Happy Birthday to the Canadian Charter: A Meditation on the Rule of Law.

On this day in 1982, the Canadian Charter of Rights and Freedoms became part of the Canadian constitution. Every year on this date, I am reminded to be grateful for Canada’s constitution, which aspires to justice, equality, and respect for all human beings. This year, on my thirty-third day inside my apartment, I am feeling this gratitude more keenly than usual.

In celebration of this momentous date in Canadian constitutional law, I would like to begin by highlighting the excellent work being done by our fellow jurists to keep Quebeckers informed of their rights and freedoms during the current public health crisis.

Our colleagues over at Educaloi have put together and are constantly updating a set of COVID-19 FAQs at <https://www.educaloi.qc.ca/en/covid-19>. This document includes information about the Canada Emergency Response Benefit and Quebec’s emergency Temporary Aid for Workers Program; your rights in the event that you have been laid off, had hours cut, or had your employment terminated due to COVID-19; your rights with regard to housing and rent; and much more. They are also maintaining a page listing the key public health directives and guidelines at <https://www.educaloi.qc.ca/en/news/covid-19-directives-what-if-you-break-rules>.

Some of you may have also seen an informative and free document circulating on the internet entitled, “Surprise, on a encore des droits!” This information guide, prepared and updated by a group of lawyers, covers topics such as the legal framework for enforcing quarantine and social distancing, the new infractions with which police can charge citizens, and the steps for contesting a charge. This excellent resource can be consulted by anyone at <https://docs.google.com/document/d/1rOl5SAssIzLkd4yLqtW-CO2xfIwyzL1LJGqO7l4Q7c4/edit?fbclid=IwAR02QpkE7ubNXXMqApPQWV330TK-aIGToJ6LyMiv21pPaqerCkYigsZ8nNE#heading=h.3fwokq0>.

These are just some of the examples of caremongering and community-building in which Quebec’s lawyers have been engaged during this crisis. And what is a constitution for but building and strengthening a community? The Canadian Charter of Rights and Freedoms tells us that the State is not omnipotent; it is limited at very least by the rules established by our community, rules that require basic levels of respect for individuals and individual freedoms.

But the Charter is not the whole Constitution. The Charter’s most important contribution is the remedies it offers to fight unconstitutional State action. The rights it enshrines are, for the most part, not new; they existed before as part of the Canadian Bill of Rights or the common law.

One underlying constitutional principle that is often endangered – and is therefore critically important – during times of emergency is the rule of law. The rule of law requires that the law be knowable in advance: the law must be written down; it ought not to have retroactive effects; it must not lie entirely within the discretion of one person or group.

A law – especially a criminal law – cannot be so vague as to apply to any and all situations. This type of law violates the rule of law principle of clarity and results in some officials enjoying “absolute and untrammelled” discretion to apply the law as they please. Laws of this sort have been enacted in Canada before.

The Supreme Court of Canada made some seminal statements about overbroad discretion in Saumur v. City of Quebec, [1953] 2 SCR 299. At issue in this case was a municipal by-law that forbade the distribution “in the streets of the City of Quebec, any book, pamphlet, booklet, circular, tract whatever without having previously obtained for so doing the written permission of the Chief of Police.” The law was clearly aimed at suppressing the activities of Jehovah’s Witnesses. Because this case was decided in 1953, there was no Charter to protect minority religious groups from laws that targeted them for fines or imprisonment.

The case was ultimately decided on the basis that the law was criminal law in pith and substance, but the advocates against the by-law argued the case on several grounds. One of the many lines of argument dealt with the seemingly limitless discretion given to the Chief of Police by the by-law. Justice Kellock noted the following:

It will be observed that the by-law is perfectly general in its terms and that while it prohibits in the absence of a licence, at the same time it contemplates, fully as much, distribution at the unfettered will of the municipal official to whom is delegated the power to grant or to refuse to grant licences. The by-law affords no guide whatever for the regulation from any standpoint of the prohibition or permission for which it provides. To borrow language used in another connection by Lord Watson in Union Colliery Company v. The Queen, “the leading feature” of this by-law consists in this that it establishes no rule or regula­tion for its application except that nothing but that which is permitted by the censor may be distributed. What he permits will appear in the streets. What he refuses will not.

Such broad and unfettered discretion meant that it was almost impossible to discern the purpose of this law. Was it enacted in relation to public order on city roads? Or was it in fact a criminal prohibition on the dissemination of minority religious beliefs? Justice Rand found that the law was so vague that it actually offended the division of powers between federal and provincial legislatures:

It was urged by Mr. Beaulieu that the city as proprietor of the streets has authority to forbid or permit as it chooses, in the most unlimited and arbitrary manner, any action or conduct that takes place on them. The possibilities of such a proposition can be easily imagined. […] In our political organization, as in federal structures generally, that is the condition of legislation by any authority within it: the courts must be able from its language and its relevant circumstances, to attribute an enactment to a matter in relation to which the legislature acting has been empowered to make laws. That principle inheres in the nature of federalism; otherwise, authority, in broad and general terms, could be conferred which would end the division of powers.

It also violated the rule of law by giving “absolute and untrammelled” discretion to a public official, as the Supreme Court would decide in Roncarelli v. Duplessis in 1959.

The rule of law requirement that a law be written and enacted in order to have mandatory force is also occasionally violated in Canada. Take as an example Kosoian v. Société de transport de Montréal, 2019 SCC 59. Mme Kosoian was arrested by an officer of the STM for failing to hold on to the railing of the escalator. In the metro, there were pictographic signs warning passengers to hold onto the railing for their safety. The arresting officer believed that violating those pictographic signs constituted an offence; he had in fact been trained by the STM to believe this.

The Supreme Court of Canada corrected him in that belief. There is no law requiring citizens to hold the handrail when they take the escalator. No reasonable person would believe that a safety warning, if ignored, transforms into a penal offence. The law is not whatever a given officer believes it to be; the officer’s interpretation of the law must be reasonable, and there was simply no reason to believe that pictographic signs constitute a penal prohibition.

[97]   Any exercise of discretion by a police officer must have a valid legal justification […]. Since the offence alleged in this case did not exist, and since Constable Camacho’s belief in the existence of such an offence was unreasonable, any exercise of his discretion grounded on that non‑existent offence was not only unlawful but also necessarily unreasonable.

The officer who made the arrest was found liable for wrongly arresting Mme Kosoian on charges he ought to have known did not exist; furthermore, the STM was found to be liable for training it gave its officers.

The moral of this story is that the police enforce the law; they cannot invent it:

[6]  In a free and democratic society, police officers may interfere with the exercise of individual freedoms only to the extent provided for by law. Every person can therefore legitimately expect that police officers who deal with him or her will comply with the law in force, which necessarily requires them to know the statutes, regulations and by‑laws they are called upon to enforce. Police officers are thus obliged to have an adequate knowledge and understanding of the statutes, regulations and by‑laws they have to enforce. Police forces and municipal bodies have a correlative obligation to provide police officers with proper training, including with respect to the law in force. Under Quebec law, a breach of these obligations may, depending on the circumstances, constitute a civil fault.

I plan to celebrate the Charter’s birthday by taking a walk outside, which I am grateful to be able to do, and by attending IMK’s weekly videoconference this afternoon. Stay strong, comrades; let’s keep looking out for and taking care of each other and our community will be better and stronger when the crisis has passed.