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We’ve lost more than a few pints; we’ve lost rule of law | Murray Fallis

Wednesday, May 19, 2021 @ 8:12 AM | By Murray Fallis

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Murray Fallis %>
Murray Fallis
On the first day of law school, every crop of eager young Canadian law students learns the case of Roncarelli v. Duplessis [1959] S.C.R. 121. The case tells the story of a Quebec Premier (Maurice Duplessis) who unjustifiably revokes a liquor licence. However, the case stands for much more than a few lost pints. The case stands for the rule of law. It stands for the fundamental principle that elected officials are bound by our laws. That parliamentarians are bound by the limits of our Constitution, our legislation and by the decisions of our courts. To disregard these limits is to violate the rule of law.

In February, Drs. Anthony Doob and Jane Sprott, two renowned academics, noted that 10 per cent of prisoners in Canada’s structured intervention units (SIU) experienced such severe, prolonged, solitary confinement, that they were subjected to “torture.” Now Doob, Sprott and Adelina Iftene have demonstrated that Canada’s independent external decision makers are powerless to protect these individuals.

Our courts have determined that prolonged solitary confinement is unconstitutional. Torture also blatantly violates international standards whether under the Convention Against Torture, the International Covenant on Civil and Political Rights or the Mandela Rules.

The case of Roncarelli v. Duplessis immediately comes to mind. What legal authority does Correctional Service Canada (CSC) have to “torture” Canadian citizens? What legal authority does the CSC have to disregard judicial decisions? What legal authority does the CSC have to confine SIU prisoners (who are 40 per cent Indigenous) in a cell without two hours of meaningful human contact each day? Or to disproportionately keep Black prisoners in SIUs for 121 days or more? Is this not a blatant disregard for the limits of an office? A blatant disregard for the rule of law?

As a law professor and later a prime minister, Pierre Trudeau fought vehemently for the principle that citizens have fundamental rights. He sought to enshrine this principle in the Constitution Act, 1982 — crafting the Charter in this image. The Charter protects all Canadians. It allows Canadians to express ourselves, to enjoy due process and yes, to live a life free from torture.

It would surely be disheartening if a department in a Trudeau government violated the Charter with impunity. It is behaviour one might expect in 1946, not in 2021. This behaviour threatens the rights of all Canadians (not just prisoners). It tarnishes the legitimacy of our Charter, while undermining our courts and our character.

Speaking before committee, Minister Bill Blair accepted Doob and Sprott’s findings on torture. Yet he has done nothing to rein in his correctional service. Minister David Lametti, under the Department of Justice Act, is obligated to ensure that the government’s “administration of public affairs is in accordance with the law.” His inaction does nothing of the sort.

On May 12, MP Randall Garrison read a petition in Parliament’s hallowed halls. This petition called on the Trudeau government to appoint a commission of inquiry to examine Canada’s ongoing use of solitary confinement. Such would ensure that Charter-violating behaviour is documented, reported and addressed. If Justin Trudeau has any remaining respect for the rule of law, the Charter or for the belief that Canadians have inherent rights, then I would urge him to heed this call.

Murray Fallis is an articling fellow with John Howard Canada

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