[asia-apec 750] Why APEC Allegations are so serious

[Sharon R.A. Scharfe]

Globe and Mail
October 5, 1998
Commentary


Why the APEC allegations are so serious
No prime minister has the right to interfere with police operations - not
unless we want abandon the rule of law

WESLEY PUE, Vancouver

Allegations that Prime Minister Jean Chretien interfered with policing at
the APEC summit in Vancouver are very serious, possibly more than we
realize.  Indeed, if proof appears, it will catapult Canada into a
constitutional crisis of the first order.

No prime minister has the right to interfere with police operations.  The
political impartiality of police - the heritage of literally 1,000 years of
constitutional development - is the sine qua non of the rule of law, which
is the heart of democracy.
	
Superficial similarities make the APEC affair resemble lesser "scandals":
allegations, leaked evidence, denial, evasion, "technically, legally
correct" statements, and so on.  That script is well known and tedious.

Common sense suggests that security Was important at the APEC conference
here last November, that Mr. Chretien would be concerned, and that a mix of
demonstrators with large numbers of police often leads to unfortunate
incidents.  Pepper spray, arrests, a bit of "roughing up," if regrettable,
seem unremarkable.  In heated circumstances the predictable excesses of the
odd "bad" (or stressed-out) cop also seem mundane.

In assessing what is at stake here it is important to look past the details
to matters of constitutional principle.

The most serious allegations run something like this:

For political reasons, Mr. Chretien wished to ensure the attendance of
Indonesian president Suharto at the Asia Pacific Economic Co-operation
conference;

Suharto indicated he would not attend unless protected from "embarrassment"
caused by protests, demonstrations, banners, placards, signs, etc.;

The Prime Minister ordered his aides either to ensure Suharto would be
spared embarrassment (not just protection from assassination, injury or
assault).  Or instructed the RCMP to make sure Suharto was spared embarrassment;

In either event, Mr. Chretien's senior staff gave orders to the RCMP.

These orders resulted in the violation of constitutionally protected
freedoms (such as freedom of assembly, free speech, freedom from arbitrary
arrest) for reasons that had nothing to do with security needs.

As a result, dozens of people were arrested, hundreds of law-abiding - this
matters - individuals were interfered, with or assaulted by police.

Though the Prime Minister , s refusal to issue a candid, unambiguous and
comprehensive account of his conduct is troubling, none of the allegations
has been proved before any competent forum.  Even assuming the accuracy of
this picture, however, many wonder what the fuss is about.

Let's make the issues clearer.  Imagine a prime minister moving to legislate
a ban on the display of posters displeasing to him.  Or making it illegal to
utter words displeasing to Canadian politicians within 100 metres of them.

No constitutionally minded House of Commons, Senate or Governor-General
would approve such legislation.  If they did, it would be struck down by the
courts without a second thought.

Nor could such Draconian measures be justified on the grounds that certain
words might cause offence to foreign despots or trading partners.  No such
rationale could confer legal justification under the terms of the Charter of
Rights and Freedoms, within the spirit of a free and democratic society
(Constitution Act, 1981), or under a constitution similar in principle to
that of the United Kingdom (Constitution Act, 1867).  Freedom, simply, is
not made of such material.

Clearly, if Parliament is prohibited from doing something, so too are prime
ministers, their aides and the police.  "Reason of state" cannot be casually
invoked by democratic leaders.  The despot's mantra, it is the conceptual
opposite of the rule of law.

Under the rule of law, no one can be interfered with, harassed or made to
suffer except for a distinct breach of established law.  And all citizens
are bound by the law: police, PMO staff, prime minister, even the
Governor-General-in-Council.

Canada has well-developed mechanisms (all of which allegedly were
circumvented at APEC) designed to protect the police from political
interference and citizens from political policing.  The reason is simple:
Blurring the boundary renders the rest of the Constitution irrelevant.
Countries where police respond to political command are neither free and
democratic nor governed by the rule of law - no matter what their written
constitutions say.  Pejoratively but accurately, we call such places "police
states."

If this principle can be freely violated, the political use of police forces
to harass journalists, political opponents and other inconvenient
individuals is no longer unthinkable.  A very slippery slope lies between
the APEC protesters and the rest of us.

Everything Canadians value about our Constitution flows from this buffer.


Wesley Pue is the Nemetz professor of legal history in the faculty of law,
University of British Columbia, Vancouver.




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