Editor's Note: The series this article is part of was originally submitted as one academic paper. Due to its length we divided it up into several parts which will be posted in installments. Additionally we have not included the original footnotes . We will include the whole original piece with footnotes as an attached document to the last installment of the series for readers who wish to read it in its original form. Read part 2 here, part 3 here, and part 4 here
In informal conversations about Canada’s Charter of Rights and Freedoms, the word “mess” is liable to come up. Its critics might point to the despotic way Prime Minister Trudeau oversaw and forced through its drafting and passage, the somewhat chaotic process of revising its text, or the presence of the notwithstanding clause, which some critics think is at odds with the rest of the document. Conservatives sometimes look back wistfully to when Canada supposedly had Parliamentary sovereignty, and the Supreme Court’s decisions could be overturned by the Judicial Committee of the Privy Council.
This essay will take a different approach. It will propose that, like the American Constitution, the Treaty of Rome, and even the B.N.A. Act, the Charter should be interpreted through its preamble, which is a kind of commentary on the preamble of the B.N.A. Act. The 1867 preamble referred to Canada’s constitution being “similar” (but not identical) “in principles” to that of the United Kingdom, which is based on the principles of the supremacy of Parliament and the rule of law. The 1982 preamble explains that Canada’s similar principles are the supremacy of God and the rule of law. This language gives us a clue that the constitution it envisions most closely resembles the medieval English constitution, where checks and balances abounded and no government body had final sovereignty. Under this system, unjust or unwise laws emanating from either the legislature or the courts have every opportunity of being overturned by another branch (which we will see to be the meaning of “the rule of law”).
Following Joseph de Maistre’s philosophy of constitutional development, this paper will argue that the Charter represents a kind of Hegelian synthesis between British Parliamentary sovereignty and American judicial sovereignty and, on paper, avoids falling into either kind of absolutism. The notwithstanding clause plays a large part in this. Recognizing that the constitutional reality in Canada does not conform to this model, it will conclude by advocating for an increased willingness to invoke section 33, but also for a convention to develop in which it is used primarily to defend religious and philosophical freedom.
The Nature of the Rule of Law
Perhaps surprisingly, to understand the rule of law, we need to understand how an individual person is “constituted” (to use an intentionally evocative word) by looking at a medieval philosophical debate between the Dominicans and Franciscans.
The Franciscans held that will controls the reason, while Dominicans like St. Thomas Aquinas maintained that reason precedes will. This is explained in explicitly political terms: reason rules (or should rule) over a person’s passions, desires, and appetites, and governs their choices and actions. If a person lets passion and desire determine their actions rather than reason, they are acting irrationally, and an insurrection against the reigning intellect has occurred. This is especially true in morality. Behaviour should be governed by conscience, which is not a strong moral feeling but the reason applying moral principles to human actions (hence con-science, “with knowledge”).
Thus, we have Aquinas’ teaching on natural law morality. Natural law is often misunderstood and caricatured, but all it ultimately means is that morality is based on objective principles rooted in human nature which can be ascertained by reason. Although the principles are universal, the practical reason must apply them in specific concrete situations and is capable of making mistakes, just as the principles of mathematics are universal, objective, and accessible to reason, yet one can still make a mistake in applying them when trying to solve a math problem. The point of natural law theory is that to be moral is to be rational. To be reasonable is to be just.
With this as background, consider Aquinas’ definition of positive law: “An ordinance of reason for the common good made by him who has care of the community and promulgated.” In order to be a law, properly speaking, it must be made by the government (“him who has care of the community”), must be publicly known (“promulgated”), and be a rational ordinance with the good of the community as its goal. What this means is that, if a statute does not conform to reason--that is, to the natural law--it is, by definition, not a law. It is not binding on citizens. The shorthand for this is to say that “an unjust law is not a law”.
To put this another way: A society in which a government, or the majority of the population, can make whatever statutes they please is a society driven by will (that is, by the desire or appetite of the rulers) rather than reason. We often call this “arbitrary” or “dictatorial” rule. A society governed by laws is a society where the government cannot do whatever it pleases but must follow rules, and, for some, that is all that “the rule of law” means. Yet, in his posthumously published text on the rule of law, Lord Bingham argued that certain additional criteria, such as justice and respect for human rights, needed to be in place for the rule of law to be present in a society. If these are missing, the rule of law is absent, regardless of how scrupulously official statutes are observed. His idea of the rule of law is effectively a restatement of Aquinas.
This “thick” or “substantive” approach to the rule of law, which was also held by the great English legal commentator William Blackstone, is not necessarily a religious belief. Hugo Grotius, whose theorizing about natural law helped develop international law, is credited with saying that natural law is binding “even if God does not exist” (etsi Deus non daretur). Nevertheless, both Aquinas and Blackstone saw natural law as being the law of God, and tied its authority over positive law to God’s authority over humanity. For them, the rule of law is inseparable from the supremacy of God. Subsequently, natural law theory lends itself to placing a high value on the contribution of religion to society, particularly in the way it criticizes--and thus serves as a correction to--unjust legislation.
Natural law theory is rejected by legal positivists, who favour a “thin” or “proceduralist” account. Despite his devout personal Catholicism, the late Justice Antonin Scalia of the U.S. Supreme Court also subscribed to this approach, and was willing to argue to a group of Dominican priests that St. Thomas Aquinas had erred in saying an unjust law was not a true law. For these thinkers, Aquinas’ definition should be trimmed down to simply “an ordinance of him who has care of the community and promulgated.” It need not be rational or just to be a law.
Legal positivism is a formidable school of thought and we cannot expect to answer it thoroughly here. However, three points should be noted.
One is the problem of whether the concept of the rule of law is even tenable without natural law. The goal of the rule of law, as famously expressed by John Adams (paraphrasing Harrington), is “a government of laws and not of men.” But if laws are merely human creations, would not all law-based societies be “governments of men”? Law can only transcend “men” if it is based in something transcendent.
Secondly, the crimes of the Nazi regime and the justice of the Nuremberg trials rightly haunt any discussion of this topic. A familiar principle of justice states that a person cannot be held legally liable for breaking a law which was not in effect when they did the deed; nullum crimen et nulla poena sine lege. Yet, in Nuremberg, Nazi officials were tried for violating laws that were only drafted by foreign powers after the war was over. There was a serious question of how the defendants could justly be found guilty when they were “just following orders” and obeying German law as it stood when they undertook the offending actions. Different justifications have been proposed, but few of them are comforting or satisfying, least of all Justice Scalia’s suggestion that the trials were justified because the Allies won the war--effectively an endorsement of might-makes-right. If legal positivism is true, however desirable the Nuremberg trials were, it is hard not to see them as fundamentally unjust.
In the documentary The Accountant of Auschwitz (1:02:48-1:03:04), Alan Dershowitz gives what seems like the most honest justification of the Nuremberg trials in commenting on the legal culpability of Oskar Gröning:
“He was following orders, but he had to know at some level of consciousness that it can’t be legal to murder infants, babies, the elderly, to murder people who are his age now. He had to know that that was not only wrong, but, in some ultimate sense, illegal.” (emphasis added)
“In some ultimate sense illegal” is another way of saying a positive law that violates natural (“ultimate”) law is not a true law. The Nuremberg trials were justified because natural law was binding on German people when the Nazi atrocities were occurring.
Finally, whatever the merits of legal positivism may be, the fact is that Canada was not founded on principles recognizing a “thin” idea of the rule of law. French Canadians were steeped in manualist neo-Thomism and natural law theory, and English Canadian legal theory was steeped in Blackstone and his natural law philosophy. The “rule of law”, for the early Canadians, would have been interpreted in the light of “the supremacy of God”.
In order not to make a lie out of the Charter’s preamble, we will interpret the Canadian constitution using natural law assumptions, since those are the ones which are implicitly but authoritatively invoked. Any “law” not rational and ordered towards the common good does not “rule”. This applies to judicially-created law just as much as it does to legislative statute.