Mark Mancini: The rule of law matters
Is Canada still governed by this crucial democratic concept?
By: Mark Mancini
If the situation in Ottawa over the last week is any indication, the idea that we live in a society governed by something resembling “the rule of law” isn’t quite true. Maybe we might think solving the crisis wrought by several hundred immovable trucks in the capital is just a matter of telling the police to do their jobs. Or, we might think that politicians like Ottawa Mayor Jim Watson—who just called a state of emergency yesterday—were far too scared to end the week-long gongshow. But this would only be part of the story. The more important part is this: an average Canadian could look to the situation in Ottawa and wonder whether the rule of law is a fantasy.
The rule of law is not just “law and order.” It’s an ideal. In the ideal situation, a society governed by the rule of law controls what state actors can do, subjecting them to pre-determined rules and standards. It subjects these actors to external review, say, by courts. It limits power so that state actors must point to a law for what they do. The content of those laws is, crucially, up to us.
In a phrase, the rule of law makes state actors think twice, because there might be consequences for their inaction or misfeasance. In a society like Canada where police and other state actors have vast amounts of discretion to operate, and where the history of police action is riddled with abuses, the law is sometimes the only safeguard for citizens subject to repressive power.
But for the rule of law to be valuable, it cannot just be enforced in courts and by governments. While the rule of law has a special application in restricting state power, it also provides a set of rules or guidelines for how we should live in relation to one another. These rules are contained in our Constitution and our laws, but upholding those rules requires more than just recording them on a special piece of paper. It requires a critical mass of agreement to be bound by these rules. For example, it requires people to tolerate many things they may not like to hear without lashing out in violence. It also requires something in short supply in Canada: mutual tolerance and trust between people in the exercise of rights under the law. If these conditions do not exist, a society is a “rule of law” society in name only.
Ottawa shows us what happens when the rule of law fails.
The police seem to be the first culprits here. No matter the nature of the protest at issue, it is unacceptable—and frustrating—to see police facilitating the continued protest rather than easing it after a week. People in Ottawa were subject to fireworks nearly hitting windows, constant nuisance disruptions and the like, and yet and there appeared to not be a bylaw in sight for the police to enforce. When citizens see jerry cans lining the street, when they cannot get to work on time, and when they cannot live in peace in their homes, faith in the rule of law will obviously falter. This is true no matter what motivates the actions.
The problem becomes worse when the police pick and choose which laws to apply when faced with certain protests. Respecting the right to protest is central to the rule of law itself. But the idea of the rule of law imposes constraints: and eventually, a reasonable right to protest must give way to the right of others to live in peace and harmony — no matter the subject of the protest or action. In this case, the various reports of police facilitating or assisting protestors in moving fuel, or refusing to issue even routine tickets, or otherwise simply watching events unfold, raises disturbing questions about the Ottawa Police. The fact that the police were aware of this protest—and were aware that it could turn into something long-term — only makes this more disturbing. That this all occurred as the Coutts blockade continues unabated at the border makes things worse.
For people that believe that the rule of law is just a fig leaf for whatever the police want to do, the Ottawa situation has provided justified grist for their mill.
Our politicians are also responsible. They’ve reduced the rule of law to a worthless catchphrase. Partisans, in their hypocrisy, cannot invoke the rule of law against Indigenous blockades and then abandon the concept when it demands action in the face of protests they might support. Nor should anyone invoke the rule of law only when it serves the people they like. In both cases, the rule of law has something to say about the matter. While hypocrisy is common in today’s ultra-partisan world — almost boring, at this point, to mention — it’s a poison pill in a rule of law democracy. Hypocrisy breaks the bonds of trust between people. If a group of people feel that politicians and the police will only care about the “law” in certain situations, and only enforce it when they care, no one will or should believe in it. It will be a fantasy.
It would be a mistake to view this as an isolated incident, though it is the most obvious. A rash of church burnings over the summer — and the dismissal of those burnings by some in high places — serves only to reinforce the idea that certain rights and laws are not worth respecting if they are held by people that we dislike. The profound disrespect for someone with a different religion seems to be a feature of our modern political reality, with Bill 21 as the shining example. A society operating under such mutual suspicion simply cannot sustain itself and it will not last.
Amidst this mess, the rule of law makes sure that the state — and the police — do not pick favourites when it comes to protests or religions. It does not prevent us from doing so. We should all disapprove of Nazi symbols and the like, and we disregard this hatred at our own peril, as Americans will know. But we should not want the police to pick favourites. If that happens, the rule of law really is a fantasy.
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