THE MeGILL
LAW JOURNAL
VOLUME 6
1960
NUMBER 2
RONCARELLI v. DUPLESSIS -1 ART. 1053 C.C.
REVOLUTIONIZED
Claude-Armand Sheppard*
I. THE FACTS.
How it began. Late diners are finishing their lunch at Frank Roncarelli’s
fashionable caf6 on Crescent -Street,. in Montreal. It is almost two o’clock
in the afternoon of this fourth day of December, 1946. Suddenly, the comfort-
able hum in the room turns to consternation as burly constables of the Quebec
Liquor Police erupt and proceed to the seizure and removal of all the liquor
they can find. Then, they vanish.
The same day, in Quebec City, Maurice Lenoblet Duplessis, lawyer, Attorney-
General and Prime Minister of the Province of Quebec, convokes a press
conference. He is quoted the next day by all leading French and English
Montreal dailies as revealing he had ordered the Quebec Liquor Commission
to cancel Roncarelli’s liquor licence because of the restauranteur’s support of
the Witnesses of Jehovah in Quebec, and particularly his “audacious” and
“provocative” practice of posting hundreds of property bonds for the release
of Witnesses arrested while distributing religious tracts.
During the next few weeks, the Prime Minister reiterates to newspapermen
that the cancellation was his doing and that it was designed to strike a blow,
through Roncarelli, at the Witnesses of Jehovah, whose activities he considers
seditious and not less nefarious than those of Communists and Nazis.
Roncarelli, whose high-class restaurant cannot endure without serving liquor
and wine at meals, has thus received a mortal blow –
it shuts
and attempts to sue in damages the manager of the Quebec
after six months –
Liquor Commission, Edouard Archambault. But permission to sue, as required
indeed,
*Of the Bar of Montreal.
1[1959] S.C.R. 121, also reported at (1959), 16 D.L.R. (2d) 689; commented on by
(1959)., 37 Can. Bar Rev. 503: [1956] Q.B. 447; comment
Edward McWhinney in
by Benjamin J. Greenberg in (1957), 3 McGill LJ. 82; [1952] 1 D.L.R. 680 (Superior
Court); comment by E.C.S. Wade in (1951), 29 Can. Bar Rev. 665.
McGILL LAW JOURNAL
[Vol. 6
by section 12 of the Alcoholic Liquor Act,2 is refused on rather flimsy grounds,
by Chief Justice S6v6rin LUtourneau.3 Roncarelli’s attorneys, Stein & Stein,
then seek to sue the Quebec Liquor Commission itself, and since section 12
of the Alcoholic Liquor Act 4 also requires the consent of the Attorney-General
to any action against the Commission, they petition Duplessis for leave to sue.
Not unexpectedly, the Attorney-General refuses. He tells a press conference,
held on February 7, 1947, of his refusal and that Roncarelli’s licence has been
revoked, not temporarily, but “forever”. After learning of this refusal through
the newspapers, Roncarelli’s attorneys –
now assisted by John Ahem and
F. R. Scott as counsel –
again petition the Chief Justice for permission to sue
the
Archambault personnally. The Chief Justice is adamant, and rejects
petition. 5
Thwarted in their attempt to prosecute the Commission or its manager,
Roncarelli’s attorneys, in a fateful move, institute action against Maurice
the amount of
Lenoblet Duplessis personnally
$118,741.00.
recover damages
in
to
Thus began the notorious “Roncarelli case” which, for twelve years, crept
through our courts before being finally disposed of by the Supreme Court
in a controversial, puzzling and divided judgment rendered on January 27,
1959.6
The reason for the cancellation. Since the avowed reason for the can-
publicly acknowledged, never denied nor doubted – was Ronca-
cellation –
is
relli’s active support of the Witnesses of Jehovah
in Quebec,
it
2R.S.Q. 1941, c. 255, s. 12: “No one appointed under this act as manager of the
Quebec Liquor Commission may be sued, for acts done or omitted to be done by him
in the exercise of the duties vested in him under this act, except by the government of
the authorization of the Chief Justice of the Province or,
this Province, or with
if he be prevented from granting such authorization, by the senior judge of the Court
of Appeal”.
3Roncarelli v. Archambault, [1947] K.B. 105.
4R.S.Q. 1941, c. 255, s. 12, second paragraph: “The Commission itself may be sued
only with the consent of the Attorney-General”.
5Court of Kings Bench No. 176 (M). April 30, 1947, Unreported. In the course
of his judgment, Mr. Justice Bissonnette, of the Court of Queen’s Bench, as an oblter
dictum reported in [1956] Q.B. 447 at p. 456, expresses considerable doubt on
the
constitutionality of section 12: “En passant, je d6sire souligner que je doute fort de la
constitutionalit6 de cette disposition qui exige l’autorisation au pr~alable du Juge en
Chef, pour pouvoir intenter une action d~lictuelle. Je ne sache pas, qu’il soit permis
de commettre un d~lit et que sa rpression soit laiss~e A l’arbitraire ou i la discretion
d’une personne, si haute son autorit6 soit-elle, quand, de fait, celle-ci n’est pas l’6nanation
de l’autorit6 d’un tribunal. Aussi, peut-Etre que par une diligente initiative, le demandeur
aurait pu quand mime poursuivre le g6rant Archambault et soulever, A l’encontre de
. l’action, l’inconstitutionalit6 ou
toute exception pr6judicielle qu’on aurait pu opposer
l’inapplication de la loi qu’on lui opposait.”
611959] S.C.R. 121; (1959), 16 D.L.R. (2d) 689. Comment by Edward McWhinney
in (1959), 37 Can. Bar Rev. 503.
No. 21
RONCARELLI v. DUPLESSIS
important to determine the nature and extent of his participation
movement.
in that
The sect was not welcome. It made uncompromising attacks on
the
Roman Catholic Church and on the institutions of
the Province. The
authorities, rightly confident that they enjoyed the approval of the Roman
Catholic majority in taking measures against the Witnesses, were not always
too scrupulous about the methods used to try and extirpate them. A number
of unequivocal decisions of the courts were necessary to remind the authorities
of their duties.7
The sect began its aggressive campaign to convert Quebec sometime in 1945.
Its indefatiguable adherents distributed tracts, books and Bibles; held services
in homes and organized public lectures. There were disturbances and riots.
Meetings were broken-up. Witnesses were mistreated, beaten, thrown out
of town or even, in one case, out of the Province.
The Witnesses considered that under the Quebec Freedom of Worship Act8
and under the Charter of the City of Montreal, they were ministers of the
Gospel and had the right to distribute their literature and visit homes without
municipal licence. Montreal civic authorities obviously did not think so and
proceeded systematically to arrest and re-arrest hundreds of Witnesses on the
ground they were violating City by-laws numbers 270,9 164310 and 1693,”
by peddling and distributing circulars without licence and “interfering” with
pedestrian traffic. The maximum fine for each such violation was $40.00 and
costs, or sixty days of imprisonment.
7Lamb v. Benoit, (1959), 17 D.L.R. (2d) 369; Comment by Edward McWhinney in
(1959), 37 C.B.R. 503; Chabot v. Les Commissaires d’Ecoles de la Morandire, [1957]
Q.B. 707; Comment by Donald Johnston and Marvin B. Gameroff in (1958), 4 McGill
L.J. 268; Chaput v. Romain, [1955] S.C.R. 834; Comment by Lawrence Capelovitch in
(1956), 2 McGill L.J. 128; Peeron v. School Trustees of the Municipality of Rouyn,
[1955] Q.B. 841; Comment by John Ciaccia in (1955), 2 McGill L.J. 42; Saumur v.
City of Quebec, [1953] 2 S.C.R. 299;
[1953] 4 D.L.R. 641; Comment by Fred
Kaufman in (1953), 1 McGill L.J. 233; Boucher v. R. [1951] S.C.R. 265;
[1951]
2 D.L.R. 369; (1951), 11 C.R. 85; 99 C.C.C. 1; [1949] K.B. 238.
sR.S.Q. 1941, c. 307.
9S. 18: “It is forbidden to carry or distribute any posters, advertisements, prospectuses,
circulars or papers in, near or on the streets, alleys, sidewalks and public places
of the City.
Nevertheless, the Executive Committee of the City, on recommendation from the
Director of the Police Department, may, at its discretion, allow, by resolution, the
carrying or distribution of such placards, advertisements, prospectuses, circulars or
papers in, near or upon the streets, lanes, sidewalks and public places of
the City,
on conditions which it shall deem it advisable
that nothing
in the above-mentioned objects be of a Commercial nature or against good order,
morals, the religious, racial, political or social convictions of certain classes of society
or of such a nature as to provoke gatherings, rioting, or to spread subversive ideas or
disturb the peace and, in case of the distribution of such, this be entirely gratis.”
to impose, providing
IOArt. 5 (s. 13 k). Now by-law number 1862
1″Art. 5 (al. 17). Now included in by-law numbei 1413.
(s. 12 j).
McGILL LAW JOURNAL
[Vol. 6
times
in 1944, 105
in
times
1945 and 244
Roncarelli was a devout Witness and, although not directly involved in
proselytizing, he supplied property bonds to release the arrested “ministers”.
times
He did so 41
in 1946, a total of 390 times. These bonds were accepted by the City’s
attorneys and by the officials of the Recorder’s Court.1 2 There was an agreement
between the lawyers for the City and the Province on the one hand, and the
defence on the other, to proceed first with a few test cases. The result was
a considerable accumulation of undecided cases. On or about November 4, 1946,
it was decided that property bonds were no longer acceptable, and from
then on, Roncarelli ceased to post bail at all. It must be noted that in all of the
cases where he stood bail, the complaints were either dismissed or withdrawn.
They all involved alleged violations of City by-laws. None were for sedition.
This, according to the evidence accepted by all three Courts, is the extent
to which Roncarelli was “participating” in the activities of the Witnesses of
the Prime Minister proclaimed as
Jehovah. This is the conduct which
“audacious” and “a provocation -to public order, to the administration of
. . definitely contrary to the aims of justice”. 13 This is the
justice and .
direct reason -for the cancellation of Roncarelli’s liquor licence. 14
There was no evidence to link Roncarelli directly or indirectly with the
notorious and allegedly seditious article: “Quebec’s Burning Hate”. The
article began to be circulated on or about November 25, 1946, after Roncarelli
had ceased to provide bonds and after consultations had begun among govern-
ment officials about the prospective cancellation of his licence.’5 Moreover,
the Prime Minister, in his public explanation for the cancellation, referred only
to Roncarelli’s giving of bonds and not to the allegedly seditious pamphlet.
As Mr. Justice Rand of the Supreme Court was to put it :16
It is then wholly as a private citizen, an adherent of a religious group,
holding a liquor licence and furnishing bail to arrested persons for no other
purpose than to enable them to be released from detention pending the determin-
ation of the charges against them, and with no other relevant considerations to
be taken into account, that he is involved in the issues of this controversy.
How Duplessis became involved. Sometime in November, 1946, Oscar
Gagnon, then Joint Crown Prosecutor in Montreal, notified Edouard Archam-
bault, the manager of the Quebec Liquor Commission, that the Frank Roncarelli
12Now known as the Municipal Court of the City of Montreal.
IsAs quoted in the Montreal Gazette of December 5, 1946.
14Cf. Duplessis’ written argument in Superior Court, as quoted at [1952] 1 D.L.R.
680 at p. 684. There was never any question as to the conduct of Roncarelli’s restaurant.
It was a high-class establishment and enjoyed an unblemished reputation. As McKinnon
J. described it, ibid at p. 687: “Quebec Liquor Laws were carefully and meticulously
observed”. See in the same sense Rinfret J. in appeal, as reported at [1956] Q.B.
447 at pp. 499 and 512, and in the Supreme Court: Rand, Martland and Abbott J.J.,
passim.
as reported in [1956] Q.B. 447 at p. 479.
15Cf. Martineau J. in appeal –
16[1959] S.C.R. 121 at p. 133.
No. 2]
RONCARELLI v. DUPLESSIS
who supplied numerous bonds to release the Witnesses arrested for violating
City by-laws, and was a Witness himself, also held a liquor licence. Archam-
bault, after verifying the -facts, telephoned the Prime Minister in Quebec.
He relayed to Duplessis the information he had received and mentioned his
intention to cancel Roncarelli’s licence. Duplessis told him to be careful and
to make sure that it was the same Roncarelli who gave bonds. Secret agent Y-3
confirmed Roncarelli’s identity. Archambault then called Duplessis and it was
decided to cancel the permit. Whether Duplessis actually ordered the cancella-
tion or was its “determining cause” or whether he merely approved a decision
already made by Archambault was to become the major issue of facts before
the courts. To establish his lien de droit with Duplessis, Roncarelli had to
allege and prove that the order came from the Prime Minister.
II. THE ISSUES BEFORE THE COURTS
The Courts principally concerned
themselves with five main issues, one
of fact and four of law, the last of which was a procedural one. The question
of fact was:
(i)
who in effect ordered or caused the cancellation?
The questions of law were:
if Duplessis did, had he the authority to do’so?
(ii)
(iii) whoever exercised it, was the discretion to cancel properly used?
(iv) was Duplessis, as officer of the Crown, immune from prosecution?
The question of procedure was the following:
(v) was the failure to give Duplessis the notice required by article 88
of the Code of Civil Procedure an absolute bar to the action?
III. THE SUPERIOR COURT JUDGMENT
On May 2nd 1951,
the first of the fifteen judges who were to consider
this action, Mr. Justice Mackinnon of the Montreal Superior Court rendered
his decision.1 7 (i) On the question of fact, after reviewing the testimony of
Archambault and Duplessis about their telephone conversations, and citing
Duplessis’ uncontradicted statements to the press, he ruled’ 8 that it was evident
that it was defendant who gave the order to cancel. (ii) Holding that English
authorities govern Quebec public law, citing the well-known principle that
a Crown officer, even a Prime Minister, may do nothing other than what
17 Reported in [1952] 1 D.L.R. 680, and commented upon by E.C.S. Wade in (1951),
29 Can. Bar Rev. 665. Not one of Quebec’s official or private reports saw fit to
publish this important judgment which contained a stinging, undaunted denunciation
of Duplessis’ conduct. The Queen’s Bench judgment which reversed MacKinnon J.
was reported in extenso, as was Chief Justice L&ourneau’s judgment refusing permission
to sue Archambault. Sans Commentaires.
18[1952] 1 D.L.R. 680 at p. 692.
McGILL LAW JOURNAL
[Vol. 6
to interfere
law giving the defendant any authority
he is authorized to do ‘by some rule of common law or statute,19 and then
examining all the relevant statutes,20 Mackinnon J. ruled 2′ that there was no
in the
provision of
administration of the Alcoholic Liquor Act. Such interference would defeat
the purpose of the Alcoholic Liquor Act, which is to remove the licensing
(iii) Although section 35 of the Alcoholic
power from political influence.
Liquor Act gives the Commission discretion to cancel a licence and does not
stipulate any criterion by which this discretion is to be governed, the Court,
citing leading jurisprudence,2 2 decided that such discretion cannot be construed
as absolute and must be exercised according to “reason and justice”, be
“legal and regular”, be exercised “in good faith for the purposes for which
(it) was given”, be exercised “on proper legal principles .
. . upon some
sound reason”. This was not the case here sirce, by cancelling his licence for
the extraneous reason that Roncarelli was acting as a bondsman for arrested
Witnesses, the Commission acted “arbitrarily” and in disregard of “the rule of
reason and justice”.m (iv) As to the claim of ministerial immunity, the trial
judge rejected it categorically. 24 (v) Article 88 of the Quebec Code of Civil
Procedure states:
No public officer or other person fulfilling 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 plaintiff’s attorney or agent, and indicate his office; and
must be served upon him personally or at his domicile.
Mr. Justice Mackinnon held that defendant was not entitled to such notice
as the acts complained of were not “done by him in the exercise of his
in ordering the
functions”, so that defendant was “outside his functions”
cancellation.
25
Judgment was granted against defendant for $8,123.53, considerably less
than the $118,741.00 claimed in the action.
196 Halsbury, 2nd ed, p. 389 s. 435.
2 0Executive Power Act, R.S.Q. 1941, c. 7, ss. 5, 6, and 8; Attorney General’s
Department Act, R.S.Q. 1941, c. 46. ss. 4 and 5; Public Department Act, R.S.Q. 1941,
c. 43, s. 2; Alcoholic Liquor Act, R.S.Q. 1941, c. 255, s. 148.
21[1952] 1 D.L.R. 680 at p. 699.
2 2Sharp v. Wakefield, [1891] A.C. 173 at p. 179; R. v. Vestry of St. Pancras, (1890),
24 Q.B.D. 371 at pp. 375-76; Pioneer Laundry & Dry Cleaners Ltd. v. M.N.R., [1939]
4 D.L.R. 246; [1939] S.C.R. 1; [1939] 4 D.L.R. 481 at p. 485 (Privy Council);
[1940] A.C. 127 at p. 136; Jaillard v. City of Montreal, (1934), 72 S.C. 112 at p. 114;
Leroux v. City of Lachine, [1942] S.C. 352.
23[1952] 1 D.L.R. 680 at p. 695.
24Ibid., at pp. 683, 693 and 696; cf. Wade, op. cit., at p. 665.
25Ibid., at p. 700.
No. 2]
RONCARELLI v. DUPLESSIS
IV. DECISION OF THE COURT OF APPEAL
Duplessis appealed. Dissatisfied with the award, Roncarelli cross-appealed.
Both appeals were heard on April 12, 1956, by a bench composed of Justices
Bissonnette, Pratte, Casey, Rinfret and Martineau. The Court upheld the
appeal, Rinfret J. dissenting, and unanimously dismissed the cross-appeal. 26
(i) Question of fact. On the issue of who gave the order to cancel;
who, in other words, constituted the casa causans, the Court ruled that it was
not the Prime Minister but the manager of the Commission, Edouard Archam-
bault. Bissonnette J. concluded that the evidence did not prove that Archam-
bault had deferred to any “order” of the defendant or acted in a spirit of
subordination; that- juridically it was impossible for defendant to give an
order he did not have the authority to give; that the allegation of de facto
to remove Archambault at will was
authority by reason of the power
unfounded. Pratte J.27 disagreed with his colleagues, and followed Mr. Justice
to cancel
MacKinnon’s finding that Duplessis had ordered Archambault
Roncarelli’s permit, but stated that it was necessary to prove, besides the
order, that the order was the cause of the cancellation. Arcbambault had
already decided to cancel before consulting the Prime Minister. Like Bissonnette
J., he found the allegation that Archambault would have been dismissed had
he disagreed with defendant, to be both speculative and irrelevant. Casey J. also
factor” for the
held that Duplessis’ “order” was not the “determining
cancellation, or, at least, was not proved so to be, since Archarnbault had
telephoning Quebec City. Mr. Justice
already made his decision before
Martineau agreed with his brother Casey, at least on this point.28 Dissenting
from the majority and agreeing with the trial judge, Rinfret J. declared that
the order issued from defendant who thus was the “determining factor”.2 9
(ii) Did Duplessis have authority to interfere? Bissonnette J.3o and
his dissenting colleague, Rinfret J.,31 agreed categorically with the
lower
Court: as a Crown officer, Duplessis possessed no authority other than
that specifically granted by law and none of the relevant statutes created such
authority. The other three Appeal judges were silent on this point.
(iii) The exercise of discretion. Mr. Justice Bissonnette distinguished
between an “organisme extcutif et administratif” and one “essentiellement
commercial”, such as the Quebec Liquor Commission, whose discretion he
held to be as absolute as that of an employer over his employee or a mandator
26[1956] Q.B. 447; Comment by Benjamin J. Greenberg in (1957), 3 McGill L.J. 82.
27[19561 Q.B. 447, at p. 465.
2B1bid., at p. 485.
29Ibld., at pp. 499-503.
solbid., at pp. 451-52 and 455.
3lWbid., at pp. 503-6, 509 et seq.
McGILL LAW JOURNAL
[Vol. 6
over his mandatory.3 2 Its exercise, consequently was not subject to being
held faulty or illegal. Moreover, in this instance there was not only a right
but also a duty to cancel. Pratte J. did not consider the issue pertinent. His
brother Casey declared 33 that the Commission’s discretion, complete though
to be
it was, could not be exercised “arbitrarily or capriciously”,
the
exercised in accordance with what
“public
interest and welfare”. And the Commission in November 1946,
had reasonable grounds to believe that Roncarelli was a “participant” in what
seemed “subversive and seditious” activities.3 4 Mr. Justice Marti-
–
neau, in an argument parallel to that of his colleague Bissonnette, held35
the discretion of the Commission to be neither judicial nor administrative but of
a “caract~re quasi illimit”, only restricted by the necessity of good faith
in its exercise. He felt that there was no doubt of Duplessis’ good faith.
the Commission believed
to it –
it had
to be
Rinfret J. in his dissent argued that administrative discretion is never
it must be
absolute but must conform to the following four criteria: (1)
exercised by the body in which it is vested,36 (2) for the purposes for which
it is given, (3) on proper legal principlesP 7 and (4) after verification of
the facts and adherence to the rule audi alteram partem.zY Moreover, even if
the discretion to grant or to refuse a licence were absolute, because an applicant
would then have no ‘acquired right’ in a licence, this is not the case with
respect to cancellation, since, although a licence is a privilege, the holder
possesses some semblance of an acquired right in virtue of his having had it.
Immunity of Crown Officers. Not one of the five judges in appeal
(.iv)
accepted Duplessis’ claim that, as Prime Minister, Attorney-General, and
officer of the Crown, he was immune from prosecution for damages caused
by reason of any act arising out of his functions. Neither Bissonnette J. nor
Mr. Justice Casey pronounced on the matter, although implicitly they rejected
this argument. Pratte J., holding that English authorities govern this aspect
of our public law, added that those authorities establishing the personal liability
32Ibid., at p. 457. But it has been held repeatedly that even an employer can be
held liable for abuse of his right to fire. See: Traiti de Droit Civil du Quibec, Vol. 12,
Du Louage, by Lon Faribault, Montreal, 1951, at p. 317.
a3Ibid., at p. 470.
3 4 Ibid., at p. 477. This is a questionable finding of fact, since the evidence disclosed
that the allegedly subversive pamphlet “Quebec’s Burning Hate”, only appeared after
Roncarelli ceased to give bonds.
WsIbid., at p. 481.
3 6General Medical Council v. Sparkman, [1943] A.C. 627 at p. 641.
37Pioncer Laundry & Dry Cleaners Ltd. v. M.N.R., [1940] A.C. 127 at p. 136;
Lower Mainland Dairy Products Board v. Turner, [1941] S.C.R. 573 at p. 577;
R. v. Vestry of St. Pancras, (1890), 24 Q.B.D. 371 at p. 375; R. v. Board of
Education, [1910] 2 K.B. 165 at p. 178; Alward v. McIntosh, [1938] 2 D.L.R. 522
at p. 532.
38Leroux v. Lachine, [1947] S.C. 352.
RONCARELLI z,. DUPLESSIS
No. 2]
of Crown officers for their torts are too numerous to be all cited.3 9 Plaintiff’s
right to proceed against the Crown, by Petition of Right under article 1011
of the Code of Procedure, did not, in the least, limit his personal recourse
against defendant. Martineau J. also rejected Duplessis’ argument with the
pithy statement:
Tout homme, quel qu’il soit, est responsable des consequences de ses fautes
moins d’un texte de loi qui l’en libre, ce qui n’existe pas dans l’esptce. 40
Rinfret J. also clearly admitted the principle of personal responsibility.41
(v) Article 88 of the Code of Procedure. The majority, because of
its ruling on the merits, did not consider it necessary to discuss this issue.
Dissenting Judge Rinfret dismissed the article as irrelevant since it is predicated
upon the condition that the officer be in the “exercise of his functions”, and
this was not the situation here.
V. THE SUPREME COURT DECISION
Roncarelli decided to bring his case before the Supreme Court. For five days,
from June 2nd to 6th 1958, the lawyers argued before Kerwin C. J., Tasche-
reau, Rand, Locke, Cartwright, Fauteux, Abbott, Martland and Judson JJ.
On January 27, 1959, the Supreme ‘Court rendered its decision, 42 maintaining
the appeal and increasing by $25,000.00 the amount granted by the trial judge.
Three of the nine members of the Court, Tascbereau, Cartwright, Fauteux,
JJ., dissented.
(i) Question of fact. On this question, both majority and dissenting
judges agreed with Mr. Justice MacKinnon. Kerwin C. J., echoing a criticism
of the Appeal Court made in this Journal,4 declared :44
No satisfactory reason has been advanced for the Court of Queen’s Bench
trial judge that the
(Appeal side) setting aside
respondent ordered the Quebec Liquor Commission to cancel appellant’s licence.
Martland J. agreed with the Chief Justice.45 Mr. Justice Rand, speaking both
for himself and his brother Judson, also expressed the view4G that the cancella-
tion had been dictated by Duplessis who used his de facto power over Archam-
the finding of fact by
the
3911956] Q.B. 447, at pp. 460-462. An impatience shared by Mr. Justice Abbott of
The Supreme Court: see [1959] S.C.R. 121 at p. 181.
401bid., at p. 480.
41Ibid., at p. 515 et seq.
42Reported at [1959] S.C.R. 121 and (1959), 16 D.L.R. (2d) 689. The latter contains
the official translation of Mr. Justice Taschereau’s French judgment and an apparently
unofficial translation of Mr. Justice Fauteuk’s decision. The judgment of the Court
is commented upon by Edward McWhinney in (1959), 37 Can. Bar Rev. 503.
43By Benjamin J. Greenberg, op. cit., at p. 90.
44[1959] S.C.R. 121, at p. 125.
45Ibid., at p. 151.
46jbid., at pp. 133 et seq.
McGILL LAW JOURNAL
(Vol. 6
an appointee at will –
bault –
in order to put a halt to the activities of
the Witnesses, punish Roncarelli -for his participation therein, and warn others.
Abbott J. also saw Duplessis as the “determining cause”, 4
7 an opinion shared
by Cartwright and Fauteux JJ., 48 the two dissenting judges who pronounced
on the question.
the
(ii) Did Duplessis have authority to interfere? No, answered
majority, supported in this by dissenting judge Fauteux. The other two
dissentients remained silent on this issue. Martland J., speaking also for the
Chief Justice, reviewed the relevant statutes and concluded4″ that there were
no “official powers” vested in Duplessis authorizing him to order the cancella-
tion. The judgment of Judson J. was rendered by Mr. Justice Rand, who,
while making no clear statement on this point, can at least be understood
to implicitly deny the existence of any such authority. Abbott J. was more
emphatic, ruling5O that respondent was
t . . acting without any legal authority whatsoever . . . (and) was bound
to know that he was acting without such authority.
Fauteux J., dissenting on procedural grounds, nevertheless went even further
on this question of law, saying of the respondent that
il s’est arog6 un droit que lui nie virtuellement la Loi des Liqueurs
Alcooliques; . . .
(iii) The exercise of discretion. On the question of discretion, Rand J.
whose views, as we saw, were subscribed to by his brother Judson, pointing
out the economic importance of a licence to the holder, whose dependence
on it grows as time goes by, rejected5 2 the notion of untrammelled discretion
in the following eloquent terms:
impartiality and
integrity; and that
in the absence of regulation, would be free and
The field of licensed occupations and businesses of this nature is steadily
becoming of greater concern to citizens generally. It is a matter of vital importance
that a public administration that can refuse to allow a person to enter or continue
legitimate,
a calling which,
the
should be conducted with complete
grounds for refusing or cancelling a permit should unquestionably be such and such
only as are incompatible with the purposes envisaged by the statute: the duty
of a Commission is to serve those purposes and those only. A decision to deny
lies within the “discretion” of the Commission; but
or cancel such a privilege
that means that decision is to be based upon a weighing of considerations pertinent
to the object of the administration.
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
irrelevant,
arbitrary power exercisable
regardless of the nature or purpose of the statute. Fraud and corruption in the
for any purpose, however capricious or
In public regulation of this sort
471bid., at p. 183.
481bid., respectively at pp. 164 and 175.
49Ibid., at p. 155.
5OIbid., at p. 185.
5lIbid., at p. 175.
52Ibid., at pp. 140-141.
No. 2]
RONCARELLI v. DUPLESSIS
Commission may not be mentioned in such statutes but they are always implied
as exceptions. “Discretion” necessarily
implies good faith in discharging 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.
in
to obtain one: it was
To deny or revoke a permit because a citizen exercises an unchallengeable
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 be “forever”. This purports to divest his
citizenship status of its incident of membership
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 fortliori to the government
or the respondent: McGillivray v. Kimber. There is here an administrative tribunal
which, in certain respects, is to act in a judicial manner; and even on the view
of the dissenting justices in McGillivray, there is liability: what 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
the
administration, to which was added here the element of intentional punishment by
what was virtually vocation outlawry.53
for a reason and purpose knowingly foreign
is simply acting
to
Martland J., with whom Kerwin C. J. declared himself to be in agreement,
also refused5 4 to allow the possibility of an absolutely unlimited discretion.
While, in view of the decision of the Privy Council in the case of Nakkuda
Ali v. Javaratne55 “it would appear somewhat doubtful whether the appellant
had a right to a personal hearing”, he was entitled to expect that the discretion
would be exercised for relevant motives and by those to whom it was entrusted.
On this requirement of relevancy, which Rand and Judson JJ. also stipulated,
Mr. Justice Martland wrote: 56
t . . the discretionary power to cancel a permit given to the Commission by
the Alcoholic Liquor Act must be related to the administration and enforcement
of that statute. It is not proper to exercise the power of cancellation for reasons
which are unrelated to the carrying into effect of the intent and purpose of the Act.
The association of Roncarelli with the Witnesses and his giving bail “had no
relationship to the intent and purpose of the Alcoholic Liquor Act”. With
respect to the second requirement –
exercise by those in whom the discretion
is vested – Martland J., after citing the Earl of Selborne 57 and Chief Justice
Greensh;e’ds, 58 and stating that the power to cancel was conferred upon what
the statute contemplated as an independent commission, ruled59
that
That power must be exercised solely by that corporation. It must not and
cannot be exercised by anyone else.
53Ibid., at pp. 140 et seq.
rifbid., at pp. 156 et seq.
55[1951] A.C. 66; see footnote 63.
56[1959] S.C.R. 121, at p. 156.
57Spackman v. Plumstead Board of Works, (1885), 10 A.C. 229, at p. 240.
mSlaillard v. City of Lachine, (1934), 72 S.C. 112.
59[1959] S.C.R. 121, at p. 156.
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Mr. Justice Abbott also castigates 60 respondent’s assertion that an administra-
tive discretion can be so absolute as to be susceptible of being exercised
arbitrarily or for irrelevant motives:
The religious beliefs of the appellant and the fact that he acted as bondsman
for members of the sect in question, had no connection whatsoever with obligations
as the holder of A licence to sell alcoholic liquors. The cancellation of his licence
the
upon this ground alone therefore was without legal justification. Moreover,
religious belief of the appellant and his perfectly legal activities as a bondsman had
nothing to do with the object and purpose of the Alcoholic Liquor Act and the
the Quebec Liquor Commission
powers and responsibilities of the manager of
are confined to the administration and enforcement of the provision of said Act.
Among the three dissentients, only Cartwright J. deals with the problem
of discretion and he comes to the exactly contrary conclusion: the Commission,
fulfilling an ‘administrative’ rather than a ‘judicial’ or ‘quasi judicial’ function,
has an “unfettered discretion”, except in so far as that discretion is taken
away by the Act.6 ‘ Among other authorities, he cites with approval
the
statement of Mr. Justice Masten of the Ontario Court of Appeal :02
. ..an ‘administrative’ tribunal, within its province, is a law unto itself (and
can decide on the basis of) policy and expediency.
Appellant had no right to invoke the rule of audi alteram partem since the
cancellation of a licence is a purely “administrative act” whose motives are
not open to review by the courts.ss Even if the decision had been of a
“quasi judicial” nature, it would have been necessary to prove fraud, collusion
or malice.6 4
Immunity of Crown Officers. Only Mr. Justice Abbott saw fit
(iv)
to discuss respondent’s contention that he was immune from prosecution.
Referring to Dicey’s famous passage, which we cite later, he declared 65
he did
. not find it necessary to cite from the wealth of authority supporting the
principle that a public officer is responsible for acts done by him without legal
justification.
(v) Article 88 of the Code of Procedure. The issue of the notice of
article 88 C.P., largely ignored in the Court of Queen’s Bench, was the
source of two of the three dissents in the Supreme Court.
6OIbid., at p. 183.
6lIbid., at p. 167.
621n Re Ashby et al [1934] O.R. 421 at p. 428; [1934] 3 D.L.R. 565; 62 C.C.C. 132.
63[1959] S.C.R. 121, at p. 168, citing Nakkuda All v. M.F. De S. Jayaratne [1951]
(1959),
A.C. 66, and Calgary Power Limited et a[ v. Capithorne [1959] S.C.R. 24;
16 D.L.R. (2d) 241, per Martland J.
4McGillivray v .Kimber, (1915), 52 S.C.R. 146; 26 D.L.R. 164; Halsbury, 2nd ed.,
vol. 26, pp. 284-85; Bassett v. Godschall, (1770), 3 Wils. 121 at p. 123; 95 E.R. 967,
per Wilmot C.J. and Gould and Blackstone JJ.
65[1959] S.C.R. 121, at p. 184.
No. 2]
RONCARELLI v. DUPLESSIS
The majority generally held that, since the right to notice was predicated
upon the public officer being within the “exercise of his functions”, and
Duplessis had been clearly outside them, he could not raise the lack of such
notice. Rand J. said 66 that, having committed an act
.
. quite beyond the scope of any function or duty committed to him, so far
in a private capacity, however much
so that that it was one done exclusively
in fact the influence of public office and power carried into it
he was not entitled to the protection of art. 88 C.P. This also was the view
of Martland J. and Kerwin C.J.,67 who ruled out good faith as a mitigating
circumstance:
The question of whether or not his acts were done by him in the exercise
of his functions is not to be determined on the basis of his own appreciation
of those functions, but must be determined according to law.6 8
In this connection it is interesting to recall Mr. Justice Abbott’s view, cited
earlier, that Duplessis was bound to know he was acting without authority.69
Agreeing with the trial judge and dissenting Appeal Court judge Rinfret, and
citing two older decisions of the Quebec Court of Queen’s Bench, 70 Abbott J.
wrote :71
In my opinion before a public officer can be held to be acting “in the exercise of
his functions” within the meaning of art. 88 C.C.P., it must be established that at
the time he performed the act complained of such public officer had reasonable
ground for believing that such act was within his legal authority to perform .
.
.
. the respondent was bound to know that the act com-
In the instant case .
plained of was beyond his legal authority.
.
The two French-Canadian members of the Supreme Court based their dissent
on art. 88 C.P. The third dissenter, Mr. Justice Cartwright decided on the
merits. Mr. Justice Taschereau’s dissent was entirely based on the argument
that Duplessis, being a public officer, did not cease to be an officer in the
exercise of his functions because of a possible error as to the nature and extent
of these functions. He was thus entitled to notice:
L’intim6 est sfirement un officier public, et il me semble clair qu’il n’a pas
agi en sa qualiti personnelle. C’est bien comme aviseur legal de la Commission
des Liqueurs, et aussi comme officier public charg6 de la pr6vention des troubles,
consult6. C’est le Procureur
et gardien de la paix dans la province, qu’il a i6t
requis de donner
GCniral, agissant dans l’exercice de ses fonctions qui a 6t
ses directives i une branche gouvernementale dont il est l’aviseur. Vide: Loi
concernant le Dipartements du Procureur Gintrai, S.RQ. 1941, c. 46, art. 3,
Loi des liqueurs alcooliques, S.R.Q., c. 255, art. 138.
i raison, peuvent croire que l’intim6 se soit tromp6, en
pensant qu’il devait, pour le maintien de la paix publique et ]a suppresion de
troubles existants, et qui mena;aient de se propager davantage, conseiller l’enl6-
i tort ou
Certains,
86Ibid., at p. 144.
67Ibid., at p. 158.
68lbid., citing Lopes J. in Agnew v. Lobson, (1877) 47 L.J.M.C. 63, 13 Cox C.C. 625.
89Ibid., at p. 185.
IOLachance v. Casault, (1902), 12 Q.B. 179 at p. 202; Asselin v. Davidson, (1914),
23 Q.B. 274 at p. 280.
71[1959] S.C.R. 121, at p. 186.
McGILL LAW JOURNAL
[Vol. 6
vement du permis de l’appellant. Pour ma part, je ne puis admettre le fallacieux
principe qu’une erreur commise par un officier public, en posant un acte qui se
rattache cependant i l’objet de son mandat, enlve i cet acte son caractre officiel,
et que l’auteur de ce mime acte fautif cesse alors d’agir dans l’exiculion de ses
fonctions.7 2
The most thorough discussion of art. 88 C.P. is found in the judgment of
Fauteux J. who admits that, but for art. 88 C.P., he would have ruled in
favor of Roncarelli’s appeal. He attributes the restrictive interpretation of the
article to a confusion resulting from the similarity of its language with that
of art. 1054 C.C.:
le cas en
l’espce, –
dans une mEme
ce qui n’est pas
L’article 1054 C.C. prescrit que les maitres et les commettants sont responsables
du dommage caus6 par leurs domestiques ou ouvriers dans l’exicution des fonctions
i donner aux
auxquelles ces derniers sont employis. On est das lors port6
expressions plus ou moins identiques, apparaissant A l’art 88 C.P.C.,
le mime
sens que donne la jurisprudence sur l’art. 1054 C.C. La rtgle d’interpritation
visant la similarit6 des expressions n’tablit qu’une pr~somption; cette pr6somption
itant que les expressions similaires ont. le mime sens lorsqu’elles se trouvent,
–
loi. On accorde,
d’ailleurs, peu de poids A cette pr~somption. Maxwell, On Interpretation of Statutes,
9e ed., p. 322 et seq. Les consid&ations pr~sidant a l’itablissement, la fin et la
‘art. 1054 C.C., d’autre part, sont
portte de l’art. 88 C.P.C., d’une part, et de
totalement diff&-entes. Sanctionnant la doctrine Respondeat superior, l’art. 1054 C.C.
la responsabilit6 du commettant pour l’acte de son pripos6, ce dernier
6tablit
le continuateur de la personne juridique du premier. L’intim6,
6tant considri
agissant en sa qualit6 de Procureur Grn~ral, nest le pr~pos6 de personne. Il n’a
pas de commettant. La fonction qu’il exerce, il la tient de la loi L’article 88
la question de responsabilit6. II accorde, en ce qui
C.P.C. n’affecte en rien
concerne la proc&lure seulement, un traitement sp~cial au b6’ifice des officiers
publics en raison de la nature mime de la fonction. Les motifs apport&s par la
la
i
jurisprudence pour limiter
la
responsabilit6 &ict& en l’art. 1054 C.C., sont 6trangers A ceux conduisant
L.6gislature A donner, quant A ]a procedure seulement, une protection aux officiers
publics . . . je ne crois pas que la port&e de cette protection soit assujettie aux
limitations de la responsabilit6 frappant les dispositions de lrart. 1054 C.C.73
l’exercice des fonctions, quant
le champ de
Art. 88 C.P. presupposes the commission of an illegality on the part of the
public officer:
On doit donc se garder d’associer au droit a l’avis toute ide de justification
pour l’acte reproch6 ou de d~truire du seul fait que l’officier public doive au
mr&ite d’Etre tenu personnellement responsable, qu’il ai perdu tout droit A I’avis. 74
Mr. Justice Fauteux then reviews the history of the judicial interpretation
of art. 88 C.P. and distinguishes two schools. The first one held that as soon as
bad faith is alleged, the defendant loses his right to notice. This jurisprudence
was superseded in 1933 by the Appeal Court decision in Charland v. King,7
which -held that the right to notice is absolute, irrespective of good or bad faith,
since, moreover, good faith is always presumed under art. 2202 C.C. Fauteux
721bid., at p. 130.
73Ibid., at pp. 177-78.
74Ibid., at p. 179.
75(1933), 50 K.B. 77. Fauteu=x J. also cites: Chiaput v. Cripeau, (1917), 57 S.C. 443.
No. 2]
RONCARELLI v. DUPLESSIS
J. declared that the jurisprudence has since been settled. 76 This school of
thought finds its historical basis in the argument that art. 88 C.P., formerly
art. 22, is derived from the Act for the Protection of Justices of the Peace, 77
wherein the right to notice was subordinated to the existence of good faith.
When this section was transferred to the new Code of Procedure as art. 22,
the requirement of good faith was left out. This, to Mr. Justice Fauteux,
appears to be the “peremptory” argument. 78
the Court of Appeal. Moreover,
The Supreme Court thus reversed
it
increased the award to $33,123.53, with interest from the date of the judgment
of the Superior Court and costs. Although Duplessis could have gone before
since the action was originally instituted before the
the Privy Council –
abolition of appeals to the Judicial Committee –
he did not do so within
te delays and the Supreme Court decision is final.
VI COMMENT AND CRITICISM
Stated concisely, the action arose out of the allegation by Roncarelli that
Duplessis, as Prime Minister and Attorney-General of the Province, had
independent Commission to exercise its discretion to
caused a nominally
cancel a license, on the avowed ground that Roncarelli had helped the Witnesses
of Jehovah by systematically bailing out those adherents of the sect who were
arrested for violating municipal by-laws.
Of the five issues which presented themselves to the minds of the judges,
the question of fact was the crucial one. It resulted in the unusual reversal of
a trial court by the Appeal Court on the appreciation of the facts, followed by
the not less abnormal reversal by the Supreme Court of the Court of Queen’s
Bench’s finding on the facts. It was on this issue that judicial disagreement
focused.
In connection with the second issue, neither the Court of Appeal, nor the
dissenting judges in the Supreme Court, accepted the argument that Duplessis
had the authority to interfere in the operations of the Commission. Similarly,
not one among the fifteen judges deigned to receive Duplessis’ contention
that a Crown officer, in the exercise of his duties, is immune from civil
prosecution. On this point, the decisions of all three courts leave no doubt.
They have held that English authorities govern Quebec’s public law. These
authorities are unanimous and explicit. Again and again the courts referred
to Dicey’s classic statement :7 9
76To prove this statement, the learned judge cites: Corporation de la Paroisse de
St. Dazvd-de-IAubervire v. Paquette et autres, (1937), 62 K.B. 143; Houde v. Benoit,
[1943] K.B. 713.
7tConsolidated Statutes of Lower Canada, c. 101, s. 8.
78[1959] S.C.R. 121, at p. 178.
79Law of the Constitution, by A. V. Dicey, 9th ed., p. 193. See authorities cited
there. For a criticism of this view as too sweeping, cf. Public Authorities and Legal
Liability, by G. E. Robinson, London, 1925, at p. 2 et seq., and passim and Principles
of Administrative Law, by J. A. G. Griffith and H. Street, London, 1952, p. 239.
McGILL LAW JOURNAL
[Vol. 6
Every official, from the Prime Minister down to a constable or a collector of
taxes, is under the same responsibility for every act done without legal justification
as any other citizen. The Reports abound with cases in which officials have been
brought before the courts, and made, in their personal capacity, liable to punishment,
or to the payment of damages, for acts done in their official character but in excess
of their lawful authority.
This principle is so fundamental to our public law that it is not difficult
to understand Abbott J.’s exasperated statement:80
I do not find it necessary
to cite from the wealth of authority supporting
the principle that a public officier is responsible for acts done by him without
legal justification.
In the more recent reports we find actions against a Prime Minister,81 a
Dominion Minister of Agriculture,82 a South Australian Minister of Agri-
culture,83 the Lords of the Admiralty,” and a Secretary of State. 85 In other
words, -there is no special immunity resulting from elevation in the hierarchy
of Crown office.
All three courts devoted considerable attention to the nature of the discretion
their
given to the Quebec Liquor Commission. It seems to have escaped
legal logic, this issue was entirely
attention that, as a matter of strictly
irrelevant. Indeed, on the one hand, it was admitted by all judges that
Duplessis had no discretion to exercise, and on the other, the Commission,
which possessed it, was explicitly accused and held to have abdicated it. It is
rather paradoxical to see the highest court, respectively in the Province and in
the country, explain at length how discretion should be exercised which
they unanimously declared to be vested in hands other than defendant’s! In
effect, the courts first decided that Duplessis had no discretion to cancel a liquor
license, and then proceeded to decide how he should have exercised such
discretion. A psychologist rather than a lawyer is needed to explain the
astonishing mental mechanism which produced such confusion.
Compelling though the Supreme Court’s views on administrative discretion
might be, the j.ustices had a duty to segregate them from the relevant grounds
of decision. It is not for us to decide whether it is within a court’s functions
to lecture the country in cases of this type. But opinions on matters which
strictly spealking are extraneous should be clearly isolated’ The importance
of realizing the irrelevancy of the holdings on discretion lies in the probability
that they will be frequently cited in the future. Their highly obiter nature must
be understood and the real ratio decidendi -be found, if we are to avoid erroneous
derivations from this decision.
80[1959] S.C.R. 121, at p. 184.
SlLiterary Recreations v. Sauvi, [1932] 4 D.L.R. 553.
82Smith v. Christie, (1920), 55 D.L.R. 68.
83lames v. Cowan, [1932] A.C. 542.
84Raleigh v. Goschen, (1898) 1 Chancery 73.
85Liversidge v. Anderson, [1942] A.C. 206.
No. 2]
RONCARELLI v. DUPLESSIS
These obiter dicta can be summarized as follows. The discretion granted by
a statute to an independent administrative body, no matter how unlimited
its language, is never absolute. It must be exercised only for the purposes
contemplated by the statute, and for no other end whatever, no matter how
worthy or desirable. It must never be exercised by, or under dictation from,
someone in whom it is not vested. On the other hand, the Supreme Court
inclines to the view that the rule audi alteram parten does not apply, when
the discretion is administrative. It must be noted that the Supreme Court’s
views on administrative discretion, eloquent and pertinent though they are,
do not add anything to the principles established by the leading English juris-
prudence and part of our law.8 6 At any rate, the principles which are to
govern the exercise of administrative discretion and which the Supreme Court
will enforce in the future are now clear. Mr. Justice .Cartwright’s dissent on
this point, it is submitted with due respect, does not conform with the law
nor with the ideals of our society.
the
As a corollary to its discussion of administrative discretion, the Supreme
Court considered Duplessis’ extraordinary contention that
large-scale
giving of bail for members of a sect alleged to be guilty of distributing seditious
literature, was itself seditious and rendered one unfit to enjoy a “privilege” such
as a liquor licence. This constituted a very disturbing assault upon one of
the fundamental institutions of our law, implicitly tainting the bondsman with
guilt by association. If adopted, this view could have severely curtailed the
right to give bail and caused thousands of impecunious offenders of the most
innocuous type, unable to secure a -bondsman willing to incur opprobrium
by association, to languish in jail until their trial. Despite the Appeal Court’s
almost complete silence on the matter, the Supreme Court unanimously rejected
this extraordinary suggestion. Rand J. called the right to give bail “un-
challengeable” and one for whose exercise a citizen cannot be punished.17
in this respect as
Mr. Justice Martland described” Roncarelli’s actions
“entirely lawful.” To Abbott J.,89 they were “perfectly legal.”, And yet, Court
of Queen’s Bench judge Martineau, while nevertheless agreeing” with the view
that Roncarelli’s putting up bonds was utterly legal, still advocated the remark-
able view that a citizen, exercising such an “unchallengeable”
right, could
thereby so provoke the authorities as to excuse them in law from committing
a wrong:
Mais cette indignation quasi gnirale, que partageait le d~fendeur, ne dimontre-
t-elle pas que le demandeur fut bien mal avis6, mame tris imprudent en s’associant
i cette propagande, mime s’il ne l’a fait qu’indirectement,
lui qui ditenait un
privilege sp6cial de la Commission des liqueurs, donc de la Province de Quebec
86Gr-ffith and Street, op. cit., pp. 214-19, for a summary thereof.
87[1959] S.C.R. 121, at p. 141.
S8Ibid., at p. 156.
8sIbid., at p. 185.
90[1956] Q.B. 447 at p. 488.
McGILL LAW JOURNAL
[Vol. 6
qui 6tait si cruellement prise i partie dans le livre La Haine ardente du Quibec.
les circonstances, non pas renier sa foi, non pas la
N’aurait-il pas dfi, dans
cacher, mais agir de fa~on que son nom ne ffit en aucune favon associ6 A des actes,
qui devaient n6cessairement blesser les susceptibilit~s 16gitimes et les croyancea
respectables de la majorit6 des citoyens de ]a province? Je le crois, et il me semble
que sa conduite, bien qu’elle s’eit rien d’illigale, itait dans les circonstances une
provocation qui aurait enlevi tout JHment de faute a l’ordre de rkvoquer le permis
du demandeur, si le d~fendeur avait donn6 de telles instructions A M. Archambault.91
The Supreme Court could not and did not subscribe to this surprising
opinion. It might be said that even if Roncarelli had stood bail twice, ten times,
as often as he did, his conduct would neither have been reprehensible in law,
nor contrary to the ends of justice, nor relevant to the administration of the
Liquor Act. Moreover, it must not -be forgotten that in his alleged defiance
of the ends of justice Roncarelli was abetted by Quebec’s judicial authorities
since they accepted each and everyone of the 390 bonds he posted. And, in
,passing, it should be mentioned that the right to give bail derives from the law
of England, under which the refusal to permit bail to any person bailable is an
offence against -the liberty of the subject.9 2
The ruling of the Supreme Court on art. 88 C.P. is not surprising. It does
not entirely dispel the difficulties raised by contradictory schools of juris-
prudence. Lack of space, however, does not permit a review of the abundant
jurisprudence on the point. The writer hopes to undertake it at a later date.
The prevailing view today, reflected in the judgments of the majority in
the Supreme Court, holds that, in order to benefit from the protection of
that article, a public officer must have committed the wrong complained of
of “in the exercise of his functions.” The “functions” of any particular Crown
officer are never clearly determined and conflicting interpretations are in-
evitable. But such doubts should not exist where there is no authority at all.
Duplessis was not accused of abusing, but of wsurping authority. Even though
the inaccurate thinking often prevalent in the legal profession prevents many from
realizing the distinction, it is a fundamental one. On the other hand, the well-
reasoned dissent of Fauteux J. shows how compelling and real are honest
differences of opinion on this matter, since he dismissed the apeal on this
procedural ground alone, while stating that on the merits it should succeed.
The deep misgivings of the Supreme Court in interpreting such provisions is
further evidenced in the contemporaneous decision of Lamb v. Benoit.9
In the course of its judgment, the Supreme Court acknowledged the principle
that, while our public law is determined by English authorities, liability for
damages occasioned in its breach is governed by our civil law, and particurlarly
by art. 1053 of the Civil Code. This article reads:
91Ibid., at p. 490. Italics by the writer.
92R. v. Badger, (1843), 4 Q.B. 468; Archibald, Pleading and Practice, 32nd ed., p. 71,
Allen v. Flood, [1898] A.C. at p. 92. Hawkins, Pleas of the Crown, 7th ed., vol. III,
p. 189.
93(1959), 17 D.L.R. (2d.) 369. Comment by Edward McWhinney, (1959), 37 C.B.R.
503. Comment by B. Lacombe, (1959-60), 6 McGill L.J. 53.
No. 2]
RONCARELLI v. DUPLESSIS
Every person capable of discerning right from wrong is responsible for the
imprudence,
to another, whether by positive act,
damage caused by his fault
neglect or want of skill.
Resort to public law disclosed absence of authority. The Court was then faced
with the problem of formulating the juridical principle under which defendant’s
illegal actions constituted a fault -falling within the scope of art. 1053 C.C.
It had to bridge the gap between the public law which established a breach
and conversely a right in the victim, and the civil law in which the remedy
must be found. In other words, if we adopt the formula of Carl Goldenberg9 4
that a “positive act constitutes a ‘faute’ when it is the doing of an act
prohibited by law,” we must, in the case of Crown officers, examine our
public law of English origin to establish whether the act complained of is pro-
hibited or not. The public law rule is that every act not specifically authorized
is prohibited. This relationship of civil and public law is comparatively simple
and fundamental. The principle could have been formulated so as to apply
to the facts of this case of which it would then have been very easy to dispose.
But, as Edward McWhinney pointed out in his thought-provoking, though
occasionally too shallow comment,95 the ‘Supreme Court failed entirely to do so,
let alone to display even a mere awareness of the problem. McWhinney’s
accusation of lack of lucidity and superficiality on the part of the Court is
not undeserved.
A scrutiny of the individual judgments for an explanation of the civil law
basis of Duplessis’ liability is not very fruitful. If we look at the judgments in
the Court of Appeal, we find Bissonnette J. declaring96 that, even assuming
Duplessis had given the order – which Mr. Justice Bissonnette denied –
-his liability would depend on the existence of an illegality on the part of the
Commission in cancelling the permit. In other words, as in the case of art.
1054 C.C., the principal could not be at fault unless the agent was. Martineau
J. adopted a similar view :97 if Duplessis were responsible for the cancellation,
the Court would still have to determine whether such order, under the
circumstances, was “reasonable”. Pratte and Casey JJ. seem to agree with
Bissonnette J. But if we look at Mr. Justice Rinfret’s dissent, we find an
entirely different view. It is worth citing in full:
Le concept de responsabilit6 chez l’officier public n’est pas en tous points
semblable a celui qui r~git les individus; si, sous certains aspects, ses r gles en
sont moins rigoureuses, a certains autres 6gards, elles sont plus srvires.
Tout comme l’individu, l’officier public devra rrpondre de ses actes malicieux,
trnm~e s’ils sont commis dans
il est 6galement responsable de ses actes faits en
des actes faits de mauvaise foi, de ses drlits,
l’exercice de ses fonctions;
dehors de ses fonctions, m~me sans malice ni mauvaise foi.
94The Law of Delicts, Montreal, 1935, p. 11.
95(1959), 37 Can. Bar Rev. 503, at pp. 504-5.
96[1956] Q.B. 447 at p. 455.
97Ibid., at p. 493.
McGILL LAW JOURNAL
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Hors les cas de malice, de mauvaise foi, de d~lit, l’off icier public n’est pas
soumis aux dispositions de l’art. 1053 C.C.; il n’encourra aucne responsabilit6
personnelle en tant qu’il reste dans
l’exercice de ses fonctions.
Dars ce cas, techniquement du moins, et sujet i
la th6orie de: The King
can do no wrong, et de la pitition de droit, la Couronne r~pond des actes de
son pr6pos6 en vertu d’un principe similaire i celui de l’art. 1054 CC.
Toute circonstance ou srie de circonstances qui exonreraient le maitre et le
commettant sous I’art. 1054 C.C. font perdre i l’officier public l’immunit6 qu’il aurait
eue s’il efit agi dans les limites de ses fonctions, engendrent sa responsabilit6
personnelle et son obligation d’indemniser le dommage caus&
L’officier public se double de l’individu; comme individu, tout lui est permis
sauf ce qui est dffendu, provided he does not transgress the substantive law, or
infringe the legal rights of others; mais comme officier public, tout lui est prohib
sauf ce qui est permis, (he) may do nothing but what (he is) authorized to do
by some rule of common law or statute (Halsbury, Laws of England (1932,),
t. 6, n. 435, p. 389).
S’il transgresse sont autorit , for acts done in (his) official character but in
excess of (his) lawful authority, (he may) be brought before the Courts .and
made in (his) personal capacity, liable to punishment or to the payment of
damages (Dicey, Law of the Constitution, 9th ed., p. 193).
He summarizes his conclusions as follows:
L’action du ddfendeur, on I’a vu, ne peut pas 8tre classifi~e parmi les actes
permis, par les statuts, au procureur g~nral, ni au premier ministre; elle ne peut
t6 faite dans l’exercice ou dans l’ex&ution de
pas Etre consider& comme ayant
ses fonctions comme telles; elle entre dans la cat~gorie des actes prohibes, des
limites des fonctions, et comme telle, elle engendre ]a
actes commis hors des
responsabilit6 personnelle.9 8
Here are thus two conflicting theories. (1) On the one hand the majority of
the Appeal Court ruled that there is no liability for giving an unauthorized
order unless such order by its very nature is unlawful, i.e. would constitute a
fault even if emanating from the depositary of the discretion; (2) on the
other hand, Rinfret J. declared that there is liability due to the mere usurpation
of authority, irrespective of whether there would have been fault on the part
of the Commission had it acted proprio motu. This second view in effect
means: if you cause damage without authority you are liable and it does not
matter whether someone else could have inflicted such damage lawfully.
The Supreme Court did not display much more perspicacity than the Appeal
Court in dealing with this dilemma. Mr. Justice Rand wrote :l9
The act of the respondent through the instrumentality of the Commission
brought about a breach of an implied public statutory duty toward the appellant;
it was a gross abuse of legal power expressly intended to punish him for an act
wholly irrelevant to the statute . . . Whatever may be the immunity of the Com-
mission or its member from an action for damages, there is none in the respondent.
He was under no duty in relation to the appellant and his act was an intrusion
upon the functions of a statutory body. The injury done by him was a fault engaging
liability within the principles of the underlying public law of Quebec .
.
.
This is an ambiguous statement which is subject to interpretation both ways.
In fact, a little later, Rand J. explicitly refused to decide this point a
98Ibid., at p .518.
99[1959] S.C.R. 121, at pp. 141-42.
lOOlbid., at p. 144.
No. 2]
RONCARELLI v. DUPLESSIS
Mr. Scott argued further that even if the revocation were within the scope
of the discretion and not a breach of duty, the intervention of the respondent in
so using the Commission was equally at fault .
. I express no opinion for or
against (this view).
.
Martland J. was equally cryptic,1 1 although he seemed to favor the view
urged by Rinfret J. Mr. Justice Abbott might also be said to side with the
latter view:
The respondent is .
liable under art. 1053 of the Civil Code for the
damages sustained by the appellantf by reason of the acts done by respondent
in excess of his legal authority. 0 2
.
.
The opinion of Mr. Justice Fauteux (diss.)
first stating’
that
is even more elusive. After
. .
. l’annulation du permis est exclusivement imputable i l’intim6 et pr6cis6ment
pour cette raison, constitue, dans les circonstances, un acte illicite dormant droit a
1’appellant d’obtenir r6paration pour les dommages lui en r6sultant
he writes’ 04
En assumant l’exercice d’un pouvoir discrtionnaire conf6r6 an g6rant g6n6ral
par la loi, l’intim6 a commis une ill6galit6, mais aucune offense connue de la
loi p~nale et aucun d6lit au sens de
‘art. 1053 C.C.
Contradictory and enigmatic though this is, it has at least the merit of bringing
out the difficulty of fitting Duplessis’ actions within the scope of art. 1053 C.C.
As for Cartwright J., he implicitly adopted the view that the cancellation
must have been an actionable wrong on the part of the Commission to render
Duplessis liable.’ 05
It is evident from this examination that the problem was never clearly
formulated in the minds of the learned justices. This is regrettable, especially
in view of the inescapable implications of their judgment. The question that
had to be answered was this: did, in civil law, the fault lie in causing damages
without authority or did it consist in causing damages which, even if there
had been authority, would still have constituted an actionable wrong? By
adopting the second alternative, the Court would in effect sanction the right
of Crown officers to interfere in the operations of independent bodies. For
if the fault of the officer is predicated upon the existence of fault on the
part of the body whose authority he usurps, it would also mean the obverse:
no liability for usurpation when the body itself would not be liable. Such
principle would defeat the policy of the law. Moreover, public officers have
no powers other than those specifically -granted them by law. If there is
no text of law exonerating them from liability for causing damages, they should
1OiIbid., at p. 159.
l O2Ibid., at p. 185.
103Ibid., at p. 175.
1041bid., at p. 181.
iOSIbid., at p. 170
McGILL LAW JOURNAL
[Vol. 6
be accountable. The rule, stated in its broadest terms, is given as follows in
a leading English textbook on constitutional law ?o6
In the absence of statutory immunity, every individual is liable for the commission
of wrongful acts and for such omissions of duty as give rise to actions in tort
at common law or for breach of statutory duty.
even for the worthiest of motives –
Officers cannot arrogate to themselves –
a power they do not hold under a specific text of law. The general rule
underlying art. 1053 CC. could be paraphrased as follows: anyone causing
damages is liable unless authorized by law to inflict them. A judge, a Crown
officer, an executioner, are, under certain circumstances, exonerated from
liability for the obvious damages they cause in the exercise of their functions.
Hence the fault or innocence of the Commission would have been irrelevant.
The Commission became only the instrument by which defendant damaged
plaintiff. In strict logic, one must conclude that Duplessis would have been
liable even if he had ordered the Commission to exercise its discretion in
a manner which by itself would have been lawful and would not have cons-
tituted a fault on the part of the latter. In other words, while the Appeal Court
in effect held: it is an actionable wrong for a public officer without authority
to cause another to commit a fault, the Supreme Court’s ratio decidendi would
be: it is an actionable wrong for a public officer to cause another to cause
damage (i.e. whether by a fault or not). The root of the liability lies in the
usurpation of authority, not in the manner in which the usurped authority is
exercised. So the Supreme Court can be held to have established the principle
that no one without authority can order another to cause damage to a third
party, and fault on the part of the author of the damage is not a prerequisite
of liability in the defendant. This distinguishes it radically from vicarious
liability under 1054 C.C. requiring fault in the agent.
This rule can be rephrased to cover ordinary cases where authority is not
an issue. Since private persons normally have no authority to’ cause damage
in any capacity whatever, the proposition could be generalized so as to state:
no one can induce another to cause damages. Again, the existence of fault
in the immediate author need not be established. It would place the burden
on the possessor of a de facto power to show he had authority to induce the
author to damage the victim. Far-fetched as this may sound, it is the logical
result of the Supreme Court decision. Anyone using persuasion or a de facto
power of any type to induce another to damage a third party should be liable
to the latter. Individuals have a right to expect that they will not be damaged
at the instigation of another. Thus a spiritual counsellor advising the cancellation
of a contract, a licence, or a dismissal, might be liable in damages to the creditor,
t06Wade and Phillips, op. jit., p. 300.
No. 2]
RONCARELLI v. DUPLESSIS
the holder or the employee. 107 The principle has been unwrittingly applied in
two Quebec decisions. A priest using his moral authority to restrain a woman
from cohabiting with her husband was recently condemned in damages even
though on the part of the wife there was no wrong actionable under art.
1053 C.C.’8 A municipal corporation whose council procured an administrative
body to cancel a dance hall licence was condemned in damages.’0 9
Thus a mistress or a jealous wife causing the dismissal of too attractive a
secretary could be held liable for damages to the latter even if her employer
would have been justified in law to dismiss her for other reasons. A principle
akin to the one just outlined lies at the basis of all condemnations of corres-
pondents in actions for alienation of affection. Under the Criminal Code the
mere counselling of an offence, whether the offence is actually committed
or not, can itself constitute an offenceil10
in constitutional, administrative, and
This expansion of the notion of fault under art. 1053 C.C., implicit in the
decision of a Supreme Court majority consisting in five common law judges
and one English-speaking Quebec judge, none of whom formulated the principle
on which they applied art. 1053, may not be easily accepted in Quebec. Its
repercussions
labor law, as well as
its effect on the relations between individuals could be immense. It is nonetheless
the most significant, though controversial, contribution of this memorable case
to our law. The other holdings did not constitute departures from established
rules nor clarifications of doubtful ones and derived their impact mainly from
such non-legal factors as the circumstances of the case and the personalities
in conflict. In the perspective of history, Roncarelli v. Duplessis may be looked
upon as a milestone chiefly in the interpretation of art. 1053 C.C.
107This has actually been held in French law: D.18962.496: it is a fault to use
influence to induce a curE to dismiss an organist who is a free-mason; D.1910.1.148
and D. 1905.1.349: it is a fault to use manoeuvres to induce another to dismiss a
worker. See also Mazeaud, Traiti de Responsabiliti Civile, 4th ed., vol. II, p. 526 and
529; Savatier, Traiti de Responsabiliti Civile, 2nd ed., vol. II, pp. 20-21.
lOSNicol v. Collette, [1950] S.C. 117.
109Leroux v. City of Lachine, [1942] S.C. 352.
11oCf, ss. 212 and 407.
