Article Volume 55:3

Complexifying Roncarelli's Rule of Law

Table of Contents

McGill Law Journal ~ Revue de droit de McGill

COMPLEXIFYING RONCARELLIS

RULE OF LAW

Robert Leckey*

The accepted reading of Roncarelli v. Du-
plessis requires revision. Accounts by which
Justice Rand defended the rule of law while the
dissenters were indifferent to it mischaracterize
the judgment. Justice Rands judgment is bolder
and less explicit than is typically supposed: his
treatment of the notice requirement constitutes
part of his defence of the rule of law. For its
part, Justice Fauteuxs dissent enacts a plausi-
ble understanding of the judges role within the
rule of law. Disagreement on the overlooked
procedural issue is best viewed as fully internal
to the rule of law. The judgments relevance for
rule of law scholars is its exemplification of the
possibility for rule of law impulses to conflict,
making it a much richer and more interesting
text. Scholars dismissiveness toward the proce-
dural issue reveals an unsatisfactory view on
the part of legal scholars, one by which judges
simply apply the rule of law, rather than being
also themselves constrained by it.

Une rvision de linterprtation gnrale-
ment accepte de laffaire Roncarelli c. Duplessis
simpose. Largument selon lequel le juge Rand d-
fendait la primaut du droit tandis que les juges
dissidents y taient indiffrents portraitise mal le
jugement. Le jugement du juge Rand est plus au-
dacieux et moins explicite quon ne le suppose ha-
bituellement : son traitement de la question de
lexigence de pravis fait partie de sa dfense de la
primaut du droit. La dissidence du juge Fauteux
exemplifie une approche plausible quant au rle
des juges au sein de la primaut du droit. Le ds-
accord portant sur la question procdurale ngli-
ge se comprend mieux comme tant entirement
interne la primaut du droit. Le jugement d-
montre comment les impulsions pour dfendre la
primaut du droit peuvent entrer en conflit, ren-
dant ainsi le texte dautant plus riche et intres-
sant. Lapproche de ceux qui tudient la primaut
du droit, qui fait abstraction de la question proc-
durale et selon
juges ne font
quappliquer la primaut du droit plutt que dy
tre contraints, est insatisfaisante.

laquelle

les

* Faculty of Law and Quebec Research Centre of Private and Comparative Law, McGill
University. I acknowledge the financial support of the Fonds qubcois de la recherche
sur la socit et la culture (FQRSC) and the research assistance of Camille Brub and
Robert Whillans. For comments on earlier versions, I am indebted to Eric Adams, Ben
Berger, Kim Brooks, Brittany Carson, Genevive Cartier, David Dyzenhaus, Anja
Kortenaar, Hoi Kong, Jeremy Lewsaw, Roderick Macdonald, Mark Walters, and
Grgoire Webber. I presented earlier versions of this paper in my 20082009 Constitu-
tional Law class (22 January 2009), at the Junior Scholars Conference, Faculty of Law,
Queens University (23 January 2009), at a summer lunchtime workshop organized by
my colleague, Kim Brooks (23 April 2009), and at the symposium in North Hatley (19
September 2009); I am grateful for the comments of participants on those occasions.

Citation: (2010) 55 McGill L.J. 721 ~ Rfrence : (2010) 55 R.D. McGill 721

Robert Leckey 2010

722 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

Introduction

I.

II.

The Notice Requirement as Disputed

Rereading the Judges

III.

Scholarly Reading and the Rule of Law

Conclusion

723

725

731

736

740

COMPLEXIFYING RONCARELLIS RULE OF LAW 723

Introduction
A great judgments fiftieth anniversary occasions reflection on the
practices of reading accumulated around it. Scholars and judges repeat-
edly cite Justice Rands clarion warning in Roncarelli v. Duplessis against
the beginning of disintegration of the rule of law as a fundamental postu-
late of our constitutional structure.1 Scholars of the rule of law have stud-
ied the opposition between his repudiation of absolute and untram-
melled discretion and Justice Cartwrights characterization, in dissent, of
the liquor commissions discretion as unfettered.2 But few see this oppo-
sition as a live debate: casebooks excerpt Justice Rands reasons as exem-
plary of the rule of law, and Justice Cartwright appears as standard
bearer for a discredited view.3 Roncarelli has come to stand for one issue,
executive discretion as constrained by the rule of law, and a one-sided is-
sue at that. Its other issues lie in relative neglect, including the require-
ment in article 88 of Quebecs Code of Civil Procedure for thirty days no-
tice in suits against public officers.4 Roncarellis lawyers had passed much

1 Roncarelli v. Duplessis, [1959] S.C.R. 121 at 142, 16 D.L.R. (2d) 689 [Roncarelli cited to
S.C.R. unless specified otherwise; reasons issued in French are also cited to the English
translation in the D.L.R.].

2 Ibid. at 140, 167; David Dyzenhaus, The Deep Structure of Roncarelli v. Duplessis

(2004) 53 U.N.B.L.J. 111 at 125-32 [Dyzenhaus, Deep Structure].

3 See e.g. The Constitutional Law Group, Canadian Constitutional Law, 3d ed. (Toronto:
Emond Montgomery, 2003) at 640-44; F.L. Morton, ed., Law, Politics and the Judicial
Process in Canada, 3d ed. (Calgary: University of Calgary Press, 2002) at 8-13; Pierre
Lemieux, Droit administrative : doctrine et jurisprudence, 4th ed. (Sherbrooke: Revue de
Droit de lUniversit de Sherbrooke, 2006) at 695-700 (unusual for also quoting a bit of
Martland J.s reasons). But see Lorne Sossin, The Unfinished Project of Roncarelli v.
Duplessis: Justiciability, Discretion, and the Limits of the Rule of Law (2010) 55 McGill
L.J. 661 (on subsisting areas of untrammelled public regulation).

4 Article 88 C.C.P. read:

No public officer or other person ful-
filling any public function or duty can
be sued for damages by reason of any
act done by him in the exercise of his
functions, nor can any verdict or
judgment be rendered against him,
unless notice of such action has been
given him at least one month before
the issue of the writ of summons.
Such notice must be in writing; it
must state the grounds of the action
and the name of the plaintiffs attor-
ney or agent, and indicate his office;
and must be served upon him person-
ally or at his domicile.

officier public

Nul
ou personne
remplissant des fonctions ou devoirs
publics ne peut tre poursuivi pour
dommages raison dun acte par lui fait
dans lexercice de ses fonctions, et nul
verdict ou jugement ne peut tre rendu
contre lui, moins quavis de cette
poursuite ne lui ait t donn au moins
un mois
de
lassignation.
Cet avis doit tre par crit : il doit
exposer les causes de laction, contenir
lindication des noms et de ltude du
procureur du demandeur ou de son
agent et tre signifi au dfendeur
personnellement ou son domicile.

avant

lmission

724 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

of the six months prescription period in the pursuit of public-law re-
courses requiring authorization that was withheld before they turned
their minds to a claim in civil liability against Duplessis personally. When
they eventually did so, the prescription period left them less than the
thirty days for the required notice.5 If they think of it, readers today re-
gard this procedural matter, like the question of discretion, as unevenly
weighted. On one side stands Justice Rand, the rule of laws champion,
whom the obstacle posed by article 88 did not bother … for more than a
moment;6 on the other, narrow-minded, formalist judges who disposed of
the case on purely technical grounds.7

This accepted reading of the judgment requires revision. Accounts by
which Justice Rand and the other majority judges defended the rule of
law while the dissenters were indifferent (if not hostile) to it mischarac-
terize the judgment. Such accounts advance an understanding of the rule
of law that is partial in both main senses. Uncritical acceptance of the ma-
jority judges presentation of the procedural issue as straightforward has
impoverished scholars appreciation of the case. Justice Rands judg-
mentwhich should be not only praised, but parsedis bolder as well as
less explicit than typically supposed. For its part, Justice Fauteuxs dis-
sent, in which he regards the legislatures procedural rule as preventing
him from doing justice for the plaintiff, should be seen as enacting a par-
ticular, defensible understanding of the rule of law, one consistent with
recent sophisticated accounts of limits on the judicial role. Disagreement
on the notice requirement, then, is appropriately viewed as a debate fully
internal to the rule of law. Understood better, Roncarellis relevance to
the rule of law is not solely the incandescent, unequivocal rightness of
Justice Rands reasons, but rather its exemplificationin the contrast be-
tween his opinion and Justice Fauteuxs dissentof the possibility for
rule of law impulses to conflict. The judgment is thus a much richer and
more interesting rule of law text than scholars credit. Moreover, scholars
dismissiveness toward the procedural issue reveals an unsatisfactory view
on their part, one by which judges simply apply the rule of law, rather
than being also themselves constrained by it. The failure to recognize Jus-
tice Rands treatment of the procedural rule as a key part of his perform-
ance suggests the need for rule of law scholarsreading as both philoso-
phers and lawyersto expand the judicial conduct of interest to them so
as to include so-called technicalities.

5 Sandra Djwa, The Politics of the Imagination: A Life of F.R. Scott (Toronto: McClelland

and Stewart, 1987) at 308-309.

6 Dyzenhaus, Deep Structure, supra note 2 at 124.
7 Randall P.H. Balcome, Edward J. McBride & Dawn A. Russell, Supreme Court of Can-
ada Decision-Making: The Benchmarks of Rand, Kerwin and Martland (Toronto:
Carswell, 1990) at 283.

COMPLEXIFYING RONCARRELIS RULE OF LAW 725

from several mensthe majority

I. The Notice Requirement as Disputed
By demonstrating that article 88 presented compelling and real is-
sues,8 this part aims to unsettle the accepted wisdom that on that matter
the majority adopted the sole credible option. It would follow that the dis-
senters who relied on article 88 cannot be dismissed as partisans of mere
proceduralism or as having dressed in procedural garb their preference
for Duplessis on the merits. Mention of the rule of law evokes its ostensi-
ble opposite, rule by men. In this instance, rule by men is usually detected
in the premiers usurpation of the power to revoke a liquor permit. Recov-
ering article 88 as genuinely disputed will show that the damages award
sanctioning the abuse of executive power did not emerge from an uncon-
troversial, syllogistic deduction from the premises of legal rules. Instead,
that award resulted
judges
contingent, and contestable, human judgment.9
Article 88 attracted competing interpretive considerations. As noted
by both dissenting judges, the rules imperative character called for courts
to raise lack of notice ex proprio motu. The clause nor can any verdict or
judgment be rendered limited the courts jurisdiction.10 While a provi-
sions imperative character cannot dictate whether its terms properly en-
compass a particular act, it alerts judges to the possibility that, on its best
reading, it might constrain them. It manifests the drafters contemplation
that the rule would sometimes preclude the issuing of a judgment other-
wise appropriately rendered. Considerations also pulled the other way.
Article 88s character as an exception from the law of general application
for the benefit of a class arguably subjected it to strict interpretation in
the plaintiffs favour.11 While neither consideration dictated an outcome,
together they signalled the need for a more than cursory interpretation.
At trial, Justice Mackinnon found that Duplessis was not entitled to
avail himself of article 88 on the basis that his were not acts in the exer-
cise of but on the occasion of public duties.12 At the Quebec Court of Ap-
peal, where four judges allowed Duplessiss appeal, the dissenting judge,
Justice Rinfret, agreed with the trial judge on article 88.13 The majority
judges at the Supreme Court of Canada held likewise that Duplessis was

8 Claude-Armand Sheppard, Roncarelli v. Duplessis: Art. 1053 C.C. Revolutionized

(1960) 6 McGill L.J. 75 at 92, reprinted in (2010) 55 McGill L.J. v.

9 For a reading of the judgment as situated demographically and ideologically, see

Roderick A. Macdonald, Was Duplessis Right? (2010) 55 McGill L.J. 401.

10 Roncarelli, supra note 1 at 176 (S.C.R.), at 723 (D.L.R.).
11 Philippe Ferland, Le pravis lofficier public (art. 88, 97 et 429 C.P.) (1945) 5 R. du

B. 476 at 477.

12 Roncarelli v. Duplessis (1951), [1952] 1 D.L.R. 680 at 700 (Qc. Sup. Ct.) [Roncarelli

(Sup. Ct.)].

13 Duplessis v. Roncarelli, [1956] B.R. 447 at 518 (C.A.).

726 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

not entitled to the notice. They seem to have regarded the matter of arti-
cle 88 as straightforward. On Justice Rands understanding, the act un-
derlying Roncarellis claim was quite beyond the scope of any function or
duty entrusted to Duplessis, so far so that it was one done exclusively in
a private capacity, however much in fact the influence of public office and
power may have carried over into it.14 In Justice Martlands fuller discus-
sion, he referred to his prior conclusion on the merits that Duplessiss de-
clared belief that he had acted within his official functions failed to justify
his conduct. Justice Martland reasoned that the classification of acts as
within or without the exercise of a public officers functions was to be de-
termined not on the officers appreciation, subjectively, but according to
law, objectively. For authority, he cited an English courts denial of notice
to a justice of the peace on the basis that he had acted absent any author-
ity, despite his belief to the contrary.15 Justice Abbott, the sole Quebec
judge to side with the majority, cited two Quebec authorities in support of
his view that article 88 applied only to public officers who, unlike Du-
plessis, had had reasonable ground for believing their act to fit within
their authority.16

Two dissenting judges, Justices Taschereau and Fauteux, would have
disposed of the appeal by finding that the failure to give notice barred the
plaintiffs claim. On the merits, however, they held opposing views. Jus-
tice Taschereau hinted that he would have regarded withdrawing the
permit as within the Liquor Commissioners discretion.17 By contrast, had
proper notice been given, Justice Fauteux would have accepted Ron-
carellis claim.18 Justice Taschereau held that, however the premier might
have influenced the liquor commission, he remained a public officer, act-
ing in the exercise of his functions. That italicizing the statutory language
was Justice Taschereaus chief justificatory method indicates his sense
that in the circumstances, article 88 required mere reading and applica-
tion, not interpretation.19

Justice Fauteuxs dissent provides an ampler challenge to the major-
itys determination that Duplessiss order to the liquor commission oc-

14 Roncarelli, supra note 1 at 144.
15 Ibid. at 158-59, citing Agnew v. Jobson (1877), 47 L.J.M.C. 67, 13 Cox C.C. 625.
16 Roncarelli, supra note 1 at 186, citing Lachance c. Casault (1902), 12 B.R. 179; Asselin

c. Davidson (1914), 23 B.R. 274.

17 Roncarelli, supra note 1 at 129 (S.C.R.), at 695 (D.L.R.).
18 Ibid. at 174 (S.C.R.), at 721 (D.L.R.).
19 Ibid. (lintim … demeurait quand mme un officier public, agissant dans lexcution de
ses fonctions S.C.R. at 129 [emphasis in original]; the respondent remained neverthe-
less a public officer acting in the performance of his duties D.L.R. at 695 [emphasis in
original]). On the distinctions between application and interpretation, see Paul-Andr
Crpeau, Essai de lecture du message lgislatif in Mlanges Jean Beetz (Montreal:
Thmis, 1995) 199.

COMPLEXIFYING RONCARRELIS RULE OF LAW 727

curred outside the exercise of his functions.20 On his view, several, mu-
tually reinforcing bases led to the understanding that the set of acts
within the exercise of a public officers functions for the purposes of article
88 was larger than the set of acts authorized or reasonably believed to be
so. That is, statutory authorization for the contested act or reasonable be-
lief therein could not be the criterion for applying article 88. Conversely,
excess of jurisdiction or the ultra vires character of conduct could not be
the basis for denying the defendant its benefit. The following paragraphs
draw on Justice Fauteuxs dissent but have reorganized the justifications
for his conclusion. While heuristically useful, the separation of these bases
is artificial.
At the outset, recall that article 88 refers to a suit against a public of-
ficer for damages and that the claim against Duplessis was one under
the general provision on extracontractual liability, article 1053 of the Civil
Code of Lower Canada.21 Article 88 was not directed at a public law action
aiming to quash an administrative decision.
One basis for Justice Fauteuxs conclusion was the text of the Code of
Civil Procedure. Read as internally consistent, it provided clear grounds
for supposing that acts performed by a public officer could be illegal and
nevertheless within the exercise of official functions. Article 429 contem-
plated that a judge could order the relocation of the trial of a public officer
sued for damages by reason of any illegal act done by him in the per-
formance of his functions.22 An acts alleged illegality could, then, coexist
with its having been committed in the performance or exercise of official
functions.23 Indeed, in Justice Fauteuxs view, the drafters of article 88
had assumed that those for whose benefit it would operate would have
committed an illegality for which they would be accountable.24
A second basis for separating the exercise of functions from an acts
validity resulted from comparing article 88 with related statutory re-
gimes. Comparison with previous and existing analogous rules revealed
grounds for supposing that article 88s application should not have de-

20 Art. 88 C.C.P.
21 Art. 1053 C.C.L.C. (Every person capable of discerning right from wrong is responsible
for the damage caused by his fault to another, whether by positive act, imprudence, ne-
glect or want of skill).

22 Art. 429 C.C.P.; Roncarelli, supra note 1 at 178 (S.C.R.), at 725 (D.L.R.).
23 Fauteux J. noted the similar language in art. 1054 C.C.L.C. in respect of the vicarious
liability of masters and employers, but reasoned that art. 88 C.C.P.s purely procedural
effects distinguished it from the substantive liability under the former. Ibid. at 177-78
(S.C.R.), at 724 (D.L.R.).

24 Ibid. at 178 (S.C.R.), at 725 (D.L.R.). A Quebec Superior Court judge had thought it ob-
vious that art. 88s core beneficiaries included officials having brought litigation on
themselves by maliciously abusing their functions (Charland c. Kay (1932), 70 C.S. 249
at 251, [Charland (Sup. Ct.)], affd (1933), 54 B.R. 377 (C.A.) [Charland (C.A.)]).

728 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

pended on the public officers reasonable belief that he was acting within
valid authority, framed as the question of good faith. A Lower Canadian
statute had stipulated for justices of the peace, magistrates, and other of-
ficers a months notice prior to a suit as well as a subsequent right to ten-
der amends to the plaintiff and, if the plaintiff refused, to the court. That
statute had conditioned its privileges and protection on the public offi-
cers having acted bon fide in the execution of his duty.25 By the time of
Roncarelli, two distinct but interlocking regimes had descended from that
statute. Article 88 stipulated the months notice but said nothing about
good faith. The Magistrates Privilege Act continued the right to tender
amends within the month following the notice required by article 88, but
it conditioned that right on the public officers having acted in good faith
in the execution of his duty.26 Relying on authority from the Quebec
Court of Appeal,27 Justice Fauteux reasoned that, in renovating the pre-
Confederation regime, the legislature had confined the right to tender a
settlement to officers who had acted in good faith, while extending article
88s notice requirement less selectively.28
A third basis for separating the exercise of official functions from the
scope of valid authorization derived from the concern not to nullify article
88. Justice Fauteux cautioned against associating the right to notice with
justification for the act.29 On his view, a determination that a public offi-
cer was entitled to the benefit of notice, like one that it was appropriate to
relocate his trial under the provision already noted, operated independ-
ently from any assessment as to the merits of the case against him. If not,
a mere allegation of bad faith might render article 88s protection illu-
sory:30 such an action without notice would necessarily go to trial in order
to determine whether or not the failure to have given notice should bar
the action. Moreover, only those defendants who would ultimately be
found not liable would be found entitled to notice. The respondent had ar-
gued to this effect on the basis of article 88s stipulation that no verdict or
judgment could be rendered against a public officer failing notice. He
contended that article 88 contemplated an illegal act since it anticipated a

25 An Act for the protection of Justices of the Peace, Magistrates and other Officers, in the

performance of public duties, C.S.L.C. 1861, c. 101, ss. 1, 8.

26 Magistrates Privilege Act, R.S.Q. 1941, c. 146, s. 8. The judges of the Supreme Court of
Canada were fully aware of this condition, which had proven decisive in another Jeho-
vahs Witnesses case. See Chaput v. Romain, [1955] S.C.R. 834 at 850, 853, 856, 862, 1
D.L.R. (2d) 241 [Chaput].

27 Corporation de la Paroisse de St-David de lAuberivire c. Paquet (1936), 62 B.R. 140

(C.A.).

28 Roncarelli, supra note 1 at 179-80 (S.C.R.), at 725-26 (D.L.R.).
29 Ibid. at 179 (S.C.R.), at 725 (D.L.R.).
30 Houde c. Benoit, [1943] B.R. 713 at 725 (C.A.). See also Charland (C.A.), supra note 24

at 378-79.

COMPLEXIFYING RONCARRELIS RULE OF LAW 729

verdict or judgment, while no action in damages can exist and no judg-
ment can be rendered if the act is performed within the limits of the func-
tions of the public officer and therefore is perfectly legal.31 That is, article
88s bar to the rendering of a verdict or judgment would have teeth only
where a verdict or judgment would otherwise be renderedand rendered
for wrongdoing. Denying the benefit of article 88 on the basis of want of
jurisdiction would render that provision nugatory.32 Specifically, Justice
Fauteux held that the majority wrongly collapsed the article 88 inquiry
with its conclusion that Duplessis had committed a fault. The collapse is
plainest in Justice Martlands reference, while addressing article 88, to
his determination on the merits, though it also infected the reasons of
Justices Rand and Abbott.
A fourth, related basis for Justice Fauteuxs conclusion was provincial
jurisprudence interpreting article 88. Justice Fauteux acknowledged the
historical conflict in the case law on article 88 and its predecessors as to
the place of the public officers good faith (his belief that he had acted
within his authorization). Since 1933, however, Quebec courts had segre-
gated the procedural question from the merits, consistently viewing the
public officers good faith as irrelevant.33 Justice Fauteux identified a leg-
islative amendment in 1929 as the decisive factor having led to this devel-
opment. It required that every inscription of law be disposed of without
ordering proof and without reserving it for decision on the merits.34 If the
defendants inscription in lawi.e., his claim that notice under article 88
had not been givenrequired adjudication without evidence, in advance
of the decision on the merits, it could not turn on a substantive, evidence-
based evaluation of the defendants conduct.35

These concerns of Justice Fauteuxs are more negative than positive.
They are not reasons for affirming that the telephone call to the Liquor
Commissioner fell within the exercise of Duplessiss functions. They do,

31 Roncarelli v. Duplessis, [1959] S.C.R. 121, 16 D.L.R. (2d) 689 (Factum of the Respon-

dent at 41) [Roncarelli FOR].

32 Amnon Rubinstein, Jurisdiction and Illegality: A Study in Public Law (Oxford: Claren-

don Press, 1965) at 144.

33 Charland (C.A.) (supra note 24) was referred to by Ferland as the jurisprudential coup
de barre de 1933: Ferland, supra note 11 at 489. See also Houde c. Benoit, supra note
30.

34 An Act to amend the Code of Civil Procedure respecting inscription in law, 19 Geo. V,
c. 81, s. 1. An inscription in law is a substantive means of contestation (as opposed to a
preliminary exception). Article 191 C.C.P. stated: An issue of law may be raised as to
the whole or part of the demand whenever the facts alleged or some of them do not give
rise to the right claimed.

35 The submission of evidence for determining inscriptions in law having been precluded,
further support against the relevance of good or bad faith to art. 88 C.C.P. derived from
art. 2202 C.C.L.C. He who alleges bad faith must prove it: Roncarelli, supra note 1 at
179-80 (S.C.R.), at 725-26 (D.L.R.).

730 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

though, raise doubts about the majoritys determination that the lack of
authorization for the act necessarily and self-evidently placed it outside
the exercise of his functions.
More positively, the legislative intention that article 88s availability
be decided before trial called for two distinguishable approaches to char-
acterizing Duplessiss conduct: one, more superficial, without evidence, for
the purpose of article 88; the other, more searching, for the claim in civil
liability at trial. The procedural determination arguably should have re-
lied on a rough-and-ready criterion, devised in openness to the possibility
that an action done in the exercise of his functions might well turn out,
on scrutiny at trial, to have been illegal or otherwise unauthorized and
thus a basis for civil liability.36

The reasons of those judges who concluded that Duplessis was not en-
titled to the benefit of article 88 indicate that his act might have satisfied
such a crude criterion. After all, the Liquor Commissioner obeyed Du-
plessis only because he believed the premier to have instructed him in an
official capacity.37 A telephone call by the Attorney General to a public of-
ficial appears to be an exercise of his functions. It looks a good deal more
like government business than, say, conduct in previous cases where
courts had found article 88 inapplicable, such as violent assaults by a liq-
uor commission employee or by a policeman.38 Awareness that Duplessiss
call to the Liquor Commissioner appeared to be part of the valid exercise
of his functions likely led the trial judge to use the category of acts on the
occasion of public duties.39 Without acknowledgement, this approach de-
parted from the Quebec Court of Appeals earlier view of official and per-
sonal conduct as exhaustive categories.40

36 The risk of collapsing the procedural question with the merits was lesser where the
norms of reasonable conduct were not coterminous with the bounds of enabling legisla-
tion. See e.g. Beauchemin c. Weir (1938), 44 R.J.Q. 468 (Sup. Ct.) (determination that a
police officers collision with a citizens car occurred in the exercise of his functions dis-
tinct from the assessment on the merits of his driving as diligent or negligent).

37 Rubinstein spoke of the quandary that disturbs the whole structure upon which this
branch of the law has been founded (supra note 30 at 132). If the basis of liability in
tort is that a public officer exceeded his power, his unauthorized order should have car-
ried no more weight than that of any private person.

38 See respectively Houde c. Ct (1925), 28 R.P.Q. 27; Pednault c. Buckingham (1899), 5

R.J.Q. 40, 1 R.P.Q. 279.

39 Roncarelli (Sup. Ct.), supra note 12 at 700.
40 Houde c. Benoit, supra note 30 at 719 (pour dterminer le caractre de ces fonctions
publiques, il suffit de se demander si lacte accompli rsulte du mandat confi cet
officier ou si ce dernier na fait quagir en une qualit purement personnelle [emphasis
added]). The trial judges distinction appears, however, in Ferland (supra note 11 at
484) and is cited in Roncarelli v. Duplessis, [1959] S.C.R. 121, 16 D.L.R. (2d) 689 (Fac-
tum of the Appellant) [Roncarelli FOA].

COMPLEXIFYING RONCARRELIS RULE OF LAW 731

of the judgments in Roncarelli.

This elaboration of the complexities of article 88 invites reassessment

II. Rereading the Judges

The richness of considerations engaged by article 88 might instigate
criticism of the majority judges treatment of that rule. It is arguable that
the notice requirement called for more than Justice Rands almost cur-
sory41 rejection of Duplessiss submissions on article 88 as if the conclu-
sion was obvious.42 Justice Taschereaus dissenting view that it was plain
on the face of the text that article 88 applied to Duplessis ought to have
alerted Justice Rand against taking resolution of the procedural question
in the plaintiffs favour as axiomatic. In any event, article 88 was not a
tabula rasa to be interpreted by sole reference to its text. In the light of
decades of jurisprudence by Quebec courts, Justice Rands disposition of
article 88 without citing a single authority, Justice Martlands citation of
a nineteenth-century English case, and Justice Abbotts citation of Quebec
judgments from 1902 and 1914 fall short of the standard of respectful ad-
judication. The majority judges did not engage with the legal texts made
by others in the past that had a claim to be viewed as authoritative.43 Yet
rather than belabouring such criticisms, it is more fruitful to revise the
received understanding of the means by which the majority judges upheld
the rule of law.
Realization that the notice requirement was a close call complicates
the prevailing view that the rule of laws vindication consisted chiefly in
the majority judges restoration of the disposition by the trial judge of the
civil liability claim on the merits. A better appreciation of Justice Rands
reasons would no longer suppose that, the heavy rule of law lifting done,
he dismissed article 88 in a single paragraph because it was easy. It
would acknowledge that his advisedly choosing to say so little about that
ruleto cite neither the cases pleaded by the parties, nor the companion

41 Balcome, McBride & Russell, supra note 7 at 54.
42 David J. Mullan, Mr. Justice Rand: Defining the Limits of Court Control of the Admin-

istrative and Executive Process (1979) 18 U.W.O.L. Rev. 65 at 72.

43 On this interpretive and compositional, radically literary activity of placing texts in
patterns of what has been and what will be, see James Boyd White, Justice as Transla-
tion: An Essay in Cultural and Legal Criticism (Chicago: University of Chicago Press,
1990) at 91. While precedent is less authoritative in civil law than in common law juris-
dictions, and the judgments of the Quebec Court of Appeal are not binding on the Su-
preme Court of Canada, a jurisprudence constante from Quebec has nevertheless a
claim to be taken seriously by the Supreme Court of Canada: Albert Mayrand,
Lautorit du prcdent au Qubec in Mlanges Jean Beetz, supra note 19, 259 at 268.
The facta submitted to the Supreme Court of Canada show that counsel for Roncarelli
and Duplessis, who pleaded numerous cases on art. 88 from the Quebec Superior Court
and the Quebec Court of Appeal, viewed it as a live issue inviting vigorous argument:
Roncarelli FOA, supra note 40 at 73-79; Roncarelli FOR, supra note 31 at 40-41.

732 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

case on Jehovahs Witnesses and another procedural rule decided the
same day44was itself integral to his upholding the rule of law. Brushing
aside the notice requirement so as to allow judgment on the merits
amounted to more judicial action than scholars recognize who have not
traced article 88s history. Consequently, readers who applaud Justice
Rand for his treatment of discretion and official liability while dismissing
article 88 as easy underestimate the extent to which he defended the rule
of law.45

If appreciating the seriousness of the procedural issue reveals Justice
Rands intervention to have been more robust than is usually acknowl-
edged, it also tempers the praise lavished on it insofar as the reasons are
less explicit than is generally supposed. Though eloquently transparent in
the obiter discussion of discretion and the rule of law,46 he was evasive in
his treatment of article 88. The alternative courses available highlight
Justice Rands laconicism on the latter. He and the other majority judges
might have explicitly overruled Charland (C.A.) and the other Quebec
Court of Appeal judgments that had segregated the availability of article
88 from a public officers good faith. Such an operation would presumably
have needed to address the 1929 amendment requiring the determination
of inscriptions in law, without evidence, before trial.
Alternatively, the majority judges might have articulated a narrower
basis for denying Duplessis the benefit of article 88. This tack would have
departed from forthright acknowledgement that, on the face of the rules
text and in the light of its prior judicial construction, Duplessis had at
least a reasonable claim. Perhaps, in a determination that the spirit of
the rule of law demand[ed] that they place particularised justice ahead of
systemic consistency,47 they would have justified their decision that, on
balance, it was better to interpret article 88 as they did than to spare Du-

44 Lamb v. Benoit, [1959] S.C.R. 321, 17 D.L.R. (2d) 369 [Lamb].
45 For recognition that Rand J.s treatment of art. 88 was other than straightforward, see
Peter H. Russell, The Paradox of Judicial Power (1987) 12 Queens L.J. 421 at 428-29
(writing that the Court in Roncarelli granted a public law principle precedence over the
rule of civil procedure). Talk of the public law principles precedence over the procedural
rule indicates Russells awareness of an apparent conflict. On an appreciative reading,
the companion case, Lamb, manifests lingnuosit des juges aux tendances librales
contourner des technicalits de procdure et de prescription pour faire prvaloir la rgle
de droit sur lexgse excessive de la lettre de la loi : B. Lacombe, Case Comment on
Lamb v. Benot, (1959) 6 McGill L.J. 53 at 53 ×..

46 Given the conclusion that the liquor commission had not exercised its discretion at all,
it is unquestionably correct to characterize all discussion of the exercise of discretion
under enabling legislation as obiter: Sheppard, supra note 8 at 90.

47 Allan C. Hutchinson, The Rule of Law Revisited: Democracy and Courts in David
Dyzenhaus, ed., Recrafting the Rule of Law: The Limits of Legal Order (Oxford: Hart,
1999) 196 at 217.

COMPLEXIFYING RONCARRELIS RULE OF LAW 733

plessis from liability.48 Such a balancing might, admittedly, have stood on
tenuous authority: article 88s imperative language seemed to establish
that it did not confer discretion on the courts to dismiss a claim on their
assessment of the net effect on the rule of law.
Crucially, Justice Rand and his colleagues in the majority might have
anchored a decision for the plaintiff on article 88 in a positive sense of
that rule as a purposive thing, serving some end or congeries of related
ends.49 Such a justification would have recognized article 88s connection
to the right granted by the Magistrates Privilege Act for a defendant pub-
lic officer, having been given notice, to tender amends, either to the plain-
tiff or, if refused by the plaintiff, to the court. So regarded, article 88 had a
role in encouraging expeditious, extrajudicial resolution of suits against
public officers. Justice Rand might have recognized this legislative inten-
tionone reconcilable with the instinct to interpret legislation consis-
tently with rule of law values50before proceeding to justify a conclusion
that article 88 did not bar the claim. His justification might have been
that matters of public recordsuch as Roncarellis unsuccessful efforts to
obtain authorization to sue the liquor commission or Commissionerhad
already discharged the notice function of article 88. In substance, if not in
form, Duplessis had been put on notice that, should he have wished to do
so, he ought to have initiated negotiations with his intending plaintiff.
That is, Duplessis unquestionably knew that, at least in Roncarellis view,
he had committed a wrong. Arguably, article 88s notice requirement had
no further work to perform.
Given the substantial non dit in the majority judges treatment of the
procedural issue, it is fair to say that they avoid[ed] making their com-
mitments explicit; those who oppose judicial minimalism contend, to the
contrary, that judges should reach their rule of law preserving conclu-
sions by articulating fully the theory that sustains those conclusions.51
On this view, if the judges reinterpreted article 88 in the light of unwrit-
ten constitutional values,52 they ought to have said so. Meaningful en-

48 Compare discussion of the common sense approach taken by courts in characterizing
procedural rules for administrative tribunals as mandatory or directory, one that in-
volves assessing prejudice to a party: Sara Blake, Administrative Law in Canada, 4th
ed. (Markham, Ont.: LexisNexis Butterworths, 2006) at 9-11.

49 Lon L. Fuller, The Morality of Law, rev. ed. (New Haven: Yale University Press, 1969)

at 146.

50 T.R.S. Allan, Text, Context, and Constitution: The Common Law as Public Reason in
Douglas E. Edlin, ed., Common Law Theory (Cambridge: Cambridge University Press,
2007) 185.

51 David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cam-
bridge: Cambridge University Press, 2006) at 67. See also ibid. at 15 [Dyzenhaus, Con-
stitution of Law].

52 Ibid. at 91.

734 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

gagement with article 88 would have brought the majority judges into a
richer engagement with the various dimensions of the rule of law. Such
engagement might have led them to sketch the relationship between the
need to sanction abuse of power and the institutional constraints on
courts, among them procedural rules such as article 88, and respect for
precedent. Justice Rand might have elaborated a sense that the rule of
law includes a thick equitable component that mediates the power rela-
tions among the branches. This fuller articulation might have indicated
how similar future facts would need to be so as to attract analogous crea-
tivity in departing from the established interpretations of other proce-
dural rules. After all, he presumably did not intend implicitly to authorize
an absolute and untrammelled discretion on the part of judges to blunt
the effect of procedural rules in suits against the executive, but rather a
constrained one.53 Without announcing a principled basis for distinguish-
ing the Quebec precedents in Duplessiss favour, the majority judges
risked appearing biased.

Turning now to reread Justice Fauteuxs dissent, the objective is not
to persuade that he held correctly on article 88, all things considered (al-
though arguably he did). Instead, more modestly, the intent is to rehabili-
tate his reasons as reflecting a credible understanding of the rule of law
and the judicial role within it. His approach can be viewed as consistent
with the understanding of limits on the judicial role in David Dyzenhauss
sophisticated contemporary scholarship on the rule of law.
Reassessment of Justice Fauteuxs dissent departs from article 88s
character as valid legislation, enacted under the provinces exclusive
power to legislate regarding civil procedure for its courts.54 A notice re-
quirement for public officers derogated from Diceys idea that it is intrin-
sic to the rule of law that people of every rank be subject to the ordinary
law of the realm and amenable to the jurisdiction of the ordinary tribu-
nals.55 While article 88s effects were unwelcome to plaintiffs, its proce-
dural protections fell far short of the substantive immunity of officials un-

53 Might not the approving subsequent citation of the dissents by Quebec jurists reveal
the sense that the majority judges treatment of art. 88 reflected an inarticulate desire
to do justice on unique facts rather than an advised intent to overturn established au-
thority in this area? See Hamel c. Richard, [1967] R.L. 159 at 162 (C.Q.) (citing the
interpretation of art. 88 C.C.P. by les savants juges Taschereau et Fauteux, dans la
cause clbre de Roncarelli c. Duplessis); Landry c. Keable (1959), [1960] R.P.Q. 241 at
247-48 (Sup. Ct.). See also Yves Ouellette & Gilles Ppin, Prcis de contentieux
administratif, 2d ed. (Montreal: Thmis, 1977) at 334, n. 4 (approving Fauteux J.s dis-
sent).

54 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 92(14), reprinted in R.S.C. 1985,

App. II, No. 5.

55 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 193.

COMPLEXIFYING RONCARRELIS RULE OF LAW 735

der the French droit administratif so repugnant to Dicey.56 Its puzzle for
the rule of law was less severe than that generated by privative clauses,
which oppose the fundamental assumptions of parliamentary supremacy
and that all delegated power is subject to reviewable legal limits.57 How-
ever adept Duplessis might have been at maneuvering the legal resources
at his disposal, article 88 was not a decree that he had issued in his own
case. In one statutory form or another, it had predated the events in ques-
tion by over a century, and in its orderly, public promulgation in the Code
of Civil Procedure, it satisfied the implicit laws of lawmaking.58 Whether
or not one agrees with Dyzenhaus that a law that explicitly overrides fun-
damental principles of the rule of law has only a doubtful claim to legal
authority,59 article 88 is distinguishable from such rules. Given its objec-
tives in terms of extrajudicial dispute resolution and the ease with which
a plaintiff could ordinarily satisfy its requirements, article 88 was far
from crazy, or at least close to being crazy.60 Moreover, the language in
article 88, read against the rule in article 429 on relocating a trial, was
very explicit language61 indicating that a public officer should enjoy pro-
cedural protections when sued for an alleged illegality.
Edward McWhinney saw Justice Fauteuxs position as a little like
trying to have the best of both possible worlds.62 He regarded him as rely-
ing on natural law to find a violation of a right, like the majority, but,
unlike the majority, as tak[ing] refuge in positivism to deny a remedy.63
McWhinneys is an impoverished view. It is possible to read Justice Fau-
teux as negotiating the competing demands to which he felt himself sub-
ject. He was faced with, on one hand, a public officials abuse of purported
authority, and on the other, a validly enacted procedural rule limiting the
courts jurisdiction. Arguably, he did his best to discharge his duty to up-
hold constitutional principles, a duty conditioned by a political culture in

56 Ibid. at 345-46 ×..
57 David Dyzenhaus, Disobeying Parliament? Privative Clauses and the Rule of Law in
Richard W. Bauman & Tsvi Kahana, eds., The Least Examined Branch: The Role of
Legislatures in the Constitutional State (Cambridge: Cambridge University Press, 2006)
499 at 499-500.

58 Lon L. Fuller, The Implicit Laws of Lawmaking in Kenneth I. Winston, ed., The Prin-
ciples of Social Order: Selected Essays of Lon L. Fuller, rev. ed. (Oxford: Hart, 2001) 175.

59 Dyzenhaus, Constitution of Law, supra note 51 at 58.
60 Dyzenhaus, Deep Structure, supra note 2 at 139 (discussing Australian migration leg-
islation that explicitly precluded judicial review on the bases that a breach of the rules
of natural justice had occurred in the making of the decision and that the decision in-
volved an exercise of a power so unreasonable that no reasonable person could have so
exercised that power).

61 Ibid. at 139.
62 Edward McWhinney, Case Comment on Roncarelli v. Duplessis (S.C.C.), (1959) 37 Can.

Bar Rev. 503 at 508.

63 Ibid.

736 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

which parliamentary judgment is given a great deal of respect, even when
it puts a strain on fundamental principles.64 His restraint in the face of a
clear legislative statement65 need not have negated the signal he sent by
indicating that, had the procedural requirements been met, he would
have found Duplessis liable. Unlike Justice Cartwrights and Justice
Taschereaus dissents, Justice Fauteuxs reasons sent a warning that offi-
cers of the executive were not above the law of civil liability: where proce-
dural requirements were satisfied, such officers would be found liable for
usurpation of authority occasioning harm. Like a British judges declara-
tion that a statute, although valid, is incompatible with the Human
Rights Act 1998,66 and a Canadian judges acknowledgement that, but for
invocation of the notwithstanding clause, a statute would be invalid for
violating the Canadian Charter of Rights and Freedoms,67 Justice Fau-
teuxs obiter may be seen as having had a political clout distinct from its
failure to sanction the rights-infringing government conduct in question.68
From this perspective, the case can be made that his approach on article
88, combined with his obiter on the merits, makes a satisfactory approach
for the rule of law. The choice in Roncarelli whether or not to dismiss the
procedural argument was not one between performing and abdicating a
rule of law duty. It was a difficult choice that engaged competing rule of
law inclinations.

III. Scholarly Reading and the Rule of Law
Beyond reassessing the judges reasons, it is also worth interrogating
the practices of scholarly reading that have marginalized as irrelevant or
uninteresting a rich debate on a procedural question. The rule of law is-
sue presented by scholars and casebooks is the imperative for executive
action to derive from statutory authorization and for officials to exercise
discretion within implied boundaries. Although some scholars speak of
the rule of law project as a co-operative effort by the judiciary, legisla-
ture, and executive, much of the time it appears that they understand the
rule of law to be something that judges impose on the other branches.69

64 Dyzenhaus, Constitution of Law, supra note 51 at 212.
65 Ibid. at 211.
66 (U.K.), 1998, c. 42.
67 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.),

1982, c. 11 [Canadian Charter].

68 Dyzenhaus, Constitution of Law, supra note 51 at 211, 217.
69 Dyzenhaus speaks of co-operation, but sees limits of judicial competence as requiring
imaginative exercises in institutional design to craft solutions to problems about how
to impose the rule of law on certain kinds of executive decisions (ibid. at 3 [emphasis
added]). Quebecs leading constitutional text associates the rule of law primarily with
the administration, entitling chapter 9 Le statut juridique de ladministration: la pri-

COMPLEXIFYING RONCARRELIS RULE OF LAW 737

Put otherwise, on a prevalent scholarly view, judges uphold the rule of
law; it does not hold them. Thus the paradigmatic vindication of the rule
of law seems to be judges quashing of administrative action or invalidat-
ing a law on constitutional grounds. The scholarly focus on Roncarelli as
elucidating the relationship between the judiciary and the executive, and
not also, in virtue of article 88, that between the judiciary and the legisla-
ture, exemplifies this understanding. It hints that people read the judg-
ment tendentiouslydisposed to faith in judges and skepticism in the ex-
ecutive and legislaturerather than to enlarge or inform their under-
standing of the rule of law. While all reading is to some extent partial, the
significance here is that such partiality occludes a relevant and important
dimension of the judiciary: the sense that courts are themselves a power
subjected to the rule of law, of which procedural rules are an instrument.70

The rule of law, in other words, is not just a principle that, in a vari-
ety of ways, is enforced by courts. It controls the operation of courts them-
selves.71 Indeed, it can be said that for courts to follow enacted procedural
or substantive rules respecte la primaut du droit dans la mesure o la
loi est lexpression premire du droit.72 Conceptions of the rule of law
must make space for judges who, sensing legitimate limits on their role as
hero figure,73 reluctantly view themselves as constrained by legislation
and articulate reasons for that view. This principle does not resolve a pri-
ori the interpretive questions raised by legislation establishing the con-
tours of judicial power. But it underscores the appropriateness of regard-
ing a judges finding himself constrained by legislation on his best inter-
pretation of it, as did Justice Fauteux, as an instance of upholding the
rule of law.74

maut du droit: Henri Brun, Guy Tremblay & Eugnie Brouillet, Droit constitutionnel,
5th ed. (Cowansville, Qc.: Yvon Blais, 2008).

70 Contrast the sense occasionally discernible in administrative law by which strict en-
forcement of procedural rules is a paradigmatic instance of upholding the rule of law:
Costello and Dickhoff v. Calgary (City of), [1983] 1 S.C.R. 14, 143 D.L.R. (3d) 385.

71 Murray Gleeson, Courts and the Rule of Law in Cheryl Saunders & Katherine Le

Roy, eds., The Rule of Law (Sydney: Federation Press, 2003) 178 at 188.

72 Brun, Tremblay & Brouillet, supra note 69 at 688. For courts, maintaining the rule of
law includ[es] in particular the conscientious interpretation and (to the extent possible)
impartial application of the law: Jeremy Webber, Democratic Decision Making as the
First Principle of Contemporary Constitutionalism in Bauman & Kahana, supra note
57, 411 at 414.

73 Duncan Kennedy, Three Globalizations of Law and Legal Thought: 1850-2000 in
David M. Trubek & Alvaro Santos, eds., The New Law and Economic Development: A
Critical Appraisal (New York: Cambridge University Press, 2006) 19 at 65.

74 Scholars impatience with the idea that a legislated procedural rule might impede a
judge from awarding damages in Roncarelli may evoke Jeremy Waldrons recent con-
cern about the hostility to legislation characteristic of many contemporary discussions
of the rule of law: Jeremy Waldron, Legislation and the Rule of Law (2007) 1 Legis-

738 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

If the preceding two paragraphs imply sympathy for Justice Fauteuxs
dissent, it is important to return to the standpoint of those who applaud
Justice Rands judgment, and only louder once they appreciate the extent
to which his dismissive treatment of article 88 reflected an advised, if un-
spoken, choice favouring the plaintiff. The scholarly failure to recognize
Justice Rands treatment of article 88 as a crucial part of his upholding
the rule of law invites further comment. One explanation as to why the
majoritys discussion of article 88 has escaped celebration as a rule of law
moment is less glib than it seems: in those passages, the judges did not
use the talismanic phrase rule of law.75 It is ironic that scholars cele-
brate Justice Rands judgment as an instance of common law or unwritten
constitutionalism,76 itself a practice of the implicit, while fastening on his
explicit discussion of the rule of law in one passage of the judgment at
the expense of his acting in another to uphold it, though not using those
words. The point passes beyond glibness if taken as a hint that rule of law
scholars might have approached the judgment with an unduly restrictive
sense of the objects of interest to them.
Recognizing Justice Rands disposition of article 88 as an instance of
upholding the rule of law requires not only awareness of the provisions
history, but also expansion of the class of rule of law conduct. In his lec-
ture on Roncarelli, Dyzenhaus suggests the utility of conceiving of a con-
tinuum of situations of constitutional review, beginning at one end with
judicial review of administrative decisions, and ending at the other with
judicial invalidations of legislation for infringement of an entrenched con-
stitutional norm.77 The procedural issue in the judgment and its relative
neglect by rule of law scholars indicate that such a continuum must begin
still lower and more unremarkably. It should encompass judicial activity

prudence 91. The suggestion is not that Rand J. showed hostility to legislation. It is that
contemporary scholars, accustomed to championing the common law constitution, ap-
pear to bristle at the thought that legislated strictures should impede the realization of
what they perceive as the rule of laws entailments.

75 The English translation in the D.L.R. refutes the uncharitable hypothesis that scholars
working in English have neglected article 88 because Taschereau and Fauteux JJ. dis-
sented in French.

76 Dyzenhaus, Deep Structure, supra note 2; David Dyzenhaus, Rands Legal Republi-
canism (2010) 55 McGill L.J. 491; David Mullan, The Role for Underlying Constitu-
tional Principles in a Bill of Rights World (2004) N.Z.L. Rev. 9; David J. Mullan, Un-
derlying Constitutional Principles: The Legacy of Justice Rand (Rand Lecture, Univer-
sity of New Brunswick) [on file with author].

77 Dyzenhaus, Deep Structure, supra note 2 at 142. See also Aileen Kavanagh, Defer-
ence or Defiance? The Limits of the Judicial Role in Constitutional Adjudication in
Grant Huscroft, ed., Expounding the Constitution: Essays in Constitutional Theory
(Cambridge: Cambridge University Press, 2008) 184. While aware that courts have
ways of deferring to the elected branches short of striking down (ibid. at 213),
Kavanagh restricts her discussion of judicial deference and defiance to constitutional
adjudication (ibid. at 185).

COMPLEXIFYING RONCARRELIS RULE OF LAW 739

that, while not formally or explicitly a quashing or invalidation, neverthe-
less represents an exercise of authority in what is effectively a review of
state action. The continuum of constitutional review suitably includes
creative or innovative interpretation of a procedural or substantive rule in
order to avoid gross injustice in litigation opposing a citizen to the state or
its representative.78 Of course, any such interpretation should be fully jus-
tified in a way that takes into account the potential harm of seeming to
override the legislatures clear intent. Admittedly, bringing into view such
instances of rule of law action is laborious. Identifying them requires not
only literacy in public law, but also detailed knowledge of procedure or
substance in areas in which citizens sue the state. Still, the explicitness of
Justice Fauteuxs reasons makes Roncarelli a relatively easy case with
which to begin.

Perhaps such an extension of the continuum of constitutional review
suffices to correct what this paper posits to be an incomplete telling of the
rule of law story in Roncarelli. It is also possible, howeverand here
space constraints allow only casual speculationthat the readings of this
judgment exemplify a larger scholarly habit. Might not the readings of
Roncarelli, which code pronouncements about the rule of law as much
more important than brusque dismissal of a technicality, reflect a ten-
dency to distill the multilayered resolution of litigation into philosophical
propositions? Might not the effort to conscript a judicial text into the ser-
vice of a transnationalCommonwealth or globalcommon law constitu-
tion or rule of law project tend to efface the jurisdiction-specific, local
law?79 It may be from such a deracinated, universalistic stance that article
88 would matter so little.

78 In more recent work, Dyzenhaus supports this idea. See his discussion of judges inter-
pretation of legislation in the light of human rights as amounting to strong or weak ju-
dicial review, depending on the societys human rights culture: David Dyzenhaus, Are
Legislatures Good at Morality? Or Better at it than the Courts? (2009) 7 Intl J. Const.
L. 46 at 48-49. In the contemporary Canadian context, this new space on the continuum
might accommodate the Supreme Court of Canadas elaboration of robust interpreta-
tions of laws challenged under the Canadian Charter (supra note 67) before concluding
that, correctly interpreted, they are valid: Canadian Foundation for Children, Youth
and the Law v. Canada (A.G.), 2004 SCC 4, [2004] 1 S.C.R. 76, 234 D.L.R. (4th) 257;
Montral (City of) v. 29521366 Qubec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, 258
D.L.R. (4th) 595; A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC
30, [2009] 2 S.C.R. 181, 309 D.L.R. (4th) 581. Whether one approves the practice or
notarguably it shields constitutionally dubious laws from democratically salutary
parliamentary debateit is a relevant element of constitutional review. Compare Hu-
man Rights Act 1998, supra note 66, s. 3; Alec Samuels, Human Rights Act 1998 Sec-
tion 3: A New Dimension to Statutory Interpretation? (2008) 29 Stat. L. Rev. 130.

79 It may be from such a universal vantage that the precedents of the Quebec Court of Ap-
peal seem parochial and irrelevant. Yet, in significant ways, the conflicting reasons in
Roncarelli exemplified different views as to the sources relevant to construing Quebecs
rules of civil procedure, continuing the struggle over the autonomy of Quebec law, in-

740 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

This papers thrust is not that the judgments philosophical resonance
is insignificant. It is, rather, that the enterprise of reading Roncarelli as a
philosophical text on the rule of law cannot credibly be segregated from
that of reading it as the resolution of a claim in a particular legal context,
one including procedural rules. This is the best lesson to draw from the
contention that Justice Rands cursory disposition of the procedural ques-
tion constitutes a core parta performative, if not a fully verbalized one
of his reasons meaning for the rule of law. In short, scanting the techni-
calities impoverishes not only the legal understanding of the judgment,
but also the philosophical grasp. Indeed, Roncarelli and the similar cases
surrounding it show so-called technicalities to have constituted a crucial
site for rule of law contestation during Quebecs persecution of Jehovahs
Witnesses.80 In the present day, similarly, the interpretation of procedural
rules has proven critical in efforts to sanction abuses of public power by
means of novel claims in civil liability.81 The unsatisfactoriness of the pre-
vailing readings of Roncarelli gestures toward the perils, in our own day,
of overlooking the technicalities,82 the construal of which may entwine in-
extricably with legal philosophy.

Conclusion
This paper invites scholars to reread Roncarelli v. Duplessis, armed

with a greater awareness of the weight of argument and authority on the
defendants side of the procedural question. A judgment largely flattened
by scholars to a lopsided match between judges upholding the rule of law

cluding public law, from English influence. McWhinney (supra note 62 at 507) read
Fauteux J.s dissent as resting on the basis of deference to provincial courts interpreta-
tion of a provincial statute, a posture akin to Justice Felix Frankfurters emphasis, in
American constitutional jurisprudence, on federal courts duty to defer to state courts
interpretations of state statutes. The ostensibly distinct character of Quebecs codified
procedural law remains a live issue. In Lac dAmiante du Qubec Lte v. 2858-0702
Qubec Inc., 2001 SCC 51, [2001] 2 S.C.R. 743 at para. 35, 204 D.L.R. (4th) 331, LeBel
J. held, The rules of Quebec civil procedure, which originate from widely differing
sources, make up a Code of Civil Procedure. As such, they are part of a legal tradition
that is different from the common law.

80 Chaput, supra note 26; Lamb, supra note 44.
81 Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1990), 74 O.R. (2d)
225, 72 D.L.R. (4th) 580 (Div. Ct.), leave to appeal refused (1991), 1 O.R. (3d) 416 (C.A.);
Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, 233 D.L.R. (4th) 193
[Odhavji]. Both were motions to strike negligence claims against the police under the
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 21.01(1)(b). The phrase rule of law
appears nowhere in the former; in the latter, it appears just once, within a quotation
(Odhavji, supra at para. 26).

82 Annelise Riles, A New Agenda for the Cultural Study of Law: Taking on the Techni-
calities (2005) 53 Buff. L. Rev. 973. For a rich recent case study, see Louise Merrett,
Costs as Damages (2009) 125 Law Q. Rev. 468 (a call not to dismiss orders for costs as
mere technicalities).

COMPLEXIFYING RONCARRELIS RULE OF LAW 741

and ones too craven to sanction executive abuse is, in fact, more richly
textured. Roncarelli warrants space in student casebooks, and on lawyers
reading lists, not simply as a case standing for courts responsibility to
hold the executive to the rule of law, but rather as exemplifying the trou-
blesome complexity83 of that ideals competing demands, ones that may
lead to understandings of the judgment that are less triumphal and more
ambivalent.

83 Peter Read Teachout, The Soul of the Fugue: An Essay on Reading Fuller (1986) 70

Minn. L. Rev. 1073 at 1143.

Witnessing Arbitrariness: Roncarelli v. Duplessis Fifty Years On in this issue

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