Roncarelli v. Duplessis: art. 1053 C.C. revolutionized.

• Author: Sheppard, Claude-Armand

1. THE FACTS.

   How it began. Late diners are finishing their lunch at Frank Roncarelli's fashionable cafe on Crescent Street,. in Montreal. h is almost two o'clock in the afternoon of this fourth day of December, 1946. Suddenly, the comfortable hum in the room turns to consternation as burly constables of the Quebec Liquor Police erupt and proceed to the seizure and removal of all the liquor can find .Then, they vanish.

   "The same day, in Quebec City, Maurice Lenoblet Duplessis, lawyer, Attorney-General anal Prime Minister of the Province of Quebec, convokes a press conference. He is quoted the next day by all leading French and English Montreal dailies as revealing be had ordered the Quebec Liquor Commission to cancel Roncarelli's liquor licence because of the restauranteur's support of the Witnesses of Jehovah in Quebec, anal particularly his "audacious" and "provocative" practice of posting hundreds of property bonds for the release of Witnesses arrested while distributing religious tracts.

   During the next few weeks, the Prime Minister reiterates to newspapermen that the cancellation was his doing anal that it was designed to strike a blow, through Roncarelli, at the Witnesses of Jehovah, whose activities he considers seditious and not less nefarious than those of Communists and Nazis.

   Roncarelli, whose high-class restaurant cannot endure without serving liquor and wine at meals, has thus received a mortal blow--indeed, it shuts after six months--and attempts to sue in damages the manager of the Quebec Liquor Commission, Edouard Archambault. But permission to sue, as required by section 12 of the Alcoholic Liquor Act, (2) is refused on rather flimsy grounds, by Chief Justice Severin Letourneau. (3) Roncarelli's attorneys, Stein & Stein, then seek to sue the Quebec Liquor Commission itself, and since section 12 of the Alcoholic Liquor Act (4) also requires the consent of the Attorney-General to any action against the Commission, they petition Duplessis for leave to sue. Not unexpectedly, the Attorney-General refuses. He tells a press conference, held on February 7, 1947, of his refusal and that Roncarelli's licence has been revoked, not temporarily, but "forever". After learning of this refusal through the newspapers, Roncarelli's attorneys--now assisted by John Ahem and F. R. Scott as counsel--again petition the Chief Justice for permission to sue Archambault personnally. The Chief Justice is adamant, and rejects the petition. (5)

   Thwarted in their attempt to prosecute the Commission or its manager, Roncarelli's attorneys, in a fateful move, institute action against Maurice Lenoblet Duplessis personnally to recover damages in the amount of $118,741.00.

   Thus began the notorious "Roncarelli case" which, for twelve years, crept through our courts before being finally disposed of by the Supreme Court in a controversial, puzzling and divided judgment rendered on January 27, 1959. (6)

   The reason for the cancellation. Since the avowed reason for the cancellation--publicly acknowledged, never denied nor doubted--was Roncarelli's active support of the Witnesses of Jehovah in Quebec, it is important to determine the nature and extent of his participation in that movement.

   The sect was not welcome. It made uncompromising attacks on the Roman Catholic Church and on the institutions of the Province. The authorities, rightly confident that they enjoyed the approval of the Roman Catholic majority in taking measures against the Witnesses, were not always too scrupulous about the methods used to try and extirpate them. A number of unequivocal decisions of the courts were necessary to remind the authorities of their duties. (7)

   The sect began its aggressive campaign to convert Quebec sometime in 1945. Its indefatiguable adherents distributed tracts, books and Bibles; held services in homes and organized public lectures. There were disturbances and riots. Meetings were broken-up. Witnesses were mistreated, beaten, thrown out of town or even, in one case, out of the Province.

   The Witnesses considered that under the Quebec Freedom of Worship Acts and under the Charter oft, he City of Montreal, they were ministers of the Gospel and had the right to distribute their literature and visit homes without municipal licence. Montreal civic authorities obviously did not think so and proceeded systematically to arrest and re-arrest hundreds of Witnesses on the ground they were violating City by-laws numbers 270, (9) 1643 (10) and 1693, (11) by peddling and distributing circulars without licence and "interfering" with pedestrian traffic. "the maximum fine for each such violation was $40.00 and costs, or sixty days of imprisonment.

   Roncarelli was a devout Witness and, although not directly involved in proselytizing, he supplied property bonds to release the arrested "ministers". Fie did so 41 times in 1944, 105 times in 1945 and 244 times in 1946, a total of 390 times. These bonds were accepted by the City's attorneys and by thee officials of the Recorder's Court. (12) There was an agreement between the lawyers for the City and the Province on the one hand, and the defence on the other, to proceed first with a few test cases. The result was a considerable accumulation of undecided cases. On or about November 4, 1946, it was decided that property bonds were no longer acceptable, and from then on, Roncarelli ceased to post bail at all. It must be noted that in all of the cases where be stood bail, the complaints were either dismissed or withdrawn. They all involved alleged violations of City by-laws. None were for sedition.

   This, according to the evidence accepted by all three Courts, is the extent to which Roncarelli was "participating" in the activities of the Witnesses of Jehovah. This is the conduct which the Prime Minister proclaimed as "audacious" and "a provocation to public order, to the administration of justice and ... definitely contrary to the aims of justice". (13) This is the direct reason for the cancellation of Roncarelli's liquor licence. (14)

   There was no evidence to link Roncarelli directly or indirectly with the notorious and allegedly seditious article: "Quebec's Burning Hate". The article began to be circulated on or about November 25, 1946, after Roncarelli had ceased to provide bonds and after consultations had begun among government officials about the prospective cancellation of his licence. (16) Moreover, the Prime Minister, in his public explanation for the cancellation, referred only to Roncarelli's giving of bonds and not to the allegedly seditious pamphlet. As Mr. Justice Rand of the Supreme Court was to put it: (10)

   It is then wholly as a private citizen, an adherent of a religious group, holding a liquor licence and furnishing bail to arrested persons for no other purpose than to enable them to be released from detention pending the determination of the charges against them, and with no other relevant considerations to be taken into account, that he is involved in the issues of this controversy. How Duplessis became involved. Sometime in November, 1946, Oscar Gagnon, then Joint Crown Prosecutor in Montreal, notified Edouard Archambault, the manager of the Quebec Liquor Commission, that the Frank Roncarelli who supplied numerous bonds to release the Witnesses arrested for violating City by-laws, and was a Witness himself, also held a liquor licence. Archambault, after verifying the facts, telephoned the Prime Minister in Quebec. He relayed to Duplessis the information he had received and mentioned his intention to cancel Roncarelli's licence. Duplessis told him to be careful and to make sure that it was the same Roncarelli who gave bonds. Secret agent Y-3 confirmed Roncarelh's identity. Archambault then called Duplessis and it was decided to cancel the permit. Whether Duplessis actually ordered the cancellation or was its "determining cause" or whether he merely approved a decision already made by Archambault was to become the major issue of facts before the courts. To establish 'his lien de droit with Duplessis, Roncarelli had to allege and prove that the order came from the Prime Minister.

2. THE ISSUES BEFORE THE COURTS

   The Courts principally concerned themselves with five main issues, one of fact and four of law, the last of which was a procedural one. The question of fact was:

   (i) who in effect ordered or caused the cancellation? The questions of law were:

   (ii) if Duplessis did, had he the authority to do so?

   (iii) whoever exercised it, was the discretion to cancel properly used?

   (iv) was Duplessis, as officer of the Crown, immune from prosecution? The question of procedure was the following:

   (v) was the failure to give Duplessis the notice required by article 88 of the Code of Civil Procedure an absolute bar to the action?

3. THE SUPERIOR COURT JUDGMENT

   On May 2nd 1951, the first of the fifteen judges who were to consider this action, Mr. Justice Mackinnon of the Montreal Superior Court rendered his decision. (17) (i) On the question of fact, after reviewing the testimony of Archambault and Duplessis about their telephone conversations, and citing Duplessis' uncontradicted statements to the press, he ruled (18) that it was evident that it was defendant who gave the order to cancel. (ii) Holding that English authorities govern Quebec public law, citing the well-known principle that a Crown officer, even a Prime Minister, may do nothing other than what he is authorized to do by some rule of common law or statute, (19) arm then examining all the relevant statutes, (20) Mackinnon J. ruled (21) that there was no provision of law giving the defendant any authority to interfere in the administration of the Alcoholic Liquor Act. Such interference would defeat the purpose of the Alcoholic Liquor Act, which is to remove the licensing power from political influence. (iii) Although section 35 of the Alcoholic Liquor Act gives the Commission discretion to cancel a licence and does not stipulate any...