JUSTICE DONE

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.