Legal Canons and Social Fables: The Law in Canada Has Never Been Perfect but Now it is Losing its Way
Bruce Pardy surveys the descent of Canada’s legal system into Alice-in-Wonderland surrealism, a state that poses dangers to virtually every Canadian and to the future of the rule of law itself.
Bruce Pardy is executive director of Rights Probe and professor of law at Queen’s University. You can reach him at [email protected] or on Twitter @PardyBruce.
To hold themselves together, societies tell themselves stories. People are honest; marriages are faithful; parents are devoted to their children. These narratives contain enough truth to be believed but at least as much wishful thinking. They are “myths” in both senses of the word: they’re not always or exactly true, but they convey cultural beliefs, aspirations and standards of conduct.
Essential myths extend to institutions too. Canada is the land of peace, order and good government. Officials act in good faith for the common interest. Public administration is benign. The legal system is just, fair and neutral. Such fables allow civilization to carry on in relative peace and harmony without serious rupture, even when the facts don’t quite match the story.
But what if people conclude that the fables are false?
Fable 1: The Criminal Justice System is Fair and Even-Handed
Respect for the rule of law depends on people believing that they will get a fair shake. The prime duty of prosecutors is not to achieve a conviction but to see that justice is done on the merits. Accused are presumed innocent. Punishment follows only if guilt is established beyond a reasonable doubt.
On July 26, 2022, Tamara Lich was released from jail again. Charged with mischief in February 2022 for her role in the Freedom Convoy that rolled onto Parliament Hill, Lich had been incarcerated on July 8 by a Justice of the Peace. The Crown attorney had characterized Lich as a danger to public safety and the convoy protest as essentially the crime of the century. It was the second time lower judicial officers had detained Lich. On both occasions a judge of the Superior Court overturned her detention and released her. She spent a total of 49 days behind bars on some of the least serious, non-violence-related charges in Canada’s Criminal Code. Her trial is scheduled for this fall.
“Political prisoner”: Even accused killers routinely get bail, but Freedom Convoy organizer Tamara Lich has in essence been punished for a crime – mischief – for which she has been neither tried nor convicted. Shown, Lich and her lawyer Lawrence Greenspon leaving court after her release from jail on July 26, 2022. (Source of photo: The Canadian Press/Adrian Wyld)
In Canadian courts, release on bail is commonly granted to persons accused of all manner of offences, including violent crimes. It was anything but common for Lich. Before the Superior Court stepped in, her disproportionate treatment punished her for a crime she had not yet been tried for, much less convicted. During her incarceration, some pundits suggested that Lich, who has no criminal record and no history of violence, was effectively a political prisoner. As she awaits trial, Lich must live under onerous bail conditions that severely limit some of her basic rights, such as freedom of speech and freedom of association.
- By Tamara Lich
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