Building a law of human rights: Roncarelli v. Duplessis in Canadian constitutional culture.

• Author: Adams, Eric M.

This article reveals how audiences, especially in anglophone Canada, initially received and interpreted Roncarelli v. Duplessis as a case, above all, about human rights. Ignoring the judgment's myriad complexities, commentators eagerly situated the case within the Supreme Court of Canada's "implied bill of rights" jurisprudence then taking shape. Part of the reason for the emphasis on Roncarelli's rights can be traced to the manner in which Frank Scott and Louis Stein argued the case, and the language of rights employed by Justice Ivan Rand's iconic judgment.

But Roncarelli's meaning also took shape in press accounts and editorials, radio broadcasts, case comments, and law school lectures. Exploring these often-neglected sources, this article exposes the role of constitutional culture in creating jurisprudential meaning. In turn, it also calls for greater recognition of the pre-Charter Supreme Court of Canada in contributing to Canada's intellectual history of rights.

Cet artiele montre comment le public, notamment celui du Canada anglais, a initialement recu et interprete l'arret Roncarelli c. Duplessis comine etant une affaire ayant trait avant tout aux droits de la personne. Laissant de cote les innombrables complexites du jugement, les commentateurs se sont empresses de situer l'arret dans la jurisprudence de la Cour supreme du Canada qui se formait a l'epoque sur la >. L'accent mis sur les droits de Roncarelli s'explique en partie par l'approche adoptee par Frank Scott et Louis Stein pour plaider la cause ainsi que par le langage utilise par le juge Ivan Rand dans son jugement embtematique.

Toutefois, la signification de l'arret Roncarelli s'est aussi formee a travers des eomptes rendus de presse et des editoriaux, des emissions de radio, des commentaires d'arret et des cours dans les facultes de droit. En explorant ces sources trop souvent negligees, cet article expose le role de la culture constitutionnelle dans l'interpretation jurisprudentielle. De plus, il lance un appel pour une plus grande reconnaissance de la contribution de la Cour supreme du Canada a l'histoire intellectuelle des droits au Canada avant l'avenement de la Charte canadienne des droits et libertes.

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Introduction I. Roncarelli at the Supreme Court of Canada II. Roncarelli in Living Rooms III. Roncarelli in Classrooms Conclusion Introduction

A few months after his momentous victory as co-counsel in Roncarelli v. Duplessis, (1) Frank Scott spoke to an audience of lawyers at the midwinter meeting of the Canadian Bar Association. "I find it interesting to observe how in the field of constitutional law," Scott began, "certain parts of the total structure seem to become floodlighted and to stand out from the rest at particular periods of time." (2) It was true that in the past, "[m]ost of the great cases in Canadian constitutional law ... have turned on questions of jurisdiction under sections 91 and 92 of the BNA Act, and these we have always with us," but, he continued, a "short look backward over the past dozen years" revealed courts and legislatures grappling with a new set of constitutional issues and concerns. (3) "Constitutionally speaking," Scott declared, "the 1950s was predominantly the decade of human rights." (4)

To prove his point, Scott turned his audience's attention to a series of cases already on their way to being regarded as the '"golden' moments of the civil liberties decade": (5) Boucher v. R., (6) Saumur v. Quebec (City of), (7) Switzman v. Elbling, (8) and Roncarelli. Collectively, these cases--or, rather, certain judgments within them--had become famous for their articulation of a constitutional theory known as the "implied bill of rights". (9) Although judges on the Supreme Court of Canada never used that expression to describe their jurisprudential efforts, a legion of admirers adopted and promulgated the phrase in the years that followed. (10) In grouping the implied bill of rights cases together, scholars and commentators flattened vast and subtle differences among a diverse body of jurisprudence in an effort to find transcendent constitutional meaning in the decisions of the Supreme Court of Canada. Most important to Scott and most of his contemporaries, the implied bill of rights had, even in the absence of an entrenched bill of constitutional rights, elevated human rights and fundamental freedoms into core features of Canadian constitutional law.

From the moment he first encountered the story of Frank Roncarelli, Frank Scott saw the issue as one of individual rights and freedoms. As he often did, Scott took his arguments first to the readers of the leftist magazine, Canadian Forum. In his pithy 1947 article, "Duplessis versus Jehovah", Scott accused Duplessis of seeking "to wreck all civil liberty in Quebec" by punishing Roncarelli for exercising "this ancient guarantee of human liberty," the "legal right" to provide bail. (11) Throughout his short article, Scott raised the postwar spectre of authoritarian state power directing "gang[s] of policemen" in the "mass persecution" of "a small religious sect." (12) Of the lessons to be drawn from these events, Scott suggested the need "for active civil liberties associations," not just in Montreal, but across "this country." (13) And lest the incident serve as "an excuse for another attack upon Quebec," Scott reminded that the "most serious breach of civil liberties in this country is British Columbia's--and the federal government's--treatment of Canadian citizens of Japanese origin." (14) By casting the Roncarelli affair as an issue of individual rights national in scale and scope, Scott placed the battle between a Montreal restaurateur and Quebec's premier in Canada's emerging constitutional politics of rights.

Today, however, Roncarelli connotes a different constellation of meanings. Although perhaps the best known of the implied bill of rights cases, its jurisprudential authority is now more closely tied to the limited authority of government officials and "rule of law" constitutionalism, propositions for which it is routinely cited, (15) and even more frequently taught. (16) Of course, the norms inherent in the ideals of the rule of law--even if notoriously slippery and ambiguously multifaceted--are themselves derived from notions of individual liberty, as A.V. Dicey himself well recognized. (17) But while the rule of law, evocatively spare and malleably abstract, has offered a rich vein for contemporary constitutional theorists, Roncarelli's initial audiences tended to overlook the judgment's complexities in search of more accessible and immediate constitutional meaning. Largely ignoring or downplaying the case's ratio decidendi and private law dimensions under Quebec's Civil Code of Lower Canada, commentators in anglophone Canada in the late 1950s and early 1960s read Roncarelli through a lens shaped by contemporary debates about the nature of constitutional rights and citizenship. For them, Roncarelli was a case about the evolving role of individual rights in Canadian constitutional law. In the process, Roncarelli, like the other implied bill of rights cases before it, came to express meaning in Canadian constitutional culture not altogether synonymous with its holdings at law.

In general, Canadian legal scholars have tended to neglect the richer and more dynamic cultural histories of our constitutional jurisprudence. It was not the black letters of the Supreme Court Reports that gave life to the cases contained within them, but the reactions of civil society--politicians, lawyers, scholars, students, media, social movements, and citizens--to the formal judgment handed down by the Court. (18) And just as Roncarelli contributed to ongoing debates about the place of rights in Canadian constitutional law, so too did those debates influence the members of the Supreme Court of Canada in the 1950s. As Robert Post argues, "constitutional law and culture are locked in a dialectical relationship, so that constitutional law both arises from and in turn regulates culture." (19) We catch glimpses of the processes of mutual influence and construction in an array of formal legal and informal cultural sources: Roncarelli's factum, press reports, editorials, case comments, law review articles, parliamentary debates, classroom discussions, and personal correspondence, among other less easily accessible nooks and crannies of Canadian constitutional discourse. We should, of course, continue to puzzle over and debate the doctrinal implications and theoretical dilemmas posed by a great case like Roncarelli, but so too must we widen our gaze to view the case in its lived contexts. Not only in the courtroom, but also in Canadian living rooms and classrooms, we see the way in which Roncarelli became--even if partially and momentarily--a case about human rights.

1. Roncarelli at the Supreme Court of Canada

   Just as Scott's article on Roncarelli appeared in Canadian Forum, Montreal lawyer Albert Louis Stein approached Scott, at Roncarelli's urging, to see if he would join Roncarelli's legal team. Though worried about the transition from classroom to courtroom, Scott nonetheless agreed. (20) Ten years later, preparing their factum for their appeal to the Supreme Court of Canada, Scott continued to view the case as a matter of individual rights and freedoms, notwithstanding the essentially private law character of his client's claim. To be sure, Scott and Stein comprehensively addressed the issues of fault, causation, and damage under the Civil Code of Lower Canada in their factum and over the course of a remarkable five days of argument before the Supreme Court of Canada. Yet rights rhetoric remained a critical feature of the argument, and a compelling framing device for Scott's presentation of the sympathetic facts. As their factum declared, "[t]his case raises grave questions of fundamental freedoms and human rights namely, freedom of religion and the right...