Freedom Party of Ontario


For immediate release


An Open Letter to Dalton McGuinty and John Tory
about Democracy and the Rule of Law in Caledonia

August 10, 2006

Hon. Dalton McGuinty
Main Legislative Building
Room 281, Queen's Park
Toronto, Ontario
M7A 1A1

John Tory
Leader of Her Majesty's Loyal Opposition
Rm 381, Main Legislative Building
Toronto, Ontario
M7A 1A8

Dear Premier McGuinty and Mr. Tory:

Re: Democracy and Restoring the Rule of Law in Caledonia

Having read Mr. Tory's open letter to the Premier of August 10, 2006, I write to you today about my concern that both of you are endangering both the rule of law and democracy by taking the same stand on a single issue: the role of government in the direction of policing operations.

Both the Government and the Opposition have taken the position that the government has no right or duty to instruct the Ontario Provincial Police to take action at Caledonia. This has allowed the Premier's office to do nothing, and to claim that it is right to refrain from involvement at Caledonia. Yet, as the papers presented at the Ipperwash Inquiry's June 29, 2004 Symposium at Osgoode hall pointed out: there is no consensus that the government has, or that it lacks, the power to direct the police to enforce the law in a given situation. And, as Professor Roach pointed out in his paper, section 17(2) of the Police Services Act in Ontario actually weighs-in against the notion that there is a wall between government and the operations of the OPP:

"17(2). Subject to the Solicitor General's direction, the Commissioner has the general control and administration of the Ontario Provincial Police and the employees connected with it" (emphasis added)

In short, the government has both statutory and constitutional authority to direct the police to enforce property rights, the rule of law, and the decision of Justice Marshall, at Caledonia.

The government's legal authority in this matter is, as a practical matter, required by the political demands of a democracy. As was written in the 1981 report of the MacDonald Commission:

"We take it to be axiomatic that in a democratic state the police must never be allowed to become a law unto themselves. Just as our form of Constitution dictates that the armed forces must be subject to civilian control, so too must police forces operate in obedience to governments responsible to legislative bodies composed of elected representatives." (pp. 1105-1006)

I would add that the decision about whether or not to enforce a law is a political decision no matter who makes it. It is a decision about how and when force will be used in society and - no matter whether the Premier or a police Commissioner makes such a decision - the decision is, for that reason, inherently political. If all police deployments are a matter left entirely out of the hands of elected members of the government - if they are all left to the Commissioner of the OPP - then the authority and power of the legislature is wholly undermined: laws passed by the legislature are of no effect if a police Commissioner can, on a whim, simply decide not to enforce them. The notion that removing governmental control over police activities somehow makes the police independent of politics is, accordingly, utter nonsense.

The reality is that such a division makes police independent not of politics, but of accountability. As we have all witnessed, the public - and the Opposition - will hold not the police Commissioner but the Premier's office accountable even when those pointing the fingers at the Premier's office take the position that the Premier has no power to direct the police in any way. That disconnect between who has the power to decide, and who is held accountable, undermines both democracy and the rule of law.

It undermines democracy because the defining characteristic of democracy is the idea that governmental authority has its source not in any allegedly supernatural being or police Commissioner, but in the governed. History has shown that the most effective way to ensure that that view of the source of governmental power prevails over time is periodically to remove the decision-making role from those who have it; to require said decision-makers to seek a restoration of that role by seeking re-election at regular intervals. When the loss of ones decision-making role is not a prospect, democracy is threatened by the emergence of a view that power has its source not in the governed, but in the decision-maker. Accordingly, if an unelected police Commissioner is given an unbridled, uninterrupted, long-term decision-making role, democracy will be threatened by the emergence of autocracy: the belief that governmental power has its source in the Commissioner.

The disconnect between who holds the power to decide and who is held accountable also undermines the rule of law. When a decision-maker's role is not threatened by a decision not to enforce the law, there is less incentive to ensure that the law is enforced. A system of laws that is not enforced cannot be said to rule. Lawlessness on the scale we have witnessed at Caledonia, having resulted from the Commissioner's decision not to enforce the law, is convincing evidence that the only ruler on the disputed lands at Caledonia is the physical coercion wielded, in accordance with whims, by those who currently occupy the land. In short, the disconnect has already undermined the rule of law at Caledonia.

I recognize that there is electoral advantage to be gained, by some, from propagating a myth of governmental impotence as it relates to law enforcement. The propagation of the myth of governmental powerlessness, today, is fueled primarily by the popularity of the allegation that former Premier Harris (a) directed the police to remove occupiers from Ipperwash, and (b) did so contrary to purported constitutional prohibitions. I recognize that, if it comes to be regarded as false that the government has no power to direct police to enforce the law, then:

(1) There will be a reduction in the electoral advantage received from publicly whipping former Premier Harris over the death of Dudley George;

(2) The current Premier's office will lose an excuse for its neglect to direct police to enforce the law at Caledonia; and

(3) Mr. Tory both will lose his ability to establish his identity as being "not like Mike", and will bear some responsibility (especially within his own party) for not defending the idea that former Premier Harris had the power to direct police (leaving aside whether or not Premier Harris actually exercised that power in 1995).

Gentlemen, if either of you actually cares about preserving democracy and the rule of law more than you care about the success of your party's respective electoral fortunes, I would strongly urge you publicly to question - and ultimately to reject - the notion that the Ontario government cannot direct police to enforce the law at Caledonia.

Premier McGuinty: taking a hands-off approach and leaving policing decisions to the Commissioner of the OPP is a failure by the government of Ontario to carry out its responsibilities. Specifically, it is a failure to respect and enforce the rule of law, and to protect democracy. It is a failure to ensure justice and, as such, is a moral failure as well as a political one.

Mr. Tory: recommending that the Premier continue to refrain from requiring the police to act, and that he merely try to negotiate with occupiers at Caledonia a restoration of the rule of law, constitutes neglect of your duties as the leader of Her Majesty's Loyal Opposition. Negotiation with aggressors at Caledonia is not a means to restore the rule of law. It is, rather, a way to render the law irrelevant to the situation at hand. Making the law irrelevant with such a pay-off will further undermine the rule of law in the future. Negotiation, at this point - for example, "land for peace" - is an appeasement with a wrong-doer, plain and simple. It is, as a denial of justice, morally wrong. It is, as a precedent, reckless and dangerously unwise.

In the interest of protecting democracy and the rule of law, I implore you both to reconsider your stance concerning the role of the Ontario government and its powers with respect to requiring the Ontario Provincial Police to enforce the law, when the police Commissioner neglects to do so, in serious situations of lasting importance, such as that which continues at Caledonia today.


Paul McKeever
Leader, Freedom Party of Ontario

Paul McKeever, B.Sc.(Hons), M.A., LL.B.
106 Stevenson Road South
Oshawa, Ontario
L1J 5M1

Telephone: 905-721-9772
Cell: ***-***-****


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and to Ontario's MPPs.

Freedom Party of Ontario

240 Commissioners Road West
London, Ontario

Tel: 1-800-830-3301