Imagine . . .
Living in a society where one day, while you are safely and reasonably driving your new car down the street, you are pulled over and arrested solely because the arresting police officer doesn’t like the colour of your car. After being released from jail, you paint your car another colour and then are pulled over and arrested again because a different police officer doesn’t like the new colour of your car.
Imagine . . .
Living in a society where the government prohibits murder but refuses to arrest or prosecute a high-ranking government official who intentionally shoots and kills an innocent person for no discernible reason in front of several eye-witnesses.
Imagine . . .
Living in a society where, at any moment, without any warning and without following any particular procedure, the government could seize your home, your children, or your bank account.
As residents of a western democracy, we instinctively know that the type of society depicted in any one of the above examples is unacceptable. There is something inherently wrong with a legal system that would allow a citizen to be arrested solely on the whim of a police officer or that would not apply the law to the law-makers or that would not require the government to follow predictable and established procedures before drastically impacting the lives of citizens. So, the need to reject the legal systems depicted in the examples seems obvious to us. But what exactly is it about the above examples, which enables us to so quickly and certainly reject the societies depicted? What is the common feature of each example that makes the society pictured so intrinsically abhorrent? What is the essential feature of our democratic society which is absent in each of the examples? The answer to all of these questions– the reason that we are instinctively able and compelled to denounce the societies illustrated in the examples — is that each of the examples depicts a society operating without the Rule of Law.
What is the Rule of Law?
Defining the Rule of Law is, in many ways, like trying to define the meaning of life. Like the meaning of life, the Rule of Law is a basic, essential, and fundamental concept that has been wrestled with by philosophers, individuals, and societies for centuries and that, in the end, can be different things to different people. Also like the meaning of life, however, the main problem with the Rule of Law lies not so much in knowing what it is, but rather in putting that knowledge into words.
Thousands of books and articles have been written by people in various fields of study or enterprise, all trying to capture in words the essence of the Rule of Law. Some of the most concise, comprehensive, and understandable descriptions of this principle, however, have come from the Supreme Court of Canada. While recognizing that the Rule of Law is “a highly textured expression, importing many things”, the Supreme Court of Canada has generally summarized the Rule of Law as “conveying a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority” (Reference re Resolution to Amend the Constitution, 1981). The Supreme Court has also said that “at its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action” (Reference re Secession of Quebec, 1998).
But exactly how does the Rule of Law lend order to society? What are the components or elements of the Rule of Law which lead to the structure and accountability described by the Supreme Court of Canada? Once again, while numerous scholars have expressed countless opinions about the precise content of the Rule of Law, some basic, generally accepted components of the Rule of Law can be identified. In one of the first attempts to articulate exactly what is meant by the Rule of Law, A.C.Dicey said that the rule of law contains three elements:
- first, that no one should be punished by the state except for a distinct breach of law established by ordinary court proceedings;
- second, that the law should apply to all persons equally, regardless of any person’s rank or condition; and
- finally, that legal rules must be enforced by the courts (The Law of the Constitution, 1886).
Following generally on Dicey’s comments, the Supreme Court of Canada has identified the following three elements as part of the Rule of Law:
- first, that law “is supreme over the acts of both government and private persons”;
- second, that “an actual order of positive laws which preserves and embodies the more general principle of normative order” must be created and maintained; and
- finally that “the relationship between the state and the individual must be regulated by law” (Reference re Secession of Quebec).
The Supreme Court has also held that the Rule of Law “must mean at least two things. First, that the law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power” and that “the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies … order” (Reference re Manitoba Language Rights).
In essence, the Supreme Court’s descriptions of the Rule of Law say that this principle requires society to be governed by discernible laws, rather than by personal whims and preferences. Instead of society being ruled by the desires or interests of a particular person or group, which desires and interests may fluctuate daily, society should be ruled by law. Among other things, a society that is ruled by law must have procedures in place for ensuring that people in positions of power are not able to arbitrarily manipulate social order. So, laws must be created only in accordance with established and agreed upon procedures; laws cannot be created arbitrarily and without warning to the public. Laws must be equally applied to both the law-makers and ordinary citizens.
Laws must be applied in predictable and established fashions, rather than depending solely on the whims of the law-makers or law-enforcers. In other words, the Rule of Law calls for the application of objective standards in the creation and application of a society’s laws.
What the Rule of Law is Not
In hearing that the Rule of Law is a principle that mandates objectivity in our legal system, many people argue that this principle is not followed in our country because the law, in fact, frequently applies differently to different people. For example, one person charged with murder might be given a penalty that is completely different than another person charged with the same crime. Similarly, one person injured in a car accident might be awarded far more compensation than another person who has suffered similar injuries. A police officer may issue a speeding ticket to one driver, but not to another driver who committed the same offence.
The Rule of Law, however, does not necessarily require that all people be treated identically. Instead, the Rule of Law simply requires that the law give the same considerations or apply the same standards to persons in similar circumstances.
The result of the application of those considerations or standards may differ significantly depending on the case. So, two people who have committed murder may receive different penalties if one person is a serial killer and the other is not. Similarly, a person injured in a car accident may receive more compensation than another person who suffered similar injuries if the first individual was blameless in the accident and the second individual somehow contributed to the accident. A police officer can properly decide to issue a warning rather than a ticket to one speeder and to issue a ticket to another speeder if the officer has reasonable grounds to think that the first speeder only needs a warning as a deterrent and the second speeder needs a ticket to learn his lesson. In all of these circumstances, however, the Rule of Law remains at play because the difference in treatment depends on established criteria and not on the whims of the person administering the system.
Why We Should Care About the Rule of Law
The Rule of Law obviously plays a fundamental role in Canada’s social structure. The fact that the Rule of Law is intrinsic to our society is demonstrated by the discomfort we feel when confronted with legal systems which operate without the Rule of Law, as with the examples noted at the start of this article. The central role played by the Rule of Law in Canadian society has also been expressly recognized by Canadian courts, particularly when interpreting Canada’s constitution. The Supreme Court of Canada has concluded that, in Canada, the “constitutional status of the rule of law is beyond question” (Reference re Manitoba Language Right). and that “the rule of law [is] a fundamental postulate of our constitutional structure” (Roncarelli v. Duplessis, 1959), meaning that the Rule of Law forms part of the supreme law of our country, binding on all levels of government and enforceable by the courts. The courts have not had to stretch the interpretation of our constitution to arrive at this conclusion because our constitution explicitly describes our constitutional order as being “similar in principle to that of the United Kingdom” (Constitution Act, 1867), where the rule of law is well established, and our constitution expressly states that “Canada is founded upon principles that recognize the supremacy of God and the rule of law.” (Constitution Act, 1982). Apart from the fact that our constitution expressly recognizes or refers to the Rule of Law, the Supreme Court of Canada has also suggested that the very existence of our constitution implicitly demonstrates our respect for the Rule of Law because a constitution is by nature intended to be a supreme, objective law which describes the expected social order and which both governments and citizens must follow. The founders of this nation must have intended, as one of the basic principles of nation building, that Canada be a society of legal order and normative structure: one governed by rule of law. While this is not set out in a specific provision, the principle of the rule of law is clearly a principle of our Constitution.
The fact that the Rule of Law has a fundamental place in Canada’s legal and social order does not, however, guarantee that the Rule of Law will never be violated in this country. On the contrary, like all other legal principles, the Rule of Law is sometimes violated–either intentionally or unintentionally, directly or indirectly, and in a myriad of different ways. So, while we can and should take for granted the important role that the Rule of Law plays in our society, we cannot and should not necessarily assume that the Rule of Law will always be followed by our law-makers. As with all other legal principles, we have to look to the courts to ensure that the Rule of Law is enforced.
To date, Canadian courts have played a very active role in maintaining and enforcing the Rule of Law. The courts have referred to, defined, and applied the Rule of Law in many cases. Two cases which provide particularly vivid illustrations of the court’s critical role in protecting and enforcing the Rule of Law are Roncarelli v. Duplessis and the Reference re Secession of the Province of Quebec.
Although these decisions were made years apart, both cases demonstrate the importance which Canadian courts place on the Rule of Law and the essential service the courts provide in ensuring that our law-makers respect this Rule.
In Roncarelli v. Duplessis, the Supreme Court of Canada considered the actions of Premier Duplessis of Quebec with respect to Roncarelli, a Quebec restaurateur. Premier Duplessis had ordered the cancellation of Roncarelli’s liquor licence, an act that obviously had serious implications for Roncarelli’s livelihood. Premier Duplessis had ordered the liquor licence cancelled, not because of any problem with Roncarelli’s restaurant or liquor service, but because Roncarelli was a Jehovah’s Witness who had been posting bail for several other Jehovah’s Witnesses who were arrested for violating municipal by-laws regarding literature distribution. In essence, Premier Duplessis was trying to indirectly discourage Roncarelli from posting bail for his friends.
The Supreme Court of Canada found that Premier Duplessis’ actions were unjustified and the Court ordered the Premier to pay damages (compensation) to Roncarelli. The Supreme Court held that Premier Duplessis’ cancellation of Roncarelli’s liquor licence violated the Rule of Law because this action constituted an abuse of the Premier’s powerful position. The Court held that the Rule of Law prohibited Duplessis from relying on his high office or his personal assessment of public interest as a ground for cancelling Roncarelli’s liquor licence. The liquor licence could only properly be revoked if the cancellation was authorized by a particular statute or law. The Quebec statute which dealt with liquor licensing gave the power to issue or cancel liquor licences exclusively to another Quebec official and not to the Premier.
In Reference re Secession of Quebec, the Canadian government asked the Supreme Court of Canada to provide an opinion on the right of Quebec to unilaterally secede from Canada. This issue arose because of the stated intention of the Quebec government to declare Quebec to be an independent nation, regardless of any objection by the other Canadian provinces or the federal government, if Quebec citizens voted in favour of independence in a provincial referendum. In deciding this question, the Supreme Court of Canada was compelled to consider the fundamental aspects of Canada’s constitutional order – that is, the basic values and nature underlying this country’s political, legal, and social structures. The Court expressly included the Rule of Law among the fundamental features of our society and, as already noted, defined the Rule of Law as including various features but basically representing the notion that “all government action must comply with the law.” The Court stated that the Rule of Law is closely linked to the principle of constitutionality, which requires that “all government action comply with the Constitution”. So, the Court ultimately concluded that, because of the Rule of Law and the notion of constitutionality, the province of Quebec could only legally act in accordance with the Constitution. For other reasons which are too detailed to consider in this article, the Court then found that the Constitution does not permit Quebec to secede from Canada without negotiating the terms of that secession with the other Canadian provinces and the federal government.
The Roncarelli case and the Quebec Secession Reference case are useful in pointing out a number of facts regarding the significance of the Rule of Law:
First, the circumstances which brought each of these cases before the Court demonstrate that, although Canadian citizens and the federal and provincial governments might instinctively recognize and acknowledge components of the Rule of Law as being fundamental to our democratic society, sometimes individuals or governments take action which, either intentionally or unintentionally, may violate the Rule of Law. In attempting to achieve other goals, it is particularly easy for elected officials or governments to overlook or misinterpret their obligations under the Rule of Law. Accordingly, we cannot be complacent and simply assume that because Canadian citizens and governments value the Rule of Law that Rule will necessarily be followed without the involvement of the courts in enforcing it.
Second, these cases reflect the clear and repeated finding by the Supreme Court of Canada that the Rule of Law is fundamental to the operation of the Canadian legal system and that this Rule must be obeyed and implemented in practice. Of particular importance is the Court’s recognition that the Rule of Law is embodied in the Canadian constitution – the supreme law which sets out our government structures and powers and which delineates the relationship between the various orders of government and the Canadian people. In other words, these cases tell us that the Rule of Law is more than just a basic value of our legal system, it is a fundamental, enforceable legal right.
Finally, by demonstrating the willingness of the courts to use the Rule of Law to curtail government action, these cases capture the essence of the Rule of Law – the notion that all participants in our society, governments included, must adhere to the laws and procedures we have agreed upon.
In our day to day lives, we often bemoan the fact that we must follow rules. We frequently find society’s laws to be too restrictive and rigid, not being flexible enough to take our individual needs and circumstances into account. In understanding the idea of the Rule of Law, however, we see that the rules, while frequently inconvenient, in fact save us from the intolerable inconvenience that a social order without objective rules would inevitably provide. This is not to say that all of our current laws or rules are perfect, but the existence of these objective rules ultimately protects our freedom. While many people in the world still struggle against the oppression of a tyrannical ruler, we are free from oppression at least in part because we are ruled by law.