Defenders of the Rule of Law


Defenders of the Rule of Law

As I write this column, the news is full of chaos. Recent events have led many to say that the rule of law is under attack around the world, and to feel helpless to do anything about it. Disorder is erupting in Canada on a scale unfamiliar to us in modern times, and the Russian invasion of Ukraine is a violation of international law of the type Europe hasn’t seen since World War II. While we have seen similar types of wars, violence, and violation of international law — often proxy wars being fought by other powers — for many, this clearly feels like a different level of risk.

The self-titled Freedom Convoy that occupied downtown Ottawa and border crossings for most of February led many Canadians to suggest that the rule of law had broken down. Complaints were made that police weren’t enforcing the law because some sided with the convoy participants, and that nothing was being done to protect the rights of those people who lived, worked, and tried to run businesses in the occupied areas. Significant amounts of money were raised, largely from American funders, to support the occupation and its goals, which reportedly included overthrowing the Canadian government. The invocation of the Emergencies Act by the federal government has been argued to be an illegal overreach, a draconian overreaction that sets a dangerous precedent.

Faced with this kind of chaos, it’s important to remember that we have a role to play in protecting and promoting the rule of law. Many opponents to government policies have challenged them in court, and lawyers helped them do that. When a resident wanted to challenge the occupation in Ottawa, it was a lawyer who brought a lawsuit and obtained an injunction against the honking and other noisemaking, and a judge who made that ruling. This same court made an order freezing donations to the convoy, to ensure money would be available for damages if the lawsuit succeeds. When the Emergencies Act was invoked, the response from multiple groups across our country was, with the help of lawyers, to file court challenges to the federal government’s actions. The rule of law remains alive and vital in Canada when people can turn to it for remedies.

One fundamental aspect of the rule of law is the independence of our profession; in Canada, this includes self-regulation. The Law Society of British Columbia commissioned a report last year on its performance as a regulator, known colloquially as the Cayton Report. While self-governance is not currently under attack in BC, preserving it means we must be self-reflective, analytical, and responsive to the concerns raised in the Cayton Report. CBABC is holding roundtables across the province this spring to solicit feedback from all lawyers. If you haven’t registered for a session, I encourage you to join us. As lawyers, we play a crucial role in upholding the rule of law and must ensure our independence to do so.

Opportunities to protect the rule of law in Ukraine are not as obvious. The CBA Immigration Law Section is spearheading an initiative to provide pro bono services to individuals affected by the crisis in Ukraine and bring eligible Ukrainian nationals to Canada. Ukraine has brought a request for provisional measures to the International Court of Justice, although Russia chose not to participate. The International Criminal Court Prosecutor, Karim A.A. Khan, QC, has opened an investigation into the situation in Ukraine. And sanctions against Russia increase in severity every day. While seemingly insufficient, they show that members of the world community still turn with some hope to the rule of law for protection and enforcement of its rights. These are small pieces of an unquestionably complex situation, but they are signs that underscore the importance of our independence and our work as lawyers.

And finally, I am reminded that the issues of equality and diversity permeate even these crises. The occupation of downtown Ottawa was difficult for all residents, but from the swastikas and leaders who profess white supremacy views to news stories about IBPOC people being attacked, the increased impact on members of those communities is clear. Coverage of the Ukraine crisis has told us that people of colour face increased barriers when they try to leave the country, but also reflected back to us racist attitudes about who is deserving of sympathy and who we simply expect to be involved in violence. High-profile crises capture our attention and often our time and energy, but we must always keep in mind the core work we need to do every day — to challenge our own beliefs and reactions, to have difficult conversations, to do the hard work.

It’s essential to our work as lawyers, and our role as defenders of the rule of law.

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