Sunday, August 23, 2009

A Few Important Words on the Rule of Law

In this blog series, looking behind the contempt of court finding against a Children's Services Director, I have mentioned the concept of the rule of law a number of times. The finding of contempt of court in the case under discussion involves invoking the role of the rule of law and the duty of the state to obey the law.

We don't teach this stuff in school much any more. The concept has to be more than just a cliche in the minds of citizens. So I thought I would spend some of my Sunday and try to explain Rule of Law 101. We all know this innately but here are the main elements.

Rule of Law:
Describes a form of government that holds that no power can be used except within the constraints and in accordance with the law. That concordance goes to process, procedures, principles and practices.

Any citizen (including a minor child) can pursue and achieve redress for a breach of they law that they suffered from the action or inaction of the state or any other citizen. It doesn't matter how powerful or ranking a person is within the state, they are bound by the law just like anyone else. The Foster Mother in the Children's Services contempt case was exercising this legal right in pushing the processes to overrule the Director's decision to remove the child from her home and care.

The law is supreme. That means we need an independent judiciary so the law can be effectively enforced against the state, as in the Children's Services case. The courts have to be able to impose consequence for contempt of court and for other breaches of the law. In the current case the courts imposed jail time for the Director who was found responsible for not obey the outstanding court order. The court also allowed for community service time to be served by the Director personally to avoid prison.

Paradoxes of the Rule of Law:
There is a paradox here because the government/state appoints the independent judges. There are now checks and balances in the judicial review and selection process, including consultation with the Bar and distinguished citizens who make the final appointment recommendations to the government. The usually recommend about three qualified candidates for judicial appointment and the Minister responsible can select one of them or reject them all. Such rejections of all candidates is rare and it merely starts the independent review process all over again. That independent and confidential judicial review and selection process is not perfect but it goes a long way to assure citizens of an independent judiciary.

The other paradox is that the government makes the laws that they are also going to be subject to. They can change them at any time as the legislature and Constitution will allow. If the lawmakers do not like something the law imposes on them, they can change the law. So we citizens have to be very careful who we elect. We have to be on constant vigil to ensure our politicians are serving our best interests and not their own or some "friends" or some special interest group.

The Bill 44 recent changes the Alberta Human Rights Act was serving a special interest group and not the best interests of a secular society as a whole. It also undermines the ability of teachers to provide a quality public education system too. But it is the law and it must be obeyed until political pressure is successful in getting it changed.

Without the rule of law there is a risk of social collapse, corruption, terror and intimidation. A further irony of the rule of law is the state needs to be powerful and forceful enough to subvert those lawless activities also using force and violence. The government must be capable and prepared to revert to the kind of violent extremes needed to overcome other illegal and violent extremes. Some readers will remember Trudeau and the War Measures Act in the FLQ Crisis. This is a perfect example of this paradox.

No body, and nobody is above the law nor can they ignore the law. That includes the lawmakers themselves as our agents and as people in their own right. The rule of law is a fundamental principle of our form of government. It can be subverted over time unless we citizens engage effectively in the politics of our time. Failure, refusals or neglect by citizens to engage actively in their democracy will weaken our rights as citizens to be protected by the state and from the state under the rule of law.

Thus endeth the lesson.


  1. You're absolutely right Ken; it seems that fewer and fewer Canadians have any concept of the Rule of Law, let alone how foundational it is to our democratic nation. Canada is one of the few democratic nations on earth that has a Charter that actually means something, and that the Courts routinely enforce against over zealous government. I despair that not only does the public not understand that the Courts, in so doing, are upholding the Rule of Law, but many of the agents of the state, elected and appointed, seem to lack that understanding as well. At least, if one looks at the number of times that officials at practically every level have criticised the Judiciary for doing what they take a solemn oath to do.

    But aside from the unwarranted attacks on the Judiciary, when you have a Prime Minister, the Right Honourable Stephen Harper, whose government passes a law setting election dates, and then calls an election in clear contravention of that law, it demonstrates to one and all that, at least for some (i.e.: those in power) the Rule of Law is something to be honoured only when it suits their own purpose.

    Having said that, I also have to say that far and away the vast majority of those I have met and worked with in government, elected and appointed, are decent, honourable, incredibly hard-working individuals who devote their lives to making Canada (from our local neighbourhoods to the nation as a whole)the best place it can be in which to live. But I think that sometimes, in their desire to accomplish that, a rare few get caught up in the rationalization that "the ends justify the means". It seems to me that under the Rule of Law, the ends can never justify the means - if the means chosen are unlawful.

    I do remember the FLQ crisis, and do know at least one (Anglo) person who spent 3 weeks in jail in Montreal not being told what he was charged with, and being denied access to counsel, or even an appearance in Court to answer to a charge or charges and speak to why he ought not to be held in jail during the crisis. His crime? Well, he was at the time a card-carrying member of the NDP Party in Quebec; and in fact all such that could be located by the Surete faced the same treatment as him - jailed until the crisis was over, and then released with no charge having been laid or appearance in Court.

    So to my mind, the actions of at least the Police in Quebec, far exceeded anything allowable under the Rule of Law, even in this time of so-called crisis.

    Under the Rule of Law, the "law" is "the means", and thus "the ends" can never justify breaking the law.

  2. Anonymous9:17 pm

    Ken, are you not missing some options open to a citizen should they need to challange bad law ? What about peaceful resistance, civil disobedience, and protest ?

  3. I hope I am not missing options. Peaceful resistance, civil disobedience and protests are often legal tactics that can be used. Some even intentionally break bad laws and so long as they don't harm others and are prepared to suffer the consequences that is fine by me.

    I know that lawyers who think a judge is acting improperly in a cas will challenge the court and risk contempt of court findings. They spend some time in jail as a result but usually get their point across in the court of public opinion.