The PLEA. The Rule of Law. Freedom What is it? Where does society draw the line? STRANDED! A group is alone on an island. What will they do?

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1 The PLEA Vol. 33 No. 1 The Rule of Law Freedom What is it? Where does society draw the line? PM STRANDED! A group is alone on an island. What will they do? Free Class Sets plea.org

2 The Rule of Law Nobody is above the law in Canada. Why is this? The law applies to everyone. No one is exempt from the law because he or she holds a position of power. This is the basis for the rule of law. It is the belief that it is better to be ruled by laws than to be ruled by leaders who can act any way they like. For example, dictators often exercise absolute power without any guidelines. If the law rules us, leaders cannot use their power any way they like. Political leaders, police, and judges are subject to the same laws as everyone else. The rule of law also requires peaceful and orderly ways to create and to change laws. There must be guidelines that can be understood and used by everyone. This idea about the rule of law is demonstrated in our legal and our political system. Our political system allows us to control how our laws are made through a democratic, parliamentary process. This process gives us an organized way to create and change the law. So important is the rule of law that it is enshrined in the preamble to the Canadian Charter of Rights and Freedoms. Rule of Law and the Roncarelli Affair Roncarelli v. Duplessis is widely considered a landmark case regarding the rule of law in Canada. In 1940 s Quebec, tensions were high between the Roman Catholic majority and Jehovah s Witnesses. Using local peddling bylaws later struck down by the Supreme Court nearly 1,000 Jehovah s Witnesses were arrested in the province for distributing The Watchtower and Awake magazines. Frank Roncarelli, a practising Jehovah s Witness and Montreal restauranteur, posted bail for almost 400 Jehovah s Witnesses who were arrested during this time. Maurice Duplessis, the! Timely Discussion Premier of Quebec, was enraged. As a retaliation, Duplessis saw to it that the liquor licence for Roncarelli s restaurant was revoked and that he would be forever barred from obtaining one. Revoking the licence had the effect of making Roncarelli s restaurant unprofitable, and he was forced to sell the restaurant at a loss. Believing that Duplessis had no right to revoke the licence, Roncarelli sued him for $118,741 in damages. The case eventually reached the Supreme Court of Canada. In a 6-3 decision, the court ruled in favour of Roncarelli. In his judgment, Justice Rand wrote that allowing public officers to act arbitrarily would signalize the beginning of disintegration of the rule of law as a fundamental postulate of our constitutional structure. Conflicting Perspectives While the case of Roncarelli v. Duplessis affirmed the rule of law in Canada, the affair as a whole involved many complex facts and issues. For more perspective on the Roncarelli Affair, check out: CBC Digital Archives - Duplessis: The Roncarelli Affair Law Now - Whatever Happened to... Roncarelli v. Duplessis McGill Law Journal - The Legacy of Roncarelli v. Duplessis documents/55/3/cartier.pdf Consider these facts about Roncarelli v. Duplessis: Roncarelli s liquor licence was revoked in Roncarelli v. Duplessis was heard in three levels of court by a total of fifteen judges. The Supreme Court came to its decision in If we live in a society that accepts the rule of law, will justice always be swift? Should it be? Are there times when it is better not to rush to conclusions? 2 The PLEA Vol 33 No 1

3 set out in the Charter are subject to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Freedom and Law Everyone wants freedom. But is absolute freedom possible? When people live together, everyone needs to live up to certain expectations. Some expectations are informal, such as the unwritten rules that govern a family. Some expectations are formal, such as the written laws that govern a community. Laws and expectations can be seen as restricting the freedom of individuals to do what they want. However, they can also help provide freedom to all individuals. Consider this extreme example that illustrates the complex relationship between rules and freedom. If every person was free to kill others if they so pleased, then nobody would be free to enjoy life, liberty, or security. It is reasons such as this that have led society to generally accept that the most freedom that an individual can enjoy is to be free to do as that person pleases, so long as that person s actions do not impose upon the freedom of another individual. The concept of simultaneous restriction and promotion of freedom is reflected in many everyday laws. As another example, think about the laws and regulations that govern public sanitation. Organized garbage collection and bans on littering dictate acceptable methods for waste disposal. Therefore, these laws restrict the freedom of citizens to do what they want with their garbage. However, a universal framework to minimize pollution also helps free citizens from the burden of many pollution-borne diseases. As well, a public system of garbage disposal gives citizens the freedom to spend their time and energy pursuing other life choices rather than individually seeking out ways to dispose of their garbage. Therefore, these laws can also be seen as contributing to freedom. How do we determine reasonable limits to freedom? In Canada, the Charter of Rights and Freedoms is the law that enshrines many civil and political rights and freedoms. But these rights and freedoms are not absolute. Rights and freedoms! Timely Discussion Eleanor Roosevelt once said: The PLEA Vol 33 No 1 In other words, the government may pass a law that limits rights and freedoms, so long as they can prove that they acted in a reasonable and justified way. Who determines if a law s limits on freedoms are reasonable and justified? If a law s limits on rights and freedoms are questionable, that law can be challenged in court. Because judges are highly-trained experts on the law, it is judges who have the ability to ultimately determine whether or not a law is reasonable and justified under the Charter. This role in interpreting and applying the government s laws is why it is vitally important that judges are independent of the government. Independence allows judges to make impartial decisions based strictly on what the law says. Independence means that judges are not subject to popular trends nor the whim of the government of the day. As the rule of law demonstrates, not even government can be absolutely free to do as it wishes. By having the formal and independent mechanism of courts and judges to determine whether or not the government is respecting the Charter of Rights and Freedoms, everyone s rights are respected and safeguarded. Freedom makes a huge requirement of every human being. With freedom comes responsibility. For the person who is unwilling to grow up, the person who does not want to carry his own weight, this is a frightening prospect. How do you think freedom is associated with responsibility? 3

4 Stemming Mob Rule Our laws are democratic constructs. So what checks and balances prevent mob rule? In our democracy, statutory laws are created by the people through their elected representatives. This includes such important laws as the Charter of Rights and Freedoms, the law that constitutionally enshrines the rights and freedoms of Canadians. However, the rights and freedoms Canadians enjoy are not necessarily permanent. While the rule of law exists, what the law says can be changed. Even constitutional change, though difficult to do, is not impossible. This means that many rights and freedoms protected by the Charter could theoretically be removed by the people, through their elected officials. The Will of the People: Democracy vs. Ochlocracy Throughout history, the expansion of rights and freedoms has rarely been without controversy. This continues to be the case. For example, in June 2013 France s streets filled with protesters opposed to the legalization of same-sex marriage. Some of these protests turned violent. In some countries the government is actively removing the rights and freedoms of citizens. Also in June of 2013 Russia passed a gay propaganda law that according to the New Civil Rights Movement website restricts people from even telling children that gay people exist. These examples serve to illustrate a risk of rule by the will of the people. Although it has been said that in a democracy the majority gets its way only after minorities have their say, sometimes a self-interested will of the majority can override reason, harm minorities, and set back the social advancement of society. So where is the line drawn between democracy, which is rule by the will of the people, and ochlocracy, which is rule by the mob with little regard for reason and rationality? Checks and Balances As discussed on the previous page, Canadian governments must respect the Constitution and the Charter of Rights and Freedoms. When questions arise as to whether or not the government is respecting these laws, the courts may be asked to decide. Because judges have the power to rule on the validity of laws within the context of the Constitution and the Charter, this has led some people to suggest that there is a tyranny of the judiciary. They argue that it is unelected judges, and not elected representatives, who ultimately determine Canada s laws. This is not necessarily true. Even if the Supreme Court rules that a law is contrary to the Charter of Rights and Freedoms, the Federal and Provincial governments have the option of invoking something called the Notwithstanding Clause. The Notwithstanding Clause permits a legislature to temporarily allow a law that is contrary to the Charter to stand. The exception is if the law is not within that legislature s constitutional authority. Thus, the Notwithstanding Clause gives legislatures higher authority than the courts. Because of the importance Canadians place in the rule of law and the Constitution, invoking the Notwithstanding Clause is extremely controversial. This is why it is said that governments use the Notwithstanding Clause at their peril. 4 The PLEA Vol 33 No 1

5 In addition to an independent judiciary, there are other checks on laws. All federal legislation must be passed by both the House of Commons and the Senate of Canada. Sir John A. Macdonald, Canada s first Prime Minister, described the Senate as the chamber of sober second thought, meaning that it would be the place where proposed laws were given a careful, second consideration. Today, only the federal level of government has a Senate, though many provinces once had Senates too. However, those provinces abolished their Senates years ago. A final check on legislation is Royal Assent, the Queen s formal approval. Without Royal Assent, a bill cannot become law. In Canada, Royal Assent is given by the Queen s representatives. In the case of the federal legislation, it is the Governor General. In the case of provincial legislation, it is each province s Lieutenant Governor. Although the check of Royal Assent exists, its refusal is virtually unprecedented. The last instance of a British monarch refusing Royal Assent in the United Kingdom was in The Governor General of Canada has never refused Royal Assent of a bill. The majority gets its way only after minorities have their say. And only once has Royal Assent been refused provincially, in Prince Edward Island in If history serves as a guide, it is highly unlikely that Royal Assent would be refused today. Yet, because Royal Assent could be refused, it could be said that it is the Monarchy that has the ultimate power in Canada s democracy. But with refusal virtually unprecedented, it is difficult to know what would happen if Royal Assent was refused for a Canadian law today. Avoiding Ochlocracy Canada has other safeguards throughout the legislative process, such as legislative committees and multiple readings of laws in the legislature, that help ensure laws are thoroughly reviewed and not simply the result of mob rule. These rational processes, combined with the independent judiciary and the concept of Royal Assent, helps curtail ochlocracy and ensures Canada remains a country of peace, order, and good government.! Timely Discussion Consider the recent debate about the future of Canada s Senate. Canada s Senate is a legislature made up of appointed members. Senators are appointed by the Governor General upon recommendation by the Prime Minister. Both the House of Commons and the Senate can introduce legislation, and all federal legislation must be passed by the House of Commons and the Senate before it can become law. Recent controversies with Canada s Senate have reignited debate on the institution s usefulness and purpose. Criticism has included (but is not limited to): Senators are not elected by the people; some Senators are failed candidates for seats in the House of Commons; a few Senators are allegedly corrupt; and the Senate has refused to pass legislation approved by the democratically-elected members of the House of Commons. With Senate reform a likely election issue, the debate is only going to intensify. Consider each of the following scenarios for the Senate s future: the status quo remains better Senators are appointed Senators are elected the Senate is abolished What are the benefits and drawbacks to each scenario? What do you think is the best option for Canada s future? The PLEA Vol 33 No 1 5

6 Retribution, Restitution, and Restoration Punishment usually exists when laws are broken. What are its roots? Many laws do not just spell out how we are expected to behave. They also spell out consequences when laws are broken. As governments and legal systems have developed across the world, so have beliefs about what constitutes appropriate consequences for breaking the rules. Consider the three following historical origins of law and their relation to consequences. Retribution and Hammurabi s Code Hammurabi ruled Babylon from approximately 1792 to 1750 BC. During his rule he codified, or put into writing, 282 laws governing Babylon. These laws have become known as the Code of Hammurabi. Legal scholar Robert Francis Harper has said that Hammurabi codified laws so the strong might not oppress the weak, that they should give justice to the orphan and widow, and for the righting of wrong. Codified laws helped ensure that the public would know what was expected of them, and judges would have a written reference to determine crimes and required consequences. Earlier codified laws have been found, the oldest being the Code of Ur-Nammu, dating back to 2050 BC in Mesopotamia. What made Hammurabi s code so well-known was that the original tablets, first discovered in 1901, have been well-preserved. Today, one nearly-complete 2.25 metre-high slab of stone with most of Hammurabi s Code is on display at the Louvre in Paris. Hammurabi s laws dealt with a widerange of issues, ranging from kidnapping and theft to divorce and disobedient sons. One feature of Hammurabi s Hammurabi s Code prescribed an eye for an eye, a tooth for a tooth. Code was the concept of retributive justice. Retributive justice is the idea that if a wrong is committed, there should be some form of proportional punishment upon the perpetrator. For example, Hammurabi s Code prescribed an eye for an eye, a tooth for a tooth. Restitution and Mosaic Law Approximately 800 years after Hammurabi, it has been said that God gave Moses laws for the Hebrews. Because these laws were given by a supreme being, it was believed these laws were supreme. As such, people could be confident that all citizens, including kings, would obey them. Mosaic law begins with the Ten Commandments, and includes other significant laws and rules set out in the first five books of the Old Testament. Not only do the Ten Commandments still hold a great deal of importance in modern religions, but they also are reflected in today s laws. For example, Mosaic law prohibited murder and theft. Other Mosaic laws, such as honouring your parents, are no longer in legal code. However, they still hold a great deal of relevance to society. 6 The PLEA Vol 33 No 1

7 These laws were to be taken very seriously, and punishable through means such as stoning. As well, Mosaic law featured the concept of restitution. Restitution means that the offender must repay the victim for goods stolen, damaged or lost, or otherwise make amends for the wrong committed. Restoration and Aboriginal Law The Aboriginal worldview can be linked to a hierarchy based on dependencies. Mother Earth is first since everything and everyone depends on the earth for survival. The plant order is next since the animal world needs plants to survive. After that comes the animal order. Humans, dependent upon all these levels, are the least powerful and least important power in creation. Harmonious interconnections are required between these orders for long-term survival. Traditional Aboriginal laws reflect these ideas. Because each citizen can contribute to the effective and sustainable welfare of the entire community, traditional Aboriginal conflict resolution has been guided by spiritual means nurtured by customs and habits. Sweats, isolation, and the teachings and influences of Elders, parents and grandparents are examples of this. Important to the Aboriginal system of laws are notions of honesty and harmony brought about by forgiveness, restitution, and rehabilitation. These three factors contribute to the restoration of smoothly operating families and communities. Mother Earth is first since everything and everyone depends on the earth for survival. Restorative justice envelops these ideas. Restorative justice recognizes that everything is connected, and a crime disturbs the harmony of these connections. When a crime takes place, its remedy should be determined by the needs of victims, the community, and the offender. This restoration is meant to heal victims and communities, while encouraging offenders to confront the consequences of their action. Such an approach is believed to lead to restoration for all. No Single Answer Retribution, restitution, and restoration are dominant schools of thought about how consequences should be delivered when laws are broken in Canadian society. As can be seen, none of these ideas are mutually exclusive. And because all crimes involve unique circumstances, it is difficult at the outset to prescribe what consequence is most appropriate for each crime. To better understand consequences in Canada s legal system, check out: Purpose and Principles of Sentencing, Section 718 of Canada s Criminal Code acts/c-46/page-402.html Declaration of Principle, Section 3 of Canada s Youth Criminal Justice Act acts/y-1.5/index.html! Timely Discussion When a judge determines the consequences for a crime, the judge takes into account the concepts of denunciation and deterrence. Denunciation has been described as a symbolic, collective statement that the offender s conduct should be punished for encroaching on our society s basic code of values. It is a way to denounce the actions of somebody through their punishment. Deterrence is meant to prevent people from committing crimes in the first place. There are two kinds of deterrence: specific and general. Specific deterrence is intended to prevent the person who committed the offence from committing other offences in the future. General deterrence is intended to stop others from breaking the law. In essence, this is making an example of someone in order to make a broader statement to society. Consider the concepts of retribution, restitution, and restoration. How do their principles fit in with the concept of denunciation? How do they fit in with deterrence? The PLEA Vol 33 No 1 7

8 Activity: Building the Rule of Law Orderly society cannot exist without the rule of law. How would you shape a society? A group of eight people are on an island that is six kilometres long and two kilometres wide. The island is located in a large ocean. This island is not on any map. No plane or ship passes it at regular intervals. A warm water current flows past the island. The highest elevation is a three hundred metre hill at the north end of the island. There is a fresh water spring on the island, plenty of fruit trees, and a population of wild pigs. Two-thirds of the island is covered with plants. The boat that brought you to the island is wrecked and sunk in deep water at least five kilometres away. Nobody knows where you were going or where you are. The last time you touched land was 500 kilometres away. Through a miracle, no one was hurt. You are as well as you are right now. What are you going to do? Do we know that there is no one else here? Why do we need to know if anyone else is on the island? Do we know if we need protection? What do we need and in what order? Who will our leaders be? What should we do to get started? What decisions must be made? How will these decisions be made? What will be done to those who do not obey? How will disagreements be settled? What will happen if we disregard the rules? What things do we have? Lord of the flies the NoveL study! New from PLEA Lord of the Flies - The Novel Study What happens when the rule of law breaks down in a society? PLEA s all-new Lord of the Flies: The Novel Study uses William Golding s novel to help students understand the vital importance of the rule of law. Ideal for Law 30 and ELA B30. Order your copy now at plea.org. plea.org Public Legal Education Association of Saskatchewan plea@plea.org /13 ISSN: Photo Credit: Shutterstock 8 The PLEA Vol 33 No 1