Some one hundred years ago, Justice Oliver Wendell Holmes, Jr. constructed the foundational maxim of legitimate legal order: “Justice must be seen to be done as well as to be done.” These thirteen simple words embodied the hopes and strivings of those of compassionate conscience and noble purpose who recognized that a just society is predicated on the recognition of the claim by every citizen on a presumptive tolerance from the state.
Few statements could underlie better why the acquittal of Basil Parasiris was right and just. Parasiris and his family were awakened before dawn by police officers who battered down the door to his home. He said he acted in self-defence in the shoot-out that followed which resulted in the death of police constable Daniel Tessier. Parasiris claimed throughout that he did not know they were police and thought it was a break-in. Some of the officers had come right to his bedroom door. As tragic as Tessier’s death was, the jury agreed and in a manner of speaking a break-in was just what it was.
The trial revealed that this tragedy should never have happened. The Laval police force’s search warrant had been based on questionable evidence. Further, the warrant did not give requisite special authorization for a night-time raid. Most warrants are served after dawn. The trial also revealed that the police had not properly checked whether Mr. Parasiris owned guns. The officers hadn’t checked his name in the firearms registry, only the address. Finally, some officers mistakenly fired into a child's bedroom. Almost everything that could go wrong did.
Justice Guy Cournoyer of Quebec Superior Court, had invalidated the search warrant the officers were using. Mr. Parasiris was targeted in a police probe into cocaine trafficking. But Judge Cournoyer ruled that the police failed to prove he had drugs in his home and weren't justified in using force to enter. The force was a battering ram at 5.00 am.
It was a prescription for disaster. A “legal” break-in. Sadly, in a society run rampant by state dictate and interference in our private domains this was almost inevitable. The jurors seemed to be drawing a line in the sand around the sanctity of the home. They agreed with Mr. Parasiris's defence that he thought he was the victim of a home invasion.
The rush to judgment in the events leading up to the fateful morning ignored due process and the presumption of innocence. We are a society of laws and not of men. But, as Gandhi said, it is a principle of natural justice that when bad men make bad laws, or when unprincipled authorities compromise good ones, citizens are justified in protecting themselves from the very authority that compromised law and order.
Justice Cournoyer directly, and the jurors indirectly, mirrored what US Supreme Court Justice William O. Douglas once wrote. “In a civilized society,” he stated, “ the means are all important. It may seem unimportant that one person’s guilt is established through questionable means, but a society that accepts indiscriminate practices as normal has no claim to moral leadership.” And where there is no foundational morality behind legal actions, those actions and the very laws they represent have no legal standing.
If we Canadians have one boast, one over-riding advantage, not just over totalitarian regimes, but even over sister democracies, it is that our legal traditions reflect our national consensus that our governance must have a broad base in morality and decency and protect our individuality and conscience against direct and indirect breach by the state. If we ever forget that then we may, in the words of Toronto’s famed civil rights and criminal defense attorney Clayton Ruby, “…lose sight of what our democracy is all about.”
Let the detectives detect and the investigators investigate and the collectors collect, but within the limits of due process. And with the appropriate verbal restraint from our public officials so that the reputations of our citizens are not compromised. Except in extreme matters of National Security - and even then balanced against the primacy of protecting individual liberties so as not to become the reflection of that which we are trying to destroy - if state authorities cannot catch certain people under rules that protect the majority of law-abiding citizens, then so be it. Governments cannot continue to be given onerous extraordinary powers which we have seen them apply not only irresponsibly, but retroactively.
Few crimes are as heinous as that of unbridled government power. Few threats to our public security are as grave as the ability of unseen forces to intrude into our lives and thoughts. Few fears are more paralysing to the commonweal than the possibility of violation of our most sacred trusts by public servants who shield themselves behind screens of immunity. The greatest danger to our free society lurks in the insidious encroachment by agents of the state operating without understanding or guidance from compassionate authority.
And this problem is broader than the power of police officers. We have oversight and control by so many government statocrats into every aspect of our private lives. So many laws aimed not at protecting victims but at protecting us from ourselves. It is sheer madness. The reality is that if we have to live our lives weighing every action, every communication, every human contact, wondering what agents of the state might find out about, how they would analyse it, judge it, tamper with it, and somehow use it to our detriment, we are not truly free.
We can only have one standard. The state may do nothing that contravenes the guarantees implicit in the concepts of ordered liberty and fundamental justice. These principles are effective only when there is a strict adherence to due process. The starting point is always the individual, not the state. Only if due process is respected can the humblest of citizens feel sheltered in the heart of our legal order by the guarantee that they are protected from persecution and shielded from sanction.
This is our only surety of a government, and a society, that endures with pride and purpose in a spirit of compassion and conscience, and not one that merely exists--paralysed and petrified--in the icy frost of its own indecision and indifference.
