Complexifying Roncarelli's rule of law.

• Author: Leckey, Robert

The accepted reading of Roncarelli v. Duplessis requires revision. Accounts by which Justice Rand defended the rule of law while the dissenters were indifferent to it mischaracterize the judgment. Justice Rand's judgment is bolder and less explicit than is typically supposed: his treatment of the notice requirement constitutes part of his defence of the rule of law. For its part, Justice Fauteux's dissent enacts a plausible understanding of the judge's role within the rule of law. Disagreement on the overlooked procedural issue is best viewed as fully internal to the rule of law. The judgment's relevance for rule of law scholars is its exenaplification of the possibility for rule of law impulses to conflict, making it a much richer and more interesting text. Scholars' dismissiveness toward the procedural issue reveals an unsatisfactory view on the part of legal scholars, one by which judges simply apply the rule of law, rather than being also themselves constrained by it.

Une revision de l'interpretation generalement acceptee de l'affaire Roncarelli c. Duplessis s'impose. Uargument selon lequel le juge Rand defendait la primaute du droit tandis que les juges dissidents y etaient indifferents portraitise mal le jugement. Le jugement du juge Rand est plus audacieux et moins explicite qu'on ne le suppose habituellement: son traitement de la question de l'exigence de preavis fait partie de sa defense de la primaute du droit. La dissidence du juge Fauteux exemplifie une approche plausible quant au role des juges au sein de la primaute du droit. Le desaccord portant sur la question procedurale negligee se comprend mieux comme etant entierement interne a la primaute du droit. Le jugement demontre comment les impulsions pour defendre la primaute du droit peuvent entrer en conflit, rendant ainsi le texte d'autant plus riche et interessant. L'approche de ceux qui etudient la primaute du droit, qui fait abstraction de la question procedurale et selon laquelle les juges ne font qu'appliquer la primaute du droit plutot que d'y etre contraints, est insatisfaisante.

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Introduction I. The Notice Requirement as Disputed II. Rereading the Judges III. Scholarly Reading and the Rule of Law Conclusion Introduction

A great judgment's fiftieth anniversary occasions reflection on the practices of reading accumulated around it. Scholars and judges repeated]y cite Justice Rand's clarion warning in Roncarelli v. Duplessis against the "beginning of disintegration of the rule of law as a fundamental postulate of our constitutional structure." (1) Scholars of the rule of law have studied the opposition between his repudiation of "absolute and untrammelled" discretion and Justice Cartwright's characterization, in dissent, of the liquor commission's discretion as "unfettered". (2) But few see this opposition as a live debate: casebooks excerpt Justice Rand's reasons as exemplary of the rule of law, and Justice Cartwright appears as standard bearer for a discredited view. (3) Roncarelli has come to stand for one issue, executive discretion as constrained by the rule of law, and a one-sided issue at that. Its other issues lie in relative neglect, including the requirement in article 88 of Quebec's Code of Civil Procedure for thirty days' notice in suits against public officers. (4) Roncarelli's lawyers had passed much of the six months' prescription period in the pursuit of public-law recourses requiring authorization that was withheld before they turned their minds to a claim in civil liability against Duplessis personally. When they eventually did so, the prescription period left them less than the thirty days for the required notice. (5) If they think of it, readers today regard this procedural matter, like the question of discretion, as unevenly weighted. On one side stands Justice Rand, the rule of law's champion, whom the "obstacle" posed by article 88 "did not bother ... for more than a moment"; (6) on the other, narrow-minded, formalist judges who disposed of the case on "purely technical grounds." (7)

This accepted reading of the judgment requires revision. Accounts by which Justice Rand and the other majority judges defended the rule of law while the dissenters were indifferent (if not hostile) to it mischaracterize the judgment. Such accounts advance an understanding of the rule of law that is partial in both main senses. Uncritical acceptance of the majority judges' presentation of the procedural issue as straightforward has impoverished scholars' appreciation of the case. Justice Rand's judgment--which should be not only praised, but parsed--is bolder as well as less explicit than typically supposed. For its part, Justice Fauteux's dissent, in which he regards the legislature's procedural rule as preventing him from doing justice for the plaintiff, should be seen as enacting a particular, defensible understanding of the rule of law, one consistent with recent sophisticated accounts of limits on the judicial role. Disagreement on the notice requirement, then, is appropriately viewed as a debate fully internal to the rule of law. Understood better, Roncarelli's relevance to the rule of law is not solely the incandescent, unequivocal rightness of Justice Rand's reasons, but rather its exemplification--in the contrast between his opinion and Justice Fauteux's dissent--of the possibility for rule of law impulses to conflict. The judgment is thus a much richer and more interesting rule of law text than scholars credit. Moreover, scholars' dismissiveness toward the procedural issue reveals an unsatisfactory view on their part, one by which judges simply apply the rule of law, rather than being also themselves constrained by it. The failure to recognize Justice Rand's treatment of the procedural rule as a key part of his performance suggests the need for rule of law scholars--reading as both philosophers and lawyers--to expand the judicial conduct of interest to them so as to include so-called technicalities.

1. The Notice Requirement as Disputed

   By demonstrating that article 88 presented "compelling and real" issues, (8) this part aims to unsettle the accepted wisdom that on that matter the majority adopted the sole credible option. It would follow that the dissenters who relied on article 88 cannot be dismissed as partisans of mere proceduralism or as having dressed in procedural garb their preference for Duplessis on the merits. Mention of the rule of law evokes its ostensible opposite, rule by men. In this instance, rule by men is usually detected in the premier's usurpation of the power to revoke a liquor permit. Recovering article 88 as genuinely disputed will show that the damages award sanctioning the abuse of executive power did not emerge from an uncontroversial, syllogistic deduction from the premises of legal rules. Instead, that award resulted from several men's--the majority judges'--contingent, and contestable, human judgment. (9)

   Article 88 attracted competing interpretive considerations. As noted by both dissenting judges, the rule's imperative character called for courts to raise lack of notice ex proprio motu. The clause "nor can any verdict or judgment be rendered" limited the court's jurisdiction. (10) While a provision's imperative character cannot dictate whether its terms properly encompass a particular act, it alerts judges to the possibility that, on its best reading, it might constrain them. It manifests the drafter's contemplation that the rule would sometimes preclude the issuing of a judgment otherwise appropriately rendered. Considerations also pulled the other way. Article 88's character as an exception from the law of general application for the benefit of a class arguably subjected it to strict interpretation in the plaintiffs favour. (11) While neither consideration dictated an outcome, together they signalled the need for a more than cursory interpretation.

   At trial, Justice Mackinnon found that Duplessis was not entitled to avail himself of article 88 on the basis that his "were not acts 'in the exercise of but 'on the occasion of public duties'." (12) At the Quebec Court of Appeal, where four judges allowed Duplessis's appeal, the dissenting judge, Justice Rinfret, agreed with the trial judge on article 88. (13) The majority judges at the Supreme Court of Canada held likewise that Duplessis was not entitled to the notice. They seem to have regarded the matter of article 88 as straightforward. On Justice Rand's understanding, the act underlying Roncarelli's claim "was quite beyond the scope of any function or duty" entrusted to Duplessis, "so far so that it was one done exclusively in a private capacity, however much in fact the influence of public office and power may have carried over into it." (14) In Justice Martland's fuller discussion, he referred to his prior conclusion on the merits that Duplessis's declared belief that he had acted within his official functions failed to justify his conduct. Justice Martland reasoned that the classification of acts as within or without the exercise of a public officer's functions was to be determined not on the officer's appreciation, subjectively, but according to law, objectively. For authority, he cited an English court's denial of notice to a justice of the peace on the basis that he had acted absent any authority; despite his belief to the contrary. (15) Justice Abbott, the sole Quebec judge to side with the majority, cited two Quebec authorities in support of his view that article 88 applied only to public officers who, unlike Duplessis, had had "reasonable ground" for believing their act to fit within their authority. (16)

   Two dissenting judges, Justices Taschereau and Fauteux, would have disposed of the appeal by finding that the failure to give notice barred the plaintiffs claim. On the merits, however, they held opposing views. Justice Taschereau hinted that be would have regarded withdrawing the permit as within the Liquor...