Rule of Law / Unwritten Principles of the Constitution
[45] The applicants contend that section 87.4 is unconstitutional. They argue that the provision violates the rule of law because it is vague and has retrospective effects.
[46] Three principles underlie the rule of law. First, the law is supreme over both the government and individuals. Second, law must be created and maintained to preserve and embody a normative order. Third, the relationship between individuals and the state must be regulated by law.
[47] None of these principles speak directly to the content of legislation. In consequence, as noted by the Supreme Court of Canada “it is difficult to conceive of how the rule of law could be used as a basis for invalidating legislation … based on its content”. The rule of law is primarily concerned with the relationship between the executive, legislative and judicial branches of government, and the legislature is only constrained in the sense that it must comply with the procedural requirements for enacting, amending and repealing legislation: Imperial Tobacco Canada, paras 58-60.
[48] There has been some debate as to the extent to which the rule of law and unwritten principles of the Constitution have embedded within them principles that would permit the invalidation of legislation on the basis of its content. This issue was joined inBabcock v Canada (Attorney General), 2002 SCC 57(CanLII), [2002] 3 SCR 3. Section 39 of the Canada Evidence Act, RSC 1985, c C-5, barred the production of documents and their admission into evidence upon certification by the Clerk of the Privy Council that they were confidences of the Queen’s Privy Council. It was contended that the unfairness of creating special evidentiary rules that favoured the Crown and the absence of judicial oversight of the certification process offended the rule of law. The Supreme Court of Canada rejected the argument: Babcock, para 57.
[49] The Supreme Court of Canada returned to the question three years later in Imperial Tobacco (paras 61-64) concluding that there is no constitutional guarantee that law be general in character and not confer special privileges on the government:
Nonetheless, considerable debate surrounds the question of whatadditional principles, if any, the rule of law might embrace, and the extent to which they might mandate the invalidation of legislation based on its content.
[…]
This debate underlies Strayer J.A.’s apt observation in Singh v. Canada (Attorney General), 2000 CanLII 17100 (FCA), [2000] 3 F.C. 185 (C.A.), at para. 33, that “[a]dvocates tend to read into the principle of the rule of law anything which supports their particular view of what the law should be.”
The appellants’ conceptions of the rule of law can fairly be said to fall at one extreme of the spectrum of possible conceptions and to support Strayer J.A.’s thesis. They submit that the rule of law requires that legislation: (1) be prospective; (2) be general in character; (3) not confer special privileges on the government, except where necessary for effective governance; and (4) ensure a fair civil trial. And they argue that the Act breaches each of these requirements, rendering it invalid.
A brief review of this Court’s jurisprudence will reveal that none of these requirements enjoy constitutional protection in Canada.
[50] With the exception of criminal offences and sanctions there is no requirement that legislation be prospective, even though retrospective and retroactive legislation can overturn settled expectations and be perceived as unjust: Imperial Tobacco, paras 69-72. Whatever personal and economic opportunities a pending FSW application may represent to an applicant, it does not equate with, or possess the characteristics of an interest that would preclude its termination on the basis of the rule of law. Here, Parliament has expressed a clear intention that section 87.4 apply retrospectively. Though this may be perceived as unjust, it does not violate the rule of law.
[51] Section 87.4 is also not contrary to the rule of law due to vagueness. I have found that its meaning is readily apparent on a plain and obvious reading. Second, vagueness has only been used to invalidate legislation in exceedingly rare circumstances and then only in a criminal law context: R v Spindloe, 2001 SKCA 58 (CanLII), para 78.
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