Who sent in the police?

Did the prime minister of Canada tell the Mounties to assault student protestors in order to spare Asian leaders embarrassment? W. Wesley Pue says that if he did, he should resign

On October 5, a minor tribunal by the Royal Canadian Mounted Police Public Complaints Commission began hearings in Vancouver. The investigation of alleged police misconduct at the University of British Columbia nearly a year ago may seem at first sight small stuff. This little hearing, however, has raised issues that threaten to topple Canada's political leaders.

The matters under investigation have dominated question period in the federal house of commons since the autumn sitting began. Ministerial careers are in jeopardy, the public image of the Mounties has been besmirched. If allegations are borne out, constitutional convention almost certainly requires the experienced, popular prime minister, Jean Chretien, to resign.

It all started at the leaders' summit of the Asia Pacific Economic Co-operation group of states, which was held at the University of British Columbia on November 25 last year. Though the university welcomed the opportunity to figure briefly on the world stage, student activists were not happy. For many, Apec represents the evils of capitalism's globalisation, including dirty dealings with third-world dictators such as General Suharto, who was forced out of office this summer after 32 years at the head of a corrupt and brutal regime in Indonesia. Students were infuriated that the Apec meetings were held on campus.

What transpired was a university demonstration on a scale not seen in Canada since the dying days of the 1960s. Ordinary students sought to express their objection to the university's involvement and/or to the prime minister's "dinner with dictators" in the standard ways: teach-ins, public meetings, displays of posters, mass protests and offering themselves up for symbolic arrest at police security perimeters. (This last is a well-established ritual of protest in British Columbia.) The choreography is well known, routine. Not the stuff to generate diplomatic crisis, security threat, or a break-down in policing.

But something went dreadfully wrong. Tens of students were arrested (only one was ever charged). It is likely that many were manhandled or assaulted by police. The RCMP doused students and journalists with generous amounts of pepper spray, removed posters and took away signs.

Notoriously, one student was arrested behind a security perimeter for holding a sign saying only "free speech". Photographs show Mounties removing paper signs reading "human rights" and "democracy".

The Mounties, clearly, look bad in much of this. These, however, rank among the least consequential allegations the commission is looking into. The larger questions relate not to what the police did but why? How did it come about that the national police force of a respectable, developed, constitutional democracy conducted itself in these ways?

This question leads us straight into the prime minister's office. Several complainants allege that Prime Minister Chretien personally, or through his staff, interfered with the RCMP's ordinary security operations and that he did so not to just ensure the safety of foreign dignitaries but specifically to protect Indonesia's then-President Suharto from "embarrassment".

The most serious allegations run something like this:

* that for political reasons the prime minister wished to ensure Suharto's attendance at the Vancouver Apec summit

* that Suharto indicated he would not attend unless protected from "embarrassment" by protests, demonstrations, banners, placards, signs, and such like

* that the prime minister ordered his aides or the RCMP to ensure that Suharto would be spared embarrassment, not just protection from assassination, injury or assault

* in either event, that the prime minister's senior staff, for reasons that had nothing to do with security needs, gave orders to the RCMP resulting in the violation of constitutionally protected freedoms such as those of free assembly, free speech and freedom from arbitrary arrest.

As a result dozens were arrested and hundreds of law-abiding individuals were interfered with or assaulted by police.

Even assuming the accuracy of this picture, however, many wonder what the fuss is about. An only slightly modified situation serves to clarify the issues: imagine an act of parliament prohibiting the display of posters displeasing to the prime minister or enacting that no one within 100 metres of a Canadian politician should utter words offensive to him or her.

No constitutionally minded house of commons, senate, or governor-general would approve such legislation. If they did, such a statute would be struck down by any court without a second thought (Canada has a partially written constitution including a Charter of Rights introduced when Chretien was minister of justice). 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 confer legal justification under the terms of the charter, within the spirit of a free and democratic society. Freedom, simply, is not made of such material.

If confirmed, the emerging story-line about Canada's Apec summit is troubling in several respects. It reverses the Canadian theory of "constructive engagement" with disreputable regimes (showing, in effect, that we adopt their political values in return for trade rather than vice versa). It reveals a shocking disrespect for the principle of the political independence of the police. And it represents a fundamental violation of the rule of law. When reduced to its barest essentials, the core purpose of Canadian constitutionalism - like that of the United Kingdom and all other decent democracies - is to intrude between executive whim and the application of police truncheons to citizens' heads.

The major buffers are the house of commons, the courts, juries, the independent bar and other mechanisms, such as police commissions, the cabinet offices of solicitor general and attorney general, and a variety of understandings, constitutional conventions, or usages that limit the types of legitimate communication between government officials and police officers.

If these mechanisms shielding armed force - for that is what police are - from political control prove ineffective, the rest is nonsense on stilts: constitutional documents, charters of rights, human rights commissions, parliament itself. All can be ignored.

Countries where police respond to political command are neither free and democratic nor governed by the rule of law - no matter what their written constitutions say. Pejoratively but accurately, we call such places "police states".

In short, Canada's little police complaints commission finds itself seized with "big" matters. They are matters that resonate in Britain, which, like Canada, has a mostly unwritten constitution and equally feels the stresses and strains resulting from globalisation and the other changes that envelop us.

What next then? The instability of facts and the messiness of parliamentary democracy conspire to make this unclear.

Questions relating to what happened during Apec's summit, what the police did, and what the Canadian prime minister may have done are before an independent commission and before the courts. It would be reassuring if the prime minister could unequivocally deny the specific allegations that have been made. Even if he does not, however, we should be careful about drawing hasty conclusions in advance of fact-finding by the proper bodies.

Second, the question arises as to what constitutional convention would require if conclusive evidence were forthcoming that the prime minister personally ordered the police to prevent embarrassment to foreign dictators and that law-abiding Canadians were arrested as a result. We will have to wait to see whether the allegations in circulation are sustainable. If they are, constitutional convention is clear: any minister who engages in serious misconduct with respect to his office is constitutionally bound to resign. This is the key doctrine of responsible government. The deployment of police for political purposes strikes at the heart of the constitution. The prime minister has no special status, and in such a situation his resignation would be in order.

Finally, a quite different question: what would Canada's house of commons do if confronted with such a situation? Canada, like the UK (but unlike the US) has no formal means of displacing a leader who has engaged in "high crimes and misdemeanors" - to borrow a phrase. Everything turns on the attitude of the commons, where MPs are subjected to party discipline even more rigorous than in the United Kingdom. Their attitude is anyone's guess really. Party discipline might undermine fealty to core constitutional principle. Or ministers and government members might feel the pull of duty above partisan politics if they are squarely confronted with a clear, fundamental constitutional violation. Hard to predict.

In all of the current proceedings - court and commission alike - two mighty institutions (the prime minister's office and the Royal Canadian Mounted Police) enjoy virtually unlimited resources. Their legal juggernaut confronts a diverse group of more or less impoverished complainants without access to public funds - although the issues they raise are of profound public importance. Not an ideal situation.

Conceivably, an independent commission with inquisitorial powers might redress such imbalances on its own. For its part, however, the RCMP Complaints Commission is small, modestly staffed and modestly funded. The integrity of the commissioners and their staff is beyond reproach. If, however, (hypothetically speaking) it were to encounter resistance rather than the fullest possible cooperation from the institutions whose conduct it is investigating, it is by no means clear that the commission's resources would be up to the challenge.

Not so long ago and not so very far away other, better staffed, commissions were worn down and undermined by the people they were supposed to investigate. What happens when parliamentary democracy confronts constitutional crisis? Stay tuned to Canada. You may find out.

W. Wesley Pue is professor of law at the University of British Columbia.