The Quebec bar and the Quebec notaries’ association are currently leading a public awareness campaign called “Protégeons notre État de droit” (protecting our rule of law). The goal? To inform the public about how the rule of law protects their freedom every day and to remind everyone that “no one is above the law” in Canada. But what exactly is the rule of law?
According to the website of the school of applied politics at the Université de Sherbrooke, a state governed by the rule of law is not necessarily democratic – but every democratic state has to be governed by the rule of law.
Two key elements define the rule of law: the separation of powers and the supremacy of law. Together, they protect both individual and collective freedoms and prevent abuses of power against citizens.
In a state governed by the rule of law, there are three branches of government: legislative, executive and judicial. The legislative branch, such as the Parliament, passes laws. The executive branch, including the government, implements and applies laws. Finally, the judicial branch, composed of courts and tribunals, interprets laws and makes sure they’re legal, notably by verifying they respect the Constitution and were passed properly.
A cornerstone of the rule of law is the independence of the courts and tribunals from political influence. And according to the principle of the supremacy of law, no one is above the law, not even judges and politicians.
While everyone is equal before the law, the legal norms on which the rule of law is built are structured in a hierarchy. At the top is the Constitution of Canada, followed by international agreements, then laws, and finally regulations. Courts must take this hierarchy into account when making decisions.
Right to vote, freedom of expression, right to challenge decisions
The rule of law allows citizens to express disagreement and to challenge their government’s decisions.
Freedom of expression allows to people to express disagreement. This freedom is protected by both the Canadian Charter of Rights and Freedoms and Quebec’s Charter of Human Rights and Freedoms. Publishing opinion pieces, speaking to the media, or posting on social media are all ways to express this disagreement, explains Guillaume Rousseau, professor and director of the graduate applied state law and policy programs at the Faculty of Law of the Université de Sherbrooke.
Voting is another way for the public to contest or even change a government, adds Rousseau. People can also challenge political decisions, laws, and regulations before the courts, either individually or collectively (for example, through an association).
These checks and balances are essential to democracy, Rousseau notes, but a healthy balance must be maintained. The population must have the power to vote for a government that can put certain public policies in action. “Too many checks and not enough power is no better than too much power and not enough checks.”
Popular sovereignty: another pillar of democracy
In a democracy, there has to be a balance between the rule of law and popular sovereignty. According to popular sovereignty, power belongs to the people, and every person holds a share of this power. This power is expressed notably through the right to vote, and, in some cases, through referendums, which allow citizens to speak up on proposed laws or regulations. For example, a referendum can take place following a municipal public consultation assembly.
“These principles occasionally clash when one appears to dominate the other,” Rousseau notes. For example, he states, some people argue that courts have become too powerful since the adoption of the Canadian and Quebec charters of rights and freedoms. In their view, this weakens popular sovereignty, because elected members of the executive and legislative branches have less room to act. Others believe the opposite – that the executive and legislative branches still hold more power than the judicial branch.
Despite these tensions, the rule of law and popular sovereignty complement one another, reminds Rousseau. “For popular sovereignty to be expressed, like during elections and referendums, the Election Act or the Referendum Act must be respected.” And if they aren’t, courts must be able to enforce them. “We need the rule of law to allow popular sovereignty to operate,” Rousseau explains.
Checks and safeguards in the justice system
Just as people can challenge government decisions, they can also contest judicial decisions, for example by filing an appeal. They can also file complaints, such as to the judicial council of Quebec.
Rousseau points to the case of Nicole Duval Hesler, former Chief Justice of the Court of Appeal of Quebec, who faced a complaint in 2019 for comments made regarding the Act respecting the laicity of the State. She suggested that supporters of the law suffered from “visual allergies” to religious symbols.
The Canadian Judicial Council ultimately did not move forward with the complaint because the Chief Justice retired in the meantime. Rousseau notes that it would have been helpful to have an inquiry and decision in this particular case. Still, this situation demonstrates that a process exists, and that any member of the public, not only legal professionals, can file a complaint to assert their rights.
The interview with Guillaume Rousseau was conducted in French. All quotes in this text have been translated into English.