Scariest book I’ve ever read | Sam Goldstein
Thursday, May 14, 2020 @ 11:44 AM | By Sam Goldstein
Alford teaches at the Bora Laskin Faculty of Law at Lakehead University. In his 2017 book, Permanent State of Emergency: Unchecked Executive Power and the Demise of the Rule of Law, he detailed how, in the 16 years after the 9/11 attacks, the United States could no longer be considered to be governed by the rule of law because it had abandoned its constitutional order by giving a president unreviewable power to authorize indefinite military detention and extrajudicial killing — of its own citizens.
Alford believes that the true test of a country’s democratic integrity is how its constitution stands up to political expediency in times of an emergency. In Seven Absolute Rights, Alford analyzes Canada’s constitutional integrity. While timely, his book is not about the rule of law in Canada during the pandemic.
Alford is a gifted writer and his writing style is urbane and fluid. But at 256 pages, including footnotes and index, no matter how brilliant of a writer Alford is, it would take much longer to write a book of this detailed research in the mere two months since the pandemic first started.
In Seven Absolute Rights Alford’s interest is in exploring whether Canadians have rights that are non-negotiable to executive override in times of war or famine. His book’s subtitle Recovering the Historical Foundations of Canada’s Rule of Law suggests that this quest is no theoretical exercise.
Like a modern-day legal Indiana Jones, Alford takes us on a historical journey through the Magna Carta, the Petition of Right, the Act Abolishing the Star Chamber, the Act of Settlement, the Habeas Corpus Act, and the Bill of Rights to show that these documents backstop Canada’s constitutional framework and, absopositivelutely guarantee each Canadian a right not to be subjected to extrajudicial killing; the right not to be subjected to emergency measures that have no legal or constitutional justification; the right not to be tortured; the right not to be subjected to arbitrary detention; the right not to be subjected to cruel and unusual punishment or excessive bail; the right not to be punished for what is said in the course of parliamentary proceedings; and the right to be tried by an impartial judge who is a member of an independent judiciary.
At a time when social distancing laws mean a teenager can get a $840 fine for skateboarding in a park, his seven absolute rights seem paltry. I intend no disrespect to the right against torture. I would have thought, however, that since the mid-1600s we’d have added a few more gun slingers to Alford’s magnificent seven legal rights to protect us from the bandits who’ve taken over our peasant village, but it seems all we have is Yul Brynner and his posse.
The truth is that during times of emergency, such as a pandemic, the state can regulate the number of people with whom we can socialize, where we can socialize with them, and how far apart we must remain from them. Our Charter, as it turns out, is an extremely poor facsimile of Yul Brynner.
And that’s not because I think challenging social distancing laws is futile because courts will find the laws demonstrably justifiable in a free and democratic society. No. What I find frightening about Seven Absolute Rights is that reading it I realized that the simple pleasures of life, that we assume are constitutionally protected, actually rely on the goodwill of our elected leaders not to take them away. Hanging out in a park with our friends, using a public playground or resting on a park bench are all likely not protected by s. 2 of the Charter’s right to assembly or right to association. The former gives people the right to unionize and the latter the right to protest and picket. Neither guarantees the pleasures of life that make life worth living.
I understand that just because the above activities have yet to be found protected doesn’t mean a court won’t include them as protected in the future. But, unless you’re skateboarding with the purpose of protesting the social distancing law, I wouldn’t recommend finding out.
The remedy for leadership that we don’t like is the legal right to vote the buggers out of office — assuming the buggers haven’t burned down the seat of power and blamed the opposition parties for it because the right to vote is not one of Alford’s seven absolute rights.
I don’t know about you, but I went out and bought a brand-new Scooby-Doo night light.
Sam Goldstein is a Toronto criminal lawyer. You can e-mail him at firstname.lastname@example.org and follow him @Willweargloves.
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