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Rule of Law
The “rule of law” is a principle of longstanding constitutional
value. It is recognized in the preamble of the Constitution Act, 1982,
and has been utilized by the courts as important constitutional rhetoric,
and also as a doctrine that produced juridical effects in various contexts.
At
a minimum, the inspiration behind the “rule of law” is a sense of order and
hierarchy. The modern concept was developed in the nineteenth century
writings of A.V. Dicey, and has since undergone several metamorphoses. In Roncarelli
v. Duplessis, [1959] S.C.R. 121, the Supreme Court of Canada relied
upon the doctrine to assert that all official acts must be authorized by
law. In Reference Re Proposed Resolution Respecting the Constitution of
Canada, [1981] 1 S.C.R. 753, 805, the Court explained that
The “rule of law” is a highly textured expression [...] conveying,
for example, a sense of orderliness, of subjection to known legal rules and
of executive accountability to legal authority.
Mature development of the rule of law as the
underpinning of the Canadian public law system means that the
constitutional review jurisdiction vested in the courts must extend to
ensuring that constitutional obligations are performed, in addition to
checking illegal exercises of power. Failure of governments to discharge
the few affirmative duties imposed on them by the Constitution, as, for
example, failure to print and publish legislative records, journals and
acts in both English and French (Manitoba Act, 1870, s. 23), gives
rise to difficult and novel questions as to public law remedies. These
issues were explored by the Supreme Court of Canada in Reference Re
Manitoba Language Rights, [1985] 1 S.C.R. 721. In that case at p. 749, the Supreme Court
established as a second branch of the rule of law doctrine that “the rule
of law requires the creation and maintenance of an actual order of positive
laws which preserves and embodies the more general principle of normative
order”. A third aspect of the rule of law doctrine was established in the Provincial
Judges Reference, [1997] 2 S.C.R. 3 at para. 10 and the Secession
Reference, [1998] 2 S.C.R. 217
at para. 71. In these cases the Supreme Court attributed to the rule of law
doctrine the requirement that “ ‘the exercise of all public power must find
its ultimate source in a legal rule’. Put another way, the relationship
between the state and the individual must be regulated by law.” The Court went on to note that, taken
together, the three branches of the rule of law doctrine “make up a
principle of profound constitutional and political significance;” (Secession
Reference, para. 71).
The
theory of the rule of law is interesting. Some argue that the rule of law
is a procedural concept. The rule of law implies a sense of order and
hierarchy in the sense that each act of the authorities must be authorized
by legal rules which are legitimate. The only way legal rules can be
recognized as legitimate is if they are procedurally correct – i.e. the
rule has been stipulated by the required legal procedure. Thus, for
example, the police may only arrest if they are authorized to do so by some
rule of statute or common law. The authorizing rule itself must ultimately
have its source in a grant of power in the Constitution. The rule of law is
said to require procedural regularity in the sense that one can trace the
source of all official acts ultimately to an authorizing grant of power in
the Constitution. In this sense, the rule of law requires that each legal
step, beginning with the exercise of constitutional power by the
legislature, through to orders given to officials, to have been followed in
legally and procedurally correct form.
If there is any break in the chain of legality, the action is not in
accordance with law, and may be controlled by the Courts.
Others
would say that the rule of law concept goes beyond procedural regularity.
In addition to commanding procedural correctness, the rule of law concept
is said to require that the law obligate. Persons can only be obligated by
laws that are fundamentally just. Even if all procedural steps required by
the Constitution, statutes and regulations authorize the state to do
something fundamentally unjust, such as torture, this would still be
inconsistent with the rule of law because people would not feel obligated
to comply. In this second sense it is said that the rule of law implies
that the law must be consistent with at least certain minimal substantive
norms, those norms which we recognize as fundamental tenets of justice.
The jurisprudence of the Supreme Court of Canada
contains comments which indicate both a procedural and substantive approach
to the rule of law. In the Manitoba Language Rights Reference, for
example, the court referred to two senses of the rule of law:
1. the
rule of law which precludes the influence of arbitrary power;
2. the
rule of law which “preserves and embodies the more general principle of
normative order […] which […] is linked with basic democratic notions”.
In the Secession Reference, para. 95 the
Court added a duty to negotiate the profound political proposal of
separation if demanded by political action in Quebec. “Those who quite legitimately insist upon
the importance of upholding the rule of law,” the Court noted, cannot at
the same time be oblivious to the need to act in conformity with
constitutional principles and values, and so do their part to contribute to
the maintenance and promotion of an environment in which the rule of law
may flourish.
Although undeveloped, these comments suggest that
the Supreme Court may well utilize the rule of law as a doctrine that
supplies normative principles, as a doctrine that requires compliance with
at least certain minimal principles deemed fundamental to the legal system.
This is what makes Vanguard Coatings and Chemicals v. M.N.R., [1986]
2 C.T.C. 431 (Fed. T.D.) so interesting. In that case, the Federal Court
Trial Division was moved to find violation of the rule of law by a statute
which offended both procedural and substantive norms in the sense that the
statute created arbitrary unlimited power (a procedural violation), and
also unfairly deprived a citizen of his property. Justice Muldoon stated:
Thus it
may be seen that section 34 of the Excise Tax Act is no paradigm of
the rule of law. It is, indeed, so contrary to the rule of law that it can surely
be declared to be unconstitutional. It accords arbitrary administrative
discretion, without any guidelines or directives, to the Minister whose
determination is not subject to any objective second opinion as is inherent
in an appeal provision. Even if, in fact and theory, section 34 does not
transgress the specific rights and freedoms proclaimed in the Charter,
that constitutional document itself, in section 26, claims no monopoly in
the promulgation of Canadians’ other existing rights and freedoms. The rule
of law is a central principle of our Constitution and it is transgressed by
section 34....By levying his determination of “fair price” against
Vanguard, the Minister at a stroke of the pen imposes a heavy burden of tax
debt. Since the Minister did not agree with Vanguard’s submissions, it and
its shareholders and directors are left with the burdensome decree of the
one-and-only, far-from-disinterested and uncontradictable authority whom
section 34 recognizes in conjuring the “fair price on which the tax should
be imposed”. The “tax should be imposed” in the sole judgment of the
Minister whose duty is to collect tax? Section 34 certainly makes a despot
of the Minister. If this formulation be so decent and reasonable as the
Minister’s counsel say it is, why Parliament could provide that all
Canadians should subject their lives and livelihoods to some chosen
official who finds himself in as paramount a conflict of official interest
as does the Minister of National Revenue when determining that taxpayers
should really contribute more revenue to the Crown, pursuant to section 34
of the Excise Tax Act.
This novel and potent use of the
doctrine was reversed on appeal on the narrow point that “the rule of law
has never been taken to include a right of appeal.” The decisions are
helpful in reminding us of how prone are some Courts to reach for available
doctrines to deal with perceptions of unfairness, and how circumspect are
other Courts when confronted with openings for seemingly unlimited judicial
discretion.
While there is much rhetoric about the rule of
law in Canadian jurisprudence, the doctrine has been pressed into service
as an operative principle only rarely. There are but few examples where the
rule of law concept creates a Constitutional standard to which other legal
rules must conform.
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