Lest we forget the most...

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by Daniel Song

While I might understand the ignorance of the hard-working layperson, or even the campaigning politician who relentlessly criticizes our justice system, I cannot easily forgive the lawyers who, perched high in the concrete towers of globalization, recklessly and irresponsibly hurl invectives at our criminal courts. 
As lawyers, we have had the privilege of educating ourselves of the foundational principles that govern our modern democratic institutions. Because of this privilege, we have the vested responsibility to educate others about our justice system. Yet many of us are guilty of scorning the criminal process, dishonouring the basic legal principles that justify our very existence. 
To all my peers who know they have committed this unprofessional faux pas, shame on you. Without the rule of law, we would not have jobs.   
The rule of law is a legal term and the very foundation upon which our democratic institutions rest. Depending on the context, the rule of law can mean one or more of the following: all state action must attach to an existing legal rule to preclude arbitrary exercise of power; the state must create and uphold a body of laws that preserves and maintains order; and this body of laws reigns supreme and must apply equally to everyone, regardless of socio-economic and political position, race, religion, sex or other group characteristics.
These principles have been “read-in” to the preamble of our Constitution, opening for our Supreme Court a gateway to the whole history of legal institutions we adopted from England. In his 1960 play A Man for All Seasons, Robert Bolt chooses as his “hero of conscience,” Sir Thomas More ? the man who resigned as Lord Chancellor of England in 1532 and was beheaded because he opposed King Henry VIII’s self-serving laws. The following is the play’s most powerful passage, in which More argues the rule of law.

Wife:  Arrest him!
More:  For what?
Wife:  He’s dangerous!
Roper:  For all we know he’s a spy!
Daughter:  Father, that man’s bad!
More:  There’s no law against that!
Roper:  There is, God’s law!
More:  Then let God arrest him!
Wife:  While you talk he’s gone!
More:  And go he should, if he were the devil himself, until he broke the law!
Roper:  So now you’d give the devil benefit of law?
More:  Yes, what would you do? Cut a great road through the law to get after the devil?
Roper:  I’d cut down every law in England to do that!
More:  Oh? And when the last law was down, and the devil turned ’round on you ? where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast ? man’s laws, not God’s! And if you cut them down ? and you’re just the man to do it ? d’you really think that you could stand upright in the winds that would blow then? Yes I’d give the devil benefit of law, for my own safety’s sake.

The supremacy of the rule of law finds its greatest test in the crucible of a criminal trial: we protect our democracy by defending the other person’s freedom. How we treat an accused person through the criminal process exposes our collective soul. Other nations will eye us carefully, wondering if hypocrisy will behead the legitimacy of our democratic institutions. And why not?  It’s always easy to defend those we love. But the mettle of any free society hardens only when we defend those we do not. 

Daniel Song is a student-at-law with Tarrabain and Company in Edmonton, Alberta. He is a 1.5-generation Korean Canadian.

Note: The information contained in this article is not legal advice and should not be relied upon as legal advice. If you have any legal concerns, please contact a lawyer or a member of a law society in your province.

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