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Howard Anglin: In our cashless society, we need to take digital jail seriously

Commentary

For most of history, we have thought about deprivation of liberty in quite literal terms. Short of execution, which Canada hasn’t done in 60 years, locking someone up has been the ultimate state sanction. That is why Pierre Trudeau’s use of the War Measures Act to arrest and jail nearly 500 suspected FLQ sympathizers during the October crisis is remembered as a low point in Canadian history for civil liberties.

Fifty years later, Justin Trudeau seems to have learned from his father’s experience. Tanks in the streets make people uneasy, and filling jails with people who have, at most, an attenuated connection to illegal activity is not a good look. A smidge authoritarian, a tad dictatorial. So, faced with a three-week street protest that clogged downtown Ottawa, Trudeau did not follow his father’s example and call in the army or round up ideological sympathizers. He opted, instead, for less visible tools.

But less visible doesn’t necessarily mean less severe. There’s more than one way to ruin someone’s life. In a Twitter thread that has been liked almost 32,000 times, the anonymous tweeter @punk6529 explained why, in a world of non-custodial money (money that can’t be stashed under your mattress or buried in your backyard), freezing someone’s financial resources effectively locks them out of society. His message is: don’t be fooled into thinking because a non-physical sanction happens somewhere in the unreality of cyberspace that the consequences are similarly virtual. They are very real and very severe.

The move to a cashless society, which has been accelerated by Covid restrictions, makes it almost impossible to function in society without a bank account and a credit card. You can’t purchase many services with cash anymore. When my local coffee shop’s wireless service went down the other day and they couldn’t process digital payments, I offered to pay with cash. They didn’t know what to do. Like many businesses, they simply aren’t set up to handle physical money. And that’s assuming you have large cash reserves to begin with, as you can’t withdraw money from a frozen bank account.

In 1988, when the Emergencies Act became law, you could probably still participate in society, albeit with some inconvenience, without a bank account. Not so in 2022. Now, without a working bank account, you can’t pay for a telephone or internet. You can’t make car payments, rent, or travel. You also can’t exercise most basic rights from freedom of speech to freedom of assembly. You can’t even pay a lawyer to defend you. Think of it as digital jail. There may be no bars, but you are far from free.

We need to adjust our assessment of government action to the realities of our new world. The government doesn’t need to break down your door anymore to effectively remove you from society. They can do it with the press of a button. Doing this to someone—a small business owner in BC, a public servant in Winnipeg, a student in Halifax—who made a small donation to support the convoy is a clear abuse of power. Doing it without due process is as despotic as Pierre Trudeau’s detention of left-wing professors and separatists without charge, trial, or access to legal counsel in 1970.

As during the October Crisis, the lack of legal safeguards on government action increases the likelihood of mistakes. Given that many of the people who donated to the convoy seem to have a less than perfect understanding of the law and of how their donations could be used, doing away with questions of mens rea (guilty intent) and normal burdens of proof means the government can freeze first and ask questions later. By then, it could be too late. A lawyer interviewed by the CBC opined that, in some cases, risk-averse banks “may just decide to shut the person’s account down” without bothering to sort the guilty from the innocent. The long-term consequences of such overreach would be worse than temporary incarceration.

The government’s action is troubling enough, but what should really disturb us is the ease and invisibility with which it is being done. When we can’t see the consequences of government conduct, the risks of government misconduct increases. A government that sends in riot troops to dispel a crowd will rightly pay a price if the police commit abuses. But the diffuse and anonymous nature of financial enforcement mean that sweeping repression can easily go undetected. It is the political equivalent of using drone strikes instead of boots on the ground.

It also drives home just how powerful technology has made governments and the businesses that gatekeep our digital world. When they work together—whether it is to financially de-platform fringe minorities or shut down disfavoured speech—there is literally no way to escape their reach, nowhere to hide. And when they act without due process, there is no way to defend yourself. The same technology that lets us buy dinner with a few clicks from bed also means the government can unperson us with a few clicks from an office in Ottawa.

The fact that weaponizing the financial system against nonviolent protestors and their distant supporters was the government’s tool of first resort should worry anyone who understands the role of civil disobedience in democracy. I would like to think Minister Steven Guilbeault, who was once arrested for scaling the CN Tower to hang a Greenpeace banner, lost a little sleep when he considered that disrupting critical infrastructure is still a common tactic of his environmentalist comrades. But somehow I doubt it. If there is one thing we haven’t seen much of in Ottawa recently, it’s principled consistency.

We don’t yet know how wide the government and the banks will cast their electronic dragnet, but the potential reach is enormous, which means the potential for overreach is significant. For now, all we have to go on are Chrystia Freeland’s statement that “Information is now being shared by law enforcement with Canada’s financial institutions. Financial service providers have already taken action based on that information” and news reports that the banks have begun to execute the government’s orders.

But one thing is already clear: in an interconnected digital world, our freedom depends more than ever on the wisdom, good intentions, and forbearance of government and big business. And that is a chilling thought.

Mark Mancini: Canada needs to rediscover its commitment to the rule of law

Commentary

With Prime Minister Justin Trudeau and his cabinet’s invocation of the Emergencies Act, we might think that Canada’s rule of law nightmare is finally over. The failures of the Ottawa Police and the intransigence of our politics will be solved with this law.

But the picture isn’t so nice. In fact, the very fact that we need to invoke the Emergencies Act—that it is even on the table—can be laid at the feet of our institutions, and their various failures to uphold the ideal of the rule of law. Even if the Emergencies Act can be properly invoked here — something about which I am not convinced — we are much worse off for its use. We have a rule of law problem in Canada, one related to our capacity to respect the law. The Emergencies Act won’t solve it, and this entire saga shows how deep our problems go, whatever happens with the Emergencies Act.

What does the “rule of law” mean, and why is the Emergencies Act just the tip of the iceberg? The rule of law isn’t just “law and order”— this is just rule by strongman. Instead, the rule of law refers primarily to constraining and guiding state power. On one hand, it’s a legal ideal, protected under our constitutional law, confining what police and others can and cannot do. But it’s also a societal ethic, something that cannot be reduced to paper. In other words, we all have an interest in limiting state power and ensuring consistency in the way laws are applied, because these limits protect all of us in the exercise of our rights and freedoms. If we cannot agree to be bound by rules in the first place, then the law can become just an instrument to punish our opponents, or worse. Our own history reveals how deeply these failures can affect those impacted, generations later.

Hypocrisy destroys the conditions required for the rule of law to flourish. And there was much of it on display. Whether this is a problem of incompetence or an ideological affiliation, no one can blame Ottawa citizens for viewing the Ottawa Police as wholly unable or unwilling to subject the freedom convoy to any laws when, time and again, they have actively assisted the protesters or turned a blind eye as they set up stages, DJ booths, and hot tubs. We are not used to seeing police hugging protesters — quite the opposite, in fact. Despite the province declaring a state of emergency, “protesters” continued their occupation of the downtown core. That the Ottawa Police just now are controlling the situation, even after the granting of an injunction, shows us the extent of the failure. Chief Sloly’s resignation, I fear, is not enough to restore confidence and neither is the Ottawa Police’s relatively professional clearing of the downtown area.

At the border in Windsor, the police similarly were unable to control the situation They eventually cleared the bridge. But this was far too little too late. Our American friends, directly and indirectly, seemed unable to understand how a supposedly serious country could let a blockade of an important economic route go unaddressed for the time it did. In fact, the police did not require a court injunction to allow them to enforce the law. And yet, as time ticked by, and as more goods and people were stopped from crossing the border, the police did nothing.

The police can only be partially blamed. The rule of law lives and dies to the extent the Canadian people guard it, and our leaders internalize it. It should be no surprise that politicians like Pierre Poilievre, when faced with the prospects of Indigenous blockades, waxed poetic about the rule of law. But when the time came to face down the trucker blockades, he instead waxed poetic about the cause of the blockades. Alberta’s Critical Infrastructure Defence Act, hastily passed in response to the 2020 Indigenous blockades, was not deployed at the Coutts blockade. Maybe this law was not necessary in the first place, but the double standard reduces confidence in the law. All of this — in a rule of law society — is not what we should expect of leadership.

The problems run deeper in our politics. We seem unable to disentangle our own potentially valuable political goals from the ideal rules that will apply to all of us, even our mortal enemies. A profound disrespect for the law and rights of others manifested itself in the rash of church burnings across the country over the summer. It does not take imagination to think that many who may now be calling for the enforcement of the law were not doing so when these churches were burned down. In fact, one prominent observer said these arsons were “understandable.” Another, in elation, exclaimed “burn it all down.” And then, in 2020, “solidarity” protesters against the Coastal GasLink Pipeline burned an injunction against them, and blockaded key rail routes that transport important goods.

We seemed to have reached a point where protest is a carte blanche, hypocrisy is the boring norm, and the rule of law is rhetoric. The Emergencies Act is an unjustified last-stop resort, but its remedies should not have been on the table in this situation. The legacy of this period will be a tension at the heart of how our laws should be enforced, especially in cases where deeply disturbing or undesirable conduct might be at play. We all can and should condemn the worst aspects of the Freedom Convoy — the images speak for themselves. And we should seriously think about what it means for our political process to see Nazi flags at any protest, in whatever number. But disputes about the proper scope of protests and blockades are just ramping up, and we need to think seriously about the kind of legal culture we wish to inculcate in response.

Whatever the current level of disrespect for the rule of law, being without it is something no Canadian should entertain. Those who wish to weaponize the law against their supposed cultural enemies will undoubtedly respond that the law should attack bad protests and support good ones. We can imagine those on the right and left saying this exact thing. But it is difficult to trust a state apparatus like the police in Ottawa that seemed to fundamentally lack the capacity to make these fraught decisions.

Where do we go from here? People say the rule of law is “neutral,” but in reality, it is radical. Binding the powers-that-be is a deliberate choice that prevents us from requiring drastic emergency measures. It is not an automatic feature of our society. Without the rule of law, and a commitment to it, there are no limits to what police and others can do in service of their own political preferences. No one — not even those who want to own their political opponents — will like the end result, when the protest is about a cause they may prefer. Re-discovering a commitment to the rule of law should be on the top of our priority list.