27. THE ATTACK ON LAW AND ORDER

The Rule of Law Keeps the Peace…judging a legal result simply in terms of one’s own sense of right and wrong simply won’t do. The whole point of the rule of law is to set standards of governance that transcend individual moral feelings. If all we have are our moral feelings, we are no better than religious and political fundamentalists who insist that their moral scheme justifies destroying other incompatible moral systems. The claim of moral righteousness and superiority has driven many of our species’ worst atrocities, such as the Holocaust, the genocide of American Indians and the killing of millions of “enemies of the state in communist regimes… the rule of law substitutes legal reasoning for moral righteousness.” – Lief Carter and Thomas Burke, Reason in Law1

Nobody has a more sacred obligation to obey the law than those who make the law . – Sophocles

Criminal means once tolerated are soon preferred.  – Edmund Burke- Reflections

Haida Nation has driven the notion of the “honour of the Crown” to an ill-considered, harmful extreme – basically ordering the Crown to act so “honourably” so as to wilfully and legally emasculate itself – so “honourably” so as to prevent it from acting in good faith for the benefit of and in the best interests of all Canadians – so honourably towards Indians that it acts at the same time dishonourably towards non-Indian Canadians affected – so “honourably” that it’s proper dignity, authority and  necessary powers, legal and moral, are seriously undermined – with very important, negative consequences for Canadians, Indian and non-Indians alike.

This apparent duty to act “honourably to a fault” was highlighted towards the end of the trial judgment in the Keewatin case (referred to in Terminology above) where the trial judge implicitly, but nonetheless very clearly to anyone with legal training or litigation experience,  criticized Ontario and Ontario’s lawyers for in effect fighting fairly but nonetheless fighting too hard for their side of the case. As she said in part:

Ontario’s approach to this litigation, while pleasantly civil, was strongly adversarial. Always focusing on its own proprietary rights, it downplayed the plain and clear reference in the Harvesting Clause to Canada…Ontario was attempting to use traditional Euro-Canadian common law property principles to support the relief it was seeking, despite the evidence of Chartrand called by Ontario that Ojibway concepts were very different (e.g. they did not have a concept of buying and selling land).

The trial judge adopted an inappropriate and unjustified sarcastic tone when commenting on the substance, and even the style, of the Ontario lawyer’s handling of the case:

From the beginning of opening arguments until the end of the case, counsel for Ontario chanted the phrase “Honour of the Crown” almost like a mantra, as if the reassuring cadence of its repetition would salve any concerns this Court might otherwise have about its failure to honour Treaty Rights in the past.

This trial had been a fair fight. The Grassy Narrows band had a very capable and sophisticated legal team working for them. Their legal fees and disbursements had already been fully funded by Ontario before the trial even started. Ontario was being attacked with the full force and effect of “Euro-Canadian” law! How could it not but react and respond in kind? Despite all this the judge, shockingly and inappropriately to me, clearly suggested that, in this Indian rights case, where the “honour of the Crown” was in issue, the proper course of action for Ontario was to, in effect, defend itself with one hand tied behind its back, and further, that Ontario’s lawyer should have, during the trial, partially pre-judged the case in favour of Grassy Narrows and adjusted his conduct accordingly – shouldn’t have advocated so fully on behalf of Ontario . This is all contrary to centuries of ethical principles to the effect that a trial lawyer is bound, within the law and by the rules of ethics, to fight as hard as he can for his client!

Ontario’s Rules of Professional Conduct for lawyers describes the lawyer’s function as advocate as “openly and necessarily partisan.” Accordingly, the lawyer is generally “not obliged…to assist an adversary or advance matters derogatory to the client’s case.” These rules obligate a lawyer, when acting as an advocate:

…to raise fearlessly every issue, advance every argument, and ask every question, however distasteful, which the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law….

I argue in this essay that our courts have developed a two-tier system of justice for many aspects of the Indian experience in modern-day Canada. Until the Keewatin decision this two-tier legal reality was mainly confined to matters of substantive law and procedures, creating different outcomes depending upon whether the matter was directly Indian-related or not.

Now, with Keewatin, the suggestion comes from a respected member of the judiciary, (now apparently seconded by the prominent Canadian intellectual John Ralston Saul- see The Essential Humanity of the Migrators to Canada, above), that lawyers themselves, officers of the court, who are key instruments of due process and the hitherto blind rule of law, when they are on the other side of any case involving the assertion by Indians of any Indian rights-related claim or proposition, should not act so fearlessly and forcefully, should in effect partially favour the interests of their opponents over those of their own clients, even a government client, so as not to be too “strongly adversarial.”

In effect Justice Sanderson, the trial judge, was suggesting that in Indian rights cases lawyers on the other side should partially breach their ethical duties to their own client. This respected and well-meaning judge didn’t actually mean that, but that is the clear end result of her astonishingly wrong, civically unhealthy and inappropriate statements in that regard.

The Keewatin trial decision was overturned on appeal, and that appeal decision upheld by the Supreme Court of Canada, but these inappropriate statements of Justice Sanderson were not criticized or commented on by the Court of Appeal.

One could be forgiven for thinking this omission was intentional, given the appeal courts’ departure from the usual rule that the loser of a court case should pay a part of the winner’s legal costs, because in this case, even though the Grassy Narrows litigants had lost, and had forced the ultimate winners to incur hundreds of thousands of dollars in legal expenses, they were not ordered to compensate them for any part of them, with no real reasons given. Two-tier justice indeed.

Some of the negative social and economic consequences of the erosion of Crown sovereignty (to accelerate even faster if the trial judge’s lecture in Keewatin about the Crown being too “strongly adversarial” is adopted by other judges) have been discussed above.

Another even more important consequence of Haida Nation is the undermining of the principle of the rule of law.

Haida NationMikisew and subsequent court decisions taking their lead from those decisions have sanctified “meaningful consultation” to such an extent that they have elevated it to a status above the basic rule of lawthus justifying and even encouraging lawless behaviour on the part of Indians in pursuit of their “potential but as yet unproven” interests.

In Ontario, the violent, lawless occupation by Indians of private property in Caledonia, near Brantford, was cravenly permitted to go on unchecked for months until it was finally ended, not by the application and enforcement of the law against the illegal occupiers, as the local populace and Henco Industries, the property owner/developer, initially assumed would happen.  Rather, it was ended by Ontario, after it and the Ontario Provincial Police had passively tolerated that lawbreaking for months, finally buying the land from Henco Industries and, as the new owner, then “consenting” to the ongoing occupation. This was completely shameful on the part of Ontario and the OPP.

It was an astonishing decimation of the rule of law that went on for years, with the OPP and the Ontario government both denying the truth of what citizens saw daily with their own eyes. 2

What disgraceful, unprincipled, expedient behaviour on their part! What a dangerous, unhealthy precedent to set!

The bureaucrats and politicians in high places who made that decision – the police in high offices who ordered their officers to stand aside and do nothing while our laws were broken –  betrayed their own fundamental interests and the high trust they owed to all the citizenry of Ontario. As The National Post editorialized:

The provincial Liberals sold out the interests of law-abiding citizens in the community of Caledonia rather than be forced to confront lawlessness among members of the aboriginal community. 3

Now, at the time of writing, the occupation continues with the Ontario government being the generally disrespected, locally reviled and all-round cowardly new owner, daily permitting this dishonourable and uncivilized assault by the “Haudenosaunee” Indians4 on the dignity, rights and reputation of the Crown to continue.

The effect of this on society as a whole- a massive loss of respect on the part of ordinary Canadians for the police and for governmental authority generally – is very serious and negative. One law for them, one law for us,” people say. This reasonable and natural sentiment, caused not by the illegal occupation, but by the shocking failure on the part of Crown law enforcement officials to apply and enforce the law in response to it, represents a very serious breach and breakdown of social trust, the glue that holds civil society together.

The lesson for ordinary Canadians is that now, with regard to Indians in Ontario, justice is not blind. She peeks under her blindfold and if she sees that the commotion relates to Indians, she takes out and applies her special Indians-only rule book, essentially does nothing, and then, turning to the non-Indians involved, just shrugs. This is demoralizing to the body politic. It encourages civic anger and resentment, apathy, disengagement and that sense of disconnect discussed above. It subverts what should be the lawful authorities of the state’s “greatest resource: the internalized allegiance of the citizenry.”5

In their Henco Industries v. Haudenosaunee Six Nations Confederacy Council decision,6 “the Caledonia case”, the Ontario Court of Appeal, in overturning a very gutsy lower court judge’s ruling that the governments of Canada and Ontario should stop negotiating with the illegal occupiers – stop talking to them entirely! – until their blockades were lifted and their illegal occupation ended, basically gave its moral and legal stamp of approval to Ontario’s cowardly and unprincipled conduct. The Court ruled that, since the occupation, now that Ontario owned the land and was consenting to it, was  “peaceful,” and that “reconciliation, not the force of law” was “the best way to achieve a lasting resolution of this dispute.” Thusly the rule of law was diminished in the eyes of all by our Court of Appeal.

Most Canadians instinctively think that” the law is the law,” and is equally applicable to all. We were taught that and it used to be the case. That idea, that value, embodied in our statute and common laws, was and should always be a given-a binding, unifying, intractable force in our society. This is not so any more with respect to Indians, particularly Indians asserting Indian rights claims, even if only “potential and as yet unproven” minor claims.

Now, our lower court judges, Crown personnel and police forces are being instructed by our appellate courts that the rule of law, as it applies to Indians and Indian rights claims, is to be regarded not as absolute, like it is for non-Indian Canadians, but rather as “highly textured.” As the court wrote:

Other dimensions of the rule of law, however, have a significant role in this dispute. These other dimensions include respect for minority rights, reconciliation of Aboriginal and non-Aboriginal interests through negotiations, fair procedural safeguards for those subject to criminal proceedings, respect for Crown and police discretion, respect for the separation of the executive, legislative and judicial branches of government and respect for Crown property rights.

For our Indian and non-Indian elites now, the rule of law, which ordinary Canadians reasonably regarded as fundamental and sacrosanct, is regarded, in the context of Indian matters, as merely one menu choice amongst many, its application as the primary factor depending on which way the political and political correctness winds are blowing at the time in question, and for Indians, how much lawless behaviour they figure they can get away with.

This unhealthy and dysfunctional situation will apply with special damaging force in Tsilhcot’in aboriginal title-claimed parts of Canada, where the argument will be made that the particular “Canadian” law in question is inapplicable in the first place to the Indians living there! This is exactly what the Wet’suwet’en hereditary chiefs in British Columbia are saying as of this writing: January 2020. Relying on Tsilhcot’in and now UNDRIP, they are asserting that a B.C. Court injunction preventing them from interfering with the Coastal GasLink pipeline projected to pass through their “territory” contradicts” Wet’suwet’en law”, and is thus inapplicable to them. They have a point, and our hapless elites gave them that point. But they should not have a point. It should be legally crystal-clear that all laws and Court orders should bind all citizens of the jurisdiction in which those laws or orders are made and are intended to cover- no exceptions-especially exceptions based solely on race.

Now, shockingly to ordinary Canadians, the rule of law will be increasingly be able to be trumped by the need for legal “reconciliation” of Indian and non-Indian property-type rights and interests. This is a real and certain recipe for social resentment, frustration, conflict and divisiveness. The opposite of “reconciliation,” as most people would naturally understand the word, will occur.

Ironically, it’s the beginning of a trend that could, some distant day in the future,  backfire against Canada’s Indians, who constitute only a very small minority of Canada’s population.

History shows us that in unstable, fearful times and places it is the rights of ethnic, religious and racial minorities that most often come under attack by the majority. Laws and the state institutions that make and enforce them are often the only things standing between the preservation of those rights and the virulent consequences of the mob, and mob rule.

Timothy Snyder, in Black Earth, (above) reminds us and warns us that “minorities depend most on the protection of the state and upon the rule of law, and it is usually they who suffer most from the weakening or loss of them.”

The exceptions- all based on race- to the “blind”, even-handed application of the rule of law, being created by our judiciary in this area of Canadian life, and being enthusiastically applied, and even expanded, by our political, bureaucratic and police elites, constitute a dangerous, unjustified and demoralizing, Pandora’s Box precedent- a precedent that, once set, cannot thereafter be denied when, in some now-unforeseen future social calamity, (impossible to conceive of now, but nonetheless, if it can be theorized, it could happen)7,it is cited as justification for some similar but much more dark and dangerous, majority and mob-supported, racially-motivated policy or action.

As the following discussion of the Frontenac Ventures and Platinex cases shows, and as the Idle No More illegal road and rail blockages showed (see below), this new jurisprudence has most certainly encouraged an increasing disrespect for government and police authority, demoralization of the non-Indian populace at large, and further lawless behavior on the part of Indian-Canadians, who now know that whatever illegal behavior they engage in, authority’s first craven, Munich-like response will be “negotiation with a view to reconciliation,” rather than the simple, even, traditional application and enforcement of the general law of the land- of all of our land.

  1. Lief Carter and Thomas Burke. Reason in Law. London Classics, 2010.
  2. Christie Blatchford, A Victory for Fair Policing, The National Post, October 11th, 2016
  3. The OPP’s Failure, The National Post, October 12th, 2016
  4. Another recently-applied image-inflating name:an ersatz marketing tool designed to make them appear more valid and authentic.
  5. From In Defense of Respectability, by Harvard professor Randall Kennedy, Harper’s Magazine, October 2015, an interesting (in the context of our more slovenly times) argument in favor of the need for any type of oppressed-minority civil rights activists to “speak well, dress suitably and mind (their) manners”, to be above personal reproach in every way possible, to try to be better than those who are oppressing them- to practice “respectability politics”-as a conscious political tactic- all with a cold reality-based view of increasing the chances of attaining the political goal in question. Martin Luther King and the other leaders of the Black civil rights movement of the late 1950’s and early 1960’s practiced respectability politics, with great success.

Given that I disagree so completely with the goals of Canada’s Indian elites, I am pleased that they so often practice the very opposite of respectability politics.

  1. Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council, 82 O.R. (3rd) 721(ONCA)
  2. The world is still susceptible to the inhuman impulses that brought about the Final Solution.

– from the bookjacket of Black Earth, above

By: Peter Best