A Vindictive and Discriminatory Application of the Law
The Convoy Protestors have angered a bureaucratic state
The Russian invasion of Ukraine has driven the Freedom Convoy from the front pages. That Putin is a worse tyrant than Trudeau obscures, but does not change, the fact that peaceful protesters now face a vindictive and discriminatory application of the criminal law. This essay examines the justifications of official anger.
Tamara Lich, an organizer of the Freedom Convoy and of the GoFundMe/GiveSendGo online campaigns, remains in jail, having been denied bail. A grandmother from Alberta who led a peaceful protest, she was described by Judge Julie Bourgeois as a criminal potentially facing years in prison, whose jailing “was necessary for the protection or safety of the public.” Before her peaceful surrender, this dangerous criminal posted a video imploring her supporters to conduct themselves peacefully, and to treat the police with respect.
By contrast, violent criminals usually get bail. The Antifa member who drove a vehicle into Convoy supporters in Winnipeg, an act of vehicular assault that injured several people, was quickly bailed. Obviously, Ms. Lich is on the wrong side.
It is relevant to mention that Judge Julie Bourgeois was a failed Liberal candidate in the election of 2011. But one does not need to impute partisan hostility to this one judge to see that Ms. Lich and other anti-bureaucratic protesters face in the judiciary, as in the legal profession as a whole, a hostile institution.
Beverley McLachlin is the former long-time Chief Justice of the Canadian Supreme Court, a leader of the Canadian judiciary, and by extension of the legal profession. As Chief Justice, she was a prominent judicial activist, usually to the left of elected politicians, often leading policy change. She is at once a product of a leftist institutional climate and a shaper of that climate, not to mention a patron of careers that prosper within it. Writing last week in The Globe and Mail, Judge McLachlin tells us of the ugliness of the freedom for which Ms. Lich demonstrated.1
The judge writes of “this vaunted ‘freedom,’” in sarcastic scare quotes, which tells us how the judiciary regards the freedom from state interference, and the personal independence, valued by many Canadians. She then subjects the freedom convoy protestors to the now expected but evidence-free accusations of violence and racism. But she does get one point right: protesters did indeed claim the right to “malign public officials” if by that she means the right to criticize ministers. It is a charge Putin might use.
At this point the Judge’s tone becomes patronizing and didactic, as though her targets were slow (which is of course exactly what she thinks). Freedom, we are instructed, is not absolute (as though anyone had thought it was). “Reasonable” (several times) limits apply to the Charter’s “bundle of rights and freedoms.” The alternative is anarchy. Free speech, we are to understand, is just a not-so-important part of a larger bundle. Are we at Walmart? Would you like toilet paper with your freedom of speech and assembly, subject to management approval?
Behind this denigratory view of freedom lies a very expansive account of the authority of the courts. Governments, in the Judge’s view, must draw lines around citizens’ freedom, this “line-drawing” being then subject to the electorate’s judgement, but ultimately to the judgement of the courts. There was a time when courts adjudicated the application of laws to particular circumstances, in the light of past case law and of the intentions of Parliament. Judge McLachlin, reiterating a view that was clearly central to her work on the Supreme Court, subscribes to a doctrine of judicial supremacy in which both the rights of citizens and the actions of governments are subject to judicial approval or rejection, on the basis of very abstract notions of the social good.
Judge McLachlin finds an echo in law professor Martha Jackman, who explains on the same page that Canada’s Charter is not the U.S Bill of Rights.2 Tamara Lich’s husband had naively depended upon “First Amendment rights,” and of course Professor Jackman is right that he mistakenly refers to an American document. But his real error, she goes on, was to suppose that he or his wife had any such right to free expression under any name. Canada and the United States, the professor teaches, “have completely different legal systems.” This is of course nonsense – both are based upon the English Common law – but it does illustrate the anti-Americanism that permeates the Ottawa state. The American preference for liberty is particularly disdained. The Anglo-Saxon legal and constitutional tradition, with its historic emphasis on what were once called the liberties of the subject, today cramps the power of the bureaucratic state.
Professor Jackman too teaches that Canadians’ rights are not absolute (the inevitable strawman), but subject to “reasonable limits.” It is a point repeated several times, no doubt a key learning outcome. Those limits are to be determined by a calculus of benefits and harm, informed (as for Judge Bentham) by expansive abstractions entirely open to judicial interpretation. The truckers in Ottawa were, we are told, a threat to “the rule of law, a keystone of any democracy.” A number or writers, myself included, have documented the civil and law-abiding character of the protesters, but mere facts compete with soaring phraseology untethered to any concrete reality, but useful to the project of de-legitimation.
At points, the professor’s mask slips: we are told, by way of introduction, that rights must be limited in “complex and increasingly diverse societies such as ours.” There we have it, in so many words: the ideology of diversity requires serious limits on freedom. Because we have the one, we must have less of the other: I had imagined that perception to be a rightist conspiracy theory, but not according to our learned professor. At least we have that straightened out.
Most readers of The Globe and Mail – real and aspiring members of the bureaucratic power elite – will already agree with our authorities that freedom is an ugly thing. But these homilies are not aimed at them, or not directly. They are offered rather as talking points, summarizing in a credentialed and linkable form what the discourse already believes, prefabricated for reiteration in less august papers, and no doubt from the bench too.
And the authorities have half a point: they are exactly right that we do not in fact have the freedoms we had imagined. That plain truth is advertently conflated with the idea that limits to freedom are a good thing, all in the service of reason, justification, democracy, even diversity – it’s a bit slippery. It is a conflation relying largely on rote assertion, not feeling the need to attempt an argument. This discourse, smoothly mixing the is with the ought, is characteristic of what political philosophers call legal positivism: the doctrine that the law as it is has an elevated moral character, not because it is good or right or free, but exactly because it is the law. It is an idea that has always been favoured by authoritarians and statists; its most eminent theorist was the brilliant jurist and sometime Nazi Carl Schmitt.
Unlike Justin Trudeau, I am not calling my opponents Nazis. McLachlin and Jackman are not Nazis. But the genealogy of their doctrine is authoritarian, however progressive or egalitarian they may think themselves. They find their legal confusions compelling precisely because they occupy elite positions within the institutions of a state. Their discourse, with its meaningless abstractions, its appeal to national prejudice, its use of assertion in place of argument, its dire vision of dangerous anarchy as the alternative to (their) power, is the discourse of power.
That discourse is aimed at the rest of us. It articulates the ideology of a vindictive bureaucratic state that has had quite enough of our freedom. Tamara Lich and her comrades are in jail for the crime of organizing a protest embarrassing to its pretensions.