Dafonte Miller case shows it's time to talk about the myth of 'the rule of law'

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Ontario Superior Court of Justice and Toronto City Hall. Image: Ken Lund/Flickr

The rule of law, as Gandhi said about Western civilization, would be a good idea.

I thought this as I listened to Justice Joseph Di Luca drone for hours, literally, while ruling on the Therieault brothers' case. I've sat through those rulings (this one was, uniquely, virtual) and it's always similar: you can't guess which way they'll go till the end, when they suddenly jump one way or another. You're up, you're down -- especially if you're the defendant. The strongest sense you have is how arbitrary this is. It isn't rule of law, it's the ruling of this one guy.

This applies to judge-only trials. Jury trials are different since they don't give their reasons. Yet somehow the judge's reasons make his decision seem even more haphazard. If it was as reasonable and logic-driven as the judge's tone always suggests, then you'd surely know before they announced it, what it inevitably would be. Rule of law, it turns out, is more a phrase you mouth than a condition you inhabit.

There's been lots of rule-of-law jabber lately. Jody Wilson-Raybould thundered rule of law and nearly brought Prime Minister Justin Trudeau down. He and his minions said, "Yah sure," but also: "votes, Quebec, the economy, the rest of the world." She and her comrade, Jane Philpott, left so that, during COVID-19, they aren't in place to perform the kinds of tasks they prepared for all their lives.

Now there's the two Michaels, jailed on ludicrous pretexts in China. This time it's Trudeau who keeps muttering, rule of law, while 19 "eminent Canadians" petition saying, "Yeah, but: ministerial discretion, Extradition Act, compassion."

It makes me think warmly about my favourite academic, retired law prof Harry Glasbeek, who has insisted for decades that all law, despite its rigour and precedents, is embedded in particular circumstances that include the politics and cultural presumptions of its time. There's no such thing as rule of law in the abstract, it's always imbued with particular circumstances.

So I'd be more sympathetic to Wilson-Raybould if she'd explained that what really irked her was how SNC-Lavalin got speedy curbside service almost before placing their order, while her people waited centuries and are still on hold. Or if Trudeau said, "Sure I can cut a deal with China, but if Trump takes a sh-tfit over it, our whole economy could tank."

Who understands this kind of rule of law in all its complexity? Clearly not the judge who, despite his long and winding text, seemed as predetermined as the sunset. The Black kid got his day in court and the cop got off lightly. It's full of "I accept," "I do not accept" and "I cannot conclude beyond a reasonable doubt" even when the margin is "razor thin."

So what it really comes down to is: who is it who has to be convinced and what are their predilections based on background, politics, the side of the bed they got up on or their digestion. (Much depends on breakfast.) Is that fixable? You can try to recruit a variety of people for the role -- but once you've gone through law school, you'll still be a lawyer and think like one, and that isn't random. Are there other systems -- restorative justice, community stewardship? Sure, but not for Dafonte Miller.

And yet he's the one who put it all in context. He said after the daft ruling: "A lot of my brothers and sisters are going through similar situations as me and a lot of my people are dying and a lot of officers are walking. So I don't feel like I took a loss -- I feel like we took a step forward."

Noam Chomsky couldn't have said it better. Having that much perspective is saintly. You expect it from a Chomsky or Martin Luther King ("I have been to the mountaintop" -- foreseeing his imminent, violent death).

But Miller, still a teen when the cop who got off lightly beat him so badly that parts of his eye were on the hood of an SUV? We -- us humans -- don't deserve such wise and long-suffering figures in our midst. By sheer grace we sometimes get them. I hope he had a good Canada Day.

Rick Salutin writes about current affairs and politics. This column was first published in the Toronto Star.

Image: Ken Lund/Flickr

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