Constitutional Democracy and Rule of Law and the American Election

Yesterday, I did two things of note. First, I listened with interest to a webinar sponsored by our Constitutional and Human Rights Law Section of the Canadian Bar Association entitled “Access to Information at a Crossroads: Implications of the Long-gun Registry Case”. Second, I watched the televised returns of the American election.

Notwithstanding its title, the webinar was about rule of law and how access to information is inextricably interwoven with that concept. Its speakers were Suzanne Legault, Information Commissioner of Canada, and Dr. Vincent Kazmierski, Department of Law and Legal Studies of Carleton University. Using the Long-gun Registry case as an example, the speakers illustrated how the rule of law was involved and perhaps even imperilled from various perspectives. Dr. Kazmierski presented a thesis that postulated that the government of the day abused its powers to overwhelm legitimate rights to access to information and that, in so doing, disrespected essential elements of the principle of rule of law. (You can probably still listen to the excellent webinar by contacting the CBA Professional Development at pd@cba.org.)

Following that webinar, like every one else in the world, I observed over the afternoon and evening the evolving outcome of the American presidential election. Like many, I was alarmed by the result (although I had been predicting this result for months). I believe that the “Free World” has now lost its leader – for the last 60 years, the holder of the office of President of the United States of America. The “Free World”, indeed, the world is now weaker because of that.

We now all know that our neighbours to the south have chosen Mr. Donald J. Trump to be their next president. We have all observed his vitriolic campaign that preceded last night, including the call to build the wall to exclude Mexican “rapists and murderers”, the pledge to expel millions of foreign “criminals”, the promise to bring in extreme vetting to weed out Islamic terrorists, the vulgar comments about women and even a disabled person. We have all heard scores (hundreds?) of references to his opponent, Secretary Hillary Clinton, being a criminal, a crook and a liar and his assertion that he will put her in jail after his election as president. We have all been witness to his statement that the Washington cesspool needs to be drained.

In her concession speech made today, Secretary Clinton was magnanimous. She asked that all Americans join together in keeping an open mind and in giving Mr. Trump a chance to lead as their next president. She made frequent references to the special “constitutional democracy” that the United States enjoys and how important it was to respect and protect it. She stated at one point:

Our constitutional democracy enshrines the peaceful transfer of power, and we don’t just respect that, we cherish it. It also enshrines other things: the rule of law, the principle that we are all equal in rights and dignity, freedom of worship and expression. We respect and cherish these values, too, and we must defend them.

And let me add, our constitutional democracy demands our participation. Not just every four years, but all the time. So let’s do all we can to keep advancing the causes and values we all hold dear.

I agree. This applies with equal vigour to our Canadian constitutional democracy.

I believe that yesterday was a sad day for democracy in the world.  Donald Trump appealed to the basest of emotions, the lowest aspects of human relations to fuel a path to the White House. His campaign focussed on exclusionism, tribalism and “fear-of-others” with great effect. While not all of those who voted for Mr. Trump were motivated by these low level sentiments (many voted to throw out the “elites”), many were.

In my view, this is the antithesis of what a liberal western democracy is about. It should be about openness, inclusiveness, and equality. These principles, coupled with a healthy respect for rule of law and respect for freedom of thought, religion, association and expression, give real life to any liberal democracy. And yet, as the webinar I listened to yesterday morning so aptly illustrated, even here in Canada, we can so easily step over that line and,  in the process, lose the essence of the society that we so love and cherish.

Thus, today, I have become wary because of what has happened to our cousins south of our border. I know that, as with all societies, Canadians are not perfect and that there are dark sides to our communities, and that the right political actor could take advantage of those baser elements of our collective personality. So it behooves all of us to take up Secretary Clinton’s advice and realize that we must participate in our constitutional democracy “all the time”, not just on voting day. We must advance the interests of inclusiveness, of fairness and equity, of acceptance – not just on quadrennial cycles – but every day. We, and most importantly we lawyers, must be vigilant in our defence of rule of law and the promotion of constitutional principles.

This pluralistic and “free and democractic” society that we live in that is our Canada has been so hard to achieve and can be so easily lost. We must “stand on guard” and live our constitutional values on a daily basis. Two days before Remembrance Day, I am drawn to repeat that phrase: “lest we forget”.

I remain, ever so

Constitutionally yours,

Arthur Grant

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