My law: the end of law

What if there are no more rules?

What if there are no more laws? No more precedents, no more constitutions, no more charters?

What if the law just becomes what people in power say it is?

That – along with the obvious implications for American women – is one of the most dangerous consequences of the US Supreme Court’s decision to toss out Roe v. Wade last week. For half a century, Roe v. Wade has permitted American women to legally obtain safe abortions.

And now that’s gone. A decision that had had the effect of a constitutional proclamation – that is, untouchable in law – was tossed out. Tossed out by three unelected, unaccountable partisan judges who had lied about “stare decisis.”

“Stare decisis” is a legal doctrine. It’s Latin, and it basically means “to stand by things decided.“ Stare decisis is the immutable legal rule that courts will stick to established precedent when making decisions.

Last week, the Supreme Court of the United States of America tossed stare decesis in a dumpster. They threw out the principle that holds together the law, and democracy, too. And that is very, very ominous.

The law comes from statute, passed by legislatures. But the law also comes from wise decisions made by judges in court rooms. Some of those decisions can be centuries-old, but still stand today.

In the United Kingdom, for example, there is Bushel’s Case, from 1670, which prohibits a judge from trying to coerce a jury plot convict.

There’s Entick v. Carrington, in 1765, which imposed limits on the power of Kings and Queens.

There’s the Carlill case, in 1893, that established the rules for creating contracts.

In the US, there’s been cases like that, too. The 1914 Weeks case, which said a person can’t be prosecuted with evidence obtained illegally. Or Brown v. Mississippi, in 1936, which said that confessions cannot be obtained through police violence.

In Canada, we’ve had no shortage of landmark legal decisions as well. Hunter v. Southam, in 1984, which threw out evidence when the authorities rampages through media newsrooms to find evidence.

Or R. v. Sparrow, in 1990, which held that Indigenous people had rights. Or the Feeney case, in 1997, which determined that the police can’t enter your house without a warrant.

It’s hard to imagine all of those rules being tossed out on the whim of some partisan hack. But that is what happens when unelected, unaccountable judges are given unlimited power, and an unhinged view of the law: they can change society with the stroke of a pen. And there’s not a damn thing you can do about it.

There are many, of course, who are happy that the US Supreme Court ended abortion rights for American women last week. They feel that they won, and they arguably did.

But if “stare decisis” no longer exist, how will conservatives feel if this or a future Democratic president decides to stack the high court with his or her own partisans? What if that future court allows the authorities to seize private property without compensation, or take away gun rights, or declares pedophilia a legitimate form of sexual expression?

The loss of stare decisis cuts both ways, you see. If courts no longer feel bound by well-reasoned, long-accepted legal precedents, the law will become a joke. It will become only what those with power says it is. It will become an abomination.

And make no mistake: the US high court, no longer bound by precedent, has signaled it is going after gay marriage and equality rights next. When there are no more rules, the rules only become what the powerful say they should be.

The Americans are adrift in dark, dark waters, and God knows where they will end up.

We should not follow their lead.

[Kinsella has been an adjunct professor at the University of Calgary’s Faculty of Law.]


The law is what they say it is


My latest: what if I’m wrong about PPC Pierre?

So, Pierre Poilievre.

This space has been somewhat critical of him, you might say. Just a bit.

His peddling of World Economic Forum conspiracy theories. His pimping for Bitcoin, which is in a freefall. His unprecedented libels targeting his Conservative Party leadership opponents. His deranged winged monkey supporters, who are just as bad as the #TruAnon cult.

And, of course, his unholy alliance with anti-vax, anti-science convoy lawbreakers.

All of that rankles. All of that is maddening. Why? Because Justin Trudeau is the worst prime minister in a generation, that’s why. Because, if we are to be rid of the serial arrogance and the casual corruption of the Trudeau regime, only the Conservative Party can defeat him.

The New Democrats can’t, and won’t. They are in an Axis of Weasels (TM), coalition government with Trudeau. If anyone is going to do it, it is the Conservatives.

But the Conservative grassroots seems intent on electing Poilievre as their leader — a leader who, in a general election, seems unelectable. Who is against everything, and for nothing, and will arguably turn voters off in droves. Who is inarguably a bit of a jerk.

But. But, but, but. If I learned one thing in law school, it is always to ask one question: What if I’m wrong?

What if Poilievre can defy conventional wisdom, and win the country? What if his negatives can be transformed into positives?

Let’s look at the top five.

1. The economy. Poilievre has appalled official Ottawa — and bewildered Bay Street — with his attacks on the Bank of Canada, and his promotion of cryptocurrencies like Bitcoin. He’s been ridiculed for both. But what if Poilievre is onto something? What if the Bank of Canada’s rate hikes and fiscal policies push the country into a deep recession? That doesn’t seem impossible, now. If and when that happens, Poilievre will look like a prophet, not a kook.

2. Trump-style politics. This writer worked for Hillary Clinton in three different states in 2016. Along with everyone else on that campaign — along with everybody inside the beltway in Washington — I thought it was impossible that a foul-mouthed, perpetually angry adolescent like Donald Trump could be elected president. Um, no. Poilievre has adopted the same style of comms — always angry, always negative. A lot of us thought that approach would never work for Trump. (Well, it did.) When voters are angry, being an angry candidate is not such a bad idea.

3. Wacky policy. Take my word for it: The Liberal Party War Room has been positively salivating at the prospect of facing off against Poilievre, and forcing him to defend the assorted conspiracy theories with which he has become associated. That’s until Abacus Data, an extremely Liberal-friendly polling firm, came up with some survey results a few days ago that shocked everyone: “Millions believe in conspiracy theories in Canada.” Wrote Abacus: “44% (the equivalent of 13 million adults) believe ‘big events like wars, recessions and the outcomes of elections are controlled by small groups of people working in secret against us’…” And: “37% (or 11 million) think ‘there is a group of people in this country who are trying to replace native-born Canadians with immigrants who agree with their political views’…” That’s ugly stuff, and it’s crazy. But it would appear Poilievre — as cynical as it is — may know exactly what he’s doing.

4. A divided house. Patrick Brown, who has run an impressive and underestimated campaign, has said that he would not serve in a Poilievre-led caucus. Jean Charest is highly likely to do likewise. Poilievre’s my-way-or-the-doorway approach is unusual (and always self-defeating) in Canadian politics. But what if Poilievre is right — and Right? What if “Red Toryism” is finally an oxymoron, and a new Conservative Party is needed?

5. Governments defeat themselves. Justin Trudeau beat Stephen Harper in 2015. He beat Andrew Scheer in 2019. He beat Erin O’Toole in 2021. With each election, his share of the popular vote has grown ever-smaller. Trudeau is now more of a liability to the Liberal Party than an asset. And there is no obvious successor waiting in the wings. What if Poilievre simply needs to maintain a pulse, and let the Liberals finally defeat themselves? It’s not a crazy strategy.

There you go: Five reasons why Pierre Poilievre may be on the right track. Five so-called negatives that may in fact be positive.

I still think he’s the wrong choice. I still think he’s wrong for the country.

But what if — just if — I’m wrong?

— Warren Kinsella ran Jean Chretien and Dalton McGuinty’s winning war rooms