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Rule of Law

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Larry Chartrand

on 14 September 2016

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Transcript of Rule of Law

Rule of Law Doctrine
An Unwritten Constitutional Provision of Profound Significance
Government officials as well as private citizens are bound by it
The Rule of Law
Law is Supreme
The relationship between government and the person must be regulated by law
Relationship Between State and Law
Creation and Maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order
Conveys a sense of orderliness and subjection to known legal rules
1. People should be ruled by the law and obey it.
2. That the law should be such that people will be able to be guided by it.
It has both a procedural aspect and a normative aspect (@ 156)
The rule of law principle is expressly recognized in the preamble of the Constitution Act, 1982 and is implicit in the very nature of the Constitution (@ 170)
1. It provides the means to check the illegal exercise of power, and
2. To ensure legal obligations are performed (@ 155, 169)
Manitoba Language Reference
How was the rule of law principle applied in this case?
The court seemed to place a lot weight on the fear that legal chaos would result because of the implications of finding that all positive laws of the province were void
ab initio
.
But how realistic is such fear? Was more value given to "law" than was justified?
To what extent do Canadians have an "attitude of legality" ?
The application of law in spirit as well as in letter
Imperial Tobacco
As the Manitoba Language Reference case shows, the rule of law principle can sustain the validity of legislation to ensure that the province is not without an "effective legal system" (@ 171)
but can the rule of law doctrine void legislation?
(@ 162)
This was an issue in .... (@ 175)
Public powers must find there source in a legal rule and ultimately flow from the Constitution
Canadian Wheat Board
the defendant Imperial Tobacco was arguing for a broad definition of the normative content of the rule of law principle (@ 175/6) which the court characterized as falling within the extreme end of the spectrum. (See claims made @ para. 63)
In denying the claims of the defendant, what concerns did the court have in opening up the rule of law principle to embrace the claims made by the defendant? (@ para 65, 66)
It would seem that the supremacy of legislative assemblies is indeed well protected.
A "culture of justification" (@ 163)
from that perspective, the public would no doubt see that the unconstitutionality of Manitoban laws were technically in violation of the Const., but the public would not seriously question their substantive rationality and fairness - we must not forget that law is at heart a manifestation of human interaction (regardless of its formal basis).
Roncarelli v. Duplessis
the essence of the principle of law here operating is simply that in the exercise of a statutory power the Governor in Council, like any other person or group of persons, must keep within the law as laid down by Parliament or the Legislature. (@ para. 35)
http://rabble.ca/blogs/bloggers/steven-shrybman/2011/12/canadian-wheat-board-applications-success-judge-issues-judgem
It is well established that those who are granted the power by Parliament to enact subordinate legislation must exercise that power in accordance with the enabling statute. (@ para. 36)
It is well-established that Regulations may neither exceed nor be inconsistent with the statutory provisions under which they are made. If they do, they constitute attempts to legislate by adding to or amending the statute, and will be held to be ultra vires.
the underlying principle is familiar enough. In determining whether impugned subordinate legislation has been enacted in conformity with the terms of the parent statutory provision, it is essential to ascertain the scope of the mandate conferred by Parliament, having regard to the purpose(s) or objects(s) of the enactment as a whole.
The test of conformity with the Act is not
satisfied merely by showing that the delegate stayed within the literal (and often broad) terminology of the enabling provision when making subordinate legislation. The power-conferring language must be taken to be qualified by the overriding requirement that the subordinate legislation accord with the purposes and objects of the parent enactment read as a whole.
. . . the delegate may not frustrate or evade the Act of Parliament or exercise his discretionary powers arbitrarily or otherwise than in accordance with the purposes or objects of the enactment. The delegate must not only stay within the literal terms of the delegating provision but must respect, as well, restrictions upon his mandate that are implicit in the legislative scheme considered in its entirety. (para. 37)
...
Facts?
How did the court reconcile the existence of a statutory provision that on its surface seems to provide unlimited discretion (@ 181) with the holding that Duplessis abused his authority?
What about the argument of "good faith"? (@ 183)
Good faith defined as acting with a rationale appreciation of the intent of the statute and its purpose and not with an improper intent and for an alien purpose... (@ 183)
Catagas
Although acting arbitrarily outside the purpose and intent of the statute or mandate by an administrative authority that causes undue harm to another is a violation of the rule of law, so too is the opposite. An officer of government cannot single out a person or group for preferential treatment by declaring that a law will not be applied to them.
What happened in Catagas?
Why was the policy of exempting Indians from compliance with the Migratory Birds Convention Act "void and not effect"? What principle did such a policy violate?
How is this discretion of authority distinguishable from prosecutorial discretion? (@ 186)
Daniels v. the Queen
Treaty rights?
Would a similar decision be reached today?
Why or why not?
Although the rule of law is part of the Constitution, so is the principle of democracy (@ 66)
There is no constitutional bar to retroactive legislation no matter how unfair the consequence may be, nor is there a bar to legislation that singles out particular defendants for special treatment.
According to the Supreme Court of
Canada in Imperial Tobacco
(2005) it is clear the rule of law supports three key principles:

The law is supreme over officials of the government as well as private individuals thereby preclusive of arbitrary power.
Requires the creation and maintenance of an actual order of positive laws which preserves and embodies ... normative order.
Requires that the relationship between the state and the individual be regulated and sourced in law (not personal discretion). (@ para. 58)
Whether the rule of law includes a normative dimension (which might result in substantive law enacted by Parliament to be invalid) remains a question of debate.

The law can be extremely unfair, and this unfairness will generally not give rise to unconstitutionality based on the rule of law (with the possible exception of a Bill of Attainder)(@ 159) (e.g. Vanguard @ 157). A remedy, supported by the equally important constitutional principle of democracy, exists in the political realm not the judicial realm if any.
The constitutional "rule of law" requires that there be law and that authorities and individuals are to follow the law.

But, actions of the legislative branch are constrained only in the sense that they must comply with legislated requirements as to manner and form. (@ para. 60)
Can the rule of law invalidate legislation based on its substantive content?
J. Major ...
De Facto Doctine:
"The de facto doctrine is a rule or principle of law which, in the first place, justifies the recognition of the authority of governments established and maintained by persons who have usurped the sovereign authority of the State, and asset themselves by force and arms against the lawful government; secondly, which recognizes the existence of, and protects from collateral attack, public or private bodies corporate, which, though irregularly or illegally organized, yet, under colour of law, openly exercises the powers and functions of regularly created bodies; and, thirdly, which imparts validity to the official acts of persons who, under colour of right or authority, hold office under the aforementioned governments or bodies, or exercise lawfully existing offices of whatever nature, in which the public or third persons are interested, where the performance of such official acts is for the benefit of the public or third persons, and not for their own personal advantage....

"Again, the doctrine is necessary to maintain the supremacy of the law and to preserve peace and order in the community at large, since any other rule would lead to such uncertainty and confusion, as to break up the order and quiet of all civil administration. Indeed, if any individual or body of individuals were permitted, at his or their pleasure, to challenge the authority of and refuse obedience to the government of the state and the numerous functionaries through whom it exercises its various powers, or refuse to recognize municipal bodies and their officers, on the ground of irregular existence or defective titles, insubordination and disorder of the worst kind would be encouraged, which might at any time culminate in anarchy."
http://www.duhaime.org/LegalDictionary/D/DeFacto.aspx
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