAN RIGHTS 445
ment.33 Justice Cannon preferred to find the constitutional jurisdiction
for parliamentary institutions and their auxiliary rights in the federal
governments jurisdiction over criminal law, but he also stressed that
provinces could not disable the fundamental right of Canadian citi-
zen[s] … to express freely his untrammelled opinion about government
policies and discuss matters of public concern.34 Such arguments drew
the attention of John G. Diefenbaker who frequently cited Ref Re Alberta
to support his postwar demands for a federally enacted bill of rights to
protect fundamental freedoms, habeas corpus, and the right to counsel,
without regard to racial origin.35
International and domestic postwar developments only furthered the
connection between Canadian citizenship and human rights. The Charter
of the United Nations pledged its signatories, including Canada, to reaf-
firm faith in fundamental human rights, in the dignity and worth of the
human person, in the equal rights of men and women.36 While the inter-
national community strove to capture those ideals in the Universal Decla-
ration of Human Rights,37 Canadian parliamentarians debated the pru-
dence and practicality of entrenching a bill of rights, constitutional or oth-
erwise, at home.38 Against this backdrop, the Japanese deportation con-
troversy accelerated demands that citizenship status entail protection for
formal equality.39 Scott himself highlighted the irony that the government
had proposed race-based deportation [a]t the very moment when Parlia-
ment is trying to give some secure status to Canadian citizens by the Citi-
zenship Bill. The deportation, Scott argued, makes a farce of citizenship.
… Every Canadian is attacked in his fundamental civil liberties by this
policy.40 Across Canada, newspapers, labour unions, social clubs, lawyers,
and politicians engaged in a wide-ranging debate on the nature of rights
33 Ibid. at 134. In this respect, Duff C.J. adapted Lord Haldanes dictum on emergency
powers from Fort Frances Pulp & Paper v. Manitoba Free Press, [1923] A.C. 695, [1923]
3 D.L.R. 629 (P.C.).
34 Ref Re Alberta, supra note 9 at 146.
35 House of Commons Debates, vol. 1 (2 April 1946) at 514 (Mr. Diefenbaker). See also
House of Commons Debates, vol. 1 (2 May 1946) at 1146 (Mr. Diefenbaker); House of
Commons Debates, vol. 1 (16 May 1947) at 3157 (Mr. Diefenbaker).
36 Charter of the United Nations, 26 June 1945, Can. T.S. 1945 No. 7, Preamble.
37 GA Res. 217(III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71.
38 See Special Joint Committee on Human Rights and Fundamental Freedoms, Minutes of
Proceedings and Evidence, vol. 1 (Ottawa: Kings Printer, 1947); Special Joint Commit-
tee of the Senate and House of Commons on Human Rights and Fundamental Free-
doms, Minutes of Proceedings and Evidence, vol. 2 (Ottawa: Kings Printer, 1948).
39 See Patricia E. Roy, The Triumph of Citizenship: The Japanese and Chinese in Canada,
194167 (Vancouver: UBC Press, 2007).
40 Frank R. Scott, The Deportation of Japanese Canadians: An Open Letter to the Press
in Essays, supra note 2, 190 at 192.
446 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
and citizenship in Canadian constitutional law.41 Such debates often took
on a different hue in francophone Quebec, but there, too, the rumblings of
the Quiet Revolution among artists, intellectuals, and unions raised ques-
tions of individual liberty vis–vis ecclesiastical and state power.42 One of
the most important questions before the Canadian public at the moment,
the Canadian Bar Review reported in 1948, is the question of human
rights and fundamental freedoms.43
It was within this context that Justice Rand entered the fray. Un-
doubtedly, Justice Rand borrowed much of his rights of the Canadian
citizen concept from the moribund American constitutional privileges
and immunities doctrine that he had encountered during his time at Har-
vard Law School.44 Nevertheless, Justice Rand always left that influence
implicit, partly to avoid the disapproval of several of his judicial col-
leagues who frowned, in principle, on the use of American case law, but
mostly because there was ample opportunity to develop his ideas about
rights within lively and ongoing Canadian constitutional debates. There
were hints of the particular significance Justice Rand attached to citizen-
ship in his partial decision in the Japanese Reference case, but more sub-
stantial elaborations in the implied bill of rights cases that followed. The
first and fundamental accomplishment of the constitutional Act, Justice
Rand asserted in Winner, was the creation of a single political organiza-
tion … the basic postulate of which was the institution of a Canadian citi-
zenship.45 For Justice Rand, Canadian citizenship granted entitlement to
a never fully defined constellation of rights and freedoms, including equal-
ity before the law,46 freedom of movement,47 freedom of religion,48 and
41 See generally Eric M. Adams, The Idea of Constitutional Rights and the Transformation
of Canadian Constitutional Law, 19301960 (S.J.D. Thesis, University of Toronto Fac-
ulty of Law, 2009) [unpublished].
42 See Michael D. Behiels, Prelude to Quebecs Quiet Revolution: Liberalism versus Neo-
nationalism, 19451960 (Kingston, Ont.: McGill-Queens University Press, 1985). See
also Michael Gauvreau, The Catholic Origins of Quebecs Quiet Revolution, 19311970
(Montreal & Kingston: McGill-Queens University Press, 2005). On the distinctiveness
of Quebec constitutional thought as they pertained to the Roncarelli affair, see Roderick
A. Macdonald, Was Duplessis Right? (2010) 55 McGill L.J. 401.
43 The Joint Committee on Human Rights and Fundamental Freedoms (1948) 26 Can.
Bar Rev. 706 at 706.
44 Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 21 L. Ed. 394 (1872). See Matthew
Lewans, Roncarellis Green Card: The Role of Citizenship in Randian Constitutional-
ism (2010) 55 McGill L.J. 537; Edward McWhinney, Case Comment on Winner v.
S.M.T. (Eastern) Ltd., (1952) 30 Can. Bar Rev. 832 at 837; Randall P.H. Balcome, Ed-
ward J. McBride & Dawn A. Russell, Supreme Court of Canada Decision-Making: The
Benchmarks of Rand, Kerwin and Martland (Toronto: Carswell, 1990) at 52.
45 Winner, supra note 9 at 918.
46 Japanese Reference, supra note 14.
47 See Winner, supra note 9. See also Black and Co. v. Law Society of Alberta, [1989] 1
S.C.R. 591 at 607-608, 58 D.L.R. (4th) 317.
BUILDING A LAW OF HUMAN RIGHTS 447
freedom of speech.49 Such rights found expression, Justice Rand averred,
not by virtue of an explicit constitutional bill of rights, but by operation of
the constitutional pattern of limitations, curtailments and modifications
inherent in federalism and necessary for modern democracy.50 Justice
Rand thought it unquestionable that rights of citizenship (national in
scope and importance) lay beyond provincial control. More basic still was
the suggestion that freedom of speech, religion and the inviolability of
the person represented original freedoms, which were at once the nec-
essary attributes and modes of self-expression of human beings and the
primary conditions of their community life within the legal order.51 While
the positive law might curtail the consequential actions of such freedom,
the freedoms themselves should be unburdened by prior or antecedent
restraint.52
By the time the Supreme Court of Canada heard argument in Ron-
carelli in the spring of 1958, the outlines of Justice Rands constitutional
vision of individual rights lay roughly sketched but incomplete. Roncarelli
seemed an opportune moment to push Justice Rand and the Court to clar-
ify and to affirm the role of individual rights in Canadian law. Clearly,
Roncarellis legal claims raised distinct matters of Quebec law, but the
protagonists themselves made the connection to earlier implied bill of
rights cases unavoidable: Boucher, Saumur, and Chaput all involved the
Jehovahs Witnesses fighting persecution in Quebec, and all had been
pitched by the Jehovahs Witnesses as battles for constitutional rights.53
Scott, in addition to assisting William Glen How (general counsel to the
Jehovahs Witnesses) in drafting arguments in those earlier cases, had re-
cently appeared before the Supreme Court of Canada in Switzman to
challenge Quebecs infamous Padlock Act.54 In that case, Scott drew heav-
ily on Boucher and Saumur to argue that freedom of speech was among
the fundamental rights of Canadian citizens beyond provincial constitu-
48 See Saumur, supra note 7.
49 See Switzman, supra note 8.
50 Ibid. at 303. Given its national character and significance, Rand J. concluded that
citizenship and its constitutive rights and freedoms must fall under federal jurisdiction,
although he also wondered whether, in some respects, in our federal organization
power absolute … resides in either legislature (ibid. at 302 [emphasis added]). While
Rand J. remained content to leave the proposition suggestive, Abbott J. appeared to
adopt it fully. See also Ivan C. Rand, Some Aspects of Canadian Constitutionalism
(1960) 38 Can. Bar Rev. 135 at 155.
51 Saumur, supra note 7 at 329.
52 Ibid.
53 See William Kaplan, State and Salvation: The Jehovah’s Witnesses and Their Fight for
Civil Rights (Toronto: University of Toronto Press, 1989) [Kaplan, State and Salvation].
54 Padlock Act, R.S.Q. 1941, c. 52, discussed in Switzman, supra note 8.
448 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
tional jurisdiction.55 With Scott and the Jehovahs Witnesses returning to
demand judicial protection of individual rights, and Quebec defending the
authority of its provincial government, it was difficult not to view Ron-
carelli as a further skirmish in the battle over the implied bill of rights.
But that is not how most judges on the Supreme Court of Canada
viewed the matter. The majority, which allowed the appeal and found for
Roncarelli, essentially consisted of three opinions: Justice Martland
(joined by Justice Locke, and largely adopted by Chief Justice Kerwin),
Justice Abbott, and Justice Rand (joined by Justice Judson). In Justice
Martlands decision, Roncarelli and his liberties received scant attention.
Roncarellis claim under the Civil Code of Lower Canada turned, after all,
on the legality of Duplessiss actions, their causal relationship to Ron-
carellis damages, and the applicability of statutory defences. For Justice
Martland, Duplessis acted wrongfully simply because there existed no
statutory authority to enable the respondent, either as Attorney-General
or Prime Minister, to direct the cancellation of a permit under the Alco-
holic Liquor Act.56 Justice Abbotts reasons shift the focus only slightly.
He too regarded Duplessiss order to cancel Roncarellis licence as with-
out any legal authority whatsoever, but noted that [t]he religious beliefs
of the appellant and the fact that he acted as bondsman for members of
the sect in question were irrelevant to his fitness to hold a liquor per-
mit.57 Nonetheless, like Justice Martland, Justice Abbott held that Du-
plessis was not authorized in law to interfere with the administration of
the Quebec Liquor Commission.58 Liability, like the alcohol from the bro-
ken liquor bottles of Roncarellis Quaff Caf, flowed from the wrongfully
cancelled liquor permit.
Justice Rands reasonswidely celebrated and oft-citedfollowed a
similar rationale, although the discursive nature of his decision enabled
his judgment to be carried into an altogether different terrain. Discre-
tion, Justice Rand reminded, necessarily implies good faith in discharg-
ing public duty. … Could an applicant be refused a permit because he had
been born in another province, or because of the colour of his hair?59 Pub-
lic law demanded, Justice Rand held, that the government administer its
statutory discretion according to reason; denying an application on ac-
55 Switzman v. Elbling, [1957] S.C.R. 285, 7 D.L.R.(2d) 337 (Factum of the Appellant at
32). Writing to congratulate W.G. How on his victory in Boucher, Scott hoped that this
may make our task easier in the Roncarelli case, the judgment in which has been long
overdue: Letter from F.R. Scott to W.G. How (20 December 1950) in Francis Reginald
Scott fonds, Ottawa, Library and Archives Canada (MG 30-D211, R5822, vol. 10).
56 Roncarelli, supra note 1 at 154.
57 Ibid. at 185, 183.
58 Ibid. at 185.
59 Ibid. at 140.
BUILDING A LAW OF HUMAN RIGHTS 449
count of hair colour was as objectionable (and wrongful) as doing so be-
cause of her skin colour, religious beliefs, gender, or any other marker of
discrimination. At heart, Justice Rands rule of law was premised on judi-
cial enforcement of administrative rationality, not human rights.60
Nonetheless, Justice Rand did not allow the opportunity to pass with-
out commenting further on the place of individual rights within Canadian
law. Justice Rand accused Duplessis of deliberately and intentionally …
destroy[ing] the vital business interests of a citizen to punish him for ex-
ercising an unchallengeable right.61 Emphasizing both the economic and
liberty interests of citizenship that he had articulated in Winner, his con-
cept of constitutional citizenship in Roncarelli ran deeper still. What Du-
plessis had taken away, Justice Rand held, was the right[] of a citizen to
enjoy a public privilege.62 If there was something incongruous about a
right to a privilege, Justice Rand untangled the paradox with the word en-
joy. Citizens like Roncarelli possessed a constitutional right not to liquor
licences per se, but rather to the administration of such privileges on a ra-
tional basisthat is, according to the bounded discretion of Justice Rands
substantive conception of the rule of law. And yet, by shifting the focus
from Duplessiss fault under the private law to Roncarellis rights as a
citizen, Justice Rand enabled his reasons to be interpreted as a further
chapter in his jurisprudence of implied constitutional rights.
Where did such rights come from? Justice Rand was as keen as any
judge to lend the legitimizing weight of history to his decisions. Hence, in
his famous turn of phrase, he cast the rule of law as a fundamental pos-
tulate of our constitutional structure.63 But what legal scholars and law-
yers of the period especially admired was Justice Rands recognition that
new conceptions of government call[] for new jural conclusions.64
Broadly inspired by the tenets of sociological jurisprudence, Justice Rand
had always been a constitutional presentist. Two years before Roncarelli,
Justice Rand held that constitutional decision-making necessarily in-
volved revising or restating the application of basic principles in re-
sponse to the particularized and evolving features of national life.65 Un-
60 Mark Walters compellingly unpacks Rand J.s legality as reason. See Mark D. Wal-
ters, Legality as Reason: Dicey, Rand, and the Rule of Law (2010) 55 McGill L.J. 563.
61 Roncarelli, supra note 1 at 137, 141. Elsewhere, Rand J. described Roncarelli as a pri-
vate citizen (ibid. at 133), but his reasons also referred more abstractly to the concerns
of citizens (ibid. at 140), rights of a citizen (ibid. at 143), incidents of citizenship
status (ibid. at 141), and ordinary activities of citizens (ibid. at 144).
62 Ibid. at 143.
63 Ibid. at 142.
64 F.A. Brewin, Case Comment on Boucher v. The King, (1951) 29 Can. Bar Rev. 193 at
200.
65 Reference Re The Farm Products Marketing Act, [1957] S.C.R. 198 at 212-13, 7 D.L.R.
(2d) 257 .
450 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
doubtedly, the Second World War and its aftermath had accelerated de-
velopments in the size and scope of the administrative state. The field of
licensed occupations and businesses of this nature is steadily becoming of
greater concern to citizens generally,66 Justice Rand explained, especially
given expansions in the administrative regulation of economic activi-
ties.67 Justice Rand was nowhere near as hostile to administrative gov-
ernment as some of his professional contemporaries,68 but he nonetheless
regarded constitutional protection of the individual as a necessary coun-
terweight to the expanding and centralizing powers of government. Jus-
tice Rands conception of the constitutional rights of citizens was very
much driven by what he appreciated as the democratic imperatives of the
changing nature of administrative government. And in this, he found
common ground with the thinking of Frank Scott and other Canadian
constitutional scholars eager to embrace the progressive potential of the
state,69 while also preserving the historic role of the law in shielding the
individual from potentially repressive use of state power.70
Despite the fact that Justice Rand represented only one strand of the
majority (and not even the opinion that commanded the most support),
his reasons in Roncarelli quickly became iconic. Why this is the case has
usually led scholars to the qualities of the reasons themselvesand that
is certainly part of the story. But Justice Rands earlier decisions in the
implied bill of rights cases, and their popularity in influential quarters,
helped to ensure the immediate impact of his judgment in Roncarelli.
Moreover, the divided nature of the majoritya common feature of the
1950s Supreme Court of Canadacreated sufficient uncertainty in the ra-
tio decidendi to allow subsequent commentators to emphasize the particu-
lar elements of the judgments that most appealed to them; that meant
Justice Rands ideas of rights, citizenship, and the rule of law received
pride of place in most treatments of Roncarelli. The process of turning
Roncarelli into a case about human rights was already well underway
when the Supreme Court of Canada heard the arguments of Scott and
Stein in the late spring of 1958. Among those watching the hearings form
66 Roncarelli, supra note 1 at 140.
67 Ibid. at 142.
68 See Eric M. Adams, Guardians of Liberty: R.M.W. Chitty and the Wartime Idea of
Constitutional Rights in Constance Backhouse & W. Wesley Pue, eds., The Promise
and Perils of Law: Lawyers in Canadian History (Toronto: Irwin Law, 2009) 173.
69 Frank R. Scott, Constitutional Adaptations to Changing Functions of Government in
Essays, supra note 2, 142.
70 See Ivan C. Rand, The Role of an Independent Judiciary in Preserving Freedom
(1951) 9 U.T.L.J. 1; Ivan C. Rand, Except By Due Process of Law (1961) 2 Osgoode
Hall L.J. 171.
BUILDING A LAW OF HUMAN RIGHTS 451
the gallery was Scotts friend, Pierre Trudeau.71 He, and many other Ca-
nadian lawyers, would have well understood Roncarellis connection to
two decades of debate in Canadian law and politics about constitutional
rights and citizenship. Justice Rand wrote his reasons in Roncarelli in the
language of individual rightsa language Canadians were speaking with
increasing ease.
II. Roncarelli in Living Rooms
In 1959, as now, most Canadians learned about decisions of the Su-
preme Court of Canada through the media. As Florian Sauvageau, David
Schneiderman, and David Taras point out, [a]lthough their power over
legal interpretation is uncontested, judges do not have the last word in
communicating the nature of their decisions to the public. Once a judg-
ment is handed down, journalists rather than judges control the mes-
sage.72 In fact, the process of shaping Roncarellis message had begun be-
fore the case had been decided. With Justice Rands previous jurispru-
dence in mind, the Winnipeg Free Press forecast that Roncarelli would
turn, like the decisions in Saumur, Chaput, and Switzman before it, on
the judicial protection of fundamental freedoms.73 After the decision was
released, the press continued this trend by devoting particular attention
to Justice Rands reasons among those of the majority.74 In an era in
which the judges of the Supreme Court of Canada were at best dimly
known by the general public, Justice Rands earlier judgments in the im-
plied bill of rights cases had distinguished him in and out of legal circles.
That attention, in turn, tended to confer upon his opinions greater status
than those of his colleagues. The tendency to equate the majority decision
of Roncarelli with Justice Rands reasonsstill in evidence todaybegan
in newsrooms following the judgments release.
In the days that followed, newspaper editorials in central Canada re-
inforced the link between the Roncarelli decision and individual rights, al-
though with differing points of emphasis. For the Montreal Gazette, the
decision was essentially about the still-undetermined scope of religious
freedomthe right not only of freedom of worship but freedom to attack
71 John English, Citizen of the World: The Life of Pierre Elliott Trudeau, Volume One:
19191968 (Toronto: Alfred A. Knopf, 2006) at 324.
72 Florian Sauvageau, David Schneiderman & David Taras, The Last Word: Media Cover-
age of the Supreme Court of Canada (Vancouver: UBC Press, 2006) at 227.
73 Grant Dexter, Two Fundamental Freedoms Involved Winnipeg Free Press (4 June
1958) 23.
74 See Harvey Hickey, Duplessis Loses Case To Roncarelli The Globe and Mail (28
January 1959) 1; Roncarelli Victor Against Duplessis In Supreme Court Montreal Ga-
zette (28 January 1959) 1; Duplessis devra payer $33,000 M. Roncarelli Le Devoir
(28 January 1959) 1 (granting Rand J. his own subheading, Le juge Rand).
452 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
and offend the religious feelings of others.75 Citing Boucher and Saumur,
the Ottawa Citizen condemned Duplessiss authoritarianism and warned
that civil liberties will not be safe in Quebec while such actions charac-
terize government.76 The Globe and Mail worried about the administra-
tive state more generally, and hoped that Roncarelli might serve as a
milestone in the long and often arduous defense of individual rights
against an ever-encroaching State.77 The liberally inclined Winnipeg Free
Press celebrated the decision as a victory for fundamental human
rightsfreedom to worship as you please; freedom to sue an authority
which arrests you wrongly; and freedom to sue a public official when he
violates the law in the exercise of his public functions.78 Long a champion
of the need for a constitutional bill of rights, the Free Press argued that
only a Bill of Rights that guarantees the fundamental freedoms of Cana-
dian citizensno matter in which province they happen to livewill pre-
vent the possibility of similar cases in future.79 Despite the differing con-
ceptions of the nature of rights at stake, each of these editorials was
linked by a sense that the case had pronounced on a question of individual
constitutional rights.
Certainly the Jehovahs Witnesses wanted Roncarelli told as a story of
rights. On the day of Roncarellis releasealthough Scott and Stein re-
fused to comment since Duplessis might still exercise his right of appeal
to the Privy CouncilW.G. How stood upon the steps of the Supreme
Court of Canada declaring victory for the rights of the individual.80 For
W.G. How, the implied bill of rights cases were really about using the law
of tort to enforce the law of the constitution81a constitution that, in his
view, shielded Canadian citizens from legislative or executive infringe-
ment of all forms of religious practice. Jehovah always wins, was how
Roncarelli described his victory on CBCs Front Page Challenge several
years later, especially when we fight cases on civil rights and religious
freedom.82 W.G. How and Roncarelli spoke freely of rights; neither men-
tioned the Civil Code of Lower Canada or the rule of law.
75 The Supreme Courts Decisions Montreal Gazette (29 January 1959) 6.
76 Mr. Duplessis Loses Ottawa Citizen (28 January 1959) 6.
77 In Defense of Freedom The Globe and Mail (29 January 1959) 6.
78 Freedom Winnipeg Free Press (28 January 1959) 25.
79 Ibid.
80 Duplessis Loses High Court Fight: Decision, 6-3 For Roncarelli Ottawa Citizen (27
January 1959) 1.
81 Letter from W.G. How to F.R. Scott (2 January 1954) in Francis Reginald Scott fonds,
Ottawa, Library and Archives Canada (MG30-D211, R5822, vol. 16).
82 Interview of Frank Roncarelli (25 May 1965) on Front Page Challenge, CBC Television,
online: CBC Digital Archives,
BUILDING A LAW OF HUMAN RIGHTS 453
As one might expect, the media interpreted Roncarelli differently out-
side of anglophone central Canada. In Quebec, editorials by Pierre La-
porte and Grard Filion in Le Devoir continued the papers anti-Duplessis
record by situating the decision more firmly within the domain of provin-
cial politics.83 Shifting the attention from Frank Roncarellis rights to the
strong-arm politics of Maurice Duplessis, editorials celebrated the deci-
sion for its hope that the ideals of the rule of law might yet curb Du-
plessiss hold on power. M. Duplessis, Filion wrote, na pas le droit de
tout faire. Ce nest pas son caprice, ce nest pas ses sentiments damour ou
de haine qui doivent dicter les actes du gouvernement … [I]l doit tre ser-
viteur de la loi.84 For opponents of Duplessis, Roncarelli signalled the
weakening of Duplessiss grip on the province. As it happened, the Du-
plessis era ended shortly thereafter, with the prime ministers death on 7
September 1959. In the provincial election held the following June, Jean
Lesage and the Liberals swept to power and with them, the official begin-
ning of the Quiet Revolution.
If Roncarelli was a story about human rights in central Canada, and
about the end of the Duplessis era in Quebec, it was barely a story at all
in the West. Although the case drew front-page attention from Winnipeg
eastward, the Edmonton Journals treatment of Roncarelli indicates
something of the cases immediate reception in Western Canada. Su-
preme Court Rules on Two Grain Cases, the headline declared, with the
small subheading, Decisions Also Announced On Duplessis, CBC
Cases.85 The Vancouver papers mentioned Roncarelli not at all.
Lawyers, judges, and law scholars read the newspapers too, but they
would have received more in-depth treatment of the case in law journals.
In his case comment for the McGill Law Journal, Claude-Armand
Sheppard, a recently called Montreal lawyer, dissected the cases private
law dimensions with a lawyerly eye, already conscious that initial reac-
tions to the decision had overlooked its most significant doctrinal contri-
butions.86 Dismissing the eloquent testaments to the rule of law as well-
settled and otherwise unremarkable obiter, Sheppard canvassed instead
the Supreme Court of Canadas ambiguous, cryptic, and elusive
83 Grard Filion, Simples rflexions en marge de laffaire Roncarelli Le Devoir (28
January 1959) 4. Filion explained, Ce nest pas notre intention … de discuter la valeur
des thses juridiques qui se sont affrontes dans cette affaire. Nous voulons plutt nous
borner quelques rflexions de nature plutt politique (ibid.). See also Pierre Laporte,
Duplessis-Roncarelli : laffaire transporte sur le plan politique? Le Devoir (29 Janu-
ary 1959) 1.
84 Filion, supra note 83.
85 Supreme Court Rules on Two Grain Cases: Decisions Also Announced on Duplessis,
CBC Cases Edmonton Journal (27 January 1960) 2.
86 Claude-Armand Sheppard, Roncarelli v. Duplessis: Art. 1053 C.C. Revolutionized
(1960) 6 McGill L.J. 75, reprinted in (2010) 55 McGill L.J. v.
454 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
treatment of article 1053the key provision of civil liability in the Civil
Code of Lower Canada on which the case turned.87 Predicting that Ron-
carellis private law ideasinchoate as they may have beenmight one
day be seen as the truly revolutionary contribution of the case, Sheppard
already perceived that, in his own time, Roncarelli had become a decision
unrooted to the particular legal context of Quebec civilian law. What
Sheppard astutely discerned was that Roncarelli had already become, by
and large, a case about Canadian public law and constitutional rights.
Certainly Edward McWhinneys case comment in the Canadian Bar
Review left no doubt about Roncarellis status as a classic case of public
law. McWhinney, then teaching constitutional law at the University of
Toronto, Faculty of Law, lauded Justice Rands judgment for the quali-
ties of mind and style that have made him tower above his contemporar-
ies, and emphasized Justice Rand expansion of his well-known cata-
logue of Rights of the Canadian Citizen to include a freedom of choice of
economic vocation.88 For McWhinney, as for both Bora Laskin and Frank
Scott, Justice Rand represented the epitome of a sociologically minded,
philosophically literate, and ambitiously creative jurist. It was Justice
Rand, Canadian law scholars believed, who could create a Canadian con-
stitutional jurisprudence freed from Privy Council precedent, sensitive to
the need for expanded federal jurisdiction, and scrupulous in its protec-
tion of individual civil liberties.89 Thus, as in earlier implied bill of rights
cases, it was Justice Rand who drew McWhinneys lavish praise and the
bulk of his case comments attention. McWhinney was too good a scholar
not to recognize the judicial uncertainties, disagreements, and tensions
inherent in the Canadian civil liberties jurisprudence,90 but his underly-
ing emphasis on the need for judicial protection of a broad range of consti-
tutional rights reveals the diminishing hold of parliamentary supremacy
on the Canadian constitutional imagination. Roncarelli affirmed the rise
of individual rights as a foundational principle of Canadian constitutional
thought.
In the spring of 1959, Frank Scott entered the living rooms of Canadi-
ans tuned to his CBC lectures on The Canadian Constitution and Human
Rights.91 The constitution of a country grows with the country, Scott in-
87 Ibid. at 94-95.
88 Edward McWhinney, Case Comment on Roncarelli v. Duplessis (S.C.C.), (1959) 37 Can.
Bar Rev. 503 at 505, 506 ×..
89 See Edward McWhinney, Judicial Review in the English-Speaking World (Toronto:
University of Toronto Press, 1956) at 186 (Developing a National Constitutional Juris-
prudence); Bora Laskin, The Supreme Court of Canada: A Final Court of and for Ca-
nadians (1951) 29 Can. Bar Rev. 1038. See also Brewin, Switzman, supra note 10.
90 McWhinney, Roncarelli (S.C.C.), supra note 88 at 514.
91 Frank R. Scott, The Canadian Constitution and Human Rights (Toronto: Canadian
Broadcasting Corporation, 1959) at 1.
BUILDING A LAW OF HUMAN RIGHTS 455
formed listeners, and [t]hat process of constitutional adaptation … will go
on into the future.92 Although he stressed that rights and freedoms had
always been a part of Canadas constitutional history, this was a moment
to decide just what are the rights we possess as citizens.93 The time had
come, Scott argued, to entrench a constitutional bill of rights. Scott elabo-
rated upon these themes in greater detail in lectures he gave that same
spring at Carleton University. For Scott, the civil liberties casesof
which Roncarelli was onesymbolized the awakening concern over civil
liberties and fundamental freedoms.94 Ultimately, Scott suggested, the
strength or fragility of constitutional rights would always depend on judi-
cial interpretation. What Roncarelli and the other implied bill of rights
cases demonstratedand here Scott largely ignored the divided nature of
the Courts holdingswas the capacity of the Supreme Court of Canada to
protect the civil liberties essential to democratic constitutionalism: free-
dom of expression, association, and religion, as well as rights of equality.
For Scott and the public at large, Roncarelli and the implied bill of rights
cases signalled not only changing conceptions of Canadian constitutional
law, but also a growing cultural faith in the capacity of Canadian judges
to limit the powers of the elected branches of governments. In this re-
spect, Roncarelli forecast shifts in public acceptance of, and demand for,
judicial power under the Canadian Charter of Rights and Freedoms95 and
the rights revolution still to come.
III. Roncarelli in Classrooms
The first constitutional class to take notice of Roncarelli was, not sur-
prisingly, Scotts own. The day was especially memorable for Alan Stein,
whose father had argued Roncarelli alongside Scott. On 27 January 1959,
Alan was one of the law students sitting in Scotts constitutional law class
at McGill. Stein remembers Scott taking an urgent call that morning, and
returning to class triumphant. Weve won, 6 to 3, Scott announced to the
class.96 As news of the victory spread through the faculty, classes were
cancelled, and students and staff gathered to celebrate in a general as-
sembly. Champagne flowed.97 Roncarelli has been a part of Canadian le-
92 Ibid.
93 Ibid.
94 Scott, Civil Liberties, supra note 23 at 28.
95 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.),
1982, c. 11 [Canadian Charter].
96 Marian Scott, How We Recall Le Chef Montreal Gazette (5 September 2009) B1 at B5
(In Defense of a Despot). See also The Maurice Duplessis Legacy Montreal Gazette (5
September 2009) A1.
97 By evening, the party had gravitated to Scotts home. All of friends were there to re-
joice, Thrse Casgrain remembered, including Roncarelli (Djwa, Politics of the
456 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
gal education ever since. To borrow the elegant phrasing of Karl Lle-
wellyn, Roncarelli has become one of those classic law school cases bear-
ing the rich deep polish of a thousand class room[] discussions.98 Of
course, the meanings attached to great cases like Roncarelli are seldom, if
ever, static. If, in the 1960s, Roncarelli appeared to be a case about hu-
man rights and about a particular time and place in Quebec history, it has
come, in recent years, to be seen more simply as the classic Canadian ex-
position of executive constraint under the rule of law. Despite those shift-
ing textures, a constant has been Justice Rands judgment standing at the
decisions gravitational centre.
The implied bill of rights cases earned Justice Rand an unparalleled
admiration among an influential cadre of Canadian constitutional law
scholars. Bora Laskin, then in the process of eclipsing Scott as the leading
figure of his generation of legal scholars, described Justice Rand as the
greatest expositor of a democratic public law which Canada has known.99
Naturally, Scott admired Justice Rand, too, and impressed upon his law
students that he was Canadas greatest jurist.100 McWhinney went a
step further, calling Justice Rand the preeminent philosopher of Cana-
dian constitutional law,101 and anointing him the most outstanding pub-
lic law judge now sitting in the Commonwealth. Jean Beetz, by contrast,
sounded notes of caution about the implications of Justice Rands juris-
prudence on notions of parliamentary sovereignty and federalism, but
even he too admitted that the implied bill of rights cases had a certain
creative force behind them.102 When the lectures in constitutional class-
rooms turned to the implied bill of rights, invariably it was the decisions
of Justice Rand that became the focus of attention.
This is not to say that Justice Rands influence was uniform across the
country and curriculum. Attending law school in Vancouver in the mid-
1950s, Thomas Berger recalls that he learned next to nothing about the
Imagination, supra note 20 at 314). Pierre Trudeau was there too. See also Thrse
Casgrain, The Achievements of F.R. Scott in Sandra Djwa & R. St. J. Macdonald, eds.,
On F.R. Scott: Essays on His Contributions to Law, Literature, and Politics (Montreal &
Kingston: McGill-Queens University Press, 1983) 3 at 4.
98 K.N. Llewellyn, On Our Case-Law of Contract: Offer and Acceptance, I. (1938) 48 Yale
L.J. 1 at 32.
99 Bora Laskin, An Inquiry into the Diefenbaker Bill of Rights (1959) 37 Can. Bar Rev.
77 at 124.
100 See Letter from Douglas Pascal to Ivan C. Rand (4 May 1966) in Ivan Cleveland Rand
fonds, Ottawa, Library and Archives Canada (MG30-E77, R2355).
101 Edward McWhinney, The Supreme Court and the Bill of RightsThe Lessons of Com-
parative Jurisprudence (1959) 37 Can. Bar Rev. 16 at 36.
102 Jean Beetz, Le contrle juridictionnel du pouvoir lgislative et les droits de lhomme
dans la constitution du Canada (1958) 18 R. du B. 361.
BUILDING A LAW OF HUMAN RIGHTS 457
implied bill of rights cases.103 Indeed, an examination of the course out-
lines of constitutional law classes from the period reveals a preponderance
of attention spent on matters of history, sovereignty, prerogative and ex-
ecutive powers, and, most of all, federalism and the division of powers.104
Still, it is surely not a coincidence that the University of British Columbia
began offering a seminar in Civil Liberties in the 19591960 academic
year.105 And, the students of Dean Rands constitutional law classes at the
University of Western Ontario in the early 1960s would have had particu-
lar incentive to pay attention to Justice Rands decisions. More signifi-
cantly, the most widely used textbook in CanadaLaskins Canadian
Constitutional Law: Cases and Text on Distribution of Legislative Power
greatly expanded its coverage of the implied bill of rights cases in the
Civil Liberties section of its second edition, which appeared in 1960.106
The texts reference to Roncarelli is slight, but telling. In his commentary,
Laskin describes Roncarelli as a case about private law enforcement of
civil liberties in Canada.107 Roncarelli, like the other implied bill of
rights cases, had begun to transform the canon of Canadian constitutional
law.
And there is evidence that law students, or at least some of them, did
take notice of the implied bill of rights. Again, it can be no coincidence
that a number of student-written articles on Justice Rand and the implied
bill of rights appeared in the late 1950s. Articles by law students R.R.
Price, J.T. Eyton, and Gary Murray Keyes (as well as Sheppard who had
just graduated), suggest that Justice Rand and the idea of Canadian con-
stitutional rights had captured the imagination and attention of a number
of Canadian law students.108 In the years that followed, the implied bill of
rights cases increasingly became integrated into the canon of Canadian
constitutional law teaching. It was reading Justice Rands judgments in
the implied bill of rights cases as a law student in the early 1980s, Wil-
liam Kaplan admits, that inspired his decision years later to pen Justice
103 Thomas R. Berger, One Mans Justice: My Life in the Courts, McGill Law Journal
Annual Lecture Series, (2005) 50 McGill L.J. 987 at 990.
104 D.C. McDonald, A Survey of the Actual Content of the Curricula of the Canadian
Common Law School (1 June 1959) in Ivan Cleveland Rand fonds, Ottawa, Library
and Archives Canada (MG30-E77, R2355).
105 Ibid.
106 See Bora Laskin, Canadian Constitutional Law: Cases and Text on Distribution of Leg-
islative Power (Toronto: Carswell, 1951). Compare Bora Laskin, Canadian Constitu-
tional Law: Cases, Text and Notes on Distribution of Legislative Power, 2d ed. (Toronto:
Carswell, 1960).
107 Ibid. at 940.
108 See R.R. Price, Mr. Justice Rand and the Privileges and Immunities of Canadian Citi-
zens (1958) 16 U.T. Fac. L. Rev. 16; J.T. Eyton, The Jehovahs Witnesses and the Law
in Canada (1959) 17 U.T. Fac. L. Rev. 96; Gary Murray Keyes, Civil Liberties and the
Canadian Constitution (1959) 1:2 Osgoode Hall L.J. 20.
458 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Rands biography.109 Generations of law students have now puzzled over
and wrestled with Justice Rands constitutional law judgments. Perhaps
not quite Canadas answer to Oliver Wendell Holmes Jr., Justice Rand
and his judgments will undoubtedly remain alive in the casebooks of Ca-
nadian constitutional law.
Outside of the law school curriculum, however, Roncarellis star has
dimmed more dramatically. It is unfortunate that Canadas twentieth-
century history is being taught without mention of Roncarelli, or, indeed,
without any attention to Canadian courts and their pre-Charter jurispru-
dence. Roncarelli often serves as a minor detail in historical accounts of
Duplessiss life,110 but, along with the other implied bill of rights cases, is
almost entirely absent from the recent historiography of rights,111 gen-
eralist histories of Canada,112 and the standard undergraduate Canadian
history texts.113 Roncarelli does warrant mention in the most recent edi-
tions of A Short History of Quebec, but the authors confuse Roncarelli
with Switzman, and mistakenly credit the former with striking down the
Padlock Act.114 Interestingly, to the extent that Roncarelli remains a re-
membered case of historical significance at all, it is as a landmark vic-
109 William Kaplan, Canadian Maverick: The Life and Times of Ivan C. Rand (Toronto:
University of Toronto Press for The Osgoode Society for Canadian Legal History, 2009)
at xi.
110 See Conrad Black, Duplessis (Toronto: McClelland & Stewart, 1977) at 387. See also
Alain-G. Gagnon & Michel Sarra-Bournet, eds., Duplessis : entre la grande noirceur et
la socit librale (Montreal: Qubec Amrique, 1997).
111 See Lambertson, supra note 14 at 3; Dominique Clment, Canadas Rights Revolution:
Social Movements and Social Change, 193782 (Vancouver: UBC Press, 2008); Christo-
pher MacLennan, Toward the Charter: Canadians and the Demand for a National Bill
of Rights, 19291960 (Montreal: McGill-Queens University Press, 2003); George Eger-
ton, Entering the Age of Human Rights: Religion, Politics, and Canadian Liberalism,
19451950 (2004) 85 Can. Hist. Rev. 451; Carmela Patrias & Ruth A. Frager, This Is
Our Country, These Are Our Rights: Minorities and the Origins of Ontarios Human
Rights Campaigns (2001) 82 Can. Hist. Rev. 1. Kaplans work on the Jehovahs Wit-
nesses is the notable exception (Kaplan, State and Salvation, supra note 53).
112 See generally Robert Bothwell, The Penguin History of Canada (Toronto: Penguin Can-
ada, 2006).
113 See e.g. Robert Bothwell, Ian Drummond & John English, Canada since 1945: Power,
Politics, and Provincialism, rev. ed. (Toronto: University of Toronto Press, 1989); R.
Douglas Francis, Richard Jones & Donald B. Smith, Destinies: Canadian History since
Confederation, 6th ed. (Toronto: Nelson Education, 2008); Margaret Conrad & Alvin
Finkel, History of the Canadian Peoples: 1867 to the Present, vol. 2, 5th ed. (Toronto:
Pearson Longman, 2009); J.M. Bumsted, The Peoples of Canada, A Post-Confederation
History, 2d ed. (Oxford: Oxford University Press, 2004).
114 John Dickinson & Brian Young, A Short History of Quebec, 4th ed. (Montreal: McGill-
Queens University Press, 2008) at 294. I thank Derek McKee for the reference and for
his valiant, but unsuccessful, efforts to have the publisher correct the error.
BUILDING A LAW OF HUMAN RIGHTS 459
tor[y] … for freedom of religion.115 Nevertheless, historical scholars tend
to regard Canadian jurisprudenceRoncarelli includedas possessing
little of interest beyond their doctrinal value. Perhaps it is the laws incli-
nation to narrow historicism that partially explains why Roncarelli and
the other implied bill of rights cases seem to matter so little outside the
world of law. As Canadian constitutional scholars have increasingly es-
chewed historical approaches to the discipline, historians more broadly
may be simply mirroring back less interest in the law. Whatever the ex-
planation, it remains the case that in the classrooms teaching Canadian
history, Roncarelli, like virtually all of the Supreme Court of Canadas
pre-Charter jurisprudence, can scarcely be found.
All of this suggests that Roncarellis presence in the classroom de-
pends, like so many things, on time and place. In the law schools of the
1960s it would have been treated as a still-unfolding moment of rights ju-
risprudence. After the adoption of the Canadian Charter, the implied bill
of rights cases continued to draw attention, but as antecedents of limited
constitutionalism in the name of individual rights, and more generally as
explorations of the role of unwritten norms in constitutional adjudica-
tion.116 Roncarelli, for its part, increasingly stripped of its historical con-
text, became a case standing for one proposition above all others: the lim-
ited authority of the executive branch under the rule of law.
Conclusion
Roncarelli had been argued, but not yet handed down, when Frank
Scott spoke at a Convocation of Dalhousie Law School in the autumn of
1958. In keeping with the occasion, his address brimmed with promise.
And, though he did not mention the case by name, Roncarelli was clearly
on his mind. This, Scott proclaimed, was an exceptional moment in Cana-
dian constitutional history defined by our awakening interest in the sub-
ject of human rights and fundamental freedoms, and a pronounced shift
in emphasis to the individual freedoms, such as freedom of religion, of
speech and of the press.117 Alongside these traditional civil liberties, he
added the rights he had argued for in Roncarelli: [t]he right to a fair
hearing before an administrative decision is taken affecting ones liberty
115 Michael D. Behiels, Pierre Elliott Trudeaus Legacy: The Canadian Charter of Rights
and Freedoms (2003) 19 S.C.L.R. (2d) 139 at 145.
116 See Jean Leclair, Canadas Unfathomable Unwritten Constitutional Principles (2002)
27 Queens L.J. 389; Mark D. Walters, The Common Law Constitution in Canada: Re-
turn of Lex Non Scripta as Fundamental Law (2001) 51 U.T.L.J. 91; Dale Gibson,
Constitutional Vibes: Reflections on the Secession Reference and the Unwritten Consti-
tution (1999) 11 N.J.C.L. 49.
117 F.R. Scott, Convocation Address, Dalhousie Law School (1 November 1958) in Francis
Reginald fonds, Ottawa, Library and Archives Canada (MG30-D211, R5822, vol. 19,
Reel H-1278).
460 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
or property, the right to an unbiased exercise of discretionary powers, the
right not to be judged by someone who is acting in his own cause,118
which is the right of every individual, in other words, to Justice Rands
rule of law. [F]or the first time in our history, Scott enthused to the
room of Dalhousie graduates, the Supreme Court of Canada had been
asked to build a Canadian law of human rights.119
In focusing on the Supreme Court of Canada, Scott elided the broader
array of voices (his included) in this important moment of constitutional
construction. We would do well in reflecting on Roncarellis legacy to rec-
ognize what Scott himself sometimes overlookedthat cases draw mean-
ing from the context from which they emerge and into which they fall. To-
day, legal professionals tend to treat as a given Roncarellis iconic status
as one of the classic judgments in Canadian public law.120 The dangers
in greatness, however, lie in the dulling of its historicitya loss of the
sense of the constitutional context from which Roncarelli came. In its own
time and place, Roncarelli found fame as a case about Frank Roncarellis
constitutional rightshis right to give bail, his religious freedoms, and his
right to possess a liquor licence administered according to the rule of law,
that is, without recourse to malice, caprice, whim, or bias. Viewing Ron-
carelli as yet a further building block in Justice Rands jurisprudence of
citizenship rights allowed its audiences to condense its meaning and to
privilege the opinion of a judge of unequalled stature. In the battle for
greater constitutional protection for individual rights, lawyers, scholars,
and media commentators took every opportunity to think, talk, read, and
write human rights and fundamental freedoms into Canadian constitu-
tional culture. Understanding Roncarelli from the perspective of constitu-
tional culture sheds light on a significant moment of transition in Cana-
dian constitutional history, but it also reveals the dynamic ways in which
time and place shape the meaning of cases otherwise written in stone.
We would do better to integrate lawincluding its great casesinto
our historical understanding of twentieth-century Canada. Just as histo-
rians need to take account of laws powerful role in fashioning Canadian
constitutional culture, legal scholars should be more alive to the historic-
ity of legal judgments. Otherwise, legal scholars run the risk of com-
memorating a historic case like Roncarelli in conversations heard only
among ourselves.
118 Ibid.
119 Ibid.
120 David Dyzenhaus, The Deep Structure of Roncarelli v. Duplessis (2004) 53 U.N.B.L.J.
111 at 112.
