Rule of Law in Canada

Introduction

The rule of law is a foundational principle of the Canadian constitutional order. While not exhaustively codified in any single constitutional text, it has been recognized by the Supreme Court of Canada as an unwritten constitutional principle that underpins the entire legal system. The rule of law requires that all persons and authorities, including the government itself, be subject to and accountable under the law, and that law be applied consistently, predictably, and without arbitrariness.

Constitutional Foundations

The rule of law is expressly referenced in the preamble to the Canadian Charter of Rights and Freedoms:

“Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.”

However, the rule of law exists as an unwritten constitutional principle independent of this textual reference. In Reference re Secession of Quebec, [1998] 2 SCR 217, the Supreme Court identified the rule of law as one of four foundational unwritten constitutional principles — alongside federalism, democracy, and protection of minorities — that inform the interpretation of the Constitution and constrain legislative and executive action.

The Court articulated three core components of the rule of law in the Manitoba Language Rights Reference, [1985] 1 SCR 721:

1. Supremacy of law: The law is supreme over the acts of both government and private persons. No one is above the law.
2. Requirement of legal authority: The exercise of governmental power must have a legal foundation. There must be a “rule of law” in the sense of a body of rules that bind the state.
3. Normative ordering: The legal order must be maintained through a hierarchy of norms, with constitutional law at the apex.

The Roncarelli Principle

The seminal Canadian rule of law case is Roncarelli v. Duplessis, [1959] SCR 121. The case arose when Premier Maurice Duplessis ordered the revocation of Frank Roncarelli’s liquor license because Roncarelli had posted bail for Jehovah’s Witnesses who were being prosecuted under Quebec’s Padlock Law.

The Supreme Court held that Duplessis had acted without legal authority and that his actions were motivated by improper purposes. Justice Rand’s famous statement captures the essence of the rule of law:

“That action in the exercise of [a public officer’s] powers must be predicated on grounds relevant to the purposes of the power; public officers are not entitled to act in a manner that is arbitrarily or for purposes that are not related to their statutory duties.”

The case established that discretionary powers must be exercised in accordance with legal limits and not for extraneous or improper purposes. It represents a foundational application of the rule of law to executive action.

Contemporary Application

In Canada (Attorney General) v. Imperial Tobacco, [2011] 3 SCR 45, the Supreme Court elaborated on the meaning and limits of the rule of law. The case involved a constitutional challenge to legislation retroactively eliminating the Crown’s liability in a tobacco litigation context.

The Court identified three aspects of the rule of law:

1. Protection against arbitrariness: The law must provide a “bulwark against arbitrary state action.”
2. Requirement of legal authority: The state may not act without legal authority, and legal authority must be exercised within its limits.
3. Supremacy of law: The law binds everyone, including the government.

Crucially, the Court held that the rule of law does not protect against legislative action that is properly enacted and within constitutional limits. While executive action must have legal authority, Parliament may enact, amend, or repeal laws, including laws that retroactively affect pending litigation, provided it respects constitutional constraints. This distinguishes the rule of law from an entrenched vested rights doctrine.

Rule of Law and Section 1

The rule of law intersects with Charter analysis through section 1 of the Charter, which requires that limits on rights be prescribed by law. This threshold requirement ensures that any limitation on Charter rights must be grounded in a law that is accessible, precise, and foreseeable in its effects.

In Greater Vancouver Transportation Authority v. Canadian Federation of Students, [2009] 2 SCR 295, the Court held that the “prescribed by law” requirement excludes government policies that lack the force of law, as well as vague or standardless grants of discretionary power.

Unwritten Constitutional Principles

The rule of law as an unwritten constitutional principle operates in several ways:

• Interpretive aid: Courts use the rule of law to interpret ambiguous constitutional and statutory provisions.
• Constraint on legislative power: While Parliament can legislate on any matter within its jurisdiction, it cannot legislate in a manner that fundamentally undermines the rule of law, such as by abolishing courts or removing judicial oversight of executive action.
• Implied limits on executive discretion: The rule of law requires that discretionary powers be exercised in accordance with legal standards.

The Secession Reference confirmed that unwritten principles are “binding” and may give rise to constitutional obligations. However, the precise scope of the rule of law as an independent ground for invalidating legislation remains debated. In Imperial Tobacco, the Court cautioned that unwritten principles cannot be used to override express constitutional provisions or to create positive rights not found in the text.

The Manitoba Language Rights Reference

The Manitoba Language Rights Reference presented a stark rule of law dilemma. Manitoba had enacted statutes only in English for nearly a century, contrary to constitutional requirements that laws be enacted in both English and French. If all unilingual statutes were declared invalid, Manitoba would be plunged into legal chaos.

The Supreme Court held that the statutes were invalid but employed the rule of law to justify a suspended declaration of invalidity. The Court invoked the rule of law to authorize the continued temporary operation of the invalid laws to prevent a legal vacuum, ordering Manitoba to translate and re-enact all statutes within a specific timeframe.

This case illustrates the remedial flexibility that the rule of law can provide: while the Constitution must be respected, the rule of law also requires the avoidance of chaos and the preservation of legal order.

Conclusion

The rule of law is a foundational and pervasive principle of Canadian constitutional law. It constrains executive action, provides the basis for judicial review, informs constitutional interpretation, and requires that Charter limitations be prescribed by accessible and precise law. While the rule of law does not prevent legislative change or restrict the substance of properly enacted legislation within constitutional limits, it establishes the framework within which all legal authority must be exercised. It remains, in the words of the Secession Reference, one of the “essential features” that define the Canadian constitutional order.