Democrats at the Blockades? The Rule of Law Precludes Political Discretion in the Enforcement of Court Orders and Public Order Laws

We are all slaves to the law in order that we may be free.

Cicero

 

Introduction

During the three-weeks’ long February blockades in Canada, Globe and Mail columnist Andre Coyne made some extraordinary claims about the Rule of Law in “The rule of law is about more than rules, or law.” Failing to enforce court orders and public order laws would not contravene the Rule of Law because, according to Mr. Coyne, timely enforcement actually represented a “cramped understanding of the rule of law’s foundations.”

“The rule of law does not consist,” he said, “only in legal texts or the courts and police that apply it.” Rather, the executive must determine before enforcement whether there is sufficient willingness among certain segments of the public to abide by the law in question:

For a law to have any meaningful chance of enforcement, it must enjoy the support or at least acquiescence of a substantial majority, whether of the population or sub-population.

In the case of the blockades, Coyne claimed that the future possibility of a sufficient lack of assent by a large number of indigenous people should enforcement go badly (“an ‘attack,’ as it might be perceived, on some members of a community can all too easily be seen as an attack on all”) required that the authorities hold off in enforcement. Where most of us might want our rights to be inoculated against political considerations, Coyne contended for the opposite: “The ways in which the legal and political spheres inform each other are often overlooked.”[1]

We must recognize this popular assent or democratic participation argument (I’ll call it the assent argument),for what it is. It is not just nervousness about enforcement.[2] Rather, it is an attempt to provide an intellectual basis for inaction and delay in the enforcement of the law. The assent argument is just another version of the we must allow disobedience of the laws to uphold the Rule of Law argument of some activist lawyers and social justice academics.

Coyne’s formulation stands the Rule of Law on its head. No longer is the Rule about executive accountability to legal authority. Now it is a demand for the executive to regulate the legal side and direct its policing arm to avoid enforcing court orders and the criminal law. It is directly contrary to Coyne’s rightfully indignant Rule of Law opinions in the Globe last year on the SNC-Lavalin criminal prosecution, dealing there with political interference in its prosecutorial arm, or more recently in his writings on the Meng extradition case (where he seemed rather more sensitive to the consequences of rewarding extortive behavior).

While democratic decision-making grants legitimacy to the Rule of Law, and is of necessity in enactment of laws by the legislature, assent cannot be an element in enforcement of the laws already passed by the legislature or after adjudication by the courts. Granting the executive the right to second-guess on enforcement would lead to anarchy in the legal system, which is obvious from Coyne’s inability to give us the sense that he has any workable alternative resolution to timely enforcement of court orders and the criminal law:

By contrast, patience on the part of the authorities – not capitulation, but patience, goodwill and, where possible, negotiation – is likely to maintain the support of the larger section of indigenous opinion. This places a similar constraint on their antagonists on the barricades: In the battle for the middle ground, whichever side appears the most reasonable has the best chance of winning.

Best chance of winning what? Who gets to participate? Who decides? How will enforcement eventually occur? Why is the “winning” to be decided later rather than sooner? (And what about the rest of us who are having our rights infringed during this stylized dance between politicians in the executive and law breakers?) We can see no indication that Coyne’s route, whatever it might be, has any of these answers. Like its vague liberal cousin, social license, we cannot know how popular assent to enforcement is ever to be determined and enforced.

Why is the doctrine of assent unworkable? Because it infringes some conditions very fundamental to the Rule of Law and our legal system. Politicians determining supposed assent and deciding to hold off in enforcement requires casting off the separation of powers and judicial independence, the courts becoming mere counsellors to the executive. When public order laws are not enforced because of assent and political discretion, citizens lose their freedoms and the expectation that the state will protect them. Those that cannot succeed before a judge or the ballot box are encouraged to organize a mob.

***

I want to more fully examine the Rule of Law and to outline the processes that we have set up to comply with its principles so as to show why our system cannot support a theory of popular assent at the enforcement stage.

I will not be here arguing Coyne’s conjecture about the possible lack of overall indigenous support for enforcement, nor of the foolishness of negotiating enforcement with law breakers, although that seems self-evident to me. Nor, do I intend arguing how placating and negotiating with lawbreakers, in itself, will diminish the rule of law to those who are law-abiding, although that, as well, seems self-evident.[3] And I will not be arguing the co-optation of the protests by urban environmental activists in many of the urban blockades, or indeed of their co-optation of the police, which was so demoralizing to the rest of us.

My argument rather is that the executive has no discretion to avoid enforcement. There is no place for perceived assent in the Rule of Law and the law itself must be assiduously enforced.

Before examining the principles behind the rule of law and the structure of our legal system to incorporate them, I would like to first review the facts of the blockades before touching on the types of law, which ought to have been properly enforced.

Background Facts

The blockading of railways, highways, bridges, ports, arterial thoroughfares, and even a legislature, occurred throughout Canada for some three weeks in February causing major impositions upon ordinary Canadian citizens, including lost wages, lost revenue, missed medical procedures, and the like. The actions caused considerable damage to the Canadian economy and investors indicated their intention to withdraw any future investments in Canada. The blockades engaged both federal and provincial authority.

The initial blockade occurred during the construction of the Coastal GasLink project in northern British Columbia. The project, approved after consultations with the Wet’suwet’en peoples, were opposed by some claiming to be Wet’suwet’en hereditary chiefs. After a full hearing of the issues, during which counsel for the hereditary chiefs tried to make their case, an injunction order was granted by Madame Justice Church of the British Columbia Supreme Court. The RCMP finally moved then to enforce the rights of Coastal. Thereupon many sympathy protests broke out throughout Canada, some led by indigenous groups, but many clearly coordinated by urban environmental activists, whose motivations were to send a chill over natural resource development.

Protestors used coercive tactics. They also co-opted and manipulated the police to their benefit, the police threatening to arrest citizens who wished to exercise their liberty rights to proceed unimpeded, while doing nothing to remove the law breakers or their obstructions, as they had clear legislated power to do (under sections 30 and 495 of the Criminal Code), even without court orders. Major rail lines were shut down in central Canada, with major indigenous participation. Ports were blockaded, as was arterial access to many important necessities such as hospitals. Courts throughout Canada issued orders to have the blockades and obstructions removed, based upon centuries-old precedents.

But no action was taken for weeks. Although some Canadian jurisdictions lack a clearly defined structure for civilian or democratic control over policing, it cannot be said that the police are not accountable to the public for their control over public order. Throughout the ordeal, it was clear that politicians in different governments, and some in the police command, lacked the will to ensure the proper use of existing police powers or those powers (and directions) under various superior court orders. These decisions were based upon not upon any operational requirements but rather simply upon political considerations.

A very impatient populace soon demanded politicians to require the police to protect the general public. Many politicians tried to escape accountability, (although one or two provincial jurisdictions acted reasonably well), claiming improperly, and perhaps disingenuously, that they had no power to direct the police. And some government ministers on the left maintained that the right to protest includes the right to obstruct others.

Eventually, “negotiations” did occur, and the problem dissipated with a jerry-built compromise on indigenous governance between the minority Wet’suwet’en hereditary chiefs and the federal and British Columbia ministers negotiating with them, without consulting with the democratically elected leaders of the Wet’suwet’en people. But it will surely arise again when that solution ultimately breaks down, and also when other natural resource projects come on-line in the future. For blockades and general lawlessness work in today’s Canada.

A Note on Public Order Laws and Indigenous Reconciliation

 It is necessary to get some perspective on the types of laws in question. By Coyne’s referencing of prohibition laws and the Quebec Secession Reference case,[4] some might be left with the impression that the laws being enforced were either somewhat controversial, perhaps dealing with indigenous governance issues, or, those involving more grand issues of a constitutional type, involving the adhesion to one particular polity.

But actually, the laws that were sought to be enforced were only common-place tort laws and public order laws, of equal application, supporting the right to be free of the obstructions of others, universally found in free societies. These types of laws should be acceptable to any group of citizens, or sub-group of citizens. The only exception occurred in the original BC Supreme Court Coastal GasLink application involving obstructions to construction of the pipeline. There, the Court rejected the hereditary chiefs’ claim of hereditary governance rights in answer to their tortious conduct. They chose not to appeal, and they chose to disobey the Court’s order.

The issue of political adhesion is a non-starter. There can only be one system of plenary courts in Canada and any questions of the reconciliation of indigenous communities to overarching Canadian sovereignty can only be handled within the existing Canadian system.

The Rule of Law does not guarantee the perfection of Utopia or that there cannot beunjust laws.[5] There is much to be unhappy about in how indigenous peoples have fared under our system. But as we shall see, the Rule of Law provides a peaceful means by which to solve our problems through the courts and the ballot box.

The Rule of Law

The Rule Undergirds the Constitution and Is the Responsibility of All of Us

The Rule of Law is a principle undergirding our constitution and system of government. It has received explicit mention in the preamble to our Charter of Rights and Freedoms and more importantly, implicit acceptance in the preamble to the Constitution Act, 1867: “…with a constitution similar in principle to that of the United Kingdom.”[6] The Supreme Court of Canada has called it “a fundamental postulate of our constitutional structure.”

But it is not only important as a tool of lawyers and litigants but rather, also, and more crucially, as a “working political idea” (in the words of Jeremy Waldron[7]), a basic principle to be insisted upon by ordinary citizens in their demands of their political representatives for a certain structuring of our system and restraints within it. For, the Rule of Law is also the result of political settlements over the centuries[8] and is as much the right of common citizens to map out its fulfillment as it is for the judiciary or the academy. It is only through political will, and not through court action, that it will be maintained, and our citizens and society kept safe, stable and secure. We have, over the many centuries, used the principle to construct an elaborate system where power is separated and coercion is restrained by rules.

Attempting to Define the Rule of Law

Although the Rule is a somewhat elusive notion, and is subject to ideological abuse by those arguing it as a basis for political values of their own,[9] its outline and practical effects can readily be determined. Albert Venn Dicey gave a general sense of it what it is about:

… the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of the arbitrariness, or prerogative, or even wide discretionary authority on the part of the government.

We need to be protected from the “unpredictable vagaries of other individuals – whether monarchs, judges, government officials, or fellow citizens.”[10] Our Supreme Court in Re Manitoba Language Rights confirmed that the Rule of Law means that we will be free from discretionary[11] and arbitrary power:

[T]he rule of law means that the law is supreme over officials of the government as well as private individuals, and is thereby preclusive of the influence of arbitrary power.

The best all-round short summary of the elements contained in the Rule is provided by Sir Roger Scruton in his Dictionary of Political Thought:

The form of government in which no power can be exercised except according to procedures, principles and constraints contained in the law, and in which any citizen can find redress against any other, however powerfully placed, and against the officers of the state itself, for any act which involves a breach of the law.[12]

Jeremy Waldron provides good a summary of some aspects of the Rule of Law:

But the Rule of Law is not just about government. It requires also that citizens should respect and comply with legal norms, even when they disagree with them. When their interests conflict with others’ they should accept legal determinations of what their rights and duties are. Also, the law should be the same for everyone, so that no one is above the law, and everyone has access to the law’s protection. …

Secondly, legal institutions and their procedures should be available to ordinary people to uphold their rights, settle their disputes, and protect them against abuses of public and private power. All of this in turn requires the independence of the judiciary, the accountability of government officials, the transparency of public business, and the integrity of legal procedures.

The Rule Really is About Rules and “Law and Order”

To accomplish the rule of Law, we need, contrary to Coyne, rules – and lots of them in – and an unwavering attention to follow them, come what may. Although some would suggest that the rule of law is not about “law and order,” it actually really is about just that. In the Quebec Secession Reference, The Supreme court of Canada said:

“[T]he ‘rule of law’ is a highly textured expression, importing many things … but conveying, for example, a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority.” 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.

And in Re Manitoba Language Rights, the Supreme Court said:

Law and order are indisputable elements of a civilized life. …the rule of law expresses a preference for law and order within a community rather than anarchy, warfare and constant strife.

It is fair to say then, that the Rule requires peaceful means to settle disputes through a complex web of rules – what we call laws – and does not countenance, and indeed, must penalize, attempts to use force outside the law.

Some Conditions for the Rule of Law

Much has been written on the necessary conditions for the Rule of Law. We mention just two.

First Necessity: A Separation of Powers, including an Independent Judiciary

It is not enough for a constitution to declare that that the law is supreme, for many Soviet era constitutions did that as well. It must also be possible for any citizen, however placed, to enforce that law. Rights cannot be rights if subject to arbitrary enforcement by the executive. This leads obviously, as mentioned in the Waldron quote, above, to the necessity for a separation between the executive and the judiciary[13] and for judicial independence. These came as part of political settlement only after long historical struggles. Judicial independence was confirmed in the English Bill of Rights in 1689, which is implicit in our own constitution.

Judicial independence is thus essential, both theoretically, and as a result of constitutional settlement. But it is meaningless if the judiciary’s orders cannot be impartially enforced.

At one time, before the creation of the police services, court orders were enforced in different ways (and much beyond my competence to detail), such as by direct court appointment of court sheriffs or of bailiffs. Now, it is more convenient for the police services to handle some of the requirements to enforce court orders. But having obtained the added duty of enforcement, the executive must not now encroach upon the judiciary with its own political concerns.

In the case of the blockades, courts had made determinations that citizens were being obstructed in their freedoms. The courts, as always, considered the timing when the rights ought to be enforced. Timeliness is a matter for the courts, not the executive. We all sense the truth that justice delayed is justice denied. Yet, the executive, made up of government politicians and the police command, determined, in the case of the blockades, to avoid enforcing the orders, not because of operational requirements, but because of political considerations.

Second Necessity: Positive Laws for Public Order

A second condition that is necessitated by the Rule of Law is a web of public order laws. Sir Roger Scruton says :

In conditions of social collapse, or widespread terror or intimidation, a rule of law will no longer be possible; hence a rule of law requires laws of sedition and public order through which it may be upheld against the busy subversion of the lawless.

The Supreme Court of Canada agreed in the Manitoba Language Rights case:

Second, the rule of law requires the creation and maintenance of an actual order  of positive laws which preserves and embodies the more general principle of normative order. Law and order are indispensable elements of civilized life.

So, it is clear that in order for there to be a Rule of Law, the state must positively set up an apparatus of laws, and enforcement of them, to protect against the vagaries of others – to provide us with peace, order and good government. It does so through the common law and the legislature.

What form did public order laws take in the case of the blockades? Generalizing, there were two main categories. The first is through the common law tort remedies for trespass against the person, such as assault, enforceable through the courts by injunctive relief. The second are criminal law enactments, involving the old breach of the peace prohibitions, such as various forms of assault, intimidation, and mischief, enforced through police powers.

Since the time of British Prime Minister, Sir Robert Peel, in 1829, organized police forces have enabled a clearly more peaceful and safe society, allowing citizens to give up self-help remedies. To a large extent, we have come to give up our own initiatives to maintain our freedoms and to rely upon the police. We have a very different society because of that. We rely upon executive’s promise to routinely protect us.

Although many Canadians instinctively refer to the Charter of Freedoms as being the fount of their liberties, it is the non-textural constitutional law, as instantiated through the Rule of Law and public order laws, starting centuries ago, that is one of the greater guarantees of our every-day freedoms. And we will maintain our liberties, not so much by litigating our rights in the courts, as through holding our politicians to account, asking them consistently to uphold an inflexible rigour in the enforcement of the law.

Both of these types of public order laws – tort laws and the criminal law – obviously rest on an across-the-board impartial enforcement of the rights they contain by the executive, which means through semi-independent, but not unaccountable, police forces.

In the case of the blockades, both types of laws came into play. Citizens, whose rights had been impeded, sought injunctive relief for civil wrongs committed against them. The courts issued relief. And criminal offenses occurred in the thousands, if not more. The police, restrained by the executive, and their own command, didn’t do their job in enforcing the tort remedies or the criminal law.

Two Conditions of the Rule of Law Unsupported by the Executive in the Blockades

So, in conclusion, two conditions for the Rule of Law were infringed in the case of the blockades. First, the executives of various jurisdictions, disrespected, to a great extent, the independence of the courts by not enforcing in a timely fashion the many orders issued. The courts determined that citizens’ rights would be infringed if relief was not provided promptly. Without a remedy, obviously there is no right.

Second, the Rule of Law was denied in refusing to utilize the criminal law to uphold the liberties of citizens. Countless breaches of the criminal law occurred. Not only were law breakers not removed, but most did not suffer any consequences at all. This will encourage further law breaking in the future and demoralizes the law-abiding. It will diminish our liberties. It will lead to loss of prosperity.

The Tenet of Non-Discretionary Enforcement of the Law is Absolute and Unqualified

The requirement of the Rule of Law for impartial police enforcement of court orders and of the criminal law is absolute and unqualified. There is no possible way to circumscribe the Rule so as to allow that only certain legal rights be infringed.

We are often subjected to arguments for “exceptions” to the Rule, which are really attempts to diminish its effect, like this one from the Klinck and Mackenzie op-ed in the Globe:

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.

No public disorder could be regulated under this formulation calling for a suspension in enforcement if someone claims an unjust law or desires new laws. The causes for which the public order laws could be disobeyed are only limited by the ingenuity of cause-driven activists.

Their formulation is not what the Rule is about, at all. The Rule is about peaceful rules-based solutions, no matter what. It’s about appeals to the court and to the ballot box, and not to mob justice.

 ***

All-in-all, the blockades were a setback for the Rule of Law, which we have yet to see the end of. The Rule is, in the end, a political ideal, as well as a constitutional and legal one, and citizens must insist that their politicians rigorously enforce it to maintain the society in which we live.

 

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[1] Coyne’s was not the only piece in the Globe on the blockades that called for political considerations to subsume the law. Shortly afterwards, a more expansive appeal to political intervention was authored by two lawyers, Klinck and Mackenzie, under the title of Why Protests Matter for the Wet’suwet’en Resistance:

…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; in this case, targeting major transportation routes conveys opposition to the idea that economic development must always trump Indigenous rights.

Even when a protest exceeds constitutional protection, the purpose of freedom of peaceful assembly helps to define the lawful state response. 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. (emphasis added)

The dynamic political power of freedom of peaceful assembly is that, through it, demonstrators can garner public support to change the law. The government has opted for dialogue and limited enforcement of injunctions because that is what a critical mass of the public believes is right. This is what the freedom of peaceful assembly is intended to generate: political engagement on the justice of the (legal) status quo.

As to peaceful assembly (section 2 of the Charter), the authors try to do some hedging but nonetheless it is clear the writers are wrong (“governments and the community must tolerate … targeting major transportation routes”). On the whole, it is clear they are calling for the government to ignore legal determinations on obstructive behaviour.

[2] Coyne: “The vulnerability of Canadian infrastructure to activist hijacking may be annoying, and it may be frustrating, but it is a reality. The tendency of so many conservatives to wish away what is unpleasant to behold, indulging instead in wild fantasies of what is possible by enforcement – the border-crosser issue is another example – is one of the many pathologies currently afflicting the movement.” It seems now that enforcement on the borders only lacked in political will, or more likely there, in ideology. I would suggest that political will was lacking to support the Rule in the case of the blockades as well.

[3] Speaking of the removal by counter-protesters of barricades at a rail crossing in Edmonton, Coyne said:

Neither group was, strictly speaking, acting either inside or outside the law. No court injunction had been issued against the protesters at the time the counter-protestors moved in; the latter committed no violence against the former.

This is wrong. In barricading, the protestors in Edmonton were clearly acting unlawfully, from the outset, both tortiously and criminally. No injunctions were required to establish illegality. (And in fact, the necessity for an injunction seems to be a general misapprehension by many in the media). Nothing that I can see was done unlawfully by the counter-protestors in removing the barricades. Whether the police could have instructed the counter-protestors to stop removing the debris is doubtful as no breach of the peace was being committed. See the SCC in the “Caledonia case” in Fleming v. Ontario, para. 58, et seq. (The only cause for doubt is the fact that the events occurred on private property. It might have been different if the property owners, the rail company, had oddly instructed against removal.) But generally, the counter-protestors’ behaviour appeared to be lawful. Citizens must not be expected to curb their lawful liberty because of the possibility of coercive action from others. Nor do they have to rely upon the police to move about unimpeded. The problem is with the police threatening, so often now in protests to arrest the wrong group of people.

Later in the passage, Coyne claimed the counter-protestors were breaking a “norm.” I have no idea where he might have come up with such a norm. It is contrary, as the Fleming case demonstrates, to our liberties and freedoms.

It is possible that there might have been confrontation at the time, if the counter-protestors became coercive. But the obvious conclusion to draw is that a general lack of enforcement shown by other police forces across the country, which the counter-protestors would have been aware of, led to a breakdown in the Rule of Law. There is no moral equivalence between the two groups. The counter-protestors were not “vigilantes.”

[4] In the Quebec Secession Reference, the Supreme Court merely rendered an advisory decision, setting out the legal framework of Canada’s confederation. Enforcement was never at issue. (Coyne’s claim that Quebeckers have accepted the ruling, not based upon “the threat of force, but the desire to live within a law-based state,” is conjecture and a fact for the future.) Force seems incomprehensible to most of us to hold Canada together, but a state that does not use force when its laws are broken is a state that loses its sovereignty and its reason for being.

[5] Underlying this blog, but not discussed, is my sense that the Rule of Law contains little, if any substantive elements, that is, that it does not fall under one of the thicker versions of the Rule of Law. I believe that as we add more substantive elements to it, the Rule of Law becomes meaningless and not in accord with the beliefs of most people about it. But obviously, constitutional provisions themselves contain substantive content.

[6] See generally Alford, Seven Absolute Rights: Recovering the Historical Foundations of Canada’s Rule of Law.

[7] Waldron: “Beyond these generalities, it is controversial what the Rule of Law requires. This is partly because the Rule of Law is a working political idea, as much the property of ordinary citizens, lawyers, activists and politicians as of the jurists and philosophers who study it. The features that ordinary people call attention to are not necessarily the features that legal philosophers have emphasized in their academic conceptions.”

[8] Again, see generally Alford, Seven Absolute Rights: Recovering the Historical Foundations of Canada’s Rule of Law.

[9] Tamanaha, On the Rule of Law, pp. 3-4.

[10] Tamanaha, p. 122.

[11] Lord Bingham devotes an entire chapter on the aspect of discretion.

[12] Tom Bingham, in The Rule of Law (at p. 8) provides a similar definition, although not as comprehensive:

The core existing principle is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of the laws publicly made, taking effect (generally) in the future and publicly administered in the courts.

Other very good sources for the Rule of Law can be found in Sirota, “A Citizens’ Guide to the Rule of Law” in Biro, Constitutional Democracy under Stress, and  Jeremy Waldron, The Rule of Law.

[13] Also, in addition to the Judges Reference, see Jeremy Waldron on the Rule of Law and the separation of powers in Separation of Powers in Thought and Practice.