Law Times

Law Times • September 2, 2013 COMMENT Roncarelli ruling lives on as political turning point W hat do you get when you put together a Jew, a Jehovah's Witness, a politician, and a poet? If you guessed the most important constitutional case in Canada standing for the legal principle that no person is above the law, then you would be correct. If you guessed the beginning of a bad joke, then probably you would not be too far off either, but it is the legal issue I want to write about. On Dec. 4, 1946, at the height of the noontime rush, several carloads of uniformed police in Montreal descended on the busy Crescent Street restaurant of Frank Roncarelli, the Jehovah's Witness in this matter. The police marched through the dining room snatching glasses of wine out of the hands of customers, confiscating all alcoholic beverages on the premises, and demanding Roncarelli surrender his liquor licence and cease serving wine, beer or spirits. After a five-hour, topsy-turvy search for Jehovah's Witness pamphlets produced nothing but the inside hole of a bagel, police retreated. The events leading up to the raid of the Quaff restaurant started much earlier. In 1945, then-Quebec premier Maurice Duplessis encouraged laws suppressing Jehovah's Witness activity because of their virulent anti-papist beliefs. Montreal city council adopted the heavyhanded technique of passing a law prohibiting the "peddling of wares" as legal cover to round up Jehovah's Witnesses distributing the Awake magazine on street corners. You could only imagine what they did to the Jehovah's Witnesses who knocked on doors. Persecution of Jehovah's Witnesses was not unique to Quebec. The federal government, under former prime minister Mackenzie King at the outbreak of the Second World War, issued an order-in-council declaring the practice of the religion to be illegal much to the opposition of a then-unknown Conservative MP named John Diefenbaker. But because of the close alignment of the Union Nationale with the Catholic church in Quebec, hatred of Jehovah's Witnesses was particularly strong in that province. Roncarelli had inherited the family business and for 35 years officials had renewed his liquor licence like clockwork. But the city prosecutor was tired of seeing "these people" released upon arrest on cash bail provided by one of their own: Roncarelli. Knowing that the Quaff 's liquor licence was up for renewal, he personally phoned Edouard Archambault, manager of the liquor commission, who in turn called Duplessis to hatch a plan. Outraged that Roncarelli had "paralyzed the municipal court" and "monopolized the constabulary," Duplessis ordered the manager not to reissue a licence to the restaurant. Two weeks later, Roncarelli went out of business and sued Duplessis, who bragged to the press about what he had done. No one had ever had the chutzpah to sue a public official for abuse of power. Roncarelli immediately retained the legal services of A.L. Stein, the Jew in this tale, who also had chutzpah. He represented a number of Jehovah's Witnesses in the past, including in obtaining a conscientious objection exemption for one person about to be sent overseas. Stein was a bright light in the emerging civil rights community in Canada, but there was no one better than the newly appointed McGill University Canadian constitutional law professor, ordained Anglican priest, and poet F.R. Scott (the poet in this story). They sued. They lost. They sued again. They lost again. Roncarelli ran out of money. Stein's clients began to leave him for advocates in the government's favour. Scott had tenure, but a raise did not look likely. Despair set in. Up until then, the two counsel (and a third prominent lawyer, Lionel Forsyth, who could no longer stay on the case) had used the existing provincial administrative and civil laws to get at Duplessis. One legal avenue ridiculously had them petitioning the premier himself to ask for permission to take him to court. Duplessis, not a stupid man, ignored the request and later leaked his refusal to the press. It was on one particularly despondent night in Stein's office, after another set back in the case, that the two men crafted the legal weapon that finally slayed the dragon. It was a simple idea first expressed by noted British constitutional expert A.V. Dicey that "every person from the prime minister down, is liable to answer for his wrongs in the ordinary courts of law." Thus, they would argue, the premier had abused his position of power by denying Roncarelli a liquor licence for an arbitrary reason. To give a sense of how powerful a man Duplessis was, he actually barred the public from the courthouse during proceedings in the case. Armed provincial police marched through the halls as if the place were under siege, Scott later wrote. He even checked to see if Stein and Scott had paid their yearly barrister fees as this was Scott's first trial after having been an academic all his life. Scott wrote in his diary that he was more worried about gowning properly than the impending legal arguments he was to deliver. There was lots of drama in court. When Duplessis' lawyer accused Roncarelli of hosting "fast women" at the Quaff, Roncarelli objected that there were no "slow women or fast women at the Quaff — only ladies." The mood changed precipitously when Stein began examining Duplessis. The premier equivocated that he agreed with the commissioner's decision when asked if he personally gave the order to Archambault to cancel the liquor licence. In a Hollywood moment right out of the movie A Few Good Men, Duplessis, flushed with rage, thundered: "When a superior officer gives an order, an inferior obeys." He alone had called the code red. The court awarded damages of $8,123.55, an amount far short of the $119,000 originally claimed. Years later in 1959, the Supreme Court of Canada increased the award to about $33,0000 in damages. It was hardly enough to cover the legal fees for all of those years. For Roncarelli, it was never about the money. His victory lay in the words of former justice Ivan Rand: "Discretion necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption." Some say the fatal stroke Duplessis suffered later that year was due to the public rebuke by the Supreme Court. A year later, Jean Lesage's Liberal party won its first election since 1936, an event that marked the beginning of the Quiet Revolution. Stein's clients returned. Scott became dean of law at McGill and Roncarelli moved to the United States to find work. Though the actors have long passed, the case and its principle live on. As we watch municipal politicians today brought before the courts on corruption charges, insider real estate deals, and breaches of ethics; provincial leaders cancelling huge energy projects in the middle of elections; and federal representatives decrying the Charter of Rights and Freedoms, we should remember we walk in the footsteps of the Jew, the Jehovah's Witness, the politician, and the poet who gave us the chutzpah to question our leaders. LT Page 7 Liberty-at-stake matters too important for dabblers like paralegals: Crown A fter hearing impermissible inquiries into the complainant's sexual history, repeated irrelevant and improperly posed questions, and various attempts to elicit inappropriate evidence, the judge was becoming increasingly exasperated. "If you are going to be a licensed paralegal who is going to proceed in criminal matters, you must represent your client according to the rules," the judge said in a rebuke that day. This was during a recent trial where a paralegal was attempting to defend a man accused of domestic assault and multiple counts of breaching the conditions of his bail. He was likely looking at significant jail time if found guilty.  A few days before that fiasco, I had a telephone pretrial meeting with another licensed paralegal who began to try to discuss the perceived weaknesses of the Crown's case against a client accused of assault, possessing a dangerous weapon as well as property obtained by crime, and dangerous driving. It quickly became clear that not only did this agent not know even the most basic principles of the law surrounding search and seizure, thus rendering any informed discussion of the case impossible, but he seemed to not know what I was referring to when I mentioned the applicable sections of the Charter of Rights and Freedoms.  Not long before that conversation, I was the Crown in set-date court when an unlicensed would-be legal agent stepped forward to  attempt to address a matter that he was statutorily barred from acting on as the Criminal Code prohibits any non-lawyer from representing an accused person if the charge has a maximum penalty of more than six months. In this case, the charge was assault causing bodily harm, one that, like impaired driving and over-80 charges, carries a potential jail term of up to 18 months. Our duties as Crown attorneys include not only being strong and effective prosecutors but, in our roles as ministers of justice, ensuring that the system operates fairly for those accused of crimes. So it's troubling when I see substandard representation in criminal courts where liberty is at stake. Of course, none of this is to dispute that  there  are paralegals out there doing good work and providing value for clients in various areas of practice including, at times, during the early stages of low-level criminal cases and working in criminal lawyers' offices assisting with less straightforward matters. According to a recent Law Society of Upper Canada-commissioned survey, the province's licensed paralegals are most commonly practising in the Small Claims Court as well as Provincial Offences  Act and Landlord and Tenant Board matters. However, a significant percentage of them report practising in summary conviction criminal courts where, particularly in a borderline case, the quality of the defence work at trial — whether by a paralegal or a lawyer — can be the difference between freedom and incarceration. Members of the public rightly expect that the legal advocates they hire are up to the job. Paralegals and lawyers need to be realistic and candid with prospective clients about their abilities and their level of experience in the criminal justice system and agents, whether licensed or not, need to be upfront and frank about their scope of practice. It isn't difficult to find misleadingly worded web sites that give the impression that a non-lawyer will represent a person accused of impaired driving or over 80. In many jurisdictions, unlicensed agents doing substantive work in the criminal context is now uncommon, although the less competent of these self-anointed legal representatives can plague the system. It's important to note that money generally doesn't need to be the retainer-determining issue. Usually, if there's a real prospect of someone going to jail when the Crown has indicated that it will be recommending a jail sentence in the event of a finding of guilt and the accused truly can't afford to retain a lawyer, legal aid assistance is available to help pay for defence counsel. Knowing how the courts have interpreted the more common sections of the Criminal Code as well as the fundamentals of the law of evidence and the Charter as it relates to criminal matters and having a familiarity with the procedures and conventions of criminal courts should be the minimum for anyone considering taking on a liberty-at-stake matter on their own. This also applies to new trial Crowns who are assigned a mentor to watch and assist them with the relatively low-stakes prosecutions they invariably start with.  The law society can only provide so much guidance, assistance, and oversight. Ultimately, it's up to its licensees to make the effort to get up to speed by, for example, arranging for mentoring and participating in further education or, in the alternative, exercising the judgment to keep out of the criminal courts. Criminal law dabblers can be  a source of frustration and irritation for judges and Crowns and, in my experience, typically provide poor advocacy and weak representation for their clients. For the proper administration of justice, those advocates who are not sufficiently capable should stay away from liberty-at-stake matters and leave them to those defence lawyers who have training, experience, and a specialization in criminal law. LT u SPEAKER'S CORNER uSam Goldstein is a criminal lawyer in the Toronto area. www.lawtimesnews.com uScott Arnold is an assistant Crown attorney in Toronto.

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