Sorting the Moral Issues at the Convoy
by Mary W Maxwell, PhD, LLB
This article will try to sort out the players in Ottawa today and their claims to being on the right side of the law. As I have already said about the book, Eutopia, its author operates in a rarefied sphere. Cambridge Law Professor Philip Allott never tries to pin down whether, say, the driver of a getaway car after a murder is liable for this or that punishment. What he cares about is the big, BIG picture. But events are overtaking us, and this article must focus on what the People can do "legally."
By the way, I was once in Ottawa, helping a child. I took her to the police station at the corner of Catherine St. When the cop (who was very impressive and understanding) asked to interview the child without me present, I asked "Quo warranto?" That is, I queried what law gave him the authority to do this. The officer immediately gave up his request for a one-to-one interview. Cops do know that they have to follow the law. If they say they don't know, they are faking.
Put This Allott Perspective in Your Pipe and Smoke It
I am eager to help either side in the Convoy crisis. I want to tell both the truckers and the cops what should be done. Oh, when did I arise to this godlike state? Ima tellin' you, I got it from reading the book, Eutopia. Please make these Allottian ideas your own (I'll use his paragraph numbers):
11.9 Human history is the history of the omnipotence of the restless human mind and the perverse human will. 3.59 Is and ought are two ways in which the human mind responds to the world. The sources of the felt obligation are varied.
3.61 Reality is telling us not only what is, but what ought to be. Morality and law are collective "ought" systems. 8.40 An increasing and energized sense of individual and shared human responsibility for every aspect of the human world is necessary.
10.94 The human mind can simply reassert its power over law. We human beings made all law. We make the miracle of law to serve our higher purposes, namely, human survival and flourishing. We are the guardians of high values that law enacts and enforces. ... We are the supreme judges of [what is right].
9.2 There may even be no future for the human species. 10.95 If the law does not serve the purpose of human survival and flourishing, then the law must be changed.
11.7 We know what we can do. 11.8 Above all we owe it to ourselves in the 21st century. Our power to do good and to do evil has never been greater.... 11.84 A pale new consciousness may now be emerging, like the first light that comes before dawn.
-- end of my paraphrasing of Philip Allott's book, Eutopia New Philosophy and New Law for a Troubled World.
Media, Media
In order to get a purchase on the moral issues in the Canadian convoy crisis, we will need to know who's who -- both the visible players and the ones pulling strings -- what are their various agendas, which laws and which lawsuits are involved, whether the activity is a distractor for something else.
Besides the "registered" players in this toe-to-encounter (the mandate makers and the mandate opposers), there may be others in the shadows who are helping their chosen side. Or there may be some in the shadows who are using the activity for unrelated purposes.
And the media has had a pivotal role in the two years of pandemic.
Consider the tone of voice of the following October 5, 2021 article at Al Jazeera. Although an Arab news outlet, it is most likely run by the CIA, which could hardly afford to be without a major voice in the Middle East. Here its writer discusses a crowd in Melbourne that supported construction workers whose job was cancelled for two weeks.
"Melbourne, Australia – Recent anti-lockdown protests in Melbourne have exposed the rise of the far-right movement over fears stemming from the coronavirus pandemic .... The protest soon turned violent [huh?], with police responding with rubber bullets, tear gas and pepper spray. “Very quickly we saw ‘freedom marchers’ join the protests [with] other right-wing antagonists,” Josh Roose, at the Alfred Deakin Institute, told Al Jazeera. “That then gave the impression of being a much larger movement than it necessarily was ....[Huh?]
"The protests have focused attention once again on the far right in Australia, two years after an Australian white supremacist attacked two mosques in Christchurch, New Zealand, killing 51 people. [Huh?] Condemnation of the September rallies was widespread, with Labor Member of Parliament Bill Shorten publicly dismissing the protesters largely as “hard-right man-baby Nazis”. For Australia to combat the far right [Roose says], people need to understand what it is, and that such groups are more than just “jackboots and swastikas”. [Huh?]
“It is deeply anti-science and propagates disinformation and distrust in government..." Such conspiracy theories ... include the belief that COVID-19 is a hoax, the vaccine is designed to kill people, or that the recent rollout of 5G technology is to blame.... Pandemic disinformation [huh?] has also recently crept into the federal Parliament, with Liberal MP George Christensen publicly promoting the use of ivermectin as a coronavirus treatment .... -- end of Al JAzeera excerpt.
Legal Principles
Sorry for blathering about the media's blather. Let's get down to the rights and wrongs of the Ottawa convoy. A new pressure has just developed -- the government is forbidding people to give fuel, and perhaps food, to the truckers. ("Truckers" now include tractorers from Canadian farms.) And a lawsuit has been filed by locals asking for relief from the noise of honking horns.
What law do we look to? And what principles are involved? Here is a selection of principles, and laws that reflect them:
1. Freedom of speech. You are allowed to say what you want. Speech may include behavior, e.g., honking, or paining a slogan on your truck (such as "Let's go, Trudeau"). Canadians have a Charter of Rights that protects freedom of speech.
2. Citizens, merchants, and health workers should be able to drive down the street and not be blocked by trucks. The city of Ottawa has formal rules as to who can park where and when -- this works to the benefit of the majority.
3. People, when exercising their rights, should not thereby impose hardship on others. A judge has authority to grant a restraining order when someone is menacing others.
4. Each person is entitled to bodily integrity. Laws, or "ethics rules" exist in some places; for example, a doctor can't sterilize a patient without good cause. Although Canada and US have not legislated to enforce the Nuremburg Code, it is well established that a doctor must not inject you as part of an experiment unless you have given your un-coerced informed consent.
We see from that short list that two principles may conflict. Your right to honk conflicts with a neighbors right to have quietness. Your right to lay your case at Parliament Hill conflicts with the smooth flow of traffic.
Researching the Case, and Judicial Notice
Disputes often move from a local court to an appeals court to a supreme court. At that point, lawyers are eager to find anything in constitutional law, statutory law, or jurisprudence (especially rulings as precedents) to fit their argument.
But no matter what the black-letter law says, you can -- and should -- also invoke relevant principles. As we saw in the Obergefell case, a baker who did not wish to make a wedding cake for a same-sex couple, pleaded not only his free-speech right, and his artistic right, but also his right to religious choice. (I think he claimed that God condemned gayness, or something.)
Judges are supposed to base their rulings on the evidence that was presented by the litigants, but they are also expected to know at least as much as the average citizen, about what is going on. The phrase for this is "judicial notice."
Today, the judges should be able to decide for themselves that, for instance, Covid protestors have nothing to do with swastikas (as was implied by Roose of Deakin). They can take judicial notice of the crowds they see on TV that have a range of signs such as "My body, my choice" or "Screw tyranny." If they are Canadian Supreme Court justices, they have only to look out the window from their court, which is on Parliament Hill, and gaze at the crowds, to achieve judicial notice.
But Go Higher, with Allott
Allott says: "Reality is telling us not only what is, but what ought to be." That's a quote from Eutopia's Chapter 3, "Paradoxes of Being Human": Think about it. Folks with a conscience know right from wrong. (I have read that chimpanzees also have some recognition of when a chimp wrong has been committed.) Some not-small percent of humans are sociopaths and may lack conscience, so you can't count on conscience, but that doesn't mean you should discount it. It means you should magnify it.
How about this remark from Eutopia's Chapter 10: "We are the guardians of high values that law enacts and enforces." Or Chapter 11: "We know what we can do." Let me assure readers that you won't find that sort of remark in law books. As Judith Shklar noted in her 1964 book, Legalism, law is too turned in on itself. Lawyers talk law's own language, which limits their thoughts.
Ah! It seems that Philip Allott has a predecessor. The description on Legalism's book cover (thank you, Amazon) says: "Judith Shklar proposes that instead of regarding law as a discrete entity resting upon a rigid system of definitions, legal theorists should treat it, along with morals and politics, as part of an all-inclusive social continuum."
In regard to the Canadian convoy, the truckers say their goal is to get Parliament to lift the Covid restrictions. But the politicians only argue back using the rights theme -- "Yes, you guys have rights to not endure expensive quarantining, but sorry, the public has a right not to be given a contagious disease."
Allott would want us to sit back and take charge of the whole human race's survival and flourishing. I am not here to speculate as to Allott's position on Covid, but speaking personally I say the truckers' issue is much bigger than their quarantine complaint. Recall the photo of the little girl in Canada whose sign said "The trucks are coming to save us." Who the hell is speaking out, in Parliament, for these children's right to live?
Citizen-Led Grand Juries
So who the hell is speaking out for them? Many people. Dr Vernon Coleman in London, whom the BBC has utterly banned, says "It's time to be terrified." Dr Sucharit Bhakdi in Germany says he is duly terrified. Myself, I'm terrified that people aren't terrified.
My lawsuit against mandatory vaccination, Maxwell v Secretary of Defense et al, has just been dismissed at the appeal level, in Boston, without benefit of clergy, so to speak. I mean without a hearing. Even that is terrifying. The judiciary should not evade its duty to hear what a well-informed litigant has to say on a purportedly urgent matter involving a threat of homicide.
One way to get past both the governmental blockage (the prosecutors) and the judicial blockage, is to hold a citizen-led Grand Jury, if crime is suspected. It would be perfectly legal to do this. There is nothing in the US Constitution to prevent it. In US v Williams (1992), writing for SCOTUS, Justice Scalia said:
"Unlike a court, whose jurisdiction is predicated upon a specific case or controversy, the grand jury "can investigate merely on suspicion that the law is being violated, or even because it wants assurance that it is not."
A grand jury is a body of citizens (they should be ones whose mind is open to all parts of the case), meeting to consider whether such-and-such a person should be indicted.
Reiner Feullmich and various experts on Covid have made a video in which they address a make-believe grand jury. They present a claim that the pandemic involved crime and name six persons and organizations. As far as I know, Feullmich will not be able to get governments to issue indictments. Still, all persons can listen to his "opening statement" (5 minutes), followed by witnesses presenting evidence (15 minutes). The video is entitled "Grand Jury, the Court of Public Opinion."
I end this article by bringing up my pet idea that humans are way too worried about getting embarrassed. They seem especially reluctant to "be caught" alleging that a government might be planning murder, even though Congress frequently authorizes money for such things. I don't find it embarrassing to quote Philip Allott's remark "There may even be no future for the human species."
Next time the checkout cashier asks if you want to give a dollar to rescue endangered species, think about that.
