BOOKSHELF

• W. Wesley Pue, ed., Pepper in Our Eyes: The APEC Affair (University of British Columbia Press, 2000; cloth; 276pp.; ISBN 0-7748-0779-2; $39.95)

Chapter 1

Policing, the Rule of Law, and Accountability in Canada:
Lessons from the APEC Summit

W. Wesley Pue

© University of British Columbia Press, 2000. Reproduction or resale of this material is prohibited by law without the consent of the publisher.
—————————————————————————————
This is a book about "civics." It addresses basic questions about what it means to live in a fundamentally decent, humane country of the sort that Canada aspires to be. It is a book about government, human rights, economic power, free speech, police, constitutions, democracy, the accountability of government officials, and state power.

A useful starting point for considering such issues is provided by Lord Acton's well-known adage: "Power tends to corrupt and absolute power corrupts absolutely." Power corrupts good people as well as evil, brilliant intellectuals as well as ordinary mortals. In recognition of this we have created constitutions, parliaments, courts, and the like. All of these exist in the knowledge that it is only by providing explicit limits backed by a series of checks and balances that power's natural tendencies can be constrained.

Ultimately, however, institutional structures alone cannot resist power's corrosive effects. Our main protection lies in our own vigilance. No single institution, person, association, or idea can long defend any democracy, however stable it seems, from power's corrupting effects. A watchful citizenry, well informed about the basic principles of democratic government, is indispensable to liberal democracy. The hallmarks of freedom and constitutional liberty need to be understood, absorbed, internalized, and discussed by all of us.

Because of this, fundamental principles of democratic governance are too important to be entrusted exclusively to members of Parliament, ministers of the Crown, police officers, soldiers, courts, broadcasters, and newspapers. Knowledge and discussion of the foundations of constitutional liberty must not be restricted to the traditional "chattering classes," and should not be the exclusive preserve of lawyers, human rights advocates, philosophers, university professors, and journalists.

In the hurly-burly of daily life, however, they too need to pause occasionally to reflect quietly on such matters.

Mr. Chrétien's APEC Summit

This book arises from reflections on a bizarre series of incidents that took place on a university campus and their even stranger aftermath. On 25 November 1997 Canadian Prime Minister Jean Chrétien hosted a summit of nearly twenty political leaders representing the Asia-Pacific Economic Cooperation (APEC) economies (APEC never refers to its members as "states" or "countries"). The Museum of Anthropology at the University of British Columbia was the chosen site.

There were obvious reasons for its selection. Canada's top-ranked university in 1997, UBC provided a prestigious setting for the summit. The museum is a very special place, sitting on a point of land that juts into the Pacific Ocean, with Burrard Inlet and the city of Vancouver sparkling to the east and the picture-perfect scenery of an ocean fjord enveloped by mountain peaks to the north. The magnificent "gulf islands" dot the waters of the Strait of Georgia to the west. Temperate rain forests, beaches, and cliffs surround the museum. Spectacular views of ocean and snow-capped peaks lie in all directions. One of the most beautiful spots on the planet, the museum was a perfect setting for the "photo-ops" beloved by democrats and dictators alike.

The people who attended the APEC summit were no random collection of democrats and dictators, however, just as APEC is no ordinary international organization. Unlike most international bodies, APEC is entirely unidimensional. It focuses exclusively on the promotion of trade, maintaining a studied disregard for "ancillary" matters such as human rights, world peace, labour or environmental standards, the promotion of democratic values, and so on.

In the real world, unlike in the rarefied atmosphere of summitry, it is of course impossible to separate economics from politics quite so neatly. In fact, most long-standing international organizations acknowledge the inseparability of the two spheres. The United Nations, the North Atlantic Treaty Organization, the European Community, the Commonwealth of Nations, the North American Free Trade Agreement, and other organizations concern themselves, to greater or lesser degrees, with matters relating to political values as well as defence, trade, or whatever their principal purpose may be. The APEC club of "economies" was, however, deliberately created without moral, political, or ethical standards. As a result, the government leaders who met in Vancouver in 1997 included some rather nasty individuals. Strong-arm dictators, blatantly corrupt politicians, and an individual whose curriculum vitae included well-documented genocide joined more respectable politicians at the conference table.

Not surprisingly, some people consider the very existence of this odd organization to be something of an affront. Viewing APEC as contemptuous of human rights, damaging to social and political progress, and even detrimental to the long-term economic well-being of the people who live in its member states, critics are often highly suspicious of government policies supportive of APEC and the ideology it represents. The November 1997 summit provided an ideal opportunity for people holding such views to protest both APEC itself and new Canadian policies that they believed ran counter to traditional Canadian values.

The 1997 APEC leaders' summit was greeted by one of the largest campus demonstrations in recent Canadian history. Small, isolated expressions of protest during the lead-up to the leaders' meeting culminated in mass demonstrations on 25 November 1997. Thousands poured onto the UBC campus in protest. The crowds of committed anti-APEC demonstrators were swelled considerably by many who, with little previous knowledge of APEC, showed up to register other concerns. Thousands had heard stories about alleged excesses of the Royal Canadian Mounted Police on the campus in the lead-up to the summit, and many probably showed up on the day primarily to show their disapproval of the RCMP's actions. For such individuals APEC itself began to look bad because of its association with "un-Canadian" police activities in Vancouver.

Policing APEC 1997

What did police do in the autumn of 1997 to so stir the University of British Columbia's notoriously docile students?

Separating rumour and ill-founded allegation from fact can be difficult, even with the benefit of hindsight. This book was written during the course of 1999, at some distance from the events of 1997 but well in advance of the findings of any official inquiry. As the book was being written, the events surrounding Vancouver's APEC summit were under inquiry by the RCMP Public Complaints Commission (PCC) and several lawsuits had been filed against the RCMP, the Prime Minister, and the government of Canada. No final conclusions had been reached in any of these forums.

Whatever may ultimately be found proved by the evidence, a number of reasonably well substantiated allegations are deeply disturbing. The restrictions necessarily imposed by the law of evidence means that legally proved "facts" are often considerably more or less than what actually happened (the divergent outcomes of the two O.J. Simpson trials in the United States illustrates this). For this reason, among others, it is hard to predict what the ultimate outcome of legal processes will be. The task is all the more difficult because legal standards of proof operate at a higher threshold than those applied by historians, political scientists, or ordinary Canadians.

The current investigations focus on a wide range of alleged unlawful police conduct, including a bit of "roughing-up," excessive use of pepper spray, arrest on flimsy grounds, and the imposition of unlawful release conditions. There have been allegations that police officers assaulted and detained peaceful individuals for displaying signs, or for using cell phones, or for possessing megaphones or other amplifying equipment – none of which is even remotely unlawful. There have also been complaints that individual police officers used pepper spray to punish (if proved, they would be guilty of criminal assault) rather than to subdue lawbreakers or to effect lawful arrests (which, in proper circumstances, is permissible). Other police officers are said to have told Canadians that UBC, in effect, was a "Charter-free zone" (there is no such thing in Canadian law), while still others are alleged to have engaged in sex-discriminatory strip searches and prophylactic arrest. There have been allegations that law-abiding individuals who wished to display signs, flags, or other symbols of their beliefs were harassed or even arrested. A good deal of evidence has come out suggesting that the RCMP imposed unreasonable restrictions on the freedom of movement, association, and expression of law-abiding Canadian citizens. Complainants have alleged that they did so under instructions from the Prime Minister's staff, an allegation supported by documents released by the UBC administration and by evidence from other sources.

Of course, many people have a good deal of sympathy for police officers, most of whom view their job as an important public service. Many Canadians also have little patience for "student radicals," "professional activists," and their ilk. It is natural to fall back on well-rehearsed scripts in interpreting events such as the APEC summit. For most Canadians, these scripts suggest a rather easy dismissal of concern about the matter: "predictable student protests are predictably contained by police, followed, predictably, by whining about police conduct the protesters themselves had provoked."

Such scripts do not fit this particular event, however. Not everyone pepper-sprayed, handcuffed, roughed-up, or arrested during the APEC summit even remotely fit the mould of "student radical" (not that student radicals should be abused by police either, of course). Consider the following account, written by Roger and Paula Barnsley in an open letter to friends and colleagues shortly after the events it describes:

The night before the APEC meeting at UBC, a Green College resident (she is about thirty, completing her PhD in Pharmacology and a Swedish-trained physician) reported the following events at dinner (we eat all of our meals as a community). During the day (Monday) she had stopped, with several other Green College residents, to listen to a person telling a group of students about alleged RCMP misconduct earlier in the day. This event did not take place in any secure zone. During the talk another student climbed a nearby flagpole which prompted about five RCMP officers to move through the group of students who were listening to the speaker. Then, without any warning, the RCMP officers assaulted the speaker (his head hit the flagpole twice) and then they "pepper-sprayed" him in the face three times. Immediately after this event they directly and intentionally "pepper-sprayed" about six persons who were listening to the talk. Four of these people were Green College members, including the physician who told the story. The speaker and a number of other students who verbally expressed their dismay with this act were handcuffed and detained.

Although secondhand, this account nonetheless originated with a source close to the authors, who were visitors to UBC residing temporarily in Green College. Paula Barnsley was a senior lawyer from Fredericton, New Brunswick, and Roger was academic vice president of St. Thomas University. Both were pursuing advanced research at the college in the autumn of 1997. The proper interpretation to be put upon the events described by the Barnsleys is, of course, a matter of dispute before the RCMP PCC. At minimum however, their report shows that concern about policing at APEC rapidly expanded well beyond the predictable circle of student protesters.

Consider also the better-known case of Craig Jones, who was arrested the day of the meeting on the lawn of his university residence. His arrest has become an important focus of media coverage. Like the physician in the Barnsleys' account, Jones's background and interests made him an unlikely candidate for trouble with the police. A thirty-something law student intent on a career in corporate law, Jones is a former Canadian soldier, intensely proud of his service in the Seaforth Highlanders. He was a lifelong supporter of the Liberal Party of Canada (at least until the time of his arrest). On 25 November 1997, Jones stood behind police barricades – just where he was supposed to be – displaying signs saying "Human Rights," "Free Speech," and "Democracy." Ironically, these words reflect the official policies of the Liberal Party and form the foundation of the law that Canadian police officers are duty-bound to uphold. Despite this, Jones alleged that he was arrested simply for displaying these signs on the lawn of his residence: they could have been construed as being critical of one or more of the visiting dictators.

These are strange tales and there are many others like them. This book can neither report on all such stories nor probe the particular allegations in any depth. To do so would be inappropriate at a time when legal proceedings are under way. In all likelihood, the final outcome of the various hearings will be mixed. Some of the many, many allegations of police or political wrongdoing will probably be proved to the satisfaction of the PCC and/or the courts, some will likely be found "unproven," and some may be conclusively found to be unsubstantiated.

The most disturbing allegations currently under investigation, however, relate not to what the police did in November 1997 but rather to what motivated their actions. Evidence has been introduced both to the PCC and in the House of Commons suggesting that the police not only acted unlawfully but did so with unlawful purpose. Furthermore, it has been suggested that they did so not of their own doing but in order to further the wishes of the Prime Minister of Canada or his senior staff. If this interpretation of events is correct, it is possible that other members of the federal cabinet may have been involved.

It is allegations of this sort that raise the APEC affair from the mundane to the level of principle.

Men and Women with Guns

Even law-abiding citizens of democratic states need to always be wary of police power.

This is because police officers have unusual jobs. They are required to work in a highly organized paramilitary fashion, to carry guns, to arrest and detain fellow citizens, and sometimes to use lethal force. The organizations they work for have no close equivalent in democratic societies (apart from the military), and their unique characteristics make them potentially and uniquely dangerous. Combining Lord Acton's adage about the corrupting influence of power with Chairman Mao's thought that "political power grows out of the barrel of a gun," we can immediately appreciate that there is cause for concern whenever the police and politics mix.

"Bad" cops are among the worst enemies of law. Our legal system, policing bureaucracies, and constitution are carefully designed to protect all of us from corrupt, overzealous, or incompetent cops. Good officers know this and are well aware of the importance of acting with the highest integrity. They strive always to work within the law, not against it. When police go wrong, human error or "bad" individuals are often to blame. Corrupt, poorly trained, emotionally strung-out, overtired, or merely stupid police officers are dangerous. The core allegations of the APEC affair suggest, however, that forces may have been at work that were much more serious – and far more frightening – than simple excess by "dumb cops."

The possibility that Canada's most senior political figures deliberately set in motion a chain of events that ended in the violation of the fundamental rights of large numbers of Canadians is disturbing. These are the very individuals to whom, first and foremost, we entrust our constitutional rights and liberties. Less savoury still, the complainants have alleged that Canadian police and politicians alike did improper things in order to appease the sensibilities of one or more of the dictators whom the Prime Minister wished to entertain at his showcase summit.

If such allegations are borne out by the slow grind of evidentiary processes, we will be forced to conclude that the RCMP were deployed by the government of the day for political, not law enforcement, purposes. This is a line that ought never to be approached. No functioning democracy – in fact, no reasonably humane autocratic state – tolerates a direct connection between the whims of the executive branch and the strong arm of law enforcement.

More is at stake, however, than the character, lawfulness, or good behaviour of key government and police officials. The APEC affair points to possible deficiencies in the mechanisms and structures that govern the relationship between politicians and police in Canada. Buffering police and military forces (the two are interchangeable when wrongly employed) from political control is the first and primary objective of the rule of law, the crowning achievement of centuries of Canadian-Anglo constitutional development. Despite past failings, the importance of the principle itself has never been lost sight of. Paradoxically, our long history of relatively humane and liberal democratic government makes the profound importance of this key principle easy to overlook. Canadians have been blessed with both long-standing political stability and tolerable government fidelity to the principles of the rule of law. As a result, most of us have never focused our minds on a layer of constitutional principle so fundamental that it is the bedrock on which everything else rests.

Taking the foundations for granted, generations of politicians, lawyers, philosophers, historians, and journalists have turned their attentions elsewhere. Colleges and universities – even faculties of law – no longer teach much about the constitutional fundamentals. We have become preoccupied with other things: arguments about the division of powers between the federal government and the provinces; endless wrangling between Ottawa and the Quebec sovereignists; the creation of the Canadian Charter of Rights and Freedoms; and controversial court rulings on gender discrimination, Aboriginal rights, union picketing, gay and lesbian relationships, the rights of criminals or victims, and so on. Each of these is a weighty matter. They come into play, however, only at the second tier of importance and preoccupy us only because we have long had the luxury of taking the first tier – the principle that police and other armed forces are to be used only to enforce the law, not to do the political bidding of government officials – for granted.

It is easier to understand what is ultimately at stake by casting an eye abroad. The experience of countries less fortunate than Canada underlines the importance of keeping politicians and police apart. Indeed, Canada recently went to war with Yugoslavia in large part to protect people who were being subjected to terrible suffering because this boundary was routinely violated. It is clear that the problems of Kosovo and the rest of the former Yugoslavia did not originate primarily in the formal structures of the Yugoslav state. That country has a reasonably decent-looking constitution, with many of the trappings of constitutional rights and accountable government structures. Some institutional structures may be missing, but more important than these structures is the fact that the psychological and political preconditions of freedom have not been internalized by key officials at all levels: the human connection between paper rights and lives lived is not strong. Laws on paper amount to little when politicians, police, and military officers conspire to subvert them. Kosovo's misery provides an extreme example of the consequences when government officials, soldiers, and police have no desire to submit willingly to the constraint of lawful principle. In the 1990s their sense of self-limitation and of restraint under the law gave way to other, baser instincts. Power corrupted.

Similar points can be made regarding Indonesian conduct in East Timor, political repression in Malaysia, and, indeed, the daily conduct of government in most of the world's nastier places.

What Is a Police State?

Now, Canada is not Kosovo, East Timor, or Malaysia, and no one seriously suggests that we have become a "police state." Nonetheless, such comparisons serve to sharpen our focus on some very important principles.

Vancouver talk show host and retired Social Credit cabinet minister Rafe Mair has aptly observed that "a police state is not where the police take over the government but where the government takes over the police."

In fact, however, it can work either way. Consider the victims of official violence in Kosovo or East Timor: it doesn't much matter to them whether the police and soldiers who engaged in atrocities hatched their plans all on their own or did such things in response to orders from government officials. The results are the same either way. In either situation the proper buffer between political will and the application of force by police breaks down. Repressive regimes of all stripes in all corners of the earth share this common feature: law gives way to will with disastrous effect. The outcome is equally "lawless" regardless of the direction in which power flows.

Canadians expect their police to act within the constraints of law and to be above political interference. In Canada the most important buffers to secure this end originate in human conscience, in constitutional history, in convention, in public morality, and in the moral culture of government and policing. Because an increasing concentration of power is transforming all "Westminster-style democracies" into one-person prime-ministerial shows, it is cause for concern that these fundamental principles of constitutional propriety exist mostly as matters of convention. They are part of a deeply rooted constitutional order whose paramount principles find only partial expression in statutes or constitutional documents. Such principles are very real and are supremely important, but there is and can be no complete code of Canadian constitutionalism. They need to be learned, thought about, and understood by each succeeding generation of politicians, police, and citizens.

Shielding police from politicians is the foundation of the rule of law, the most important of our constitutional principles. In 1985 the Commissioner of the RCMP told the Solicitor General (the federal cabinet minister responsible for the RCMP) that "a police state emerges when a Government uses its police agencies as instruments of repression against the citizens of the state. It is against that very concern that the police are given a high degree of independence." Dictionary definitions differ little. Merriam-Webster's Collegiate Dictionary (10th edition), for example, defines "police state" as "a political unit characterized by repressive governmental control of political, economic, and social life usually by an arbitrary exercise of power by police and especially secret police in place of regular operation of administrative and judicial organs of the government according to publicly known legal procedures."

Canadian cops are human, like the rest of us. This being the case, individual police officers do from time to time transgress their proper role. It is entirely predictable – though not acceptable – that this will happen even in the best-run police agencies staffed by the very best officers. When police misbehave, it is essential that their wrongdoing be remedied, not just as a matter of fairness to aggrieved individuals but also as a matter of public policy.

Police officers are carefully instructed in this fundamental principle of Canadian civics before they are ever allowed in a squad car. According to author John Sawatsky, traditional RCMP training "pounds into them the concept that they are the servants of the law and not the government and that the role of the police in a democratic society is to uphold the law and nobody, regardless who the transgressor is, can interfere. If the Prime Minister makes an illegal U-turn, he must receive a ticket." Every decent police training program in the country drums this into the heads of all would-be police officers.

The commonplace principle is strikingly at variance with what is alleged to have happened at the University of British Columbia in November 1997. Those events are important not so much for what happened – a minor tremor on the Richter scale of world evil – but for the principles at stake.

The Unsavoury Politics of Scandal

The importance of the principles involved was recognized by all political parties in the House of Commons. Even a few members of Parliament on the government benches recognized the importance of the allegations against the Prime Minister and his office. (Admittedly, you had to be watching closely to notice this, as these MPs were muted by party discipline with lightning speed.)

Canada's APEC summit dominated Question Period in the House of Commons during the entire autumn sitting in 1998, ministerial careers were threatened, one cabinet minister was forced to resign on an ancillary matter, and the public image of the Mounties suffered a serious blow. Prime Minister Chrétien's reputation was tarnished as never before. Nonetheless, the noise and fury of political battle did little to illuminate the key public issues that the APEC crisis pointed to. The event seemed to carry the scent of a routine, run-of-the-mill, media-and-opposition-manufactured scandal of little consequence. (In fact, acting on a strong instinct to shoot the messenger, the Prime Minister's first line of defence was to blame the media: award-winning Canadian Broadcasting Corpora-tion journalist Terry Milewski was pulled from the story when the Prime Minister's director of communications complained about him to CBC management. The attack was effective and Milewski permanently sidelined even though the Prime Minister's Office [PMO] was entirely unable to point to either error of fact or failure of journalistic ethics in Milewski's coverage.)

Superficial similarities do make the APEC affair resemble other, lesser scandals. Too often played out for crass political effect, the pattern of manufactured scandal is well known: allegation, leaked evidence, denial, evasion, "technically, legally correct" statements, further leaks, and so on. That script is recurrent and tedious, often generating sound and fury out of all proportion to whatever matters of substance lie behind the fuss.

This resemblance was reinforced too by an odd coincidence of timing. News stories about political interference with policing at APEC 1997 peaked during the autumn of 1998, just as the United States was experiencing considerable turmoil about less constitutionally weighty matters. During this period a highly partisan political feeding frenzy was under way, focusing largely on President Bill Clinton's sexual behaviour in general and his relationship with Monica Lewinsky in particular. Bad behaviour perhaps, but hardly high constitutional crime. The Clinton impeachment process was simultaneously better TV, easier to understand, and less consequential than Canada's unfolding political crisis. APEC-related stories were frequently carried in the same newscasts that revealed salacious details about the sexual preferences of the US president. The juxtaposition of these two quite different events made it easy to underestimate the importance of the allegations against our own government.

Canadians, in fact, had little taste for scandal-driven politics even before the nonsense around "Monicagate" exhausted their patience entirely. Knowing this and finding himself in trouble, Mr. Chrétien hid behind Mr. Clinton's problems. The Canadian government played up superficial similarities between the two political crises as much as possible, knowing full well that the suggestion that we shouldn't be as silly as the Americans would have intrinsic appeal north of the 49th parallel. It was a good political strategy, effectively obscuring the gravity of allegations against the Prime Minister. Even opposition politicians who raised the issue repeatedly in the House of Commons often seemed to be acting out a script they had not properly studied, playing roles they did not fully understand. As a result they sometimes actually looked like politicians in search of scandal, unaware even as they spoke that proof of the central allegations in the APEC affair – if it comes to light – would be the substance of a first-order constitutional crisis.

An abundance of confusing detail and constitutional subtlety made the events surrounding Vancouver's APEC summit both harder to understand and harder to focus on than the salacious revelations about the sexual trysts that the most powerful man in the world had with a woman half his age in the Oval Office. Other circumstances also helped obscure the central issues. Everyone understands that visiting heads of state need to be protected from foreseeable threats and that this might sometimes quite properly require the deployment of large numbers of police. Common sense suggests that security was important at the APEC meetings, that the Prime Minister would be concerned, and that the mix of crowds of demonstrators and large numbers of police was likely to produce problems. Many parents tell their children to keep away from large demonstrations precisely because they know that in such circumstances a certain amount of jostling, shoving, arrests, even dousing with pepper spray and a bit of roughing-up is predictable, unremarkable. In heated circumstances the occasional excesses of "bad" or merely stressed-out cops also seems mundane. Such abuses of police power need to be remedied, perhaps, but in themselves hardly rise to the stature of a "national scandal."

Moreover, "radicals," students, and demonstrators are, almost by definition, never particularly popular. Some of the complainants in the APEC affair struck many ordinary Canadians as distinctly lacking in "respectability" and hence little deserving of sympathy. Some could be relatively easily dismissed as lawbreakers, others as overexuberant student demonstrators, still others as "professional activists," political extremists, troublemakers, and so on. It served the interests of powerful bureaucracies – in the police and in politics – to play as much as possible to interpretations of events coloured by these lenses. Sometimes the complainants or other demonstrators themselves gave plausibility to such characterizations. Video footage of some individuals pulling down a security fence, apparently deliberately, cast all demonstrators in a bad light. No doubt a thousand Canadians switched off their televisions every time a demonstrator appeared claiming a right to disrupt the meetings or to "arrest" a visiting head of state (an idea that was a lot less plausible before the arrest of former Chilean president Augusto Pinochet in England). It is the nature of protest that such claims are made, and the nature of television news that they are broadcast repeatedly without adequate context and without any serious assessment. Part of the "street theatre" of protest, overreaching claims are by and large unwelcome in middle Canada. Neither did the habits of speech, the dress, and the political views of many demonstrators resonate well with mainstream Canadians.

The Politicians' Indigestion Protection Bill

In order to understand the civics issues behind the APEC affair, it is helpful to step back a bit from the details, to see past the youthful demonstrators of whom we may disapprove, and to look beyond a cause with which we may disagree. It is important not to miss the forest for the trees.

To reach a dispassionate understanding of key issues, we need to focus resolutely on matters of constitutional principle. The most serious allegations run something like this:

1. For political reasons, the Prime Minister wished to ensure the attendance of former Indonesian president Suharto at the 1997 Vancouver APEC summit. (It has been suggested that the participation of other dictators may also have been at issue. The Indonesian connection, however, is by far the best documented.)
2. Suharto indicated that he would not attend unless he was protected from being "embarrassed" by protests, demonstrations, banners, placards, signs, and so on.
3. The Prime Minister ordered his aides either:
   (a) to ensure that Suharto would be spared embarrassment (not just protected from assassination, injury, or assault) or
   (b) to instruct the RCMP to ensure that Suharto would be spared embarrassment. In either event,
4. The Prime Minister's senior staff gave orders to the RCMP. These orders resulted in the violation of constitutionally protected freedoms (free assembly, free speech, freedom from arbitrary arrest, among others) for reasons that had nothing to do with security needs. As a result dozens were arrested and hundreds of law-abiding individuals were interfered with or assaulted by police as they exercised their constitutionally protected rights as citizens of a democratic country.

A fairly complete paper trail supports some such interpretation of events, and the Prime Minister's complete refusal during months of controversy to offer a candid, unambiguous, and comprehensive account of his conduct is certainly troubling. Nonetheless, it must be emphasized that at the time of writing, none of these allegations have been accepted as proved by any competent forum.

Even assuming some such interpretation of events to be entirely accurate, however, many wonder what the fuss is about. It may help to imagine an only slightly modified set of facts. What would happen if a bill were introduced to prohibit the display of posters displeasing to the Prime Minister or, perhaps, to mandate that no one within 100 metres of a Canadian politician should utter words displeasing to him or her – a proposal for a "Politicians' Indigestion Protection Act," if you will.

This of course is absurd because no constitutionally minded Commons, Senate, or Governor General would even contemplate the passage of such legislation. If they did, the resulting statute would be struck down by any court without a second thought. Such legislation would violate every principle of free speech and democracy on which the constitution rests.

Nor could such draconian measures be justified on the grounds that certain words might cause offence to foreign despots or trading partners. No such rationale could provide legal justification under the terms of the Canadian Charter of Rights and Freedoms, within the spirit of a free and democratic society (Constitution Act, 1982), or under a constitution similar in principle to that of the United Kingdom (Constitution Act, 1867). Freedom is not made of such material.

Now if the government can't do these things up front (by introducing legislation, debating it, obtaining passage through the Houses of Parliament, and securing royal assent), it clearly shouldn't be able to do so through the back door. If Parliament is prohibited from doing something, so too are prime ministers, their aides, and police. "Reason of state" cannot be casually invoked by democratic leaders, even if the "reason" is that we don't want to offend one of the Prime Minister's dinner guests. The despot's mantra, "reason of state" is the conceptual opposite of Canada's most important single constitutional principle, the rule of law.

The Rule of Law

This principle comes in two parts. First, no one can be interfered with, harassed, or made to suffer except for a distinct breach of law established in the ordinary legal manner before the ordinary courts. Second, everyone is bound by the law: police, PMO staff, MPs, the Prime Minister, even the Governor General in Council.

In common with all decent countries, Canada has well-developed mechanisms that are supposed to protect the police from political interference and to protect citizens from political policing. The reason is simple: blurring this boundary renders the rest of the constitution irrelevant.

The rule of law can be represented graphically by reference to two possible lines of authority, portraying quite different ways in which the state's power might come to be exercised against its citizens:

Line A: Rule of Law
Constitution ––> Queen in Parliament ––> police ––> courts ––> citizen

Line B: Despotism
Prime Minister ––> flunky's decree ––> police ––> truncheon ––> citizen

Line A is a short-form expression of the rule of law. It presumes that before citizens' liberties and freedoms are restricted, the full protection of constitutional rights and the political protections provided by our parliamentary system of government will be brought into play. In this model the legislature determines what should be lawful and what should not, the police enforce the law and only the law, the courts adjudicate, and citizens are punished only for violation of law, established in the proper ways. At every point along this chain, power is confined within the channels of lawful authority and constitutional propriety. Law constrains will.

Line B is dictatorship. In it the will of politicians subverts law. This is so even if assault by pepper spray and plastic handcuff is substituted for the truncheon of old. In this model, the police do the bidding of politicians or bureaucrats unmediated by court, Parliament, or constitutional propriety. If the principles of lawful governance (summarized in Line A) can be freely violated, the political use of police forces to harass journalists, political opponents, and other inconvenient individuals is no longer unthinkable. This happens routinely in many countries, and the possibility that something similar occurred in Vancouver in 1997 is the core concern raised by the APEC affair.

Whatever is eventually proved about the particular incidents of alleged police wrongdoing, a mountain of evidence points to an unusually close relationship between the Prime Minister and the RCMP. This alone suggests that all may not be well with Canada's federal police force, an impression confirmed, disturbingly, by eminent Canadian political scientist Donald Savoie's 1999 observation that "the relationship between the commissioner of the RCMP ... and the prime minister ... has become so close over the past twenty years or so that the minister responsible – the Solicitor General – ... is now effectively cut out of some of the most important discussions and decisions."

This is a significant distortion of established constitutional channels in that one of the Solicitor General's most important duties as a "law officer of the Crown" is to serve the law, to protect police from improper political pressures even if they come from the head of the cabinet in which the Solicitor General serves. The Solicitor General, like the Attorney General, is much more than just another political minister.

Of course if the Prime Minister's staff gave unlawful orders – for example, that individuals displaying signs displeasing to President Suharto should be stopped or arrested – any professional police force should have refused to act on those orders. They were legally as well as morally bound to do so. And they should have been supported in doing so by both the RCMP Commissioner and the Solicitor General. In a democracy the police are there to enforce the law, a task that should never be confused with simply doing the bidding of politicians. A very slippery slope lies between student protesters and the rest of us. Central principles of public life, once compromised, lose their force.

Prime Ministers, Police, and the Unwritten Constitution

If confirmed, the emerging story line about Canada's APEC summit would be deeply troubling. It would reveal a shocking disrespect for the principle of the political independence of the police on the part of senior police officers, members of cabinet, the Prime Minister, and the Prime Minister's staff. It would represent a fundamental violation of the principle of the rule of law, striking at the very heart of our constitution.

To recap partially, this is because a direct connection of the executive branch to police short-circuits the entire constitutional apparatus: the House of Commons (and the rest of the "Queen in Parliament"), the courts, the juries, the independent bar, and the rest. Other mechanisms that civil societies use to ensure a proper buffer between the police and the politicians include police commissions (or commissioners), the very special cabinet offices of Solicitor General and Attorney General (the senior "law officer of the Crown"), and a variety of understandings, constitutional conventions, or usages limiting the means and types of legitimate communication between government officials and police officers. Such understandings, conventions, and usages constitute an important part of the "unwritten constitution."

Contrary to what most people think, the larger part of the Canadian constitution is not neatly summarized in statute or Charter but is found precisely in this nebulous constitutional realm. Nebulous though they may be, if the mechanisms shielding armed force from political deployment or improper ministerial control fail, the rest – constitutional documents, the Charter of Rights and Freedoms, human rights commissions, and Parliament itself – become a mere chimera that can be ignored.

It is of course important that police be accountable to the public. There is a world of difference, however, between public accountability and political control. We are accustomed to thinking of the Prime Minister as the "chief executive officer" of government, of cabinet as a "board of directors," and of the rest of the state apparatus as being ultimately answerable to them just as the employees of a small business are ultimately answerable to the boss. Government is not a business, however. Executive command is the opposite of democratic accountability through proper channels. As one royal commission of inquiry pointed out, "The notion of civil control ... should not be confused with control exercised by public servants. Indeed, this latter state of affairs undermines the traditional and necessary responsibilities of Parliament." These words, penned by the Somalia Inquiry that investigated the Canadian military, apply with equal or greater force to civil control of the police.

The Public Morality of Government Personnel

In our system of government, then, a good deal turns on the collective conscience of individuals holding public office. Wherever constitutional democracy thrives, its essence is found in the hearts and minds of those who work in government, in public institutions, and in the police forces. At the end of the day, it is their internal – moral – sense of constitutionalism upon which our freedoms rest. Decent government requires that individuals in power daily decline certain possible courses of action because they are improper, immoral, or illegal. The rule of law rests ultimately on the commitment and integrity of politicians, bureaucrats, and police at all levels. Its only foundation is their sense of constraint and public morality, and their willing adherence to its principles.

There are probably many strong temptations to short-circuit democratic practice, however. Inevitably things will go wrong. Like police officers, bureaucrats and politicians will fail to meet the highest standards of constitutional and legal propriety. In fact, our legal and constitutional systems assume that things will go wrong from time to time. Any other assumption could be based only on the existence of a class of politicians, police, and bureaucrats who are superhuman in their understanding, foresight, discipline, and propriety. Because no such class of saints exists, our legal and political systems seek out failure to investigate wrongdoing, to find ways of exposing wrongdoing to public scrutiny, and to remedy wrongs when they occur. The ultimate objective of all this, of course, is to prevent future wrongdoing.

Where people fail, other mechanisms come into play. These informal and formal means of exposing wrongdoing to public scrutiny, of establishing facts authoritatively, and, in appropriate cases, of offering remedies (whether political or legal in nature) include:

• a free press
• public inquiry processes (including everything from royal commissions to the RCMP Public Complaints Commission to other minor tribunals)
• Parliament.

Each of these forums of accountability is assessed in detail in one or more chapters of this book. Some key points merit emphasis here, however, for the APEC affair raises a number of concerns regarding the adequacy of these bulwarks of liberty.

A Free Press

A free press is the first – and one of the most important – of the accountability mechanisms in any democratic society. It is the precondition to the creation of an informed public, the sine qua non of liberal democracy. The bare knowledge that decisions will be exposed to public scrutiny, that abuses will be revealed, imposes a powerful constraint in and of itself.

It is obvious, however, that if the press is to act meaningfully as a check on power, it must operate independently of political control. A free press requires that journalists be free from political influence. If they are not, they become mere mouthpieces for the powerful, agents of official propaganda. Equally, the press cannot serve as a check on exercise of arbitrary, unlawful, or unconstitutional power if reporters limit their ambitions to attending prearranged "photo-ops" and dutifully reporting neatly packaged material doled out by government press flacks. A vigorous, democratic press requires motivated journalists, a spirit of critical inquiry, and resources sufficient to sustain investigative journalism. All these are necessary if our media are to look behind the spin doctors. The institution of a free press requires that at least some of the newspapers, magazines, television networks, and radio stations that journalists work for provide them with the resources they need in order to fulfil these important functions and shield them from both unjustified attacks on their integrity and unwarranted legal assault.

Because a free press is so fundamental, the extraordinary circumstances surrounding the removal of award-winning CBC journalist Terry Milewski from coverage of APEC-related events and the "coincidental" efforts of the cabinet to render the Canadian Broadcasting Corporation formally subservient to its wishes are cause for concern.

The CBC is one of the most important media outlets in the country. It is the only one that has routinely dedicated significant resources to investigative reporting, which is why it, with Milewski, became the lead news organization in reporting the substantial issues raised by the APEC affair. Yet disturbing relationships of power lurk in the background, as CBC Ombudsman Marcel Pépin made clear in his report on the Milewski case:

The CBC is a public corporation whose journalistic independence is guaranteed by legislation, but which nonetheless comes under the indirect authority of the Prime Minister. A complaint from the Communi-cations Department of the head of government therefore takes on unusual importance for the public and all media, so much so that many commentators have even seen in this an indirect threat to the independence of the CBC.

In this context, the stunning effectiveness of the Prime Minister's attack on a journalist must be a cause for concern.

Courts and Tribunals

Although the press serves important functions in free and democratic societies, it does not offer direct remedies to aggrieved persons. This is the role of other, more formal institutions.

In particular, citizens injured by government wrongdoing rely on an effective, accessible, functioning, and independent court system for final recourse. One terribly important role of the courts is to act as referee between individuals and the state.

In many cases, however, the resources of the court system and the expertise of its personnel are not fully up to the task of investigating complicated cases. Recognizing this, the Canadian system of government, like those of other developed democracies, has attempted to fill the "accountability gap" by creating specialist tribunals or inquiries, large or small. In general such tribunals have more specific mandates than the common law courts, and greater expertise in particular areas. The RCMP Public Com-plaints Commission, for example, looks only at matters related to allegations of RCMP wrongdoing. Tribunals typically have greater investigative powers than the judges of the common law courts. The courts are supposed to hear only the evidence introduced by parties before them; if parties cannot afford to muster relevant evidence or if they choose, for reasons of their own, not to introduce it, judges can do nothing to compel its production. Tribunals, on the other hand, can exercise their expanded investigative powers on their own initiative.

Courts and tribunals share an all-important defect, however. It is summarized in the thought, often expressed by lawyers, that the legal system provides "the best justice money can buy."

Cynical? Perhaps. But any informed observer knows that if the promise of "equality before the law" is to be more than empty rhetoric, at least a rough equality of legal resources is needed. Money may not buy justice in Canada, but it does buy word processing services, lawyers, office space, accountants, computers, paralegal workers, expert witnesses, databases, investigative teams, research, photocopiers, paper clips, and the rest of the resources used to lay factual foundations and develop winning legal arguments.

Consider a fundamental flaw in the legal processes in a case such as the APEC affair: the Canadian federal government has no prosecutor or investigator who is fully independent of Ottawa's innermost circle of power. Ottawa has no mouse who can bell the cat. Within the federal government system, decisions on whether to bring criminal charges against police officers or staff in the Prime Minister's Office – perhaps even a minister – are made either by the RCMP (whose top brass are accused of wrongdoing in the APEC affair) or through other processes operating in the federal Department of Justice or in the Solicitor General's Office. Not to put too fine a point on it, both the ministers and the top Mountie owe their jobs to the Prime Minister and to the party apparatus he heads. They depend upon his goodwill for the continuation of their salaries, for ongoing influence, and for any patronage appointments they hope to receive when they retire from politics or policing. Although they may be individuals of the greatest integrity, these relationships of power must weigh heavily upon incumbents in these offices.

When a case does come before a court or tribunal as a result of individual initiative, another problem arises with existing accountability mechanisms. In all of the APEC-related proceedings, the PMO and the RCMP – two mighty institutions if ever there were such – enjoy virtually unlimited resources. The government's pockets are deep, and its legal juggernaut confronts a diverse group of more-or-less impoverished complainants. Although the issues raised are of profound public importance and those accused of wrongdoing enjoy virtually unlimited access to public funds, the complainants have no such resources.

After a series of highly embarrassing events, including the resignation of the Solicitor General of Canada and then of the entire RCMP Public Complaints Commission panel that first began hearings into the APEC affair, the government of Canada at last agreed to provide some public funding to complainants before the PCC. The resources and the legal firepower of the latter remain puny, however, compared with the army of lawyers who appear daily for the government and the RCMP – not an ideal situation.

The same imbalance of resources plagues litigants in the civil courts. When those cases come to be heard in courts of law, the government and the RCMP will again enjoy virtually unlimited legal resources. Only very, very large corporations or the wealthiest of individuals can match the government on this score. In court, as in other spheres, the "haves" tend to come out ahead, regardless of the qualities of the women and men who serve as lawyers, judges, and court officials.

In theory an independent commission with inquisitorial powers might redress such imbalances on its own. The RCMP Public Complaints Commission, however, is small, modestly staffed, and modestly funded. Although the integrity of Commissioner Ted Hughes is beyond reproach, his Commission faces serious challenges in investigating allegations of wrongdoing by the most powerful man in the land. If like its predecessor the Hughes tribunal encounters resistance rather than the fullest possible cooperation from the powerful institutions under investigation, it is by no means clear that the PCC's resources would be up to the challenge. It is significant that Commissioner Hughes's investigation has no source of funding that is independent of Ottawa's control.

It is worth recalling too that not so long ago and not so very far away, other, better-staffed commissions have been worn down and undermined by the people they were supposed to investigate. For example, Mr. Chrétien's government gained experience in first muting and then shutting down an embarrassing inquiry when the Somalia Inquiry moved from considering problems of military governance under the previous Conser-vative government to looking into apparently unseemly events that took place on the Liberal watch.

Parliament

In our parliamentary democracy, the House of Commons and the Senate are accorded pride of place in protecting the constitution and remedying wrongdoing by ministers, including prime ministers. Our system of government requires that ministers of the Crown be "responsible" to an elected Parliament for all of their activity – and that Parliament act on behalf of the people of Canada, not as servants of the executive branch. Theory and practice diverge markedly here. Theory holds that any minister can be dismissed immediately by Parliament, and that a prime minister is accountable daily to the legislature during Question Period. In theory the prime minister is the servant of the House and the members are our delegates. In practice, however, party discipline gives a majority prime minister almost total control. Prime ministers command MPs, and even seemingly powerful cabinet ministers, much more often than they answer to them. The theory of responsible government may well be at odds with the practices of modern executive government.

The instability of facts and the messiness of real-world parliamentary government conspire to make it unclear what the political outcome of the APEC affair will be. One great jurist observed that "all facts are guesses." Much turns on what will be taken as proved at the end of processes that include the RCMP Public Complaints Commission, the courts, and parliamentary proceedings.

Taking theory first, the question arises as to what constitutional convention would require in a worst-case situation, for example, if there were conclusive evidence that the Prime Minister or his senior staff personally ordered the police to prevent embarrassment to foreign dictators and that law-abiding Canadians were arrested as a result. Constitutional convention is clear: any minister who engages in serious misconduct with respect to his office is constitutionally, morally bound to resign. This is the key doctrine of responsible government, and responsible government is the centrepiece of our constitution. This is no ordinary theory, but the core of democracy. It does not matter whether wrongdoing resulted from the personal actions of a minister or from the actions of the minister's senior staff: the minister is equally responsible to Parliament either way. The buck stops on his or her desk.

The deployment of police for political purposes strikes at the heart of the constitution, the Prime Minister has no special status, and in such circumstances his resignation would be in order. So much is clear. This is how political accountability is supposed to work in Westminster-style democracies.

Quite a different question arises, however: what would the House of Commons in fact do if confronted with such a situation? Like the United Kingdom (but unlike the United States), Canada has no formal mechanism for displacing a leader who has engaged in "high crimes and misdemeanours," to borrow the American phrase. Unlike the UK, we have no durable party apparatus capable, in proper circumstances, of providing a power base for MPs and ministers that is outside the Prime Minister's control.

Everything turns on the attitude of a House of Commons in which MPs are subjected to party discipline even more rigorously than in the UK. Donald Savoie, a noted political scientist who worked in a non-partisan capacity on the first Chrétien government's transition team, has concluded that in Canada, power is more centralized in the prime minister's office than it is in any other democracy. We lack the checks and balances of the United States. We lack the effective parliamentary and party systems of the British. We have no independent and elected second chamber equivalent to the Australian Senate. Others have observed that backbench government MPs perform as "trained seals" – standing and clapping on cabinet command, exercising no independent judgment, and achieving little beyond providing a picturesque backdrop for the Prime Minister and his inner circle. One recent newspaper article went so far as to speculate that Pierre Trudeau had it wrong when he asserted that backbench MPs are "nobodies" once they leave Parliament, but only because Trudeau failed to anticipate a time when they have become "nobodies" on Parliament Hill as well as off it.

This may, however, be too jaundiced a view of Canadian members of Parliament. We simply do not know what individual Liberal MPs might do at the end of the day. Backbench Liberals are of crucial importance because it is only government-side members who matter in majority parliaments. "Trained seals" cannot rise to constitutional duty, but it is surely highly uncharitable and unfair to dismiss the entire Liberal caucus as clapping automatons responsive only to PMO command. Party discipline might indeed undermine fealty to core constitutional principle, but government members – even perhaps ministers – might rise to duty if confronted with a clear, fundamental constitutional violation. It would be hard to predict, and all enormously speculative, of course.

Other Legal Ripples

If the political and constitutional outcomes are hard to forecast, so too are the "lesser" legal consequences. If there turns out to be provable wrongdoing with regard to the arrangements leading up to the APEC summit, the rule of law would require that the appropriate legal consequences follow regardless of the status of the wrongdoer. In theory, police officers, bureaucrats, ministers, political staff, and the Prime Minister himself would all bear personal responsibility for their wrongdoings. If it is a violation of criminal law to assault, handcuff, and confine one individual without lawful cause, it would be both a criminal offence and a civil wrong to organize things so that an entire police force participated in such activities without lawful cause.

Canadian law has no doctrine making police officers, political staff, or ministers who participate in wrongdoing immune from the ordinary consequences of wrongful behaviour. Any official who triggers an essentially unlawful mission could face either criminal prosecution or a civil suit or both. The consequences could be ruinous for individuals.

Such considerations are of course highly hypothetical. They are, however, at the core of the problem in Canadian civics that lay behind the sound and fury and well-known news images generated by the events of November 1997 and their aftermath.

The remainder of this book considers in depth the constitutional principles involved, the adequacy of existing accountability mechanisms, questions surrounding the appropriate role of police, and finally the character of the changing international arena that put APEC on the public agenda in Canada in the first place.

—————————————————————————————
The Editor: W. Wesley Pue is Nemetz Professor of Legal History at the University of British Columbia.

Other contributors to Pepper in Our Eyes:

• Andrew D. Irvine, "Free Speech, Democracy, and the Question of Political Influence"
• Margot E. Young, "'Relax a Bit in the Nation': Constitutional Law 101 and the APEC Affair"
• Donald J. Sorochan, QC, "The APEC Protest, the Rule of Law, and Civilian Oversight of Canada’s National Police Force"
• Joel Bakan, "The Significance of the APEC Affair"
• Philip C. Stenning, "Someone to Watch over Me: Government Supervision of the RCMP"
• Nelson Wiseman, "Hand in Glove? Politicians, Policing, and Canadian Political Culture"
• Constable Gil Puder, "Forcing the Issues: Police Intervention at the APEC Protest"
• Terry Milewski, "Forces of Journalism"
• Gerald Morin, QC, "Personal Reflections on the Ill-Fated First APEC Inquiry"
• Karen Busby, “Raising the Dough”: Funding for Lawyers at Public Inquiries"
• Obiora Chinedu Okafor, "The 1997 APEC Summit and the Security of Internationally Protected Persons: Did Someone Say 'Suharto'"?
• Arnab Guha, "A Whole Theatre of Others: A Personal Account of APEC 1997"
• Jane Kelsey, "Whither APEC?"

• ... responses to be posted