Thursday, June 21, 2012

Is Dalton McGuinty a 21st Century Duplessis?, Part I

St. Thomas More
(Note to our readers: This two-part blog entry is written by lawyer Geoff Cauchi.  Everyday for Life Canada is pleased to share this special posting with our readers. We thank Mr. Cauchi for the insightful historical legal background and the ramifications of Bill 13 for public education and for religious liberty in Ontario. The content is also important reading for every Canadian who believes in the freedom of religion, in a Christian/Catholic education and in parental rights.) 

“That, in the presence of expanding administrative regulation of economic activities, such a step and its consequences are to be suffered by the victim without recourse or remedy, that an administration according to law is to be superseded by action dictated by and according to the arbitrary likes, dislikes and irrelevant purposes of public officers acting beyond their duty, would signalize the beginning of disintegration of the rule of law as a fundamental postulate of our constitutional structure” Roncarelli v. Duplessis, [1959] S.C.R. 121, per Rand J.

With the passage of Bill 13 – Accepting Schools Act --- Premier Dalton McGuinty has completed his mission to plunge the province of Ontario into a profound constitutional crisis in public education the likes of which this country has not seen since the “Manitoba Schools Question” at the end of the 19th century.

At a Gay Pride event in Toronto on the weekend of July 2-3, 2011, Premier Dalton McGuinty  assaulted the sensibilities of the Catholics of Ontario by having MPP Glen Murray (Toronto Centre) deliver, on his behalf, an address that signaled his intention to use his office to force all school boards, even Catholic ones, to establish and maintain “student support groups for LGBT students”. And by “student support groups”, he means groups under the leadership of individuals who will most certainly urge attendees to reject Catholic teaching on the subject of homosexuality. A school system with a constitutionally protected and mandated authority to persuade its Catholic students to adopt a Catholic lifestyle cannot tolerate such a result.  Bill 13, which comes into force on September 1, 2012, now puts the force of civil law behind this political agenda.

The Premier now exposes his government to an appeal of a political, as opposed to a “legal” nature, to the Governor General in council, under subsection 93(3) of the Constitution Act, 1867. He has also exposed himself, his office, the Ministry of Education, and school boards, trustees, and administrators who capitulate to his coercive orders to a variety of legal actions.  In this piece, I wish to focus on his potential personal liability to faithful Catholic electors, principals and teachers based on the tort of misfeasance of public office.
In Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, 2003 SCC 69, Justice Iacobucci, speaking for Supreme Court of Canada, summarized the elements of this tort in the following passage: “I am of the opinion that the tort of misfeasance in a public office is an intentional tort whose distinguishing elements are twofold: (i) deliberate unlawful conduct in the exercise of public functions; and (ii) awareness that the conduct is unlawful and likely to injure the plaintiff. Alongside deliberate unlawful conduct and the requisite knowledge, a plaintiff must also prove the other requirements common to all torts.  More specifically, the plaintiff must prove that the tortious conduct was the legal cause of his or her injuries, and that the injuries suffered are compensable in tort law.”  (para. 32)  

The Premier said: “I know that [the groups] have been controversial in some schools. We need to move beyond that….And I am proud that effective this September, high school students who want their school to have a student support group for LGBT students will have one … This is not a matter of choice for school boards or principals. If students want it, they will have it.”  [, July 4, 2011].

One of the most important cases in Canadian constitutional legal history is the 1959 case of Roncarelli v. Duplessis. There are interesting similarities between the impugned conduct of Maurice Duplessis in his capacity as the Attorney-General of Quebec in that case, and Mr. McGuinty’s current attempt in his capacity as Premier of Ontario to bully the Ontario Bishops and the Catholic Schools into forcing their Catholic teachers to establish and supervise either “Gay Straight Alliance” groups, or groups that operate under a different title but which have the same sinister and unlawful purpose, which is to “get inside” the existing, presumably Catholic, belief system of the attending students and replace it with one more in line with the political ideology of gay activists. This gay activist effort is unconstitutional, as well as sinister and unlawful, because the Premier is putting the entire weight of the Government of Ontario behind it, and in the process running roughshod over the denominational rights of faithful Catholic electors under section 93 of the Constitution Act, 1867.

In Roncarelli, the plaintiff operated a restaurant and the Quebec Liquor Commission, without prior notice to him, one day announced that his liquor license was cancelled. It was not disputed that the license was cancelled because he “was an adherent of a religious sect or group known as the Witnesses of Jehovah” and for the purpose of preventing him “from continuing to furnish bail for members of that sect summoned before the Recorder’s Court on charges of contravening certain city by-laws respecting the distribution of printed material.” At that time, the Jehovah’s Witnesses in Quebec had been carrying on an active campaign involving the distribution of printed pamphlets and other material that was offensive to many Christians, and Catholics in particular.   Justice Abbott of the Supreme Court of Canada said he had “no doubt that at that time many believed this material to be seditious.”

It was also not disputed that the Manager of the Quebec Liquor Commission would not have cancelled the liquor license of Mr. Roncarelli but for the order and authorization of Duplessis, who occupied the office of Attorney-General for Quebec, and who had no statutory power to interfere in the administration or direction of the Quebec Liquor Commission.

On appeal of the case to the Supreme Court of Canada, the Court held that Duplessis was personally liable in damages to Mr. Roncarelli. Justice Rand said: “The act of [Duplessis] through the instrumentality of the Commission brought about a breach of an implied public statutory duty toward [Mr. Roncarelli]; it was a gross abuse of legal power expressly intended to punish him for an act wholly irrelevant to the statute, a punishment which inflicted on him, as it was intended to do, the destruction of his economic life as a restaurant keeper within the Province. Whatever may be the immunity of the Commission or its member from an action for damages, there is none in [Duplessis]. He was under duty in relation to [Mr. Roncarelli] and his act was an intrusion upon the functions of a statutory body.   The injury done by him was a fault engaging liability within the principles of the underlying public law of Quebec.” 

In Odhavji Estate, the Supreme Court of Canada said: “Although Roncarelli was decided at least in part on the basis of the Quebec civil law of delictual responsibility, it is widely regarded as having established that misfeasance in a public office is a recognized tort in Canada.” ( per Iacobucci, J. at para. 19). In Roncarelli,  Justice Rand said:  “It was urged by Mr. Beaulieu [Duplessis’ legal counsel] that [Duplessis],  as the incumbent of an office of state, so long as he was proceeding in ‘good faith’, was free to act in a matter of this nature virtually as he pleased.” Justice Rand summarily dismissed this argument, insisting that carrying out a statute according to its intent and for its purpose in “good faith” does “not mean for the purposes of punishing a person for exercising an unchallengeable right; it does not mean arbitrarily and illegally attempting to divest a citizen of an incident of his civil status.”  

Justice Abbott said: “I have no doubt that in taking the action which he did, [Duplessis] was convinced that he was acting in what he conceived to be the best interests of the people of his Province but this, of course, has no relevance to the issue of his responsibility in damages for any acts done in excess of his legal authority. I have no doubt also that [Duplessis] knew and was bound to know [emphasis added] as Attorney-General that neither as Premier of the Province nor as Attorney-General was he authorized in law to interfere with the administration of the Quebec Liquor Commission or give an order or an authorization to any officer of that body to exercise a discretionary authority entrusted to such officer by the statute.”

Justice Martland said: “Is…. [Duplessis’] position altered by the fact that apparently he thought it was his right and duty to act as he did?   I do not think that it is.  The question of whether or not his acts were done by him in the exercise of his functions is not to be determined on the basis of his own appreciation  of those functions, but must be determined according to law.  [Duplessis] apparently assumed that he was justified in using any means he thought fit to deal with the situation which confronted him.  In my view, when he deliberately elected to use means which were entirely outside his powers and were unlawful, he did not act in the exercise of his functions as a public official.”
 The Lessons of  Roncarelli Applied to McGuinty’s Promotion of the Equity and Inclusion Education Policy (the “EIE”)

Duplessis claimed to be a member of the Catholic Church. Premier McGuinty has also claimed to be a member of the Catholic Church, although, judging by his actions in recent years, I doubt that he claims to be anything more than a nominal Catholic. Duplessis had an animus against Jehovah’s Witnesses because they were publishing what today would have been called hate literature directed at Catholics and the Catholic Church, and tried to do something to stop it.Today, Premier McGuinty has an animus against his own Church and its teachings on the subject of homosexuality, and takes the ideological position that its approach to persons who claim a same-sex attraction causes such persons harm.   He therefore has sided with a special interest group, the gay activists, against his own Church and its schools, in their effort to gain access to Catholic students for the purpose of propagandizing them in the group’s ideological and political positions.
Like Duplessis, Premier McGuinty thinks he has the right to “do as he pleases” to accomplish his political goals. McGuinty signaled his intent to use, as Duplessis used, unlawful means to accomplish them, and then carried out that intent. There are many elements of the EIE itself (the offensive curriculum requirements, the infringement on the parental right to receive notice of bullying events at the school, the requirement to refer students to external organizations that mock, ridicule, and/or reject Catholic teaching, the requirement to discipline students for repeating, supporting or promoting Catholic teaching on homosexuality), that the Catholic schools have the constitutional right to amend to make them consistent with Catholic teaching,  but his declared intent to force Catholic schools to comply with one particular requirement ---- that they establish and maintain student-led support groups modeled on the Gay Straight Alliance Groups promoted by gay activists ----is especially egregious governmental conduct.  (Please go to Part II for the conclusion of this blog entry)

Geoff Cauchi, LL.B.

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