Vancouver Courier
for October 11, 1998

Sometimes when you're in the woods not only do you miss the forest for the trees, you forget why the hell you're there in the first place. That's why we've largely overlooked the over-riding issue in the APEC affair - did the government interfere with the police preparations and actions?

That's not to say that the right to protest isn't of critical importance. It is. And the right to protest carries with it, I need hardly say, the right to not be beaten up and pepper sprayed by the police. These are basic civil liberties and if, as seems evident, demonstrators rights were violated, there should be hell to pay.

Overriding that consideration is the truism that police states don't happen by the police taking over the government but by the government taking over the police. And on this point I highly recommend an article by Professor Wesley Pue of the UBC Law School in last Monday's Globe & Mail.

It often appears that the judicial system is indeed under the direction of the government. And in one sense that's true. Policemen and their Chiefs, and judges at all levels, are selected and paid by the government. Often the government pays for legal representation for both or indeed all sides of a dispute. And it would be naive to pretend that politics never creeps into the appointment process.

This doesn't mean that governments can thereafter direct how these people conduct their public business. Indeed it means quite the opposite.

Judges are appointed for life or until mandatory retirement at 75. This immediately, in itself, grants them independence from the politicians. Henceforth they are answerable only to the law, not the lawmakers. Even when judges have had a political life prior to their appointment they're expected to, and in the vast majority of cases do put aside their politics and judge cases on their merits. I've been around the law for nearly 50 years and while I've seen some behaviour which didn't impress me, the bench has been, and has always been seen to be, independent of the government.

Just as important is independence of the judiciary is the independence of the police. Indeed it was the attempted interference of Premier Vander Zalm in an investigative process in June 1988 which caused his Attorney-General to resign. While governments can and do make the laws, it is thereafter to the police to investigate and the courts to judge, utterly free of political interference. Attorneys-General can't interfere with the way the police conduct their investigations or do their work. Nor can the Solicitor-General of Canada. Nor can the Prime Minister. For once that happens, the government has taken over the police function and that's the first step towards a police state.

Did the Solicitor-General or the Prime Minister in fact interfere with police security arrangements for the APEC Conference? That is the key question.

There is a difficulty with the process here. The Commission is set up to examine RCMP conduct and the investigation of government interference, is only tangentially germane to that issue. Much resistance to evidence involving the Prime Minister and the Solicitor-General will come on that ground.

But here's the difficulty everyone tap dances around. Each of the Commissioners has whatever remains of but a five year term. In essence, they're appointed by the Prime Minister and, if deemed to have done a good job by the Prime Minister, reappointed by him in the name of his ever loyal Solicitor-General. All of the Commissioners are, we're told, Liberals or at least with backgrounds not offensive to top Liberal sensitivities. The Counsel to the Commission's law firm donates to the Liberals. The RCMP Commissioner (I don't know his politics) is a deputy minister in the Solicitor-General's office and directly approved by the Prime Minister - a man noted for appointing friendly faces.

To raise eyebrows even further, the supposedly independent Solicitor-General, with the obvious approval of the Prime Minister, granted high price legal talent to each of the RCMP involved but refused even routine legal aid to the protesters. The government has thus already directly influenced the "independent process".

If I'm seen to be impugning the integrity of any of the panel or of their counsel it is not intended. My remarks result from the awkward position in which they find themselves. The fact remains that short term political appointments will judge or advise on a matters where the conduct of those appointing them is the main issue. One cannot, in the name of politeness, overlook this fact because all the people involved are nice, honourable folks..

It's an elementary principle of law, learned on day #1 at Law School that you can't sit in judgment of your own cause. The next lesson is that you can't appear to.

It's trite law that justice must not only be done but manifestly must be seen to be done.

This commission - indeed the entire process - fails that elementary test.