BACKSTAGE

BACKSTAGE AT OTTAWA

How will Supreme Court weigh Duplessis’ power?

BLAIR FRASER June 7 1958
BACKSTAGE

BACKSTAGE AT OTTAWA

How will Supreme Court weigh Duplessis’ power?

BLAIR FRASER June 7 1958

BACKSTAGE AT OTTAWA

BACKSTAGE

BLAIR FRASER

How will Supreme Court weigh Duplessis’ power?

EARLY IN JUNK a case will come before the Supreme Court of Canada that poses some interesting questions for debate on the prime minister’s favorite project, a Hill of Rights: What protection already exists for the citizen against the agents of the state? What recourse has a citizen if an agent of the state does him damage by exceeding lawful powers? How much more protection can be guaranteed by a federal statute, without encroaching on provincial authority?

The case is that of Frank Roncarelli. who twelve years ago was a rich Montreal restaurateur and who now is an obscure salaried employee of the St. Lawrence Seaway Authority. Roncarelli is a member of the religious sect known as Witnesses of Jehovah. When hundreds of Witnesses were being arrested in Montreal between 1944 and November 1946. on charges which the Supreme Court later found to be invalid. Frank Roncarelli went bail for 393 of them, putting up a total surety of about $83,000. For this reason the Quebec Liquor Commission on orders from Premier Maurice Duplessis, canceled the liquor license that Roncarelli had held for many years like his father before him. and effectively put Roncarelli out of business.

Roncarelli sued for damages. He

tried to sue Edouard Archambault, chairman of the Quebec Liquor Commission, but the Quebec Alcoholic Liquor Act says the QLC chairman cannot be sued without the permission of the Chief Justice of Quebec. The Chief Justice refused to give permission. Then Roncarelli tried to sue the Quebec Liquor Commission, but the QLC cannot be sued without permission of the attorney-general. The attorneygeneral of Quebec is Premier Duplessis, who announced at a press conference that he was refusing permission.

So Roncarelli sued Duplessis himself, and to everyone’s astonishment he won. True, he asked $118,000 and the court awarded him only $8.000. I rue, by the time he got judgment nearly five years had gone by. his business was ruined and he himself was looking in vain for work. But on the question of principle he won. The court ruled that he had been damaged, that it was Premier Duplessis’ fault, and that Duplessis must pay.

Both parties appealed. Duplessis appealed the judgment itself, Roncarelli the amount of damages — $8,000 wouldn’t even pay the interest on what he had lost. This time Duplessis won. With one judge dissenting, the Court of Appeal threw out the judgment in Roncarelli's favor. It is this decision that is now to be reviewed by the Supreme Court of Canada. Even its ruling will not necessarily be final, since this case began before December 1949 and can therefore be taken to the Privy

Council in London by either party.

The record of the case includes some interesting reading. In particular, it gives an illuminating glimpse of Premier Duplessis’ own concept of his personal authority.

By the mere letter of the law he wouldn’t have been involved in the case at all. Power to issue liquor permits lies with the Quebec Liquor Commission, which “may cancel any permit at its discretion.” Duplessis could have argued, if he had so chosen, that Chairman Archambault acted upon his own authority against Roncarelli, and that if anyone were liable for damages it was he.

Duplessis said nothing of the kind. "I have ordered the Quebec Liquor Commission to cancel his permit,” said the premier, because "the sympathy which this man has shown for the Witnesses of Jehovah in such an evident, repeated and audacious manner is a provocation of justice.”

At this time the Witnesses of Jehovah had not been convicted, finally, of any offense. Hundreds had been charged, but appeals in the test cases were pending; when they finally got to the Supreme Court the charges were thrown out. Nevertheless Duplessis argued that “the plaintiff’s conduct constituted a defiance of public order and authority,” since he persisted in putting up bail for the accused Witnesses. Roncarelli had done this in spite of'the fact that he. Duplessis, had “pointed out to the public the dangers of being accomplices in the (Witness) movement.” That was why he had “ordered” the Roncarelli permit canceled, “not temporarily, but definitely and for always.” It w'as also made known through the press

that no one who bought Roncarelli’s restaurant from him could hope for a license, either.

“The defendant (Duplessis) strenuously contends," said the trial judge, "that as he acted in his quality of prime minister and attorney-general and minister of the Crown in good faith and in the interests of the public, his acts cannot be questioned.” The judge did not agree with this view.

Neither did the Court of Appeal, even though it found in his favor. Its ground for over-ruling the trial judge was that Duplessis’ responsibility for cancelation of the license was not clearly proven. One judge remarked that the premier's approval of the QLC chairman’s act was not an “order” in the usual sense (even though Duplessis himself said quite flatly that it was).

But in practice it appears that any word from Premier Duplessis has the effect of an order among the officials whom he appoints. As the trial judge grimly remarked, anyone who ignored the premier’s expressed will might find his appointment “abruptly terminated.” Or in Premier Duplessis’ own words to the court: “When the superior officer speaks, it is an order.”

One question, therefore, that the Supreme Court will have to decide is who’s in charge here. Another is whether this person can be held responsible for damage inflicted on a citizen, in this case the loss of a livelihood and a considerable fortune. (Roncarelli sold his business at a tremendous loss, found himself unable to get suitable work for years, even tried doing business under an assumed name for a while but still found himself in trouble whenever he was recognized.) Fs the state's agent accountable for such damage, or is he so

far above the law that “his acts cannot be questioned”? Did he in fact exceed his proper authority when he punished Frank Roncarelli for giving legal aid to the accused Witnesses of Jehovah?

Behind that question lies another, the most important of all: What guarantees exist in this country for the freedom of worship and of speech?

The Witnesses whom Roncarelli bailed out were arrested for distributing pamphlets, holding meetings, preaching sermons and so on. One of the pamphlets was entitled. “Quebec's Burning Hate,” and it contains some very intemperate language directed against the Roman Catholic Church and other institutions. No doubt the sermons contained similar language.

Some Witnesses were accused of sedition, but the Supreme Court ruled eventually that the pamphlet they distributed was not seditious. Some were arrested for violating a municipal bylaw by distributing circulars without a license: the Supreme Court ruled that this bylaw was itself illegal.

Frank Roncarelli was penalized, then, for no other crime than putting up bail for people whom, in the end. the Supreme Court found innocent of any offense. On the face of it. you’d think Roncarelli would have an excellent chance of winning his case before the same high court.

However, both the Jehovah’s Witness judgments were split decisions, five judges to four. One of the five judges who upheld the Witnesses in the previous cases was Mr. Justice Roy Kcllock, now retired. Mr. Justice Ronald Martland, who was appointed last January, has yet to reveal his views in cases of this kind.

Also there are differences of opinion, among authorities of equal eminence, about the constitutional safeguards of liberty in Canada. Some judges in previous cases have held that the provincial authority over “property and civil rights,” stipulated by the British North America Act, includes civil liberties. By that interpretation these liberties are at the mercy of provincial governments and, presumably, would remain so no matter what the new federal Bill of Rights may say.

The opposite view, which up to now has prevailed in several important judgments, is that the fundamental liberties of the subject are guaranteed by the British North America Act and cannot be abrogated by a provincial government. This is the "Duff Doctrine,” elaborated by Chief Justice Sir Lyman Duff when the Supreme Court quashed the Alberta Press Act some twenty years ago. Last year Mr. Justice D. C. Abbott carried the Duff Doctrine a step further, in his reasons for judgment against the Quebec Padlock Law—he said these liberties could not be suppressed by any Canadian legislature, federal or provincial, but only by actual amendment of the British North America Act in the British parliament.

It is not certain, of course, that the Supreme Court will regard the Roncarelli case as a straight freedom-ofworship issue; it is complicated, as the previous cases were not, by questions only half relevant to civil liberty. How much “discretion” can the Quebec Liquor Commission lawfully exercise? How much of that authority, if any, can be delegated to Premier Duplessis? But with all these qualifications, the Roncarelli trial is still the most important civil-liberty case since the Padlock Law was thrown out two years ago. ★

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