Friday, November 13, 2015

Timely scholarship: on using crises to undermine the law

The perk of being a member of the Osgoode Society for Canadian Legal History is you get a handsome book in the mail once in a year.  This year's 'members' book' arrived the other day: Canadian State Trials Volume IV: Security, Dissent, and the Limits of Toleration in War and Peace, 1914-1939, edited by Barry Wright, Eric Tucker and Susan Binnie.

I admit, I was thinking it might be one for the bookshelf more than the night table.  A valuable series, glad it is being done, a bit remote from most of my historical preoccupations, probably.  But I started browsing in it.  For all its scholarly distance, it is remarkably timely reading

Patricia McMahon has a chapter on "Conscription and the Courts: The Case of George Edwin Gray, 1918."  In a nutshell: the government had passed legislation introducing conscription, and the legislation included a detailed appeals process by which conscripts could seek exemption. But there were a lot of appeals and a serious manpower crisis. Instead of amending the legislation, the government simply abolished all appeals by order in council. A court in Alberta found that the order in council was ultra vires; a government cannot simply cancel its own legislation.

Enter George Gray, a conscript,
who had appealed, had been granted exemption, and had his exemption cancelled by the (illegal) order in council. Oddly, he did not seek to go to court. Rather, he federal government picked him, more or less at random, to create its own court case -- instead of, say, appealing the Alberta decision or amending the legislation. The government provided Gray with lawyers, defined the case both for and against him, and ordered the Supreme Court to hear the matter immediately. To its shame, the Supreme Court not only accepted the fraudulent case, but gave the government the win it needed, upholding the order in council -- and sentencing Gray to life imprisonment.

(Bittersweet coda: Gray was soon released in exchange for accepting his semi-legal conscription. But instead of going overseas and being killed in the Hundred Days campaign in the fall of 1918, the pneumonia he picked up while in prison that spring kept him in hospital until the war was over.  He lived to the age of 90.)

It's an important story, well told, but what really stuck me was the timeliness, the powerful Bill C-51 parallel. A soldier is shot dead at the National War Memorial, and a government seizes the opportunity to rush through draconian, probably unconstitutional, legislation, hoping that in a time of fear, the people, parliament, and the courts will put patriotic fervour ahead of the rule of law. It worked remarkable well in 1918 and 1919  (another essay in this volume exposes the remarkable corruption of the law used against the Winnipeg Strikers, also in the name of fear and patriotism.)

We have not yet seen how it will work out this time.

Update, November 16: I posted this hours before the horrific Paris bombings and shootings of Friday evening. And the essays' theme -- that power often exploits tragedy and crisis in the worst possible ways -- seems to be playing out again in the response to Paris's suffering.  The idea is everywhere that the west must bomb the deserts of the Middle East because "they" bomb the cities of the west  -- surely just what ISIS seeks. And somehow it is argued we must take vengeance on the refugees who come to us fleeing the very perpetrators of horrors like Paris.

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