Challenges to the Rule of Law

DR. CRANFIELD:

Your Grace, Guests of the Head Table and gentlemen: It is my privilege to welcome our speaker to this forum for a return engagement. Ten years ago when he last favoured us, he had been in his present post only a year, that is as Judge of the Court of Appeal in Manitoba which I am advised is the highest Court in the province. He had however been a Judge of the Court of Queen's bench as early as 1952.

At the age of three in 1911 his parents brought him from Russia to Winnipeg. Canada has been most fortunate that this family migrated here, for he is but one of seven siblings all of whom have brought honour to the country of their adoption. Perhaps best known of the remaining six is the famous Max who has distinguished himself in the field of journalism.

Our speaker's formal education was achieved entirely in Winnipeg where his first academic triumph was to be an Honour Arts Graduate well before coming of voting age. Quickly he obtained his law degree and began at once to repay his intellectual debt by becoming a lecturer at the Manitoba Law School.

He was selected Chancellor of the University of Manitoba in 1959 and has only given up this honorary post in 1968. In addition to his earned degrees his excellence has been recognized by nine universities who have bestowed honorary degrees upon him. The doctor of laws is his from the Universities of Windsor, North Dakota State, Toronto, Manitoba, Brock, McGill and Queens as well as the Hebrew University of Jerusalem to which he serves as a member of the Board of Governors. He has one other degree of which he is justly proud Doctor of Canon Law from St. John's College, Winnipeg. He "took silk" eleven years after being called to the bar, which in 1944 was as a King's Counsel.

There are few positions of honour in academic law that he has not held. For ten years his wisdom was especially exercised on the problems related to the Chairmanship of the Rhodes Scholarship Committee of Manitoba. Presently he is a student in "Advanced French instruction for Judges" which is being held in Quebec City. We are unusually grateful to him for preparing this address for us in English and for playing truant from School. Today he picks up the gauntlet thrown down by those who would challenge the rule of law. It is with great pleasure that I now present to you The Honourable Mr. Justice Samuel Freedman, his topic: "Challenges to the Rule of Law". Mr. Justice Freedman.

MR. JUSTICE FREEDMAN:

I should like to address myself today to the theme, "Challenges to the Rule of Law". I confess at once that I speak as a partisan, as one with a commitment to the free society; as one also who believes that the keystone of such a society is the rule of law.

What do we mean by the rule of law? The phrase embodies many ideas: In its best, its most ideal sense it implies a government of laws and not of men; it rests on the concept of equal justice for all; it springs from an appreciation of the worth of the ordinary individual and of the dignity of human personality; it aspires towards that higher morality in which law and justice will be one; and it recognizes that the courtroom, no less than parliament itself, remains the citadel and the sanctuary of our democratic faith.

But we live in a time of change, when established institutions are subject to critical scrutiny and frequently put on the defensive. The law itself has not escaped from such challenge and such attack. And that raises some very pertinent questions. How do we bring about a change in the law? What methods are permissible, and what are impermissible? How do we respond to a morally unjust law? Is it ever appropriate to disobey a law? The last question brings us face to face with the problem of civil disobedience, a phrase which invokes memories of John Milton denouncing England's law for the licensing of books by an official censor, of Thoreau refusing to pay a general tax to a government that countenanced slavery, of Mahatma Gandhi peacefully refusing to comply with laws in order to bring an end to British rule in India, and Martin Luther King openly but peacefully disobeying laws that deprived Negroes of their rights. Civil disobedience represents one form of challenge to the rule of law. In a moment I shall look at it, to see if it is ever legitimate, and, if so, within what limits.

But first I wish to comment upon the permissible and the impermissible methods for bringing about a desired change in the law. A free society acknowledges the right of dissent. Indeed it places a high value upon it, recognizing that it is not always the majorities that hold the keys to progress. The dissenter has several avenues open to him through which he may express his dissatisfaction with an existing law--by speeches, by circulation of petitions, by picketing (which has been described as a form of symbolic speech), by the organization of peaceful marches, and, ultimately, by the ballot, to put in office new lawmakers. All these are legitimate courses he may take.

But there is no right to seek change by unlawful means. If I were to attempt to classify that kind of action in a few words I would describe it as conduct that wrongfully interferes with the rights of others. It may take several forms trespass, illegal seizure and occupancy of premises, intimidation, personal assault, and organized violence. Events of recent years have made us all familiar with these forms of conduct. Admittedly violence is not a new phenomenon, even though recently we have witnessed manifestations of it in new and diabolical forms. But whether new or not, and wherever exhibited, violence is as wrong as it is dangerous.

Let me turn to the question of civil disobedience. There are two propositions which I put before you. The first is this. As a member of the judiciary who has a deep respect for law and the judicial process I say, simply and sincerely, that laws are to be obeyed. I do not counsel or advocate disobedience to law. Having said that, I must add the second proposition. There have indeed been instances in human history--not many but enough to be significant--in which disobedience to law has proved of benefit to law and to society. Is that a paradox? Perhaps so. But it's true. Who will deny that the cause of mankind was advanced by the deliberate refusal of Martin Luther King and his followers to obey the "white only" laws of the southern states? Dr. King openly declared that many Negroes would disobey "unjust laws". These he defined as laws binding on a minority but not binding on the majority. Civil disobedience in the classic tradition has two distinguishing characteristics. First, it is always peaceful; and, secondly, those who engage in it must be prepared to accept the penalty arising from breach of the law. The purpose behind their breach of the law is to expose it as immoral or unconstitutional, in the hope that it will be repealed or changed.

But it is important to note what is not civil disobedience but which frequently tries to masquerade under that name. Sometimes individuals or groups participate in demonstrations involving breaches of public order, if not actual violence, and then seek to label their conduct as civil disobedience on the theory that they were protesting against some form of government action, say the war in Vietnam, or some such thing. Coupled with that stand is usually a claim for immunity from prosecution. The short answer to this is that they are wrong on both counts. Non-peaceful conduct can never qualify as civil disobedience; and even conduct that does so qualify confers no immunity from prosecution. Indeed the very opposite is the case. The person who commits an act of civil disobedience expects that the law will take its course and that he will have to suffer its penalty.

On this whole subject of civil disobedience I am bound to say that there is only a narrow range within which it may legitimately operate. Its conditions must be accepted and its consequences faced. I may add that at best it is a perilous adventure for individuals to choose which laws they will obey and which they will disobey. In the words of a former American judge: "Thoreau was an inspiring figure and a great writer; but his essay should not be read as a handbook on political science."

I move on to a second challenge to the rule of law. I call it courtroom disruptions, for that is the form it takes.

Is this something new? In the form in which it is manifested, yes. Disruptions of court proceedings, rare though they have been, have not been unknown in legal history. But they have usually resulted from impulsive and thoughtless acts on the part of disgruntled litigants.

Thus there was the case in England of a dissatisfied litigant who was committed to jail for six weeks for throwing tomatoes at the Court of Appeal. It is said that he was released after 15 days because Christmas was coming and, one may legitimately assume, his aim had been poor.

Then there was the incident, probably apocryphal, concerning Lord Coleridge. An irate litigant picked up a book from the counsel table and hurled it at Lord Coleridge. His Lordship quickly ducked, then raised his head, and said, "Had I been an upright judge I would have had it!"

But I am thinking of courtroom disruptions of a different kind. These are deliberate, and their aim is either to frustrate the normal working of the judicial process or, in some cases, to publicise a political cause, perhaps even one having no relation whatever to the case before the court.

An illustration of the latter type occurred in England last year. During the course of a trial in the High Court before Mr. Justice Lawton and a jury, a group of Welsh students from the University at Aberystwyth suddenly invaded the court. "They strode into the well of the court. They flocked into the public gallery. They shouted slogans. They scattered pamphlets. They sang songs. They broke up the hearing. The judge had to adjourn. They were removed. Order was restored."

Why did these students do what they did? They were demonstrating for the preservation of the Welsh language and protesting against an order, harmful to their cause, that had been made by a Welsh court. Later in the Court of Appeal Lord Denning would be heard to praise their motives, albeit to condemn their methods. "They wish," he said, "to do all they can to preserve the Welsh language. Well may they be proud of it. It is the language of the bards--of the poets and the singers--more melodious by far than our rough English tongue."

I pause only to note that Lord Denning was not then thinking of the old ditty:

"Not far from his dwelling
From the vale proudly swelling
Rose a mountain, its name
You'll excuse me from telling.
For the vowels made use of
In Welsh are so few
That the A and the E
The I, O and U
Have really but little
Or nothing to do,
And the duty of course
Falls the heavier by far
On the L and the H, the N and the R."

Well, although aware of the praiseworthy motive of the students, Mr. Justice Lawton quite rightly acted that very day to deal with their flagrant contempt. Eight of the students who agreed to apologise were fined £ 50 each and in addition were required to enter into recognisances to keep the peace. Fourteen others who, as a matter of principle refused to apologise, were sentenced to three months in prison. They immediately appealed and, please note, their appeal was heard just one week later; for the Court of Appeal put aside all other cases in order to deal with that one, since it concerned the liberty of the subject.

Hear now Lord Denning in the Court of Appeal:

"The course of justice must not be deflected or interfered with. Those who strike at it strike at the very foundation of our society. To maintain law and order, the judges have, and must have, power at once to deal with those who offend against it."

And on the subject of the sentence:

"The appellants here no longer defy the law. They have appealed to this court and shown respect for it. They have already served a week in prison. I do not think it necessary to keep them inside it any longer. The appellants are no ordinary criminals. There is no violence, dishonesty or vice in them."

The judgment of the Court of Appeal was that the students be then released from prison, but that they be bound over to be of good behaviour, to keep the peace and to come up for judgment if called on within the next 12 months.

Quite different is what occurred in the trial of the Chicago seven. There, you will remember, we had the spectacle of unruly defendants deliberately hurling insulting epithets at the judge. The tactics were designed to be, and in fact were, disruptive of orderly judicial process. What should be done in a case of that kind?

The situation presents a conflict between two principles. On the one hand, every accused has a right to be present, to hear the witnesses, and to make full answer and defence to the charge. On the other hand, a judicial trial is to be conducted peacefully and with dignity. Here in Canada we have made provision for dealing with a possible conflict between these two concepts. Our Criminal Code expressly provides that

"The court may . . . cause the accused to be removed and to be kept out of court, where he misconducts himself by interrupting the proceedings so that to continue the proceedings in his presence would not be feasible."

In such circumstances the court, although not obliged to do so, might give consideration to appropriate alternatives, one example of which could be to make the proceedings available to the accused in the form of two-way television.

In Chicago, however, the method resorted to was to bind and gag the unruly accused. There may be worse methods of dealing with the problem, but I am puzzled as to what they might be. I am afraid that what occurred in Chicago, on both sides, will not be recorded as America's finest hour in the administration of justice.

I share Lord Denning's view that the course of justice must not be deflected or interfered with. Admittedly the power to punish for contempt of court should be sparingly used. When that power is exercised it is done so, not to vindicate the personal dignity of the judge (which is not the important consideration at all) but rather to uphold and protect the due administration of justice. I firmly believe that the maintenance of the rule of law requires that unruly activists or courtroom disrupters--litigants, accused, counsel, or strangers--be dealt with firmly, promptly, and fairly; as was done with the Welsh students in England, and as assuredly we should do here.

I turn to a third challenge to the rule of law. Let me call it violence for political ends. It may take a variety of forms. They are all familiar to you, and I need not linger upon them. Their grim catalogue includes blowing up of buildings, planting bombs in post boxes, or perhaps in a supermarket timed, of course, to explode at the busiest hour, hijacking of planes, sometimes with the passengers held to ransom, political kidnappings, and the ultimate crime of murder itself.

Events in Canada, arising from the illegal activities of the FLQ, have given us a special awareness of the dimensions of terrorism. The crisis of last October has been and continues to be the subject of active discussion. Many are the observations that can be made about it. Let me make three brief ones now.

The first is this: It appears to be relatively easy to perpetrate a successful political kidnapping. Since September, 1969, in a period of 16 months, there have been a total of 18 of them throughout the world. It is of course impossible to provide adequate security for every possible target. In the result many an honourable public figure must remain vulnerable to this form of attack.

Secondly, let us not be deceived into believing that the danger in October was not grave because the membership of the FLQ embraced only a few hundred persons, or at most, a few thousand. If there is any lesson we can learn from the tragic events of recent times it is that a small number of persons, determined in purpose and scornful of law, can inflict havoc and terror entirely out of proportion to their numbers. I do not know how one measures the power of instruments of terror in terms of human beings. I do know that one bomb, or one explosive, or one machine gun in evil hands is capable of subduing or immobilizing vast numbers of innocent and peaceful citizens.

Thirdly, let us not commit the error of thinking that because FLQ activity is directed towards a political end it thereby becomes legitimate and permissible. Criminal acts remain criminal even if politically motivated. This is a point that ought to be obvious, indeed axiomatic; yet in some quarters it remains a matter of doubt or dispute.

I do not wish to leave this subject without adding a word on the manner in which the October crisis was met. The debate upon it continues. But I suggest that after all the weighing, and pondering, and assessing, and analyzing are done, one thing remains, and it is the heart of the matter: What the FLQ did in the Cross and Laporte matter was a frontal challenge to the rule of law; and what Canada did by way of response was a courageous refusal to yield to that challenge. Canadian leadership in an hour of trial met the threat of terrorism head-on. In the language of The Economist of London, it declined to submit to an act of terror, and thereby did something to make terror a less credible weapon.

I am aware that the steps which were taken, even as a temporary measure, have been criticized as an invasion of civil liberty. Such criticism must be respected, and it must be seriously considered and assessed. But I venture to suggest that Canadian action proceeded from the necessities of the situation; that no other practical option was available; and that despite its unpalatable features, its broad effect was to vindicate and uphold the rule of law against a sinister threat to it that was unique in the Canadian experience.

One final word. Our revulsion against violence and terrorism should not blind us to the existence within Quebec of grievances that call for attention. Here let me make it clear that I am thinking not alone of Quebec but of Canada as well. Canadian confederation was a bold experiment carried through in the face of many difficulties. Now, after 1 03 years of development and growth, we confront the question whether Canada can continue as a viable entity. Do we want it to continue? Our answer to that question will reflect our conception of Canada, of what it is and, even more, of what it is striving to be. Let us think of a Canada made up of the two founding races and of many other ethnic groups, all making their contribution to the common treasury of Canadian citizenship; a Canada cherishing the ideal of democracy rooted in freedom; a Canada rejecting the dislike of the unlike and tolerant of everything except intolerance; a Canada in which justice based on the rule of law is honoured throughout the land. That is the kind of Canada to command the allegiance of us all. Let us strive with steadfastness and fidelity to bring that Canada nearer and nearer.

The gratitude of the Club was expressed by Mr. Allan Leal, Q.C.