Contributor: Mary Stokes
It is a truism that law is political. After all, politicians enact policy through legislation. The deep politics of the judicial system is less overt and often denied, but occasionally there is no mistaking the political nature of judicial proceedings, even outside state criminal trials. Law has met politics in the civil law courtroom before and since, but rarely as starkly, or as famously, as in Roncarelli v. Duplessis, the case in which the Supreme Court of Canada first deliberately and unambiguously rejected the idea that power trumps principle in matters of administrative governance.
The events giving rise to this landmark case arose in Quebec in the immediate aftermath of the Second World War. The Union Nationale government, headed by Maurice Duplessis as both premier and attorney general, followed a policy of defence by spirited offence, taking direct action against groups considered a threat to a Quebec conceived of as a bastion of conservative Roman Catholicism, including the Jehovah’s Witnesses.
The latter made themselves a visible and easy target. Unlike other Protestant denominations which had accommodated themselves to the Roman Catholic Quebecois majority by largely confining their evangelizing to the English minority, the Jehovah’s Witnesses saw it as their mission to oppose all other variants of Christianity. As much as stressing that theirs was the way to salvation, they spread the message that other religious faiths, and Roman Catholicism in particular, offered a short cut to eternal damnation. Nor did they proselytise with time-honoured and relatively inoffensive techniques of revivals and hell-fire sermonizing, but instead took their vitriol to the streets with door to door pamphleteering.
Duplessis’s response to what he saw as provocative subversion masquerading as freedom of religion was harsh, swift and unrelenting, a ‘war without mercy’, which drew on every means the legal system offered. Hundreds upon hundreds of Jehovah’s Witnesses were charged under the criminal code and a variety of municipal bylaws. Two of these cases wound up in the Supreme Court of Canada: R. v. Boucher and R. v. Saumur. In each of these the individual Jehovah’s Witness charged was exonerated, but the persecution continued.
The Roncarelli case, which also ended in a Supreme Court judgement, differed from Boucher and Saumur and indeed most of the other cases involving Jehovah’s Witnesses in several respects. For one thing, it was a civil, or private suit (one citizen against another), and for another, the Jehovah’s Witness involved was the instigator (plaintiff) of the legal action. Moreover, the original cause of action (the acts which gave rise to the alleged damages) arose out of Duplessis’s response to Roncarelli’s own proactive use of the legal system in providing bail to large numbers of his fellow adherents.
Roncarelli’s creative (though lawful) use of the uncontested right of one citizen to provide bail for another enraged Duplessis, who issued a public warning. When Roncarelli refused to cease and desist with his production of bail for his co-religionists, Duplessis struck at his adversary’s livelihood. Roncarelli was the owner of a Montreal restaurant, the Quaff Café, which was licensed under provincial laws to serve liquor. Duplessis testified at the trial that the head of the Liquor Licensing Commission, Judge Edouard Archambault, had phoned him to suggest revoking the Quaff Café’s liquor licence; this version of the facts was contradicted by other witnesses and ultimately rejected by the judge, who found that Duplessis himself had been the initiator. In any event, Roncarelli’s licence was withdrawn without notice or rationale, his inventory of alcohol became thereby illegal, and was immediately confiscated by police. When the arbitrary and disproportionate nature of this action became the subject of public notice, Duplessis was moved to justify his action by characterizing the liquor licence as a privilege in the gift of an administrator (Archambault) duly appointed by an elected government, whose right to grant or revoke was absolute and unchallengeable. Furthermore, he asserted, Roncarelli had abused a state conferred privilege by providing aid and comfort to its enemies. Coming directly after a war which had given authoritarianism a bad name, this stance not surprisingly, but certainly ironically, did much to raise public sympathy for Roncarelli who came to be seen by many as the victim of a vengeful state, despite his association with a group which had been hitherto deeply unpopular.
Represented by A.L. Stein, a Jewish lawyer committed to civil rights causes, Roncarelli turned again to the legal arena, this time to fight back on his own behalf. An initial suit against Judge Archambault failed for reasons of procedural protection for bureaucrats exercising public authority. Stein then revised the claim, and with the help of another lawyer with an interest in social justice, F.R.Scott (the poet and co-founder of the CCF) sued Duplessis personally for a sum in excess of $100,000.00.
The suit did not proceed auspiciously for Roncarelli to begin with. For one thing, the proceedings were lengthy. The acts complained of took place in late 1946, the action was launched in early 1947 and the defendant used an array of interim procedural gambits to delay the hearing until 1950. When Duplessis, still Attorney General with authority for the Quebec legal system (except the appointment of superior court judges) entered the courtroom, he acted in what could be seen as an intimidating fashion, approaching the bench for a private conversation with the judge, C. Gordon MacKinnon, arguing for and receiving special treatment in order to give his evidence first, a concession he claimed was necessary because of the demands of his high office and then leaving the courtroom. After the case was heard, the plaintiff was forced to wait while the judge reserved his decision for close to a year.
However, when the judgement was released, Justice MacKinnon astonished everyone by ruling in favour of the plaintiff, albeit for only $8000, a fraction of the amount claimed as compensation for Duplessis’s interference with Roncarelli’s business. It was not a personal financial loss for the premier, who was entirely subsidized by his party, but a political humiliation and setback in his highly public campaign against the Jehovah’s Witnesses. Duplessis chose to appeal the decision to the province’s Court of Appeal, and Roncarelli then cross-appealed for a higher award.
Neither appeal was successful in the Court of Appeal, which finally ruled in 1956. Duplessis then took a further appeal to the Supreme Court of Canada, which upheld the appellate decision in 1959. Roncarelli was thus technically the winner, but his victory was of the pyrrhic variety: the fight was long and ruinously expensive, and his business never revived. Shortly thereafter, Duplessis died, Quebec began the process of secularization and liberalization known as the Quiet Revolution, and the ‘war without mercy’ against Jehovah’s Witnesses on behalf of a society defined as quintessentially and defensively Roman Catholic was finally over.
Whether or not the case was a factor in this change is hard to say. But it did have a long-lasting impact. It helped make a legal hero of Justice Ivan Rand, the Supreme Court judge who wrote the decision as a paean to the rule of law in administrative matters, the principle that legally delegated discretion must be exercised in good faith. This precept may be as often observed in the breach as in practice, but the precedent has been a powerful legal tool, used on countless occasions when the sincerity of decision makers has been called into question in a court of law. A more indirect but perhaps just as significant effect has been the contribution Roncarelli has made to the evolution of culture which accepts the idea that citizens’ rights are and should be a check on the power of elected governments.
For further reading:
The Supreme Court’s judgement is available at http://csc.lexum.umontreal.ca/en/1959/1959scr0-121/1959scr0-121.html.
The most detailed account of the case is Michel Sarra-Bournet’s L’affaire Roncarelli: Duplessis contre les Témoins de Jéhovah (Quebec: Institut québécois de recherche sur la culture, 1986) Unfortunately for anglophones, Sarra-Bournet’s work has not been translated into English. However William Kaplan has provided two historically sophisticated discussions of the case as part of larger studies, first in State and Salvation: The Jehovah’s Witnesses and their Fight for Civil Rights (Toronto: University of Toronto Press, 1989) and more recently in his biography of Rand, Canadian Maverick: The Life and Times of Ivan C. Rand (Toronto: Published for the Osgoode Society for Canadian Legal History by University of Toronto Press, 2009) (see details on this website.)
Conrad Black is notably more sympathetic to Duplessis and appreciative of his campaign against the Jehovah’s Witnesses as an element of his political agenda, first in his massive biography of Duplessis, Duplessis (Toronto: McClelland and Stewart, 1977) and more recently in a less scholarly, more compact version, Render Unto Caesar : The Life and Legacy of Maurice Duplessis. (Toronto: Key Porter Books, 1998).