FOREWORD FROM THE EDITOR (Daniel Clarke-Serret, Senior Fellow at Section 1):
Peter L. Biro is an extremely distinguished Canadian legal thinker and advocate for liberal democracy. He is the Founder and President of the democracy think-tank Section 1; a Senior Fellow of the Raoul Wallenberg Centre for Human Rights and of Massey College; an Adjunct Professor at the University of Toronto, Faculty of Law.; and Editor, most recently, of The Notwithstanding Clause and the Canadian Charter: Rights, Reforms, and Controversies (McGill-Queen’s University Press). He is a long time friend and Founder Member of Guerre and Shalom.
You are about to read an edited version of his lecture, delivered to the Law Society of Manitoba on the occasion of the Isaac Pitblado Lecture. Originally delivered with a legal audience in mind, I have removed and/or reordered certain sections to maximise relevance for a non-specialist audience. After all, Peter sees the informed, engaged citizen as part of the essence of the Rule of Law…
This is an important article at a time where democracies in general - and America in particular - are ceasing to respect basic norms under the Rule of Law. Canada, as we shall see, isn’t perfect either. So please share and please become a Guerre and Shalom Founder Member like Peter.
“The Rule of Law Needs a Lawyer” by Peter L Biro
Manitoba Language Rights: An Introduction to the Rule of Law
It is fitting that the Law Society of Manitoba has convened these Pitblado Lectures so that we might discuss the rule of law and the challenges it faces, for it was right here in Winnipeg – in the Provincial Legislature – that perhaps the most notable Canadian “rule of law” case originated.
In Reference re Manitoba Language Rights, [1985], the Supreme Court had to consider whether or not the entire Manitoba statute book was valid given that the language requirements for the enactment and publication of Manitoba’s laws had not been met. S.23 of the Manitoba Act and s. 133 of the Constitution Act 1867 required that all statutes, records and journals be issued, printed and published in both English and French. The Court decided that the language requirements are mandatory, rather than merely directive.
Accordingly, . . .the Supreme Court of Canada found that “All of the unilingual Acts of the Legislature of Manitoba are, and always have been, invalid and of no force or effect.” The Legislature’s constitutional duty to enact, print and publish its laws in both official languages, was intended to protect the substantive rights of all Manitobans to equal access to the law in either French or English.
So, what was the Court to do in such circumstances? There was no question that the laws in their current state of linguistic deficiency were simply not valid and that they would have to be struck down as being of no force or effect. But such a result would leave the Province in a rather embarrassing – not to say, legally absurd – position, with no valid laws on the books.
The solution? As would not be possible for the Manitoba Legislature to comply with its constitutional duty it would be necessary, in order to preserve the rule of law, to deem temporarily valid and effective the Acts of the Manitoba Legislature, which would be currently in force were it not for their constitutional defect. The period of temporary validity will run from the date of this judgment to the expiry of the minimum period necessary for translation, re-enactment, printing and publishing.”
Said the Court:
“The principle of rule of law, recognized in the Constitution Acts of 1867 and 1982, has always been a fundamental principle of the Canadian constitutional order. The rule of law requires the creation and maintenance of an actual order of positive laws to govern society. Law and order are indispensable elements of civilized life. This Court must recognize both the unconstitutionality of Manitoba’s unilingual laws and the Legislature’s duty to comply with the supreme law of this country, while avoiding a legal vacuum in Manitoba and ensuring the continuity of the rule of law.”
BUT what if the Manitoba Government had not undertaken to translate and re-enact the statute book in both official languages? Or what if Manitoba, having undertaken to translate and re-enact the statute book, had simply failed to do so?
The Supremacy Clause is clear. The Court was clear. Manitoba would have descended into genuine lawlessness, not because civil unrest and widespread law-breaking and anarchy would have ensued, but because Manitoba would have become a civil society without valid and binding provincial laws. There would have been a legal vacuum characterized not merely by the non-existence of specific laws, but by the absence of the rule of law itself. The rule of law is, after all, predicated on the actual existence of law – and of laws – without which we cannot speak about the predictability, applicability, enforceability, or even the reasonableness, of law and of laws.
The United States 2025: The Rule of Law “under siege”
But what if Manitoba had simply said, “we’re not re-enacting our laws in both languages. We’re going to carry on and govern ourselves without regard for the pronouncements of the Supreme Court of Canada”?
In Manitoba and in Canada at large nobody seriously feared such a prospect because our sense of what was required of our government – indeed, of what was expected by AND OF us as a society – did not allow for anything other than strict performance of an undertaking given and compliance with a court order mandating and enforcing that undertaking.
But, only 100 kilometres from where we are situated today – south of the 49th parallel, another reality has been taking shape. It is a reality that serves to remind us just how extraordinary the Manitoba Language Rights Reference actually was and how fundamental is the proper relationship between the legislative and judicial branches of government in a free and democratic society.
In the United States today, the rule of law is under siege at every turn. Judicial independence is regarded as contingent by the executive branch. Prosecutorial independence is being eviscerated. The question of whether the President will abide by unfavourable rulings from the Supreme Court is now openly asked, particularly in the wake of non-compliance with the strict terms of some lower court rulings. And the Constitution itself – whether it is the clear and explicit language of the birthright citizenship clause or of presidential term limits – is being shredded by a President who has understood what so many others have thus failed to grasp: that the rule of law means what the President says it means and that it is only as robust and sustainable as are the respect and deference that it happens to command.
In the United States, the Attorney General no longer answers to Congressional oversight committees, but instead insults and belittles them. The President usurps the exclusive powers of the legislative branch simply by declaring matters to be emergencies or issues of national security. Tariffs, arrests and deportations of migrants, sending the military onto American city streets to fight the “enemy from within”.
In all of this, the problem isn’t the literal law-defying; it’s the norm-shattering: The rule of law can handle actual law-breaking. In fact, it expressly contemplates, in its conception, logic and implementation, the inevitability of law-breaking - even by the law makers and political masters themselves.
Norm-shattering, on the other hand, changes the entire game and makes of the rule of law a cynical symbol to be invoked and resorted to arbitrarily and opportunistically.
The American Bar Association released its Report for the ABA Task Force for American Democracy just two months ago. The opening words of the Task Force report could not have been more dramatic:
“Our American democracy is under threat. Many believe the rule of law is under threat, and that we are, in fact, in the midst of a constitutional crisis. Even the current administration must confess that it is determined to push the bounds of legal and constitutional norms.”
Let that observation issued on behalf of the American legal profession itself sink in. It seems almost quaint, now, to say that the current administration is determined to “push the bounds of legal and constitutional norms”. It would be more accurate to acknowledge that the administration is determined to shatter those norms and, in many cases, has already done so.
Canada, Democracy & The Rule of Law
Now, in speaking about norms – and also conventions – let us consider the state of Canada’s own democracy, in order that we may then reflect on the state of our law and of the rule of law itself as a framework within which we regulate and order our communal and societal affairs.
Here is what political commentator and author, Andrew Coyne observed in his recent volume, The Crisis of Canadian Democracy:
