Two Tales About the Rule of Law

A recent opinion piece in the National Post by Leonid Sarota and Asher Honickman explained how the rule of law functions: it constrains government and when people perceive it to overstep, they can challenge it; but it also requires individuals to restrain their actions and use the legal sysem and when they are unsuccessful, they must accept it. As they say, “The rule of law does not, by itself, guarantee justice, but without it just laws cannot be upheld and unjust ones peacefully reformed.” Here I consider two situations in which the rule of law is said (by some, at least) to be failing, one by the government under Donald Trump in the United States and one in Canada with defiance of the rule of law by those in support of the Wet’suwet’en hereditary chiefs who oppose the gas pipeline in northern B.C.

These are two sides of the requirements of rule of law as described by Sarota and Honickman, but they both illustrate how complicated the rule of law can be when the consensus around it breaks down in a significant way. “Minor” situations (relatively speaking) when the rule of law is thrust aside (we have seen blockades before and government officials have engaged in corruption, for example) have occurred before and will happen again, but in the two situations I discuss here, it has become evident that the rule of law is not always about law, it is about politics — not the best of politics but the worst — and about the dominant norms of the political culture. These situations are not about the rule of law’s constitutional status, but rather about the willingness of people living with different views of the world to engage with each and find a way to move forward, at least for a while. At the core, this willingness often requires a greater forbearance from some communities than from others. And at some point, patience wears thin.

The standard characteristics of the rule of law are as follows: it applies equally to everyone, whether rulers or “ordinary” populace and is not arbitrarily applied; it requires the positive laws (those enacted in legislation) to be easily identified and knowable (while the common law is harder to find, it ought to be widely known); public exercise of authority must be grounded in law. One might also argue that the rule of law requires law to be equitable and inclusive, a characteristic related to people’s willingness to accept it. The rule of law transcends individual or specific laws, but is part of the framework of the society guiding or even dictating the conduct of members of society, whether rulers or populace. One thing it is not: it is not synonymous with the concept of “law and order”, a hardline approach to law and its enforcement.

There are pre-conditions to an effective rule of law, one that enables a stable and well-ordered society (“peace, order and good government”, as the Canadian constitution has it) that allows its economic, political and social systems to function: a general consensus to accept it and a general consensus that it matters; a trust that when laws may not be as they should be, they will be changed or, put another way, law is “fair” most of the time and there are ways to address it if it is not; if we are found to have contravened the law or disagree with government action or think we are not being treated fairly, we have a system of adjudication that is designed to reach an impartial result based on understood processes a recognition; while the fundamental concept does not change, the elements that make up its components will evolve in a positive way; and a willingness of all parties to play their role in a complementary and reinforcing way. (Of course, these pre-conditions do not always prevail: for example, as far as dispute resolution is concerned, we do not always agree with the outcome and sometimes the so-called impartial adjudicator turns out not to be impartial.)

The rule of law requires that we all have a pretty good idea of what is expected of us and it is the rule of law that helps us hold each other to account. It requires that, like it or not in a particular situation, we accept it or work through legal or political channels to change it. Within the rule of law, we have the right and freedom to criticize it and decisions emanating from it. We have the constitutionally protected (within limits) freedoms of expression and of assembly. As Jennifer Klinck and Madelaine Mackenzie write in The Globe and Mail,

…[U]nequal distribution of wealth and social standing amplifies some voices and silences others. In short, freedom of peaceful assembly gives marginalized groups a way to make themselves heard.

To respect freedom of peaceful assembly, governments and the community must tolerate a degree of disruption, because it is the disruptive nature of public protests that amplifies their messages. The location of protests may be particularly significant even though, or specifically because, it compounds public inconvenience….

Peaceful assembly rights are not typically interpreted to include physical obstructions (unless incidental to the right to be assembled in a particular place at a particular time). Nevertheless, law enforcement’s response must be proportionate and seek to uphold, not suppress, peaceful assembly.

Finally, freedom of peaceful assembly often operates where law ends and politics begin. Protesting is how marginalized groups can demand to be heard in the face of systemic injustice. For this reason, we should not be surprised to find that simplistic appeals to the rule of law are often unhelpful: the very problem may be unjust laws.

Klinck and Mackenzie’s last point highlights the reality that not everyone does see the rule of law in the same way. We are often tempted to emphasize the laws enacted under the rubric of the rule of law, but we consider wrong, and blame the concept: after all, the concept is an abstract notion and it is the implementation that affects people’s lives. Two commentators, with quite different views, illustrate this point starkly.

One view of the rule of law, and probably the majority view, at least theoretically, holds, as Andrew Coyne writes in The Globe and Mail, is to stress that it applies to everyone equally and, “If you want the law’s protection, you also have to accept the law’s authority”. In the same edition of The Globe and Mail, Corey Shefman, a lawyer who represents Indigenous peoples, emphasized those calling for the rule of law “treat the rule of law as if it is a neutral, amorphous thing…But law is not neutral.” Rather, “[t]he invocations of the rule of law are not simply innocent pleas to neutrality to once again disenfranchise Indigenous people so that settlers won’t have to be inconvenienced”.

Before considering my two current examples more fully, I’ll refer to some examples of how the rule of law — as in “the law” — can be used in cases in which particular laws were considered to fall within the rule of law. It was law that supported the internment of Japanese Canadians (by Order in Council) and Japanese Americans (by Executive Order) during World War II; it was law (under the War Measures Act) that former Prime Minister Pierre Trudeau used to quash the FLQ in Quebec during the “October crisis” in 1970. And, not merely coincidently, it was the law that was and is responsible for supporting one of the most shameful elements of the Canadian story, the treatment of Indigenous peoples.

However, it was also the rule of law that advanced religious freedom in Canada (in the 1959 Supreme Court of Canada decision in Roncarelli v. Duplessis). Existing Aboriginal and treaty rights have constitutional status under section 35 of the Constitution Act, 1982 and rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms are, by virtue of section 25 of the Charter, to be interpreted so as to not take away from any Aboriginal, treaty or other rights or freedoms. It is the law through Supreme Court of Canada decisions that has sometimes, although not always, recognized Aboriginal rights, including rights of hunting and fishing, Aboriginal title to traditional territory, and the duty of federal and provincial governments to consult, among others, although these are not necessarily straightforward and are open to interpretation. (One caveat here is the assumption Indigenous claims are appropriately adjudicated under the current legal system, an assumption with which not everyone agrees.)

The lists of ways law has advanced rights and ways in which it has denied and held back rights are lengthy. Most communities, including African-Canadians, LGBTQ+ and women (sometimes all women and sometimes only women whose identities intersect with others) have experienced law as a negative experience and have been subject to laws that have affected only them. Yet change has come about — incomplete though it may be — because of the processes protected by the rule of law and the principles of equality related to them.

All in all, that’s an admittedly sunny, but nevertheless more or less realistic, way to view the rule of law: as mostly working, but with bumps along the way, and with sufficiently widespread acceptance, varying among particular communities for whom the law has been less sanguine, that departures can usually be resolved, albeit sometimes gradually over a long time. There is, of course, a caveat to everything I have said: the highly significant factor that generally speaking everyone agrees with the broad parameters of the rule of law and accepts it and acts accordingly, whether those who are in power or those who are not.

If there is not this general acceptance, we run into trouble. Because there is a continuum along which we can acknowledge and accept deviations from the rule of law; beyond that continuum, however, we run the risk of the dissolution of our “social contract”, that implicit agreement about how we live together and the conduct we can expect from each other. This can occur among those who govern and those who are part of the populace who do not have a role in governing. My two examples illustrate this point, albeit in quite different ways.

I turn first to the Canadian situation, that of the blockades by Indigenous people and their allies in support of the hereditary chiefs in British Columbia and their refusal to permit Coastal Gaslink to build a pipeline through their territory. Although there are various aspects to this dispute and it is not a simple matter (for example, for some protestors, the issues go beyond the specific one), it is possible to identify the fundamental elements in order to discuss this example of the apparent breakdown of the rule of law from the perspective of those — or at least some of the protestors — who do not have a role in governing. Who governs — who defines the rule of law — is one of the difficult aspects to resolve. For this is a case in which neither the main protagonists nor those internal to the Indigenous community agree on the parameters of the rule of law.

The situation began with approval, after several years of preparation and two applications for environmental approval, of a natural gas pipeline owned by Coastal Gaslink to run between Dawson Creek and Kitimat in British Columbia. Coastal Gaslink had consulted with First Nations and others along the route, took into account the environmental impact and received regulatory approval. Given the feedback from Wet’suwet’en leaders, the company developed another route, which also received regulatory approval. According to Coastal Gaslink, “In late 2014, Coastal GasLink initiated a program to provide local Aboriginal groups with the opportunity to participate in field study activities, information sharing and intergenerational transfer of traditional and cultural knowledge along sections of the Coastal GasLink pipeline corridor.”

In fall 2018, Coastal Gaslink signed community and project agreements with 20 band councils along the route, including five of the six from Wet’suwet’en First Nation. The pipeline would provide employment and other benefits, including community investment, for many Indigenous people who will be involved in building the pipeline and other activities. The benefits amount to some $1B.Barry McKenna has described the impact for the bands if the pipeline is not built. The band councils are responsible for the reserves. However, the unceded territory of Wet’suwet’en First Nation is far larger, some 22,000 square kilometres, and is governed by the hereditary chiefs (the Supreme Court of Canada acknowledged title in this territory in Delgamuukw v. British Columbia). And the five hereditary chiefs have not agreed to the pipeline; they oppose it being routed through their territory. They demand B.C. address the issue of Wet’suwet’en title to the territory.

When members of Unist’ot’en, an affiliate of Dark House, one of 13 Wet’suwet’en Nation hereditary house groups, set up a camp to block access to the public road near Houston, B.C. in December 2019 and thereby barred access to the construction site, Coastal Gaslink was successful in obtaining an injunction to prohibit the protest. The RCMP enforced the injunction on February 6, 2020. They made 28 arrests, with disputes between the RCMP and the protestors about the nature of the enforcement and use of guns, according to a Globalnews report. (For a history as set out by the CBC, see here and information about the length of the conflict between the provincial government and the hereditary chiefs on environmental issues, also by the CBC, see here.)

Shortly afterwards, the first blockades began, at Tyendinaga Mohawk Territory, outside Belleville. Additional blockades, disruptions and protests have occurred in Toronto; Edmonton; Lambert, Quebec; Kahnawake; Hazelton, BC; west of Winnipeg; Saskatchewan; Vancouver, and elsewhere. Some of the blockades have been short-lived, but the Tyendinaga blockade continued until the RCMP enforced an injunction obtained by CN. Other protests continue and . (For a timeline from December 31, 2019 to February 20, 2020, see here. For a partial list of arrests at various protest sites, see here.)

After efforts to engage in talks with the hereditary chiefs were unsuccessful, the Prime Minister announced on February 21st that the blockades “must now come down”. The OPP enforced the injunction against the Tyendinaga Mohawks’ camp on February 24th, after telling the protestors they could leave without investigation or charges if they left by midnight on February 23rd. New protests have begun in support of those arrested in Tyendinaga, including along the CN track used by the Go train outside Hamilton (an interesting aspect of a protest at Caledonia is the statement of one Mohawk protestor, a sociology instructor at McMaster University, who says she will bring her students to the blockade for credit).

The impact of the blockades has been to bring rail traffic to a halt between Montreal, Ottawa and Toronto, affecting passengers and small businesses, in particular; some 1,500 railway workers have received layoff notices.

Although there has been a great deal of discussion about how to respond to the blockades, most other members of the public have tended to be quiet. It is not surprising, however, that residents near a highway on Vancouver Island began to tear down a blockade across the highway; one of the residents was arrested. A group of counter-protestors began to dismantle part of the blockade on the outskirts of Edmonton last week.

An Angus Reid poll “found that 51 percent of Canadians support the pipeline while 36 percent are against it. Less than half of Canadians are for the Wet’suwet’en solidarity protestors with 39 percent supporting them.” According to an Ipsos poll reported in the National Post on February 19th, 53% of respondents, including 69% of Albertans, agreed with police intervention, this varied with region and age. In Ontario 48% and in Quebec 42% approved of police action. Fifty-eight per cent of people aged 18-34 think the blockades are justified, while overall 61% of Canadians think they are not justified.

The RCMP have now announced they will move away from Wet’suwet’en territory to a town nearby, thereby fulfilling the condition imposed by the Wet’suwet’en hereditary chiefs before they will engage in talks. (Also see the Coastal Gaslink website.) However, the hereditary chiefs have said that before they will talk, having issued an eviction notice to Coastal Gaslink on January 1, 2020, they also want workers to leave the area. The RCMP have moved their temporary office, but are still patrolling the access road, which is not satisfactory to the hereditary chiefs.

The dispute also reveals tensions among members of the Wet’suwet’en nation. For example, a member of the Witset band who has contracts with Coastal Gaslink, explained “the elected chiefs recognize that employment can be a multi-generational gain for the family. People working on a pipeline can send their children to school to provide for better opportunities in the future. The elected chiefs want to break the bondage of poverty that exists within our communities.”

More fundamentally, the issue of who speaks for the Indigenous peoples affected by the pipeline also raises the question of the who represents the rule of law on the territory.

Two hereditary subchiefs have reluctantly spoken out about their disagreement with the hereditary chiefs and questioning the legitimacy of the hereditary chiefs. One, Rita George, says,“I want the world to know what’s been happening to us. We are being bullied, it’s so shameful, so hurtful. We are being humiliated.” According to a report in The Globe and Mail, she “said the opposing hereditary chiefs and some of the people around them – including outside activists who have embedded themselves in the protest camp – have disrespected ancient feast-house traditions of how to treat one another”. A second subchief, Gary Naziel, makes the same point, saying, “These five so-called hereditary chiefs, who say they are making decisions on behalf of all Wet’suwet’en, do not speak for the Wet’suwet’en,” and “They are neither following nor abiding by our traditional laws. They are changing them to suit their own purposes, to benefit themselves.”

There is a different view about these disagreements, articulated by Amber Bracken in MacLean’s as follows: “The Wet’suwet’en are not a nation divided, they are a nation with differing opinions on the best route to a better future after history of oppression.” On this view, the band councils’ willingness to enter into agreements with Coastal Gaslink are subsidiary to the claims related to title: “based on Wet’suwet’en and Canadian law, it’s ultimately the hereditary chiefs who have jurisdiction to the territory, and they have been clear about their aim—to assert self-governance over their land and demand a nation-to-nation relationship with Canada. It’s a move that would benefit all Wet’suwet’en.”

On the face of it, though, the protestors are breaking Canadian law: it seems the rule of law is being flouted by a relatively small number of people, albeit a small number who have chosen a strategically significant target, the railway lines, because of the role the railway played in creating Canada, along with ports and highways. A major underlying question for the rule of law under these circumstances is whether it can encompass Indigenous understanding of law or whether the rule of law governing Canada and the rule of law in Indigenous traditions are too different. One Indigenous law professor and former president of Native Women’s Association of Canada, Beverly Jacobs, considers the Canadian rule of law racist and describes the Indigenous rule of law this way:

If we talk about Indigenous rule of law, we’re talking about our relationship to mother earth. We’re talking about our ceremonies. We’re talking about our governance systems. We’re talking about our respect of mother earth and natural law – and it’s a whole different worldview about our understanding of our relationship.

The blockades over the Coastal Gaslink pipeline represent a challenge to the rule of law in a fundamental way, whether there is sufficient agreement on the principles underlying it to resolve the Wet’suwet’en hereditary chiefs’ opposition or at least to provide the conditions for negotiation or, whether, instead those opposing the hereditary chiefs will supplant them, positing a view of Indigenous rule of law that can exist beside the dominant Canadian version. The rule of law that governs Canada remains in place and affects most of the decisions, political and judicial, that define the country. The blockades do not threaten it as a fundamental postulate, although in the long term, it will have to either live side by side with a different understanding of the rule of law or it will be necessary to interweave the two. At the same time, it is desirable to recognize the rule of law as a principle, an aspirational statement to which positive laws and conduct are to conform. Of course, they do not always conform; but that does not detract from the principle, as long as we continue to work on conformity.

The situation in the United States is quite different. There, the rule of law is under attack by the institutions that are intended to protect it, as various institutions support the activities of the President, Donald Trump. Here I refer to some ways in which the rule of law is at risk, but not all (for example, I do not consider problems with elections, suppression of voting and similar matters that diminish the perception that those who have been elected have been legitimately elected).

It is not unreasonable that some commentators in the United States consider the country is on the way to authoritarianism (see, for example, Brian Klaas in The Washington Post following Trump’s acquittal in the Senate after being impeached in the House of Representatives). As he writes,

Democracy is fragile. It is built on a foundation of laws and norms that develop over decades. One of the most important norms in any democracy is the shared expectation that elected officials who abuse their official powers for personal or political gain must face severe consequences. Trump will face none.

The concerns arising from the Senate’s acquittal and corresponding words and actions

would be quite worrying indeed if the current president were someone who mimicked the behavior of autocrats. We would be right to panic if the man in the White House was someone who, for example, attacked the media with Stalinist rhetoric, scapegoated minority groups, called for the jailing of his political rivals, politicized the rule of law, hired cronies and family members for top jobs, called to ban an entire religion from entering the country, directly profited from his office, and had invited foreign adversaries to help him stay in power. (Links omitted.)

These are all activities (and Klaas provides links to stories for all of them) in which Trump has engaged.

He has taken revenge against some of those who testified in the House of Representatives at his impeachment hearing. (One commentator argues that although many people describe Trump’s actions in this regard as “retribution”, his conduct is more accurately described as “revenge”: retribution is a response to a (moral) wrong, while revenge is a response to an injury, but the injury is not a “wrong” and “Trump is striking out at his perceived enemies because of their disloyalty to him, not because they did anything unjust or immoral.”)

Beyond that, he has appointed an unusual number of acting top bureaucrats to various positions, often unqualified, but who have proven their loyalty to Trump (see, for example, here, here and here and on the significant extent of turnover, a Brookings Institute study here; they do not have to be approved by the Senate and he has more control over them. There is an ongoing “purge” of existing political appointees who have expressed concern about Trump’s actions (see here and here).

Trump has said he has omnipotent power under Article II of the US Constitution: “The executive power shall be vested in a President of the United States of America” in Section 1, followed by the presidential powers identified in Section 2. And at the same time, works to undermine the checks and balances inherent in Article I: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives,” with legislative powers following. Trump has ignored or counteracted congressional oversight.

Put bluntly, Trump seems to believe he is not subject to the rule of law; he sees himself as equivalent to the state and disloyalty to him — as a person — as disloyalty to the country, even as treason. For example,

At a Feb. 5, 2018, speech about tax cuts in Ohio, Trump complained that Democrats had not applauded for him enough at his State of the Union speech the previous week. “Can we call that treason? Why not? I mean, they certainly didn’t seem to love our country very much,” he said.

He called people cooperating with the Mueller investigation “treasonous”.

The majority Senate leader, Mitch McConnell, has found his instrument in Trump for maintaining Republican control. He refuses to bring to the floor of the Senate bills enacted by the House, but he does ensure that Trump’s nominees for judgeships are brought forward for consideration; he helped Trump maintain a conservative-leaning Supreme Court of the United States by refusing, unconstitutionally, to bring forward former President Barack Obama’s nominee for SCOTUS on the ground that there would be an election in a year, while already announcing he would bring forward a nominee this year should the occasion arise. His refusal to follow the usual processs meant a large number of judicial vacancies for Trump to fill (see here).

Many of his judicial nominees have been unfit for the positions, with the American Bar Association’s assessment of nominees as “not qualified” having less impact; also see here for details of both successful and unsuccessful nominees.

The American system of checks and balances is intended to address the problem of a rogue executive. One element is the judicial system. As explained, there are serious questions about the competence of some appointees, but as significant is whether the Supreme Court of the United States is playing its role in maintaining the executive within appropriate bounds. Recently, Justice Sonia Sotomayor strongly criticized SCOTUS in a dissent as being (effectively) biased in favour of the administration. The President tweeted that she and Justice Ruth Bader Ginsburg should recuse themselves from cases involving him.

Another major check is Congress. Instead, the Republican-held Senate has served to enable Trump’s conduct and, with some individual exceptions, has minimized the impact of his conduct by either denying it or accepting it, but saying it doesn’t matter (a variant on “it’s just the way he is”). A number of senators had been strong — and often mocking — opponents of Trump prior to the election in 2016, but are now total loyalists.

Most significantly, perhaps, the guardian of the rule of law, the attorney general of the United States, Bill Barr, and Department of Justice subject to his leadership, not only fails to enforce the rule of law but intervenes to bar its application. (For example, he intervened to affect the sentencing recommendation in Roger Stone case; not everyone agreed that Barr should not have intervened, but the problem is that it seems he did so to satisfy the president, after all the judge could — and did — give a lighter sentence. See statement of investigation by Citizens for Responsibility and Ethics in Washington.) Barr signalled his intention when he wrote a memo effectively auditioning for the position of attorney general. His apparent position about obstruction of justice in the memo — that Trump did not obstruct justice — was affirmed in his misrepresentative summary of the Mueller Report. Generally, the concern is that Barr acts as if he is the president’s personal attorney, not the attorney general of the United States (see here).

Although not illegal, Trump has held rallies of his supporters during which he can only be described as a demogogue, excessive and explicit lying or misrepresentation about a wide range of issues, amounting to over 16,000 lies, and requiring others to lie for him, insulting those who disagree with him on Twitter and in person and generally convincing those attending his rallies that he is a victim, just as they are. These rambling speeches are the background support for the actions that are directed at dismantling the institutions that are relevant to the rule of law: opposition politicians and structures, the media, the courts. They are also directed at polarizing the population, another way the rule of law can be undermined because those wanting to support it find it difficult to get sufficient support.

It is important if the rule of law is to be accepted that people trust it; but in the United States — and this sometimes seems to trickle across the border — it has become difficult for people to know truth from fabrication: they do not know whom to believe, leading to distrust in the political system and it will, given how judges are being appointed, lead to distrust of the legal system. The situation reveals the rule of law’s fragility, how easily its impact can be diminished and the institutions meant to protect it becoming more and more endangered.

In sum, a passionate analysis of Trump’s “war” with the rule of law can be found here; it was published last fall and the situation has merely worsened. The much vaunted checks and balances does not work when a major party fails to act as a check, shifting the balance in one direction.

I return now to the pre-conditions for the rule of law to operate successfully. I do not mean my analysis to be exhaustive, but to indicate how the circumstances discussed above illustrate the severity of the risk.

1) A general consensus to accept it and a general consensus that it matters:

A significant portion of people both Canada and the United States believe the rule of law is crucial to how their country functions. There the similarity ends.

In Canada, there are disputes about what the rule of law means and what effects it has had and disputes about laws that are enacted and implemented under the prescription of the rule of law, but it is generally accepted. Where there may be difficulty is how many people care about it, less through opposition, but through complacency. Generally, though, this precondition is satisfied in “normal” times, perhaps sufficiently to counteract efforts to dismantle it (a repeat of wartime internments, for example) and deeply enough that it can withstand disruptions.

In the United States, the problem lies less in explicit opposition to the rule of law, but in the support given to those who are in a position to undermine it. And those in the position to undermine it, including the President and his enablers do not accept it as a principle to guide their actions. The threat to the “consensus” comes from the top.

2) A trust that when laws may not be as they should be, they will be changed or, put another way, law is “fair” most of the time and there are ways to address it if it is not:

In Canada, there are particular segments of the populace who believe the law is not fair to them, a lesser or greater degree. In some cases, this means people will not resort to the law to remedy a wrong, but more often they will. Even in the usual case, the person losing may not be happy with the result, but accepts it. It is when the law’s treatment of particular issues or members of particular communities that trust may be weak or even non-existent.There are also means by which we can criticize the law or use the legal or political systems to change it. But it is the rule of law itself that provides the path to address these issues, even if sometimes slowly.

In the United States, although inevitably some people have not been satisfied with the legal system and believe it has failed them, as in Canada, there is a greater potential for distrust among more people, given recent appointments and concern that the Supreme Court of the United States is not impartial (a relatively long-standing problem that appears to be worsening).
3) If we are found to have contravened the law or disagree with government action or think we are not being treated fairly, we have a system of adjudication that is designed to reach an impartial result based on understood processes a recognition:

This is related to 2), but goes more directly to the court and tribunal systems.

In Canada, while there is criticism of adjudicators for being biased, it is not widespread. Even those who criticize the system as fundamentally flawed, will use it to advance their own interests. For example, the pipeline’s opponents are using the legal system to enforce rights; two Wet’suwet’en hereditary chiefs have brought a constitutional challenge to the federal government’s approval of the Coastal GasLink pipeline and protestors are challenging the injunction ending the blockade of the Port of Vancouver.

The selection system judges makes a comparison with the United States on this pre-condition more difficult, since some judges are elected and others appointed. Again, however, the real problem arises at the top. Significantly, the President of the United States believes he is ill-done by by the judicial system and does not hesitate to criticize judges, whether the matter concerns him personally or administrative matters, or to influence them or his attorney general. Lack of respect at the top for the judicial system feeds his supporters and goes to the fundamental instrument of the rule of law. Here the risk is also that, as with much of what Trump says, his supporters simply accept it and it is as if his criticisms become theirs through osmosis.

4) A recognition while the fundamental concept of the rule of law (with its protections) does not change, the elements that make up its components will evolve in a positive way:

The concept of the rule of law in Canada has changed very little; it has not become a synonym for “law and order”. But laws have changed, sometimes to deprive people of rights or benefits, but often to extend them. Although there may be exceptions, the widespread consensus about the importance of the rule of law tends to lead to legal developments that support it rather than diminish it. In particular, the aspect that the law applies to everyone equally, those with power and those without, again with exceptions, generally applies. And when it fails, a free media and other tools allow most of the failures to be discerned and addressed.

The developments in the United States raise a serious question about whether the rule of law is changing shape. A readiness to allow the President to break the law (by firing people, expressing hatred on Twitter, slandering people, benefitting from his businesses, for example) apparently with impunity, manifests a deep scar across the principle that all people are to be treated equally.

5) A willingness of all parties to play their role in a complementary and reinforcing way:

Our political system functions relatively well, with countervailing forces to those holding political authority. It is always possible to point to “grandstanding” instead of contructive criticism by the opposition in Parliament or the government’s failure to take into adequate account opposition to its policies. However, it is not news that the prime minister has accrued greater power over the last two decades or more. We rely on the other political parties, judiciary and the media to hold the government to account; the ultimate check is, of course, the electoral process and in this regard, subject to criticism because it is based on first past the post, it is secure and open. (One must question whether a straightforward proportional representation would be preferable, given the potential for small, sometimes extremist, parties, as we have seen elsewhere.) As for the electoral process, there is fear that voter suppression and other ways of affecting the vote, along with the interference by Russia, will mean an illegitimate election. (Trump’s refusal to accept that Russia intervened in the 2016 election and will (or is) in this one, because he believes it will make his election illegitimate, is another way he has diminished the rule of law; it feeds the confusion and distrust the intervention is meant to engender.)

It is here where the concerns about the rule of law in the United States may be greatest. The willingness of the President and his administration, particularly Attorney General Barr, given his role, to ignore or override the rule requires pushback. The institutions that should play this role are choosing not to do so or are doing so haphazardly. In particular, the Senate — along with the House of Representatives, the major check on extreme executive power — has abdicated that responsibility. After Trump’s election, much was made of how his advisers and cabinet secretaries would hold his more intemperate tendencies in check; however, apart from those he appointed initially, he has gradually rid his administration of any “meddlesome priests” and replaced them with yaysayers and enablers. Media valiantly seek to reveal the worst of the excesses, but the polarization of the population also means polarization in the media they seek out and rely on; and there is a tendency in the media to chase the latest controversy at the cost of persevering with the most significant. The vigilance required by the rule of law is hard to maintain.

The risks to the rule of law in Canada and the United States are different. The questioning and challenging of the rule of law in Canada from Indigenous peoples (albeit not all) requires addressing, but it also requires recognizing that it is through law that rights have been recognized. Ultimately, it has been necessary to use the law to end blockades (and probably will continue to be) because the diversity of issues and significance of the issues to be addressed cannot be dealt with quickly. Yet the continuation of the rule of law, which is on the whole stable, depends on addressing those issues. The reality is that this is not easy, but if those responsible approach resolution with integrity and with a recognition of reality, it will be the rule of law that allows resolution.

The United States is closer to the disintegration of the rule of law because of its dismantling at the top. This could change, of course, but each step makes it more difficult to come back from the brink. Facing impeachment, Trump threatened civil war if he was convicted; of course, he was acquitted so his ability to rouse his supporters wasn’t tested. While this could be seen as a sign of his mental (in)stability, it cannot be ignored, given the constancy of his supporters. The decline in trust in the system, the polarization of the population, the failure of the checks and balances to function as effectively as they should all preceded Trump’s election (as did many of the other signs of a weakening rule of law), but they have progressed rapidly since. Given the complete disregard at the top, it is fair to say that the threat to the rule of law in the United States far exceeds that in Canada.

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  1. “[141] But the rule of law has many dimensions, or in the words of the Supreme Court of Canada is “highly textured”

    During this current flare-up; the following passage from the ONCA becomes highly relevant to the Rule of Law in the context of ongoing indigenous blockades/protests:

    Henco Industries Limited v. Haudenosaunee Six Nations Confederacy Council, 2006 CanLII 41649 (ON CA)

    The rule of law

    [140] Throughout his reasons the motions judge emphasized both the importance of the rule of law and his view that “the rule of law is not functioning in Caledonia” and “the law has not been enforced”. As we said in our reasons on the stay motion, no one can deny the importance of the rule of law in Canada. The preamble to our Constitution states that Canada is founded on principles that recognize the rule of law. The Supreme Court of Canada has said that it is one of our underlying constitutional values. See Reference re Secession of Québec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, [1998] S.C.J. No. 61; and Reference re Resolution to Amend the Constitution, 1981 CanLII 25 (SCC), [1981] 1 S.C.R. 753, [1981] S.C.J. No. 58.

    [141] But the rule of law has many dimensions, or in the words of the Supreme Court of Canada is “highly textured”. See Reference re Resolution to Amend the Constitution, supra, at p. 805 S.C.R. One dimension is certainly that focused on by the motions judge: the court’s exercise of its contempt power to vindicate the court’s authority and ultimately to uphold the rule of law. The rule of law requires a justice system that can ensure orders of the court are enforced and the process of the court is respected.

    [142] Other dimensions of the rule of law, however, have a significant role in this dispute. These other dimensions include respect for minority rights, reconciliation of Aboriginal and non-Aboriginal interests through negotiations, fair procedural safeguards for those subject to criminal proceedings, respect for Crown and police discretion, respect for the separation of the executive, legislative and judicial branches of government and respect for Crown property rights.

  2. Hamilton Spectator – Feb. 28 – 2020

    https://www.thespec.com/opinion-story/9870479-wet-suwet-en-blockades-rule-of-law-is-a-convenient-weapon/

    Wet’suwet’en blockades: Rule of law is a convenient weapon
    The rule of law also mandated Indigenous kids had to attend residential schools

    The rule of law is a convenient weapon for governments to use, as they’ve done for over 150 years, when Indigenous peoples assert their rights and try to hold Canada accountable. Far from a neutral, universal good, it has been turned against the very people it was meant to protect.

    Until Canadians and our governments start seeing the rule of law through the lens of colonialism, and recognize the lopsided, inequitable and hypocritical ways in which it has been deployed, there will be no justice for Indigenous peoples and no peace for Canadian’s colonial institutions.

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