The Rule of Law and Democracy: Do we have cause for concern?

The media in Canada is awash with stories of abusive behaviors by foreign governments designed to suppress the exercise of the most basic rights of their citizens to express dissent. These abuses are most often facilitated through the government's control of the policing function. Opponents are investigated, subjected to harassment or outright violence and on occasion arrested. The more subtle state practitioners may merely deny a police response in instances where the individual or group has been the victim of criminal acts leaving such individuals at the mercy of criminal predators.Were the seeds of such behaviors to present themselves in Canada one, rightly, would have expected a strong, vigorous public denunciation. As is evident throughout the world, once such behavior has taken root, it will be extremely difficult to address and society as a whole will suffer.Actions taken by the current government have attracted serious expressions of concern as to its knowledge of and respect for the traditions, values and conventions of democracy as we have known it in Canada.PMO officials have made public comments as to the propriety of the collection of firearms by the RCMP in homes abandoned in the wake of floodwaters in the town of High River, Alberta. Those comments coupled with media expressions of concern as to the level and extent of co-operation that the RCMP can expect from the PMO in relation to its investigation of the Duffy/Wright affair touch upon one of the core attributes of a viable democracy which is that “no one is above the law”.Statements made in reaction to these events -- including those by opposition MPs -- have failed to adequately explain why these actions are inappropriate. We have not seen any articulation of the governing principle, an explanation of its meaning or any discussion as to how that principle is applied in a democratic society.This failure to properly describe the transgression may account for the lack of any public contrition by PMO officials or government spokespersons for their behavior. The appreciation of democracy by politicians today seems to start and end with the “first by the post” results on Election Day. I win, you lose, and I get to do whatever I want for the next four years.The” rule of law “has been described by the Supreme Court of Canada as “one of the fundamental and organizing principles of the constitution”.The court has said,  “It is one of the proud accomplishments of the common law that everyone is subject to the ordinary law of the land regardless of public prominence or government status.”This rule means in practice that the Prime Minister, members of his office (PMO), members of his Cabinet, members of Parliament as well as the Senate stand before the law, on equal footing with the beggar in the street; no higher, no lower and with no exceptions. This is a vitally important means of protecting citizens from abuses of power by high officials.A cynic or possibly an extreme political partisan might be temped to say that this placement of the Prime Minister and officials within the PMO on the same plane as a beggar is merely “theory”.  For them, the reality is that their party won a majority of seats in Parliament and they constitute the Executive branch of government. This fact gives them control of all the levers of power at the federal level. This view of the world is no doubt reinforced by the fact that the Governor in Council (i.e., Cabinet) appoints the Commissioner of the RCMP, who serves at pleasure.The Commissioner of the RCMP can just as easily be removed without the Executive having to demonstrate any justifiable cause for taking such action. Further, by legislation, the Minister of Public Safety is empowered to provide direction to the Commissioner of the RCMP who controls and manages the Force.Under the current government, the Prime Minister, and the Prime Minister's Office (PMO) on his behalf, exercise tight control over Cabinet Ministers. There is nothing to indicate that the Minister for Public Safety is exempt from such practice. It is not unreasonable to envisage efforts to extend control over the RCMP via the Minister and the Commissioner, both of whom hold office at the pleasure of the Executive.On one hand, a legislated accountably framework that links the police to the elected representatives of the people is essential in a democracy otherwise we run the risk that the police would become a law unto themselves, which would put democracy itself at risk.On the other hand, the world has produced myriad examples where the police have become instruments of the state, where politicians have either by operation of law or through control of the police immunized themselves from the consequences of their own criminal behavior.Mature democracies such as Canada and the United Kingdom have reconciled the risks inherent in having a police that is a law unto itself and a police subject to inappropriate political interference by delineating what constitutes permissible and non-permissible interaction between the Executive and the police. The Supreme Court of Canada has noted that some degree of interaction is acceptable in regards to “ purely ceremonial duties, the protection of Canadian dignitaries and foreign diplomats and activities associated with crime prevention”.  A clear line, however, has been drawn in respect of the RCMP's law enforcement activities as they relate to the investigation, arrest and prosecution of criminal activities.The leading authority for this proposition, which has been adopted by the Supreme Court of Canada and which has been referenced by numerous Public Inquiries from the McDonald Commission of 1981 through to the APEC Inquiry of 2002 is the statement of Lord Denning in R v Metropolitan Police Commissioner, Ex Parte Blackburn (1968) 1 All E.R. 763 (C.A.)The relevant extract from that decision states in part that: “…like every constable in the land , he (the Commissioner of Police) should be, and is, independent of the executive…..I hold it to be the duty of the Commissioner of the Police , as it is of every chief constable, to enforce the law of the land. He must take steps so as to post his men that crimes may be detected: and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone. “ The comments by the PMO concerning the actions taken by the RCMP in High River fly in the face of the clear legal injunction against political interference by the Executive in regards to the law enforcement actions undertaken by the RCMP. With the numerous criminal investigations underway in respect of Members of Parliament, of the Senate, party supporters and former members of the Prime Minister's Office it may be useful, with a view to deepening their knowledge of and appreciation for the “rule of law “ in Canada that those involved in the political process take some time to read the judgment of the Supreme Court of Canada in R v Campbell and Shirose  (1999) 1 S.C.R. 217 and the Interim Report of Commissioner Ted Hughes Q.C.  July 31, 2001 and the final report of March 25, 2002 in respect of the actions taken by the RCMP and the role played by PMO officials at the Asia Pacific economic conference (APEC). Both of these documents have been the source of the quotations referenced in this short article.Further, Parliamentarians may wish to provide additional safeguards to protect democracy from abuse by amending the RCMP Act to provide that the Commissioner of the RCMP and any member holding the rank of officer within the RCMP be appointed and serve on a “during good behavior'” basis such that they can only be dismissed for justifiable cause.  Further, in the case of the Commissioner, the requirement should be that such reasons for dismissal be provided in writing and a copy, forthwith, be filed with Parliament by the Minister of Public Safety.Paul Kennedy served as Senior Assistant Deputy Minister at the Department of the Solicitor General and also at Public Safety Canada. During this period, his responsibilities included including policing (i.e., the RCMP), national security and emergency management. He also spent five years as General Counsel for CSIS and four years as chair of the Commission for Public Complaints Against the RCMP.