Lesson 4: Legal Independence and the Rule of Law

Topic 1: The Rule of Law

While some countries carry out their laws by intimidating or bullying their citizens (sometimes even arresting and throwing people into prison without a trial) here in Canada we expect our laws to operate and be carried out differently. We expect to be protected by our laws and treated fairly. We follow the rule of law, a principle of justice. This principle means that individuals must recognize and accept that we need laws to regulate society. We all live near other people and must find a way to live together peacefully. Laws exist to help us do this.

The rule of law expresses the principle that all people are equal under the law. No one is above the law, whether he or she is a politician, police officer, corporation or wealthy individual. The courts exist to ensure that everyone is accountable to the law. The role of judges and lawyers is to protect the rights and freedoms of citizens.

The role of judges is to protect the rights and freedoms guaranteed under the Canadian Charter of Rights and Freedoms (Charter).

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

— Canadian Charter of Rights and Freedoms

The Law Society of BC’s Report of the Independence and Self-Governance Committee noted that the rule of law is a fundamental principle underlying Canadian democracy. The preamble of the Charter states that the rule of law is one of the principles upon which Canada was founded. The rule of law was recognized as a fundamental principle, however, even before the existence of the Charter. In Roncarelli vs. Duplessis, for example, the court noted that the rule of law is a “fundamental postulate of our constitutional structure.”

The rule of law is required to provide impartial control of the use of power by the state. It guards against arbitrary governance. To be effective, the rule of law requires not only the submission of all to the law, but also the separation of powers within the state. Because the rule of law is needed to control the powers of the state, there must be a separation among those who make the law, those who interpret and apply it, and those who enforce it.

As has been pointed out in a discussion paper prepared by a past president of the International Bar Association, this separation of powers requires an independent judiciary; an efficient, functioning court system; and a strong, independent and properly qualified legal profession to support it. An independent legal profession is also essential to preserve citizens’ rights and freedoms under the rule of law by guaranteeing them access to independent, skilled, confidential and objective legal advice.

A failure to maintain separation of powers can result in the executive branch of government interfering with the independence of the judiciary and lawyers. This erodes the rule of law and the protections it affords.