From the Fraser Institute

By Bruce Pardy

It’s been 800 years since the Magna Carta. Governments everywhere now aspire to tear down the concept that it helped establish: the rule of law. Last week, British Columbia’s NDP government introduced the Economic Stabilization (Tariff Response) Act, also known as Bill 7, which would allow Premier David Eby and his cabinet the power to take the law into their own hands without going through the elected legislature.

In this case, the justification is President Donald Trump’s tariffs. But the bill would authorize any action taken for the vague purpose of supporting the economy of B.C. or Canada, or responding to the actions of any foreign government, even if the actions haven’t happened yet. But according to Eby, “These are not sweeping powers.”

The project of concentrating power in the executive branch (i.e. cabinet) and usurping the role of legislators has a long pedigree. In theory, no office or officers are above the law or are empowered to make it up as they go. In practise, that theory counts for less and less. Governments, including in Canada, don’t like the rule of law.

But what, exactly, does “the rule of law” mean? Legal theorists say it’s complicated. It need not be. To see it clearly, compare it to the alternative: the rule of persons. When King Solomon decreed that a baby claimed by two women should be split in half, he had absolute power to decide what to do. When Henry VIII ordered that Anne Boleyn should lose her head, that was absolute power, too. In each case, tyrants exercised their personal rule for good or bad.

The “rule of law” is the opposite idea. No single authority has free reign to decide how the state will use its force. The rule of law limits the powers of those who govern.

It does so in part by separating powers between three branches of the state. The Supreme Court of Canada has said that the “separation of powers” is a fundamental feature of the Canadian Constitution. Legislatures legislate. The executive executes. Judges adjudicate. In principle, no single office or officer can alone decide what should be done.

But not in practise. Exceptions are so common today as to be ubiquitous. The Human Rights Commission, not the legislature, declares what constitutes discrimination. The police decide whether to enforce court orders. Environment ministry officials determine when environmental impacts are permissible. Cabinet decides when pipelines will be built.

But in these cases, decision-makers at least must keep themselves within the boundaries of their authorizing statute, which was passed by elected legislatures. Under Bill 7, the Eby government will take delegation to the next level. Its cabinet will have the power not just to exercise broad discretion in accordance with legislation, but to override legislation itself. The bill will allow cabinet to make exceptions to the law, modify the law’s requirements, limit the law’s application, or establish powers or duties in place of the law. And not just a specific law, but any enactment on the books. The cabinet’s edicts will be valid for more than two years, until May 2027.

In 1539, the Statute of Proclamations conferred on King Henry VIII the power to rule by decree, directing that the King’s proclamations should be obeyed as though they were legislation. Such provisions, since known as “Henry VIII clauses,” are controversial because they eviscerate limits on executive power. Yet they may be constitutionally permissible in Canada. Parliament cannot abdicate its functions, the Supreme Court of Canada wrote in 1918, in a case considering the government’s conscription orders under the broad powers of the War Measures Act of 1914. But Parliament can pass legislation that delegates its powers to the executive as it sees fit. As long as the legislature retains the power to reverse the delegation, the theory goes, then separation of powers remains intact.

The rule of law is inconvenient. It gets in the way of governments and officials crafting solutions to problems they perceive as important. That’s not its downside but its purpose. Even when government efforts are well-intentioned, the power of officials to solve problems can pose a more serious threat to citizens than the problem itself. As the late Alan Borovoy, former general counsel of the Canadian Civil Liberties Association, once put it, “The source of the most insidious peril is not evil wrongdoers seeking to do harm, but parochial bureaucrats seeking to do good.” If the modern administrative state is incompatible with the rule of law, then the state should be required to adapt. For decades, the current has flowed strongly in the other direction.

Crises are an ideal time for the state to advance into territory from which it will not wish to retreat. COVID-19 was the previous excuse. Now the threat of American tariffs is the latest justification to declare an emergency and discard the limitations of the rule of law. Even impending calamity does not justify the tyranny of unfettered discretion. Boundless authority to respond to circumstances is an unbearable licence to dictate.

This commentary is based on previous commentaries.

Bruce Pardy

Professor of Law, Queen’s University