The Rule of Law All the Way Up
(2019) 92 Supreme Court Law Review (2d) 79
28 Pages Posted: 18 Sep 2019
Date Written: September 7, 2019
Canadian constitutional law is seldom criticised for its failure to live up to the ideal of the Rule of Law. This article argues that it should be so criticised. A number of widely accepted or uncontroversial Rule of Law requirements ― the need for general, stable, and prospective rules, the congruence between the "in the books" and the law "in action", and the availability of impartial, independent courts to adjudicate legal disputes ― are compromised by a number of ideas already accepted or increasingly advocated by Canadian lawyers, judges, and officials.
This article describes four of these ideas, to which it refers as "politicization techniques", because they transform what purports to be "the supreme law of Canada" into a set of malleable political commitments. These are, first, deference to legislatures or the application of a "margin of appreciation" and the "presumption of constitutionality" in constitutional adjudication; second, constitutional "dialogue" in which courts not merely defer, but actively give way to legislative decisions; the substitution of political for legal judgment through the application of the "notwithstanding clause" of the Canadian Charter of Rights and Freedoms; and the rewriting of constitutional law by the courts under the banner of "living tree" constitutional interpretation.
The article concludes with an appeal to those who profess commitment to the Rule of Law in relation to the Constitution not to embrace or endorse the means by which it is subverted.
Keywords: Canada, Rule of Law, constitutional interpretation, constitutional dialogue, notwithstanding clause, deference
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