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Message to Alberta's chattering classes: Quit misinterpreting 'the rule of law,' already!

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Protestors block the gates of the Kinder Morgan Richmond Terminal. Photo: Peg Hunter/flickr

We're hearing the phrase "the rule of law" an awful lot in Alberta these days, from politicians of the left and right.

In a recent advertisement published in British Columbia newspapers, the Alberta government accused its B.C. counterpart of "trying to break the rules of Confederation" by considering limits on the amount of diluted bitumen that can flow through pipelines in B.C. "The disregard for the rule of law puts our national economy in danger," the ad said.

Complaining about the mayor of Burnaby's reluctance to pay for extra policing at the terminus of the Trans Mountain Pipeline in his community, Alberta's NDP premier, Rachel Notley, referred to this activity as "the policing of the rule of law."

"The B.C. government took aim at the jobs of hundreds of thousands of hardworking women and men in every industry that depends on governments acting within the rule of law," she said on another recent occasion.

Jason Kenney, leader of Alberta's United Conservative Party Opposition, has said much the same. "The rule of law must be enforced," he tweeted. "It's time to stand up for the rule of law in Canada," he said in a Facebook video. "We have environmental radicals who are increasingly undermining the rule of law as the basic organizing principle of Canadian society..."

Indeed, this phrase has been repeated enough in this context now that even some of mainstream media's more reasonable commentators are slipping uncritically into the rule-of-law meme. Premier Notley, wrote Edmonton Journal political columnist Graham Thomson yesterday, "is counting on the rule of law while her opponents are determined to break, stretch or ignore the law," wrote Edmonton Journal political columnist Graham Thomson Tuesday.

I could go on at considerably more length, but I think readers get the idea. In all cases above, the emphasis was added by your blogger to the phrase "the rule of law." Most of the time in this debate, it is used to mean "obedience to the law," which is normally a citizen's duty, but not the same thing at all as "the rule of law."

Somebody has obviously done some message testing and determined that this is a good talking point to which Alberta and maybe even B.C. audiences will respond favourably.

But if you begin to think about it, it is fatuous. Not only because it presumably intentionally misinterprets the phrase "the rule of law," but because it ignores the meaning of Canada's Constitution.

The rule of law is traditionally defined as "the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws." Importantly, the phrase is usually explained as meaning that the law must be applied equally to everyone, not that everyone should obey it.

The right of provincial governments to enforce regulations to protect the environment within their borders is clearly permitted within the division of powers in the Canadian Constitution and by subsequent jurisprudence. Whether or not the regulations B.C. Environment Minister George Heyman is proposing are constitutional is another matter, which cannot be settled yet because no one (perhaps including Heyman) knows what those regulations might be.

Calling such statements unconstitutional is a stretch; so is saying they threaten the rule of law. Only if the courts ruled against them and B.C. enforced them anyway would this claim have any validity.

Free speech and free assembly remain protected by the Canadian Charter of Rights and Freedoms, a core part of our Constitution and the country's fundamental law.

So calling for Kinder Morgan Inc.'s pipeline expansion megaproject to be halted -- whether or not that is sound policy -- is clearly permitted by the Constitution, as is organizing large protests against the project. It is risible to define either activity as a threat to the rule of law.

Standing peacefully within five metres of the fence around the Kinder Morgan terminal in Burnaby is technically not permitted -- which is why the Mounties will arrest you if you do -- because the company has gotten a court injunction to prevent protesters getting that close to its operation.

Perhaps that injunction can be successfully challenged as violating the fundamental freedoms protected by the Charter. This seems unlikely, as it appears to be a reasonable limitation, but even if such a challenge cannot succeed there is the response of civil disobedience.

There is a long history of brave people willing to break laws they feel are unjust or immoral or dangerous and face the punishment. But breaking the law by engaging in civil disobedience does no harm to the principle of the rule of law.

Civil disobedience is what Rosa Parks was doing when she defied the driver of a bus and sat down illegally in the vehicle's "whites only" section in Montgomery, Alabama, in 1955. Her action was heroic and historic.

This is what Rick Strankman was doing when he illegally drove a load of wheat from Canada to the United States to protest the Canadian Wheat Board's monopoly. Strankman was jailed in 2002 for that violation of the law and a decade later he was pardoned by prime minister Stephen Harper, who praised him for his "courage and conviction."

Today Strankman -- who in Harper's words "protested injustice by submitting (himself) peacefully to the consequences of challenging injustice" -- is an honoured member of Kenney's United Conservative Party Caucus, its Agriculture Critic.

Civil disobedience is what environmentalist Mike Hudema and Alberta Environment Minister Shannon Phillips counselled when they worked together on a book about environmental activism published in 2004.

And it is what Green Party of Canada Leader and member of Parliament Elizabeth May was doing last Friday when she and NDP Kennedy Stewart were arrested at the Kinder Morgan terminus fence.

Truly democratic societies respect civil disobedience, even if they sometimes do not tolerate it. Nothing the protesters in Burnaby are doing can be described as a threat to the rule of law, as long as the law is applied equally and impartially to them.

If the penalty faced by Protester May is the same when she strays into the forbidden zone as that faced by Protester June, young person in a hoodie who does the same thing, the rule of law is safe.

Likewise, if the penalty faced by Farmer A for driving a load of grain illegally into Montana is the same as that faced by Farmer B, despite the fact the first farmer is a pal and ideological fellow traveller of the prime minister, no harm is done to the rule of law.

Indeed, if anything offended the rule of law, it was the prime minister's pardon of Farmer A, otherwise known as Mr. Strankman, since pardons are definitely not handed out equally to everyone who commits the same offence.

So what do Alberta's politicians really mean when they endlessly repeat the phrase "the rule of law" in this debate?

In fact, they are advancing the dubious theory that elections are the complete and perfect form of democracy in our society, its be-all and end-all, and that any effort to challenge a decision made by a duly elected government or its appointed agents and agencies is not only undemocratic, but a threat to the rule of law.

If the recent brouhaha about data mining, the manipulation of private information on Facebook, Russian Internet bots, Brexit, the election of Donald Trump and the success of Cambridge Analytica teaches us anything, it is that this interpretation of democracy is dangerously limited.

History and the reliance on voter suppression techniques by some political parties, including one in which Kenney served as a cabinet minister, show why free expression through protest is an essential democratic right.

For the rule of law to be preserved, laws must apply to all people equally, be they monarchs, MPs, police officers, judges, billionaires, government officials, taxi drivers, baristas … or environmental protesters.

Civics class dismissed.

This post also appears on David Climenhaga's blog, AlbertaPolitics.ca

Photo: Peg Hunter/flickr

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