Who will watch the watchmen?

By Beryl Wajsman on November 26, 2017

"The means are all important. The means by which a society finds guilt or innocence is what determines whether it has a place at the table of civilized nations." ~ Justice William O. Douglas

When UPAC was created, there were many who warned that setting up another level of policing - with extraordinary powers - was inconsistent with due process of law and could pose a threat to basic liberties. UPAC's arrest without charge of former senior SQ officer and now Laval MNA Guy Ouellette may have finally woken up those in power to the dangers of such a body.

Assembly Speaker Jacques Chagnon rose to give an extraordinary statement criticizing UPAC and saying in part that UPAC's action demonstrated, "...ignorance of our institutions, and in particular of parliament, which is at the very heart of the democratic governance of our State." Chagnon was addressing the specific issue of the privilege of members of the Assembly and underlining that any action against sitting members must be taken with the informed consent and oversight of the Speaker, one of whose roles is the protection of the Assembly and its members. This is all part of our system of the rule of law. And we would suggest that the same care be taken in respect of the rights of all citizens.

Arrest and detention without charge are the tools of tyranny not democracy. One of the fundamental principles of our law is that the law itself will not be used as a weapon. Some veteran observers believe that UPAC's actions against Ouellette were carried out for nothing more than purposes of intimidation.

UPAC's explanation is that it needed to stop leaks to the media of information about some of its investigations. UPAC wanted to gain access to Ouellette's Assembly cellphone and his tablet computer. But questions abound as to why Ouellette? And some of the answers are troubling indeed.

Guy Ouellette was not only a decorated SQ officer, he is one of the hardest-working and well-respected MNAs. One of his duties is chairing the Assembly Committee on Institutions. That committee was in the midst of examining UPAC's request for more powers and status. Some termed UPAC's request as wanting to become a third police force over local forces and the SQ. It was well-known that Guy Ouellette was opposed to the expansion of UPAC's powers. And here lays the crux of the problem.

When Premier Charest created UPAC it was at a time of many claims of alleged corruption in public bodies. There were calls for an independent inquiry and independent investigators to determine if - and to what extent - corruption existed. The Charbonneau Commission and UPAC were established. But while the Charbonneau Commission had a start and end date (the latter extended several times,) UPAC and its investigators have simply continued. A free society must fix problems in its institutions from within when they arise. It should never simply create another bureaucracy operating outside the norms. Indeed, that was a noted criticism of the Charbonneau Commission itself.

Institutional corruption of the rule of law is arguably more harmful to the public good than any monetary corruption of public officials. The latter passes. The former stays in place. These commissions and extra-legal agencies are supposedly created to protect our liberties. Yet the only real protection of liberty is respect for due process and the rule of law. We have laws. We have police. We have courts and judges. Let us do the necessary work within the frameworks governed by our Charter Rights protections. And if public hearings are warranted, that should be the role of our accountable, elected officials. Not of judicial commissioners and rapidly minted new investigative agencies operating in obscure quasi-Star Chamber manners. 

watchers.jpgIn his remarks Speaker Chagnon decried the damage to Mr. Ouellette's reputation caused by UPAC's actions. We would suggest that in today's Quebec of accepted anonymous denunciations of citizens to all public agencies and secret early morning raids this warning should be paramount in reforming our entire bureaucracy and that the reputations of all citizens be held as sacrosanct as those of our parliamentarians. UPAC commissioner Robert Lafrenière said his organization respects “democracy, its representatives and institutions, including the National Assembly of Quebec," but admitted that, “Urgency to act can certainly influence certain decisions in an investigation strategy, but this urgency can never justify an action that breaks the rule of law." Unjustified indeed. And even if we give Mr. Lafrenière full credit for good faith, the reality is that unbridled extraordinary authority - particularly security authority - will always compromise the rule of law in the end.

Respect for individual privacy as guaranteed by our Charters. Presumption of innocence. Attorney-client privilege. Guilt beyond a reasonable doubt. Freedom of the press as the fourth estate of government. Confidentiality of journalists' sources. Pretty straight forward stuff. Any tenth-grader in a civics class gets these. So why is it that these fundamental principles have been breached so often in the past half-decade in Quebec?  Because our elected officials have chosen to pander to the gratuitous cannibalism of the mob Instead of protecting the foundational principles of our freedoms. Benjamin Franklin warned several centuries ago that, "Those who would trade permanent liberty for temporary security shall in the end have neither liberty nor security."

It is a threat as old as the ages. And seemingly only after harm has been done do we answer the question of Juvenal posed in the second century of our Common Era, "Quis custodiet ipsos custodes?" Who watches the watchmen? The answer, in the end, is always the same. We the people do, because we must.



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Beryl P. Wajsman

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