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Rule by law, or is it rule of law?

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Is Canada governed by the rule of law -- or only by the laws acceptable to the party in power? The difference, obviously, is not mere semantics. It is the difference between democracy and authoritarianism, between constitutional government and the exercise of arbitrary power by a temporary partisan majority.

These fundamental issues arise from the Harper Conservatives' decision to abolish the Canadian Wheat Board's single desk without holding a vote among western wheat and barley growers as required by the CWB's statute.

The government believes the laws passed by one Parliament can be repealed by another -- period. But in the opinion of some constitutional scholars -- and Justice Douglas Campbell of the Federal Court -- statutes that bestow specific rights, such as the CWB's provision for a producer vote on any change to the board's mandate, are of a different order and the government is required to respect them.

Justice Campbell quotes Peter Hogg, former Osgoode Hall law dean and author of the definitive work on Canadian constitutional law. He advised governor general Michaëlle Jean during the 2008 prorogation crisis. Hogg's constitutional text, Constitutional Law of Canada, states "while the federal Parliament or provincial legislature cannot bind itself as to the substance of future legislation, it can bind itself as to the manner and form of future legislation... Moreover, the case law, while not conclusive, tends to support the validity of self-imposed manner and form requirements."

The judge finds "compelling" the "unique democratic features of the CWB" and continues: "The rule of law is a multi-faceted concept, conveying a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority." He points out the courts have repeatedly described the rule of law as the principle that "the law is supreme over officials of the government as well as private individuals... preclusive of the exercise of arbitrary power.

"(P)olitical action, to be legitimate... must operate within the constraints of the law. Governments cannot flout the law... To be accorded legitimacy, democratic institutions must rest, ultimately, on a legal foundation."

Campbell ruled the government is bound by the CWB's democratic process established in the 1998 statute. "(T)he minister must act democratically... Not adhering to these values is not only disrespectful, it is contrary to law." Parliament's intent was "not to alter this structure without consultation and consent."

University of Ottawa constitutional law expert Errol Mendes warns that when a government does something in violation of existing laws regardless of justice or what rights are at stake, "that moves us towards an authoritarian state. What the government is doing is saying basically let's forget about the rule of law in this country and let's introduce the concept of rule by law."

China has "rule by law," he adds.

The same disregard for the rule of law applies to the government's decision to destroy the long-gun registry records despite objections by Quebec, the privacy commissioner and the information commissioner, he says.

Instead of respecting the rule-of-law traditions of fairness, justice and acceptance of the reasons existing law was put in place, "the government is using raw political power," Mendes continued in an interview. "Parliament is not just a plaything of the prime minister. Making it work is absolutely crucial to the fundamental well-being of Canadians."

Peter Russell, professor emeritus of political science at the University of Toronto, also uses the word authoritarian to describe the Harper government.

In an interview broadcast on CBC radio's The House Saturday, Russell said Canada has "what I would call a populist authoritarian government," citing "the growing irrelevance of Parliament" and the "lack of concern among Canadians about the parliamentary system."

"I think there's increasing support for the view that, at election time, we elect a prime minister rather like a president, rather than we elect a Parliament and the leader of the government comes from Parliament and is accountable to it. And Parliament is to discuss and debate the issues of the day regardless of who has a majority."

Russell doesn't just blame the current prime minister. He noted the slide into a presidential system began under Pierre Trudeau, slowed somewhat under Brian Mulroney, but accelerated again under Jean Chrétien.

"I don't understand what people mean when they say it's clever strategy. It's just using power... It's also lack of respect for Parliament. And the worry there is that when Parliament makes a promise and the government changes hands and says, well, that's just those bloody Liberals, that isn't Parliament, we reduce Parliament to a partisan majority and when the partisan majority changes, anything goes."

Frances Russell is a Winnipeg

author and political commentator.

Republished from the Winnipeg Free Press print edition December 14, 2011 A15

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