Safeguarding the rule of law

The rule of law is a foundational principle of the Canadian state. It means that all government officials — from legislators, to administrators, to judges — are subject, and subordinate, to the law. At the heart of this concept is the principle of “constitutional ism ”— the notion that all power, including the power to amend the Constitution, is derived from, and limited by, the Constitution.

A number of recent Supreme Court of Canada decisions call into question he court’s commitment to these basic tenets. Whether the issue is the right to strike, access to justice or physicianassisted suicide, the court’ s decisions appear to be increasingly results- oriented, apparently driven by a desire to grant “benediction” to judicially invented constitutional rights, rather than to apply the law. With greater regularity, the court’s reasoning is becoming unencumbered by the text, past precedent or the historical and philosophical roots of the Constitution.

These recent trends should be cause for concern for all Canadians, regardless of political affiliation or ideology. If the Constitution is treated as a “living tree,” such that judges are permitted to change its meaning to comply with their own subjective preferences, then no one’s rights and freedoms are secure. Today, the court has read in a right to strike; tomorrow it could read down freedom of expression or the right to equality under the law. The future is anyone’s guess.

The good news is that some prominent voices in the legal establishment are speaking out. During a recent talk at the University of Saskatchewan, Justice Marshall Rothstein, who recently retired from the Supreme Court after serving nine years on the bench, criticized the living tree approach for endangering the legitimate role of Parliament.

More than anything, Justice Rothstein explained, the rule of law must mean that there are limits to judicial discretion.

Justice David Stratas of the Federal Court of Appeal expressed similar sentiments last month at the Canadian Constitution Foundation’s Law & Freedom Conference. In his address, Reflections on the Decline of Legal Doctrine, Justice Stratas bemoaned the court’s tendency toward judicial policy- making. Justice Stratas asked rhetorically whether, in the face of some crisis that leads to the abridgement of civil liberties, we would want the judge deciding the constitutionality of the government’s actions “based on fundamental principles, consistently applied over decades,” or simply “her or his own worldview?”

While we certainly applaud justices Roth stein and Stratas, the problem they seek to address runs far deeper than the Supreme Court. It is, at its core, an edu- cational phenomenon that has its roots in Canadian law schools. Across the country, law students are consistently presented with a single, unchallenged narrative about the meaning of our Constitution and the proper role of the courts. What is more, the traditional core curriculum is slowly being supplanted by courses that promote a particular social policy agenda. These highly politicized seminars have become pervasive and are threatening to undermine the very reason law schools exist: to teach students the law and encourage critical thinking.

It is for this reason that we have recently created the Runnymede Society, a lawschool-based group that specializes in holding provocative and enlightening debates and educational symposiums focused on the rule of law. “Runnymede” refers to a water- meadow in England where King John is said to have sealed the Magna Carta in 1215. This “Great Charter” eventually led to the English Bill of Rights of 1689 and ultimately laid the foundations for Canada’s Constitution, including the Charter of Rights and Freedoms. In keeping with this tradition, the

Runnymede Society will seek to promote a greater diversity of discourse on campus, add rigour to legal debates and foster a better understanding of Canada’s common law heritage and the central importance of constitutionalism and the rule of law.

The Runnymede Society is a joint project of Canadian Constitution Foundation, a registered charity dedicated to defending the constitutional freedoms of Canadians, and Advocates for the Rule of Law, a legal think tank. It is entirely non- partisan and our members hold diverse and independent political views. What unites us is a shared belief in freedom and the rule of law.

If these ideas resonate — or rankle — then you can look forward to the Runnymede Society coming soon to a law school campus near you.

RECENT COURT DECISIONS SHOULD BE CAUSE FOR CONCERN FOR ALL CANADIANS, REGARDLESS OF POLITICAL AFFILIATION OR IDEOLOGY.