Is the Rule of Law in Canada a Fiction?

Author: Tim Platnich

Date: October 23, 2025

In this post I question whether the rule of law in Canada is a fiction.

In law, according to Black's Law Dictionary, a fiction is "an assumption that something is true even though it may be untrue .... ". Legal fictions are used by legislatures and judges when they deem it necessary to do justice.

Here, the untrue assumption may be that in Canada, we are ruled by law and not by capricious decision makers. I am talking about positive laws, both political and civil as described by Montesquieu in "Spirit of the Laws". By capricious I am not suggesting decision makers are evil. They are following their own personal tastes and preferences, some may even call it their own consciences. However, every decision maker, following their own conscience in face of duly passed laws, is the anti-thesis of the rule of law. Under the rule of law, decision makers should feel ethically and morally bound to follow and apply the law, and not to substitute their own preferences for what the law should be.

Law, at a minimum, is a set of rules and a philosophy or culture that those rules have a legitimate source and apply without favour or prejudice to any person or persons. The opposite of a society of laws is a society of power where those with power simply command in accordance with their own values, or sense of justice.

According to Dicey, the rule of law “means in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of government.”[1]

The rule of law, stripped of all technicalities, “means that government in all its actions is bound by rules fixed and announced beforehand - rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one's individual affairs on the basis of this knowledge."[2]

“General rules, genuine laws as distinguished from specific orders, must therefore be intended to operate in circumstances which cannot be foreseen in detail, and, therefore, their effect on particular ends or particular people cannot be known beforehand.”[3]

In my view, legislation must clearly, and in advance, set the rules applicable to everyone. Laws may not simply empower persons to make the rules as they go. This delegation of rule-making makes law arbitrary and is thus contrary to the rule of law. Legislation with provisions that reference what is ‘fair’ or ‘reasonable’ leaves the decision of individual cases more and more to the discretion of the administrative body or judge, as applicable. “One could write a history of the decline of the rule of law … in terms of the progressive introduction of these vague formulas into legislation and jurisdiction."[4]

The opposite of the rule of law is rule by command. Under the rule of law, each citizen knows the rules in advance and can structure their lives accordingly. Under rule by command, the citizen does not know the citizen's rights or obligations until it is commanded, often after the fact. In this case, rights and obligations become capricious, changing with the decision maker involved or even with the same decision maker.

Theoretically, in a democratic state governed by the rule of law, the legislative branch of government makes the rules. The rules of the legislative branch are enforced by the executive branch of government. If the rules need interpretation, the judiciary makes the interpretation. Is this theory a fiction? . Are the rules made by legislatures when they simply delegate the actual decisions to bureaucrats and judges? Are the rules applicable to everyone or are they rules that favour one interest group or another? Are the rules enforced without fear or favour? Do the judges merely interpret the rules or do they re-write or ignore them to achieve an end they feel is 'just'?

Imagine playing a game of Monopoly where you roll the dice, and what happens next depends on the arbitrary decision of a 'rule maker'. Rules, like in the game of Monopoly, structure the 'game'. The rules apply the same to everyone engaged in the game. Participants make decisions relying upon the rules. There are winners and losers. There is no over-seeing decision maker who changes the rules out of sympathy or preference for a particular player who is disadvantaged, has bad luck or makes poor decisions.

Let's take a silly example that is useful for making my point. The legislature passes a law that says: Anyone who commits murder is guilty of an offence punishable by death. Person A kills Person B. Person A is caught and brought to trial before a judge.

What does the judge do? Well, the judge may find the rule offensive. The judge personally doesn't believe in the death penalty. Further, the judge thinks that 'murder' is a murky term. What does it mean exactly? Should this offence even apply to persons like Person A who has certain characteristics or a certain background that the judge thinks should be entirely exculpatory. The judge acquits or convicts. In the case of conviction, the judge gives a lesser sentence because the judge feels sorry for the convict. The judge may even evade statutory minimum sentence requirements set by the Criminal Code or mandated by higher court decisions. Is this the rule of law? Or is this simply 'rule by judge'? Lawyers defending people like Person A judge shop and get their cases heard by the judge that acquitted people like Person A. Different laws for different folks depending on which judge hears the case. Is this the rule of law?

The foregoing are hypothetical examples. Unfortunately, many real-life examples exist showing law as command and not the rule of law.

A recent example concerns rule changes related to capital gains tax. The federal government announced, in its April 2024 Budget, that the inclusion rate for capital gains tax was being increased from 50% to 66.6% effective June 25, 2024. This 'law' was initially given effect by government administrators (Canada Revenue Agency) notwithstanding that no legislation had been passed to make it law. Given that the Liberal government was then a minority government, and given the uncertain state of support in the House of Commons by other parties, it was far from clear that legislation would ever be passed to enact the 'law' as commanded by the Finance Minister. Without legislative process, how was this the rule of law? At the last minute, the 'law' was scrapped - after many taxpayers had altered their positions based on representation from government that the 'law' would be enforced.

Another recent example comes from statements made by the Chief Justice of the Supreme Court of Canada. He said that decisions from the Supreme Court of Canada (SCC), prior to 1970, are of purely historical interest, implying that they are not legally binding. He said these old decisions are merely part of our "legal cultural heritage". Wow. So much for stare decisis; so much for English common law developed over many centuries. So much for 'traditional knowledge' at least in the Anglo-Saxon realm.. All gone with one announcement from our Chief Justice who was simply addressing the pragmatism of having pre-1970 SCC decisions translated into both official languages. Maybe indigenous knowledge older than 1970 should also be scrapped as merely 'cultural heritage'.

In 2013, the SCC in a case called Bedford v. Canada, invited lower courts to disregard settled rulings of higher courts where: "new legal issues are raised as a consequence of significant developments in the law"; or where "there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate". This 'test' is a tool available to judges who want to ignore otherwise binding precedent. This test is a vague formula that leaves more and more discretion to judges to do as they want. As a lawyer who appeared before justices for more than 34 years, I can say from experience that leaving everything to judicial discretion is a very scary notion indeed. Binding precedents are the only guard rails available to keep judges in line with the rule of law.

The SCC routinely refuses to follow its own precedents leading one to ask, sardonically, what will the Court do this time? Take the example of a union's right to strike. In Alberta Reference (1987) and in Delisle v. Canada (1999), the SCC held that there is no right to strike under s. 2(d) of the Charter of Rights and Freedoms (freedom of association). In 2015, the Court expressly overruled both previous decisions citing with approval, its Bedford Decision. The evolving law relating to labour relations justified overturning the earlier decisions? Really? Why is the law evolving? Are unions and striking by unions something new? Or, did the composition of the SCC 'evolve'?

In federal systems, different levels of governments have separate and different jurisdictions. In Canada we have a federal government and ten provincial governments. The federal government has a constitutionally defined jurisdiction, as do the provincial governments. The constitution sets the jurisdictional rules of the game. What if the federal government simply ignores these rules and passes whatever laws they want? The laws get enforced immediately pending any judicial proceedings that may be instituted. Where is the rule of law when a government wilfully flaunts the rules? There is another legal fiction: that governments legislate within their jurisdictional authority unless proven otherwise. Note: this legal fiction does not apply, apparently, if Charter rights are at issue.

What will the judges do with such a breach of the rules? Well that depends on whether they like the policy being instituted by the flaunt of the rules. This is not the rule of law, but is the rule of policy preferences.

The Supreme Court of Canada has made it clear that it is not bound by old case law. Effectively, the Court has said it is not bound by the rule of law. Why would it take this position? For the simple reason that the Court wants to make policy decisions, unhindered by the rule of law. If the Supreme Court is not hindered by the rule of law, why should any other court be so hindered. If the Courts are not hindered, why should any legislature, administrative tribunal, or other governmental decision maker be hindered?

Given the foregoing, do we live under the rule of law or is this just a fiction? .

If a fiction, why keep it alive? So decision makers can hide behind the law if and when called out.

[1]as reproduced by Friedrich Hayek, “The Road to Serfdom”

[2]Hayek, ibid

[3]Hayek, ibid

[4] Hayek, ibid