Jurisdiction Rule of Law

12 Nov Jurisdiction Rule of Law

“The rule of law”, whatever it is, has recently received far better publicity than has the Government of Canada. Some commentators appear to believe that the rule of law really is a “rule” that gives the judiciary jurisdiction superior to that of Parliament even as to matters traditionally within the exclusive jurisdiction of Parliament, such as foreign policy.

This is simply not so. The rule of law, as most recently and narrowly applied by the Supreme Court of Canada, is not a rule at all. Of itself, it confers no jurisdiction. It is an aid, albeit important, to the interpretation of legislation, including the Charter of Rights and Freedoms. It has not diminished Parliamentary sovereignty.

Finally, and I suggest most significantly, in our democracy, protection against unjust or unfair

legislation lies within the written text of our Constitution and at the ballot box rather than in unwritten principles of undefined and uncertain scope and meaning, such as the rule of law.

In this essay, I accept the premises that legal reality is constructed on the basis of political values – “the contest about what is is also a contest about what (politically) should be”. I also accept that law is not distinct from policy.[1] Therefore, if it is validly argued that “since judges are ill-equipped to review policy, they should not be in the administrative law business”[2] it follows that since judges are ill-equipped to review foreign or other government policy, they should not assume jurisdiction to do so except where the Constitution expressly obliges them to do so. Judges are “guardians” of “fundamental” and even “transcendent” constitutional values.[3] This is so because the Constitution expressly confers such jurisdiction. However, judges should not purport to exercize jurisdiction pursuant to vague and malleable “quasi-constitutional presumptions of meaning taken from the common law” – in other words the notion of the rule of law.

Certainty, predictability, and stability – all attributes of some models of the rule of law – require that judges confine themselves to their proper role of interpreting legislation, adjudicating the law of ultra vires and the Constitutional division of powers and continuing to safeguard those fundamental freedoms expressly guaranteed in the Charter.

Parliament, in enacting the Charter of Rights and Freedoms, decided on behalf of this country’s citizens that we shall value fundamental freedoms that transcend policy. Jurisdiction to review government policy is derived from the written constitutional text of the Charter. Such jurisdiction is not derived, at least not directly, from any particular notion of the rule of law. To paraphrase and modify a view expressed by Professor John Willis[4], judges, in interpreting the Constitution, should exercise this exceedingly delicate power with deference and restraint; because this is the power to interfere with the normal functioning of a government system of which, in these democratic days, they are not the most important arm.

Criticism of the rule of law: the individual and the community

Just after enactment of the Canadian Charter of Rights and Freedoms, Professor Judith Schklar wrote in 1984 that, for many, the expression “the rule of law” had:

“become meaningless thanks to ideological abuse and general over-use. It may well have become just another one of those self-congratulatory rhetorical devices that graced the public utterances of Anglo-American politicians. No intellectual effort need therefore be wasted on this bit of ruling-class chatter…Contemporary theories failed because they have lost a sense of what the political objectives of the ideal of the Rule of Law originally were and have come up with no plausible restatement. The upshot is that the Rule of Law is now situated, intellectually, in a political vacuum.”[5]

In the same collection of essays, Professors Allan Hutchinson and Patrick Monaghan compared the rule of law’s preference for individual liberty to democracy’s fostering of a sense of community:

“Liberalism has always been ambivalent about the significance and the desirability of the value of community. For liberal theory, all roads begin with atomic, prepolitical individuals maximizing their self-interest… on one view, the Rule of Law serves as a guarantee to individuals that rights will not be ignored by the bureaucracies of the state, the corporation or the trade union. The Rule of Law requires that fundamental issues of political morality be debated as issues of principle and not simply issues of political power. The positive effects of judicial review are thought to extend far beyond the particular case or dispute before the court. The claim is that ‘rights talk’ is a means of uplifting and revitalizing political and moral discourse in our society generally. By forcing the political process to confront the question of individual rights, public morality will become more reflective and self-critical. Cast as the high priests of moral discourse, the judiciary encourages meaningful public debate on moral issues.

“These claims that the Rule of Law can serve as an indispensable means of popular control are profoundly mistaken. The Rule of Law sustains elitist politics, with its impoverished sense of community… the Rule of Law’s language of rights reinforces the assumption that communities are nothing more than aggregations of private interests. Rightholders are defined in contradistinction to the community rather than as integral components of it… a politics dominated by the Rule of Law is a politics with a limited scope for popular participation and control. It cramps and compresses the ability of individuals to debate and define the conditions of their communal life. In attempting to avoid the tyranny of the majority, it mistakenly embraces a doctrine of expertise and dependency which carries with it a subtle, yet despotic dominion of its own.”[6]

In 1999, Olufemi Taiwo of the University of Western Ontario echoed the concern that the rule of law detracts from our sense of community by emphasizing individual rights as an overriding value:

“The Rule of Law is a sanctification of the perpetual state of conflict that Unger’s analogy captures so well. It does not seek to eliminate conflict or division in society. Nor does it allow us to consider alternative ways of conflict resolution that might secure the advantages that the law confers but without the externalities that it brings in its wake. What it does is to make it more comfortable or, at least, less discomfiting, to live with conflict. And this is where the liberal tradition, of which the rule of law is an integral part, parts ways with other social theories. For it is a concern of other social theorists, among them Marx, Engels, Hegel, Saint-Simon, Robert Owen, to articulate alternative modes of social ordering in which the alienating consequences of adversarial, litigation-ridden, winner-takes-all Rule of Law are eliminated…

“An acceptance, therefore, of the Rule of Law as an end in itself, as ‘unqualified human good’ or a necessary principle of social ordering in a good society, is an acceptance of the impossibility of less mediated and more transparent social relations. It is an endorsement of the permanence of alienated existence in society. These are the points of divergence that others have noticed but whose significance they have not explored. Krygier apprehends it but thinks it a defect in Marxism…

“Furthermore, any attempt to place any more than an instrumental value on the Rule of Law is bound to lose sight of the fact that as the principle restrains power-holders from arbitrary exercise of power it, in the same breath, prevents the benevolent exercise of power. Nor does it permit institutions or practices that facilitate alternative and, sometimes, better visions of society.”[7]

According to Taiwo, the rule of law promises citizens the right to do as they wish in their private spheres, so long as they do not harm others or infringe on their spaces. “This leaves individuals essentially divided and they are brought together in their mutual indifference through the agency of law”. The rule of law “entrenches the inevitability of conflict in society”, “elevates the alienation of individuals from each other and from their nature as social beings into an immutable datum – all it does is make sure that each individual enjoys her alienated existence free of state interventions as much as possible”. According to Taiwo, the rule of law “is an affirmation of the permanent dissolution of society into atomized, almost monadic individual ‘loaded guns’”.[8]

The rule of law and Omar Khadr

After the terrorist attacks of September 11, 2001, yesterday is not today. The country victimized in the attacks, the United States of America, has resorted to extraordinary measures including arbitrary detention and unlawful interrogation techniques such as those to which Canadian Omar Khadr has been found to have been subjected. The Canadian government has largely stayed out of Mr. Khadr’s situation. Some have protested Canada’s failure to abide by or resort to what they describe as the rule of law.

Courts up to and including the Supreme Court of Canada have ruled that they have jurisdiction to order the Government of Canada to take positive steps in relation to Mr. Khadr. These include disclosure of documents in the possession of government officials and, most recently, that Canada must present a request to the United States for Mr. Khadr’s repatriation to Canada as soon as practicable.

“Court orders Harper to seek Khadr’s return” blared the lead headline in the May 8, 2009 edition of the Lawyers Weekly. “In a decision unique in the common law world…” began the lead paragraph of the article. According to the journalist, Justice O’Reilly’s ruling was “unusual”, the result of his having ventured deeper into the “legal no man’s land” of deciding whether and when a person’s section 7 Charter interests can oblige the state to take affirmative action after it has declined to do so.

He had gone where no judge before had dared to go.

What was the source of the court’s jurisdiction, if any, to make such an order against the Government of Canada? Was it the rule of law? Or was it section 7 of the Charter – or both? What is the rule of law?

No answer to the last of these questions would be found in the lead editorial of the April 24, 2009 edition of the Globe and Mail even though its headline indicated that, indeed, the rule of law had been the basis of the court’s jurisdiction to require Canada’s Prime Minister to take affirmative action in a matter of foreign policy.

Under the headline “Terrorism and the rule of law”, the editorial writer suggested that Canada had been “deeply wrong in its behaviour toward Omar Khadr, a Canadian terrorist imprisoned at Guantanamo Bay”. According to the writer, three rulings from senior courts in this country had established wrongful conduct on the part of Canada’s government.

The editorial writer praised Justice O’Reilly’s ruling that Canada must repatriate Mr. Khadr.

As to the government, it could appeal the Federal Court ruling

but the editorial writer did not like the government’s chances of success:

“It should be clear by now that the courts are

unsympathetic. The Charter of Rights and Freedoms’ reach beyond Canada’s borders is expanding by leaps and bounds as a result of precedents set in the Khadr case.”

The writer continued:

“Foreign policy is, and should be, the prerogative of the government but the courts (including the Supreme Court) have been so appalled that they have whittled away at that principle.”

The editorial writer did not explain just how the courts, even when unsympathetic or appalled, have jurisdiction to order the Canadian government to do anything in relation to a matter of foreign policy. Nor were readers informed as to the basis upon which the courts have the power to “whittle away” or otherwise diminish the traditional prerogative of the executive branch of government in relation to a matter of foreign policy.

The Globe and Mail headline suggests that the courts’ power in this regard derives from the rule of law. But the editorial writer did not elaborate on what The Globe and Mail meant by the rule of law. Nor did the author explain how the rule of law apparently empowered an unelected judge to order the Canadian government to take steps on behalf of an accused terrorist in relation to a matter of foreign policy. Nor was it explained on what basis a member of the judiciary has or should have jurisdiction to “whittle away” at a government prerogative.

Of course, in an editorial that is the written equivalent of a “sound bite”, there is little room for analysis. Thus, readers (well, maybe some readers) are left to wonder why, in a democracy such as Canada, one unelected judge has the power to dictate to the duly-elected Canadian government concerning a matter of foreign policy – particularly when the matter of foreign policy concerns an accused terrorist imprisoned by a nation that claims it lost a soldier in battle against this terrorist and considers itself engaged in a war on terrorism.

Who has jurisdiction, or “speaks the law”, in respect of Canadian foreign policy? Has the rule of law conferred jurisdiction on the courts to speak the law even as to foreign policy? Is this why Mr. Justice O’Reilly had jurisdiction to order the democratically-elected Government of Canada to repatriate an accused terrorist in the custody of a nation with which Canada enjoys friendly relations and which perceives itself to have lost a member of its armed forces to this person’s act of terrorism?

If so, many Canadians might wonder if the rule of law should be abolished by the same government whose foreign policy appears to have been thwarted, if only in part, by the courts.

Columnist Greg Weston has no difficulty with such issues. Under the headline “Khadr case appeal sheer stupidity”, Mr. Weston described the Canadian government as “Stephen Harper and his genius team”. This journalist asserted that the Canadian government had been “caught with knuckles in full drag”. As to democracy, the government’s handling of the “Khadr affair” was described by the journalist as more “a sop to the Conservative right wing than about doing the right thing.”

The heroic advocate and the rule of law

Madame Justice Eleanor Cronk wrote in the Spring 2009 edition of The Advocates’ Journal of the need for “the heroic advocate”. Her Honour argued that the heroic advocate must have a “commitment to the rule of law, and the courage to defend it when the need arises”. Before quoting from Robert Bolt’s play A Man For All Seasons, Her Honour wrote that the “unshakable faith” of Bolt’s character, Sir Thomas More, in the rule of law “is the first hallmark of the heroic advocate”.

Author Robert Bolt depicted Sir Thomas More as responding to his family’s entreaty that a betrayer be arrested by More before he could do any harm to him. Rejecting any suggestion that the law should be disregarded when the stakes were high, More let the man leave and then asserted:

“MORE: And go he should if he was the Devil himself until he broke the

law.

“ROPER: So now you’d give the Devil benefit of law.

“MORE: Yes. What would you do? Cut a great road through the law to

get after the Devil?

“ROPER: I’d cut down every law in England to do that.

“MORE: Oh? And when the last law was down – and the Devil turned

round on you – where would you hide, Roper, the laws all being flat? This

country’s planted thick with laws from coast to coast – Man’s laws, not

God’s – and if you cut them down … d’you really think you could stand

upright in the winds that would blow then? Yes, I’d give the Devil benefit

of law, for my own safety’s sake …

“[W]hoever hunts for me, Roper, God or Devil, will find me hiding in the

thickets of the law. And I’ll hide my daughter with me. Not hoist her up

the mainmast of your seagoing principles. They put about too nimbly.”[9]

Madame Justice Cronk suggested that: “Society has a strong need for advocates who represent a defined set of values – who are certain of what they believe, and why, and who are prepared to defend those values in the face of adversity – however great the consequences: in other words, for heroic advocates.”

Madame Justice Cronk proceeded to suggest:

“A Man For All Seasons is set in the 1530’s. Imprisonment without trial and examination under torture – on the rack – were common practice then. So was lengthy detention in the infamous Tower of London, without trial or charge.

“Almost five centuries have passed. Yet, we are again witness in our world to imprisonment without trial, in a place called Guantanamo Bay, interrogation by torture and rendition (the name of Arar comes to mind.)

“We live in an uncertain and insecure time, where we are ‘vulnerable to terrorists, vulnerable to the fear of terrorists’, and vulnerable to those who would ignore or compromise the law in the name of defending against terrorists. In the post-9-11 world, no one would seriously debate the need to preserve our nation’s security. But it is essential that members of our profession, above all others, remember that if we ‘trade freedom for security [we will likely] have neither’.”

Bolt’s crafting of the Sir Thomas More speech is certainly inspirational, as are Her Honour’s sentiments. However, neither the passage nor the article define what exactly is meant by the rule of law or how the principle might impact on community values, Parliamentary sovereignty, or democracy.

Indeed, reading all of the previously-described articles would not help us meaningfully dispute the assertion of Justice Strayer in Singh v. Canada: “Advocates tend to read into the principle of the rule of law anything which supports their particular view of what the law should be.”[10] Olufemi Taiwo would agree with Justice Strayer. He wrote in 1999: “It is very difficult to talk about the ‘rule of law’. There are almost as many conceptions of the rule of law as there are people defending it.”[11]

Community, Parliament and democracy: a contrary argument

Madame Justice Cronk’s article should not be taken out of context. However, reference to the “heroic advocate” upholding “the rule of law” against adversity provides a useful context within which to consider the issues today’s advocates would confront if retained to argue for or against the proposition that a judge has jurisdiction pursuant to the rule of law to order the government to take positive steps when it has decided not to do so in a matter within its jurisdiction.

These advocates might consider, if retained by some “knuckle-dragging, right-wing” voters, if the rule of law includes consideration of the clients’ wish for peace, order and good government and for certainty and predictability in judicial decision-making. The advocate might wonder if the rule of law could be invoked to prevent her clients’ government from enacting legislation or pursuing foreign policy designed to promote collective security, particularly since that is precisely the reason the clients voted for politicians who ran on a law and order platform. The advocate might ultimately argue in court that the rule of law obliged the judge to give due consideration to community values by deferring to the Parliamentarians Canadians must have considered best able to defending them from those who have no respect or regard for the rule of law or the rights of any Canadian.

Does the rule of law mean that the values of these hypothetical Canadians are less worthy of consideration than the values of those who favour civil liberties and personal freedoms to considerations of community and security?

Are the “conservative” members of our country’s electorate not entitled to be heard and considered when they argue that fundamental freedoms are of little value to them if they are afraid to leave their homes and participate in community activities such as working, socializing and travelling in their own country and the country to the south?

The advocate who agreed to take the case of these Canadians might have to be somewhat heroic. She would have to be undaunted by the scorn of Hutchinson and Monaghan’s “powerful elites” whose emphasis on “rights” may be enlightened but contrary to the values and concerns of many electors in this democracy.

Certainly, our hypothetical advocate will have to know what she is talking about when she stands up in court to make submissions. She will determine just what is meant by “the rule of law”. She will come to see that the phrase has many meanings. Descriptions rarely, if ever, are described as exhaustive. Nevertheless, our advocate should ultimately be able to persuade the court that Khadr is no authority for the proposition that the court had jurisdiction pursuant to the rule of law.

Ultimately, the government’s advocate would probably recommend that as a matter jurisprudence the government should appeal. To let Mr. Justice O’Reilly’s decision go unchallenged may be seen as acknowledgment that he had jurisdiction, albeit not pursuant to the rule of law, to order the Government of Canada to repatriate Mr. Khadr when the executive branch of government had decided that it would not do so.

Jurisdiction

“Jurisdiction” has been described as “a general term which itself may be broadly or narrowly construed”.[12] In its narrow sense, the issue is whether the tribunal or court is entitled to enter into the inquiry in question[13] or has “authority to decide.”[14]

Jurisdiction has a “broad” and a “narrow” sense, at least in an administrative law context:

“‘Jurisdiction’ is one of the most elusive concepts in Administrative Law. In its broadest sense ‘jurisdiction’ means the power to do every aspect of an intra vires action. In a narrower sense, however, ‘jurisdiction’ means the power to commence or embark on a particular type of activity. A defect in jurisdiction ‘in the narrow sense’ is thus distinguished from other errors – such as a breach of natural justice, considering irrelevant evidence, or acting for an improper purpose – which take place after the delegate has lawfully started his activity, but which causes him to leave or exceed his jurisdiction….”[15]

An issue of “jurisdiction” may arise in relation to whether or not the court or tribunal is limited to embarking on an enquiry or making an order strictly in relation to the enquiry or may also fashion a permanent or interim remedy.[16] However, in its broadest sense of having the power to do “every aspect” if there is jurisdiction in the first place, having jurisdiction would presumably extend to determining an appropriate remedy so long as the remedy was not outside the court’s jurisdiction.

Even at common law the question of jurisdiction, or power to decide, is not always straightforward. In TeleZone Inc. v. Canada (Attorney General)[17], the issue was whether the Ontario Superior Court of Justice or the Federal Court of Canada had jurisdiction over each of four plaintiffs’ claims. The Canadian government asserted that the Federal Court of Canada had exclusive jurisdiction.

Each plaintiff had commenced a claim in the Superior Court of Justice for damages for false imprisonment, breach of their rights under the Canadian Charter of Rights and Freedoms, breach of contract, tort, and misfeasance in public office. The Crown asserted that the Federal Court had exclusive jurisdiction because an essential element of each plaintiff’s claim involved an attack on the decision of a federal administrative board or tribunal. The Crown argued that each plaintiff had first to seek a prerogative remedy in the Federal Court, which has exclusive jurisdiction to grant prerogative remedies in respect to decisions of federal tribunals.

The Ontario Court of Appeal held that the Superior Court had jurisdiction, noting that none of the plaintiffs were seeking to set aside a decision of a federal board or tribunal but, rather, seeking damages alleged to have resulted from the consequences to them of the decision. As such:

“The proper approach is to determine whether the Superior Court has jurisdiction to adjudicate the plaintiff’s claim. If it does, that ends the matter unless there is legislation, or there is an arbitral agreement that clearly and unequivocally removes that jurisdiction. As a court of general jurisdiction, the Superior Court has jurisdiction over every conceivable claim, unless it is shown that it does not constitute a reasonable cause of action. Hence, jurisdiction lies in the Superior Court and each case unless removed by section 18 of the Federal Courts Act. As I will explain, section 18 does not remove the Superior Court’s jurisdiction. Section 18 deals with remedies, not with jurisdiction…. Section 18 does not give the Federal Court the power to take away the jurisdiction of the Superior Court except for the remedies it emanates. Section 18 does not deal with procedure. It deals with remedies. In none of the cases is a remedy sought that comes within the prerogative writs or extraordinary remedies of section 18. Section 18 does not empower the Federal Court to award damages, which are sought in each of the four cases…

“It is plain on its face that section 18 does not constitute a bar, or a condition precedent, to the jurisdiction of the Superior Court over a claim for damages in contract or in tort against the Crown. Causes of action in contract or tort are distinct from the prerogative writs and extraordinary remedies described in section 18. Shortly put, relief by way of damages is not a form of relief contemplated by section 18.”[18]

The Ontario Court of Appeal defined “jurisdiction” as follows:

“The term jurisdiction has many meanings. In determining jurisdiction, a court may be deciding whether it has power to adjudicate over the person of the defendant or the subject matter of the claim asserted by the plaintiff in its statement of claim. As well, a court may be deciding whether the tribunal has territorial jurisdiction, whether the amount claimed is within the tribunal’s monetary jurisdiction, or whether the person sitting as the tribunal has jurisdiction to determine the plaintiff’s claim.”[19]

Thus, “jurisdiction” is the power of the court to render an enforceable judgment.[20]

There is no partial, inchoate or contingent jurisdiction. Either the court has jurisdiction or it does not.[21]

The Superior Court is a court of general jurisdiction having inherent jurisdiction to adjudicate claims

consisting of virtually any subject matter. It takes clear legislative language to remove jurisdiction.

The Superior Court has broad universal jurisdiction over all matters of substantive law, unless the Legislature divests from this universal jurisdiction by legislation in unequivocal terms. Nothing shall be intended to be out of the jurisdiction of a Superior Court but that which specifically appears to be so – for example, where there is an arbitration clause contained in a contract between the parties or where there is a statutory code that governs, enabling the plaintiff to recover the remedy that he seeks in his claim in another forum.[22] Hence, the Court of Appeal’s need in TeleZone to determine if the remedy sought by the plaintiffs was to set aside a federal board or tribunal decision.

By contrast, nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged.[23] Thus, even the country’s highest court may have its jurisdiction challenged because the Supreme Court of Canada is a statutory court[24] and its jurisdiction is limited to that granted by statute.[25]

In contrast to the Supreme Court of Canada, the Superior Court of Justice, as a court of general jurisdiction, has all the powers necessary to do justice between the parties. Except where provided specifically to the contrary, the Court’s jurisdiction is unlimited and unrestricted in substantive law in civil matters.[26]

Nevertheless, even a court of inherent jurisdiction has no jurisdiction or should decline jurisdiction where its Judgment would be ineffective. For example, in disputes involving rights to land, the general law is: “the courts of any country have no jurisdiction to adjudicate on the right and title to lands not situate in such country… if Canadian courts cannot grant an effective judgment or an enforceable remedy concerning land in a foreign country, they should decline to decide these disputes.”[27]

Thus, the court’s ability to grant an enforceable remedy, including whether or not its Judgment would be “recognized” in another jurisdiction goes to the court’s jurisdiction to make the order. It may be argued, then, that courts have no jurisdiction to make orders or issue judgments that cannot be effective or will not be recognized by those against whom they have been sought. Thus, Canadian courts have not purported to make orders against the United States government, even though the United States Supreme Court has ruled that the detention and treatment of this Canadian is unlawful.

Assessing whether or not a court has jurisdiction is distinct from assessing whether or not the court’s ruling is correct in fact and/or law. In Regina v. Grey[28], Mr. Justice Watt ruled:

“Jurisdictional error is not to be equated with error of law. By jurisdiction is meant the authority to decide a case, to determine the issue, not the nature or correctness, actual or perceived of the determination made… it has often and rightly been said, in a matter within its jurisdiction, a court of limited jurisdiction may construe a statue (other than an enabling statue) or otherwise mis-decide the law as freely, and with as high an immunity from correction, except on appeal, as any other judge or court).”[29]

As such, whether or not Mr. Justice O’Reilly had jurisdiction to order the Canadian government to repatriate Omar Khadr is an issue that is not dependant on whether or not he erred in fact, law or mixed fact and law in ruling that the government must attempt repatriate Omar Khadr. If Mr. Justice O’Reilly had no jurisdiction, pursuant to the rule of law or otherwise, to make an order binding on the Canadian government, it is irrelevant that his reasons for judgment are flawless as to fact and law. His decision is a nullity if he had no jurisdiction to embark on the enquiry, determine the issue or order the remedy that he did.

Jurisdiction and the court’s duty to make a ruling

Accompanying the issue of a court’s jurisdiction is the issue of whether a court might decline to exercise jurisdiction or grant a remedy even though it has jurisdiction.[30]

In the Manitoba Language Rights Reference of 1984, the Supreme Court of Canada was asked by Parliament to rule on the validity of all Manitoba legislation from the time that Manitoba became a province. Manitoba had for over a century enacted legislation only in English. This violated section 23 of the Manitoba Act, 1870.[31] However, to rule that all statutes and regulations of the legislature of Manitoba were invalid because they were not printed and published in both English and French would mean that they were of no legal force and effect. Manitoba would be without law. What then of the “rule of law”?

According to Warren Newman’s 2005 article on the rule of law and parliamentary sovereignty, “various solutions, short of the outright invalidity of the corpus of Manitoba legislation, were put forward by a number of parties and interveners to the reference”.[32]

However, others argued that there can be no compromise of the guarantees contained in the Canadian constitution:

“To shrink from the sanctions of invalidity and interruptivity…would indirectly weaken all constitutional guarantees… for it would suggest to the political authorities that constitutional processes can be violated with impunity – providing that the consequences of judicial redress are made sufficiently far reaching: in other words, that in a large-scale confrontation, the courts must retreat. This rewards, and even encourages, a massive violation of constitutional processes – the more massive the better. By contrast, a judicial demonstration that constitutional processes will be enforced regardless of consequences would be a clear and salutary lesson to all political authorities in Canada; would immensely strengthen the rule of law; and would represent a major triumph of the constitutional system.”[33]

According to Newman, “the Supreme Court rose to the occasion”, ruling that the requirement of bilingual enactment was mandatory and all laws were invalid.

Indeed, as the Supreme Court of Canada described it, it had no choice despite the consequences of a ruling of invalidity:

“The duty of the judiciary is to interpret and to apply the laws of Canada and each of the provinces, and it is our duty to ensure that the constitutional law prevails.”[34]

“Jurisdiction”, and the court’s duty to intervene where there is a constitutional breach, is distinct from “justiciability”. Pursuant to the latter concept, the court may decline to exercize jurisdiction because an issue is too theoretical or speculative, too political in nature or not yet ripe for judicial consideration. As well, issues which take the court beyond its own assessment of its proper role in the constitutional framework of Canada’s democratic form of government or do not permit the court to give an answer that lies within its area of expertise, being the interpretation of law, are not justiciable.[35]

Justiciability was apparently not raised in the Khadr cases despite the political overtones to the issues raised by Mr. Khadr’s counsel.

Legal positivism and natural law

There is an inevitable tension between legal positivism and normative reasoning. This is the same tension between the rulings of “activist” and “conservative” judges, particularly as to whether or not such judges have jurisdiction to review legislation or policy and, if so, the manner and extent of the remedy.

In his recent article concerning what he described as “the Supreme Court’s new positivism”[36], Mark Carter described the Supreme Court of Canada’s past “enthusiasm for the unwritten constitution” and argued that “by giving constitutional status to common law principles, including the rule of law, the court has engaged in a form of adjudication that reflects natural law assumptions.” Carter quoted a public lecture from Chief Justice McLachlin in which she stated that “the contemporary concept of unwritten constitutional principles can be seen as a modern incarnation of the ancient doctrines of natural law.”[37]

Carter described the Supreme Court of Canada’s “reverence for the common law and faith in the idea that long-standing common law rules embody deep-rooted moral principles”. However, whereas the “defining natural law idea” is that there is a necessary connection between law and general principles of morality, “legal positivism maintains that although law often reflects moral principles, there is no necessary connection between law and morality”. As regards the jurisdiction of the courts and the fact that Canada has a written constitution, “a positivist approach insists on applying the (apparently) precise provisions of the constitutional text, notwithstanding arguments of principle which might modify or expand the rights protections that appear to be provided for by the text itself.”

“Legal interpretation is delimited by the text of the constitution, so that the beginning and ending points of constitutional interpretation are the express terms of individual constitutional provisions…the interpretive frames surrounding such terms (are) narrow enough to create a strong presumption against the recourse to normative reasoning.”[38]

By interpreting arguments based on the rule of law as against the written text of the constitution, the Supreme Court of Canada has moved towards a positivist approach to judicial review which places formal limits on substantive review of government activity.

“Legal positivism is deferential to legislative authority. It sees legal validity primarily as a question of the source and form of legislation, rather than its content. A positivist approach allows the Court to place questions about the substantive justice of legislation at the feet of the legislative branch of government, and to avoid criticism for engaging in judicial activism.”[39]

The rule of law: Manitoba Language Reference

Hogg and Zwibel argued in “The Rule of Law / The Rule of Judges”[40] that the Manitoba Language Reference resulted in articulation of the rule of law in two respects:

the principle of constitutionalism – “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 preserve and embodies the more general principle of normative order”.

In accordance with the latter principle, the court suspended its declaration of invalidity of all of Manitoba’s English-only laws for the minimum amount of time required for the province to translate and reenact the laws in both official languages.

Hogg and Zwibel argued that the rule of law was not necessary for the first aspect of the decision because the ruling of invalidity was justified by the Constitution’s express requirement of bilingual enactment. Thus, “no reference to (the unwritten constitutional principle of) constitutionalism was needed”. On the other hand, the authors suggested, “it was surely useful to invoke the rule of law as a support for the rigorous application of the constitutional requirement, instead of finding some way out of the requirement”. Whereas the temporary suspension of the ruling of invalidity could have been justified pursuant to the doctrine of necessity, “the rule of law does seem an apt basis for the temporary preservation of an unconstitutional body of law that would leave disorder in its wake if it were simply allowed to fall.”[41]

Rule of law: Quebec Secession Reference

In the Quebec Secession Reference[42] the Supreme Court of Canada ruled that it had jurisdiction under section 53 of the Supreme Court Act to answer three questions posed by the Governor in Council, including the following: “Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally.”[43]

The court noted that those who argued that Quebec could unilaterally secede from Canada based their case primarily on the principle of democracy. According to the court, however, “democracy means more than simply “majority rule”. Rather, democracy exists in the larger context of other constitutional values, including the rule of law. Thus, a democratic vote could not push aside the principles of federalism and the rule of law”. Quebec would have to negotiate with the provinces remaining in Canada.[44]

What did the court mean by the rule of law? No exhaustive definition was given. Rather, the court described the rule of law as one of “at least” four “fundamental and organizing principles” of the Constitution that constitute “unwritten rules…embraced” in Canada’s Constitution and which are necessary because “problems or situations may arise which are not expressly dealt with by the text of the Constitution”[45]. The rule of law is a principle that “is clearly implicit in the very nature of a Constitution”. It “breathes life” into it. It “assists in the interpretation of the text and the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of our political institutions.” Indeed, the principles of constitutionalism and the rule of law “lie at the root of our system of government” and the rule of law is “a fundamental postulate of our constitutional structure”.[46]

Nevertheless, the question remains: to what do we refer when we invoke the rule, principle or notion of the rule of law. What are its limits? What does “the rule of law” mean? What is its impact on the sovereignty of parliament?

According to the Supreme Court of Canada, the rule of law is:

“A highly textured expression importing many things which are beyond the need of these reasons to explore but conveying, for example, a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority. 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.

“… the rule of law provides that the law is supreme over the acts of both government and private persons. There is, in short, one law for all. Second…the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order… a third aspect of the rule of law is… that the exercise of all public power must find its ultimate source in a legal rule. Put another way, the relationship between the state and the individual must be regulated by law.”[47]

However, the court expressly described the rule of law at its most basic level. What of the other “many things” that are “imported” by the “highly textured expression?

The rule of law: thick and thin

In Democracy and the Rule of Law[48], Professors Allan Hutchinson and Patrick Monahan differentiated between “the thick and the thin” rules of law.

“The ‘thin’ version of the Rule of Law amounts to a constitutional principle of legality. It demands that government be conducted in accordance with established and performable norms; its voice remains silent or, at best, whispered on the issue of substantive policies. Rule must be by law and not discretion. Also, and especially, the law maker itself must be under the law, at least until it changes the law. In this ‘thin’ form, the Rule of Law is targeted against arbitrary government and palm-tree justice. Its critical logo is ‘a government of law and not men’; its operative axioms are the generality of official rules and the faithful adherence by government to those declared standards of conduct.”[49]

According to Newman, the Supreme Court of Canada adopted the “thin” version of the principle of the rule of law in the Quebec Secession Reference.[50]

However, what is the rule of law at other than its “basic level”?

According to Lawrence Solum, author of the Legal Theory Blog, the “ideal of the rule of law” is “deeply embedded in the public political cultures of most modern democratic societies”. Solum argued in one blog he devoted to the rule of law that the Universal Declaration of Human Rights of 1948 declared that “it is essential if man is not to have recourse as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the Rule of Law”.

Solum acknowledged that there are several different conceptions of the meaning of the rule of law and that “the rule of law may not be a single concept at all; rather, it may be more accurate to understand the ideal of the rule of law as a set of ideals connected more by family resemblance than a unifying conceptual structure”.

Solum reviewed A.V. Dicey’s formulation that the rule of law incorporated the supremacy of regular law as opposed to arbitrary power, equality before the law of all persons and classes, including government officials and the incorporation of constitutional law as a binding part of the ordinary law of the land. He contrasted this formulation with that of John Rawls “contemporary elaboration” of the ideal of the rule of law as “the regular, impartial, and in this sense fair” administration of “public rules”. Solum suggested that Rawls offered the following conception of the rule of law:

“The Requirement that Compliance Be Possible. The legal system should reflect the precept that “ought” implies “can”.

The actions which the rules of law require and forbid should be of a kind which men can reasonably be expected to do and to avoid.

Those who enact the laws and issue legal orders should do so in good faith, in the sense that they believe (sub-paragraph) “a” with respect to the laws and orders they promulgate.

A legal system should recognize impossibility of performance as a defence, or at least a mitigating circumstance.

The Requirement of Regularity. The legal system should reflect the precept that similar cases should be treated similarly.

Judges must justify the distinctions they make between persons by reference to the relevant legal rules and principles.

The requirement of consistency should hold for the interpretation of all rules.

The Requirement of Publicity. The legal system should reflect the precept that the laws should be public.

The laws should be known and expressly promulgated.

The meaning of the laws should be clearly defined.

The Requirement of Generality. Statutes and other legal rules should be general in statement and should not be aimed at particular individuals.

The Requirement of Due Process. The legal system should provide fair and orderly procedures for the determination of cases.

A legal system ought to make provision for orderly and public trials and hearings.

A legal system ought to contain rules of evidence that guarantee rational procedures of inquiry.

A legal system ought to provide a process reasonably designed to ascertain the truth.

Judges should be independent and impartial, and no person should judge her own case.

According to Solum, Rawls did not include the notion that the rule of law requires that the government and government officials be subject to the law. Thus, Solum suggested, a sixth aspect of the rule of law might be added to Rawls’ formulation as follows:

The Requirement of Government under Law. Actions by government and government officials should be subject to general and public rules.

Government officials should not be above the law.

The legality of government action should be subject to test by independent courts of law.”[51]

Solum argued that at a minimum the rule of law is beneficial for ensuring “predictability and certainty”.

“When the rule of law is respected, citizens and firms will be able to plan their conduct in conformity with the law. Of course, one can dig deeper and ask why that predictability and certainty are important. Lots of answers can be given to that question as well. One set of answers is purely instrumental. When the law is predictable and certain it can do a better job of guiding conduct. Another set of answers would look to function of law in protecting rights or enhancing individual autonomy. The predictability and certainty of the law creates a sphere of autonomy within which individuals can act without fear of government interference.”[52]

Ultimately, according to Solum, the rule of law serves as a bulwark against tyranny, chaos, and injustice.

Nevertheless, until “the rule of law” is definitely defined as to meaning and scope in law, the principle or notion will be cited in support of whatever principle is being urged by any particular author or interest group. For example, a website called Centre for the Rule of Law includes this assertion in its section entitled “Judicial System”:

“It is necessary, if legal rules are to be meaningful, that judges are committed to applying laws written by others faithfully, and it is fair to ask if nominees to the courts have conducted their professional lives in a manner consistent with an expectation that they would perform the law application task assigned to our judiciary. It is not, however, proper to ask nominees to signal that they would support particular requirements that suit personal policy preferences rather than established legal commands – (this) undermines the rule of law.”[53]

There is no explanation as to what is meant by “faithfully”, and if this means that judges must be positivist in their interpretation of law or if a “faithful” judge might include one who is inclined to a normative approach to interpretation so long as she interprets in good faith.

“Michael Lynk, Professor of Law at the University of Western Ontario, listed 18 ‘qualities’ that define the rule of law in Canada:

The state must uphold and enforce the laws that it enacts;

All are equal before the law;

Courts must be impartial and unbiased, and must also appear to be impartial and unbiased;

There must be a separation of powers between judiciary, political and executive branches of power and each, especially the judiciary, must enjoy independence;

There must be consistent application of the law;

There is no such thing as effective right without a remedy;

Judicial decisions must be accompanied by reasons that are publicized;

The legal profession should be independent of state control;

Any judicial decision-maker must apply natural justice, which is procedural justice and due process ensured by an unbiased court;

Courts should be open to all. There must be unhindered access;

There must be legal protection for the poor;

There must be restraints on the powerful;

Laws are to be enacted through a democratic and transparent process;

Laws should be publicized and available to all;

All actions of the State must be authorized by law;

All actions of the State must be consistent with the Constitution;

Courts should be open and transparent, and

Law and order are recognized as indispensable elements of life.”[54]

Mark Carter argued recently in the Queen’s Law Journal[55] that the Supreme Court’s willingness to invoke the rule of law “has not been matched by an inclination to give the concept much precise content”.[56]

Nevertheless, Hogg and Zwibel suggested in their essay “The Rule of Law / The Rule of Judges”[57] that the rule of law “is a notion that is taken seriously by many scholars as describing a society with an effective legal system that respects individual liberty.”

“The rule of law presupposes that laws will usually be obeyed, that breaches of the law will usually meet with enforcement, that government will be limited in its powers, and that the courts and the legal profession will be independent of government and of powerful private interests…

“An effective legal system depends on a variety of understandings that are not part of the law itself. A culture of obedience to the law is the central requirement. This requires, in turn, effective enforcement mechanisms, limits on government power, independent courts, and an independent legal profession. This culture of obedience to law may be described as a constitutional value, and this is what we mean by the rule of law.”[58]

According to Hogg and Zwibel, “many authors have tried to define the rule of law and to explain its significance, or lack thereof. Their views spread across a wide spectrum. At one pole are those who… argue that the rule of law is lawyers’ rhetoric that means nothing. At the other end of the spectrum are those who argue that the rule of law means almost everything.”[59]

Hogg and Zwibel opt for the middle ground. Their rule of law is a constitutional value that does not have any direct legal effect.

“It is not like a provision of a written constitution, the breach of which will lead to invalidity. Nor is it a rule of positive law directly mandating behaviour. It is a constitutional value, an ideal that influences how our laws are made and administered but has no direct force of its own…(in contrast) the notion that the rule of law requires our laws to respect equality, human dignity, and other good moral values is really just natural law in disguise. The rule of law is not a protection against laws that are bad. For that, we must look to the good judgment of our democratic institutions and to the restraints imposed by the Constitution.”[60]

Thus, it appears that there is no generally agreed-upon restrictive definition of the rule of law when considered in the context of what the rule of law is at other than its “basic level” as enunciated in the Quebec Secession Reference. What then of the certainty and predictability that are attributes of the rule of law as described by Solum? In the Quebec Secession Reference, the Supreme Court of Canada was content to provide no more insight than this: “in the process of Constitutional adjudication, the court may have regard to the unwritten postulates which form the very foundation of the Constitution of Canada.”[61]

In 2005, Professor Dyzenhaus proposed if not a definition, then a model that in a constitutional state committed to government under the rule of law judges have to put in place. This model consists of three elements or “constitutional fundamentals”:

“First, they must be committed to the view that the rule of law has content: law is not a mere instrument of the powerful but, rather, is constituted by values that make government under the rule of law something worth having. Second, judges are entitled to review both legislative and governmental decisions in order to see whether these comply with the values. Third, the onus is on both the legislature and the executive to justify their decisions by reference to these values. A component of the third fundamental is the duty to give reasons, which is the way in which the executive will justify its decisions, so that the individual subject to the decision can know that, among other things, his dignity as an individual, his equal status before the law, has been respected, not only because the official has made the decision free from bias and bad faith but also because the decision has been based on considerations appropriate to the particular statutory regime. The ‘perspective within which a statute is intended to operate,’ as Rand J. put it in Roncarelli, is not constituted only by the statute. As L’Heureux-Dube J. put it in Baker, discretion must be ‘exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter.’”[62]

I am concerned that conferring upon judges such a broad entitlement of review, including whether or not legislation and government decisions comply with “values” and placing an onus on elected officials to “justify” decisions to the courts by reference to such values goes way too far and effectively transfers to the judiciary the final say over government policy. Words such as “values”, “justify”, “dignity as an individual”, and “respected” are vague, equivocal, too easily manipulated, and lacking in predictability. They lack Mark Carter’s “interpretive frames” against recourse to normative reasoning. Indeed, I suggest, the model described by Professor Dyzenhaus is normative reasoning at its highest and most dangerous. Fortunately, the Supreme Court of Canada has, in my opinion, not only declined to entrust judges with such a sweeping entitlement of review but has over time narrowed such scope.

Parliamentary Sovereignty

Courts are not to become involved in government policy. Rather, courts are to be concerned primarily with breach of the written provisions of the Constitution. It is with reference to such breach that the Constitution expressly provides that any law inconsistent with its provisions is of no force or effect.

According to Newman, “the role of the courts is to enforce the law of the Constitution.” A statute that is found ultra vires by the courts is unconstitutional because it has breached the provisions (as opposed to the conventions) of the Constitution. “The fundamental proposition with respect to the role of the courts remains the same: the courts enforce the law of the Constitution.”

“Those parts of the Constitution of Canada which are composed of statutory rules and common law rules are generically referred to as the law of the Constitution. In cases of doubt or dispute, it is the function of the courts to declare what the law is and since the law is sometimes breached, it is generally the function of the courts to ascertain whether it has in fact been breached in specific instances and, if so, to apply such sanctions as are contemplated by the law, whether they are punitive sanctions or civil sanctions such as a declaration of nullity. Thus, when a federal or a provincial statute is found by the courts to be in excess of the legislative competence of the legislature which has enacted it, it is declared null and void and the courts refuse to give effect to it. In this sense, it can be said that the law of the constitution is administered or enforced by the courts.”[63]

Newman argued that the rule of law, although pivotal as a basic value of the Canadian constitutional system, does not operate in the same manner, or with the same direct legal force, as a provision of the Constitution of Canada.

“Whilst the rule of law can be invoked in furtherance of the interpretation and application of constitutional provisions, and can thereby influence – sometimes profoundly – the response as to whether a given statute or regulation is consistent with the terms of the Constitution, the courts should not, in my view, attempt to use the rule of law principle independently to invalidate such legislation. Subsection 52(1) of the Constitution Act, 1982 mandates the courts to strike down any law that is inconsistent with the provisions of the Constitution. The rule of law is a broadly textured constitutional principle, not a specific provision. The expression ‘the rule of law’ is an evocative and convenient way of encapsulating a series of propositions and understandings about the place of law in a stable, civil society; what the Americans eloquently term ‘a government of laws, not of men’ or what the French aptly call ‘un Etat de Droit’. The French version of the preamble to the Canadian Charter of Rights and Freedoms speaks of… literally, the primacy of law; often referred to by jurists…

“Yet it ought to be borne in mind that whilst elements of the notion of the rule of law form part of the common law principles relating to natural justice, the rule of law is not, in and of itself a rule of law… it would be unwise to conflate the principle of the rule of law with a supreme legal law that might be employed to invalidate legislation on the basis that it fails to meet some a priori substantive yardstick or procedural requirement (other than manner and form requirements). Canadian courts ought to remain wary of arguments that would have them expand the scope of the principle of the rule of law to constrain the sovereignty of Parliament and of the provincial legislatures beyond the substantive and procedural requirements already imposed on legislative processes and outcomes by the provisions of the Constitution respecting the division of powers and entrenched protections such as those embodied in the Charter of Rights. When the principles of the rule of law and parliamentary sovereignty are reconciled – as they must be in a society where political institutions are both law-abiding and democratic – it should be clear that by definition, the rule of law must include rule by law.”[64]

Newman quoted Dicey[65] as follows as regards the British tradition that has found its way into the Canadian Constitution:

“Parliament has under the English Constitution the right to make or unmake any law whatever; and further… no person or body is recognized by the law of England as having a right to override or to set aside the legislation of parliament.”

Thus, according to the principle of Parliamentary sovereignty, any act of Parliament or any part of an act of Parliament, which makes a new law, or repeals or modifies an existing law, will be obeyed by the courts. Conversely, there is no person or body of persons who can, under the English Constitution, make rules which override or derogate from an act of Parliament.[66]

There is no legal basis in British law for the theory that judges, as exponents of morality, may overrule acts of Parliament. “The plain truth is that our tribunals uniformly act on the principle that a law alleged to be a bad law is ex hypothesi a law, and therefore entitled to obedience by the courts.”[67]

Thus, English courts do not claim or exercise any power to repeal a statute, whilst acts of Parliament may override and constantly do override the law of the judges.[68]

As noted, the tradition of the sovereignty of Parliament was adapted to the Canadian Constitution. The British North America Act recognized in 1867 that Canada was to have a constitution similar in principle to that of the United Kingdom, and the principle of parliamentary sovereignty was the preeminent foundational principle of the latter’s constitutional framework.[69]

Courts were not concerned about the wisdom of acts of Parliament.

“A court of law has nothing to do with a Canadian act of parliament, lawfully passed, except to give it effect according to its tenor… so far as it is a matter of wisdom or policy, it is for the determination of the parliament… it cannot be too strongly put that with the wisdom or policy of an act, lawfully passed, no court has a word to say.”[70]

Thus, Newman pointed out, with respect to the protection of human rights from statutory infringement in Canada, a majority of judges of the Supreme Court were, as often as not, able to rely upon the division of powers itself to invalidate abusive measures.[71]

With the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of parliamentary supremacy to one of constitutional supremacy. The Constitution binds all governments, both federal and provincial, including the executive branch. They may not transgress its provisions: indeed, their sole claim to exercise lawful authority rests in the powers allocated to them under the Constitution and can come from no other source.[72]

Even then, as Newman suggests, the change was only partial:

“The enactment by the United Kingdom Parliament of the Canada Act 1982 and with it, the Constitution Act 1982 and the Canadian Charter of Rights and Freedoms, further attenuated but did not eliminate the operation of the principle of Parliamentary sovereignty in Canada. As long as the federal Parliament and the provincial legislatures respected both the division of powers under the Constitution Act, 1867 and the basic rights and freedoms guaranteed by the Charter, the courts would continue not to impugn the wisdom or advisability of legislative policy. The late Chief Justice Brian Dickson is often cited for having stated that in 1982 Canada moved from a system of parliamentary supremacy to constitutional supremacy, and certainly, the express declaration and section 52 of the Constitution Act, 1982 that the Constitution of Canada is the ‘supreme law’ of Canada suggests that the terms ‘parliamentary supremacy’ and ‘parliamentary sovereignty’ ought not to be used interchangeably in Canada (as they often are, as we have seen, in the United Kingdom). However, no one should conclude that Dickson C.J. believed that the principle of Parliamentary sovereignty had been abolished in 1982. Indeed, writing for a unanimous Supreme Court of Canada in the Auditor General’s Case in 1989, Dickson emphasized: ‘The grundnorm with which the courts must work in this context is the sovereignty of Parliament.’ In another passage discussing the notion of justiciability and the appropriate role of the courts, and after examining the famous English decision on Parliamentary sovereignty and privilege in British Railways Board v. Picken, Dickson wrote that ‘in the Canadian context, the constitutional role of the judiciary with regard to the validity of laws has been much modified by the federal division of powers as well as the entrenchment of substantive protection of certain constitutional values in the various Constitution Acts, most notably that of 1982’. Outside of Charter of Rights adjudication, however, in the residual area reserved for the principle of parliamentary sovereignty in Canadian constitutional law, it is Parliament and the legislatures, not the courts, that have ultimate constitutional authority to draw the boundaries. It is the prerogative of a sovereign Parliament to make its intention known as to the role the courts are to play in interpreting, applying, and enforcing its statutes. While the courts must determine the meaning of statutory provisions, they do so in the name of seeking out the intention of the sovereign will of Parliament, however purposively, contextually or policy-oriented may be the interpretive methods used to attribute such meaning.”[73]

Thus, section 42(1) of the Interpretation Act provides that federal statutes must ordinarily be interpreted to accord with the doctrine of Parliamentary sovereignty.

Further, if a statute is neither ultra vires nor contrary to the Canadian Charter of Rights and Freedoms, the courts have no jurisdiction to supervise the exercise of legislative power.[74]

The rule of law: further judicial consideration in the Provincial Court Judges Reference

In the Provincial Court Judges Reference[75], the Supreme Court of Canada handed down four appeals concerning the salaries of Provincial Court judges in Prince Edward Island, Alberta and Manitoba. According to the court, an aspect of judicial independence is the “financial security” of judges and the situation was urgent. The Chief Justice felt “compelled to comment on the unprecedented situation… the independence of provincial court judges is now a live legal issue in no fewer than four of the ten provinces of the federation.”[76] The situation was serious: judges’ remuneration was at stake.

The majority judgment of Chief Justice Lamer described the preamble to the Constitution Act, 1867 in glowing terms. Granted, the judgment acknowledged the “supremacy of a definitive written constitution” that promoted “legal certainty and through it the legitimacy of constitutional judicial review”. The judgment also acknowledged that the legal effect of the preamble had never been fully explained and that the preamble has no enacting force and is not a source of positive law – in contrast to the provisions that follow it. Nevertheless, it was held, the preamble can be used to identify the purpose of a statute, as an aid to construing ambiguous statutory language and to “fill out the gaps in the express terms of the Constitutional scheme.” More significantly, the preamble “points to the nature of the legal order that envelops and sustains Canadian society… an actual order of positive laws, an idea that is embraced by the notion of the rule of law… a fundamental principle of the Canadian Constitution.”[77]

However, the definitive written constitution remains supreme. Dissenting in part, Mr. Justice LaForest wrote that the court’s ability to nullify “the laws of the democratically-elected representatives” derived its legitimacy from “a super-legislative source, the text of the Constitution.” The Constitution, a “foundational” series of documents, “expresses the desire of the people to limit the power of the legislatures in certain specified ways”:

“Judicial review, therefore, is politically legitimate only insofar as it involves the interpretation of an authoritative constitutional instrument…while there are inevitable disputes about the manner in which the courts should perform this duty, for example by according more or less deference to legislative decisions, there is general agreement that the task itself is legitimate.

“this legitimacy is imperiled, however, when courts attempt to limit the powers of legislatures without recourse to express textual authority…”[78]

According to Newman, this is as it should be:

“But if Parliament be in the eye of the law a supreme legislature, the essence of representative government is, that the legislature should represent or give effect to the will of the political sovereign, i.e. of the electoral body, or the nation… the conventions of the constitution now consist of customs which (whatever their historical origin) are at the present day maintained for the sake of ensuring the supremacy of the House of Commons, and ultimately, through the elected House of Commons, of the nation.”[79]

Newman described the sovereignty of Canada’s Parliament as “already limited” by the written Constitution’s division of legislative powers between the federal and provincial levels of government “but also by a constitutionally entrenched charter of rights that guarantees procedural and substantive principles of fundamental justice as well as formal and substantive equality before and under the law and the equal protection and benefit of the law.” Newman warned:

“The courts should pause to reflect on their role in constitutional adjudication before expanding the substantive and normative content of the principle of the rule of law beyond its traditional place in the Canadian constitutional system to encompass judgment calls about political decision making that violates neither the distribution of powers nor the Charter.”[80]

Nevertheless, as Mark Carter more recently argued[81], Lamer C.J.C. for the majority held that section 11(d) of the Charter was “not exhaustive of the right to an independent tribunal and that a broader guarantee of judicial independence was provided by the preamble to the Constitution Act, 1867 and its engagement with the “unwritten constitution”. As well, the Chief Justice connected the principle of judicial independence with the rule of law: (A) social goal served by judicial independence is the maintenance of the rule of law, one aspect of which is the constitutional principle that the exercise of all public power must find its ultimate source in a legal rule.”[82]

According to Hogg and Zwibel, the “judicial independence cases” are a challenge to their argument that the rule of law cannot be used, on its own, to strike down legislation or to require the government to take specific action. In fact, the authors argued that the Supreme Court of Canada was wrong to move beyond the explicit guarantee of judicial independence in striking down legislation and in holding that judicial independence was threatened by the laws that were challenged.

“In relying on the rule of law to create positive constitutional obligations, especially when those obligations are to maintain judicial salaries perquisites, the court exposed itself to the most common critique of the rule of law, namely, that it is just a tool used by judges to secure their own powers and privileges.”[83]

Wells v. Newfoundland[84]

The Supreme Court of Canada was called upon to rule on whether a senior civil servant whose employment was terminated by the Crown was entitled to severance pay after the government that employed him eliminated his position. The government had asserted that Wells was not entitled to severance because the termination of his employment was not a matter of contract, as it would be in a private setting, but was “the product of statutory and executive decision-making”. As such, any dispute was to be resolved by resort to administrative law.

Acknowledging that Parliament and the provincial legislatures have the authority to structure the public service as they see fit, the court, per Mr. Justice Major, held that the civil servant was entitled to severance pay because the government had not expressly taken away his right to such – such right flowing from the rule of law.

In using the rule of law as an aid to interpreting contracts to which the Crown is a party, the Supreme Court of Canada nevertheless affirmed the principle of parliamentary sovereignty.

“As the Crown is bound to act according to the rule of law, it must normally respect the principles of natural justice in exercising its legal rights in relation to contracts of employment….

“The appellant Crown asserts that even if it breached the respondent’s contract of employment by eliminating his position, it was entitled to do so as an exercise of its unfettered sovereign power. It is axiomatic, they submit, that the government cannot contract-away its legislative authority…

“At the cost of repetition, there is no question that the Government of Newfoundland had the authority to restructure or eliminate the Board. There is a crucial distinction, however, between the Crown legislatively avoiding a contract, and altogether escaping the legal consequences of doing so. While the legislature may have the extraordinary power of passing a law to specifically deny compensation to an aggrieved individual with whom it has broken an agreement, clear and explicit statutory language would be required to extinguish existing rights previously conferred on that party…

“The respondent’s contractual rights relating to his employment as a Commissioner were acquired under the Public Utilities Act, and its repeal did not, of itself, strip him of those rights… The government was free to pass such a bill and they were equally free to pass a bill which would have explicitly denied the respondent compensation… However, since no such act was passed, the respondent’s basic contractual rights to severance pay remain…

“While the legislature is free to remove the power and responsibility of the office, in doing so it does not strip the respondent of the compensation flowing from the contract unless it specifically so enacts…

“In a nation governed by the rule of law, we assume that the government will honour its obligations unless it explicitly exercises its power not to… It is conceivable that a case might arise where the government cannot accept the decision of a court holding the Crown liable for breach of contract. For example, a court might award damages that were so high as to place an intolerable cost on a desired public policy. The solution to this case is legislation. The Parliament or Legislature has the power to cancel a contract, and this power is not limited by any obligation to pay compensation. Similarly, judicial decisions can be retroactively reversed or modified. The Canadian Charter of Rights does not provide any general protection for private property or any general prohibition on retroactive laws. Through legislation, therefore, the will of the community can be made to prevail over private contract rights. That is the ultimate safeguard of public policy…

“In any event, the use of legislation to strip a specific individual of a legal right to compensation for breach of an employment relationship is a harsh and extraordinary use of government authority which, because it should not be done lightly, requires specific and unambiguous language.”[85]

Thus, the government had not taken away the employee’s rights in contract. But, according to the Supreme Court of Canada, it could have validly done so. So, too, could the legislature have retroactively changed the law in the face of an unsatisfactory court decision. To do so would not offend the Charter and, some “notions” of the rule of law notwithstanding, it is when the Charter is offended that the courts have jurisdiction to intervene.

Hogg and Zwibel argued that “Wells is a rule of law case in that an unwilling government was held to the same law of contract as would apply to any person in the province…

“However, it is clear that the liability of the province would have been eliminated if the legislation had clearly denied compensation to the members of the abolished board. An explicit denial of compensation would, no doubt, have been unjust. But the rule of law does not control the substance of laws. The rule of law is trumped by Parliamentary sovereignty. For protection from unjust laws, we must look not to the rule of law but to the democratic process. In a well-functioning democracy, the unjust law will be a rarity, and sometimes the Charter of Rights will provide a remedy.”[86]

Babcock v. Canada (Attorney General)[87]

The Treasury Board set the salary level for Department of Justice lawyers working in the Toronto Regional Office at higher than the pay level for lawyers working elsewhere. Vancouver staff lawyers sued, claiming that the government’s failure to pay them the same salary breached their employment contracts and a fiduciary duty to them.

During the litigation, the government objected to producing certain documents and delivered a certificate of the Clerk of the Privy Council pursuant to section 39(1) of the Canada Evidence Act on the ground that the documents contained “information constituting confidences of the Queen’s Privy Council for Canada”.

The Supreme Court of Canada, per McLaughlin C.J.C., described the case as raising the issue of when,

if ever, Cabinet confidences must be disclosed in litigation between the government and private citizens. Included in the analysis was whether or not section 39 was outside the power of the government because of the rule of law. In ruling that the documents need not be produced, even though “Cabinet confidentiality” was no longer considered absolute, the Chief Justice reasoned as regards Parliamentary sovereignty that:

“The respondents argue that s. 39 of the Canada Evidence Act is of no force or effect by reason of one or both of the preamble to the Constitution Act, 1867 and s. 96 of the Constitution Act, 1867… “The respondents in this case challenge the constitutionality of s. 39 and argue that the provision is ultra vires Parliament because of the unwritten principles of the Canadian Constitution: the rule of law, the independence of the judiciary, and the separation of powers. Although the unwritten constitutional principles are capable of limiting government actions, I find that they do not do so in this case. “The unwritten principles must be balanced against the principle of parliamentary sovereignty… “Recently, the Federal Court of Appeal considered the constitutional validity of s. 39 of the Canada Evidence Act in Singh, supra. On the basis of a thorough and compelling review of the principle of parliamentary sovereignty in the context of unwritten, constitutional principles, Strayer J.A. held that federal Crown privilege is part of valid federal law over which Parliament had the power to legislate. Strayer J.A. concluded at para. 36: ‘…the rule of law cannot be taken to invalidate a statute which has the effect of allowing representatives of the Crown to identify certain documents as beyond disclosure: that is, the rule of law does not preclude a special law with a special result dealing with a special class of documents which, for long standing reason based on constitutional principles such as responsible government, have been treated differently from private documents in a commercial law suit. “I share the view of the Federal Court of Appeal that s. 39 does not offend the rule of law or the doctrines of separation of powers and the independence of the judiciary. It is well within the power of the legislature to enact laws, even laws which some would consider draconian, as long as it does not fundamentally alter or interfere with the relationship between the courts and the other branches of government.”[88]

Polewsky v. Home Hardware Stores Ltd.[89]

Notwithstanding these cases, one panel of the Divisional Court of Ontario took a broader view of the impact of the rule of law as regards a gap in the Constitutional protection of access to justice, in this case by persons without the financial resources to pay the Small Claims Court fee to set a matter down for trial.

Madame Justice Gillese (as she then was) had dismissed Mr. Polewsky’s motion for a declaration that

the Small Claims Court fees are unconstitutional. The Divisional Court panel of Justices Then, Macdonald and Czutrin disagreed, and ruled that they could intervene on the basis of a constitutional “defect” that arose from the fact that there was no provision in the Small Claims Rules for a waiver or reduction of the fees in cases where the litigant had a meritorious case but without a waiver of the fees could not proceed.

Madame Justice Gillese had based her ruling on the fact that there was no statutory exemption for the indigent and the Charter’s protections are limited to a person’s physical and mental integrity and do not protect civil and economic rights. The Divisional Court agreed, but allowed the appeal to be argued on the expanded considerations of the application of the rule of law and the right at common law of indigent persons to have access to the courts.

The court noted that historically, where an individual was indigent and unable to pay the costs of bringing an action, the individual could proceed in forma pauperis – “in the manner of an indigent who is permitted to disregard filing fees and court costs”. Gillese J. reasoned that the principle did not apply in Ontario because there was no language in the Courts of Justice Act contemplating such proceedings.

Enter the “common law right of access to justice” and the rule of law in this incarnation taken from 90 Chief Justice Dickson in Re B.C.G.E.U.[90] “There cannot be a rule of law without access, otherwise the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice”.

The Divisional Court ruled that this and other comments by Dickson C.J., albeit in the context of the Charter, could be extended to non-Charter situations. Commenting that “the Rule of Law stands independently of the Charter and, at the same time, infuses the Charter or, as Dickson C.J. put it, ‘is the very foundation of the Charter’ ”, the court, per curiam, ruled that the common law constitutional right of access to the courts made it necessary that the legislature, within a reasonable time, amend the Courts of Justice Act, the Rules of the Small Claims Court and the Administration of Justice Act and an Ontario Regulation to allow for a discretionary waiver of fees in appropriate cases:

“The Rule of Law has been described as an unwritten constitutional principle that reflects Canada’s ‘commitment to an orderly and civil society in which all are bound by the enduring rules, principles, and values of our Constitution as the supreme source of law and authority.’…The Court observed that ‘[t]he unwritten principles do not confer on the judiciary a mandate to rewrite the Constitution’s text.’ In that case, the court referred to Eurig Estate, Re, [1998]… where Binnie J. noted that ‘implicit principles can and should be used to expound the Constitution, but they cannot alter the thrust of its explicit text.’ Our analysis of the issues in this appeal and the results that flow from such analysis is not premised on the application of the Charter.

“We agree that the Rule of Law infuses this court’s determination of the issues raised in this appeal. We say that the existence of the Rule of Law combined with what we find to be the common law constitutional right of access to justice compels the enactment of statutory provisions that permit persons to proceed in forma pauperis in the Small Claims Court.[91]

It remains to be seen if this case can stand with the later decision of the Supreme Court of Canada in Christie v. British Columbia.[92] Lawyer Dugald Christie challenged the seven percent tax on legal services imposed by statute in British Columbia. Christie argued that since for all practical purposes he was the only lawyer who was available to his impoverished clientele, a tax on his services effectively denied those persons their fundamental constitutional right of access to justice when they needed legal counsel.

The British Columbia Court of Appeal agreed, but not so the Supreme Court of Canada. The latter court ruled that access to justice is not an absolute right and that the Constitution implied that the provinces had the power to impose at least some conditions on how and when people have a right of access to the courts. “Every limit on access to the courts is not automatically unconstitutional.”[93]

British Columbia v. Imperial Tobacco Canada Ltd.[94]

The court in Polewsky had not been required to overrule legislation that denied access to justice or abolished the principle of in forma pauperis. Therefore, the decision was arguably no departure from the principle of the sovereignty of Parliament. Nevertheless, resort in the case to the rule of law breathing life into a common law, unwritten, constitutional right might have signaled in 2003 the beginning of an expansion of the courts’ jurisdiction based on the rule of law. However, in September 2005, the Supreme Court of Canada ruled on the issue of whether or not the rule of law assisted tobacco manufacturers in their challenge to provincial legislation making them financially accountable for health care costs due to smoking. The sovereignty of Parliament was reaffirmed. Indeed, the Supreme Court of Canada confirmed that in the democracy that is Canada protection from unjust or unfair legislation lies in either the text of the Constitution or the ballot box.

Mark Carter described Imperial Tobacco’s impact on the rule of law as follows:

“Justice Major’s rejection of the manufacturer’s argument that the rule of law principle requires fair civil trials represents a high point in the Supreme Court’s recent use of the text of the Constitution to avoid considering the merits of normative rights-based arguments.”[95]

British Columbia enacted the Recovery Act. The legislation was aimed exclusively at tobacco manufacturers, making them liable to the government of British Columbia for the cost of health care benefits caused or contributed to by a tobacco-related harm. The government was entitled to pursue an action against the manufacturers to recover money spent to treat a particular individual, or on an aggregate basis for the health care expenses of a population of persons. The government was not obliged to identify or prove the cause of the disease or the expenditures made to treat it. As well, the government enjoyed a reverse onus – the legislation directed the court to presume that a manufacturer’s products caused the disease unless the manufacturer proved otherwise.[96]

The manufacturers’ arguments included the submission that the legislation offended the unwritten constitutional principles of judicial independence and the rule of law.

Justice major rejected the argument as, according to Carter, “falling at the extreme substantive or thick end of the spectrum of possible conceptions.”[97] The court would not go beyond a “fairly skeletal version of the rule of law comprised of only three principles”: the supremacy of the law over government and private individuals such that there is no arbitrary power, creation and maintenance of an actual order of positive laws, and regulation by law of the relationship between the State and the individual.[98]

After referring to the court’s description in the Quebec Secession Reference of the rule of law as “embracing three principles”, Major J. concluded:

“So understood, it is difficult to conceive now the rule of law could be used as a basis for invalidating legislation such as the Act based on its content. This is because none of the principles that the rule of law embraces speak directly to the terms of the legislation…

“This does not mean that the rule of law as described by this Court has no normative force. As McLaughlin C.J. stated in Babcock, at para. 54, ‘unwritten constitutional principles’, including the rule of law, ‘are capable of limiting government actions’… but the government actions constrained by the rule of law… is, by definitions, usually that of the executive and judicial branches. Actions of the legislative branch are constrained too, but only in the sense that they must comply with legislated requirements as to manner and form (i.e. The procedures by which legislation is to be enacted, amended and repealed)…

“Nonetheless, considerable debate surrounds the question of what additional principles, if any, the rule of law might embrace, and the extent to which they might mandate the invalidation of legislation based on its content…

“The appellants’ conceptions of the rule of law can fairly be said to fall at one extreme of the spectrum of possible conceptions… They submit that the rule of law requires that legislation (1) be prospective; (2) be general in character; (3) not confer special privileges on the government, except where necessary for effective governance; and (4) ensure a fair civil trial. And they argue that the Act breaches each of these requirements, rendering it invalid…

“…none of these requirements enjoy constitutional protection in Canada…

“…the appellants’ arguments fail to recognize that in a constitutional democracy such as ours, protection from legislation that some might view as unjust or unfair properly lie not in the amorphous underlying principled of our Constitution, but in its text and the ballot box…

“The rule of law is not an invitation to trivialize or supplant the Constitution’s written terms. Nor is it a tool by which to avoid legislative initiatives of which one is not in favour. On the contrary, it requires that courts give effect to the Constitution’s text, and apply, by whatever its terms, legislation that conforms to that text.”[99]

Carter argued that Justice Major’s decision stands for the proposition that the constitutional principles of democracy and constitutionalism operate to restrict the normative force of the rule of law.[100] I suggest that the decision, in fact, cannot be other than a repudiation of any suggestion that at “thicker” version of the rule of law confers jurisdiction on the courts to actions of the legislative branch of government. Why else would Justice Major have employed the disparaging, albeit accurate in my opinion, term “amorphous” to describe the rule of law in the context of the arguments before the court?[101]

Justice Major’s rejection of the fair trial argument by referring to the precise wording of the Constitutional text manifested a positivist approach to the rule of law argument as an unwritten constitutional principle. So, too, did the rejection in Christie of the argument based on the “unwritten constitutional right of access to justice”. Major J. compared the rule of law argument to teh written text of the Constitution and held that the written text negated “the postulate of the general constitutional right to legal assistance”. According to Carter, the Court in Christie emphasized that the specific right to retain and instruct counsel “on arrest or detention” in section 10(b) is restricted to criminal proceedings because “(if) the rule of law implied the right to counsel in relation to all proceedings where rights and obligation are at stake, section 10(b) would be redundant”.[102]

The Omar Khadr Decisions

Omar Khadr is a Canadian citizen. He was born in Canada in 1986. He moved with his family to Pakistan in 1990. Five years later, his father was arrested for alleged involvement in a bombing of the Egyptian embassy in Islamabad. The rest of the family returned to Canada. They moved back to Pakistan in 1996 after the father was released. They came back to Canada in 2001 for some months while the father recuperated from an injury caused by a landmine. The family moved to Afghanistan in July 2001.

In terrorist attacks in New York on September 11, 2001, three thousand people were killed by the activities of a terrorist group called Al-Qaeda. Thereafter, Omar Khadr and his brothers attended training camps associated with this terrorist organization.

Omar Khadr was arrested in Afghanistan by the United States military one year later. He was 15 years old. Although the events are disputed, it is known that Omar Khadr was present at a gun battle during which a United States soldier was killed by a grenade. Mr. Khadr is alleged to have thrown the grenade. He claims that he did not.

He has since been detained by the government of the United States. Since October 28, 2002 he has been detained at the United States Naval Station at Guantanamo Bay, Cuba. He awaits trial on charges of murder, conspiracy and support of terrorism. He was charged in November 2005.

Mr. Khadr has filed affidavit evidence that he has been mistreated while in custody, including being deprived of sleep. Canadian officials, who in 2003 told Mr. Khadr they could do nothing to help him, became aware of this treatment in the spring of 2004 when Mr. Khadr was 17. They proceeded to interrogate him until the court issued an injunction against this. Mr. Khadr has also been given no special status as a minor, in contravention of international law, and he had virtually no communication with anyone outside of Guantanamo until November 2004, when he met with legal counsel. From 2005, Canadian officials checked on Mr. Khadr regularly as to his welfare.

In June 2004, the United States Supreme Court ruled illegal orders that had been issued by President George Bush that detainees held at Guantanamo Bay were unlawful combatants. As such, detainees were entitled to bring habeas corpus applications in United States’ federal courts. However, Congress later enacted legislation to remove the courts’ jurisdiction in this regard.

In 2006, the U.S. Supreme Court ruled that the legal regime at Guantanamo Bay violated the Geneva Convention because detainees were denied the right to be tried by regular courts with the usual procedural protections.

Mr. Khadr has launched a number of proceedings in Canada’s Federal Court. In 2006 he sought judicial review of a decision of the Minister of Justice not to comply with a request for disclosure of documents that would assist him in defending the charges he faced.

In July 2008, Prime Minister Stephen Harper indicated that Canada would not request repatriation to Canada, despite Canadian involvement in sleep deprivation. Mr. Justice O’Reilly found that the Prime Minister’s statement reflected “an ongoing policy against requesting Mr. Khadr’s repatriation”. Mr. Justice O’Reilly also found that the government’s policy was based on a concern that Canada be seen to deal forcefully with terrorism. Mr. Khadr’s case reflected “Canada’s commitment to impeding global terrorism”.

The government’s ongoing policy amounted to a “decision” that, according to Mr. Justice O’Reilly, the court could review even though, “generally speaking, decisions about foreign affairs fall naturally and properly to the executive.”[103]

However, the principle that the exercise of Crown prerogative is beyond the scope of judicial review is subject to this exception: when a right guaranteed by the Charter is violated.

In the Supreme Court of Canada’s May 2008 ruling concerning disclosure to Mr. Khadr of government documents[104], the court unanimously found that Canadian officials violated section 7 of the Charter by interviewing Mr. Khadr and then giving summaries of the interviews to U.S. authorities. These actions violated international human rights obligations. Mr. Khadr was granted an order under section 7 of the Charter that the Minister of Justice disclose to him all documents relevant to the charges he faced and in possession of the Crown. The court rejected the submission of the Minister of Justice that the Charter did not apply outside Canada and so did not govern the actions of Canadian officials at Guantanamo Bay because Canadian officials had participated in activities of a foreign state or its agents that are contrary to Canada’s international obligations. Violation of Canada’s international law obligations was established by the U.S. Supreme Court ruling that detainees had been illegally detained. Thus, “the regime providing for the detention and trial of Mr. Khadr at the time of the Canadian interviews constituted a clear violation of fundamental human rights (the right to challenge 104 the legality of detention) protected by international law.”[105]

As to remedy, the court held that “the principles of fundamental justice are informed by Canada’s international human rights obligations. “Where… an individual’s s. 7 right to liberty is engaged by Canada’s participation in a foreign process that is contrary to Canada’s international human rights obligations, s. 7 of the Charter imposes a duty on Canada to provide disclosure to the individual… the refusal of disclosure has put (Canada) in breach of s. 7 of the Charter and entitles Mr. Khadr to a remedy.”[106]

The words “rule of law” are not found in the Supreme Court of Canada’s ruling.

In Mr. Justice O’Reilly’s April 23, 2009 decision, the court acknowledged that under international law

or the common law there is no clear duty to protect citizens.[107] However, Mr. Justice O’Reilly held, the situation is different when a Canadian’s constitutional rights under the Charter are engaged or the special circumstances arising from Mr. Khadr’s youth and the participation by Canadian officials in his

mistreatment at Guantanamo Bay.

Mr. Justice O’Reilly then ruled that he had jurisdiction to grant a remedy to Mr. Khadr because his life, liberty or security was at stake such that section 7 of the Charter required Canadian officials to respect principles of fundamental justice, which were again informed by Canada’s international obligations.[108]

The court ordered the government to request Mr. Khadr’s repatriation because no other remedy “would appear to be capable of mitigating the effect of the Charter violation in issue or accord with the Government’s duty to promote Mr. Khadr’s physical, psychological and social rehabilitation and reintegration.”[109] Further, the government proposed no alternate remedy.

The government challenged the court’s jurisdiction to order it to take positive steps, which amounted to the court becoming involved in the exercise of prerogative powers relating to Canada’s foreign relations with the United States. Mr. Justice O’Reilly acknowledged that it is only in exceptional circumstances that a court can order a government to take positive steps and that courts must generally leave matters of foreign relations to government. However, the government introduced little evidence in support of its position. “While I accept that the Court should give particular weight to Governmental decisions affecting foreign relations, there is little evidence before me to be weighed.”[110]

The words “rule of law” appear nowhere in Mr. Justice O’Reilly’s decision. To the contrary, a specific Charter breach (section 7) was ruled to be the basis of the court’s jurisdiction to intervene in a matter of foreign policy normally reserved to the executive branch of the Government of Canada.

This is consistent with Mark Carter’s analysis:

“Some constitutional provisions are more open to interpretation than others. With respect to those that are less open to interpretation, the court is absolved of its obligation to have ‘recourse to normative reasoning,’ as it must do in the face of more open-textured language… “The constitutional language that sets out some other rights guarantees is more open-textured. This reverses the presumption about normative reasoning and compels judges to engage in a kind of natural law, principle-embracing enterprise. At the outset of the legal rights part of the Charter, (ss. 7-14), section 7 offers a wide scope for interpretation… the three threshold rights in this section – life, liberty and security of the person – can bear a range of meanings, and nothing anywhere else in the legal rights part of the Charter, or perhaps anywhere in the Constitution, offers as wide an interpretative frame as ‘fundamental justice’.”[111]

Conclusion

Mark Carter argued that the reasoning of the Supreme Court of Canada in Imperial Tobacco and Christie was “strategic”.[112] The implication is that tobacco manufacturers were treated differently than provincial court judges even though “the tobacco manufacturers might have assumed that what worked for judges would work for other applicants as well”.[113]

If Carter’s suggestion is correct, he must mean “strategic” other than in the sense of “disingenuous”. To suggest that a court ruled differently because of the identity of a party is to accuse the court of bias. Even the appearance of such process of analysis brings the administration of justice into disrepute because even tobacco manufacturers are entitled to the same treatment at law as are judges.

The ruling as to judges’ remuneration renders judges vulnerable to Professor Willis’ criticism in another context that “such judges invoke their preferred maxims of statutory interpretation ‘not as a means of discovering an unexpressed intent but as a means of controlling an expressed intent of which they happen to disapprove’, thereby seeking to create a Pseudo Bill of Rights”.[114]

Hopefully, the Supreme Court of Canada’s evolving consideration of the scope of judicial review is not “strategic” in any sense, but is, rather, affirmation that the rule of law confers no jurisdiction on courts to diminish or intrude upon Parliamentary sovereignty or the executive’s primacy in matters of policy. As Carter put it in concluding his article: “the Court’s new positivism is consistent with a limited but important attitude of deference on the part of the Court to the branches of government with greater democratic legitimacy.”[115]

Sir Thomas More put his faith in the rule of law. But he lost his life after a trial that resulted in his conviction on the evidence of a perjurer; the same perjurer who prompted him to make his rule of law speech urging that even the devil be given the benefit of the law so that all citizens are protected by the law.

Sir Thomas More was not protected by the rule of law as he understood the term. The “devil” to which he referred took his life without any regard for the rule of law.

Was Sir Thomas More a hero because he trusted resolutely in the rule of law to save his life? Was he a hero because he refused to subvert the law to save his life? Perhaps. However, he was far more heroic, in my opinion, because he could have saved his life by swearing a false oath and refused to do so. He remained true to what he believed, even at the cost of his own life.

I suggest that the truly heroic person is she or he who remains true to his or her beliefs even when they are unpopular. The truly heroic advocate is she or he who thoroughly researches the facts and law and then marshals the evidence and the jurisprudence in the effort to persuade.

The problem with looking to Sir Thomas More as regards the rule of law is that the devil won. Perhaps More and his countryman would have been better served had the law been enacted and applied such that the devil would never have been in a position to harm them.

The difficulty is that the “devil” in the More speech changes identity. At first a wrongdoer who is protected from unlawful arrest by More, the “devil” morphs into a tyrannical government that will abuse power if not constrained by law.

How relevant today is this admittedly inspirational speech? How relevant is an appeal to jurisdiction based on whatever the court decides is the “rule of law’ when the May 6, 2009 edition of the Globe and Mail includes an article about a guilty plea in relation to a group’s “homegrown terrorism” plot to build and detonate bombs in Toronto?

The rule of law is an aid to interpretation and perhaps a “gap” filler, but it confers no jurisdiction on the courts to bind or hinder the government’s right to make and enforce policy, including policies that have as their objective combating terrorism and other threats, such as crime, to our collective and community security.

I agree with Professor Dyzenhaus’ assertion that we must all understand that the legal accountability of government is not “to an empty form but something quite substantive.”[116] However, the question is one of degree and ultimately of beliefs and values.

As to beliefs, I believe that most Canadians consider Parliament and the Cabinet, rather than the courts, best-equipped to maintain the rule of law by enhancing the security, order and stability that ultimately promote freedom by protecting us from Sir Thomas More’s devil in that devil’s various incarnations.