The Rule of Law in the Canadian Constitution
After a thirteen-year legal
battle, the Supreme Court of Canada finally ruled that the government
The Roncarelli case was just the most recent chapter in a living tradition that can be traced back through the nineteenth_entury writings of AV.C Dicey (Reading 1 .4); the American Declaration of Independence of 1776 (See Reading 1.3); the political theory of the seventeenth_enturyphilosopher John Locke (See Reading 1.2); and back to the fields of Runnymede inJuneof1215, when the English nobles forced King John to sign Magna Carta and to agree to rule per legem terrae-accordingto the laws of the land.
Magna Carta marked the beginning of the "rule of law" tradition. The "Glorious Revolution of 1688" deposed the Stuart kings and established the supremacy of Parliament over the Crown. This landmark event initiated the practice of government that we now take for granted (too much so!) - representative government, or government by consent of the governed. The second reading is from the writings of John Locke, often referred to as the "theorist of the Glorious Revolution." Locke's Second Treatise on Government, first published in 1690, has been the most influential defence and advocacy of "government by consent," or liberal democracy, ever written. In it, we find not only a defence of "government by consent of the governed," but also a restatement of the principle of per legem terrae. Locke explicitly declares that even the new sovereign, the legislature, must rule "by declared and received laws. . . interpreted by known authorized judges."
A careful reading of the passage from Locke reveals that in addition to these procedural restrictions, he imposes a second major restriction on the legislative, or "law-making," power of the state - "the law of Nature." This substantive restriction means that not only must laws be duly enacted and fairly administered, but also that the laws themselves must not violate the "natural rights" of individuals that exist by the "law of Nature." This law of nature is understood to transcend human society and to exist independently of the positive law of any given state.
This double limitation on just government was given its most striking and memorable articulation in the American Declaration of Independence of 1776, written primarily by Thomas Jefferson. (See Reading 1.3) The Americans justified their revolution, and subsequently founded their new republic, on the two fundamental principles of Locke's political theory: that "all men are by Nature equal," and that they possess "certain inalienable (i.e., natural) rights." There is a critical tension between these two fundamental concepts of equality and liberty.
The principle of natural equality essentially means that no person (or group of persons) is so inherently superior as to rule others without their consent. This banishes the traditional claims of priests, kings, and nobles to rule on the basis of their alleged natural superiority, and replaces it with government by consent of the governed. In practice, this has meant some form of "majority rule" democracy. The principle of natural rights means that a just government cannot violate these rights, since the very purpose of government is to secure such rights. The tension arises from the fact that "majority rule" does not always produce laws that respect the rights of individuals or groups who are not part of the majority.
This tension is more of a theoretical problem
than a practical one. Most of the time the combined practice of "government
by consent" and "the rule of law" is a strong guarantee
that the twin requirements of equality and liberty will both be met. It
is unlikely that a governing majority will ever (knowingly) consent to
policies that are destructive of their rights. The "rule of law"
provides additional safeguards by detering rulers from pursuing ends and
using means that "they would not like to have known by the people,
and own not willingly."3 But what happens when the majority consents
to laws that are destructive of the natural rights of a minority? What
happens when government by the "consent of the governed" no
longer "secures these rights"? Neither Locke nor Jefferson answered
this question. The practical problem of reconciling "majority rule"
with "minority rights" was left to the founders of new liberal
democracies such as the
have been two principal approaches to giving institutional expression
to the principles of equality and liberty in modem liberal democracies:
the British parliamentary or
of these two differences is that under the American model of democracy,
the courts, and especially the Supreme Court, playa more explicit and
influential political role. Ever since the 1803 case
It is easy to see how, in theory at least, combining the American practice of judicial review with an entrenched Bill of Rights resolves the tension between liberty and equality, majority rule and minority rights. If the majority enacts a law that infringes a person's constitutional right, the individual can go to court and ask the judges to strike down the law as unconstitutional. This approach to protecting civil liberties was particularly effective in promoting racial justice in American society during the 195Os and 1960s. While the more "democratic" (majoritarian) institutions of government refused to take action, the American Supreme Court used the Bill of Rights guarantee of "equal protection of the laws" to strike down the legal barriers of racial discrimination in American society. However, as the American Supreme Court expanded its "judicial activism" into more and more areas of public policy and local government, serious questions began to arise about the "undemocratic" character of its use of judicial review. In protecting the "individual rights" side of the liberal equation, the Court was perceived as neglecting and even violating the equality requirement of government by consent of the governed.5
British model of parliamentary supremacy combined with "the rule
of law" tradition avoids this problem. There are no written constitutional
prohibitions for the British courts to enforce against Parliament, and
the courts do not interpret or enforce constitutional conventions, the
"unwritten constitution."6 The critics of parliamentary democracy,
however, contend that it is prone to the opposite problem - that there is no adequate mechanism
to protect individuals or minorities from democratic majorities that violate
their rights. While this may be true in theory, in practice it has not
proven to be a serious problem in either
The key to
the practical success of the British parliamentary system is conveyed
in the reading from Dicey on "the rule of law," and especially
his quotation from Tocqueville. (See Reading 1.4) Comparing the governments
The mere fact that a constitutional doctrine is not explicitly enUIlciated and formally committed to writing may affect the external appearance but not disturb the genuineness or force of that doctrine. Thus the broad tolerance which will permit differences of opinion and will disapprove of punitive or repressive measures against the dissenters is of as great constitutional significance and may conceivably under some circumstances afford an even more assured protection than an explicit guarantee of freedom of speech, written into a constitution, yet with no solid conviction behind it.9
The force of
The adoption of a constitutionally entrenched Charter of Rights (reproduced in the Appendix) fundamentally altered the Canadian system of government by placing explicit limitations on the law-making power of both levels of government. Parliament was no longer supreme; the Constitution was. Or almost. The Charter was not adopted in its original "pure" form. Attachment to the tradition of Parliamentary supremacy, combined with provincial suspicion and opposition, were too strong, and forced an important compromise. Added in the eleventh hour of constitutional negotiations between the federal government and the provinces, section 33 of the Charter allows both levels of government to ignore certain Charter provisions if they deem it necessary. Parliamentary supremacy was thus preserved, albeit in a qualified form.
As a result,
While this debate is ongoing, there is one undisputed fact about the effect of enumerating individual rights in a written constitution: it thrusts the courts, and the judges who constitute them, into a much more explicit 7 and influential political role. This is the subject of the next chapter, while the details and consequences of this new role for Canadian judges and courts are elaborated in the remainder of the book.
an excellent account of both the Roncarelli Case and the larger conflict
between the Jehovah's Witnesses and the
2 The full text of s. 39 of Magna Carta reads as
follows: "No freeman shall be taken or (and) imprisoned or disseised
or outlawed or exiled orin any way destroyed, nor will we go upon him
nor send upon him, except by the lawful judgement of his peers or (and)
by the law of the land." This 700 year-old rule is the direct ancestor
of the 1982 Charter of Rights and Freedoms, whose preamble declares: "Whereas
Locke, The Second Treatise, 01. 1.
4 Sir Ivor
5 This problem is the subject of Chapter 13.
6 TheCanadian Supreme Court's decision in the 1981 Constitutional Amendment Reference was contrary to this generally accepted practice and is probably best understood as an exception to an otherwise still valid rule.
7 See Thomas Berger, Fragile Freedoms: Human Rights and Dissent in
8 This is the subject of Chapter 10.
9 R. MacGregor Dawson, The Government
10 This is discussed in greater detail in Chapter 11.