The rule of law: Two notable supreme court decisions to celebrate.

Author:Normey, Rob

The concept of the rule of law and the need to strictly comply with it is often presented with a flourish in legal and political debates. Canadians know that the rule of law is manifestly a good thing. We might, though, have some difficulty pinning it down. Surely, the growing recognition that the rule of law is a cornerstone of our liberal democracy and part of our proud heritage is something to celebrate on our nation's 150th birthday. It is worth revisiting two decisions of the Supreme Court that explored hitherto hidden parameters of the rule of law, after a brief overview of how it was brought into Canadian law initially.

The rule of law comes to us as a defining feature of the English common law which Canada inherited in our first Constitution, the British North America Act. That Act, now renamed The Constitution Act, 1867, affirms that the nation is a union of the various provinces, "with a Constitution similar in Principle to that of the United Kingdom." One essential aspect of the U.K.'s Constitution that we inherited is the rule of law. This can best be characterized as an underlying constitutional principle and a fundamental aspect of both our legal system and our democratic form of governance. It requires that government be conducted according to law and makes all government officials, including the Prime Minister and other elected politicians, answerable for their acts in the ordinary courts. As an early writer on English law, also a judge, Henry of Bracton declared in 1250: "The King himself however ought not to be under man, but under God and under the law, for the law makes him King." A later scholar, A.C. Dicey, coined the term in 1885, looking back at Magna Carta and the Bill of Rights of 1689, which affirmed that monarchy was subject to the law. It means "the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power... excludes wide discretionary power on the part of government." He goes on to state that a man may be punished for a breach of the law, but for nothing else. The eminent scholar contrasts a democratic system underpinned by the rule of law with autocratic and arbitrary form of rule--rule by man as opposed to rule under the law.

In 1947 a formidable challenge concerning the rule of law confronted the brilliant constitutional law scholar Frank Scott, a professor at McGill University. He had been approached by A. L. Stein, who needed some innovative legal thinking in order...

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