The Rule of Law in the Canadian Constitution

On December 4, 1946, Frank Roncarelli was informed by the Quebec Liq­uor Commission that the liquor license for his Montreal restaurant had been revoked "forever." Mr. Roncarelli had not violated any Liquor Com­mission guidelines, nor had he been charged with or convicted of any criminal wrongdoing. The license was revoked because, as Mr. Roncarelli and indeed everyone else knew, Maurice Duplessis, the Premier of Que­bec, wanted to punish him for his membership in and financial support of the Jehovah's Witnesses. The Jehovah's Witnesses are an evangelizing, fundamentalist protestant sect, who had outraged Duplessis and the French Catholic majority in Quebec through their outspoken criticisms of the Catholic Church and its priests. The Duplessis government had begun a campaign oflegal harassment against the Witnesses, by arresting them for distributing their printed materials wi thou t a license. Roncarelli frustra ted this plan by regularly providing bail money for his arrested fellow-believ­ers, who would then return to the streets. Roncarelli thus became a special target of the harassment policies of the Quebec government.

After a thirteen-year legal battle, the Supreme Court of Canada finally ruled that the government of Quebec's treatment of Roncarelli had been arbitrary and illegal. Moreover, Duplessis could not hide behind the civil immunity normally enjoyed by state administrators under Quebec law. By grossly abusing his administrative discretion, Duplessis was deemed to have acted outside the law and was thus subject to being sued by Roncarelli for damages.1 (See Reading 1.1) A majority of the Court held that in Canada there is a general right not to be punished by the arbitrary exercise of government power. A government, federal or provincial, can only move against an individual in accordance with known rules, and the Duplessis government had failed to meet this standard. In so ruling, the Supreme Court re-asserted one of the fundamental principles of the "un­written constitution" of Canada - "the rule of law."

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 United States and Canada.

There have been two principal approaches to giving institutional ex­pression to the principles of equality and liberty in modem liberal democracies: the British parliamentary or Westminster model, and the American "separation of powers" model. Because of two major differ­ences in the Parliamentary and American systems, the courts in each system have very different functions and characteristics. The American model is ultimately based on and organized by a single basic document - a writ­ten constitution. This single document sets down in writing "the rules governing the composition, powers and methods of operation of the main institutions of government, and the general principles applicable to their relations to the citizens." 4 By contrast, the Westminster model is based on an "unwritten constitution" - a combination of historically important statutes, the common law, and numerous unwritten conventions and us­ages. The second difference is that the "written constitution" of the Americans includes an enumeration of the fundamental rights and liberties of the individual against government, known collectively as the Bill of Rights. While individuals enjoy basically the same rights and freedoms under the British parliamentary model of democracy, they are not "spelled out" in any single, basic document of government, i.e., they are not "constitutionally entrenched."

The result 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 of Marburyv. Madison, American courts have assumed the function of interpreting and enforcing "constitutional law" just as they do all other law. This "judicial review" oflegislative and executive actions is intended to ensure that they conform to the procedures and limitations laid down in the Constitution. If they do not conform, the court declares them to be "unconstitutional," invalid and therefore without legal effect.

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

The 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 Great Britain or Canada. While Canada's civil liberties record is far from perfect,7 it re­mains much better than the vast majority of modem nation states.

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 of England and Switzerland, Tocqueville observed that, "In England there seems to be more liberty in the customs than in the laws of the peo­ple," while the opposite holds for Switzerland. For both Tocqueville and Dicey, the British condition is far preferable. For in the long run, the cus­toms, habits, beliefs - the moral quality public opinion - of a society is a more dependable guarantee of just laws than the "paper barriers" of con­stitutional "guarantees." Put very simply, a written constitution cannot "guarantee" that the laws of a democratic society will be any more just or fair than the people who make up that society.

The government of Canada was basically modeled after the British par­liamentary system. The one important exception is the federal form of the union of the Canadian provinces, and the defining of the forms and limits of this union in a single, written document - the British North America Act, 1867, now known as the Constitution Act, 1867. This aspect of Cana­dian government is especially important for the courts, because it has thrust upon them the function of judicial review, or "umpire" of the fed­eral system.8 Federalism aside, both levels of government in Canada were formed after the Westminster model, which meant parliamentary su­premacy within their respective spheres of jurisdiction.

Accordingly, Canada has, until very recently, followed the British ap­proach to the protection of civil liberty - parliamentary supremacy combined with "the rule of law," and a healthy self-confidence in the basic sense of fairness and toleration for diversity in the Canadian people. In­evitably, the proximity of the United States has prompted constant comparisons. One of the most eloquent and forceful defences of the Anglo­Canadian approach to protecting civil liberties was given by the dean of Canadian political science, R. MacGregor Dawson. In discussing the vari­ous components of Canada's unwritten constitution, Dawson argued:

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 Dawson's argument notwithstanding, Canadian political leaders have been increasingly attracted to the American approach to pro­tecting civil liberties. In 1960 the Diefenbaker government enacted the Canadian Bill of Rights. It took the form of a statute, not a constitutional amendment, and applied only to the federal government and not to the provinces.l0 Partly because of dissatisfaction with this document and partly in response to political developments within Canada during the 1970s, the Trudeau government undertook a major program of constitutional reform in 1980. Prime Minister Trudeau's constitutional agenda included "patriating" the B.N.A. Act, an amending formula, and a new Charter of Rights that applied to both levels of Canadian government. After a year and a half of political maneuvering, confrontation, and finally compro­mise, modified versions of all three objectives were achieved.

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, Canada finds itself today almost equidistant between the British and American models of liberal democracy, with their differing approaches to civil liberties. As a result, the debate over which form of liberal democracy is best designed to protect the liberties of its citizens remains very much alive. The truth of this debate lies somewhere between the two contending positions, for as Dawson pointed out: "Written law and the conventions will normally complement one another and each be­comes necessary to the proper functioning of the other ."11

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.

1 For an excellent account of both the Roncarelli Case and the larger conflict between the Jehovah's Witnesses and the Quebec government, see William Kaplan, State and Salvation: The Jehovah's Witnesses and Their Fight for Civil Rights (Toronto, ON: University of Toronto Press, 1989).

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 Canada is founded upon principles that recognize the supremacy of God and the rule of law." Section 7 of the Charter essentially restates the modem formulation of perle gem terrae, that no person can be deprived of his life, liberty, or security of the person. except according to the due process of law. Sections 8 through 15 then elaborate specific aspects of due process.

3 See Locke, The Second Treatise, 01. 1. Reading 1.2.

4 Sir Ivor Jennings, The Lawand the Constitution. 5th ed. (London: University of London Press,      1959), p. 33.

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 Canada (Vancouver, BC:    Oarke, Irwin and Co., 1981).

8 This is the subject of Chapter 10.

9 R. MacGregor Dawson, The Government of Canada. 4th eel. (Toronto, ON: University of                Toronto Press, 1963), p. 70.

10 This is discussed in greater detail in Chapter 11.

11 Dawson, p. 71.