In Defence of Civil Disobedience: Part Two

In my previous posting, I outlined the historical significance of civil disobedience, tracing the creation of the phrase from Thoreau, who turned an innocuous poll tax into a deeply personal articulation of one’s beliefs, to the present iteration of collective disobedience against government policy. Today’s posting will take these concepts a step further into the legal realm.

The definition of “civil disobedience’ as found in Merriam-Webster’s dictionary, suggests the act is a “non-violent” form of group protest. This definition conjures up a vision of peaceful sign-bearing protesters, shouting slogans, and holding hands in solidarity before dispersing for a musical interlude and barbecue. This peaceful concept of civil disobedience no longer seems to fit the bill as today’s more complicated issues require a much higher shock quotient to get the attention of the media and then ultimately the government. Hand in hand with this more virulent form of disobedience is the more intransigent reaction by the government: as crowds shout “hell no, we wont go,” the government lawyers are busily drafting court applications for injunctive relief.

Injunctions, as I thoroughly discussed in my previous posting on the Occupy Movement, are a favoured response by the government as, if successful, results in a court imposed order for the disobedience to stop and then turns the protest into legally recognized unlawful conduct. This can have enormous repercussions as an injunction can not only effectively shut down any future protests, but can also provide legal precedent on the ultimate issue at stake: the fundamental freedoms protected under s. 2 of the Charter of Rights and Freedoms involving s.2 (b) freedom of expression rights, s. 2(c) freedom of peaceful assembly, and s. 2(d) freedom of association. As discussed in previous postings, the Charter is not absolute and the Courts try to balance societal rights with the individual freedoms found under section 2. As a result, although the Courts may find a violation of s. 2 rights by the government seeking an injunction, where societal harm or violence is caused, the Courts tend to find such injunctions a reasonable limit in a free and democratic society under s.1.

The government may also respond to civil disobedience through the criminal justice system. Typically, such response is reserved for the clearest examples of law breaking such as the destructive effects of a rioting crowd. In those cases, the law is most severe, imposing harsh sentences on those who destroy property and harm others under the flimsy disguise of a "cause".

Criminal contempt charges may also be laid when injunctions are not obeyed. This scenario is subtler as it does not involve harmful action but involves inaction: a failure to obey a law, which has been declared valid by the courts. The justice system deals with this form of disobedience slightly differently. Here again Charter violations may not provide a valid defence, but may be taken into account as a mitigating factor on sentence.

To raise a valid defence on a criminal charge arising out of civil disobedience is a challenge as any moral or ethical arguments for committing the prohibited acts do not change the essence of the crime committed. The best way to explain this is through the Robin Hood scenario. Robin Hood and his Merry Men stole from the rich to give to the poor. When we hear this story we usually give Robin the “thumbs up” for fighting against tyranny and greed. We also cheer as he takes the gold from evil King John, knowing that the good King Richard will absolve Robin of any guilt. But, in terms of criminal law, a bandit is a bandit no matter how you slice it. Although Robin Hood may have a valid moral argument for his actions and therefore an excellent motive for breaking the law, the law is clear: the guilt act and the guilty mind are present and therefore Robin Hood is guilty of highway robbery. He may receive a suspended sentence from a sympathetic court but he is still a convicted felon.

There is, however, a possible defence available. In Perka v. the Queen, the Supreme Court of Canada, when considering the common law defence of necessity, suggested such a defence may be a valid defence to acts of civil disobedience. In the necessity defence both the prohibited act or actus reus and the fault requirement or mens rea is complete. Therefore, all essential elements of the crime have been fulfilled and the defence merely excuses the blameworthy conduct.

Essentially, the accused acknowledges the wrongfulness of the action but in the circumstances the accused should not be punished for the crime. Excuses are typically limited to emergency situations wherein the accused had no choice but to break the law. As our criminal law punishes only those who choose to act criminally, an excuse can exonerate an accused of a crime. In the necessity scenario, the accused must choose between two evils.

However, such exoneration comes with a price: the defence of necessity is only accepted in certain, very limited circumstances. There are three elements to the necessity defence. Firstly, the accused must be facing imminent peril or danger. Secondly, there must be no reasonable legal alternative but for the accused to break the law. Thirdly, the harm inflicted by committing the crime must be proportional to the harm, which would have been caused if the accused followed the law and not committed the crime. As a result, necessity is rarely advanced and even rarely accepted as a valid defence. When it is accepted, the Court views the behaviour as a form of moral involuntariness.

How does the necessity defence work in practice where there are acts of civil disobedience? The best case examples are not from usually staid Canada, but in the protest fuelled United States. In the 1969 case of United States v. Moylan, the appellants were charged with the destruction of government records, records they seized from a government office and burned with napalm in protest of the Vietnam War. Counsel for the defence, the “radical lawyer” and activist William Kunstler, argued that the jury should have been instructed that they “had the power to acquit even if appellants were clearly guilty of the charged offenses.” This “right’ was based in moral arguments as the appellants were protesting a war “outrageous to their individual standards of humanity.” Furthermore, the war itself was illegal and therefore citizens had an obligation, in the name of justice, to break the law in order to enforce the law.

The United States Court of Appeals Fourth Circuit Judge Sobeloff, took a page from the Robin Hood myth and found no matter how sincere the appellants were in their actions, and no matter how strong their moral arguments were, they still committed crimes for which they must be accountable. In upholding the law Justice Sobeloff remarked:

To encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscience to disobey is to invite chaos. No legal system could long survive if it gave every individual the option of disregarding with impunity any law, which by his personal standard was judged morally untenable. Toleration of such conduct would not be democratic, as appellants claim, but inevitably anarchic.

The best known case of a jury being invited by defence to eschew the law and decide a case on their own moral conscious, was in R. v. Morgentaler, when Morris Manning, Q.C. invited the jury to acquit Dr. Morgentaler of violating the "bad" abortion law. The Supreme Court of Canada chastised Manning for his emotional appeal, finding that such an invitation would “undermine and place at risk” the jury system. In support of this position, Chief Justice Dickson referred to the British 1784 criminal libel case of R. v. Shipley and quoted Lord Mansfield as follows:

So the jury who usurp the judicature of law, though they happen to be right, are themselves wrong, because they are right by chance only, and have not taken the constitutional way of deciding the question. It is the duty of the Judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.

To be free is to live under a government by law . . . . Miserable is the condition of individuals, dangerous is the condition of the State, if there is no certain law, or, which is the same thing, no certain administration of law, to protect individuals, or to guard the State.  ...

In opposition to this, what is contended for? -- That the law shall be, in every particular cause, what any twelve men, who shall happen to be the jury, shall be inclined to think; liable to no review, and subject to no control, under all the prejudices of the popular cry of the day, and under all the bias of interest in this town, where thousands, more or less, are concerned in the publication of newspapers, paragraphs, and pamphlets. Under such an administration of law, no man could tell, no counsel could advise, whether a paper was or was not punishable.

Certainly, it is valid to be fearful of a capricious jury who are guided by their own prejudices and sensibilities but there is an attraction to the ability of a jury to “do the right thing” and acquit in circumstances where the law is unjust, not just unfavourable, but unjust. When I was a student at Osgoode Law School in 1983, Morris Manning came to the school and reenacted his Morgnetaler jury address, an address which did result in an acquittal for the doctor. It was a moving piece of advocacy, which did stir the moral conscious. In the end, I was questioning the moral and legal basis for a law, which could send Dr. Morgentaler to jail. Ultimately the court system did work for Dr. Morgentaler, due to our Charter, the best defence against tyranny and injustice.

What does all of this mean for the ongoing student protests in Quebec? It is unclear where the Quebec government will go. Certainly the new laws they have introduced to stop further protest has only fueled more acts of civil disobedience. As with the occupy movement, these acts have gone viral and the issue has become one of students’ rights and the moral obligation to speak out against seemingly “bad” laws. However, to speak out against laws is much different than acting out criminally. It will ultimately be up to the Courts to draw the line between the two.