Leadership and the Law

The role of a society’s recognized and legal “leader” is a complicated one. It is affected by and affects the society’s political culture. It can be unifying or divisive. It can seek to move the society forward or to take it back to an earlier time. It can reflect the individual’s ignorance or knowledge of the political unit’s norms, conventions and laws. However, one of the most important aspects of leadership is that the individual understands the law (with help from advisors) and respects the legal system, even though they may disagree with particular laws. A so-called “leader” who shows wilful ignorance of the law undermines respect for the law and its role in society.

“Law” includes the system of positive laws, the constitutional framework governing institutions and their relationship to each other, and conventions and norms; those responsible for creating and interpreting law are also part of the system. We have seen over the past few years a continuing disregard of law in all these forms with the rise of populist “leaders”. Disregard of the law is a tool that assists the “leader” to convince the “ordinary people” that he or she is one of them, not one of the “elite” or those who have previously held power or authority, viewed as those whose actions have been to advance their own interests and who do not understand the needs of ordinary people.

As we see in President Donald Trump, the fact that the leader has a life quite different from that of ordinary people does not matter; they believe he speaks for them, regardless of the impact of his policies on their lives. There is a “bond” between Trump and his followers that transcends the reality of a relationship between a wealthy man who has made self-interest his lodestar in life and those who have always been subject to the vagaries of the powerful.

Helping to establish themselves as “outsiders”, populists seek to undermine established institutions, including legally-related institutions, by portraying ignorance about the law or willfully ignoring the law. What becomes clear is that legal institutions are less firm and established than we may think, especially when the populist leader is surrounded by enablers who share the leader’s views or are willing to put their own aside in pursuit of other goals. Thus the sustainability of the legal system relies far more on the nature and predisposition of the individuals who are expected to uphold them than is desirable.

Doug Ford’s recent comments about accused who are found not criminally responsible by reason of mental disorder is a case in point. Following the departure from the country of a man who had been found not criminally responsible by reason of mental disorder for murder in 2016, giving the slip on a day pass from CAMH, Mr. Ford gave his opinion about what should happen in these cases. According to The Globe and Mail, “’You can’t let guys like this loose,’ Mr. Ford told radio host Jerry Agar. ‘You throw away the key.’ The Premier also referred to the patient as a “nutcase” and “crazy,” terms that advocates say stigmatize mental illness.”

Mr. Ford’s comments raise two issues in particular: the first is exhibiting ignorance about the law in this regard and the second is his choice of language. It is not clear whether he deliberately uses this language because he believes it is what his supporters want to hear, or whether he is ignorant of how NCR works. But this is in keeping with the notion that he is “one of the people”. For him, leadership does not involve finding out what the law is and in taking a measured approach to a situation that raises concerns, but in fomenting anger at a system that recognizes the principle that we do not punish people who cannot form the intent to do wrong. As Patrick Baillie points out in an “Opinion” in the The Globe and Mail,

the verdict of not criminally responsible on account of mental disorder (NCRMD) has been part of the legal lexicon for millennia. It underlines the concept that criminal penalties should apply only when the offender knew what he or she was doing, knew that doing it was wrong and chose to do it anyway. We do not, for instance, incarcerate a driver who has proven to have suffered a heart attack and so fatally collides with a young cyclist.

I suppose there are those who would argue that NCR is a reflection of the “elite’s” view that punishment is not the only goal of the criminal law system and that language such as “mentally ill” is preferable to “crazy”. Frustrating though the NCR system may be in particularly egregious cases and painful though it may be for those who are family members of victims who have been murdered by someone found not criminally responsible by reason of mental disorder, it is nevertheless part of a system that has progressively tried to minimize incarceration when it is inappropriate (I do not deal here with disproportionate incarceration of particular groups) and to develop alternatives to imprisonment.

By his treatment of the law — and his terminology — Premier Ford gives permission to those who would take a rougher approach to those who are mentally ill. Why? Because he is a “leader” and for his followers, he believes, his response is legitimate and conveys an “ordinary” response in opposition to the elite. By doing so, he undermines respect for the law and promotes a less caring society to which NCR seeks to contribute. Caring is not societal, on this view, it is self-interested.

Premier Ford appears to have made a deliberate decision to be this kind of “leader”, one who boasts about his attachment, despite his wealth, to “ordinary people”. It is not clear whether he needs to downplay a level of intelligence and knowledge that might, in the eyes of his supporters, place him in the dreaded cohort of “elite”: perhaps this is not clever, but a natural bent. Regardless, he has shown his disregard for legal norms and conventions in other ways.

Early after taking office, after displaying the vindictive side of his nature by cutting Toronto Council, despite not having raised it during the election, he indicated that he was prepared to use the notwithstanding clause to override any provisions of the Canadian Charter of Rights and Freedoms that might apply to the decision and would be subject to the notwithstanding clause. He backed off when the Court of Appeal stayed the Superior Court decision that found his legislation unconstitutional.

He had the “right” to use the notwithstanding clause, but if he had he would have upended the practice that had developed, with few exceptions, to use it only when absolutely necessary. On this issue, I previously wrote in a December 25, 2018 Slaw post (“Law, Norms and Moral Authority”) the following:

Ford’s readiness to use the override (which would not have applied to a challenge based on the constitutional principle of the rule of law) reflected either a lack of understanding or a complete disregard of the norms of constitutional practice, as well as, in his comments that he was elected and the judge appointed and that democracy means getting elected, a lack of understanding or appreciation for (or disregard of) the relationship between the government and the judiciary.

Another matter that leaves us wondering whether Mr. Ford is indifferent to issues around conflict or whether he preferred to be seen as not knowing what his chief of staff was doing, is the revelation of the appointments of people with relationships to his former chief of staff and the almost appointment of Ron Taverner as the OPP commissioner. If he did not know what his chief of staff was doing, one must question his competence as a leader, but that is not my subject here. If he did know, not appreciating or caring about the conflicts these appointments raised or threatened to raise is yet another example of upending norms, in this case, ethical norms that are related to the legal framework. (On the Taverner appointment, see my Slaw post of December 18, 2018: “Remembering why a Non-partisan Police Force Matters”.)

Mr. Ford has not risen to the stature of Donald Trump in snubbing his nose at established institutions and constitutional protections; the latter’s actions have led to what Garrett Epps in The Atlantic has called “the post-legal era”: “It lives by a principle enunciated 2,000 years ago by the Roman jurist Ulpian and relied upon by tyrants ever since: Quod principi placuit, legis habet vigorem. What pleases the prince has the force of law.” Mr. Trump is a far more accomplished disrupter than is Mr. Ford (or perhaps has more far-reaching designs on upending the system than does Mr. Ford). Nevertheless, as Garrett says, the “post-legal era” was preceded by “the post-norm era”, when constitutional conventions or norms were ignored (Majority Leader McConnell’s refusal to hold a hearing into President Obama’s nominee for the Supreme Court of the United States began this process and it has proceeded apace).

Portraying ignorance in the law by the province’s “leader” as legitimate threatens to make a mockery of law. We do not expect everyone to know what certain areas of law are in detail and we do not expect everyone to agree with them, but we do expect leaders to learn the law, to take advantage of those who are there to assist (and that should include the attorney-general). Disdaining legal institutions and norms and conventions may seem worth gaining points with “The People” (and that may or may not be the case), but it can erode the our system of governance.

Unlike Donald Trump who has evidently set out to destroy important American institutions deliberately, and who has revealed the weakness of those systems when others fail to protect them, however, Mr. Ford seems reckless about the impact his treatment of law may have. His conduct so far is unfortunate and it is disturbing that he thinks this is what leadership is, but a more significant problem would arise if someone were given the latitude to poke around in the institutions of the law the way his former chief of staff was allowed to poke around in the appointments process, without Mr. Ford’s knowledge or with Mr. Ford’s tacit approval.

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