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(A) Magna Carta
(B) The English Declaration of Rights 1689
(C) The French Declaration of the Rights of Man and the Citizen 1789
(D) The American Bill of Rights 1791
(E) The Universal Declaration of Human Rights 1948
Tom Bingham, The Rule of Law, Penguin Books, 2010
The Rule of Law
Protection of Individual Rights
1. The Canadian Charter of Rights and Freedoms
clearly articulates that the Rule of Law is a foundational principle
Canada is founded upon principles that recognize
the supremacy of God and the rule of law:
2. In Re Manitoba Language Rights, 
1 S.C.R. 721, the Supreme Court of Canada has forcefully attested to
the importance of the Rule of Law in Canada:
63 The constitutional status of the rule of law is beyond question.
The preamble to the Constitution Act, 1982 states:
Whereas Canada is founded upon principles that recognize the supremacy
of God and the rule of law.
This is explicit recognition that "the rule
of law [is] a fundamental postulate of our constitutional structure"
(per Rand J., Roncarelli v. Duplessis,  S.C.R. 121, at p. 142).
The rule of law has always been understood as the very basis of the
English Constitution characterising the political institutions of England
from the time of the Norman Conquest (A.V. Dicey, The Law of the
Constitution (10th ed. 1959), at p. 183). It becomes a postulate
of our own constitutional order by way of the preamble to the Constitution
Act, 1982, and its implicit inclusion in the preamble to the Constitution
Act, 1867 by virtue of the words "with a Constitution similar
in principle to that of the United Kingdom".
3. In discussing the importance of the rule of law,
Thomas Henry Bingham, Baron Bingham of Cornhill, KG, PC, QC, FBA, formerly
Senior Law Lord of the United Kingdom from 2000 to 2008, in his recently
published book, The Rule of Law(1),
Credit of coining the expression ‘the rule
of law’ is usually given to Professor A.V. Dicey, the Vinerian
Professor of English Law at Oxford, who used it in his book, An
Introduction to the Study of the Law of the Constitution, published
4. In discussing Dicey’s contribution to our
understanding of the Rule of Law, Baron Bingham at pages 3 to 4 writes:
Dicey gave three meanings to the rule of law:
We mean in the first place that no man is punishable
or can lawfully be made to suffer in body or goods except for a distinct
breach of law established in the ordinary legal manner before the
ordinary courts of the land.
A. V. Dicey, An Introduction to the Study of the Law of the Constitution
(1885; 9thedn., Macmillan, 1945), p. 188
Dicey’s thinking was clear. If anyone – you or I –
is to be penalized … It must be for a proven breach of the established
law of the land. And if must be a breach established before the ordinary
courts of the land, not a tribunal of members picked to do the government’s
bidding, lacking the independence and impartiality which are expected
Dicey expressed his second meaning this way:
We mean in the second place, when we speak of the
‘the rule of law’ as a characteristic of our country,
not only that with us no man is above the law, but (which is a different
thing) that here, every man, whatever his rank of condition, is subject
to the ordinary law of the realm and amenable to the jurisdiction
of the ordinary tribunals.
Thus no one is above the law, and all are subject to the same law
administered in the same courts.
Dicey put his third point as follows:
There remains yet a third and a different sense
in which ‘the rule of law’ or the predominance of the
legal spirit may be described as a special attribute of English institutions.
We may say that the constitution is pervaded by the rule of law on
the grounds that the general principles of the constitution (as for
example the right to personal liberty, to the right or public meeting)
are with us as the result of judicial decisions determining the rights
of private citizens in particular cases brought before the courts;
5. This thus raises the pertinent question here before
this Honourable Court:
Does the Rule of Law protect our individual Canadian
6. Baron Bingham wisely observes that there are two
conflicting versions of the meaning of the Rule of Law, i.e., the “thin”
view and the “thick” view of the Rule of law.
7. Bingham, in his text at chapter 7, entitled Human
Rights, ‘The law must afford adequate protection of fundamental
human rights’ points out at page 66 that:
This is not a principle which would be universally accepted as embraced
within the rule of law. … Professor Raz has written:
A non-democratic legal system, based on the denial
of human rights, on extensive poverty, on racial segregation, sexual
inequities, and religious persecution may, in principle, conform to
the requirements of the rile of law better than any of the legal systems
of the more enlightened Western democracies … It will be an
immeasurable worse legal system, but it will excel in one respect:
in its conformity to the rule of law … The law may … institute
slavery without violating the rule of law.
J. Raz. ‘The Rule of Law and its Virtue’, in Raz, The
Authority of Law” Essays on Law and Morality,
Oxford University Press, 1979, p. 96
8. However, of Raz’s description, Bingham declares:
This is close to what some economists have called the ‘thin’
definition of the rule of law,
On the other hand Geoffrey Marshall has pointed out, chapters V to
XII of Dicey’s great work, in which he discusses what would
now be called civil liberties, appear within Part II of the book,
entitled ‘The Rule of Law’. As Marshall observes:
the reader could be forgiven for thinking that
Dicey intended them to form part of what the rule of law meant for
Geoffrey Marshall, The Constitution: Its Theory and Interpretation,
Oxford University Press, 2003, p. 58
9. Commenting of the importance of the Rule of Law
at page 6 Bingham recounts:
Lord Steyn, in R v Secretary of State for the Home Department,
ex p Pierson  AC 539, 581:
Unless there is the clearest provision to the contrary, parliament
must be presumed not to legislate contrary to the rule of law. And
the rule of law enforces minimum standards of fairness, both substantive
and then here further notes:
Universal Declaration of Human Rights 1948, Preamble:
Whereas it is essential, if man is not to be compelled
to have recourse, as a last resort, to rebellion against tyranny and
oppression, that human rights should be protected by the rule of law.
10. Beginning at page 10 Baron Bingham then presents
important historical milestones on the way to the
rule of law as we know it today.
the Magna Carta, 1215:
It is very hard to decipher. It is in Latin. And even in translation
much of it is very obscure and difficult to understand. But even in
translation the terms of chapters 30 and 40 have the power to make
the blood race:
39. No free man shall be seized or imprisoned or
stripped of his rights or possessions, or outlawed or exiled, or deprived
of his standing any other way, nor will we proceed with force against
him, or send others to do so, except by the lawful judgment of his
equals or by the law of the land.
40. To no one will we sell, to no one deny of delay right of justice.
Sir James Holt, the greatest modern authority on the charter, has
Magna Carta was not a sudden intrusion into English society and
politics. On the contrary, it grew out of them … Laymen had
been assuming, discussing, and applying the principles of Magna
Carta long before 1215. They could grasp it well enough.
It had a quality of inherent strength because it expressed the will
of the people.
The significance of Magna Carta lay not only in what it actually said
but, perhaps to an even greater extent, in what later generations
claimed and believed it had said. Sometimes the myth is more important
that the actuality … The myth proved a rallying point for centuries
to come – and still does, for example when a government proposes
some restriction of jury trial.
The English Declaration of Rights 1689
Personal liberty and security were protected by prohibiting the requirement
of excessive fines, the imposition of excessive bail, and the infliction
of ‘cruel and unusual punishments’. Jury trial was protected.
The French Declaration of the Rights of Man and the Citizen 1789
The aim of all political association was to preserve the natural and
imprescriptible rights of man; (These rights are liberty, property,
security, and resistance to oppression)… that liberty consisted
in freedom to do anything which was not injurious to others; that law
could only prohibit such actions as were harmful; … that since
property was an inviolable and scared right, no one was to be deprived
of it save where public necessity demanded it, and then he should be
The American Bill of Rights 1791
No person shall be held to answer for a capital, or otherwise infamous
crime, … nor be deprived of life, liberty, or property, without
due process of law; …
The expression, ‘due process’, … derives from later
translations of chapter 39 of Magna Carta.
In all criminal prosecutions the accused shall enjoy the right
to a speedy trial by an impartial jury … .
preserves the right to trial by jury in any civil
case where the sum in dispute exceeds twenty dollars.
The Universal Declaration of Human Rights 1948
But drawing upon Magna Carta, the Bill of Rights 1689, the French
Declaration of Rights of Man and the Citizen 1789, the American Bill
of Rights, it has provided the common standard for human rights upon
which formal treaty commitments have subsequently been founded …
11. Baron Bingham then, at page 33, summarizes:
If, as I think, the rule of law now demands protection
of fundamental human rights … the almost worldwide acceptance
of that principle … to make that principle enforceable and effective.
12. Baron Bingham reiterates this point at pages 66
Both the Universal Declaration of Human Right and later international
instruments link the protection of human rights with the rule of law,
and the European Court of Human Rights has referred to ‘the
notion of the rule of law from which the whole convention draws its
The European Commission has consistently treated democratization,
the rule of law, respect for human rights and good governance as inseparably
13. Reiterating this point at page 67, Bingham declares:
While, therefore, one can recognize the logical force
of Professor Raz’s contention, I would roundly reject it in favour
of a ‘thick’ definition, embracing the protection of human
rights within its scope.
14. Significantly Baron Bingham at pages p. 67 –
68, calls our attention to:
V. D. Zorkin, President of the Constitutional Court of the Russian
Federation said at a symposium held by the International Bar Association
in Moscow on 06 July 2007:
Law cannot be simply what is dictated by political
authority or issued by the state. In the 2oth Century there have been
two examples of legal tragedies, which were developing in parallel.
One was totalitarian Soviet Communism, and the other was German Nazism.
In the USSR, owing to efforts of Stalinist regime theoretician Vyshinsky,
the law was identified with statutory law, and law was identified
with the will (or rather dictatorship) of the proletariat. Through
such logic, whatever was prescribed by the state in the form of statutory
law was lawful.
Hitler flowed yet a different ideological pathway, absolutely antagonistic
to communist ideology, but the result was the same. In Nazi Germany,
the law was the expression of the will of the German nation, and the
will of the German nation was incorporated in the Fuhrer. Hence the
law existed only as a body of statutory laws.
Both systems were killing millions of people, because for both the
law was given and contained in the statutes.
15. In a concluding statement at page 68 Bingham states:
It is, I think, possible to identify the rights and
freedoms which, in the UK and developed Western and Westernized countries
elsewhere, are seen as fundamental, and the rule of law requires that
those rights should be protected. … I shall … (suggest)
a number of conclusions:
that the common law and statute have for many years given a measure
of protection to such rights; that there were gaps in such protection;
that the rights and freedoms embodied in the European Convention on
Human Rights, given direct effect in this country (UK) by the Human
Rights Act 1998, are in truth ‘fundamental’, in the sense
that they are guarantees which no one living in a free democratic society
such as the UK should be required to forgo; and that protection of these
rights does not, as is sometimes suggested, elevate the rights of the
individual over the rights of the community to which he belongs.
16. Addressing the specific issue at hand here - the
Right to a fair trial - Bingham asserts at pages 90 to 97:
The right to a fair trial is cardinal requirement of the rule of
law. It is a right to be enjoyed, obviously and pre-eminently, in
a criminal trial, but the rather ponderous language of this principle
is choose to make clear that the right extends beyond criminal trial.
It applies to civil trials, whoever is involved, … .
First it must be recognized that fairness means fairness to both
sides, not just one. The procedure followed must give a fair opportunity
for the prosecutor or claimant to prove his case as also to the defendant
to rebut it.
A trial is not a fair trial if the procedural dice are loaded in
favour of one side or the other, if (in the phrase used in the European
cases) there is no equality of arms.
The constitution of a modern democracy governed by the rule of law
must … guarantee the independence of judicial decision makers,
an expression I use to embrace all those making decisions of a judicial
17. Concerning the role of judges, Bingham at page
These statutory references make clear that judges
must be independent of ministers and the government. … It calls
for decision-makers to be independent of local government, vested interests
of any kind, public and parliamentary opinion, the media, political
parties and pressure groups. In short, they must be independent of anybody
or anything which might lead them to decide issues coming before them
on anything other than the legal and factual merits of the case …
. p. 92
18. And again, at page 96, Bingham speaks directly
to the issue here of criminal trials:
The right to a fair criminal trail has been described
as ‘the birthright of every British citizen’.
It has also be said to be ‘axiomatic that a person charged with
having committed a criminal offence should receive a fair trial and
that, if he cannot be tried fairly for that offence, he should not be
tried at all’.
Yet again, the right to a fair trial has been described as ‘fundamental
19. And at page 97 Bingham underscores a fundamental
A defendant is to be presumed innocent until he is
proven to be guilty.
20. In conclusion Baron Bingham affirms at page 84:
The rule of law requires that the law afford adequate
protection of fundamental human rights. It is a good start for public
authorities to observe the letter of the law, but not enough if the
law in particular country does not protect what are there regarded as
the basic entitlements of a human being.
21. In closing I would like to mirror Baron Bingham;
the Lord Chief Justice of England (Lord Hewart) who,
in a powerful and very readable polemic published in 1929 entitled The
New Despotism, launched a coruscating attack on the legislative
and administrative practices of the day:
It does not take a horticulturalist to perceive that, if a tree is bearing
bad fruit, the more vigorously it yields the greater will be the harvest
22. We respectfully submit that the misapplication
of Criminal Code s. 117.03 is ‘bearing bad fruit’.
23. The public will not be put at risk by pruning
this bad branch of the law.
Respectfully submitted to the Court of Queen’s Bench, Saskatoon,
Saskatchewan, Wednesday, 13 September 2010.
Edward B. Hudson DVM, MS
402 Skeena Court
Saskatoon, Saskatchewan S7K 4H2
1. Tom Bingham, The Rule of Law, Penguin Books, 2010
Criminal Code of Canada
SEIZURE ON FAILURE TO PRODUCE AUTHORIZATION /
Return of seized thing on production of authorization
Forfeiture of seized thing
(1) Notwithstanding section 117.02. a peace officer who finds
(a) a person in possession of a firearm who fails,
on demand, to produce, for inspection by the peace officer, an authorization
or a licence under which the person may lawfully possess the firearm and
a registration certificate for the firearm, or
may seize the firearm, prohibited weapon, restricted weapon, prohibited
device or prohibited ammunition unless its possession by the person
in the circumstances in which it is found is authorized by any provision
of this Part, or the person is under the direct and immediate supervision
of another person who may lawfully possess it.
(2) Where a person from whom any thing is seized pursuant to subsection
(1) claims the thing within fourteen days after the seizure and produces
for inspection by the peace officer by whom it was seized, or any other
peace officer having custody of it,
(a) an authorization or a licence under which the
person may lawfully possess it,
(b) in the case of a firearm, a registration certificate
for the firearm,
the thing shall be forthwith returned to that person.
(3) Where any thing seized pursuant to subsection (1) is not claimed
and returned as when provided by subsection (2), a peace officer shall
forthwith take the thing before a provincial court judge, who may, after
affording the person from whom it was seized or its owner, if known,
an opportunity t establish that the person is lawfully entitled to possess
it, declare it to be forfeited to Her Majesty, to be disposed or or
otherwise dealt with as the Attorney General directs. 1995, c.39, s.