The Rule of Law, APEC and Canada

by W. Wesley Pue

Wesley Pue is a professor in the Faculty of Law and holder of the Nemetz Chair in Legal History at UBC.

A group of dictators who controlled some of the most powerful economies in the world came to Canada recently. Many returned to basket-case economies, having shared their political values with Canada's leaders. It was not a good exchange.

Though media attention focused on police brutality, the public should be concerned about matters bigger than low-level thuggery.

The right of free citizens to peacefully express opinion on all and any matters is the hallmark of free society. It is the foundation on which Canadian constitutionalism rests.

Though any government can properly decide not to raise human rights concerns in multilateral economic discussions, it is a very different matter to decree that no Canadian citizen in the line-of-sight of APEC leaders may hold a banner or shout a slogan.

The former is within the range of lawful political judgement. The latter is not.

Beyond free expression, two other rights are fundamental. In free societies any person may do anything not expressly prohibited by law. Second, "no man can be punished, or can be lawfully made to suffer either in his body or in his goods, except for a distinct breach of law established in the ordinary legal manner before the ordinary courts" [Lord Hewart].

Imagine two possible lines of authority:

Line A: Prime Minister - flunky's decree - police - truncheon - citizen

Line B: Constitution - Queen in Parliament - police courts - citizen

The second is a short-form expression of the Rule of Law. The first, not to put too fine a point on it, is dictatorship. This is so even when assault by noxious chemical (pepper spray) and plastic handcuff stands in for the truncheon of old.

Now, imagine an act of Parliament enacting that no poster which is displeasing to the Prime Minister shall be displayed within his view, or perhaps, that no one within 100 metres should utter words displeasing to a Canadian politician. No constitutionally minded Commons, Senate or Governor General would approve it. If enacted, any such statute would be struck down by any court in Canada without second thought.

No attempt to justify draconian measures on the grounds that certain words might cause offense to foreign despots (if that were the case) could confer the dignity of legal justification under the terms of the Charter, within the spirit of a free and democratic society (Constitution Act, 1981), or under a constitution similar in principle to that of the United Kingdom (Constitution Act, 1867). Freedom is not made of such material.

Now, it is an elementary legal principle that, if the Queen in Parliament is prohibited from doing something, so too are her ministers, executive assistants, and police.

All these features of the Rule of Law were violated when APEC came to UBC. It may or may not be the case that federal officials insisted on a "no poster" policy. Policing perimeters at the university were however clearly designed to conceal any sign of criticism. Dictators, perpetrators of genocide, were protected from Canadian speech, not mob violence. A cordon sanitaire protected their sensibilities, not their bodies. Our leaders' apparent willingness to violate the spirit on which constitutional freedom rests is no small matter. Some of the post-APEC accounts of police and political behaviour are, if verifiable, scandalous:

1. a student arrested for holding a smallish sign saying "free speech"

2. a lawyer/graduate student prohibited by police from posting signs around Green College, told this was on orders from the "PMO" and that, if she persisted, police would "think of" a charge after arresting her

3. the obstruction of Graduate Student Society President Kevin Dwyer's attempt to fly a flag on a building far from (but within sight of) the APEC meeting

4. a demonstration organizer arrested for an "assault by megaphone" (look that up in the Criminal Code!) which took place some weeks earlier

5. the use of pepper spray to punish

Substantial issues lurk behind "bad cops."

The seeming enthusiasm of our elected representatives to order the suspension of very fundamental rights should not be overlooked.

These matters bear enquiry.