Was Duplessis Right?

McGill Law Journal ~ Revue de droit de McGill

WAS DUPLESSIS RIGHT?

Roderick A. Macdonald*

Given the inclination of legal scholars to
progressively displace the meaning of a judicial
decision from its context toward abstract propo-
sitions, it is no surprise that at its fiftieth anni-
versary, Roncarelli v. Duplessis has come to be
interpreted in Manichean terms. The complex
currents of postwar society and politics in Que-
bec are reduced to a simple story of good and
evil in which evil is incarnated in Duplessiss
persecution of Roncarelli.

In this paper the author argues for a more
nuanced interpretation of the case. He suggests
that the thirteen opinions delivered at trial and
on appeal reflect several debates about society,
the state and law that are as important now as
half a century ago. The personal socio-demography
of the judges authoring these opinions may have
predisposed them to decide one way or the
other; however, the majority and dissenting
opinions also diverged (even if unconsciously) in
their philosophical leanings in relation to social
theory (internormative pluralism), political the-
ory
legal theory
(pragmatic instrumentalism). Today, these di-
mensions can be seen to provide support for
each of the positions argued by Duplessiss
counsel in Roncarelli given the state of the law
in 1946.

(communitarianism), and

tant donn la tendance quont les juristes
extraire la signification dune dcision judiciaire
de son contexte pour lamener vers des proposi-
tions abstraites, il nest pas surprenant que
larrt Roncarelli c. Duplessis, dont cest le cin-
quantime anniversaire, soit interprt dune
manire manichenne. Les courants sociopoliti-
ques complexes du Qubec de laprs-guerre
sont rduits une simple histoire de bien et de
mal dans laquelle la perscution de Roncarelli
par Duplessis incarne le mal.

Dans cet essai, lauteur propose une inter-
prtation plus nuance de larrt. Il suggre que
les treize jugements prononcs en premire in-
stance et en appel refltent plusieurs dbats sur
la socit, sur ltat et sur le droit qui sont tout
aussi pertinents aujourdhui quil y a un demi-
sicle. Lidentit sociodmographique des juges
qui ont rdig ces jugements les a peut-tre
prdisposs dcider dans un sens ou dans
lautre. Toutefois, les opinions majoritaires et
dissidentes dtachent (peut-tre inconsciem-
ment) de cette identit travers des penchants
philosophiques quant la thorie sociale (le
pluralisme internormatif), la thorie politique
(le communautarisme) et la thorie juridique
(linstrumentalisme pragmatique). Aujourdhui,
ces thories pourraient tre vues comme soute-
nant chacun des arguments plaids par les avo-
cats de Duplessis dans laffaire Roncarelli
compte tenu de ltat du droit en 1946.

* F.R. Scott Professor of Constitutional and Public Law, McGill University; President, Royal
Society of Canada. I should like to thank Professor Genevive Cartier for organizing the sym-
posium at which this paper was initially presented, and for her comments on an earlier ver-
sion of this paper. I am also grateful to my McGill colleagues Kim Brooks, Evan Fox-Decent,
Hoi Kong, and Robert Leckey for their several suggestions about how to sharpen the argu-
ment presented here. I owe a special debt to the latter two, who generously offered insights
about how to address the comments raised by the Journals anonymous reviewer. My re-
search assistants, Alexander Herman (LL.B./B.C.L. 2009) and Scott Scambler (LL.B./B.C.L.
2011) were especially diligent in tracking down sources and supporting materials.

Citation: (2010) 55 McGill L.J. 401 ~ Rfrence : (2010) 55 R.D. McGill 401

Roderick A. Macdonald 2010

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Introduction

I.

II.

III.

The Judgments and the Judges
A. Brief Summary of the Judgments
B. Socio-demographic Profiles of the Judges
C. Ideological Profiles of the Judges
D. Synthesizing This Context

The Social Theory of Patrick Devlin and George Grant
A. The Enforcement of Morals
B. Lament for a Nation
C. Justices Pratte and Martineaus Social Theory
D. Internormative Pluralism

The Political Theory of the Tremblay Commission and
Charles Taylor
A. The Province of Quebec and the French-Canadian

Case

B. The Making of the Modern Qubcois Identity
C. Justices Bissonnette and Caseys Organic Political

Theory

D. Communitarianism

IV.

The Legal Theory of Lon Fuller and John Willis
A. Implicit Law and Fidelity to Law
B. Lawyers Values and Civil Servants Values
C. Justices Fauteux and Taschereaus Morality of Law
D. Pragmatic Instrumentalism

Conclusion

Appendix

 WAS DUPLESSIS RIGHT? 403

Introduction
The year 1959 is remembered by Canadian public lawyers for the Su-

preme Court of Canadas decision in Roncarelli v. Duplessis.1 For many at
the time, the case was not just about the relationship of law and politics.
It reflected a larger issue that was also current in the United Kingdom
and the United Statesnamely, the perennial debate between the propo-
nents of positivism and those of natural law. In the United Kingdom, the
salient contemporary events were the delivery, under the title The En-
forcement of Morals,2 of the Maccabean Lecture at the British Academy
by Law Lord Patrick Devlin and the riposte by Oxford professor H.L.A.
Hart.3 In the United States, Harts Holmes Lecture at Harvard entitled
Positivism and the Separation of Law and Morals,4 and the reply by Lon
Fuller,5 occupied a similar intellectual space. In the Canadian judicial in-
stantiation of this debate, which was overlain by consideration of the
states role in preserving traditional values against unbridled liberalism,6
the arguments advanced on behalf of Duplessis were quickly dismissed as
erroneous, opportunistic, and theoretically ungrounded. By contrast,
those presented by counsel for Roncarelli attracted scholarly favour for
their legal and jurisprudential acuity.7
Unsurprisingly, given the inclination of legal scholars to progressively
displace the meaning of a judicial decision from its context toward ab-
stract propositions, at its fiftieth anniversary, Roncarelli has come to be

1 [1959] S.C.R. 121, 16 D.L.R. (2d) 689 [Roncarelli cited to S.C.R.].
2 Lord Devlins initial lecture of 1958 was later expanded into a book of the same title.
See Patrick Devlin, The Enforcement of Morals (London, U.K.: Oxford University Press,
1965).

3 The Harry Camp Lectures were delivered at Stanford Law School and published there-
after: H.L.A. Hart, Law, Liberty and Morality (Stanford: Stanford University Press,
1963).

4 H.L.A. Hart, Positivism and the Separation of Law and Morals (1958) 71 Harv. L.

Rev. 593 [Hart, Positivism].

5 Lon L. Fuller, Positivism and Fidelity to LawA Reply to Professor Hart (1958) 71

Harv. L. Rev. 630 [Fuller, Positivism and Fidelity].

6 Compare the political theory advanced in the following: Province of Quebec, Report of
the Royal Commission of Inquiry on Constitutional Problems (Quebec: Government of
Quebec, 1956) (chaired by Justice Thomas Tremblay) [Tremblay Report]; Canada, Re-
port of the Royal Commission on Dominion-Provincial Relations (Ottawa: Queens
Printer, 1954) (chaired by Newton Wesley Rowell and Joseph Sirois) [Rowell-Sirois Re-
port].

7 For scholarly reaction to the Roncarelli decision at the time that it was rendered, see
Claude-Armand Sheppard, Roncarelli v. Duplessis: Art. 1053 C.C. Revolutionized
(1960) 6 McGill L.J. 75, reprinted in (2010) 55 McGill L.J. v; Edward McWhinney, Case
Comment on Roncarelli v. Duplessis (S.C.C.), (1959) 37 Can. Bar Rev. 503. For a
thorough review of the socio-political context of the case, see Michel Sarra-Bournet,
Laffaire Roncarelli : Duplessis contre les Tmoins de Jhovah (Quebec: Institut
qubcois de recherche sur la culture, 1986).

404 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

interpreted in Manichean terms. So, for example, the complex currents of
postwar society and politics in Quebec are reduced to a simple story of
good and evil. In this story, evil is incarnated in Duplessiss persecution
of Roncarelli. Few sympathize with the prime ministers struggle from
1944 through 1959 to defend a particular conception of Quebec society
against two external threats that Roncarellis actions were seen to sym-
bolize. One was the increasing attraction of an individualistic, economic-
liberal conception of the state in the north atlantic region. The second was
the pressure to legislate a big-brother tat-providence of the type articu-
lated by Franklin Roosevelts New Deal in the United States, the Rowell-
Sirois Commission in Canada, and the Beveridge Report in the United
Kingdom. History is written by winners and so it was predictable that
Roncarelli would eventually be celebrated as the vindication of the rule of
law against an oppressive, rights-disrespecting government.8

In this paper I argue for a more nuanced interpretation of the case. I
suggest that the thirteen opinions delivered at trial and on appeal reflect
several social and intellectual debates about society, the state, and law
that are as important today as they were half a century ago. While the
personal socio-demography of the judges authoring these opinions may
have predisposed them to decide one way or the other (Part I), the major-
ity and dissenting opinions also reflectedeven if unconsciously
divergent philosophical leanings in relation to social theory (Part II), po-
litical theory (Part III), and legal theory (Part IV). In each of these dimen-
sions Duplessiss position finds powerful support: the social theory of Pat-
rick Devlin and George Grant rather than that espoused by H.L.A. Hart
and F.R. Scott; the political theory of the Tremblay Commission and
Charles Taylor rather than that of the Rowell-Sirois Report and Pierre
Trudeau; and the legal theory of Lon Fuller and John Willis rather than
that advocated by H.L.A. Hart and J.C. McRuer.
Before proceeding, a caveat is in order. Let me be clear that I am not
claiming sainthood for Duplessis. I do not believe that Duplessiss conten-
tion that all permits and other forms of new property are exclusively
state-granted privileges is appropriate to a robust, democratic, multicul-
tural stateeven if some contemporary forms of indirect governance re-
main of this character.9 Nor do I believe that all the quasiprivative

8 For an elaboration of this standard, English-language, proJehovahs Witnesses ac-
count of Duplessiss actions, see William Kaplan, State and Salvation: The Jehovahs
Witnesses and Their Fight for Civil Rights (Toronto: University of Toronto Press, 1989)
c. 8. For a more sympathetic narrative of Duplessiss motives and actions, see Conrad
Black, Duplessis (Toronto: McClelland & Stewart, 1977).

9 For an analysis of franchises, exclusive-dealing contracts, public-private partnerships,
and other modern tools of indirect government by which states achieve regulatory ends
by enlisting private parties, see Lester M. Salamon, ed., The Tools of Government: A
Guide to the New Governance (New York: Oxford University Press, 2002).

 WAS DUPLESSIS RIGHT? 405

clauses10 that procedurally impeded Roncarellis quest for vindication are
fully justifiable todayeven if similar (and stronger) limitations on a citi-
zens right to sue the Crown and its agents were part of the law every-
where else in Canada in 1947.11 Nor, finally, do I seek to justify the man-
ner in which Duplessis used the crusade against Jehovahs Witnesses as a
political strategy.12
My goal is more modest. It is to trace out summarily the conception of
a society, of a state, and of the relationship between the several normative
orders that comprise a modern multicultural state that can be viewed as
having potentially grounded Duplessiss claim. In doing so, I do not offer a
thoroughgoing defence of the relevant theories. I aim only to draw atten-
tion to them in the hopes that scholars can gain a fuller understanding of
the case in its social and historical context.

I. The Judgments and the Judges
A brief scan of references to Roncarelli in public law texts reveals that
it is rarely cited for any propositions other than an abstract, judicially en-
forceable rule of law claim that no official is above the law.13 Although one
contemporary commentator understood the case as primarily about a
novel extension of the principle of civil liability in article 1053 of the Civil
Code of Lower Canada to decisions of public officials,14 and another as il-

10 Two in particular are, in todays light, suspect: the requirement of judicial permission to
sue employees of the Quebec Liquor Commission, and the obligation to obtain the per-
mission of the Attorney General to sue the Quebec Liquor Commission. See Alcoholic
Liquor Act, R.S.Q. 1941, c. 255, ss. 12(1), 12(2). As I argue in Part IV below, however,
the provision under which it was necessary to give a one-month advance notice of an in-
tention to sue public servants (art. 88 C.C.P.) is of a different character and can be justi-
fied on public policy grounds.

11 The proceedings were launched in the 1940s when it was still necessary to obtain a fiat
from the Attorney General prior to the enactment of the Crown Proceedings Act, 1947
((U.K.), 10 & 11 Geo. VI, c. 44), which was adopted throughout Canada between 1951
and 1954. See Peter W. Hogg & Patrick J. Monahan, Liability of the Crown, 3d ed.
(Scarborough, Ont.: Carswell, 2000) c. 1 [Hogg & Monahan, Liability].

12 See Sarra-Bournet, supra note 7.
13 See e.g. Peter W. Hogg, Constitutional Law of Canada (Toronto: Carswell, 2009) (citing
the case twice without elaboration); The Constitutional Law Group, Canadian Constitu-
tional Law, 3d ed. (Toronto: Emond Montgomery, 2003) at 640-44 (citing Roncarelli
simply as a case protecting rights); Grald-A. Beaudoin, La Constitution du Canada :
institutions, partage des pouvoirs, droits et liberts (Montreal: Wilson & Lafleur, 1990)
(citing the case seven times, notably in the introduction under the rule of law); Henri
Brun, Guy Tremblay & Eugnie Brouillet, Droit constitutionnel, 5th ed. (Cowansville,
Qc.: Yvon Blais, 2008) at 690 (citing the case four times, notably under the section on
the rule of law).

14 Sheppard, supra note 7 at 97.

406 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

lustrating a conflict of legal traditions,15 Roncarelli is today cited as an
example of jurisdictional error for abuse of discretion, acting under dicta-
tion and usurpation of authority.16

The case was originally decided in the Quebec Superior Court17 by
Justice Mackinnon,18 who found for Roncarelli in a judgment dated 2 May
1951. Upon appeal to the Quebec Court of Queens Bench (Court of Ap-
peal), in a judgment rendered on 12 April 1956,19 the Quebec Superior
Court decision was reversed (per Justices Bissonnette,20 Pratte,21 Casey,22

15 McWhinney, supra note 7 at 506-507, 510-12.
16 See e.g. David J. Mullan, Administrative Law (Toronto: Irwin Law, 2001) (citing the
case seven times for these propositions); Colleen M. Flood & Lorne Sossin, eds., Admin-
istrative Law in Context (Toronto: Emond Montgomery, 2008) at 87-90 (on the rule of
law), 275-78 (on discretion); Patrice Garant, Droit administratif, 5th ed. (Cowansville,
Qc.: Yvon Blais, 2004) at 207, 243, 258 (citing the case ten times primarily on discre-
tion), at 960 (on the civil liability of officials).

17 Roncarelli v. Duplessis (1951), [1952] 1 D.L.R. 680 (Qc. Sup. Ct.). The action was
launched in June 1947 and came on for trial in May 1950. Judgment was rendered a
year later. Whether because the case was written in English, because of its subject mat-
ter, or both, the case was not reported in the official Rapports judiciaires du Qubec
Cour suprieure. Nonetheless, it attracted at least one academic comment by Wade,
who was then editor of A.V. Diceys Introduction to the Study of the Law of the Constitu-
tion (10th ed. by E.C.S. Wade (London, U.K.: Macmillan, 1959)). See E.C.S. Wade, Case
Comment on Roncarelli v. Duplessis (Sup. Ct.), (1951) 29 Can. Bar Rev. 665.

18 Cecil Gordon Mackinnon was born in Cowansville, Qc., in 1879 and studied at Bishops
(B.A.), McGill (B.C.L.), and Montpellier. He practised in Montreal with a Conservative
firm (Senator George Foster), served as a field-grade officer in World War I, and was
appointed to the Quebec Superior Court on 25 February 1934, retiring on 1 February
1953. A scan of the official Rapports judiciaires du QubecCour suprieure reveals
eighty-three decisions by Mackinnon J. between 1935 and 1952, none of which deals
with an issue of civil liberties and none of which is particularly remarkable. See I.-J.
Deslauriers, La Cour suprieure du Qubec et ses juges : 18491er janvier 1980, (Quebec:
n.p., 1980) at 205.

19 Duplessis v. Roncarelli, [1956] B.R. 447 (C.A.) [Roncarelli (C.A.)]. See also Benjamin J.
Greenberg, Case Comment on Duplessis v. Roncarelli (C.A.), (1956) 3 McGill L.J. 82.
The case had been argued in November 1954 and judgment was released on 12 April
1956.

20 Bernard Bissonnette was born in Saint-Esprit (Montcalm County) in 1898 and gradu-
ated in law from the University of Montreal in 1927. He practised in Montreal with a
Liberal firm (Honor Mercier, Grald Fauteux) and was elected to the Legislative As-
sembly in 1939, serving as Speaker until 8 May 1942, when he was appointed to the
Court of Kings Bench (Montreal division), from which he retired in 1964. See Comit
gnral des juges de la cour suprieure de la province de Quebec, Bulletin No. 38, La
Cour dappel du Quebec et ses juges, 1849 1980 by Ignace-J. Deslauriers (Montreal:
Cour suprieure de la Province de Quebec, 1980) at 46.

21 Garon Pratte was born in Rivire-du-Loup in 1900. He studied at the University of Ot-
tawa (B.A.) and Laval (LL.L.), and practised with a Liberal firm (the Right Honourable
Ernest Lapointe) in Quebec City from 1923 until 1937, when he was appointed to the
Quebec Superior Court. On 2 October 1945, he was appointed to the Court of Kings
Bench (Quebec Division), where he served until 1968. In 1943 he served on the Royal
Commission of Inquiry into Labour Difficulties in the Pulp and Paper Industry in Sa-

 WAS DUPLESSIS RIGHT? 407

and Martineau,23 with Justice Rinfret24 dissenting). Upon further appeal
to the Supreme Court of Canada, the trial judgment was restored (per
Chief Justice Kerwin and Justices Locke, Rand, Martland, Judson, and
Abbott, with Justices Taschereau, Cartwright, and Fauteux dissenting).25

A. Brief Summary of the Judgments

Five main issues were raised in the pleadings and addressed by one or
more of the thirteen judges who drafted opinions in the case: (1) Did
Duplessis order the cancellation, or, if he did not actually order the
cancellation, was his opinion determinative? (2) Did Duplessis have the
legal authority to make such an order? (3) Was the discretion of the head
of the Quebec Liquor Commission properly exercised? (4) Was Duplessis
immune from a civil action? and (5) Did the failure to give Duplessis
notice as required by article 88 of the Code of Civil Procedure (C.C.P.) bar
Roncarellis claim?

Justice Mackinnon at trial, Justice Rinfret dissenting on appeal, and
Justice Abbott in the Supreme Court of Canada answered all these ques-
tions identically. For them, Duplessis actually ordered the cancellation;
his order was determinative; he had no authority to do so; his actions im-
properly influenced the discretion of the head of the Quebec Liquor Com-
mission; he was not immune from suit either as prime minister or as a

guenay-Lac Saint-Jean. He is the father of former Supreme Court Justice Yves Pratte.
See ibid. at 32.

22 Paul Casey was born in Montreal in 1904 and studied at Loyola (B.A.) and McGill
(B.C.L.). He practised in Montreal with a Liberal firm (the Right Honourable Douglas
Abbott) from 1929 until his appointment to the Court of Kings Bench (Montreal Divi-
sion) on 27 December 1946. He retired in 1979. See ibid. at 31.

23 Jean Martineau was born in Saint Hyacinthe in 1895 and studied at the Collge de
Saint-Jean (B.A.) and the University of Montreal (LL.L.). He practised law in Montreal
from 1919 until he was appointed to the Court of Queens Bench (Montreal Division) on
18 August 1954. His father was a Quebec Superior Court judge and he was a member of
the Bloc populaire in the 1930s and 1940s. He resigned from the court in 1959 and re-
joined his firm (Martineau, Walker) having written no other judgments in notable cases
during his tenure. See ibid. at 32.

24 G.-douard Rinfret was born in Saint-Jrme in 1905 and studied at the Collge
Sainte-Marie (Montreal) (B.A.), McGill (B.C.L.), and the University of Montreal (LL.M.).
From 1928, he practised law with Liberal firms in Montreal, and in 1934 was first
president of the Association de la jeunesse librale du Qubec. He was Member of Par-
liament for Outremont from 1945, and was Postmaster General from 1949 until his ap-
pointment to the Court of Kings Bench (Montreal Division) on 13 February 1952. He
was appointed Chief Justice of Quebec in 1977 and retired in 1980. He is the son of the
Right Honourable Thibodeau Rinfret, Chief Justice of Canada (194454). See ibid. at
33-34.

25 See Roncarelli, supra note 1. See the summary biographies of justices of the Supreme

Court of Canada, online: Supreme Court of Canada .

408 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

private citizen; and he could not invoke article 88 C.C.P. as a defence
since he was acting outside the scope of his office.

The other five majority judges of the Supreme Court of Canada an-
swered identically to these three, except that they did not opine on the
question of whether Duplessis would be immune from liability if he were
acting in his official capacity, for them a counterfactual hypothetical.
Each of the four majority judges in the Quebec Court of Appeal wrote
a separate judgment, finding either that Duplessis did not order the can-
cellation, or, in the case of Justice Pratte, that he ordered the cancellation
but without determinative effect since the head of the Liquor Commission
had already decided on his own to do so. None held that Duplessis was
immune from suit, and two expressly stated that even as prime minister
and Attorney General he was not so immune. Finally, none found it nec-
essary to address the questions of whether Duplessis was acting within the
scope of his authority and whether he could plead the benefit of article 88.

The three dissenting judges in the Supreme Court of Canada decided
the case on different grounds. Two judges, Justices Cartwright and Fau-
teux, concluded that Duplessis ordered the cancellation. Justice Fauteux
found that Duplessis had no authority to interfere but that the claim was
barred by article 88. Justice Taschereau agreed with the latter conclusion,
arguing also that Duplessis did not cease to be acting in his official capac-
ity simply because he might have committed a mistake. Justice Cart-
wright did not expressly find that Duplessis had the authority to order the
cancellation, but concluded that the manager of the Liquor Commission
had an unfettered discretion to revoke the permit. Consequently, the
manager was entitled to take whatever counsel he wished, from whom-
ever he wished, and no orders or influence exercised by Duplessis could
give rise to a civil wrong.
Curiously, twelve of the fifteen judges wrote lengthy opinions on the
irrelevant question, now perceived as central, of whether the discretion of
the manager of the Liquor Commission was properly exercisedwith
eight finding that it was not and four finding that it was.26 The action was
not brought to have the decision set aside on that basis. Nor was the ac-
tion directed against either the Liquor Commission or its manager, Ar-
chambault. Only Justices Pratte, Taschereau, and Fauteux appear to
have understood that the judgment of the majority would have been the
same had Duplessis actually ordered Archambault not to revoke the li-
cence. Of course, there would then have been no harm to Roncarelli com-
pensable by damages. But, on the logic of the majority, by wrongfully dic-

26 See Sheppard, supra note 7 at 90-92. Mackinnon J., Rinfret J.A., Kerwin C.J.C., Rand,
Martland, Abbott, Locke, and Judson JJ. found an improper exercise of discretion; Bis-
sonnette, Martineau, and Casey JJ.A. and Cartwright J. found no improper exercise.

tating to Archambault how to exercise his discretion, Duplessis would
have committed a legal fault nonetheless, and in following these orders
Archambault would have abused his discretion.

WAS DUPLESSIS RIGHT? 409

B. Socio-demographic Profiles of the Judges

It is often not enough to know the reasons judges give in their judg-
ments. Two other sometimes unacknowledged factors can bear on a deci-
sion. First, judges have their own distinctive socio-demographic back-
ground that can influence their decisions regardless of the facts of particu-
lar cases. Second, they also have certain ideological predispositions to find
in certain ways, again regardless of the facts of the case before them.27
Every judge is an individual with a particular constellation of identity
characteristics and a unique life experience. While it may be that being
left-handed or vegetarian will be found to play a determinative role at
some future time, given present knowledge, one can identify six signifi-
cant socio-demographic criteria that appear to correlate with judicial out-
comes in Canada: gender,28 class,29 language, geography, religion, and po-
litical party of appointment.

Taking these factors together, one can develop a profile of the judge
who voted pro-Duplessis: any combination of being three or more of (1)
francophone, (2) from Quebec, (3) Roman Catholic, and (4) appointed by a
Liberal government. Five
judgesBissonnette, Pratte, Martineau,
Taschereau, and Fauteuxscore four of four; and one judgeCasey, an
anglophonescores three of four.

The profile of the judge who voted pro-Roncarelli is as follows: any
combination of being three or more of (1) anglophone, (2) not from Quebec,
(3) not Roman Catholic, and (4) appointed by a Conservative government.
Two judgesMartland and Judsonscore four of four. And four judges
Mackinnon (from Quebec), Rand and Locke (Liberal appointments), and
Kerwin (Roman Catholic)score three of four.

27 I assume these two points are uncontroversial and forego citation to the plethora of ar-

ticles and monographs teasing out their permutations.

28 All the judges were male; there is no publicly available evidence as to sexual orientation.
29 There is insufficient data to assess the impact of social class on the decision, although it would
appear that at least Rand J., and possibly Kerwin C.J.C. and Locke J., came from working
class backgrounds. Both Martland and Judson JJ. were born in England. All others were born
in Canada. Among the Quebec judges, none could be said to have come from modest circum-
stances, and most were from families with a legal background. All were born in Quebec.

410 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

Court

Judge

Franco-
phone

From
Quebec

Roman
Catholic

Liberal
appointee

C.A.

S.C.C.

s
i
s
s
e
l
p
u
D
–
o
r
P

Bissonnette J.A.
Casey J.A.
Martineau J.A.
Pratte J.A.
Cartwright J.
Fauteux J.
Taschereau J.

Sup.Ct. Mackinnon J.

C.A.
S.C.C.

i
l
l
e
r
a
c
n
o
R
–
o
r
P

Rinfret J.A.
Abbott J.
Judson J.
Kerwin C.J.C.
Locke J.
Martland J.
Rand J.

Only three judges did not fit these profiles: Rinfret (francophone, Ro-
man Catholic, from Quebec, and appointed by a Liberal government), who
voted pro-Roncarelli despite having four pro-Duplessis characteristics;
Cartwright (anglophone, not Roman Catholic, not from Quebec, and ap-
pointed by a Liberal government), who voted pro-Duplessis despite having
three pro-Roncarelli characteristics; and Abbott (anglophone, nonRoman
Catholic, from Quebec, and appointed by a Liberal government) who voted
pro-Roncarelli despite having two pro-Duplessis characteristics.
More generally, if one takes account of all judges who heard what
have come to be understood as the Quebec fundamental freedoms cases
of the 1950s, one discovers that (1) with only three exceptions, no Quebec-
based, Roman Catholic, francophone judge on the Supreme Court of Can-
ada ever decided a case against the government,30 and (2) no anglophone
judge on the Supreme Court of Canada except Justice Cartwright (three

30 Boucher v. R. (1950), [1951] S.C.R. 265, [1951] 2 D.L.R. 369 [Boucher]; Saumur v. Que-
bec (City of), [1953] 2 S.C.R. 299, [1953] 4 D.L.R. 641 [Saumur]; Chaput v. Romain,
[1955] S.C.R. 834, 1 D.L.R. (2d) 241 [Chaput]; Henry Birks & Sons (Montreal) Ltd. v.
Montreal (City of), [1955] S.C.R. 799, [1955] 5 D.L.R. 321 [Henry Birks]; Switzman v.
Elbling, [1957] S.C.R. 285, 7 D.L.R. (2d) 337 [Switzman]; Roncarelli, supra note 1;
Lamb v. Benoit, [1959] S.C.R. 321, 17 D.L.R. (2d) 369 [Lamb]. The exceptions were Fau-
teux and Taschereau JJ. in Chaput and Henry Birks (both unanimous decisions, and in
Henry Birks the issue was Sunday closing laws, irrelevant to either communistic
propaganda or Jehovahs Witnesses), and Fauteux J. in Switzman.

 WAS DUPLESSIS RIGHT? 411

times) and Justice Abbott (once) ever found for the government.31 In the
Quebec Court of Appeal, apart from the dissent of Justice Rinfret in Ron-
carelli, in each of these fundamental freedoms cases, no francophone,
Roman Catholic judge ever found for the plaintiff, while no anglophone,
non-Catholic judge ever found for the government.32 I elaborate the sig-
nificance of these profiles in the remainder of this section.

C. Ideological Profiles of the Judges

While Roncarelli was wending its way up the courts, a new empirical
approach to understanding judicial decision-making, scalogram analysis,
was becoming popular. Scalogram analysis focuses on the actual outcomes
of contested appellate decisions, organizing cases according to the key le-
gal principle at issue and comparing individual judicial outcomes along
each policy dimension. Two studiesone covering the period from 1950 to
1960,33 and the other the period from 1958 to 196734present data sets
relevant for understanding the Roncarelli decision of the Supreme Court
of Canada.35

The first study cross-tabulated data from all non-unanimous decisions
dealing with public policy questions relating to civil liberties36 and eco-

31 Cartwright J. found for the government in Boucher, Saumur, and Roncarelli on sub-
stantive grounds, and Abbott J. found for the government in Lamb on procedural
grounds. Kerwin C.J.C., the only anglophone Roman Catholic on the Supreme Court of
Canada, consistently found for the plaintiff, perhaps a reflection of the minority position
of Roman Catholics in largely Protestant Ontario.

32 In each case cited in supra note 30 in which they appeared, Bissonnette, Pratte, and
Martineau JJ.A. (and except in Roncarelli (C.A.), Rinfret J.A.) supported the govern-
ment. Casey J., a non-francophone Roman Catholic, found against the plaintiff in Ron-
carelli, Lamb, Chaput, and Henry Birks, the only fundamental freedoms decisions in
which he participated.

33 Donald E. Fouts, Policy-Making in the Supreme Court of Canada, 19501960 in
Glendon Schubert & David J. Danelski, eds., Comparative Judicial Behavior: Cross-
Cultural Studies of Political Decision-Making in the East and West (New York: Oxford
University Press, 1969) 257.

34 Sydney R. Peck, A Scalogram Analysis of the Supreme Court of Canada, 19581967 in

Schubert & Danelski, supra note 33, 293.

35 In preparation of this article, I attempted a rudimentary scalogram analysis of funda-
mental freedoms, criminal law, and administrative law decisions taken between 1946
and 1960 by the five appeal court judges who sat on Roncarelli. No statistically signifi-
cant information apart from that already reported (see text accompanying supra notes
31-32) could be gleaned from this tabulation.

36 The most procivil liberties judge was Cartwright J., who voted 39 times pro-claimant
to 4 times pro-defendant. Three others were generally procivil liberties: Martland J.
(52); Rand J. (1912); and Kerwin C.J.C. (2112). The least procivil liberties judges
were from Quebec: Rinfret J.A. (210), Abbott J. (612), Fauteux J. (639), and
Taschereau J. (735).

412 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

nomic regulation37 in a four-cell table. The procivil liberties and pro
economic regulation judges are characterized as liberal (Justice Rand, and
less so Chief Justice Kerwin and Justice Judson); the procivil liberties
and antieconomic regulation judges are labelled as individualist (Justice
Cartwright, and less so Justice Martland); the anticivil liberties and pro
economic regulation judges are characterized as authoritarian (Justices
Fauteux, Taschereau, and Abbott); and the anticivil liberties and anti
economic regulation judges are labelled as conservative (Justice Locke).38

The second study sought to determine how judges responded on a pro-
government or anti-government scale, by examining several policy areas:
criminal law, civil liberties, economic regulation, economic underdog, la-
bour, taxation, and federal authority. The period covered was 1958 to
1967, so many fewer decisions taken by the judges in Roncarelli were re-
ported. Overall, it appears that Justices Cartwright and Locke were the
most proprivate party, pro-federal, and profreedom of religion, while
Justices Taschereau, Fauteux, Abbott, and Judson were most pro-
government, pro-provincial, and antifreedom of religion. Justice Rand
was pro-government, profreedom of religion, and pro-provincial. By con-
trast, Chief Justice Kerwin and Justice Martland were proprivate party,
profreedom of religion, and pro-provincial.39

The conclusion that may be drawn from these two studies is that the
vote in Roncarelli was (1) strongly consistent with the general pattern of
Justices Rand, Taschereau, and Fauteux; (2) moderately consistent with
the general pattern of Chief Justice Kerwin and Justices Martland and
Judson; (3) moderately inconsistent with the pattern of Justices Locke
and Abbott; and (4) strongly inconsistent with the pattern of Justice
Cartwright. Continuing the tabulation, scoring four for strong consistency
and one for strong inconsistency, of a potential consistency total of thirty-
six, the Roncarelli decision scored twenty-six or almost a seventy-five per
cent weighted consistency.

37 On the economic regulation scale, in non-labour relations matters, Abbott J. (134),
Kerwin C.J.C. (299), Rand J. (208), Fauteux J. (186), Judson J. (64), and
Taschereau J. (1912) all scored above sixty per cent in favour of government regula-
tory initiatives, while Martland J. (56), Locke J. (1323), and Cartwright J. (632)
scored below fifty per cent.

38 For an alternative interpretation of these intellectual positions, see Gad Horowitz, Ca-
nadian Labour in Politics (Toronto: University of Toronto Press, 1968) c. 1 at 3 (Con-
servatism, Liberalism, and Socialism in Canada: An Interpretation).

39 While Martland J. was generally pro-province, this orientation was absent where it con-
flicted with his perception that a case involved the rights of private parties or freedom
of religion. Abbott J. departed from his usual pattern and found for Roncarelli.

D. Synthesizing This Context

WAS DUPLESSIS RIGHT? 413

While much additional information and further analysis would be re-
quired to advance plausible causal hypotheses in relation to the correla-
tions reported in these studies, some general inferences can be suggested.

Those judges who found for Roncarelli were typically anglophone
(seven of eight), not from Quebec (five of eight), and not Roman Catholic
(six of eight). But if from Quebec, they were educated in law at McGill
University (three of three) and involved in federal, rather than provincial,
politics (three of three). Their opinions reflected either an individualist
preoccupation with controlling the state (Justices Rand, Locke, Martland,
and Judson), a High Tory sense of outrage at Duplessiss actions (Justice
Mackinnon), the sensibilities of a religious minority (Chief Justice Ker-
win, a Roman Catholic from Ontario), or the reflexes of a long-time politi-
cal opponent of Duplessis in federal politics (Justices Abbott and Rinfret,
the latter being the only Quebec-based, Roman Catholic francophone
judge who had been a member of the Parliament of Canada).

Those judges who found for Duplessis were typically francophone (five
of seven), Quebec-based (six of seven), Roman Catholic (six of seven), and
active in provincial Liberal politics in Quebec (six of seven); and, if from
Quebec, not from the Montreal region (five of six), not educated in law at
McGill (five of six), and generally of nationalist socio-political orientation,
committed to a provincial-rights, compact theory of the BNA Act40 (four of
six). The only exceptions were Justice Casey who was neither francophone
nor from outside Montreal, but a Roman Catholic and educated at McGill,
and Justice Cartwright, who was an anglophone, Protestant, not from
Quebec, and strongly pro-defendant in criminal cases.
Half a century after the decision, commentators have largely forgotten
this context. They have tended to view the majority and dissenting opin-
ions expressed in the judgment as reflecting, respectively, universal ideas
of law and liberal legalism in one case, and local, corrupt realpolitik in the
other. The above data about the judges who heard the Roncarelli case
suggest that those whose decisions reflected the position we today associ-
ate with universalizable law had a politically contingent intellectual loca-
tion.41 By contrast, judges withbroadly speakinga more collectivist
world view tended to side with a government anxious to protect citizens
from the siren song of liberal individualism. That is, the difference be-
tween majority and minority positions does not automatically map onto
the now familiar distinctions: law vs. politics, rule of law vs. rule of man,

40 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5

[BNA Act].

41 This point is adverted to but not developed by McWhinney (supra note 7 at 506).

414 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

and rights-respecting limited government vs. arbitrary and unfettered
discretion.

In the following sections of this paper, I locate the arguments ad-
vanced by Duplessiss counsel within a framework of social, political, and
legal theory that helps to explain their attractiveness to those Quebec-
based judges who supported his position.42 My objective is not to claim
that these theoretical positions justify the conclusions that Duplessis
drew from themalthough they show those conclusions to be more defen-
sible than is commonly thought in our day. It is, rather, to gesture toward
their potential for providing an alternative, normatively plausible frame-
work for deciding issues of governance, civil liberties, and the rule of law.

II. The Social Theory of Patrick Devlin and George Grant

The post-depression period posed several economic, political, and so-
cial challenges for democracies in the North Atlantic. Among the social
challenges were increased non-traditional immigration (from the Mediter-
ranean and southern Asia), urbanization, industrialization, declining agri-
culture, and the shift of the socio-cultural locus from Europe to the United
States (with its civil rights struggles). Roncarelli can be seen as one site
where these social changes played out in Canada; another was the debate
as to the kind of society Canadian governments should be promoting, re-
flected notably in the contrasting visions of George Grant and F.R. Scott.
A flashpoint for discussion about how the state should respond to increas-
ing cultural and religious pluralism was the role of the criminal law in
regulating individual expressive freedom. This was the context of Lord
Devlins 1958 lecture, The Enforcement of Morals.43

A. The Enforcement of Morals

Devlins reflections targeted the Report of the Committee on Homosex-
ual Offences and Prostitution (Wolfenden Report).44 The Wolfenden Report
had concluded that the criminal law of England should not concern itself
with the enforcement of morals and punish sin or immorality as such.
Lord Devlin disagreed with this response, arguing two propositions. First,

42 I do not consider the judgment of Cartwright J., since he argues for a concept of abso-
lute discretion in relation to administrative decisions (see Roncarelli, supra note 1 at
167). While historically accepted in the common law (Re Ashby, [1934] O.R. 421, [1934]
3 D.L.R. 565 (C.A.)), this concept attracted little favourable comment by the mid
twentieth century.
43 Devlin, supra note 2.
44 U.K., H.C., Report of the Committee on Homosexual Offences and Prostitution, Cmnd
247 in Sessional Papers, vol. 14 (195657) 85, reprinted as The Wolfenden Report: Re-
port of the Committee on Homosexual Offences and Prostitution (New York: Stein and
Day, 1963).

 WAS DUPLESSIS RIGHT? 415

society has a right to pass judgment in matters of morals; there is a public
morality and morals are not always a matter for private judgment. Sec-
ond, because society has a right to pass such judgment, it also has a right
to use its primary regulatory instrument, the law, to enforce the morality
it upholds. Devlin believed that morality is the cement of society and that
without some shared morality, society would collapse. Hence, a state may
use the criminal law to preserve morality the same way that it uses law to
safeguard anything else it deems essential to its existence.45

Shortly thereafter, Professor Hart delivered a conventional Millian re-
buke to Devlin. He was prepared to concede that certain conduct might be
proscribed by the criminal law for paternalistic reasons (e.g., abortion,
suicide, duelling, euthanasia), but that this did not mean that society was
thereby enforcing morality. Hart acknowledged that while a society could
not exist without a morality that mirrored and supplemented the legal
proscription of conduct injurious to others, the law had no warrant to
criminalize immorality as such.46

In his 1965 book responding to Harts lectures, Devlin expanded his
thesis to include fields of law besides crime: family, property, tort, con-
tract, and public law generally. He noted that judges, administrative deci-
sion-makers, and the policeas well as legislatorsare constantly being
confronted with claims about morality pleaded in justification of forbear-
ance, of mitigation, or even of a positive entitlement to a favourable deci-
sion. However much Hart, as legal theorist, would wish a polity where a
sharp distinction and separation could be drawn between law and non-
lawin this instance, morality, social practice, culturefor Devlin, in the
world inhabited by judges, such sharp dissociations are impossible to
maintain.

B. Lament for a Nation

The Devlin-Hart debate reflected a contemporaneous dispute in Can-
ada in the 1950s and 1960s. The ideological foundations of this debate
were carefully elaborated in George Grants Lament for a Nation,47 an es-
say that advances a social theory which sharply contrasts with that ar-
gued by F.R. Scott, one of Roncarellis counsel.48

45 Devlin, supra note 2.
46 Hart, Positivism, supra note 4 at 604-605.
47 George Grant, Lament for a Nation: The Defeat of Canadian Nationalism (Toronto:
McClelland & Stewart, 1970) [Grant, Lament for a Nation]. For later development, see
George Grant, English-Speaking Justice (Toronto: Anansi, 1998).

48 Scotts ideas were published as a multidecade compendium: Frank R. Scott, Essays on
the Constitution: Aspects of Canadian Law and Politics (Toronto: University of Toronto
Press, 1977).

416 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

Grant was particularly concerned by what he saw as the ill-considered
rush to embrace the technological society in which human beings are seen
as a collection of autonomous, free-willing individuals rationally choosing
the institutions, life plans, and social practices that give meaning to life. A
self-proclaimed Tory, Grant felt that politicians in Quebec better under-
stood the threat to the existence of a society in which longstanding reli-
gious institutions and cultural practices provided anchorage for human
flourishing, and he sought a strategic alliance between francophone and
anglophone nationalists. Nonetheless, however much he agreed with the
need to protect the church against social critique, he also felt that Du-
plessiss bargain with American capital would ultimately spell the end of
Quebecs autonomous culture.49

Scott, by contrast, held to a Whig view of society. Despite his commit-
ment to the Fabian socialist Cooperative Commonwealth Federation
(forerunner to the New Democratic Party), he neither understood nor
cared for an organic society that acknowledged differentiation and inter-
dependence. Scotts civil libertarian vision was aimed at illegitimate exer-
cises of authority that constrained individual liberty. He did not, that is,
contest the need for authority or its necessary exercise to protect social
order.50 Barely a decade after Roncarelli, which he proclaimed as a victory
for the rule of law against broad grants of discretionary authority, Scott
publicly expressed support for Trudeaus proclamation of the War Meas-
ures Act51a proclamation denounced by most civil libertarians as grant-
ing excessive discretionary power to the governmentand defended Tru-
deau on preservation of the social order grounds not dissimilar to those
invoked by Duplessis.52

49 See Grant, Lament for a Nation, supra note 47 at 72-80. For fuller development of
Grants arguments about Quebec, see Jacques-Yvan Morin, Prface in George Grant,
Est-ce la fin du Canada? : lamentation sur lchec du nationalisme canadien, trans. by
Gaston Laurion (LaSalle, Qc.: Hurtubise, 1987) IX.

50 A close reading of essays about Scotts conception of civil liberties reveals that he was a
strong advocate of Diceys conception of the rule of law, even where this resulted in judi-
cial overruling of socialist legislative programs. See e.g. Walter Tarnopolsky, F.R.
Scott: Civil Libertarian in Sandra Djwa & R. St J. Macdonald, eds., On F.R. Scott: Es-
says on His Contributions to Law, Literature, and Politics (Montreal: McGill-Queens
University Press, 1983) 133; Douglas Sanders, Law and Social Change: The Experi-
ence of F.R. Scott in Djwa & Macdonald, supra, 121.

51 R.S.C. 1927, c. 206.
52 For an interpretation of Scotts motives that draws on commentary about his relatively
unsuccessful deanship at the McGill Faculty of Law (196064), see Roderick A. Mac-
donald, F.R. Scotts Constitution (Inaugural Lecture) (1997) 42 McGill L.J. 11.

WAS DUPLESSIS RIGHT? 417

C. Justices Pratte and Martineaus Social Theory
Two of the Quebec Court of Appeal judgments in support of Du-

plessiss position can be read as consistent with the social theory reflected
in the ideas of Devlin and Grant.53 Justice Pratte acknowledged that Du-
plessis ordered Archambault to cancel the permit, and that the determin-
ing motive for doing so was Roncarellis support of the campaigns of the
Jehovahs Witnesses against the population of Quebec. He observed that
on 21 November 1946, Duplessis expressly warned those who gave com-
fort to the Jehovahs Witnesses to cease troubling the peace:

[L]es Tmoins de Jhovah causaient beaucoup de dsordre dans la
province, provoquaient la population, attaquaient le clerg et
sattaquaient nos traditions les plus chres …
[L]es assembles des Tmoins de Jhovah taient des causes dennuis
srieux pour la population et des causes de dsordre.54

The policy question was whether the populations shared belief about
the centrality of a particular cultural practice or religious view (i.e., Ro-
man Catholicism) was sufficient to justify allocating franchises to exploit
a public monopoly only to those who supported them. Justice Pratte con-
cluded that a society has a right to defend itself; while no one could be
prevented from granting bail even to those who engage in close-to-
seditious conduct, if the economic means for granting the bail derived
from a discretionary statutory monopoly, it was justifiable for that privi-
lege to be cancelled.55

This position was expressed even more clearly in the judgment of Jus-
tice Martineau, who, of all the judges, provided the most thorough review
of the facts. His goal was to show the public offence that was being com-
mitted by Jehovahs Witnesses:

[Ils] rclamait le monopole de la vrit et tait extrmement agressif.
Comme question de fait, sa propagande ressemblait trop souvent
ces mthodes modernes de vente, appeles high pressure salesman-
ship, mthodes qui ne tiennent aucun compte du dsir lgitime de
chacun de ne pas tre importun ou ennuy par des trangers,

53 I should be clear about two points. First, I do not argue that any of the judges whose
judgments I discuss intended to articulate a particular political philosophy. I claim only
that their judgments are consistent with respectable (although minority) social theories
and can be engaged on these theoretical grounds. Second, I do not claim that, for exam-
ple, Pratte and Martineau JJ.A. alone (and no other pro-Duplessis judges) wrote judg-
ments that could be interpreted in the light of Devlins and Grants ideas. Likewise, I do
not claim that the judgments of Pratte and Martineau JJ.A. did not also reflect ideas of
Tremblay, Taylor, Fuller, and Willis. I selected these two judgments here because the
quoted passages can easily be seen as coherent with the relevant social theories. The
same is true of the judges and judgments highlighted in Part II.C and Part II.D below.
54 Roncarelli (C.A.), supra note 19 at 463-64, Pratte J.A. (quoting testimony of Duplessis).
55 Ibid. at 464-65.

418 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

surtout dans sa demeure. De plus, le zle ardent, mais outr et
fanatique, de ses membres les poussait des exagrations de langage
regrettables et les incitait condamner violemment et totalement
toutes les autres pratiques religieuses.56

Justice Martineau went on to observe that the campaign reached a
crescendo in November 1946 with the publication of the pamphlet La
hane ardente du Qubec, pour Dieu, pour Christ, et pour la libert, est un
sujet de honte pour tout le Canada.57 Though by this point the Montreal
Court Recorder indicated he would no longer accept Roncarelli as bails-
man, Justice Martineau concluded that Duplessis quite appropriately
feared the public disorder that this scurrilous, and seditious propaganda
would generate.58 Given the hatred the pamphlet raised and the discre-
tionary nature of the liquor licence, cancellation would not automatically
be a civil fault, even if in fact Duplessis had given such instructions to
Commissioner Archambault.59 In Justice Martineaus view, the state is al-
lowed to use those property entitlements within its gift to protect societys
values.60 The actions of Duplessis and Archambault constituted a decision
by public officials about an entitlement to a public benefit, a situation en-
tirely unlike the unwarranted and illegal police action undertaken by the
defendants in Chaput.61

D. Internormative Pluralism

Devlin, Grant, Justice Pratte, and Justice Martineau argue that every
society has its own particular conception of virtue. The hard work sustain-
ing coordinated human interaction occurs in unofficial normative orders
whether highly institutionalized and explicit like the church, or implicit
like many cultural settings or the family.62 While the law of the state is
not required to mirror in detail this underlying normativity, every viable
political state must attend to it to some degree in official norms, concepts,
and governance institutions. In being responsive to this underlying nor-
mativity, governments in modern democratic states ought neither to con-
strain freedom of expression beyond the scope of libel and sedition, nor

56 Ibid. at 477-78.
57 La haine ardente du Qubec, pour Dieu, pour Christ, et pour la libert, est un sujet de

honte pour tout le Canada (Toronto: Watch Tower Bible and Tract Society, 1946).

58 Roncarelli (C.A.), supra note 19 at 475ff.
59 Ibid. at 486.
60 Ibid. at 490.
61 Ibid. at 494, referring to Chaput, supra note 30.
62 For a typology elaborating the role of these various normative institutions, see Roderick
A. Macdonald, Les Vieilles Gardes. Hypothses sur lmergence des normes,
linternormativit et le dsordre travers une typologie des institutions normatives in
Jean-Guy Belley, ed., Le droit soluble : contributions qubcoises ltude de
linternormativit (Paris: Librairie gnrale de droit et de jurisprudence, 1996) 233.

 WAS DUPLESSIS RIGHT? 419

prevent citizens from exercising their civil liberties (e.g., freedom of asso-
ciation and the right to stand bail).63 But, they need not provide the re-
sources for citizens to undermine the public morality that holds a society
together. The reason is that, within the constraints of basic civil liberties,
society has a right to pass judgment on matters of morals, and it also has
a right to use its primary regulatory instrument, the lawwhether in the
form of franchises like liquor licences, direct grants like todays federal
Court Challenges Program,64 or in the form of the criminal law or taxing
statutes65to enforce the morality it upholds.66 That is, the public pur-
poses associated with a liquor licensing regime might include broader
moral matters and not only fitness narrowly defined.67

III. The Political Theory of the Tremblay Commission and Charles Taylor

The Confederation arrangement of 1867 confirmed a salient feature of
the political state that is now Canada. It was an attempt to reconcile the
divergent national histories of Quebecs francophone, Roman Catholic
population possessed of a civil law legal tradition and the rest of British
North Americas anglophone, largely Protestant, United Empire Loyalist
population. For the latter, Confederation was a post-colonial state-
building project meant for anglophone citizens; for the former, it was a
cultural survival compact between two nations meant for francophone
citizens.68 This fourth constitutional arrangement worked relatively well
for about sixty years, but World War I, the development of a manufactur-
ing and wage labour economy, and the economic depression of the 1930s

63 In other words, Martineau J.A.s conclusion in Roncarelli (C.A.) (supra note 19 at 495)
that Roncarellis behaviour would excuse a civil wrong committed by Duplessis or Ar-
chambault must be incorrect. See Sheppard, supra note 7 at 91-92.

64 See generally Court Challenges Program of Canada, online: CCP .
65 The strong claim made by Martineau J.A. appears excessive today. In what way should
permits to practice medicine, or drivers licences, or building permits, or radio licences,
all be considered as necessary to uphold the social order? Not all tools of government
bear on public morality, and decisions about which such tools do so are necessarily con-
tingent.

66 As Devlin and Grant argue, not all aspects of morality call forth the sanction of the
state, and not all exercises of legislative authority in support of morality are consistent
with respect for civil liberties. The point is that these are questions of political (and ju-
dicial) judgment, not matters that lend themselves to decision by appeal to abstract ab-
solutes.

67 In other words, the issue that Pratte and Martineau JJ.A. should have addressed is not
whether a legislature may confer the right to cancel liquor permits in such cases, but
whether it had done so in this case (whether explicitly or by implication); that is, was
there a legal justification for Archambaults action? This question is considered in Part
III.

68 For an overview of these competing narratives, see Roderick A. Macdonald, Three Cen-
turies of Constitution Making in Canada: Will There Be a Fourth?” (1996) 30 U.B.C.
L. Rev. 211.

420 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

led to demands (especially outside Quebec) for aggressive federal initia-
tives. The stalking horse of the expansion of federal jurisdiction was the
Rowell-Sirois Commission,69 which proposed a bevy of new pan-Canadian
policy instruments.

A. The Province of Quebec and the French-Canadian Case

Maurice Duplessis, who was first elected premier of Quebec in 1936,
was re-elected in 1944 after a four-year hiatus. Within the province, the
wartime economic boom contributed to rapid social change, industrializa-
tion, and urbanization, all of which increased demand for social services
and strained provincial resources beyond constitutional tax powers and
existing tax rental agreements.70 To counter the centralized welfare-state
logic of the Rowell-Sirois Report, Duplessis appointed a Royal Commis-
sion on Constitutional Problems71 in February 1953 (Tremblay Commis-
sion). While its constitutive Order-in-Council ostensibly limited the in-
quiry to fiscal powers and federal encroachment on provincial jurisdiction,
the Tremblay Commission produced nothing less than an examination in
depth of the philosophical and moral basis of French-Canadian society
and a restatement of its raison dtre.72
Until the 1950s, Quebecs basic constitutional position had been to de-
fend the original distribution of legislative powers under the BNA Act.73
French-Canadian culture would be promoted not through government so-
cial programs but by bolstering non-governmental institutions such as the
Roman Catholic Church. This would be accomplished by deploying what
are characterized today as indirect tools of government rather than
through state ownership,74 and by contesting federal welfare spending
programs like unemployment insurance, family allowances, and old-age
pensions. This perspective found a theoretical framing in Part Three of
the Tremblay Report entitled The Province of Quebec and the French-

69 Rowell-Sirois Report, supra note 6.
70 For a comprehensive compendium of papers assessing the origins and evolution of the
federal spending and taxation power, and related policy instruments, see Open Federal-
ism and the Spending Power (2008) 34 Queens L.J. 1-425.

71 See Tremblay Report, supra note 6.
72 David Kwavnick, ed., The Tremblay Report: Report of the Royal Commission of Inquiry
on Constitutional Problems (Toronto: McClelland & Stewart, 1973) vii at vii (Editors
Introduction). See also Robert Comeau et al., eds., La Commission Tremblay (1953
1956) : cinquante ans de dbats sur le dsquilibre fiscal (2007) 16 Bull. dhistoire
politique 1-63.

73 Supra note 40, ss. 91, 92.
74 The idea of indirect governance is developed by Salamon, who characterizes tools like
subsidies, franchises, tax relief agreements, loan guarantees, and infrastructure sup-
port as examples of indirect governance (supra note 9).

 WAS DUPLESSIS RIGHT? 421

Canadian Case.75 The Tremblay Report concluded that the federal gov-
ernment was unilaterally undermining the Confederation compact by
arrogating to itself an unfair proportion of available tax room, pursuing
constitutional amendments over Quebecs objections, infringing upon
fields of exclusive provincial jurisdiction, and imposing spending pro-
grams meant to promote a singular, Anglo-Protestant social and cultural
ideal of Canada.76

The key ambition of the Tremblay Commission was to present an al-
ternative philosophical vision of the modern Canadian state. In this vi-
sion, Quebec would be the guardian of a traditional French-Catholic rural
arcadia whose culture and values could resist the encroachments of North
American, liberal, and secular capitalism. The Tremblay Report offered a
coherent diagnosis of the distinctiveness of the French-Canadian culture,
a recipe for how church and state in Quebec could together continue to
build Quebec society, and a constitutional strategy for promoting that dis-
tinctiveness. Yet, in large part because the Tremblay Commission rejected
the political compromises Duplessis had made with anglophone commer-
cial interests in pursuing economic development through indirect gov-
ernment (e.g., permits and franchises to exploit forestry, mining, and hy-
dro resources in Nouveau-Qubec), its broader recommendations were
never pursued.

B. The Making of the Modern Qubcois Identity

Since Roncarelli, the program traced by the Tremblay Commission
has been recast from one of traditional, small-government French-
Canadian nationalism played out by two pragmatic French-Canadian
politicians, Louis St. Laurent and Duplessis. With the collapse of religion
as ideology and the church as a social-welfare institution after 1960, lan-
guage became the cultural rallying point and the Quebec state became the
replacement vehicle for transforming French-Canadian identity into a
newly emerging Qubcois identity. After Jean Lesage and Lester Pear-
son succeeded Duplessis and St. Laurent, respectively, Quebec politicians
developed a much more realistic appreciation of the role of government in
exploiting provincial constitutional jurisdiction: the ambition of the

75 Tremblay Report, supra note 6, Part 3.
76 The Tremblay Commission further noted that the abolition of appeals to the Judicial
Committee of the Privy Council made the Supreme Court of Canada, a unilaterally cre-
ated federal institution, the final arbiter of constitutional authority. See An Act to
Amend the Supreme Court Act, S.C. 1949, c. 37, amending R.S.C. 1927, c. 35.

422 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

Tremblay Commission was transformed from traditional nationalism (la
survivance) into state nationalism (matres chez nous).77

The thrust of the relationship of state and society in Quebecs new na-
tionalism was most evident in debates between Pierre Trudeau and Ren
Lvesque. Trudeau sought to create a new Canadian civic patriotism re-
sponsive to both francophone and anglophone populations through the en-
trenchment of a charter of rights and freedoms. Rather than national
identity grounded in a thick conception of social citizenship, Canadian
identity would be founded on a thinner conception of political citizen-
ship.78 Lvesque, more cosmopolitan and therefore more pessimistic than
Judge Tremblay, believed that in order to flourish, a threatened language
and culture would have to be preserved either within a relatively homo-
geneous national society or a separate state. Since Quebec was no longer
(if it truly ever was) the monocultural society portrayed by the Tremblay
Commission, political independence was the only alternative to the unde-
sirable mtissage of the modern heterogeneous bi- or multicultural state.

The best contemporary expression of the political theory argued in the
Tremblay Report has been offered by Charles Taylor. In opposition to
Trudeaus minimalist view of citizenship as simply legal status and con-
stitutional commitment, Taylor advances a most robust conception of a
political culture.79 Taylors position is grounded in an organic view of soci-
ety in which social solidarity is a central theme. People are not born as
decontextualized individuals, but enter this world shaped by comprehen-
sive community attachments. A political culture exists not just to make
possible the pursuit of individual freedom, but also to promote collective
identity and provide a structure of beliefs and practices conducing to the
pursuit of virtue.80

77 For an elaboration of these changes and their effect on governing institutions, see
Roderick A. Macdonald & Robert Wolfe, Canadas Third National Policy: The Epiphe-
nomenal or the Real Constitution? (2009) 59 U.T.L.J. 469.

78 See e.g. Pierre Elliott Trudeau, Federalism and the French Canadians (Toronto: Mac-
millan, 1968); Pierre Elliott Trudeau, Pierre Trudeau Speaks Out on Meech Lake, rev.
ed. by Donald J. Johnston (Toronto: General Paperbacks, 1990).

79 See Charles Taylor, Reconciling the Solitudes: Essays on Canadian Federalism and Na-
tionalism, ed. by Guy Laforest (Montreal: McGill-Queens University Press, 1993). See
especially Taylors essays Why Do Nations Have to Become States? (ibid. at 40ff.) and
The Tradition of a Situation (ibid. at 135ff.).

80 See Charles Taylor, Sources of the Self: The Making of the Modern Identity (Cambridge,
Mass.: Harvard University Press, 1989); Charles Taylor, The Malaise of Modernity
(Concord, Ont.: Anansi, 1991); Charles Taylor, A Secular Age (Cambridge, Mass.:
Belknap Press of Harvard University Press, 2007).

WAS DUPLESSIS RIGHT? 423

C. Justices Bissonnette and Caseys Organic Political Theory

As noted in the previous section, Justices Pratte and Martineau fo-
cused on the social theory that lay behind Duplessiss belief that the gov-
ernment was authorized to use the revocation of Roncarellis liquor licence
as a means to protect social order in Quebec. By contrast, Justices Bis-
sonnette and Casey paid more attention to the political dynamic of the
case and wrote judgments that resonate with the political theory of the
Tremblay Report, as later developed by Charles Taylor.

Justice Bissonnette found as a fact (reversing the trial judge on this
point) that Archambault, having concluded that he should cancel the
permit, acted alone in doing so. After closely analyzing several provincial
acts, Justice Bissonnette concluded that Duplessis had no statutory or re-
sidual common law authority to intervene either as prime minister or as
Attorney General.81 He then examined the de facto relationship between
Duplessis and Archambault, acknowledging that Archambaults at
pleasure appointment might suggest a factual subordination. Of course,
were this the case, all at pleasure appointments would be suspect, a po-
sition that even today is not seriously advanced outside the judicial
sphere. Moreover, because the Liquor Commission was not an executive
or administrative agency, but rather an independent state-owned com-
mercial operation, Justice Bissonnette held that Archambault had an un-
fettered discretion to revoke the permit, and doing so was no different
from the lawful termination of employment.82 That said, he nonetheless
felt that Archambaults decision was

lexpression naturelle de lopinion de la Province de Qubec …
La Commission des liqueurs est un organisme dintrt public.
Or, son grant, sil estimait que les agissements du demandeur
taient subversifs et constituaient un mal que ses pouvoirs
permettaient de supprimer, avait la facult, plus que cela, le devoir
dintervenir efficacement.83

Justice Casey also found that Duplessis did not order the cancellation,
and decided that there was neither a legal nor a de facto subordination of
Archambault to Duplessis.84 Duplessis was free to offer his opinion to Ar-
chambault in the same manner as the Chief of Police, the local priest, or
any citizen, and Archambault was free to accept or reject that advice. Ab-
sent specific evidence that Archambault acted under Duplessiss direction,
there could be no reason for so concluding, even if for his own political
reasons Duplessis publicly affirmed that he had ordered the cancella-

81 Roncarelli (C.A.), supra note 19 at 451-55.
82 Ibid. at 457.
83 Ibid. at 458.
84 Ibid. at 467.

424 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

tion.85 But, by contrast with Justice Bissonnette, Justice Casey found that
the managers discretion under subsection 35(1) of the Alcoholic Liquor
Act was not absolute or unfettered:

[T]his discretion must be exercised in accordance with what the
Commission believes to be the public interest and welfare. If the law
be viewed in this light and if one use the public interest and welfare
as a yardstick, it follows that a permit should be refused when the
applicant is not of good moral character or for any other reason not a
suitable person to exercise the privilege sought.86

Justice Casey correctly posed the key legal issues: First, did the Alco-
holic Liquor Act explicitly or by implication authorize Archambault to re-
fuse to issue, or to revoke, a licence if the holder were not of good moral
character or otherwise unsuitable to exercise a public privilege? And sec-
ond, did Archambault have reasonable grounds for believing that the
plaintiff was engaged directly or indirectly in subversive activities and
was therefore unworthy of holding a liquor permit?87 On the first issue,
Justice Casey concluded that the liquor licence was not a pure property
entitlement vesting rights in holders that could be taken away only on
narrowly circumscribed economic or ultra vires grounds; liquor licences
were an instrument of policy. On the second issue, after reviewing the
facts, he determined that while the right to stand bail was a constitu-
tional right that could not be denied (even when used to liberate those
charged with morally repugnant or seditious behaviour), the state was not
obliged to facilitate any citizens economic capacity to act as bailsman
through the attribution or continuation of a regulatory privilege.

D. Communitarianism

Tremblay, Taylor, Justice Bissonnette, and Justice Casey argue
directly or indirectlythat the basic political decisions in a state are
shaped by conceptions of man and society. Whether social welfare
should be a matter of the state or the non-governmental sector, whether
the operations of government should be solicitous of social differentiation
in the guise of multiculturalism or interculturalism, whether policy
should favour rural or urban development, and whether policy should
favour economic monopolies through agricultural marketing boards and
trade unions are not simply discrete policy choices made by governments
for conjunctural political gain. Where the state chooses to play a smaller
role in social organization, and to make its regulatory choices through
governance instruments that rely on partnerships with non-governmental
agenciesfranchises, subsidies, contracts, procurement, permits, or

85 Ibid. at 468.
86 Ibid. at 470.
87 Ibid. at 473.

 WAS DUPLESSIS RIGHT? 425

public-private partnershipsit is entitled to monitor how well these
regulatory instruments are being deployed to advance public policy. Of
course, many more forms of what have been characterized as new
property are now seen less as privileges than as entitlements that, once
allocated, can be revoked only for reasons specifically related to prescribed
statutory conditions and explicitly stated legislative purposes. But this
was not the case in 1946, when franchises and permits were allocated to
appropriate holders as tools of governance in pursuit of a broader, often
unstated, policy agenda. Even today, states can legitimately differ as to
which franchises are entitlements and which are privileges allocated to
advance public policy. Where the latter, governments may quite properly
insist that beneficiaries be of good moral character and not use the
regulatory tool (directly or indirectly) to further aggressive attacks upon
society or the state itself.88

IV. The Legal Theory of Lon Fuller and John Willis

For many Canadian legal theorists, the debate evoked by Roncarelli
was importantly about the general postwar movement toward constitu-
tionalization of civil liberties and fundamental freedoms. In 1947, Sas-
katchewan enacted Canadas first bill of rights,89 and later that year the
House of Commons resolved to establish a joint committee on the subject
of fundamental rights and freedoms. In 1958, the House began consider-
ing Bill C-79, which ultimately resulted in the Canadian Bill of Rights.90
Notwithstanding these legislative developments, the 1950s were particu-
larly noteworthy for the decisions of the Supreme Court of Canada pro-
tecting civil liberties under the guise of an implied bill of rights.91 Schol-
ars tended to focus on the freedom of speech and assembly cases arising in

88 To repeat, these judgments are deeply contingent on both history and culture. For ex-
ample, in 1946 and 2009, the case for treating drivers licences as policy tools is weak.
In 1946 and 2009, the case for treating franchises to operate passport offices as policy
tools is strong. In 1946 in Quebec, but not in 2009 in Canada (except perhaps in special
cases like Nunavut), the case for a province treating liquor permits as policy tools was
highly plausible. The appropriate legal means for operationalizing such concerns are
discussed in Part IV below.

89 Saskatchewan Bill of Rights, S.S. 1947, c. 35. It is now a part of the Saskatchewan Hu-

man Rights Code, S.S. 1979, c. S-24.1.

90 Canadian Bill of Rights, S.C. 1960, c. 44. See Walter Surma Tarnopolsky, The Cana-

dian Bill of Rights, 2d ed. (Toronto: McClelland & Stewart, 1975).

91 See Dale Gibson, Constitutional Amendment and the Implied Bill of Rights (196667)

12 McGill L.J. 497.

426 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

Quebec,92 but the record began thirty years earlier, also embraced non-
Quebec cases, and has continued to the present. 93

A. Implicit Law and Fidelity to Law

The implied bill of rights cases were the precursor to the judgments
of the Supreme Court of Canada expressly recognizing the role in Cana-
dian law of implied principles of the common law constitution.94 Lon
Fuller was one of the first to theorize why, in any constitutional order,
there must always be unwritten principles upon which a written constitu-
tion will rest.95 Fuller maintained that fidelity to law required attending
to laws purposive character, and to the often-implicit principles of legality
that enabled law to function as a vehicle to facilitate human interaction.96
He also argued that fidelity to law required attending to interpretation as
a central act of legality. Because legal texts are not self-applying, inter-
preters (whether judges, administrators, lawyers, or citizens) always face
a moment of uncertainty about the meaning of a written norm where it is
necessary to engage in purposive inquiry that reaches beyond the words
found therein. This is as true of procedural rules by which law is made
(the laws of lawmaking), interpreted (the canons of statutory construction,
and the theory of the common law), and institutionally organized (the
rules of judicature and civil procedure), as it is of substantive rules of
law.97

92 See the cases from Quebec cited in supra note 30. See also Brodie v. R., [1962] S.C.R.

681, 32 D.L.R. (2d) 507.

93 For a review of the cases to 1993, see Roderick A. Macdonald, The New Zealand Bill of
Rights Act: How Far Does It or Should It Stretch? in Proceedings of the 1993 New Zea-
land Law Conference (Wellington: New Zealand Law Society, 1993) 94 at 116-26. See
also Ian Bushnell, The Captive Court: A Study of the Supreme Court of Canada (Mont-
real: McGill-Queens University Press, 1992) c. 23 at 312ff. (The Implied Bill of
Rights).

94 See Reference Re Remuneration of Judges of the Provincial Court of Prince Edward Is-
land, [1997] 3 S.C.R. 3, 150 D.L.R. (4th) 577; Reference Re Secession of Quebec, [1998] 2
S.C.R. 217, 161 D.L.R. (4th) 385. For a discussion of implicit constitutional law, see
Mark D. Walters, Written Constitutions and Unwritten Constitutionalism in Grant
Huscroft, ed., Expounding the Constitution: Essays in Constitutional Theory (New York:
Cambridge University Press, 2008) 245.

95 Lon L. Fuller, Anatomy of the Law (New York: Frederick A. Praeger, 1968) at 57-69
(implicit elements in made law). The idea of a common law constitution was not, of
course, unknown in England. See e.g. H.W.R. Wade, The Basis of Legal Sovereignty
(1955) Cambridge L.J. 172; Rt. Hon. Sir Owen Dixon, The Common Law as an Ulti-
mate Constitutional Foundation (1957) 31 Austl. L.J. 240.

96 Fuller, Positivism and Fidelity, supra note 5. See also Lon L. Fuller, The Morality of

Law, rev. ed. (New Haven: Yale University Press, 1969) c. 2, 5.

97 See Lon L. Fuller Means and Ends in The Principles of Social Order: Selected Essays
of Lon L. Fuller, rev. ed. by Kenneth I. Winston (Oxford: Hart, 2001) 61 [Principles of

 WAS DUPLESSIS RIGHT? 427

Fullers intellectual antagonist, H.L.A. Hart, asserted that inquiry
into customary social conventions and practices, morality, or even the in-
ternal coherence of legal regulation was unnecessary for deciding what
constituted law.98 In particular, Hart denied Fullers claim that law was a
human creation intended to enable the pursuit of human purposes. It fol-
lowed for Hart that there were neither any fundamental premises as to
the substantive aims that could be pursued by law, nor any procedural
norms inherent in the making and application of law.99 Of course, Hart
did not deny the importance of Fullers principles of legality; he simply
thought they were matters of ethics, and not principles inherent to legal-
ity itself.100
Hart and Fuller were both concerned with the central question of fi-
delity to law. Their debate was carried on over several years around sev-
eral issues, two of which are central to the Roncarelli case: (1) What is the
relationship between formal, explicit, framework (or institutional) rules
and informal, implicit, organic rules in guiding discretion? (2) How does
one create, manage, and supervise public bureaucracies that exercise le-
gitimated, politically accountable authority appropriate to the situation in
view? For Hart, the idea of morality was an external tool for evaluating
the goodness or badness of law; for Fuller, it was internal to the concept
of law itself. Fidelity to law involved the quest for good and workable so-
cial arrangements (eunomics), implying procedures and institutions of
good governance.101

B. Lawyers Values and Civil Servants Values

In Canada, a similar debate was carried on between J.C. McRuer, who
adopted an ex ante formalistic vision of the rule of law,102 and his critic,

Social Order]. See also Lon L. Fuller, Irrigation and Tyranny in Principles of Social
Order, supra, 207.

98 Hart, Positivism, supra note 4.
99 H.L.A. Hart, Book Review of The Morality of Law by Lon L. Fuller, (1965) 78 Harv. L.

Rev. 1281.

100 For a detailed elaboration, see the papers presented at the symposium, The Hart-Fuller

Debate at Fifty (2008) 83 N.Y.U. L. Rev. 993-1388.

101 For Fullers first development of the idea of eunomics, see Lon L. Fuller, American
Legal Philosophy at Mid-Century: A Review of Edwin W. Pattersons Jurisprudence,
Men and Ideas of the Law (195354) 6 J. Legal Educ. 457. See also Lon L. Fuller,
Freedom as a Problem of Allocating Choice (1968) 112 Proceedings of the American
Philosophical Society 101. More recently, Olsen and Toddington have developed Fullers
theory of eunomics: Henrik Palmer Olsen & Stuart Toddington, Architectures of Jus-
tice: Legal Theory and the Idea of Institutional Design (Aldershot, Eng.: Ashgate, 2007).
102 Royal Commission Inquiry into Civil Rights, Report One (Toronto: Queens Printer,

196871) c. 3 at 56 (The Rule of Law).

428 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

John Willis, who argued for an ex post pragmatic conception of legality.103
Willis saw good governance arising under two conditions. First, the proc-
esses of social ordering under which different legal tasks are accomplished
must be appropriate to the task at hand. Managerial-allocational tasks
cannot be subjected to the procedural limitations of adversarial adjudica-
tion. Nor can mediation be regulated by the procedural logic of markets.
Nor can elections be disciplined by the protocols of contractual ordering.104
Second, administrative decision-makers and agencies must be subject to
the discipline not only of their organic law, but also of their own internal
law. The central problem of contemporary governance resides in a con-
flict of commitments between public servants and the legal profession
over how best to pursue public policy according to law.105
McRuer, by contrast, was an unreconstructed Diceyan. In other words,
his approach was legalistic and conceptual in addressing the challenges of
modern governance. He focused on a single way of imagining law (statu-
tory rules); a single way of imagining legal decision-making (adversarial
adjudication); a single institution for ensuring substantive and procedural
accountability (courts); and a single process for ensuring respect for the
rule of law (judicial review).106 McRuer felt that nothing less than this
lawyers constitution could guarantee accountability in public govern-
ance and ensure that the supervening political control over agencies by
government was constrained by law.
A prominent point of divergence between McRuer and Willis was
traced by the latter to the formers fidelity not to law, but to the normal
biases of private-sector lawyers: (1) empathy with the individual client as
opposed to the community or the general public; (2) a commitment to the
necessary superiority of detailed legislative instruments as ways of au-
thorizing public action; and (3) a lack of familiarity of, and therefore a
lack of interest in, the actual facts of governmental life.107 Focused on pro-

103 John Willis, Foreword in D.W. Buchanan et al., Canadian Boards at Work, ed. by

John Willis (Toronto: Macmillan, 1941) v at ix.

104 In this respect, Williss views aligned with those of Henry M. Hart Jr. and Albert M.
Sacks. See Henry M. Hart & Albert M. Sacks, The Legal Process: Basic Problems in the
Making and Application of Law, ed. by William N. Eskridge Jr. & Philip P. Frickey
(Westbury, N.Y.: Foundation Press, 1994).

105 See e.g. John Willis, What I Like and What I Dont Like About Lawyers: A Convocation
Address (1969) 76 Queens Quarterly 1. For Willis, man is as man does. Lawyers must
be measured against what they do and how they do it.

106 See Principles of Social Order, supra note 97, vol. 1, at 15-59. For a careful elaboration
of McRuers perspective, see Patrick Boyer, A Passion for Justice: The Legacy of James
Chalmers McRuer (Toronto: University of Toronto Press for The Osgoode Society for
Canadian Legal History, 1994) c. 14 at 297ff. (Civil Rights and the State).

107 John Willis, The McRuer Report: Lawyers Values and Civil Servants Values (1968)
18 U.T.L.J. 351 at 353; John Willis, Foreign Borrowings, Book Review on The McRuer
Report, (1970) 20 U.T.L.J. 274.

 WAS DUPLESSIS RIGHT? 429

tecting client interests, lawyers typically are either against or indifferent
to the public interest and, in any event, mistrust the ability of the gov-
ernment to express the public interest. After all, parliaments typically
want democratic political accountability rather than the historical weight
of the common law to operate as the normative backdrop of governance.108
In such a perspective, strict compliance with lawyers procedural law is an
obligation falling on all public administrators, but such procedural con-
straints may be dispensed with when necessary to preserve a remedy
against public administrators.

C. Justices Fauteux and Taschereaus Morality of Law

Of all fifteen judgments rendered in the Roncarelli case, those of Jus-
tices Taschereau and Fauteux most respected the process and governance
concerns raised by Fuller and Willis. Fidelity to law was achieved by
scrupulously following the procedural principles implied by each different
institutional form through which human beings live normative lives to-
gether.109 For Justices Taschereau and Fauteux, the rule of law requires
courts and public agencies to attend to statutory mandates and the proc-
esses by which legal rights and remedies are claimed. Both felt that the
question whether article 88 of the Civil Code of Procedure applied to bar
the plaintiffs action could not be finessed or cavalierly dismissed.110

Justice Mackinnon, at trial, Justice Rinfret, dissenting in the Quebec
Court of Appeal, and Chief Justice Kerwin, and Justices Rand, Martland,
and Abbott of the Supreme Court of Canada all concluded that Duplessis
was not acting in the exercise of his functions, and could not, therefore,
plead article 88 C.C.P. It is true that the common law distinguishes be-
tween what might be called the abuse of a function (whether in good
faith or bad faith) and usurping authority, with only the former being
protected by provisions like article 88.111

108 For a contemporary iteration of this theme, see Salamon, supra note 9.
109 See Lon L. Fuller, Two Principles of Human Association in Principles of Social Order,

supra note 97, 81.

110 Art. 88, para. 1 C.C.P. provided: 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 exer-
cise of his functions … unless notice of such action has been given him at least one
month before the issue of the writ of summons.

111 The distinction is difficult to draw, and at least one commentator believes that the effect
of the majority decision of the Supreme Court of Canada was to render art. 88 C.C.P.
nugatory. See Amnon Rubinstein, Jurisdiction and Illegality: A Study in Public Law
(Oxford: Clarendon Press, 1965) at 143-44. For a detailed discussion of the real prob-
lems of interpretation raised by art. 88 C.C.P. and the inadequacy of Rand J.s judg-
ment, see Robert Leckey, Complexifying Roncarellis Rule of Law (2010) 55 McGill
L.J. 721. Compare David Dyzenhaus, Rands Legal Republicanism (2010) 55 McGill
L.J. 491.

430 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

Justice Taschereaus judgment is laconic on this point. He simply af-
firms that Duplessis was consulted by Archambault in his capacity as At-
torney Generalthat is, in his quality as legal adviser to the Liquor
Commission. That Duplessis may have made a mistake in the advice he
gave is immaterial to the question whether he was acting in an official ca-
pacity. Justice Taschereau states:

Je demeure convaincu que mme si les paroles de l’intim ont pu
avoir quelque influence sur la dcision qui a t prise, ce dernier
demeurait quand mme un officier public, agissant dans lexercice de
ses fonctions, et quil tait essentiel de lui donner lavis requis par
l’art. 88 C.P.C. …
Lintim est srement un officier public, et il me semble clair quil
na pas agi en sa qualit personnelle. …
[J]e ne puis admettre le fallacieux principe quune erreur commise
par un officier public, en posant un acte qui se rattache cependant
l’objet de son mandat, enlve cet acte son caractre officiel, et que
lauteur de ce mme acte fautif cesse alors dagir dans lexcution de
ses fonctions.112

The judgment of Justice Fauteux is more elaborate, and his reasoning
was later followed by all three dissenting judges in the companion case
Lamb.113 He begins by noting that Justice Rinfret of the Quebec Court of
Appeal and the majority judges in the Supreme Court of Canada erred in
holding that jurisprudence under article 1054 of the Civil Code of Lower
Canada on employers vicarious liability was applicable to this case. He
continued:

Lintim, agissant en sa qualit de Procureur Gnral, nest le prpos
de personne. Il na pas de commettant. La fonction qu’il exerce, il la
tient de la loi. Larticle 88 C.P.C. naffecte en rien la question de
responsabilit. Il accorde, en ce qui concerne la procdure seulement,
un traitement spcial au bnfice des officiers publics en raison de la
nature mme de la fonction.114

Justice Fauteux further noted that the conditions of applicability of
article 88 had been settled since the 1930s and that the defendants good
or bad faith is not a relevant consideration. propos de Duplessis, he ob-

112 Roncarelli, supra note 1 at 129-30 [emphasis in original].
113 Supra note 30, Taschereau, Fauteux and Abbott JJ., dissenting. The judgment of Fau-
teux J. in this case was a further elaboration of his reasoning in Roncarelli, although it
focused on the character of the six-month limitation period in s. 24 of An Act respecting
the Provincial Police Force and the Liquor Police Force (R.S.Q. 1941, c. 47). Interest-
ingly, the uncertainty of Abbott J. on this issue in Roncarelli is reflected in his joining
his civil law colleagues Fauteux and Taschereau JJ. in dissent in Lamb. By contrast,
Cartwright J.who dissented for substantive reasons in Roncarellijoined his five
common law colleagues in deciding, incorrectly, a question of Quebec procedural law in
Lamb.

114 Roncarelli, supra note 1 at 178.

served that Duplessis did not abuse his authority as Attorney General to
pursue an illicit purpose; he acted as he did because he believed that so
doing was fulfilling his role as Attorney General:

WAS DUPLESSIS RIGHT? 431

Il a fait ce quil navait pas le droit de faire … pour sacquitter de ses
responsabilits comme Procureur Gnral charg de ladministration
de la justice, du maintien de lordre et de la paix dans la province et
de ses devoirs comme conseiller juridique du gouvernement de la
province. Il na pas pris occasion de sa fonction pour commettre cette
illgalit. Il ne la pas commise loccasion de lexercice de ses
fonctions. Il la commise cause de ses fonctions.115

Surprisingly, those who would cite the judgment of Justice Rand as an
exemplar of respect for the rule of law fail to note that he cavalierly and
tautologically evacuates article 88 of its most plausible meaning, given its
history, the civil law tradition, and the jurisprudence constante of the
Quebec Court of Appeal since 1936. He states:

[T]he act was quite beyond the scope of any function or duty commit-
ted to him, so far so that it was one done exclusively in a private ca-
pacity, however much in fact the influence of public office and power
may have carried over into it. It would be only through an assump-
tion of a general overriding power of executive direction in statutory
administrative matters that any colour of propriety in the act could
be found. But such an assumption would be in direct conflict with
fundamental postulates of our provincial as well as dominion gov-
ernment; and in the actual circumstances there is not a shadow of
justification for it in the statutory language.116

D. Pragmatic Instrumentalism

Fuller, Willis, Justice Taschereau, and Justice Fauteux argue that the
notion of the rule of law is much more complex than imagined by Hart,
McRuer, and Justice Rand. The law in the rule of law is not just ordi-
nary law setting out rules of duty and entitlement. Fundamental proc-
esses of social ordering in the modern state have their own internal pro-
cedural logic, their own internal morality of operation, and their own
structural preconditions. Social institutions are not infinitely pliable. The
role of courts is not to impose upon governmental and non-governmental
actors a particular adjudicative version of due process. Rather, it is to
ensure that decision makers are faithful to the procedural aspirations of
the institutional practices they instantiate. In this respect, the decisions
(1) to grant a broad discretion to decision makers, (2) to organize agen-
cies as regulatory vehicles to advance government policy and not as inde-
pendent agencies modelled on courts and performing quasi-judicial func-
tions, and (3) to promote amicable settlement of claims by requiring a fiat

115 Ibid. at 181.
116 Ibid. at 144, Rand J.

432 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

to sue (as was the case elsewhere in Canada in 1946) or a mandatory prior
notice of an intention to do so (article 88 C.C.P.) are not in conflict with
the basic premises of contemporary democratic government. When such
decisions have been taken, it is not the role of courts to undermine the in-
ternal morality of the rule of law in the guise of protecting some other
fundamental values.117 One would have thought that fidelity to the rule of
law would have induced a common lawtrained judge seeking to interpret
a provision of Quebecs Code of Civil Procedure to have devoted more at-
tention to the design of the legislative regime (that is, to the structural
features of civil litigation in Quebec), to its interpretive history in Quebec
courts, and to the policy rationale (the purposes) for such a provision,
rather than simply presuming to know what fidelity to law requires.

Conclusion
The historicist fallacy is endemic to modern legal scholarship.118 In

part, the gravamen of this essay is to show how Roncarelli has been ab-
stracted from its time and place, and made to speak for propositions not
present at the moment of Duplessiss actions or the Supreme Court of
Canadas decision. Today the deep context of the case has largely been
forgotten. Even those scholars who acknowledge this context are often vic-
tim to the contemporary propensity either to ignore the insights of prag-
matic legal realism or to read the case in the light of desired political out-
comes. Both intellectual errors mar much reflection about the Roncarelli
case and lead commentators uncritically to dismiss the social, political,
and legal theory that could be seen to underlie Duplessiss arguments.
A close look at the socio-demographic background of the fifteen judges
who heard the case reveals the impact of language, religion, and geogra-
phy on outcome.119 Only Justices Cartwright and Rinfret wrote judgments
inconsistent with the decisions of their socio-demographic peers. A close
look at the social and legal philosophy of these judges as reflected in their
historical voting record also reveals that they display a policy-based
rather than a doctrine-based consistency in decision making.120 Only Jus-
tices Cartwright and Rinfret (strongly) and Justice Abbott (moderately)

117 The scope of the courts role in such cases depends on the fundamental architecture of
the Canadian legal system. In 2009, this role is performed by the courts under the Ca-
nadian 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 [Canadian Charter]). It was not
self-evidently a role assigned to courts in 1946. Moreover, on the substance of art. 88
C.C.P. there is no evidence that any post-1982 decision of the Supreme Court of Canada
would give comfort to those who would see the Canadian Charter as licensing a whole-
sale rewriting of basic procedural principles of adversarial adjudication.

118 Robert W. Gordon, Historicism in Legal Scholarship (1981) 90 Yale L.J. 1017.
119 See Part I.B above.
120 See Part I.C above.

 WAS DUPLESSIS RIGHT? 433

wrote judgments inconsistent with their respective general patterns of
voting in such types of cases.
As a first approach to reassessing the impact of social and political
context on judicial decision-making in Roncarelli, consider the following
two counterfactual comparators:

(1) Would the outcome have been the same if the Jehovahs Witnesses
had circulated a pamphlet in 1948 entitled La hane ardente du …
[insert any one of: musulman, hindou, bouddhiste, Mormon,
doukhobor, juif] … pour Dieu, pour Christ et pour la libert est un
sujet de honte pour tout le Canada?

(2) Would the outcome have been the same had Duplessis chosen to
appeal the case to the neutral arbitration of the Judicial Commit-
tee of the Privy Council, a body historically more sensitive to is-
sues of federalism, provincial rights, and Quebecs place in the
Canadian state?121

Similar questions can be raised about the legal-procedural issues brought
forward for decision:

(1) If Duplessis were in fact the defendant in this case, and was liable
for interfering in a decision that was not his to make, it is irrele-
vant whether Archambault properly exercised his discretion. Con-
sequently, was it not highly presumptuous for a Protestant, an-
glophone, common lawyer to lecture Roman Catholic, francophone,
civil law judges about their law in a lengthy obiter dictum?

(2) Why should the court in 1959 apply a standard about a political
figures relationship to an administrative officer in Quebec and the
ensuing liability of public officials for acting without authority
that it was not also applying to administrative decision-makers
elsewhere in Canada at the same time?122

Of course, in making these points I do not mean to argue that the
moral, political, and legal theories advanced by Duplessis to justify his ac-
tions in Roncarelli provide a general basis for his political guerre sans
merci. In particular, I acknowledge that they cannot be extended unprob-
lematically to other 1950s cases involving the propagation of communist
ideology or proselytizing by Jehovahs Witnesses or to the actions of mu-
nicipal and educational officials and police officers.123 Cases should be de-

121 See Alan C. Cairns, The Judicial Committee and Its Critics (1971) 4 Can. J. Pol. Sc.

301.

122 For the common law of Crown liability in 1946, see Hogg & Monahan, Liability, supra

note 11.

123 See the litany of cases and incidents reported in Sarra-Bournet, supra note 7 at 29-55.

434 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

cided and later be interpreted and understood with due attention to their
context.

I do, however, suggest that there are plausible social theories (the
internormative pluralism of Devlin and Grant), political theories (the
communitarianism of Tremblay and Taylor), and legal theories (the
pragmatic instrumentalism of Fuller and Willis) that provide support for
each of the positions argued by Duplessiss counsel in Roncarelli given the
state of the law in 1946. In so doing, however, I also leave open the
question whether these same theoretical perspectives would today lead to
a judgment in favour of Roncarelli, rather than Duplessis.124 If this essay
on the fiftieth anniversary of the Supreme Court of Canada decision helps
advance an appreciation of this point, I shall be content.

MACDONALD J.

Did Duplessis order the cancellation of the liquor licence or otherwise

Appendix

The case under appeal raises five questions for consideration by this court.
A.
induce Archambault to do so?
[1]
It was argued that Duplessis ordered the cancellation, or at least strongly
intimated to Archambault that this was his wish. Indeed, Duplessis himself admitted
that he thought this was what he was doing. Yet Archambault testified that he had de-
termined to cancel the licence on his own, prior to receiving a call from Duplessis. On
what theory of human motivation would my decision become not my own simply be-
cause someone else thinks I acted because he told me to do so? Nonetheless, the trial
judge found as fact that Duplessis ordered the cancellation and since there was evi-
dence upon which this finding could be based, the procedural rules of the Code of
Civil Procedure disentitle this court from reversing that finding.
Did Duplessis have the legal authority to make such an order?
B.
[2]
On the assumption that Duplessis did in fact order the cancellation and
that this order was the reason why Archambault cancelled the licence, the question
arises whether Duplessis was vested with the legal authority to do so. The Alcoholic
Liquor Act grants decision-making authority to the head of the Liquor Commission.
In the common law traditionwhich has since 1763 applied to the public law of the
province of Quebecwhere an agency is acting as a delegate of the legislature and is
not given a ministerial department through which to report to the legislature, it is the
Attorney General who acts as the legal officer of that agency. Unless the statute con-
templates that the head of the Liquor Commission is a delegate of a power vested in
the prime minister or the Attorney General, Duplessis had no authority to order a
cancellation. Nonetheless, acting as legal adviser, the Attorney General does have au-

124 To illustrate the gravamen of my claim, I have attempted to draft a judgment of the Su-
preme Court of Canada that attends to these theoretical perspectives. See Appendix,
below.

 WAS DUPLESSIS RIGHT? 435

Did the head of the Quebec Liquor Commission properly exercise his

thority to counsel an administrative decision-maker and, like all legal counsel, in so
advising is perfectly entitled to take into account a broad range of factors in formulat-
ing his advice. Today in 1959, administrative agencies typically have separate legal
departments or rent counsel from the Department of Justice. In 1946, in Quebec
they did not. The structural change since then would argue for the Attorney General
not retaining an operational role as counsel to an agency, although the common law
authority of the Attorney General as Her Majestys chief law officer remains. So
while Duplessis most certainly had the authority as Attorney General to advise the
head of the Liquor Commission as to an appropriate course of action, under the stat-
ute as then written, he did not have authority to order a cancellation.
C.
discretion?
[3]
Counsel argued at length that the head of the Liquor Commission im-
properly exercised his discretion. This is an irrelevant issue, since the head of the
Liquor Commission is not a party to this action. If we assume, however, either that
Duplessis was the repository of the authority to cancel the licence or that Archam-
bault was a party to these proceedings, the question could be addressed by this court.
Duplessis claims that a liquor licence is a statutory privilege, not an entitlement. He
further claims that, as a matter of public policy, the Government of Quebec has de-
cided not to create a statutory monopoly for the purveyance of alcohol in all circum-
stances, but to regulate the consumption of alcohol by franchising the right to serve
alcohol to designated private-sector actors who meet appropriate standards of sobri-
ety, public health, and good morals. Given the importance of preventing alcoholism
and limiting excessive consumption, and given that liquor licences were, in 1946, a
tool of public governance, it is an appropriate exercise of discretion to inquire into the
activities of those holding licences when it is alleged that the economic benefit of the
licence is being deployed to undermine public policy announced by a democratically
elected government. Whether this inquiry is appropriate for all licences in all cases at
all times, and what types of activity are inappropriate for a licence holder, are matters
of political and legislative judgment in individual cases. In 1946, in Quebec, facilitat-
ing the distribution of literature that the Quebec Court of Appeal had deemed to be
defamatory and seditious was an action that the government could properly view as
contrary to the purposes of the grant of a regulatory privilege.
Counsel also argued that, even were this characterization of liquor per-
[4]
mits accurate, the public policy grounds for cancellation would have to be spelled out
in the relevant statute. It is to be recalled that the Alcoholic Liquor Act stated explic-
itly that holders of liquor licences must be of good moral character, a criterion that
is not elaborated further in section 148. While a liquor licence could not be revoked
on a ground extraneous to the public policy pursued in alcoholic regulationfor ex-
ample, on the simple ground that Roncarelli was a Jehovahs Witness, or because the
head of the Liquor Commission had a personal animus against Roncarellithat, ar-
guably, was not the case here. This said, Duplessis did not provide this court with suf-
ficient evidence linking the public policy concerning liquor regulation and the crite-
rion of good moral character with the specific breaches of good morals that would
justify revocation. Nonetheless, this court accepts that had such evidence been forth-
coming, it would not have been contrary to law for the licence to have been revoked

Did the failure to give Duplessis notice as required by article 88 C.C.P.

436 (2010) 55 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

on broad grounds of public policy relating to the regulatory purposes being pursued
in the Alcoholic Liquor Act.
Was Duplessis immune from a civil action?
D.
[5]
Under long-standing principles of constitutional law, all public officials
are liable for the wrongs they commit unless they are declared immune from such li-
ability by an act of the legislature. No such legislative immunity is given to the de-
fendant in this case by the Alcoholic Liquor Act, the Attorney-General Act, or the
Code of Civil Procedure.
E.
bar Roncarellis claim?
[6]
According to long-settled jurisprudence of the Quebec Court of Appeal,
article 88 C.C.P. is applicable whether a public official is acting in good or bad faith,
whether a public official is acting legally or illegally, and whether a public official is
acting with or without statutory authority. The test for whether an official is acting as
a public official is whether the language of the purported statutory or common law
authority envisions the generic types of acts undertaken, and whether the purported
exercise of authority is consistent with the purposes for which such authority (or pre-
sumed authority) is delegated. It is not relevant that Duplessis, as a politician, was
waging a guerre sans merci against Jehovahs Witnesses; nor is it relevant that for
political reasons he stated his intention to revoke the licence. Unless it could be
shown either that the act of ordering the cancellation could not be plausibly con-
nected to the common law role of the Attorney General as Her Majestys law officer,
or to his role as legal adviser to the Quebec Liquor Commission, and that the decision
was taken on grounds of personal malice not relevant to an assessment of the pur-
poses attached to such a role, article 88 applies to Duplessiss actions. It is true that
the combination of the fiat requirement for proceeding against the Liquor Commis-
sion or its general manager, combined with the requirement to give notice, appears to
have left Roncarelli without a remedy. However much it is to be hoped that these dis-
cretionary fiat requirements will be abolished in the future, the thirty-day notice re-
quirement does not confer a judicial discretion to dispense with it. It is, moreover,
perfectly consistent with the logic of the Code of Civil Procedure in respect of actions
against public officials. The appropriate remedy for Roncarelli, faced with the refusal
of Duplessis, as Attorney General, to permit proceedings against the Liquor Commis-
sion, and the refusal of Chief Justice Ltourneau to authorize proceedings against the
manager of the Quebec Liquor Commission, would have been to bring judicial re-
view proceedings to have those refusals set aside. Had he done so, given the facts as
established by Justice Mackinnon at trial, the request to quash the refusals would
have been granted. The mere fact that article 88 bars Roncarellis action in damages
against Duplessis is no justification for undermining the procedural regime by which
the rule of law is preserved in cases of actions brought against public officials.