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Extreme Prejudice: State Rape and the Death of Due Process

Our Retreat From Reason
Due Process.jpg
Beryl P. Wajsman 8 March 2004

“Our only lasting legacies are the integrity of our ideas. These are our children. A civilized man’s quest must be to expose and expand singular elements of truth and justice and add them, as a mason does brick by brick, to the entire corpus that has come before. If we fail to at least make the effort, there is little to recommend our existence in this mortal coil, and little to warm us in the winters of our lives, for

familiarity is fleeting, friendships can be fickle and fidelity is always feeble and frail…”

~Samuel Johnson




Some one hundred years ago, Justice Oliver Wendell Holmes, Jr. constructed the foundational maxim of legitimate legal order: “Justice must be seen to be done as well as to be done.” These thirteen simple words embodied the hopes and strivings of those of compassionate conscience and noble purpose who recognized that a just society is predicated on the recognition of an equal claim by every citizen on a presumptive tolerance from the state over which, through the exercise of their suffrage, they have a sovereignty unencumbered by any conditions of special considerations to property or power, privilege or preference.


Over the past month we have seen a national debasement of that claim. Oh for Jonathan Swift and Lewis Carroll to be alive and well and writing in Canada right now! They would have enough grist for their creative mills for a couple of sequels. The Lilliputians teamed up with the Mad Hatter and the Queen of Hearts. Gulliver traveled to Wonderland and shuddered with Alice as the Queen pronounced, “Sentence first…trial after…” Swift would probably shrug and repeat his famous line that “What’s sauce for a goose is sauce for a gander.”


When the Institute launched our protection of privacy initiative last year with the publication of “State Rape”, warning of intrusive, excessive, and abusive actions by Federal and Provincial authorities against private citizens, we could never have imagined that we would ever see, in a such a short period of time, elements of both levels of governments managing to rape the integrity of due process, breach the foundational doctrine of presumption of innocence, and violate the public’s Charter-enshrined civil rights. Quite a feat.




The real stories of the past month are not that millions might have gone missing in the sponsorship program or that some restaurants in Montreal were using zappers to hide sales or that a reporter had a source that embarrassed the intelligence apparatus of this country.


No, the real stories over the past few weeks were that Federal and Provincial government officials egregiously transgressed fundamental tenets of civilized society more important than any possible infractions of the Financial Administration Act or the Income Tax Act or, for that matter, National Security considerations as important as the latter are.


Ř      In Ottawa the Auditor-General used language and drew conclusions far outside her mandate and basically created a verbal public lynching. The A-G's website itself points out "the important principle that the Auditor General does not comment on policy choices but does examine how those policies are implemented." Yet Fraser used language that made this seem a scandal of epic proportions. She styled herself as prosecutor, judge and jury. And if one looks through the hard evidence in the reports, one could be excused for assuming that certain conclusions were questionable since some of the “hard” evidence remains somewhat shallow yet the final language was almost uniformly, subjectively and adjectively harsh.


Ř      In addition, we have seen elected officials, some of Cabinet rank, characterizing the subject and substance of supposedly impartial ongoing public and judicial inquiries in the most prejudicial terms. How do you have fair and impartial inquiries when the wells have been poisoned so publicly and dramatically?  As Arthur Wellesley, First Duke of Wellington said, “I mistrust the judgment of anyone in a case in which his own wishes are concerned.”


Ř      The Police-backed Revenue raids on the restaurants in Montreal, brought back memories of the darkest days of Duplessis and his crypto-fascist Padlock Laws using local police forces to enforce his will. It is bad enough that Quebec is considering legislation to tear down the long-standing privacy guarantees of citizens’ Revenue records never being shared with other departments, but to use multiple police vans and cruisers in a one-block radius and barge in on reputable business establishments filled with customers in the middle of the day and irreparably damage their reputations, makes a laughing-stock of the civil rights provisions in the Federal and Provincial Charters.


Ř      One could feel the same chilling emotions of revulsion when watching the scene of a line of officers walking away from Juliet O’Neill’s home at eight in the morning lugging boxes of her private papers.



We have come a long way from Trudeau’s civil libertarian revolution when the government  “…had no business in the bedrooms of the nation…”, abolished capital punishment, placed cautious restrictions on electronic surveillance, and enshrined our dignity as Citizens in a Charter of Rights. Where are we living today?




Prime Minister Martin has pledged to correct what he has called Canada’s “Democratic Deficit”. Well, let’s get engaged and help him. It’s never been more urgent for all of us to work to take our country back, because the past month has seen due process and the presumption of innocence rent asunder by officials who, even while priding themselves on procedure, were in a rush to judgment.


We are a society of laws and not of men. But it is a principle of natural justice that when bad men make bad laws, or when unprincipled authorities compromise good ones, then citizens have a responsibility to protect their rights and to exercise, in Gandhi’s term, “…responsible agitation…” to keep governments from “…moving from wrong to wrong in order to protect their own immortality…”


Justice William O. Douglas once wrote “In a civilized society the means are all important. It may seem unimportant that one person’s guilt is established through questionable means, but in the sweep of history a nation that accepts indiscriminate practices as normal has no claim to a position of moral leadership among the nations.”


If we Canadians have one boast, one over-riding advantage, not just over totalitarian regimes, but even over sister democracies, it is that our legal traditions reflect our national consensus that our governance must have a broad base in morality and decency and protect our individuality and conscience against direct and indirect breach by government. If we have many more months like the last one we may, as Toronto lawyer Clayton Ruby put it so well, “…lose sight of what our democracy is all about.”


Let the detectives detect and the investigators investigate and the collectors collect, but within the limits of due process. And with the appropriate verbal restraint from our public officials so that the reputations of our citizens are not compromised.  Let us never become so falsely pious as to forget that today’s laws are merely the limits on our actions placed by those in power who profited from a yesteryear when these laws did not exist, and now seek to protect their own gains by limiting access for others.


Except in extreme matters of National Security; and even then balanced against the primacy of protecting individual liberties so as not to become the reflection of that which we are trying to destroy; if state authorities cannot catch certain people under rules that protect the majority of law-abiding citizens so be it. Governments cannot continue to be given onerous extraordinary powers which we have seen them apply not only irresponsibly, but retroactively. We must not allow the reach of the state to extend like monstrous, serpentine tentacles suffocating all breath out of our collective conscience. As with capital punishment, far better to let five guilty men live, than to execute one innocent.




Few crimes are as heinous that of unbridled government power. Few threats to our public security are as grave as the ability of unseen forces to intrude into our lives and thoughts. Few fears are more paralysing to the commonweal than the possibility of violation of our most sacred trusts by public servants who shield themselves behind screens of  immunity. The greatest danger to our free society lurks in the insidious encroachment by agents of the state operating without understanding or guidance from compassionate authority.


It is the unfortunate history of nations that even slight abuses of the authority of the state lead, imperceptibly at first, and torrentially later, to the abridgment of basic freedoms. Beyond that, there is the more subtle and immeasurable effect upon society where a smug, pallid orthodoxy replaces independence of thought and a rigid complacency is substituted for boldness of decision in order to avoid any governmental oversight or inquiry. It is the beginning of the deadening of the spirit of a people.


Few tax evaders, criminals or political subversives do as much damage to the fabric of our society and the quality of our national character as some of the methods employed to investigate them. Interestingly, we have found that law-enforcement officials are more sensitive to this than elected politicians. When a member of the Commons Justice Committee once argued to former U.S. Attorney-General Ramsay Clark, who was appearing as a witness on a proposed bill, that Government needed stronger powers because criminals used unscrupulous methods, Mr. Clark responded that certain criminals also practice murder but that did not make it an appropriate tool for Government.



If we have to live our lives weighing every action, every communication, every human contact, wondering what agents of the state might find out about, how they would analyse it, judge it, tamper with it, and somehow use it to our detriment, we are not truly free.




We can only have one standard. The state may do nothing that contravenes the guarantees implicit in the concepts of ordered liberty and fundamental justice. These principles are effective only when there is a strict adherence to due process. The starting point is always the individual, not the state. If due process if violated, the humblest of citizens is sheltered  in the heart of our legal order by the guarantee that they are protected from prosecution and shielded from sanction.


The risk, the great and agonizing danger in our system, is that our citizens get caught in a treadmill. While seeking elusive administrative and legal remedies against prejudices they have suffered, their constitutional rights are compromised by the intolerably long process of legal procedures. Relief often comes too late. The system implodes from its own weight. The administration of justice becomes, in the words of Viscount Buckmaster, “…a mystery to the uninitiated and a snare to the unwary…” We have seen the looks of fear, anger, bewilderment and powerlessness on the faces of  people caught up in government webs and fishing expeditions. It should make us ashamed as Canadians.


We constantly witness certain vested interests in the public and private sectors whitewashing  friends and finding scapegoats to whipsaw. Their attacks are often aimed at the weakest among us. All the while they publicly mouth pronouncements of moral platitudes. They seek to impose a rigid statist culture of control and they are dangerously close to succeeding.


We need a national awakening  and a renewed national will. From corporate employee to government bureaucrat, from trade unionist to small businessman, from professional to tradesman--from all of us—a commitment to the conviction that our primary allegiance is to our personal integrity and to our common weal, and that we are dedicated to the proposition that a just society governed by due process is not merely a dream for our hearts to crave but is truly a reality which our hands can forge. It is the ultimate reflection of our transcendent yearning for redemptive change.


The standard is raised high and the task is daunting. But with the necessary resolve we can secure a society where hope is not extinguished by humiliation, where justice is not compromised by expediency, where truth is not mortgaged by timidity and where honour is not cheapened by avarice.


This is our only surety of a government, and a society, that endures with pride and purpose in a spirit of compassion and conscience, and not one that merely exists--paralysed and petrified--in the icy frost of its own indecision and indifference. 






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