De Facto

Latin: as a matter of fact; something which, while not necessarily lawful, exists in fact.

A common law spouse may be referred to a de facto wife or de facto husband: although not legally married, they live and carry-on their lives as if married.

A de facto government is one which has seized power by force or in any other unconstitutional method and governs in spite of the existence of a de jure government.

In R v Sanson, Justice Watt wrote:

"De facto characterizes a state of affairs which, for all practical purposes, must be accepted notwithstanding its illegality or illegitimacy. The de facto doctrine is sometimes engaged to uphold rights, obligations and other effects which are said to have arisen under an enactment later held to be without constitutional integrity."

In a 1910 publication on the de facto doctrine, Albert Constantineau wrote:

"The de facto doctrine is a rule or principle of law which, in the first place, justifies the recognition of the authority of governments established and maintained by persons who have usurped the sovereign authority of the State, and asset themselves by force and arms against the lawful government; secondly, which recognizes the existence of, and protects from collateral attack, public or private bodies corporate, which, though irregularly or illegally organized, yet, under colour of law, openly exercises the powers and functions of regularly created bodies; and, thirdly, which imparts validity to the official acts of persons who, under colour of right or authority, hold office under the aforementioned governments or bodies, or exercise lawfully existing offices of whatever nature, in which the public or third persons are interested, where the performance of such official acts is for the benefit of the public or third persons, and not for their own personal advantage....

"Again, the doctrine is necessary to maintain the supremacy of the law and to preserve peace and order in the community at large, since any other rule would lead to such uncertainty and confusion, as to break up the order and quiet of all civil administration. Indeed, if any individual or body of individuals were permitted, at his or their pleasure, to challenge the authority of and refuse obedience to the government of the state and the numerous functionaries through whom it exercises its various powers, or refuse to recognize municipal bodies and their officers, on the ground of irregular existence or defective titles, insubordination and disorder of the worst kind would be encouraged, which might at any time culminate in anarchy."

REFERENCES:

• Constantineau, A., A Treatise on the De Facto Doctrine in its Relation to Public Officers and Public Corporations(Toronto: Canada Law Book, 1910), pages 3-6
• Duhaime, Lloyd, Latin Law Dictionary
• Duhaime, Lloyd, Legal Definition of De Jure
• R v Sanson 73 CCC 3d 1 (Ontario, 1992)