The preamble of the Canadian Charter of Rights and Freedoms begins with the phrase; “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.” The “rule of law” is a cornerstone of Canadian constitutional order and it is expressed in our lives in various ways. Most importantly, the Constitution Act itself states that any law that is inconsistent with the provisions of the Constitution is of no force or effect. Statutes enacted by the federal parliament or a provincial legislature which conflict with the Constitution are invalid and, technically speaking, do not become law. Since any law which is inconsistent with the Constitution is invalid, any actions or decisions taken by government officials in reliance on such law are also invalid since these actions or decisions will have been taken without legal authority. The application of constitutional law, therefore, primarily focuses on whether particular laws are valid or invalid under the Constitution.
In order for the rule of law to work, there must be the assurance of an independent judiciary. There must be a system of legal representation through an independent legal profession. And there must be effective and impartial enforcement of law and order through police services. These are necessary for, and protected by, the rule of law. The maintenance of the rule of law would be impossible if unconstitutional laws could not be challenged in the courts. As a result, the Supreme Court of Canada has held that the guarantee of access to the courts for the determination of a person’s legal rights is embodied in the rule of law. So, the next time you read in the newspaper that someone is challenging a particular law as being unconstitutional because it violates a provision of the Canadian Charter of Rights and Freedoms, the rule of law is at work.