The Rule of Law

What is the Rule of Law?

Essential constitutional principle that curbs the exercise of arbitrary power

Reference Re: Manitoba Language Rights

The Problem

Manitoba Act, 1870 requires that all acts of the Manitoba legislature be enacted, printed and published in both French and English.

Manitoba Act, 1870 is part of the Constitution of Canada (sec.52)

But: since 1890, laws were enacted in English only, and then translated into French

Result: all unilingual laws of Manitoba (i.e. all laws passed since 1890) are unconstitutional, and hence have no force or effect. (Sec.52)

This is bad.

Really, really bad.

Question: Why is this Bad?

Answer: see section 92, Constitution Act, 1867

*changes to election laws invalid

* changes to composition of Manitoba legislature invalid

* all other laws (since 1890) within provincial jurisdiction are invalid, and will not be enforced by the courts

*consequently a kind of legal vacuum

Question: What can be done?

Answer: The Rule of Law

Rule of Law means two things:

1) Rule of law, not persons: law applies equally to government officials and private citizens

2) creation and maintenance of an actual order of positive laws: expressed preference for law and order rather than "anarchy, warfare and constant strife"

Raz refinement: Rule of Law means:

1) people should be ruled by the law and obey it

2) law should be such that people will be able to be guided by it

Conclusion: absence of law = absence of rule of law

Rule of Law enshrined in Constitution Act, 1982:

"Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:" [section 1 follows]

Problem: Manitoba Government is not above the law; Supreme Court is not above the law.

Therefore: unilingual law passed since 1890 must be declared unconstitutional

*But this would create a legal vacuum in Manitoba

*legal vacuum creates anarchy

* anarchy is the antithesis of rule of law

* courts have a constitutional obligation to uphold the rule of law.

Therefore: To declare laws of Manitoba unconstitutional would be unconstitutional

Solution: Court orders temporary validity of existing laws, until they can be re-enacted in French.

Note: creative interpretation of the constitution.

Is this OK? See Edwards

Edwards et al. v. Attorney General of Canada

Sec.24 Constitution Act, 1867: Governor General is supposed to summon qualified "persons" to the senate. Are women "persons"?

Historically under the common law:

-- women could not vote

-- women could not hold public office

-- women could not be judges

-- women could not be attorneys

-- women could not hold property in their own right (father, husband, son, etc. as guardian)

Women got the vote in Canada in the period 1916-1920

Supreme Court of Canada: women are not "persons" for the purpose of s.24 (unanimous)

Appealed to the Judicial Committee of the Privy Council (UK). Decision overturned, five reasons.

1) the word "person" is ambiguous in ordinary usage and can be used of members of either sex

2) the Constitution Act sometimes used the word "male person" when it specifically wanted to pick out males

3) the Constitution Act sometimes clearly uses the word "person" to identify members of both sexes

4) Interpretation Act states that the male gender should be read so as to include the female gender

5) "The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits" (Lord Sankey)

The difference between a NARROW AND TECHNICAL reading and a LARGE AND LIBERAL reading: Constitution must be capable of adapting to changing circumstances.