The public/private distinction in Roncarelli v. Duplessis.

• Author: McKee, Derek
• Position: Canada

Roncarelli v. Duplessis is remembered for the way it imposed limits on public power. But in imposing these limits, it relied heavily on public/private distinctions inherited from nineteenth-century classical liberalism. The judges invoked public/private distinctions to identify the damage Roncarelli suffered, to consider the purposes for which discretion could be validly exercised, and to determine whether Duplessis had exceeded his authority.

The author argues that this proliferation of public/private concepts echoes the general indeterminacy of these ideas in liberal legal thought. Although the state/civil society distinction is central to liberal notions of public and private, it coexists with parallel thought structures, such as market/family, civilization/state, and, in Canada, dominion/province. These multiple meanings of the public and the private are mutually reinforcing. They also underwrite myths about the natural, consensual, and neutral nature of the private sphere, making it more difficult to think about controlling the exercise of private power. Although ideas about the public and the private have changed since the late nineteenth century (and since 1959), they display a remarkable persistence. Public/private distinctions can be observed ar work in contemporary administrative law, in debates about which bodies are subject to judicial review, and which kinds of decisions are subject to judicial review on grounds of procedural fairness.

On se souvient de l'affaire Roncarelli c. Duplessis pour les limites qu'elle a imposees au pouvoir public. En imposant ces limites, toutefois, l'arret s'est largement base sur des distinctions public/prive heritees du liberalisme classique du dix-neuvieme siecle. Les juges ont invoque ces distinctions afin d'identifier le prejudice subi par Roncarelli, de prendre en consideration les raisons pour lesquelles le pouvoir discretionnaire pouvait valablement etre exerce et de determiner si Duplessis avait excede son autorite.

L'auteur soutient que cette proliferation des concepts public/prive reflete l'indetermination generale sur ces idees dans la pensee juridique liberale. Bien que la distinction Etat/societe civile soit au coeur des notions liberales du public et du prive, elle coexiste avec d'autres distinctions telles que marche/famille, civilisation/Etat et, au Canada, dominion/province. Ces nombreux sens des concepts de public et de prive se renforcent mutuellement. Ils entretiennent egalement des mythes quant au caractere naturel, consensuel et neutre de la sphere privee, faisant en sorte qu'il est plus difficile de concevoir l'exercice d'un controle sur le pouvoir prive. Si les conceptions du public et du prive ont evolue depuis la fin du dix-neuvieme siecle (et depuis 1959), elles font preuve d'une persistance remarquable. Les distinctions public/prive sont a l'oeuvre en droit administratif contemporain et dans les debats cherchant a determiner quels organismes et quelles decisions sont susceptibles de revision judiciaire sur des bases d'equite procedurale.

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Introduction I. The Public and the Private in Roncarelli A. Damage: Is a Liquor Licence Public or Private? B. Discretion: What Is Included in the Public Interest? C. Jurisdiction: Did Duplessis Exceed His Authority? D. Procedure: Did Duplessis Act within "the Exercise of His Functions"? E. The Mingling of Jurisdiction and Discretion for the Purposes of Fault II. Public/Private Distinctions and Critiques A. Stability and Instability B. State/Civil Society (and State/Market) in Classical Liberalism C. Market/Family D. Civilization/State E. Critique and Reinforcement F. Transpositions G. Dominion/Province: A Note on Federalism H. Rights III. The Public and the Private in Administrative Law A. Availability of Judicial Review B. Judicial Review on Procedural Fairness Grounds Conclusion Introduction

The decision of the Supreme Court of Canada in Roncarelli v. Duplessis is largely remembered for the following dictum by Justice Rand: "In public regulation of this sort there is no such thing as absolute and untrammelled 'discretion'." (1) The reasons of Justice Rand and the other majority judges on the Court are centrally concerned with curtailing the abuse of public power. Although Roncarelli took the form of an action for delict under article 1053 of the Civil Code of Lower Canada, it is rarely taught in courses on civil liability, and is more often encountered in courses on public law (usually administrative law, and sometimes constitutional law). It is often identified as the archetypal Canadian case on the rule of law.

As Lorne Sossin shows, the project of controlling public discretion is an unfinished one: important areas of discretionary public authority remain off limits to judicial review. (2) The purpose of this article, however, is to inquire into the limits that are already presupposed in Justice Rand's dictum through his use of the category "public regulation". What work is the word "public" doing here? How would we distinguish public from private regulation? And why would we want to make this distinction?

I argue that, to the extent that the answers to these questions seem self-evident, the power of Justice Rand's dictum rests on a public/private distinction that is characteristic of nineteenth-century liberal capitalism (3) or classical legal thought. (4) While Roncarelli is often presented as bold or innovative, it actually replicates deeply ingrained patterns in liberal legalism.

One key feature of liberal concepts of public and private is their versatility. In Roncarelli, the public and the private have different meanings for the purposes of different issues in the judgment. And in liberal legal discourse more generally, the public and the private refer to different things in different contexts. In his study of U.S. labour law, Karl Klare identified an "ever-renewed effort to refract the complexities of social life through the basic conceptual prism comprising the set of fundamental dualities like public/private." (5) I would suggest, with Klare, that the multiple meanings of the public and the private, while rendering these concepts indeterminate, also make them resilient. Like most instances of public/private discourse, Roncarelli at once destabilizes these concepts and reinforces them.

Although Klare saw the public and the private as indeterminate, he explained that these concepts nevertheless performed an ideological function: justifying mainstream political positions and excluding more radical alternatives. Such tendencies are less obvious in Roncarelli. Prime Minister Duplessis evidently had a lot of power, and it is hard not to sympathize with efforts to limit that power. But in holding Duplessis accountable, the majority judges nevertheless relied on an intellectual structure that has helped to ensure that other, private forms of power are exempt from any comparable form of accountability.

In Part I of this paper, I analyze the public/private distinctions at work in Roncarelli. In Part II, I describe the multiple public/private distinctions in classical liberalism and explain how they constitute unstable but resilient structures of thought. In Part III, I explore the persistence of classical liberal ideas about the public and the private in contemporary Canadian administrative law. Liberal structures of public/private thought became dominant in the late nineteenth century. They underwent important changes in the early twentieth century, and they have been further transformed in the fifty years since Roncarelli was decided. But to a great extent, they have also been preserved.

1. The Public and the Private in Roncarelli

   The public and the private appeared in Roncarelli in multiple guises. The overarching legal question was whether Duplessis had caused damage by his fault to another, under article 1053 of the Civil Code of Lower Canada. This question implied a number of sub-issues, including the nature of the damage suffered by Roncarelli and the nature of Duplessis's fault. The issue of fault was further mingled with a jurisdictional question--whether Duplessis had exceeded his authority. Finally, the judges faced a procedural question: Did Roncarelli's failure to provide Duplessis with one month's advance notice of the action prohibit them from rendering judgment against Duplessis according to article 88 of the Civil Code of Procedure? In answering each of these questions, the judges distinguished between the public and the private.

   Before turning to these legal issues, it is worth highlighting how the facts of the case also pitted the public against the private. As David Mullan writes, Roncarelli's victory has come to stand for "the ultimate triumph of the citizenry over unbridled government power exercised at the very highest level; the operation of Diceyan principles in the very best sense." (6) The public and the private in Roncarelli generally reflect the liberal distinction between state and civil society. (7) But the state/civil-society distinction appears in more than one form, and it coexists with other meanings of the public and the private. Together, these contrasts produce a powerful impression of public/private conflict.

   First, and most obviously, Duplessis's exercise of (public) state power clashed with Roncarelli's (private) business interests.

   Second, this was also a case about religion (which is, in the liberal tradition, a private matter). The trial judge, Justice Mackinnon, suggested that "[t]he revocation of the licence appears to have been more as a blow at the activities of the Witnesses of Jehovah than against the plaintiff personally. It was indirectly an effort to discipline the Witnesses as a group." (8) The struggle between the Jehovah's Witnesses and the Quebec state was always in the background.

   Third, as understood by commentators at the time, (9) the case implicated the right of personal liberty. Duplessis had sought to punish...