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Without Restraint of Consequence

The Rev. Darryl Gray and Our Culture of Complicity

Beryl P. Wajsman

22 April 2004

"We are all blind until we see

That in the human plan

Nothing is worth the making if

It does not make the man."

~ Edwin Markham

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 few months Canadians have witnessed a debasement of the noble sentiments of these words.

Crimes of prejudice take many forms. Some are manifested through classic violence and are categorized as hate crimes. The firebombing of St. Laurent’s UTT which led to our creation of the Council for Community Conciliation was one such case. Others, while more subtle, exhibit equally damaging and equally dangerous threats to the common weal. Each must be responded to with equal vigour and resolve.

Yesterday’s scurrilous trial by fire of Rev. Darryl Gray on the front pages of our newspapers was an insidious example of what the Italian legal philosopher Beccaria called the “…triumph of the mediocre and the tyranny of the mindless…” This crime of prejudice does as much violence to the spirit as the other does to the body.

We cannot abide a criminal justice system that moves with impunity even when the alleged victimizer, supported by the alleged victim, both state categorically that nothing happened. We cannot acknowledge as legitimate statements by police officers that because “…they had reason to believe…”, without any objective substantiating evidence, they then had the right to proceed to lay charges. We cannot acquiesce in star chamber proceedings that allow our authorities, charged with protecting the public interest, to sit on a file for months without any notice to the accused and then have the story break in the press.

To remain silent on this issue would be an admission of complicity in a national political culture that is in full retreat from reason, wallows in the pallid orthodoxies of false pieties and succumbs to the slow undoing of our natural liberties.

We were proud to stand with Darryl Gray at his press conference. Proud because he is a friend and proud because he is a champion. But we also stood with him because we needed to demonstrate that we are not satisfied.

We are not satisfied that a hero of the people has been treated so cavalierly by authorities purporting to protect the public good. We are not satisfied with the reality that a man who has fought the tough fights because he understood, viscerally, that they are the only ones worth fighting, should be attacked at the very moment when he is in the midst of two very public campaigns for minority rights. We are not satisfied with the answer to the question that all reasonable people of goodwill are asking: why now?

And we are not satisfied with the actions of government authorities on all levels over the past few months that have egregiously transgressed fundamental tenets of civilized society by raping the integrity of due process, breaching the foundational doctrine of presumption of innocence, and violating the public’s Charter-enshrined civil rights.

In Ottawa the Auditor-General used language and drew conclusions far outside her mandate and created a verbal public lynching at her press conference on the sponsorship program. She styled herself as prosecutor, judge and jury. Dozens of reputations were impugned and only now is it becoming clear that she may have been wrong. How do you have a fair and impartial judicial inquiry when the wells have been poisoned so publicly?

In Quebec the Revenue Minister authorized police raids on five restaurants that allegedly used zappers on their cash registers. The raids involved over fifteen squad cars in a one block area. They were carried out in the middle of the day and caused irreparable harm to the reputations of these establishments. Much worse was the resulting derision of Federal and Provincial charter guarantees.

Juliet O’Neill, an Ottawa Citizen reporter, had ten RCMP agents barge into her home to search for information on a confidential source she had used in a story. This on the very same day that the Supreme Court struck down these types of police actions, and warrants, as unconstitutional.

Without restraint of consequence we have seen government Ministers drawing public conclusions on individuals facing ongoing judicial proceedings; senior law enforcement officials demanding that Parliamentary committees curtail activities because they wanted to lay charges against the very persons the Committee had called to hear even before they were heard; and Prime Ministerial advisors urging a rush to criminal judgment by police authorities in order to restore political credibility.

All this in the past sixty days. It is a record of achievement worthy of a banana republic.

Guilt by insinuation seems to have become standard operating procedure for career advancement in our country. And it could get worse.

The CCRA is creating giant databases whose use it has repeatedly refused to limit to anti-terrorism and security purposes as requested by Canada’s privacy commissioner and leading civil-rights advocates. Quebec is considering legislation to tear down the long-standing privacy guarantees of citizens’ Revenue records never being shared with other departments. The Federal government may be implementing measures to monitor e-mails and cell phone calls. This in addition to the current Canadian Security Establishment monitoring of some 50% of all overseas landline calls and 25% of cell calls. Study is under way by the Immigration Department to establish a national identity card and to allow RCMP video surveillance on public streets. Finally, the government is looking at empowering a host of regulatory functions to be made by Order-In- Council without the approval or consent of Parliament.

The precedents set could ultimately open the door to practices that exist in other societies where police routinely check anyone of interest to the state on any pretext.

We are a society of laws and not of men. But when bad men make bad laws, and when unprincipled officials 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…” Over the past two months government officials and departments at all levels have rent asunder our most cherished notions of our country and of what we are as a people.

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. far better to let five guilty men go free than to convict one innocent wrongly.

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.”

Few crimes are as heinous as those 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 officials of the state who shield themselves behind screens of immunity. The greatest danger to our free society lurks in the corrosive encroachment by zealous bureaucrats operating without understanding or guidance from compassionate authority.

Prime Minister Martin said in his first budget as Finance Minister that the Government of Canada may have lost its moral authority due to the fiscal failures of the previous administration. What can we say today of the perversions of justice we witness by state authorities at all levels. Mr. Martin has pledged to correct what he has called Canada’s “Democratic Deficit”. Well, let us engage and help him. It has never been more urgent. It is time to take our country back.

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. Beyond that, there is the more subtle and immeasurable effect upon many, to adhere to the most smug biases in order to avoid any governmental oversight or inquiry.

We must pledge our eternal resolve to assure a society where hope is never extinguished by humiliation, where justice is not compromised through expediency, where truth is never mortgaged to timidity and where honour is not cheapened by avarice. If we Canadians have one boast, one over-riding advantage, not just over totalitarian regimes, but even over sister democracies, it is that our political and legal traditions reflect our broad national consensus that laws must have a base in morality and protect our individuality and conscience against the corporate demands of the state. If we have many more months like the past few we may, as Toronto lawyer Clayton Ruby put it recently, “…lose sight of what our democracy is all about.”

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