By Brian Lee Crowley, February 10th, 2022
One law for all or no law at all.
That is the stark choice we face in a democracy like Canada. Today the issue is raised by truckers’ protests about Covid restrictions, but the identical issue is raised by Fairy Creek, Caledonia, the burning of churches on reserves, blockades of pipeline construction or of highways and railways to pick just a few examples. The truckers tend to have the support of a lot of Conservatives and are opposed by a lot of Liberals and New Democrats. The reverse is true of a number of the other issues listed above. So far so good. This is the stuff of legitimate partisan division.
But unnoticed by many is the subtle interweaving of the political dimension and the rule of law. Politicians who agree with the protestors’ aims find every pretext for inaction and to excuse the bad behaviour of (some of) the demonstrators. It may be regrettable to burn churches, they intone, but you can understand why it’s being done. And somehow the burnings continue. Even when injunctions are obtained against protestors, police have sometimes failed to enforce them, knowing that if there is conflict the politicians will not have their backs.
But people who engage in the ordinary lawful pursuit of their own lives, who worshipped in those churches, or who invested billions in pipeline approval and construction, or who cut timber at Fairy Creek and had their personal safety endangered by spiked trees or the residents of downtown Ottawa who had the quiet enjoyment of their homes and properties and businesses disrupted are just as entitled to the protection of the law as the demonstrators exercising their right to protest. The government’s response under the rule of law cannot be to pick and choose. They cannot wink at pipeline stoppages and church burnings and then use the law to bludgeon the truckers’ convoy. Nor can they do the reverse, as some Tories seem to believe.
Why not? Our Constitution says we are “founded on principles that recognise the supremacy of God and the rule of law.” The rule of law is supreme for a very good reason. Its supremacy flows from its neutrality; the essence of the rule of law is that the state doesn’t take sides where enforcing the law is concerned. It shouldn’t have discretion over whether one kind of lawbreaking is tolerated, whereas another is to be crushed. The law is the law and the law must treat citizens alike and lawbreakers alike.
When the rule of law is supreme, political authorities cannot arrogate unto themselves the power to decide when and if to apply the law to protestors based on the politicians’ affection for the cause being defended. If they succumb to this temptation, the law stops being a neutral instrument that protects everyone’s right to engage in lawful activities, that commands everyone’s obedience precisely because everyone is under the law, the rich, the powerful, the poor, the meek, the virtuous and the vicious. Instead the law becomes the subject of partisan contention, with parties vying to control the law so that they can comfort their friends and afflict their enemies. In fact the very best test of a government’s commitment to the rule of law is whether they are willing to apply it, not just to their enemies, but to their friends as well.
If they do not do so, their moral authority as guardians of the law is undermined. Justice wears a blindfold for a reason. A Liberal who supports or excuses lawlessness against perfectly legal pipelines and churches and foresters has little moral standing to call on the majesty of that same law to punish truckers fed up with COVID rules. The reverse is equally true for Tories who excuse lawlessness in downtown Ottawa but want the full force of the law brought to bear on highway and rail blockades.
We undermine the neutrality of the law at our peril. When the law is, and seen to be, neutral people obey the law because it is the law. When the law is used to promote or shield specific causes and interests, people only obey the law when it is convenient to do so. And they are sorely tempted to take the law into their own hands when the state cannot be trusted to protect everyone’s legal rights impartially. Vigilantism is a sign that public authorities have lost the trust of the people.
It is worth noting that successful and effective protest depends on and requires the rule of law. We don’t want protests to stop. We are entitled to protest in a free society but we don’t get to define unilaterally what form our protest may take. We want protestors’ activities to take place within a framework of law that balances legitimate protest against the legitimate right of others to carry out their lawful activities.
The rule of law is not an instrument of authoritarianism but of freedom when it is applied without fear or favour. It is a measure of the corruption of the understanding of the rule of law in today’s Canada that almost no one in the political parties seems capable of articulating that there is no contradiction between supporting demonstrators’ demands and requiring that they respect the law.
If you want an example of how to do it right, the best example in recent memory of lawful, respectful, peaceful yet powerful protest that changed Canadian politics was the Idle No More movement. We can still do it right in this country. Just don’t look to the political class to show the way.
Brian Lee Crowley is managing director of the Macdonald-Laurier Institute.