Roncarelli v. Duplessis: Abuse of power by the Quebec Liquor Commission
Provincial liquor Acts furnish their respective jurisdictions with a complete code for the administration of the sale and distribution of alcoholic beverages. Mr. Justice Rand of the Supreme Court of Canada, all the way back in 1959, observed that these provincial Acts recognize the association of wines and liquors as embellishments of food and “its ritual as an interest of the public”. He went on to find that once obtained, a licence or permit to sell alcohol at a bar or restaurant becomes a vital part of that establishment. This was over 60 years ago.
Vital to the existence of an establishment or not, a licence to sell alcohol is a privilege. Obtaining and maintaining a liquor licence depends, in part, on the exercise of discretion by those charged with carrying out certain functions under the provincial licensing regime.
From time-to-time government decision makers exceed or abuse their discretion. When that happens there is recourse to the courts, by way of judicial review. Recently the British Columbia Court of Appeal found that the British Columbia Liquor Control and Licensing Branch acted unreasonably in cancelling the liquor licences of a bowling alley and that the General Manager’s actions left the court “with a sense of unease”. Alcohol & Advocacy’s summary of that decision can be found here.
Even today it isn’t always clear when courts in Canada will set-aside or vary the decision making of liquor boards and other tribunals. For this reason liquor licensees owe a debt of gratitude to Mr. Frank Roncarelli who had the courage and conviction to take the Quebec Liquor Commission to the Supreme Court of Canada over the wrongful revocation of his liquor licence. The full reasons for judgment in Roncarelli v. Duplessis can be read here.
Frank “Franco” Roncarelli was the proprietor of a restaurant in a busy section of Montreal (the Quaff Cafe). By 1946, through its transmission to him from his father, his restaurant had been continuously licensed for the sale of liquor for approximately 34 years. Mr Roncarelli (said the Supreme Court of Canada) was “of good education and repute” and his restaurant was “of a superior class.”
On December 4 of that year, while his annual application for licence renewal was before the Liquor Commission, his existing licence was cancelled and his application for renewal rejected. Incredibly, the Premier of Quebec Mr. Duplessis advised that the government would never issue him a liquor licence ever again. Strong words indeed.
Roncarelli had for some time been an adherent of what the Court described as a rather militant “Christian religious sect known as the Witnesses of Jehovah.” Their ideology condemned the established church and stressed the “absolute and exclusive personal relation of the individual to the Deity without human intermediation or intervention.”
The Witnesses of Jehovah (“WOJ”) were said to be zealous proselytizers. They produced and sold a periodical called the Watch Tower. Their efforts were not appreciated by the larger Roman Catholic community who found the WOJ practices to be “insulting and offensive” to their religious beliefs and feelings. There were physical confrontations between the two groups and in some instances property damage.
To curb the activities of the WOJ the local authorities proceeded with large scale arrests of young men and women found selling the Watch Tower, apparently in breach of anti-peddling by-laws. Altogether almost 1000 charges were laid. The penalty for the offence was about $40, and bail was granted to the WOJ who disputed liability. Mr. Roncarrelli, being a man of some means, pledged himself as security in about 380 cases. There was no evidence that he was involved in the alleged wrongdoing himself.
This is where it gets interesting. The individuals within government who were pursuing the charges against the WOJ took it upon themselves to look into Mr. Roncarrelli. They determined that he was using the profits derived from his liquor licence, which was a “privilege” granted by the province, to support the WOJ in their efforts to “arouse community disaffection generally”.
The evidence was that the Premier Mr. Duplessis became personally involved and ordered the manager of Quebec’s Liquor Commission to strip Mr. Roncarrelli of his liquor licence as a means of ending his ability to support the WOJ, and in effect punishing him for actions wholly unrelated to the sale of alcohol. The decision destroyed Mr. Roncarelli’s “economic life as a restaurant keeper within the province.”
As Justice Rand explained:
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.
Mr. Roncarelli attempted to carry on his restaurant business without a liquor licence for a period of approximately six months, but he could not make it profitable and he was forced to close.
The Supreme Court of Canada’s response
The Supreme Court was immensely critical of Mr. Duplessis and the manager of the Quebec Liquor Commission calling their actions a “breach of an implied public statutory duty toward the plaintiff”.
Although the decision dates from 1959, when liquor laws across the country were considerably more restrictive than they are now, the Court’s recognition of the importation of a liquor licence was prescient. The Court observed:
The field of licensed occupations and businesses of this nature is steadily becoming of greater concern to citizens generally. It is a matter of vital importance that a public administration that can refuse to allow a person to enter or continue a calling which, in the absence of regulation, would be free and legitimate, should be conducted with complete impartiality and integrity; and that the grounds for refusing or cancelling a permit should unquestionably be such and such only as are incompatible with the purposes envisaged by the statute: the duty of a Commission is to serve those purposes and those only. A decision to deny or cancel such a privilege lies within the “discretion” of the Commission; but that means that decision is to be based upon a weighing of considerations pertinent to the object of the administration.
Perhaps most importantly, Justice Rand confirmed that ‘in public regulation of this sort there is no such thing as absolute and untrammelled “discretion”’ No legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute.
The Supreme Court of Canada increased Mr. Roncarelli’s damages award against Mr. Duplessis for wrongfully and without legal justification causing the cancellation of the former’s liquor licence.
Why Roncarelli v. Duplessis still matters
Roncarelli is a 60 year old decision. Administrative law in Canada has changed a lot over the last 60 years. What has not changed are the fundamental principles outlined by Justice Rand: the public administration of liquor licensing should be conducted with complete impartiality and integrity.
When the full weight of British Columbia’s Liquor & Cannabis Regulation Branch is bearing down on you or your establishment you may feel that you are being treated unfairly or arbitrarily, or that politics, economics, or other factors have improperly entered the fray. If this is the case contact Dan Coles at Owen Bird.
*Alcohol & Advocacy publishes articles for information purposes only. They are not a substitute for legal advice, and persons requiring such advice should consult legal counsel.