Truckers’ Protest: The Post Mortem

My question now is: How can truckers charged with various offences get a fair trial? Truckers hate the establishment elite. They believe they had a just cause. And the establishment elite hates the truckers. They believe there was a disrupting and criminal occupation of the nation’s capital.

Protesting truckers broke many laws even as the operation was generally peaceful. Laws broken include parking violations, mischief, disturbing the peace and so on. The prosecution may argue that the criminal law and City bylaws are paramount. The prosecution may also say that any Charter rights the truckers claim were negated by demonstrable justification in the free and democratic society that Canada purports to be. But what does the Charter say?

“Everyone has the following fundamental freedoms:

  1. freedom of conscience and religion;
  2. freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
  3. freedom of peaceful assembly; and
  4. freedom of association.”

Countering the charge of communication to incite mischief, the defence may argue that the Charter protects what was said. It may also be argued that the truckers were entitled to exercise their constitutionally guaranteed right to peaceful assembly and association. There’s no time limit specified for a peaceful assembly, nor for its location.


The trucker-hating elite owns the judges

Other fundamental principles potentially favour the defence. One is estoppel. That’s the doctrine that prevents assertion against them in court of an admitted right, fact or claim—in this case, Mr. Trudeau’s acknowledgement of the right to protest. When commenting on the months-long protest by farmers in Delhi, capital of India, Mr. Trudeau said, “Canada will always be there to defend the rights of peaceful protest. … We believe in the importance of dialogue …”

There’s also the doctrine of clean hands, the principle that a dirty dog will not have his day in court. The defence could argue that the government’s own actions induced the protest. The defence could add that other countries within the Anglo-American sphere of jurisprudence, free and democratic societies as they are, acted reasonably and that Mr. Trudeau’s government did not.

But let’s come back to Mr. Trudeau’s assertion of the importance of “dialog”. Broadly speaking, there’s a corresponding duty to respond to a protest. Mr. Trudeau repudiated that for this case. Instead, he’s on the record as saying he meets only with those whose cause he agrees with. Specifically, he embraced Black Lives Matter even as rioting caused billions of dollars worth of damage, largely to Black-owned businesses.

A historical template comes to mind. There were extreme tensions in England after the bubonic plague in 1348 that killed about half the entire population. High taxes, labour shortages and inflation induced the misnamed Peasants Revolt in 1381, in fact a much broader insurrection. It was a general uprising against the government, with Richard II forced to retreat to the Tower of London, and with some 1,500 people killed. The 14-year-old king rode out to meet the leaders 16 days after the insurrection started, and he agreed to terms for its ending. That didn’t prevent the subsequent prosecution of ringleaders and murderers.

This all leads to the question of how any prosecution of truckers would conform to Lord Chief Justice Hewart’s axiom: “It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

The trucker-hating elite owns the judges, appointed as most of them are by a Liberal government. So the defendants could demand trial by jury, and juries have overridden laws they didn’t agree with. They did that repeatedly, for example, with the attempted prosecution of abortionist Henry Morgentaler. But given the polarization in Canada, how would it even be possible to empanel a credibly impartial jury? And can we expect the wider public and the truckers themselves to accept any judge’s direction to the jury as fair and impartial?

In sum, a political solution is necessary that doesn’t prosecute (persecute) the charged protesters. Otherwise, prosecution seems certain to heap disrepute on the administration of justice. And we may see more trouble.

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