McGill Law Journal ~ Revue de droit de McGill
The Legacy of Roncarelli v. Duplessis
19592009
Genevive Cartier*
* Faculty of Law, University of Sherbrooke. The texts making up this thematic volume of
the McGill Law Journal refer to this introduction for the presentation of the facts of
Roncarelli and for the summary of the decisions.
Citation: (2010) 55 McGill L.J. 375 ~ Rfrence : (2010) 55 R.D. McGill 375
Genevive Cartier 2010
376 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Introduction: Highlighting a Fiftieth Anniversary
I.
The Facts, the Proceedings, the Judgments: A Multi-Layered Saga
A. Victory in the Superior Court
B. Setback in the Court of Queens Bench
C. The Supreme Court and Justice Rand
II. Appraising a Legacy
A. Methodological and Epistemological Challenges
1. Reconstitution: The Relationship to the Time and Context
2. Rereading: Contemporaneous Theories Which Shed Light on Its
Relevance
B. Twofold Contrast: Between Simplicity and ComplexityBetween
Theory and Practice
1. The Illusion of Simplicity
2. An Unfinished Mission
C. The Pre-Eminence of Justice Rands Opinion
Conclusion: A Discussion to Be Continued
THE LEGACY OF RONCARELLI V. DUPLESSIS 377
Introduction: Highlighting a Fiftieth Anniversary
On 27 January 1959, the Supreme Court of Canada handed down its
decision in Roncarelli v. Duplessis.1 That decision, and more specifically
the opinion of Justice Ivan Rand, left a profound mark on Canadian public
law. In constitutional law, it is associated with the emergence of the rule
of law, as a constitutional principle that effectively constrains government
action without an explicit formal legislative or constitutional provision,
and with the idea of the common law Bill of Rights. In administrative law,
it is systematically invoked in support of the principle that there is no
such thing as untrammelled discretionary authority and to assert that a
person with public authority cannot refuse to exercise it. On another level,
it is equated with the victory of a certain English common law constitu-
tionalism, typical of the style of Justice Rand.
These statements reflect the general meaning and scope of Roncarelli
today. However, based on the premise that there is still more to be said on
this decision and that it could lead to new avenues, fourteen scholars met
at the end of the summer in 2009 as part of the symposium entitled
Lhritage de laffaire Roncarelli v. Duplessis19592009The Legacy
of Roncarelli v. Duplessis.2 On the fiftieth anniversary of the judgment,
the participants attempted to dispel a few myths, unearth certain arte-
facts, and rediscover the familiar. The texts making up this special issue
are the fruit of that symposium.
The purpose of this introduction is twofold. First, to facilitate the au-
thors task and avoid duplication, the introduction will outline the facts of
the case and provide a sketch of the legal opinions it spawned (Part I).
Second, it will present a brief summary of the contributors articles, out-
lining some of the themes discussed at the symposium (Part II).
1 [1959] S.C.R. 121, 16 D.L.R. (2d) 689 [Roncarelli (S.C.C.) cited to S.C.R.].
2 In fact, the decision has been the subject of very few doctrinal articles over the past fifty
years. See e.g. E.C.S. Wade, Case and Comment [1951] 29 Can. Bar. Rev. 665 [Wade,
Case and Comment]; Benjamin J. Greenberg, Case and Comment [1956-1957] 3
McGill L.J. 82; Edward McWhinney, Case and Comment on Roncarelli v. Duplessis
[1959] 37 Can. Bar. Rev. 503; Claude-Armand Sheppard, Roncarelli v. Duplessis: Art.
1053 C.C. Revolutionized [1960] 6 McGill L.J. 76 [Sheppard, Roncarelli], an article
which the editor-in-chief of the Law Journal had the excellent idea of reproducing in
this issue; Luc Hupp, Une immunit de poursuite civile pour les ministres (1998) 32
R.J.T. 333 [Hupp, Immunit]; David J. Mullan, Unwritten Constitutional Princi-
ples: The Legacy of Justice Rand (The Ivan C. Rand Memorial Lecture delivered at the
Faculty of Law, University of New Brunswick, 2002) [unpublished]; and David Dyzen-
haus, The Deep Structure of Roncarelli v. Duplessis [2004] 53 U.N.B.L.J. 111.
378 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
I. The Facts, the Proceedings, the Judgments: A Multi-Layered Saga
In the fall of 1946, Frank Roncarelli was the proprietor of a reputable
Montreal restaurant. Like his father before him, Roncarelli held a liquor
licence issued by the Quebec Liquor Commission (the Commission) and,
for almost thirty-five years, the licence for this family business was re-
newed every year without interruption.
A citizen with an unremarkable background, Roncarelli was a member
of the Jehovahs Witnesses. For some years this religious sect had been
causing considerable anxiety to Quebecs government and ecclesiastical
authorities. The Jehovahs Witnesses were offensively proselytizing and
harshly attacking Catholicism, which was the religion of a majority of
Quebeckers, going so far as to cause riots in certain cities in the province.3
At the peak of the crisis, in 1945 and 1946, in an attempt to limit the
impact of the Jehovahs Witnesses activities, the City of Montreal began
zealously applying a by-law that required a licence to canvas house to
house and to distribute publications.4 The Witnesses, believing that such
a by-law infringed their freedom of religion, refused to comply. Arrested
by the dozens, they were released pending their trial thanks to Roncarelli,
who provided bail in the form of a written undertaking.5 Over two years,
more than 400 members of the Jehovahs Witnesses benefited from his
good will. Most of the members who were released returned to their prose-
3 The visceral reaction of the political and religious authorities to the propaganda of the
Jehovahs Witnesses can admittedly be explained by the methods used by its adherents
(house to house canvassing, distribution of printed matter in the streets, etc.) as well as
by the Jehovist doctrine itself, which advocates that a true religion should not hinder
the direct relation adepts may have with God and thereby denounces the resolutely hi-
erarchical nature of the Catholic religion. The impact was all the stronger given the
close proximity of Church and State at the time and explains to a great extent the accu-
sations of sedition brought against adherents, and in particular in R. v. Boucher, [1951]
S.C.R. 265, 2 D.L.R. 369 [Boucher]. For an overview of the situation at the time, see Mi-
chel Sarra-Bournet, Laffaire Roncarelli Duplessis contre les Tmoins de Jhovah, coll.
Edmond-de-Nevers No. 5 (Quebec: Institut qubcois de recherche sur la culture, 1986)
at 41ff. [Sarra-Bournet, Roncarelli]. See also Thomas R. Berger, Fragile Freedoms
Human Rights and Dissent in Canada (Toronto: Clarke, Irwin, 1981) at. 161-184, in
French under Thomas R. Berger, Libert fragile Droits de la personne et dissidence au
Canada, trans. by Marie-Ccile Brasseur, Cahiers du Qubec, Collection Science
politique (Ville de La Salle: Hurtubise HMH, 1985) at 171-191.
4 During the 1930s, Quebec City had passed a similar by-law to limit the activities of Je-
hovahs Witnesses by setting up restrictive conditions for the distribution of their publi-
cations. That by-law was struck down in Saumur v. City of Quebec, [1953] 2 S.C.R. 299,
4 D.L.R. 641.
5 In his testimony, Roncarelli explained that the security he gave was in the form of a
written and signed undertaking, not a payment of cash. Under an agreement with the
legal authorities, Roncarelli signed a few in advance, to avoid having to go to Court or
be in town whenever security was needed. The agreement seemed to help the authori-
ties out of a quandary, as not everyone who was arrested could be imprisoned.
THE LEGACY OF RONCARELLI V. DUPLESSIS 379
lytizing, but they were arrested again and released on bail, creating a cy-
cle that congested the courts and took the police away from their other
duties. Faced with overloaded court rolls, the authorities decided to de-
mand higher bail, in cash. As a result, Roncarelli stopped giving security
on 17 November 1946.
A few days later, the Jehovahs Witnesses began an extensive cam-
paign in Quebec to distribute a blasting pamphlet, Quebec’s Burning Hate
for God, Christ, and Freedom Is the Shame of all Canada, which de-
nounced their persecution by the Catholics and attributed responsibility
for it to the domination of the priests.6 This campaign stood out so much
from the sects usual activities with its extreme virulence and its incendi-
ary effect on the province that, on 21 November 1946 during a press con-
ference, Premier Maurice Duplessis sent a solemn warning to the Jeho-
vahs Witnesses. Having read Quebecs Burning Hate, he said he found
certain parts of it intolerable and indeed seditious and that as a result
he was instructing the Deputy Attorney General to take all necessary
steps to discover the guilty parties and not to hesitate to use any means
necessary to put an end to these unacceptable practices.7
It was during this hunt for offenders that the Commissions General
Manager douard Archambault learned that Roncarelli had a liquor li-
cence.8 Archambault contacted Duplessis to inform him of his plan to can-
cel Roncarellis licence, pursuant to the power delegated to the Commis-
sion under the Alcoholic Liquor Act to cancel any permit at its discre-
tion.9 Archambault said that he had obtained Duplessiss consent, ap-
proval, permission and order to proceed.10 Duplessis testified that it was
his duty, in all conscience, to tell [Archambault] that … the Government
of Quebec could not grant a privilege to an individual such as Roncarelli
with his attitude; that he approved the general managers suggestion;
that he told Archambault, Youre right, take away the licence, take away
6 Sarra-Bournet, Roncarelli, supra note 3 at 39. Shortly thereafter, one Aim Boucher
was charged with seditious libel under the Criminal Code for having distributed copies
of the pamphlet: Boucher, supra note 3.
7 Extracts which appeared in LAction catholique and Le Devoir, November 21 and 22,
1946 respectively, quoted in Sarra-Bournet, ibid., at 40 [translated by the author].
8 The information came from Oscar Gagnon, the senior Crown prosecutor, who had heard
that Roncarelli was associated with the distribution of the pamphlet, because hundreds
of copies of it had been seized in a building belonging to him. When he learned that
Roncarelli had a liquor licence, Gagnon contacted Archambault.
9 S.R.Q. 1941, ch. 255, s. 35.
10 Roncarelli v. Duplessis (1951), [1952] 1 D.L.R. 680 at 690 [Roncarelli (Sup. Ct.)] [em-
phasis in original, translated by author].
380 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
the privilege; and that, in approving a suggestion in this manner as his
superior, we always give an order.11
Archambault therefore officially cancelled the licence and immediately
sent inspectors to seize the alcohol in Roncarellis restaurant without noti-
fying Roncarelli about what was being done or informing him what he
was accused of. The restaurant owner was shocked. The same day, Mau-
rice Duplessis addressed the press as follows:
On November 21st, in a statement made to the parliamentary corre-
spondents, I reiterated the firm intention of the government of Que-
bec to take the most thorough and effective measures against those
who, under the name of Witnesses of Jehovah, are spreading repre-
hensible propaganda and distributing circulars which, in my opin-
ion, are not only injurious to the Province of Quebec and its popula-
tion but, in our opinion, are clearly seditious. […]
A certain Frank Roncarelli gave security for the Witnesses of Jeho-
vah in several hundred cases. The sympathy this man shows to-
wards Witnesses of Jehovahin such a clear, repeated and auda-
cious mannerconstitutes a provocation of public order, of the ad-
ministration of justice in the province and is absolutely contrary to
the ends of justice. […]
Today, that same Mr. Roncarelli is identifying with the harmful and
odious propaganda of the Witnesses of Jehovah. Accordingly, as At-
torney General and Premier, I have issued an order to cancel the li-
cence granted by the Liquor Commission to the restaurant operated
by that man at 1429 Crescent Street in Montreal.
Communists, Nazis and all those who are promoting the seditious
campaign of the Witnesses of Jehovah will receive their just due.
Under the government of the Union nationale, there is not and can-
not be any compromise with these people.12
Roncarelli reacted strongly. He asked A.L. Stein to represent him and en-
couraged him to approach Frank R. Scott, a prominent professor of law at
McGill University and ardent defender of civil freedoms.13
During the following months, Roncarelli had to overcome several ob-
stacles to be able to put forward his rights. By section 12 of the Alcoholic
Liquor Act, the right to personally sue the manager of the Commission
for acts … done or omitted in the exercise of his duties required the au-
11 Ibid. at 691-92 [translated by author].
12 LAction catholique, December 4, 1946 at 9; Le Canada, December 5, 1946 at 14; Le De-
voir, December 4, 1946 at 3, extracts cited in Sarra-Bournet, Roncarelli, supra note 3 at
44-5 [translated by author].
13 Sandra Djwa wrote a biography about him: A Life of F.R. Scott: The Politics of the
Imagination (Toronto: McClelland and Stewart, 1987), in French under F.R. Scott
Une vie, trans. by Florence Bernard (Montreal: Boral, 2001) [Djwa, F.R. Scott]. See
also Roderick A. Macdonald, Francis Reginald Scott 1899 1985 [1985] 30 McGill L.J.
635.
THE LEGACY OF RONCARELLI V. DUPLESSIS 381
thorization of the Chief Justice of the province. Justice Ltourneau denied
that authorization in a decision dated 5 February 1947.14 As that provi-
sion required, Roncarelli then asked for the consent of the Attorney Gen-
eral to sue the Commission itself. Duplessis, who held that position at the
time, never answered him directly; he publicly announced his refusal at a
press conference on 7 February 1947.15 In the same breath, he reiterated
his conviction that his action was fully justified, adding, The permit was
cancelled not temporarily but definitely and for always.16 In the end,
Roncarellis attorneys decided to sue Duplessis personally: did A.V. Dicey
not teach that, according to the rule of law, everyone is equal before the
law? But time was running out: not only was the action prescribed by six
months,17 Duplessis also had to be given thirty days notice before pro-
ceeding, according to article 88 of the Code of Civil Procedure, which re-
quired that notice be given in order to sue a public officer for damages by
reason of any act done by him in the exercise of his functions. On 3 June
1947, without having been able to comply with article 88, Roncarelli sued
Maurice Duplessis personally for the illegal cancellation of his liquor li-
cence. Thirteen years later, the Supreme Court of Canada proved him
right.
14 Roncarelli v. Archambault, [1947] B.R. 105. In his decision, the judge states at 107 that
the provision in question is for the case where the manager of the Liquor Commission,
abusing his functions, acting in bad faith, for perverse reasons or otherwise, personally
incurs civil liability under art. 1053 or 1054 C.C. [translated by author]. However, he
says, the applicants motion does not mention anything in this regard [translated by
author]. In fact, nothing is indicated which could involve the personal liability of Judge
douard Archambault as the allegations only relate to actions which the said man-
ager allegedly carried out in the performance of his duties, but not actions which could
engage or lead to his personal liability [translated by author]. Michel Sarra-Bournet
reports that a new application was dismissed the following April 17: Sarra-Bournet,
Roncarelli, supra note 3 at 49. In this regard, the work by Sandra Djwa contains an er-
ror. The author suggests that the application for permission to sue was submitted to
Judge Archambault, the former manager of the Commission, since promoted to the po-
sition of Chief Justice of the province: Djwa, F.R. Scott, ibid. at 428. In fact, Archam-
bault was never appointed to that position, but to that of chief justice of the Court of the
Sessions of the Peace. See in particular Roncarelli (Sup. Ct.), supra note 10 at 689.
15 The Deputy Attorney General, douard Asselin, held on February 6, 1947 that the ac-
tion of the Commission was in accordance with the powers which the law gave it and, as
it was administrative, it did not fall under the jurisdiction of the Superior Court.:
Sarra-Bournet, Roncarelli, supra note 3 at 49.
16 LAction catholique, February 8, 1947 at 3, cited in ibid.
17 Under section 5 of An Act for the Protection of Justices of the Peace, R.S.Q. 1941, c. 18:
No … action [in damages] or suit shall be brought against any justice of the peace, offi-
cer or any other person [fulfilling any public duty], for anything done by him in the per-
formance of his public duty, unless commenced within six months after the act commit-
ted. To benefit from protection under the law, section 7 adds, the officer must be in
good faith although he has exceeded his powers or jurisdiction, and has acted clearly
contrary to law.
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After the Court handed down its decision in 1959, fifteen judges across
three levels of courts had decided on this case and no fewer than twelve of
them had written their own opinion.18 Nonetheless, the Roncarelli case
would quickly become almost exclusively associated with the opinion of
Justice Rand. There are many reasons that would explain the prominence
of his opinion and the following contributions in this special issue suggest
some very interesting ones. However, we will see that the exhumation of
the other opinions expressed in this matter not only leads to a more in-
depth and nuanced analysis of Justice Rands decision, but also sheds new
light on the socio-political context of the case, the procedural challenges
that marked it, the complexity of the relationships between public and
private law, and the emergence of a particular approach to constitutional-
ism.
A. Victory in the Superior Court
Roncarelli won in the Superior Court. Justice McKinnon concluded
from the analysis of the evidence that Duplessis did in fact give Mr. Ar-
chambault an order to cancel Roncarellis liquor licence and that order
was the determining factor in the decision made by Archambault.19 The
judge said that one certainly could not blame Duplessis for having consid-
ered the Quebecs Burning Hate pamphlet as being seditious and for hav-
ing attempted to limit its distribution, but he noted that Duplessis could
not target Roncarelli to indirectly reach the religious movement as a
whole.20 Furthermore, he added, after a close examination of the relevant
legislative texts,21 no formal source authorized Duplessis to become in-
volved in the process surrounding the granting or cancellation of liquor li-
cences. As for the Commission, it acted arbitrarily when it cancelled the
licence for a reason foreign to the liquor licence rules (the fact that Ron-
carelli belonged to the Jehovahs Witnesses and his role as bondsman for
those who shared his religious beliefs) and disregarded the rules of rea-
son and justice.22 The judge added that, given the principles of English
law according to which acts done in their official character but in excess
of their lawful authority23 engage the liability of their authors, Duplessis
18 Of all the judges who wrote an opinion for this case, only Supreme Court justices
Judson and Locke, who concurred with the opinions of their colleagues Rand and Mart-
land respectively, did not provide their own reasons, whereas Chief Justice Kerwin,
who also concurred with Martland, made a few brief comments.
19 Roncarelli (Sup. Ct.), supra note 10 at 692.
20 Ibid. at 682.
21 Ibid. at 697-9.
22 Roncarelli (Sup. Ct.), supra note 10 at 695. Here the judge is paraphrasing Lord Hals-
bury in Sharp v. Wakefield [1891] A.C. 173 at 179, cited in Roncarelli (Sup. Ct.) at 694.
23 Ibid. at 696.
THE LEGACY OF RONCARELLI V. DUPLESSIS 383
had to answer for his actions as a private citizen. Lastly, Justice
Mackinnon held that Duplessis could not argue the absence of the notice
prescribed by article 88 C.C.P. because that article applies when an officer
is acting in the exercise of his functions not, as in this case, on the occa-
sion of them.24
B. Setback in the Court of Queens Bench
The Court of Queens Bench quashed the Superior Court decision by
four judges to one, essentially on a different interpretation of the evidence
submitted. Justices Bissonnette, Pratte, Casey, and Martineau found that
the Commission had already made the decision to cancel the licence when
it consulted Duplessis25 and as a result there was no causal link between
the latters action and the Commissions decision, which was fatal to the
outcome of the action. Whereas Justice Pratte limited himself to this con-
clusion, his colleagues Justices Bissonnette, Martineau, and Casey pur-
sued the discussion with an analysis of whether the Commissions deci-
sion was well founded.
Justices Bissonnette and Martineau held that, to find that Duplessis
had committed a fault, it first had to be shown that the Commission itself
exercised its discretion maliciously or without legal or statutory authority
and then, according to Martineau, that Duplessis was in bad faith.26 In
this case, Duplessiss good faith was not in doubt, they said, nor was the
legality of the Commissions decision. For Justice Bissonnette, the Com-
mission is an essentially commercial business and permit holders are its
serviteurs. It was therefore at liberty to decide to cancel the permit and a
court could not examine the basis for it.27 In this case, the judge added,
the Commission manager, if he believed that the plaintiffs actions were
subversive and constituted wrongdoing which his authority could sup-
press, had the ability, and furthermore the duty, to intervene.28 For Jus-
tice Martineau, the liquor business is legal but not free, a permit is a
privilege, and the Commission had almost unlimited discretion to cancel
it, which discretion was only restrained by good faith.29 In this case, Du-
plessis had conducted himself reasonably in view of the standards of a
typical, normal man, of the place and time when the action was taken.30
24 Ibid. at 700.
25 Duplessis v. Roncarelli, [1956] B.R. 447 [Roncarelli (Q.B.)] at 455 (Bissonnette J.); at
466 (Pratte J.); and at 485 (Martineau J.).
26 Ibid. at 456-7 (Bissonnette J.) and at 482 (Martineau J.).
27 Ibid. at 457.
28 Ibid. at 458 [translated by author].
29 Ibid. at 482 [translated by author].
30 Ibid. at 491 [translated by author].
384 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
In the context of December 1946, Roncarellis attitude constituted a
provocation which removed any element of fault from the order to cancel
the plaintiffs licence.31 Justice Casey held that the Commission had to
exercise its discretion in accordance with what [it] believes to be the pub-
lic interest and welfare.32 Accordingly, if the Commission had reasonable
grounds for believing that the Witnesses were engaged in a campaign of
sedition, as an active member of the sect, Roncarelli became undeserving
of the privilege.33 The Commission therefore had a duty to cancel the
permit and, by ordering the Commission to do so, Duplessis was merely
encouraging it to fulfil its duty, and he could not be considered to have
done anything wrong.34
In dissent, Justice Rinfret did not see any error which would justify
questioning the Superior Courts interpretation of the facts: the cancella-
tion of the permit was in fact the result of the order from Duplessis.35 No
legislative provision gave Duplessis a right to oversee the Commission.36
As for the Commission, by acting according to the orders of a third party,
it committed an illegality because the holder of discretionary power must
exercise it himself.37 The judge acknowledged that these considerations al-
lowed him to dispose of the case, but he went on.
First, he wrote, whereas the discretion to grant, deny or renew a per-
mit is absolute, as no tangible right is at issue, the discretion to cancel a
permit during its validity period is not unlimited. In such a case, there is
certainly some right […] no matter how small and random it may be,
which may only be impaired for reasons relating to the law that grants
the discretionary authority, and in accordance with the principles that
must guide its exercise38: compliance with the objectives for which the au-
thority was delegated, based on confirmed facts and after allowing the
person to defend himself against the accusations brought against him,
and examination of relevant considerations.39 Second, to be able to re-
spond to a movement which he might legitimately believe to be seditious,
Duplessis had to limit himself to the means made available to him by the
31 Ibid. at 490 [translated by author]. Martineau J. revisits the notion of provocation, cit-
ing further on Mazeaud who says that, in his opinion there is no causal link between
the fault and the damage when it was caused by the victims act: ibid. at 492 [trans-
lated by author].
32 Ibid. at 470 [emphasis added].
33 Ibid. at 471.
34 Ibid. at 475.
35 Ibid. at 502-3.
36 Ibid. at 506.
37 Ibid. at 507, citing General Medical Council v. Spackman [1943] A.C. 627 at 641.
38 Ibid. at 508 [translated by author].
39 Ibid. at 507.
THE LEGACY OF RONCARELLI V. DUPLESSIS 385
law and the statutes.40 Instead, he used another means of repression
which the law does not allow.41 In addition, if he had verified the facts,
Duplessis would have seen that nothing linked Roncarelli to the alleged
sedition and Duplessis also could not justify his action by claiming that it
was part of the broader campaign to suppress the activities of the Jeho-
vahs Witnesses. For Justice Rinfret, to hit one person against whom
nothing tangible is established in order to reach another42 further un-
dermines the legitimacy of the action taken by Duplessis.
C. The Supreme Court and Justice Rand
Justice Martland, with whom Justices Kerwin and Locke concurred,
believed that the cancellation of the permit resulted from an order by Du-
plessis, who was not acting on the basis of any legal justification: nothing
in the law authorized him to act, and his position as Attorney General
alone did not give him the freedom to use any method he chooses; that,
on suspicion of participation in what he thinks would be an offence, he
may sentence a citizen to economic ruin without trial.43 Justice Martland
held that this question was to be determined according to law, not on the
basis of good faith or the public officers personal appreciation of his func-
tions.44 Nothing allowed Duplessis to believe that he was authorized to
deprive the plaintiff of his permit. He was therefore not acting in the ex-
ercise of his functions when he did so and he could not require the notice
prescribed by article 88 C.C.P.
Furthermore, the judge added, the Commissions statutory authority
to cancel a permit at its discretion assumes the existence of a relationship
between the reasons given for acting and the intent and purpose of the
Act,45 and must be exercised without submitting it to a third party.46 Ron-
carellis association with the Jehovahs Witnesses and his furnishing of
bail for several members of that sect were entirely lawful and had no rela-
tionship to the intent and purposes of the Act. The evidence indicates that
the Commission acted under Duplessis orders. The judge concluded that
40 Ibid. at 511 [translated by author].
41 Ibid. at 512 [translated by author].
42 Ibid. at 515 [translated by author].
43 Roncarelli (S.C.C.), supra note 1 at 155 [emphasis added]. As Sandra Djwa reports, Du-
plessis attorney clearly indicated during the hearing before the Court that Duplessis
goal was to harm Roncarelli financially. See Djwa, F.R. Scott, supra note 13 at 436.
44 Roncarelli (S.C.C.), at 158.
45 Ibid. at 156.
46 Ibid. at 157.
386 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Duplessis had intentionally inflicted damage, in the absence of lawful jus-
tification, and therefore he was liable for the commission of a fault.47
Justice Abbott shared this reading of the evidence, the reasons for the
cancellation and the lack of a relationship between those reasons and the
intent and purposes of the Act.48 At any rate, the judge added, Duplessis
was given no power under the act to intervene in the decisions of the
Commission, an independent body. His conviction that he was acting in
what he conceived to be the best interests of the people had no relevance
to the issue of his responsibility in damages for any acts done in excess of
his legal authority:49 the respondent was acting without any legal au-
thority whatsoever. Moreover, he was bound to know that he was act-
ing without such authority.50 This element also meant that Duplessis
could not benefit from the notice requirement under article 88 C.C.P.51
As for Justice Fauteux, he based his entire dissent on article 88, al-
though he indicated that, were it not for that provision, he would have de-
cided in favour of Roncarelli. Although, he said, it cannot be doubted that
Duplessis and the manager of the Commission were in good faith, the
manager abdicated his authority to decide and Duplessis, as Premier and
Attorney General, assumed a right which the Liquor Act virtually de-
nied him; he committed an unlawful act52 which entitles Roncarelli to re-
dress.
However, article 88 C.C.P. settles the issue: a prohibitive provision
which, if not complied with, leads to nullity under the Civil Code, limits
the courts jurisdiction, as the absence of notice prevents any verdict or
judgement from being rendered.53 The issue of whether the act allegedly
done by Duplessis was in the exercise of his functions must be answered
from the standpoint that article 88 gives special procedural treatment to
public officers and its application assumes that the officer committed an
illegal act, regardless whether in good or bad faith.54 In this case, whereas
Duplessis committed an illegal act, his good faith was not an issue and he
committed the illegal act due to his function.55 He should therefore benefit
from the protection under article 88 C.C.P.
47 Ibid. at 159.
48 Ibid. at 184.
49 Ibid. at 185.
50 Ibid.
51 Ibid. at 186.
52 Ibid. at 175 [translated by author].
53 Ibid. at 176.
54 Ibid. at 178.
55 Ibid. at 181.
THE LEGACY OF RONCARELLI V. DUPLESSIS 387
The dissenting opinion of Justice Taschereau was based on similar ar-
guments: since Archambault consulted Duplessis as Attorney General,
not in personal capacity, and even if Duplessis was acting on an erroneous
conception of his public duty, his action was nonetheless official and done
in the exercise of his functions.56
Also dissenting, Justice Cartwright stated that Duplessis was only li-
able for damages if the cancellation of the permit was an actionable
wrong57 which, he said, was not the case. The evidence shows that Du-
plessis honestly believed that he was fulfilling his duty by ordering the
cancellation of the permit of an individual who was using the advantages
of a privilege to undermine existing laws. Once it is found that this opin-
ion was honestly entertained, the Court cannot inquire as to whether
there was sufficient evidence to warrant its formation or as to whether it
constituted a reasonable ground for cancellation of the permit.58 The Leg-
islature had given the Commission absolute discretion untrammelled by
any rules, thereby delegating an administrative function. The holder of
this type of function is a law unto itself.59 The judge concluded that there
was therefore no remedy for the damages suffered as the cancellation of
the permit stemmed from an act of the Commission authorized by law. As
the act of the Commission did not constitute a wrong, it followed that Du-
plessis could not be answerable in damages for directing or approving the
doing of that act. It was therefore unnecessary to consider the argument
based on article 88 C.C.P.60
Justice Rand61 noted that Roncarelli became involved in this matter as
a private citizen, an adherent of a religious group, holding a liquor licence
and furnishing bail in connection with proceedings related to municipal
infractions. By ordering the Commission to cancel Roncarellis permit,
Justice Rand wrote, Duplessis wanted not only to bring a halt to the
propaganda campaign of the Jehovahs Witnesses, but also to punish Ron-
carelli for the part he had played and to warn other holders of privileges.62
The question he posed summarized his reading of the events: when the
de facto power of the Executive over its appointees at will to such a statu-
tory public function is exercised deliberately and intentionally to destroy
56 Ibid. at 130.
57 Ibid. at 164.
58 Ibid.
59 Ibid. at 167.
60 Ibid. at 170.
61 Judson J. concurred with the opinion of Rand J.
62 Roncarelli (S.C.C.), supra note 1 at 133.
388 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
the vital business interests of a citizen, is there legal redress by him
against the person so acting?63
Justice Rand noted that as the number of activities requiring a permit
grows, the economic life of the holder becomes progressively more deeply
implicated with the privilege while at the same time his vocation becomes
correspondingly dependent on it.64 The Commission is thus a public ser-
vice which must manage permits with complete impartiality and integ-
rity, which implies that the discretion of the Commission to deny or cancel
a permit is to be based upon a weighing of considerations pertinent to the
object of the administration.65
In one of the emblematic passages from his decision, the judge states:
In public regulation of this sort there is no such thing as absolute
and untrammelled discretion, that is that action can be taken on
any ground or for any reason that can be suggested to the mind of
the administrator; no legislative Act can, without express language,
be taken to contemplate an unlimited arbitrary power exercisable for
any purpose, however capricious or irrelevant, regardless of the na-
ture or purpose of the statute. Fraud and corruption in the Commis-
sion may not be mentioned in such statutes but they are always im-
plied as exceptions. Discretion necessarily implies good faith in dis-
charging public duty; there is always a perspective within which a
statute is intended to operate; and any clear departure from its lines
or objects is just as objectionable as fraud or corruption. Could an
applicant be refused a permit because he had been born in another
province, or because of the colour of his hair? The ordinary language
of the legislature cannot be so distorted.
To deny or revoke a permit because a citizen exercises an unchal-
lengeable right totally irrelevant to the sale of liquor in a restaurant
is equally beyond the scope of the discretion conferred. There was
here not only revocation of the existing permit but a declaration of a
future, definitive disqualification of the appellant to obtain one: it
was to be forever. This purports to divest his citizenship status of
its incident of membership in the class of those of the public to whom
such a privilege could be extended. Under the statutory language
here, that is not competent to the Commission and a fortiori to the
government or the respondent […W]hat could be more malicious
than to punish this licensee for having done what he had an absolute
right to do in a matter utterly irrelevant to the Liquor Act? Malice in
the proper sense is simply acting for a reason and purpose know-
ingly foreign to the administration, to which was added here the
63 Ibid. at 137.
64 This is what made Rand J. say further on that the Commission breached Roncarellis
right to a privilege: having a permit creates in its holder an interest which generates,
on the part of the Commission, a duty to avoid any unauthorized interference: ibid. at
143.
65 Ibid. at 140.
THE LEGACY OF RONCARELLI V. DUPLESSIS 389
element of intentional punishment by what was virtually vocation
outlawry.66
Further on he added:
[G]ood faith … means carrying out the statute according to its in-
tent and for its purpose; it means good faith in acting with a rational
appreciation of that intent and purpose and not with an improper in-
tent and for an alien purpose; it does not mean for the purposes of
punishing a person for exercising an unchallengeable right; it does
not mean arbitrarily and illegally attempting to divest a citizen of an
incident of his civil status.67
Whatever may be the immunity of the Commission, the judge said,
Duplessis had none: he intervened without authorization in the functions
of the Commission and committed a fault engaging his liability.68 In the
context of expanding administrative regulation of economic activities, he
added, that an administration according to law is to be superseded by ac-
tion dictated by and according to the arbitrary likes, dislikes and irrele-
vant purposes of public officers acting beyond their duty, would signalize
the beginning of disintegration of the rule of law as a fundamental postu-
late of our constitutional structure.69
II. Appraising a Legacy
The circumstances that led to the Roncarelli affair form a backdrop
that is indivisible from the issues it raised. A profoundly Catholic Quebec
in the 1940s was led by a premier whose concept of power was essentially
based on the legitimacy of any action designed to preserve the culture and
distinctiveness of the French Canadian nation, using audacious means at
times, often bordering on disdain for public institutions.70 It was also the
beginning of the welfare state, and the adjusting of the relationship be-
tween political and executive powers. And finally, the years 1945 and
1946 saw a series of confrontations between the public authorities (mu-
nicipal and provincial) and the Jehovahs Witnesses, whose proselytizing
sparked the anger of the religious majority.
While the circumstances we have just described explain the origin of
the dispute between Roncarelli and Duplessis, the Supreme Court judge-
66 Ibid. at 140-1.
67 Ibid. at 143.
68 Ibid. at 141-2.
69 Ibid. at 142.
70 The issue of Duplessis legacy and his association with the period described as the
Grande Noirceur [literally, Great Darkness] has been the subject of many studies. We
note, among several, the following collective work: Alain-G. Gagnon and Michel Sarra-
Bournet (dir.), Duplessis: entre la grande noirceur et la socit librale (Montral : di-
tions Qubec/Amrique, 1997).
390 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
ment, which left its mark as a precedent, is also a product of its time. The
composition of the Court, and in particular the presence of Justice Ivan
Rand, and the new issues it had to deal with in the aftermath of the Sec-
ond World War, constitute the breeding ground for new ideas or simply a
place for expressing old ones in a new way.
The maturing of this decision over the ensuing decades nonetheless
saw prolonged periods of lethargy. The fruits it produced also did not nec-
essarily resemble those which, the day after the decision was handed
down by the Supreme Court, Claude-Armand Sheppard predicted in an
article published in the McGill Law Journal.71 In fact, the decision may
seem to be the precursor (together with decisions of the time associated
with the emergence of the common law Bill of Rights) of a constitutional-
ism which would only take root several years later and, perhaps paradoxi-
cally, after the adoption of the Canadian Charter of Rights and Free-
doms.72
The impulse that led to the holding of the symposium was based both
on previous work and our teaching experience, and more specifically the
difficulty of untangling the various opinions, claims and conclusions of
Roncarelli. It seemed to us that, far from being a mere historical oddity,73
Roncarelli could help resolve the legal challenges of today, or at least lead
to a better understanding of them. We will briefly examine how the con-
tributions of the participants confirmed the relevance of this exercise. We
will present a brief synopsis of their work, grouping them more or less
freely within three broad themes which retained our attention during our
group discussions.
A. Methodological and Epistemological Challenges
The issue of the appropriate method for examining a precedent, along
with that of whether it is possible to identify what was actually decided,
are not specific to Roncarelli: the methodological and epistemological chal-
lenges related to knowledge of the jurisprudence are among the main
concerns of interpretation theories. However, the effect of the five decades
separating us from the judgement was to put these issues at the forefront
of discussions at the symposium: can we claim to determine what Ron-
carelli actually decided in 1959? If so, how should we proceed? If not, can
the decision have different meanings depending on the person reading it?
71 Sheppard, Roncarelli, supra note 3.
72 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
73 Yves-Marie Morissette, Rtrospective et prospective sur le contentieux administratif
[2008-2009] 39 R.D.U.S. 1 at 5, indicating that Roncarelli is now more of a historical
oddity [translated by author].
THE LEGACY OF RONCARELLI V. DUPLESSIS 391
More generally, what relationship can we or should we have with this de-
cision fifty years later? As was to be expected, neither the texts nor the
discussions provided firm answers to these questions, but we note that
certain contributions place particular emphasis on the reconstitution of
the decision, whereas others insist on a re-reading of it. These two per-
spectives are not completely foreign as, while giving variable importance
to them, they both take seriously the idea that the decision is not built en-
tirely by the person interpreting it; the facts from which it arose are im-
portant.
1. Reconstitution: The Relationship to the Time and Context
A better understanding of the socio-historic context allows us to recon-
stitute the decision and better understand what it may have expressed at
the time it was rendered. Along these lines, Macdonald argues that such
a contextual analysis allows for a more nuanced interpretation of Ron-
carelli than that put forward by the predominant discourse. First, he
looks at the socio-demographic and ideological background of the three
levels of judges who rendered a decision in this matter, and the impact of
language, religion and geography on the outcome. This analysis suggests
that the split between the majority and minority judges cannot be ex-
plained simply, as a dichotomy representing the first as defenders of the
rule of law and the second as conceding the existence of an arbitrary po-
litical sphere untouchable by the law. The many influences and the back-
grounds of the judges in this case and the analysis of the decisions they
rendered suggest that the foundations of their decisions are more complex
than it may appear.
Second, Macdonald submits that the arguments put forward by Du-
plessis in 1946 were supported by plausible social, political and legal theo-
ries and that a close examination of those theories indicates that they
could just as well have constituted the basis for the Supreme Courts find-
ing. In other words, based on the theoretical foundations relied on by Du-
plessis, the Court might have asked whether he had breached a fiduciary
duty to administer the law according to its purposes and for the benefit of
the entire population covered by the rules, and conclude in the affirma-
tive. However, such a finding would not have been due to the weakness of
the theories raised, but to the factual context which made Duplessis
wrong. For Macdonald, the lack of interest shown by commentators to
Duplessis arguments radicalized the reading of the decision, by associat-
ing Duplessis with a morally and legally indefensible position. In addition,
by abstracting the decision from its time and place, commentators have
ascribed conclusions to it which the context did not support.
Along the same lines, Adams also stresses the fact that precedents
find meaning when viewed in their lived contexts. He suggests reconsti-
392 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
tuting these contexts, more specifically to demonstrate that the meaning
and scope which have been ascribed to Roncarelli result from a complex
construction process, further to which the decision became, for a time at
least, a judgement about fundamental rights. Not only was the decision
rendered at the time of the birth of a constitutional culture of rights, Ad-
ams explains, but the division of the Court in the matter and the difficulty
of identifying its rationale encouraged a reading of the decision which only
retained aspects relating to the constitutionality of the rights and to citi-
zenship, themes intensely debated in Canada at the time. By removing
the issue of civil liability, which was nonetheless the core issue of the
case, from the interpretative landscape and resorting to the rule of law to
justify the limitations on the authority of the States executive branch, the
processes of construction of meaning, as well as mutual influences among
lawyers, scholars, citizens and others, propelled the culture of rights and
sanctified Justice Rands stature in the Canadian imagination. But Ad-
ams rightly notes that this construction is not static, and that a similar
process could certainly explain why the decision does not have the same
allure today.
McKee demonstrates how fundamental the dichotomy between the
public and private spheres is in Roncarelli. In his opinion, by stating the
principle that any exercise of public power, including discretionary
power, has its limits, Justice Rand relied on a concept of the public/private
distinction characteristic of nineteenth century economic and political lib-
eralism and classical legal thought. McKee points out the many manifes-
tations of the public/private duality in Roncarelli such as, for example,
Duplessis insistence on characterizing the licence as a privilege, exposing
it to public authority. Inversely, Justice Rand refuses to approach the
question from the right/privilege standpoint, insisting instead on Ron-
carellis business interests and the economic consequences of cancellation,
relegating them to a private sphere which the State cannot legitimately
pierce. According to McKee, this approach overlooks the fact that the de-
fining of the contours of one sphere necessarily affects the other and that,
by limiting protection to the exercise of public authority, Roncarelli leaves
private authority untouched. Thus, the prestige of Roncarelli, in conjunc-
tion with its determination to limit arbitrariness in the exercise of public
authority, must also be seen as confirmation of a private sphere, which
judicial authority cannot easily control.
2. Rereading: Contemporaneous Theories Which Shed Light on Its
Relevance
Does the full meaning of an older text only emerge progressively, as it
is interpreted in new and different contexts? Does the normative meaning
of the decision continue to reveal itself as we reflect on what it evokes?
How ideas were expressed in the past is important. In this regard, Mac-
THE LEGACY OF RONCARELLI V. DUPLESSIS 393
donald, Adams and McKee have greatly contributed to our understanding,
by putting what the decision had tried to express into its social, historical
and political context. But the contributions to the symposium also showed
the interest of legal theories that have developed over the past fifty years.
Thus, certain theories not well developed at the time of the Supreme
Court decision can now elicit a new understanding of it.
In this sense, Dyzenhaus asserts that decisions such as Roncarelli
live on due to their ability to shed new light on the situation today. He
suggests that an article written by Rand in 1960 along with his opinion in
Roncarelli set out the main elements of a republican legal theory. The re-
publican theory postulates that individual freedom is defined by non-
domination or mastery of other individuals or the state, as opposed to the
liberal view of freedom, associated with the idea of liberty as a lack of in-
terference. More specifically, Dyzenhaus submits that the writings of Jus-
tice Rand help us understand why the best interpretation of common law
constitutionalism consists of seeing it as a doctrine which protects free-
dom in the republican sense of non-domination. By using the law as an
instrument of domination, i.e. as a means of submitting Roncarelli to his
will, Duplessis acted without regard to the issue of what would serve Ron-
carellis interests. The authority of law is the public expression of our
right to govern ourselves and, accordingly, our right, as legal subjects, not
to be submitted to the arbitrary rule of men, but only to laws which serve
our interest without domination.
Fox-Decent asserts that the vision of public law underlying Justice
Rands opinion affects how we think about the legality of administrative
action and the ongoing debate over common law constitutionalism. Justice
Rand affirms that public authorities are under a legal obligation to use
their discretion non-arbitrarily, an obligation which stems from the rule of
law, to which Rand ascribes unwritten constitutional status. The chal-
lenge is to explain how frontline decision-makers vested with discretion-
ary authority which the statutory law does not expressly limit are subject
to a legal obligation to exercise unqualified discretion on limited grounds.
To acknowledge that the elimination of the arbitrary is a value or even a
duty in common law does not necessarily make it a legal obligation which
is exercised without express language to that effect. How to bridge the gap
between value and legal obligation? In the opinion of Fox-Decent, that is
possible as part of a relational and democratic approach to public law,
which is exactly what the reasons of Justice Rand express in Roncarelli.
This concept is relational to the extent that public actors and individuals
subject to their power stand in a fiduciary relationship, which excludes re-
lationships of domination and instrumentalization. And it is the fiduciary
nature of these relationships which produces the legal obligation not to
act arbitrarily. This conception of public law is also democratic in that its
articulation takes seriously into account the actual features of fiduciary
394 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
relationships, as they are lived by the actors. For Fox-Decent, such a the-
ory provides solid foundation and a deep structure for Justice Rands vi-
sion of public law in Roncarelli and the place he reserves for discretion
within legality.
Lewans seeks to identify Justice Rands sources of inspiration in the
formulation of the distinctive brand of constitutionalism that marks his
decision. He explains that Justice Rands conception of citizenship helps
explain the normative character of his constitutional model, and that his
views about citizenship were shaped by his exposure to American law.
More specifically, Lewans shows that Justice Rand sought to instil in Ca-
nadian law the principles of equality and non-discrimination provided
through the privileges and immunities clause of the Fourteenth
Amendment, but which were given short shrift by a majority of the Su-
preme Court of the United States. Lewans suggests that the strong dis-
senting opinions of the American Court shaped Justice Rands thinking.
While noting the complex nature of citizenship and its many aspects,
Lewans suggests that the negative and positive aspects of the principle of
equality are especially important for Rand, who combines social and eco-
nomic rights, translated for example as a concern that citizens have ac-
cess to the privileges of citizenship, such as liquor licences, without dis-
crimination (the positive aspect) with the right to non-interference by the
State in individual freedoms, including freedom of religion (the negative
aspect). Lewans admits that Justice Rands record is less impressive in
immigration matters, where his concept of citizenship seems highly ques-
tionable, but he notes that Justice Rand must be understood in light of
the context and ideas of his time. And because the context is important,
its evolution allowed decisions such as Baker v. Canada74 to draw on the
opinion of Justice Rand in Roncarelli to give new life to his characteristic
concept of constitutionalism.
Walters suggests that there are two conceptual sides to the legality
coin: legality as reason and legality as order. The first approach seeks to
describe the particular conditions in which governance occurs through
law: the rules and conditions law must meet to constitute a system of
rules. The second looks mainly to how the rule of law is instantiated
through a form of justificatory interpretation aimed at consistency, coher-
ence or equality of reason: a dynamic process of reasoned justification.
Walters suggests firstly a reading of Rands position as combining not
only the two conceptual aspects of the rule of law but also their doctrinal
interpretation, so that Rand makes our sense of constitutionalism rich
and valued in practice. He also submits that Dicey, understood through
certain passages of unpublished writings, including his personal corre-
spondence, may not be that far from the conceptual view of the rule of law
74 [1999] 2 S.C.R. 817, 174 DLR (4th) 193.
THE LEGACY OF RONCARELLI V. DUPLESSIS 395
proposed by Rand, although the two are traditionally presented as incar-
nating antagonistic positions on the issue.
B. Twofold Contrast: Between Simplicity and ComplexityBetween Theory
and Practice
At the very beginning of this text, we outlined the broad principles
with which the Roncarelli decision is traditionally associated. Nonethe-
less, the symposium participants quickly pointed out the great complexity
of this case, noting the contrast it sets up between its apparent simplicity
and the clarity of the principles ascribed to it (1). In a similar perspective,
some have drawn an at best mitigated description of the impact of the les-
sons from Roncarelli: the peremptory tone in which Justice Rand deliv-
ered them contrasts with the hesitations of the courts to put them into
practice. Thus, legal control is still absent from many areas where discre-
tionary authority is found, and the prevention of arbitrariness is slow to
take root as a concern of legal institutions themselves (2).
1. The Illusion of Simplicity
The complexity of the case is clear in more than one respect: the con-
voluted procedures to which Roncarelli had to resort to be given the right
to sue;75 the facts, fiercely contested; the essentially private nature of the
recourse and the public position of the defendant as well as the legal
framework in which several of the arguments were presented; the impor-
tance given by the judges to the analysis of the Commissions decision,
whereas the action was against Duplessis; the number, scope and style of
the opinions written by the judges who heard the case, at all levels. In
short, Roncarelli is a kaleidoscope, which Mullan, Aronson and Ber-
natchez clearly note.
In a thorough and nuanced analysis, Mullan broaches what may be
the most intriguing aspect of Roncarelli. The case was presented in the
form of a civil liability action and, the day after the decision, Sheppard
said that in his opinion, the Courts position on the notion of fault was the
key to the decision in that it revolutionized the state of the law on the is-
sue.76 However, this aspect of the decision was rarely discussed after-
wards.77 Through his analysis, which brings to mind the play of influences
between the common law and civil law, among other things, Mullan at-
tempts to decipher the various opinions of the Court to understand what
it actually decided on the issue of the basis for a finding against Du-
plessis. At the same time, Mullan demonstrates the difficulty of reconcil-
75 See in this regard our recital of the facts of the case in Part II.
76 Sheppard, Roncarelli, supra note 3 at 92ff.
77 See, however, Hupp, Immunit, supra note 2.
396 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
ing the opinions of the judges at the three levels, but asserts that a major-
ity of the Supreme Court judges believed that mere illegality was enough
to give rise to fault. Mullan also shows how this rule was subsequently
changed to require proof of the decision-makers bad faith. His analysis il-
lustrates the challenge represented by an overall understanding of the de-
cision and points out that, on the merits, the judges at the time were
mostly favourable to a broad concept of the liability of public decision-
makers, from which contemporary law tends to distance itself.
Aronson presents an Australian perspective of Roncarelli through an
analysis of the scope of the rule of law principle and the conditions for
holding public authorities liable. He begins by noting that Australian
judges would have been very reticent to use the rule of law as such to de-
nounce Duplessis attitude. Australian law does not recognize any direct
normative bite to this principle, which is invoked in an essentially rhe-
torical manner by judges who mostly conceive of their role according to a
legalistic approach. Furthermore, not only did the statutory law at the
time give significant legal protection to permit holders; a string of prece-
dents also established limits to the exercise of discretionary power, sev-
eral of which could have served as a foundation for a favourable conclu-
sion to Roncarelli. In addition, Aronson notes that, from an Australian
perspective, the most surprising aspect of Roncarelli lies in the order that
the Premier pay damages, based on the rule of law and liability rules
which are distinguished from those that apply to private law, whereas
Australia fails to make such a distinction. Following a close examination
of Canadian and Australian jurisprudential trends, Aronson notes that
Canadian law seems to be heading towards an open-textured concept of
morally blameworthy public behaviour, whereas Australian law seems to
want to limit itself to penalizing the abuse of public power, in minimalist
terms intended to maintain the private view of the liability of public au-
thorities.
In a slightly different perspective, Bernatchez suggests that recourse
to the unwritten constitutional principle of the rule of law marks the be-
ginning of a movement which he describes as reflexive proceduralization
of the devices of democratic governance. This movement expresses on the
one hand the fact that the principles (such as the rule of law) can lead to a
questioning of the rules of a legal system, and changes to them, where ap-
plicable. Secondly, as these principles are often associated with institu-
tional devices encouraging the participation of those involved (such as the
right to be heard), they participate in the construction of the meaning of
the standards to which they are subject. Furthermore, Bernatchez argues
that Roncarelli can be seen as the starting point of the bifurcation of
administrative law toward the logic of rights and freedoms. Through an
analysis of the Supreme Court jurisprudence on the issue of the concepts
of minimal impairment and reasonable accommodation, he draws our at-
THE LEGACY OF RONCARELLI V. DUPLESSIS 397
tention to the complexity of the relationship between constitutional law
and administrative law, and the corresponding difficulty of identifying
which direction to take when the two fields seem to lend themselves to
settling a dispute. Bernatchezs contribution leads to broader questions:
how to distinguish constitutional law from administrative law? And espe-
cially, why distinguish them?
2. An Unfinished Mission
Sossin and Liston propose a measurement of the distance between the
theory set out in Roncarelli and the resulting practice. Both measure the
work that remains.
For Sossin, the statement by Justice Rand according to which there is
no such thing as untrammelled discretionary power within the executive
is the most significant legacy of Roncarelli and at the same time emblem-
atic of the rule of law. In his opinion, however, that legacy is threatened
by a questionable judicial interpretation of the doctrine of justiciability,
which isolates from judicial review important spheres of executive discre-
tion. Sossin submits that the jurisprudence respecting justiciability
should be reassessed in view of the principle of the rule of law, in order to
reaffirm that no particular type of discretion is free from judicial review.
Furthermore, justiciability should not be conceived based on an all or
nothing approach, but on that of the spectrum, which already governs
the degree of intervention to be exercised for judicial review. In Sossins
opinion, this type of review is a necessary bulwark against arbitrary deci-
sion-making, but it is not sufficient to fulfil Roncarellis promise: respect
for the rule of law must come from within. Internal, executive-driven ini-
tiatives related to training, education, mentorship, and supervision must
therefore be developed to promote a rule of law culture among executive
decision-makers. The full realization of the promises from Roncarelli de-
pends on it.
Liston endeavours to define the notion of arbitrariness which, al-
though it constitutes the central idea in Roncarelli, is not explicitly articu-
lated in the decision. Liston discusses three dimensions of arbitrariness
(normative, functional and sociological), which she applies to the analysis
of the decision. Although Duplessis had demonstrated normative arbi-
trariness by ignoring the rule of law, Liston notes that, from a functional
perspective, the law or its institutional failings constitute the harm: the
overly broad delegation of discretion, the lack of institutional independ-
ence, the failure to give reasons, the denial of access to justice, etc. Liston
then focuses on a surprising aspect of the case: the various manifesta-
tions of judicial arbitrariness. She notes in this regard the weak reasons
supporting the opinions of certain judges, the fact that issues were not
discussed, the confusion caused by the many obiters, etc. Liston concludes
398 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
that the notion of arbitrariness, as it stems from Roncarelli, still has a
positive effect on the consolidation of Canadian public law. She notes,
however, the importance of re-reading the decision to draw out its under-
acknowledged aspects, to avoid reducing what it fully represents. She also
states that the task of eliminating arbitrariness is far from over, as wit-
nessed by the legal and political relations with Aboriginal peoples and the
failure to protect their rights. The legacy of Roncarelli is profound, she
says, but, like Sossin, she hastens to add that the work is not yet fully re-
alized.
C. The Pre-Eminence of Justice Rands Opinion
We suggested earlier that the Roncarelli affair quickly became
Judge Rands opinion. How can this be explained? Several of the texts
making up this work note the solidity of his arguments as well as the
strength of his rhetoric, but the predominance of the Rand judgement
may have something to do with his propensity for abstraction: he is able
to extract the essence of the case and place it in a higher and broader set
of principles, facilitating their subsequent application or discussion.
What effect has this predominance had? The reduction of the analysis
of the Roncarelli case to Justice Rands opinion has had two main effects.
First, it has relegated to the background considerations which wrongly
appeared as secondary or technical, as shown by Leckey. Also, paradoxi-
cally, it has deprived this decision of a source of contrasts which could give
it even greater weight and value. This is what Dyzenhaus showed in re-
sponse to Leckeys arguments.
Leckey asserts that the accepted reading of Roncarelli requires revi-
sion, as it reduces the case to a simplistic duality between the judges who
were the rule of laws champions, and the others, narrow-minded and
formalist, who disposed of the case based on article 88 C.C.P. Through a
careful analysis, Leckey dissects the opinion of Justice Fauteux and sub-
mits that his approach is just as compatible with the rule of law as that
adopted by Justice Rand. Leckey points out the solidity of the arguments
made by Justice Fauteux and his particular perspective as a civil law
judge in interpreting such a provision. According to Leckey, the disagree-
ments surrounding the interpretation to be given to this article therefore
constitute a debate internal to the rule of law, which requires proponents
of Rands position to explain how the rule of law brought them, under the
circumstances, to give to a clear legislative provision an interpretation
which strays from that suggested by both its wording and Quebec juris-
prudence. The result is a reading of the decision much more in-depth than
that traditionally given to it by scholars.
While Leckeys work places the Rand opinion in a more fair perspec-
tive, it also gives Rand supporters an opportunity to respond to the objec-
THE LEGACY OF RONCARELLI V. DUPLESSIS 399
tions. Thus, Dyzenhaus agrees with Leckey on the structure of the argu-
ment, but considers that, on the merits, the rule of law states that in ab-
sence of clear words, a legislative provision cannot be construed as pro-
tecting public decision-makers from the consequences of their actions
committed in bad faith, arbitrarily or out of a spirit of vengeance.
Conclusion: A Discussion to Be Continued
The themes raised in Roncarelli are of fundamental importance for
any political society that adheres to the ideal of a constitutional state and
that questions the respective legitimate roles of the legislator, the execu-
tive and the courts. They broach the founding principles of our public law:
the issue of the nature and scope of the limitations which could control
public powers in order to preserve individual freedom, and the extent to
which public authorities may have to compensate the damage they cause.
These issues are not only recurring, they are above all current. At the
time of Roncarelli, the creation of the welfare state and its repercussions
on individuals required a revisiting of the legal principles developed for a
police state. Today, the concerns are twofold: not only is the welfare state
keeping its place (despite speeches calling for a reduction of its size), but
the challenges typically associated with a police state are resurfacing in
the aftermath of the events of September 11, 2001. Thus, concerns related
to national security frequently translate into the use of discretionary au-
thority by the upper echelons of government (such as security certificates)
and they encourage us to return to the sources of our public law and the
teachings of Roncarelli: will they allow us to face these challenges?
***
There comes a time when the mind prefers that which confirms what
it knows to that which denies it, when it prefers answers rather than
questions. This is when the conservative instinct dominates and spiritual
growth ceases.78 Far from drawing up a final report on the legacy of the
Roncarelli affair, our work has allowed us, fifty years later, to take stock
of its depth, complexity and relevance. The debate is therefore still open, a
matter of stamping out the conservative instinct in favour of enriching
the mind.
78 G. Bachelard, La formation de lesprit scientifique (Paris : Librairie philosophique Vrin,
2004) at 17 [translated by author].
