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The police vs. the law

By Ulli Diemer


In these times, things that should seem strange to us often appear normal and even reasonable, One such event was the press conference last week of the Solicitor-General for Canada, Robert Kaplan, called to give his reactions to the McDonald Commission on the RCMP.

RCMP law-breaking, Mr. Kaplan announced, would continue as always, with his blessings. The Solicitor-General expressed the view that the police cannot be bound by exactly the same rules as the rest of us: he used the example of a policeman who takes a private boat out into a lake to save a drowning person’s life. Technically, this is theft, but we would all agree that under the circumstances the theft should not be prosecuted. The Prime Minister, Mr. Trudeau, is fond of using a similar example, of policemen who exceed the speed limit in pursuing a murderer.

One’s initial reaction is to be persuaded. Given these examples, Mt. Trudeau’s and Mr. Kaplan’s arguments for giving the police some flexibility appear sensible, and benign.

In fact, they are anything but: if one probes beneath their surface one finds dishonesty and cynicism.

To begin with, police do not have to break the law when they - for example - break the speed limit to pursue a suspect. The law allows them to do so, as it allows firemen to run red lights on the way to a fire. The law is not so blunt and crude as Mr. Kaplan and Mr. Trudeau would have us believe. It readily permits flexibility and exceptions for particular groups and circumstances. In fact, a great deal of law is concerned precisely with defining those groups and circumstances. For example, a fireman may, under certain circumstances - a fire - knock down your door wish an axe, even though normally such an act is illegal. A bailiff can legally come into your house under some circumstances and take your TV, an act that would normally be housebreaking. And so on. Acts that are illegal for most of us most of the time are quite legal for defined people under defined circumstances, within the law. The law may sometimes be wise, sometimes not, but there is no question that any such circumstances can be accommodated quite comfortably within the law, and always have been.

In addition, the legal system is also generally quite flexible in excusing technical breaches that occur in emergencies or other extenuating circumstances. None of us would expect to be prosecuted for theft if we took someone's boat to rescue a drowning person. The law is not that stupid. And we can be certain that Mr. Kaplan and Mr. Trudeau, both lawyers, and both politicians experienced in dealing with the police, know it quite well.

If they appeal to such spurious reasoning to legitimate police law-breaking, therefore, we can be certain that their real reasons are rather different from the plausible benign ones they are giving.

It seems clear that the government's determination to allow the police to break the law has to do with breaches that they know would not be accepted if legislation was proposed to legalize them. In other words, they want the police to be able to do things that they know the public doesn't want anyone, not even the police, to be able to do.

But this is exactly one of the main differences between a democratic society an police state: in a democracy, the police have to obey the law. In a police state, they don't.

To reiterate: this doesn't mean that there can't be laws that give policemen, or firemen, or whoever, special authority, whether search warrants, or the right to speed. But it does mean that once the laws are written, the police, as much as anyone else, have to obey them.

This principle is the most sensible way yet discovered of dealing with the dilemma that Aristotle articulated some 2300 years ago: Quis custodiet custodes? Who guards the guardians?

What all-too-many societies have learned is that it is far more common for the things a society cherishes to be destroyed by its own rulers and police - and citizens - than by external foes or internal “subversives”.We seem to often have a fatal urge to protect ourselves with cures that are worse than whatever disease we are combatting.

In a democracy, we have to be very clear about our priorities, if we are not to end up giving up our freedoms and diversities for the sake of rather more “security” than we ever bargained for. To be sure, Canada is a long way yet from being a police state - otherwise I wouldn't be allowed to freely publish this - but our record in civil liberties is far from being so good that we can afford to give anything away.

The rule of law necessarily implies some risks. Sometimes a criminal will use the rules to evade justice. We have to put up with people trying to change things we don't want changed. But the alternative is much worse: a society where none of us are entitled to the protection of the law, where none of us are allowed to dissent, where the police decide what is permissible and what isn't.

What is worse: allowing a radical group to meet and distribute radical literature, or allowing the police to burn buildings and steal files of any group they don't think ought to exist?

What is more dangerous, taking the risk that the mails will be used for dishonest purposes by a few, or giving the police the right to open all of our mail?

What is our choice, obliging the police to obtain information through normal detective work, or giving them the right to "take short-cuts" by kidnapping people and roughing them up in motel rooms?

What fits in better with a democratic tradition, the legal, open existence of parties such as the NDP, the Communists, the Parti Quebecois, all competing with each other and with the parties in government, or a police force that spies on parties it considers a threat and tries to harass and intimidate their members?

What do we prefer, a thousand-year common law tradition that forbids even the police to enter a person's home without showing cause and obtaining a judicial search warrant, or allowing the police to resort to “surreptitious entry” and the midnight knock on the door?

To me, the answers are clear.

Published in Seven News, September 4, 1981


Ulli Diemer
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