Our Canadian “Rule of Law”
Defined in Canadian Case Law 1946
RULE OF LAW IN CANADA
by Jane Scharf
Table of Contents
What is Rule of Law
Justice Watson on Rule of Law
Common Law Rights Protected by Constitution
Recent Case Law Affirming Rule of Law
Holding Officials Accountable
The Jury System and Rule of Law
Illegitimate "Bastard Courts"
Criminal Code and Jurisdictional Conflict
Where We Go From Here
1. What is Rule of Law
The Rule of Law represents the foundational principles upon which legitimate legal systems are based. Originally, people held all the power. Laws were created collectively to structure authority and governance. When officials abused this authority, the people reasserted their rights, as seen with the Magna Carta in 1215.
The Magna Carta required the King to submit to the law, including allowing trial by jury and forfeiture of officials' property for violating the law.
2. Justice Watson on Rule of Law
Justice Watson (Alberta Court of Appeal) emphasized that the Rule of Law reflects core constitutional principles: federalism, democracy, rights and freedoms, and equality. He stated:
"The rule of law is not a law of rules or rulers. It’s a value system we believe in."
He highlights the importance of open courts, equality, and foundational moral tenets like the Golden Rule. He affirms that Canada’s constitutional framework verifies and strengthens the Rule of Law.
3. Common Law Rights Protected by Constitution
Reference re Alberta Statutes (1938), [1938] SCR 100
The Supreme Court of Canada struck down Alberta's Accurate News and Information Act, recognizing an "implied bill of rights" protecting free speech. This confirmed that common law rights, such as freedom of expression, are protected within our constitutional democracy.
Case: https://www.canlii.org/en/ca/scc/doc/1938/1938canlii1/1938canlii1.html
4. Recent Case Law Affirming Rule of Law
Alford v. Canada (Attorney General), 2022 ONSC 2911
Constitutional scholar Ryan Alford successfully argued in Ontario Superior Court that Parliament cannot legislate away common law rights like parliamentary privilege.
Decision: https://www.canlii.org/en/on/onsc/doc/2022/2022onsc2911/2022onsc2911.html
Though overturned on appeal, the SCC has agreed to hear the case. This shows the evolving debate over supremacy of common law in Canadian constitutional interpretation.
Reference re Impact Assessment Act, 2023 SCC
The SCC struck down federal legislation restricting Alberta's resource management, affirming provincial jurisdiction and rejecting overreach, despite UN agreements.
Decision: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/8162/index.do
5. Holding Officials Accountable
Magna Carta, Article 61
Barons were granted authority to seize the King’s assets if he violated the charter. This principle underpins modern legal accountability of officials.
R. v. Eldorado Nuclear Ltd., [1983] 2 SCR 551
Crown agents lose immunity when acting outside their statutory purpose. Personal liability attaches to unlawful acts outside state authority.
Case: https://www.canlii.org/en/ca/scc/doc/1983/1983canlii34/1983canlii34.html
Roncarelli v. Duplessis, [1959] SCR 121
Premier Duplessis was held personally liable for unlawfully revoking a liquor license, reaffirming that no official is above the law.
Case: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2751/index.do
Hudson v. Brantford Police Services, 2001 ONCA
Section 25(1) of the Criminal Code protects peace officers only for reasonable mistakes of fact—not law.
Case: https://www.canlii.org/en/on/onca/doc/2001/2001canlii8594/2001canlii8594.html
English Bill of Rights (1689)
States that suspending or executing laws without consent of Parliament is illegal.
Reference: https://www.legislation.gov.uk/aep/WillandMarSess2/1/2/introduction
6. The Jury System and Rule of Law
Magna Carta, Article 29
“No free man shall be... punished except by the lawful judgment of his peers...”
Jury as a Guardian of Liberty
Juries decide facts, assess fairness, and may nullify unjust laws. Canada inherited this safeguard via British common law (Constitution Act, 1867 preamble).
The King v. Conway, 1902 CanLII 95 (NS SC)
Defendant imprisoned for summary theft charge was released via habeas corpus for not being offered a jury.
Case:
Telford v. Secord, [1947] SCR 277
Affirms a jury trial is a “substantial right.”
Case:
https://www.canlii.org/en/ca/scc/doc/1947/1947canlii4/1947canlii4.html
Criminal Code
s. 471: Indictable offenses tried by judge and jury.
s. 473: Consent of AG and accused required to waive jury.
s. 568: AG may override election for judge-alone trial.
7. Illegitimate "Bastard Courts"
Provincial courts established under provincial authority and staffed by provincially appointed judges violate sections 91(27) and 96 of the Constitution Act, 1867.
s. 91(27): Federal jurisdiction over criminal law and procedure.
s. 96: Federal appointment of judges for superior, district, and county courts.
Without federal authority or appointment, provincial courts lack lawful jurisdiction to adjudicate matters involving common law rights, codified rights, or jury trials.
8. Criminal Code and Jurisdictional Conflict
Section 553 of the Criminal Code gives provincial court judges jurisdiction over various indictable offenses. However, this appears to conflict with the Constitution’s requirement that criminal matters fall under federal authority and federally appointed judges.
This raises a serious constitutional question regarding the legality of provincial court proceedings for criminal matters.
9. Where We Go From Here
Demand a constitutionally valid court with a jury for all claims made against you.
Challenge jurisdiction of provincial (“bastard”) courts.
Require proof of constitutional jurisdiction before allowing proceedings.
If jurisdiction is absent, demand nullification of ruling.
Personally sue public officials who act beyond lawful authority.