Jason Kenney might have found a good election campaign slogan but the idea that one province should play power politics with another is a not a particularly good idea. Moreover, it is an idea that is grounded that odd combination of martyr complex (we need to "fight back" against our "enemies") and the best way to do that, supposedly, is through as much force as we can measure. There is an overview in the National Post here. Kenney's approach raises a number of issues, one of which is an odd combination of a dying carbon economy and the politics of fantasy that we have seen, say, in the US (with regard to coal and hydro-fracking) and Russia (with regard to its energy industry and the resurgence hard power international politics of Putin). But, there are others. More specifically, and in addition to inter-provincial power politics -- it raises issues related to the politics of federalism (or, why provincial political parties like to campaign against the federal government) and the court system and public policy.
Said differently, the Alberta election raises a number of issues that are important to Canadian Studies. Let's address them in this spirit. Doing so will take more than one post so let's use this one to look at the politics of federalism and the implications of opposition to the courts for the rule of law.
In terms of blaming the feds, in the Alberta provincial election, just about everybody ran against Trudeau. That is nothing new. Provincial political parties have long run against the federal government, in part because it allows them to mobilize regionalist sentiment, particularly in hard times. Maritimers have done it virtually since Confederation; Danny Williams parlayed his anti-Harper sentiment into at least one (and perhaps more) majority governments. Running against the feds is easy. Its low cost because you don't actually have to campaign against someone who is campaigning against you. You never have to meet that person in debate or provide a response to their views in retort. The situation is more complicated in Quebec and western Canada, but the same sentiments can be mobilized in these regions, too: elect us because we will stand up to the federal government.
The problem that Kenney ran into is that Trudeau and the federal Liberals (a) admittedly don't like his politics too much but (b) are not against him on the pipeline issue. In fact, and much to the chagrin of progressives in Canada, the Trudeau Liberals have backed away from whatever commitments they made to the environment. They bought the pipeline that Alberta wants built just to keep the possibility of building it alive. Thus even while wannabe yellow vests and Alberta conservatives slam Trudeau, he and his government are actually on their side on this issue. Playing power politics might still seem to work ("see I got the feds on side") but one would have to be pretty stupid to fall for that line. Kenney's claim that he can get more support from the feds than, say, the NDP is not necessarily held up by election results (but that is the subject for some future blog), but how much more can he get? Can he get the feds to move faster? Can he get the feds to force BC into line? Can he get court decisions overturned?
That is doubtful and this is the second point that we need to bear in mind. The problems with the pipeline, for the federal government, started with the courts.There is some sort of idea out there that the courts and political and controlled by ... pick your poison ... feminists, the federal government progressives, liberals, etc. What we need to do, or so this argument runs, is take these people on because the courts have illegitimately stopped natural resource development in Alberta. But -- and this is is a big big but -- that is not the case. The courts ruled on a particular legal issue and the ruling, by the way, was not against the proposed pipeline. In fact, I doubt the courts would even agree to hear a case that was on the merits of pipelines. I strongly suspect that the courts would view the merits of pipelines as a political issue and, thus, rightly, outside their jurisdiction. The courts, whatever their strengths and weaknesses rule on matters of law; not politics (one could argue that that law is compromised or tainted but, again, the subject for some future blog).
The idea that some sort of pressure should be exercised on the courts so that they alter their views is not a good idea. In the case of the pipeline, the courts ruled not on the merits of the pipeline but whether the federal government had adhered to its own laws with regard to environmental impact assessment. It had not. In other words, again, the issue was not "should the pipeline be built?" but "has the federal government obeyed the law?" The courts ruled "no" which, in effect, stopped the pipeline ... until the federal government was brought into compliance with its own laws. Now, an environmental impact assessment, if done correctly, might highlight other problems with the pipeline that need to be addressed but that is not the courts' issue. That is the law with regard to environmental protection that has been put in place by successive federal governments to ensure (a) environmental protection, (b) healthiness, (c) inter-generational equity, and (d) to save costs.
I'm not going to get into all of these here because you can see the point. Viewing the courts as some sort of anti-oil trickery completely misses the boat. It is true that environmentalists -- including those in the BC government -- may have celebrated the ruling but if they did, they did so for the wrong reasons and because they did not understand what we being addressed by the courts and why.
Attempting to overturn this decision politically -- to try to exert pressure on the feds or another provincial government to overturn it politically -- is not just bad form (although I would argue that it is ... again ... something for another day), it calls into question the rule of law. Follow the logic here because it is important: what happens if the courts make decisions on political (as opposed to legal) grounds? American courts are getting dangerously close to this mark whereby law is contingent on political views. Stephen Harper tried to suggest something similar in Canada and there are those who argue this case but they are missing the point. If law is subject to political contrivance, what law is safe?
Let's take an example to illustrate a point. Imagine a different scenario. Imagine a criminal case. Do we want the courts making determinations on the basis of guilt or innocence or on the basis of politics and pressure. Everyone here instantly says "guilt or innocence" but ... I periodically hear people say things like "someone has to pay for X" or "justice must be done for Y." And, those things can be completely true. But, the right person has to pay. If they don't -- if some poor schmuck is convicted because it is politically expedient to do so (verse guilt or innocence) -- than justice has actually not been done and no one has, in fact, paid for the crime. Indeed, injustice has been multiplied: the guilty party has, in effect, gotten away with their crime. Consider a murder: if the guilty party is not convicted of the crime but someone else just because "someone has to pay," then, in fact, the guilty party "got away with murder" quite literally.
Consider the broader message that has been sent" one does not need to obey the law. One just needs to make sure one does not get caught or that someone else is left holding the bag because that will satisfy the demand for justice regardless of their actual guilt or innocence. If this situation actually came to pass, the courts would not be instruments of justice but would, in fact, become mechanisms for the propagation of injustice. One needs to ask: are we OK with this?
Some people say, well, perhaps. It does not effect me. Indeed, that person who was convicted had to do something to get convicted anyway. They were not just in the wrong place at the wrong time, but people who got themselves in the wrong place and thus must be guilty of something. They may not be guilty of this particular crime but since they are guilty of something, there is little harm in putting them behind bars.
I would argue that this reasoning is at best shaky; at worst playing with fire. What happens if you were the person in the wrong place at the wrong time? What counts as the wrong place? What counts as the wrong time? What happens if you are walking by a bank as it is robbed or visiting a friend when a B + E happens down the street. A number of years ago the police raided a house on a street one over from me and found an illegal pot grow. I had nothing to do with it but I was in the area. Does that make my guilty of something? Think about this for a second or two, saying things in a certain way can actually make a person sound guilty without a shred of evident: "Yes, indeed, we have no proof that Mary was responsible but she was in the area when the crime occurred." I was in the area when the pot grow was discovered. The year my son was born, the bank up the road from was robbed so I was in the area. As a teenager, I worked in a fast food place that was robbed. Hmm ... do you see a pattern emerging? What happens when you string all of those different incidents together. I start to sound pretty guilty, don't I. "Yes, it is true. We have no evident Andrew was responsible but he was in the area when a restaurant in which he worked was robbed, a bank was robbed, and the police discovered an illegal pot grow."
I could likely think of other examples, but you see the point. The logic is akin to guilt by geographic association. It is a way of excusing bad justice and explaining away miscarriages of justice as opposed to actually ensure that justice is done.
Here is my point: really bad things happen when we call the rule of law into question. I recognize that there are solid grounds for a sophisticated critique of law and I know that the law (a) has been far from perfect in its implementation in the past and (b) remains far from perfect today. But, I would argue (a) there has been progress and (b) if we argue that the problem with the law is politics, I doubt the solution is more politics. At any rate, what I want to argue is that bad things happen when we start substituting politics for law. In effect, we run the risk of turning the administration of justice into tools of injustice that allow the guilty to go free and threaten law-abiding citizens who can never be certain that they will not end up in jail because "someone has to pay" and they lost out.
What I find odd, I will say, in some of the anti-court perspectives I hear is that they are voiced by conservatives. Conservatives used to pride themselves on being the party of law and argued that others manipulated the legal system for which they stood up. Standing up for the rule of law, however, is not a political issue. It is in everyone's interest. The fact that conservatives have moved away from this perspective says something but it does not mean that we should abandon the rule of law.
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