We consider the rule of law a fundamental value in our Canadian legal and constitutional systems; indeed, as the Supreme Court of Canada declared in the Secession Reference the rule of law is “a principle of profound constitutional and political significance” (para. 71) and “[t]he principles of constitutionalism and the rule of law lie at the root of our system of government.” (para. 70) The rule of law has significant impacts on our political, economic and social regimes. It’s true that we don’t always meet its highest standards, but we also don’t often decide to ignore it or deliberately avoid it — or at least we rarely admit that we do. The question is, are there times we should say that the rule of law is too high a price to pay to achieve some other goal?
In a column in The National Post on March 19, 2019, “All of Canada under threat for Liberals’ refusal to uphold law concerning returning ISIS fighters” (in print, “Time to deny terrorists rule of law”), Diane Francis seems to say “yes, there are”, when citizens’ safety is placed at risk by the return of ISIS fighters.
Her complaint is partly a government failure to implement the law: “the Liberals have failed to apply the law fully to jihadists to have returned [to Canada]”. Every returnee should not have been merely monitored, as is the government’s general practice, but “should have been imprisoned for a decade for simply leaving to join ISIL”. This is, Francis, says, a failure to protect the public.
Francis also refers to an Ontario private member’s bill that would deny anyone convicted of a terrorism offence a fishing, wildlife or driver’s licence, health insurance benefits, social assistance and social housing, Ontario Disability Support benefits and workers compensation; a child of a convicted terrorist would be considered a child in need of protection. Francis points out that “[c]ritics and supporters of the bill say … [it] will never fly under constitutional grounds because “residents and citizens are entitled to privileges. But terrorists, who flout the rule of law, should be denied the rule of law”. She also mentions revoking citizenship of those who are dual citizens. (I do not address the issue of citizenship here, although it raises important questions, but am focused on the application of the law and, more broadly, the rule of law.)
From this perspective, it seems that the way to deal with those who have “renounced” their affiliation with our society by joining adversaries deserve both to have the law applied and to have the law not applied, depending on what is most detrimental, or perhaps most punitive, for them.
I note, before proceeding, that section 83.181(1) of the Criminal Code reads,
Every one who knowingly participates in or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
It is irrelevant whether the terrorist groups carries out a terrorist activity (or helps in doing so), the individual is of assistance or the individual knows about any specific activity carried out by the group. The provision goes on to identify how someone may participate in a terrorist group and four factors (among others unnamed) to be considered in determining whether someone is contributing to a terrorist group. But what is important is that like all criminal offences there are elements that must be proved by the Crown and that there may be defences (albeit few) available to the accused, and furthermore, that ten years is the maximum, not automatic, sentence. In addition, like all criminal offences, the prosecution will decide whether a charge is appropriate in any given case; insisting on charging all persons who might appear to satisfy the requirements of section 83.181 would eliminate prosecutorial discretion.
But, despite how anyone might feel about those who turn their backs on Canada to join a terrorist group, is this the right way to go? Here, I’m less concerned with these proposed approaches or laws to apply to convicted terrorists than I am with the notion that we be selective in how we apply the rule of law.
There are three noteworthy facets of the (non) rule of law that I won’t be addressing here: extrajudicial activity, the impact of globalization and “secret trials”.
I realized this morning reading an obituary of the Jewish intelligence agent, Rafi Eitan, who was in charge of a Mossad team who had captured Adolph Eichmann in Argentina and spirited him back to Israel to stand trial and eventual execution that I’m not addressing the rule of law in the international context. While Eichmann’s trial was according to the rule of law, his capture was criticized, in Argentina at least, “as a violation of of that country’s sovereignty and of international law“. Mr. Eitan’s view was, “In principle, when there is a war on terror, you conduct it without principles….” This kind of blatant denial of the rule of (international) law deserves its own scrutiny, but I won’t be undertaking it here.)
Another important facet of the rule of law is the diffusion of authority centres arising from globalization. The components of the rule of law may be challenged or may at least be redefined by requirements imposed by international organizations, with a trickle-down effect on the domestic order. I have written about this in a previous life for a conference organized by the Canadian Institute of Administrative Law: “The Rule of Law: Challenges in a Global Economy”.
I also note that an important manifestation of derogation from the rule of law (but not necessarily of “the law”) are so-called “secret trials”, which involve secrecy of information relevant to national security cases, the subject of Bill C-59 now before the Senate; early discussion of the bill can be found here: Craig Forcese and Kent Roach and by the CCLA. These trials would be according to law, but may raise questions about whether they conform to our understanding of “the rule of law”. They indicate that without the appropriate culture supporting “the rule of law”, the law may become “rule by law”, requiring justification. This context also requires its own analysis that goes beyond the more general examination I provide here.
I quickly make the distinction between rule of law and rule by law: the former refers to applying the law to everyone, with no one above the law, ensuring law is known and (relatively) predictable, among other procedural guarantees, that import at least a general sense of fairness and equitable application; the latter means that the state conducts itself according to the law, but the law may not apply to everyone equitably (for example, apartheid South Africa applied rule by law, but the law was different for white, black and coloured residents; the Indian Act in Canada provided that women who married ,their band lost status, while men did not). Or the law may not provide for particular rights, such as the right to a lawyer or it may forbid making negative comments about the ruler: these apply to everyone, but we would still consider them rule by and not of law.
One can define the rule of law narrowly or broadly, sometimes referred to as “thin” and “thick” conceptions of the rule of law. The first is primarily a procedural conception, although the basic principle that no one is above the law can go beyond that. As the Supreme Court said in the Secession Reference, “At its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action.” (para. 70) Referring back to Re Manitoba Language Rights Reference, the Court identified three elements of the rule of law: “the rule of law provides that the law is supreme over the acts of both government and private persons” (one law for all); a system of “positive laws” that “’embodies the more general principle of normative order'”; and “the relationship between the state and the individual must be regulated by law” (para. 71).
Conceptualizing the rule of law as a thick concept, a view I share, the rule of law ought to contain elements that promote justice; for example, it is not sufficient to include access to courts as a generic aspect of the rule of law if access is limited by economic or other means. The United Nations outlined a “thick” conception of the rule of law as follows:
A “thick” definition delineates positively the rule of law as incorporating such elements as a strong constitution, an effective electoral system, a commitment to gender equality, laws for the protection of minorities and other vulnerable groups and a strong civil society. The rule of law, defended by an independent judiciary, plays a crucial function by ensuring that civil and political rights and civil liberties are safe and that the equality and dignity of all citizens are not at risk. It also helps protect the effective performance of the various agencies of electoral, societal and horizontal accountability from potential obstructions and intimidation by powerful State actors. (“Rule of Law and Democracy: Addressing the Gap Between Policies and Practices“, UN Chronicle [December 2012]).
In other words, the rule of law has evolved to go beyond procedural protections, important though these are, to encompass broader notions of equity and other principles that create the parameters of contemporary democratic states, of which Canada is one. Seen this way, efforts to short-circuit procedural elements of the rule of law can effect the achievement of these goals society seeks to achieve.
Just as with democracy, there are times when observance of the rule of law can be frustrating and antithetical to other goals. If police catch someone “in the act”, why should we have to go through the expensive and often emotional difficulties of a trial, especially when “the act” is designed to undermine the other aspects of a thick conception of the rule of law.? And even if we do not need to have a trial because the accused person confesses, why shouldn’t we just “throw the book” at him or her.
For example, the shooter of Muslims, six of whom died and six of whom were injured, at the Quebec City Islamic Cultural Centre and the serial killer of eight men, most of whom had ties to the Gay Village in Toronto, pleaded guilty; the former was sentenced to six life sentences for the murders and six sentences for the attempted murders with no chance of parole for 40 years, the latter life sentences with the possibility of parole after 25 years. In both cases, the crimes had particularly dreadful aspects, in one case, hate for members of a religious minority and in the other, the nature of the killings, the spreading of fear among the LGBTQ community and a sense that police had not protected members of the Gay Village because of the latter’s sexual orientation; the sentences did not seem harsh enough for some people, including those with ties to the victims or who were members of the victims’ community. Families of the Quebec mosque shootings said that they accepted the judge’s decision (the shooter himself is appealing it).
In these cases, the mosque shooter and the Gay Village serial killer, suspects were arrested and pleaded guilty, one quickly, the other after a long time. In the latter, was the rule of law undermined because links weren’t established quickly enough, because police did not treat the individual disappearances seriously enough because of the LGBTQ ties? Did the rule of law fail the community? The only “trial” issue in both cases was sentencing; both judges gave great consideration to the appropriate sentence, taking into account the nature of the crime, the impact on the community and other factors. Is disagreement over the length of the sentence (or more accurately, the eligibility for consideration for parole, and whether sentences should be concurrent or consecutive) a disagreement about the rule of law or about the application of a particular process of law. Is disagreement in these cases any different from disagreement over the sentence for the driver who killed 16 young hockey players and other team members and injured the others, a case which did not raise the kind of diverse community issues? (I should note that the length of the driver’s sentence has been questioned, in a thoughtful opinion piece by Professor Lisa Kerr as disproportionately long compared to sentences in somewhat similar circumstances.)
Trial by a jury of one’s peers is a bedrock of our criminal legal system. If it is the jury that poses a challenge to the legitimacy of the trial proceedings, does that diminish the impact of the rule of law? That is the question raised by the shooting of Colten Boushie, a Cree man shot by a white farmer who believe Boushie was stealing his truck. The farmer was charged with second degree murder and acquitted. This trial and the outcome resulted in a great deal of anger in the Indigenous community and elicited hate comments against the community.
However, a major issue involved the composition of the jury. The prosecutor used peremptory challenges to excuse potential jurors who might have been Indigenous and as far as anyone could tell, there were no Indigenous jurors on the panel. Peremptory challenges require no explanation, and have been said to permit racial and other bias in jury selection, as alleged in this case. In a case involving an Aboriginal accused, R. v. Williams, the Supreme Court of Canada addressed the opportunity to challenge for cause based on jury partiality, including “generic prejudice” arising from “stereotypical attitudes about the defendant, victims, witnesses or the nature of the crime itself. Bias against a racial or ethnic group or against persons charged with sex abuse are examples of generic prejudice” (para. 10). Madam Justice McLachlin (as she then was), for the Court, noted that knowledge of widespread prejudice in the community can support challenges for cause based on generic partiality and “absent evidence to the contrary, where widespread prejudice against people of the accused’s race is demonstrated at a national or provincial level, it will often be reasonable to infer that such prejudice is replicated at the community level”. In the Boushie case, of course, the accused was white; the concern about prejudice was whether the jury would acquit the accused because of prejudice against the victim or put another way, partiality towards the accused with whose experiences of life they were themselves more familiar. (Bill C-75 would abolish peremptory challenges, a controversial provision, since it would also mean no such challenges to remove a potential juror known to be prejudiced.)
Sentencing and the composition of juries are important aspect of the operation of the rule of law, but they also can represent how the law advances or diminishes the other goals to which the rule of law is linked. In Williams, McLachlin J. explained, “The accused’s right to be tried by an impartial jury under s. 11 (d) of the Charter is a fair trial right. But it may also be seen as an anti-discrimination right” [para. 48].
Controversial decisions on sexual assault raise similar issue, often through judicial comments during trial or in explaining the verdict. For example, a case in Halifax in which a taxi driver was acquitted of sexually assaulting an apparently intoxicated woman in part because the judge believed that “clearly, a drunk can consent”; the judge was found to have used “ill-considered words”, but did not exhibit judicial misconduct; the driver has been tried a second time. One might argue that this case, and others like it, undermine the role of law in advancing equality of women.
These are all examples of where the legal rules or operation of the legal rules, part of the rule of law, raised difficult questions (for example, how to sentence mass or serial murderers, particularly those motivated by hate) or flaws in the system (the ease of forming a jury, at least some members of which might harbour bias, conscious or unconscious or even the less perjorative bring a particular experience to bear, in the sexual assault case of stereotyping). The sentencing examples and judicial commentary or verdicts tell us something about how “the system”, personified by the judge, views particular communities in our society; the jury composition example here, while consistent with the law, reveals how the law — and thus the rule of law — can undermine other objectives that at least theoretically define our society (the example illustrates that the theoretical may not translate into reality). This procedural element of the rule of law provides a disconnect with the substantive objectives of the rule of law.
The mass or serial murder cases take us back to the beginning: if we consider not applying the rule of law to terrorists, should we also consider not applying it to those who undermine the very values that the rule of law advances. In their own ways, all these cases involve individuals who have significantly repudiated the norms of society, who have actively sought to disparage the values that the rule of law seeks to protect or advance. The same can be said of “school shooters”, whether adults or young people. Should we include someone who kills his spouse and children, and perhaps other members of his family? What about a man, known to be violent and already jailed for uttering threats, who killed three women in the space of an hour? (This person was sentenced to “two consecutive life sentences — which each carry a parole ineligibilty of 25 years — for first-degree murder followed by at least 20 years of a life sentence for second-degree murder”.) These are all cases in which the accused/murderer has deliberately killed, often in a cruel or sadistic way.
If we ignore the rule of law (or apply the law automatically in the most punitive form) in cases of terrorists because they have repudiated their status as residents or citizens of Canada, what differentiates them from the individuals in these other cases, or at least the worst of them? Is it that they have actively fought again Canada or might do so when they return? They have, in that sense, renounced their connection with and their loyalty to Canada, and we might question whether they should be allowed to reap the benefits from that connection should they return. Is this different from the collision with societal norms and values (that are not accepted by everyone) that we see in hate killings, for example?
I would argue that while there are differences between fighting for another country and mass murders based on hate, renouncing the rule of law is in either case too high a price to pay to ensure that the perpetrators pay a penalty. Or would it be retribution or revenge? Rather we should address the nature of the cases as they arise; for example, the criminal offence of treason exists to address some of the terrorist acts committed by those with an affiliation with ISIS, either in Canada or externally, carrying a sentence of life imprisonment with no chance of parole for 40 years (interestingly, the same period the judge determined in the case of the mass murderer of Muslims in Quebec). The law and its operation can be criticized without the criticism rising to the level that it contravenes the rule of law and, indeed, that is in itself a benefit of the rule of law. However, when we derogate from the rule of law, we lose the claim to the moral authority in the state that sustains an even-handed, equitable approach to those who our laws and our norms and values, albeit imperfectly realized.
Finally, one of the greatest dangers to the moral authority of the rule of law in a democracy is when it is abused, deliberately or apparently without understanding its ramification: when it is ued proactively as a shield to justify the operation of law that disproportionately impacts particular groups or to promote a law that harms particular communities. We see this in child welfare, “carding”, overzealous policing in some cases, failure to police in others. These are cases in which rather than promoting equality and other goals, recourse the law detracts from them. The answer, though, is not to undermine the rule of law, to ignore it or to shunt it aside as not working, but to tackle its weaknesses. On the contrary, the procedural aspects of the rule of law must be continually reviewed to ensure that they are meeting the substantive goals.