How Canadians Govern Themselves - Parlement du Canada

How Canadians Govern ThemselvesThe Rule of Law andthe CourtsThe Rule of Law and the Courts32Responsible government and federalismare two cornerstones of our system ofgovernment. There is a third, withoutwhich neither of the first two would besafe: the rule of law.What does the rule of law mean?It means that everyone is subject to thelaw; that no one, no matter howimportant or powerful, is above thelaw — not the government; not thePrime Minister, or any other Minister;not the Queen or the Governor Generalor any Lieutenant-Governor; not themost powerful bureaucrat; not thearmed forces; not Parliament itself, orany provincial legislature. None ofthese has any powers except thosegiven to it by law: by the ConstitutionAct, 1867, or its amendments; by a lawpassed by Parliament or a provinciallegislature; or by the common law ofEngland, which we inherited, andwhich, though enormously modifiedby our own Parliament or provinciallegislatures, remains the basis of ourconstitutional law and our criminallaw, and the civil law (property andcivil rights) of the whole country exceptQuebec (which has its own civil code).If anyone were above the law, none ofour liberties would be safe.What keeps the various authoritiesfrom getting above the law, doingthings the law forbids, exercising powersthe law has not given them?The courts. If they try anything of thesort, they will be brought up short bythe courts.But what’s to prevent them frombending the courts to their will?The great principle of the independenceof the judiciary, which is evenolder than responsible government.Responsible government goes backonly about 200 years. The independenceof the judiciary goes back over 300 yearsto the English Act of Settlement, 1701,which resulted from the EnglishRevolution of 1688. That Act providedthat the judges, though appointed bythe King (nowadays, of course, on theadvice of a responsible Cabinet), couldbe removed only if both Houses ofParliament, by a formal address to theCrown, asked for their removal. If ajudge gave a decision the governmentdisliked, it could not touch him or her,unless both Houses agreed. In thealmost three centuries that havefollowed, only one judge in the UnitedKingdom has been so removed, andnone since 1830.