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| Derek Anderson |
I’m a 54-year-old criminal defence lawyer. My basement is 600 kilometres north of the border town of Sweet Grass, Montana. In 2007, I stood on the Canadian side, next to our green Ford Explorer, and watched my South Korean wife circle the American flagpole and, 10 minutes later, walk back toward us, happily waving her permanent resident status like a flag. She still has it — the equivalent of a long-term green-card holder.
When I was a Canadian kid in the ’70s and ’80s, I was waxen with Cold War anxiety. My home life was largely cold and dark, but the impersonal terror of the Cold War was easier to live with than what my parents were offering: the no-obligations complete absence of a single sincere concern.
I squeezed through the terror like it was the air of a vomitorium: by being small, mouth closed, breathing in secret, heart sealed away. Eventually, I wasn’t there at all. I left home when I was 17, and sliding into the ’90s was easy, where permission not to worry was all too easy to find. And then, all of a sudden it was 9/11, and now here we are.
This sticky new American fascism, and the return of the no-obligations complete absence of a single sincere concern has me up, 600 kilometres north of Sweet Grass, chest painful, tight, typing. I feel as anxious today as I did in ’84. It was really awful, and it really is, again. Worse, probably.
There hasn’t been a lot of local talk about the changes to America’s legal metabolism and Trump’s attack on the rule of law — even as it expands. The Federation of Law Societies of Canada, the national association of Canadian legal regulators, put out an anodyne statement that “reaffirmed the organization’s unwavering commitment to [the independence of the legal profession and the judiciary],” and so on and so on. Very reasonable; very restrained.
The Canadian Bar Association (CBA) met but did not exceed the same standard and affirmed “its commitment alongside the American Bar Association and our colleagues in the U.S. legal community who are working to uphold these foundational principles in the face of unprecedented challenges.”
Both statements are cottony with consideration, but neither makes me feel like it was about anything more than what grammar should be used.
I’m sure the federation and the CBA believe their anodyne statements adequate given that no steps have been taken against the Canadian rule of law by the Americans yet, and I suspect they’ll even be excited that their entirely butterscotch position is being publicly consumed. But they absolutely need to do more — and at the level of individual members, and now.
Sigh. Tap, tap, tap. Click, whir. Scatter.
Canadian lawyers are fairly conservative. We tend to be unwilling to take a position in the absence of a client. We don’t have a tradition of crusading civil rights lawyers — we just don’t. Swashbuckling self-defence isn’t part our national identity, let alone our legal culture, so we’re patently not good at responding to real and immediate threats that are on our real and actual doorstep until a real and actual client has really and actually retained us to do so on their behalf.
So of course the federation would only feel able to react and not to lead — to catch but not to throw. And I suspect that until Trump’s possible impact on our legal traditions becomes less remote, that’s all we’ll see: a lot of catching and very little throwing.
I imagine that, eventually, provincial law societies will have no choice but to make some sort of public statements as to their positions on the rule of law. Then individual firms, first the large and then the small, until finally individual lawyers. The last to confirm their belief in the rule of law will be those lawyers who don’t feel compelled to out of, effectively, professional shame.
A lot of catching; no throwing.
Any person or party that believes these statements capture and exhaust all that can be done right now should excuse themselves from the leadership conversation.
Here’s what I want to know: what are we actually doing? Our (former!) best friend to our immediate south has just started hacking at their own legal guts with rusty tools and no anaesthesia, and we are content to look on and say nice words about our traditions?
Outside of that anodyne statement, there have been no conversations. There’s been no co-ordinating I’m aware of, no organizing — not even a call to come together to start forming and co-ordinating alliances and partnerships intended to protect and promote our Canadian legal institutions and traditions from how this actual American legal threat will manifest.
Tap, tap, tap. Scatter.
All of this has reminded me of how, in the still openly fascist South Korea of the late ’80s and early ’90s, my wife was an anti-fascist student protester who would bus into Seoul for weekend demonstrations from her university campus, which was a couple hours south. Among her university circle, she was responsible for preparing Molotov cocktails (clear glass Jinro soju bottles filled with a mixture of kerosene and Chilsung Cider, a sticky and colourless Korean soda) and face masks, and she still has useful information for dealing with tear gas and the reluctant conscripts the government would send out to confront students who had been, in many cases, classmates just months earlier.
Today, she runs the local Korean association and manages a board made up of old men and women who supported the fascist regimes she had thrown burning bottles at. She is also one of the thousands of middle-aged anti-fascist women seen protesting in Seoul in support of the slow-rolling impeachment of former president Yoon Suk Yeol, but she does it remotely, from our kitchen table, with our golden retriever, Archie, typically at her feet. Everything feels more urgent to her, for Archie, for us.
We have two adult sons. Our first was born in a suburb of Seoul a week and a half before we watched the two World Trade Center towers crash down in real time on the American Armed Forces Network. Our second was born here, but recently returned from south Florida, of all places, where his biologist girlfriend apparently cuts and grafts in a suburb of Miami I never knew existed until two months ago but now feel strongly invested in. Ah, life.
Both sons were originally binational; both gave up their Korean citizenship to avoid the national military service. That is quite possibly where they would otherwise be now, in their early 20s: in green uniforms with white Korean flags on their shoulders. We never thought that would be a thing we would have a reason to be actively thankful for, but here we are: 2025.
Click, whir. Scatter.
The Trumpist approach to green-card holders like my wife, and international families like ours, has not been good. But where can we go? One day last week, just before that court opened for the day, a prosecutor friend told me her parents felt now as they did shortly before fleeing Czechoslovakia in ’68. She has a young family with specific medical concerns, and her anxieties seemed acute.
I’m a criminal defence lawyer, and I work in the teeth of state power because that’s where our rights and values get chewed apart. I do it because it has to be done, because it’s important to confront state power where others cannot, and I can because our system and everyone who works in it recognizes my value and protects my role.
But Trump deforms, and he is insatiable, and in his mouth the American state’s teeth have become very, very bloody, and much has been chewed apart. Nonetheless, in the face of that red-stained mouth, I very much do feel an obligation, if not a compulsion, to give more than a single sincere concern. The sense of dread that keeps me up is, in fact, directly proportionate to just how much of our soft pink belly our legal community seems content to expose.
Our Canadian Criminal Code is an ordinary federal statute; it could be easily set aside by a simple act of Parliament; no constitutional amendment would be required. Charter litigation before the courts is where Canadian values are truly shaped, so I’d anticipate a direct attack on the authority of our courts. I mean, isn’t that what’s happening in the States?
My family could be broken up, my wife returned to confront whatever historical forces have prepared for the Korean Peninsula, and our sons will continue to confront the reality of being young men in 2025. Isn’t that, too, what’s happening in the States?
Because even 600 kilometres north of Sweet Grass, what’s happening in the States feels very present.
Derek Anderson is a highly experienced trial and appellate lawyer. He is a partner at BARR LLP in Edmonton, where he practises exclusively in the areas of criminal and human rights law. He tweets regularly on criminal law, human rights law and other issues @DerekCrimLaw.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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