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Constitution - Rule of Law. Poorkid Investments Inc. v. Ontario (Solicitor General)
In Poorkid Investments Inc. v. Ontario (Solicitor General) (Ont CA, 2023) the Court of Appeal expounds on the 'rule of law', here in a class action alleging 'under-policing' [my term] with respect to indigenous protests near Caledonia, Ontario:The nature of the rule of law
[51] The rule of law is a venerable principle of political philosophy – a complex, multifaceted ideal that informs legislative and judicial processes. It has ancient origins and has been developed in a tradition running through scholars such as Aristotle, Thomas Aquinas, Sir William Blackstone, and A.V. Dicey. The rule of law is the subject of a large and growing body of contemporary academic scholarship: see, for example, Kristen Rundle, Revisiting the Rule of Law (New York: Cambridge University Press, 2022); Frederick Schauer, “Lon Fuller and the Rule of Law” (2020) University of Virginia School of Law Public Law and Legal Theory Paper Series 2020-46; John Tasioulas, “The Rule of Law” in Tasioulas, ed., The Cambridge Companion to the Philosophy of Law (Cambridge: Cambridge University Press, 2019); and Brian Z. Tamanaha, “The History and Elements of the Rule of Law” (2012) Sing. J.L.S. 232.
[52] To say that the rule of law is respected in a legal order is to make a claim about the health of that legal order – that it is functioning in accordance with a range of criteria the concept may be understood as embracing. Lon Fuller famously offered a list of eight rule of law principles he described as the “inner morality of law” in The Morality of Law, rev’d edn. (New Haven: Yale University Press, 1969), at pp. 33-38. According to Fuller, the law should be: 1) general in nature; 2) publicized; 3) prospective in operation; 4) understandable; 5) non-contradictory; 6) possible to comply with; 7) relatively constant; and 8) congruent with its administration. John Finnis offers a similar account in Natural Law and Natural Rights, 2nd ed. (Oxford: Oxford University Press, 2011), at pp. 270-71: “A legal system exemplifies the Rule of Law to the extent … that (i) its rules are prospective, not retroactive, and (ii) are not in any other way impossible to comply with; that (iii) its rules are promulgated, (iv) clear, and (v) coherent one with another; that (vi) its rules are sufficiently stable to allow people to be guided by their knowledge of the content of the rules; that (vii) the making of decrees and orders applicable to relatively limited situations is guided by rules that are promulgated, clear, stable, and relatively general; and that (viii) those people who have authority to make, administer, and apply the rules in an official capacity (a) are accountable for their compliance with rules applicable to their performance and (b) do actually administer the law consistently and in accordance with its tenor.”
[53] Contemporary accounts of the rule of law typically share a number of these commitments but may differ in important respects. This is to be expected: good faith disagreement about the essential nature of the rule of law flourishes in any democratic order that aspires to the ideal: see Jeremy Waldron, “The Rule of Law as an Essentially Contested Concept” (2021) NYU School of Law Public Law and Legal Theory Research Paper Series, Working Paper No. 21-15. The rule of law has always served as a constitutional lodestar for lawmakers – an ideal to be aspired to, rather than a canonical set of rules that is subject to enforcement.
[54] The Supreme Court outlined the elements of the rule of law for adjudication purposes in the Re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721 and the Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217. Those elements are: 1) the supremacy of the law over the acts of government and private persons; 2) the creation and maintenance of an actual order of positive laws that preserves and embodies the more general principle of normative order; and 3) the requirement that the relationship between the state and the individual be regulated by law.
[55] These elements focus on the nature and purpose of the law rather than its substance, and are not independently enforceable in legal proceedings. As Wagner C.J. and Brown J., writing for a majority of the Supreme Court, explained in Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, 462 D.L.R. (4th) 1, at para. 58, to enforce unwritten constitutional principles would trespass on the legislature’s authority to amend the Constitution, raise concerns about the legitimacy of judicial review, and distort the separation of powers. Fundamentally, it would be at odds with the settlement reflected in the text of the Constitution itself. Thus, they stated the conclusion categorically: “unwritten constitutional principles cannot serve as bases for invalidating legislation”: Toronto (City), at para. 63. Nothing could be clearer.
[56] There is nothing new or surprising in this. The Court reached the same conclusion when considering the unwritten principle of the rule of law in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473, at paras. 59-60. Nevertheless, it is clear that the elements of rule of law identified by the Court may be invoked both as an interpretive aid and to help develop necessary structural constitutional doctrines: Toronto (City), at paras. 55-56. The majority in Toronto (City) cites Trial Lawyers as an example of the rule of law informing a purposive interpretation of s. 96 of the Constitution Act, at para. 55.
[57] However, two distinct difficulties attend the use of the rule of law as an interpretive aid in adjudication. The first is the need to respect the scope of the elements of the rule of law identified by the Court. The second is the difficulty of maintaining the distinction between the use of rule of law as an interpretive aid, which is legitimate, and direct enforcement of the rule of law to invalidate legislation, which is not. The application judge’s decision illustrates both difficulties.
“Meaningful access to the court” as described by the application judge is not an element of the rule of law
[58] It seems reasonable that there should be “meaningful access to the court in the sense of ensuring that a litigant’s claim is determined on its merits, including the right to present material evidence”, but the application judge’s “meaningful access” concept is not required by the rule of law on that account, nor does it engage the aspect of the rule of law dealing with physical access to courts set out in B.C.G.E.U. v. British Columbia (Attorney General), 1988 CanLII 3 (SCC), [1988] 2 S.C.R. 214.
[59] The rule of law is not a repository of all things considered desirable in a legal system. None of the elements of the rule of law recognized in Re Manitoba Language Rights and Reference re Secession of Quebec speak directly to the terms of legislation: Imperial Tobacco, at para. 59.
[60] Indeed, it is noteworthy that in Imperial Tobacco the Supreme Court rejected several “fair civil trial” features asserted as protected by the rule of law in upholding the constitutionality of British Columbia legislation that went much further than s. 17 of the CLPA: it authorized actions by the provincial government against tobacco product manufacturers for the recovery of health care expenses incurred by the government, changed evidentiary requirements, permitted the government to establish aggregate claims, reversed the burden of proof in several respects, and operated retrospectively. The legislation changed the general rules of civil litigation considerably, but, as the Supreme Court stated, there is no constitutional right to have one’s civil trial governed by customary rules of civil procedure and evidence: Imperial Tobacco, at para. 76. That conclusion applies with equal force in this case.
The rule of law as an interpretive aid
[61] The written aspects of the Constitution are carefully crafted, reflecting constitutional settlements that courts must respect. Unwritten constitutional principles may provide interpretive guidance for understanding the nature of particular constitutional settlements, but that guidance is ultimately limited by constitutional text and design. Courts cannot rely on unwritten constitutional principles to alter or supplement the text of the Constitution; constitutional text has “primordial” importance and can be changed only by constitutional amendment: Quebec (Attorney General) v. 9147-0732 Québec Inc., 2020 SCC 32, 451 D.L.R. (4th) 367, at para. 11; Toronto (City), at para. 65.
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