An Open Letter to Dalton McGuinty
and John Tory
Hon. Dalton McGuinty
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:
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:
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.
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, B.Sc.(Hons), M.A., LL.B.
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