The Supreme Court and Civil Liberties


  • Stephen Allan Scott



Of the plan suggested by its title (intended to embrace amongst other things some treatment of the Canadian BiU of Rights and relevant aspects of the distribution of legislative authority) this paper as delivered is confined to single part dealing with the rule of law. Roncarelli v. Duplessis, probably the single most celebrated of the Supreme Court's decisions, is chosen as the source of four themes. Each involves conflict between the individual's rights and liberties and governmental power. The author argues that lawful governmental action especially competent legislation and anything which is authorized by competent legislation is damnum sine injuria. Some of the harshest consequences of legislative supremacy have however been mitigated by various common law rules, notably those governing natural justice, the prerogative remedies, mens rea in the criminal law, the condition of reasonable ness implied into at least some statutory powers, and the restriction of subdelegation. The author examines critically the work of the Supreme Court on these subjects, as also on the matter of access to the courts for redress, question central to individual liberty, both as regards the jurisdiction of the Supreme Court of Canada itself, and that of the other superior courts.