EDITORIAL The Ottawa Citizen

Dumping the rule of law
Ontario's premier shouldn't need basic civics lessons, but a bill now before Queen's Park demonstrates that Dalton McGuinty doesn't understand a basic principle of Western civilization: the rule of law.

April 20, 2004

That principle, for Mr. McGuinty's benefit, holds that laws -- clear, public and predictable -- are what govern our actions. Not the whim of king or premier. And, just as important, the law applies to everyone -- from the humblest individual to governments, kings and, yes, even premiers.
Mr. McGuinty's lack of understanding of this basic idea is clear in the legislation his government introduced to deal with the lingering issue of the Adams Mine dump. In 1998, the then-Conservative government gave approval to a proposal by a North Bay businessman to ship Toronto's trash by rail to an abandoned open-pit mine near Kirkland Lake. The project wound its way slowly through the bureaucracy. Several times it appeared the City of Toronto would scupper it. But it kept coming back to life until the McGuinty government announced it was officially and finally dead.
That's certainly the government's prerogative. But the businessman is now out of pocket for millions of dollars in expenses. He has also seen any expectation of profit from the project vanish after all these years because the government, which was in effect his business partner, suddenly changed its mind. Clearly, he has to be compensated. And that's why we have the law. The laws governing civil liability are voluminous and complex and we wouldn't presume to say precisely what is owed, but that's what the law is intended to sort out. Every day, individuals, companies or governments pull out of deals. Then the law sorts out the mess.
But not this time. Mr. McGuinty knows the law would likely say his government is liable for major damages and he doesn't want to pay. So he added clauses to the Adams Mine legislation that say the businessman may receive compensation for out-of-pocket expenses but nothing else. Any legal claims, existing or future, are "hereby extinguished." The law? Poof! Gone.
Let's be clear, this is not about the wisdom of the Adams Mine proposal. Both supporters and opponents of the project should be disgusted by the sight of Mr. McGuinty saying, in effect, that law is whatever he and his Liberal majority feel like today. When a government can simply wave its hand and not only free itself of inconvenient laws, but do so retroactively, it is effectively above the law. Kings lost their heads for behaving like this.
Although more and more retroactive legislation is being passed by lazy Canadian governments that don't understand, or don't care, about the principles they are damaging, it isn't happening in the field of criminal law. That's because a judge would use the Charter of Rights to knock down a law that criminalized conduct retroactively. But the Charter cannot stop governments from retroactively tearing up contracts or otherwise putting themselves above the law because there is no protection for property rights in it. Property rights are enshrined in the constitution of almost every major Western nation that has a written constitution and yet they were left out when our Charter was drafted.
That is an outrage that exceeds even Mr. McGuinty's appalling legislation.
© The Ottawa Citizen 2004