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Civil disobedience.

Civil Disobedience can be a powerful tool in the hands of the dispossessed and the ignored, as has been demonstrated over the last 100 years in a number of different situations. At the same time, we must be careful not to mistake for civil disobedience what is actually all too often these days, rather uncivil disobedience, in the forms of riots and looting and other forms of criminal conduct that sometimes takes place in the course of large-scale protests and demonstrations that get out of hand. Furthermore, civil disobedience -- which is more of a political concept and philosophy than a legal principle -- is not a defence if one's actions result in a breach of the law. Thus, to understand the true nature of civil disobedience -- and when and how it has been used successfully -- we must also understand what it is not.

The modern fathers of civil disobedience as a method of political expression and change are, of course, Mahatma Ghandi and Martin Luther King Jr. During the 1920s, 1930s, and 1940s, Ghandi was able to motivate and lead massive numbers of Indians to independence by employing civil disobedience in an effort to apply pressure upon Great Britain to leave the Indian sub-continent and allow the peoples of that region to rule themselves. Drawing upon the example set and lessons taught by Ghandi, Martin Luther King, in the 1950s and 1960s, convinced hundreds and thousands of black Americans to peacefully agitate towards full legal and political equality in the United States. Both men -- and their followers -- faced police and military might and ruthlessness, and both suffered imprisonment, and worse, for their efforts. Both Ghandi and King, and their followers and supporters, endured tremendous brutality and degradation, but instead of responding in kind, they reacted peacefully, offering themselves as living sacrifices for the causes in which they believed. Rather than supporting armed struggles to achieve their goals, they peacefully broke laws that they considered to be unjust; they organized silent and peaceful protests such as sit-ins and strikes; and they agitated and worked with legislators and government officials willing to support their movements and aims as just and proper in the longer run.

Unfortunately, their efforts and success have been difficult to duplicate. These days, what often begin as peaceful protests -- in Seattle, Milan, and Quebec City over the last few years, for example -- all too frequently turn into public rioting and looting by persons who are either not interested in achieving true political change, or who are not disciplined enough to withstand the frustration and anger which comes with being ignored -- and sometimes set upon and attacked by the very governments they seek to challenge. The results are that the public in general tends to remember the violent clashes outside the meetings and forget what was going on within the conference centers and why the demonstrations began in the first place.

In a democracy such as Canada, the concept of civil disobedience can present a difficult puzzle for the courts. Individuals brought before the courts for having broken laws -- even when they have done so peacefully -- present a challenge to the most basic of all legal principles in a democracy: the Rule of Law. The Rule of Law means that all persons -- no matter what their station in life and no matter what ideals might have motivated their actions and conduct -- are bound to obey and follow the same laws, or face the consequences. Thus, those who break the law cannot use civil disobcdience as an excuse (indeed, King and Ghandi did quite the opposite and often suggested to the courts before which they were brought for their actions, that they should suffer the most severe punishment possible). To take any other approach would fly in the face of basic rules by which we all must live and get along: that none of us has the right to decide which laws we will obey or to expect impunity if we violate or break those laws on purpose.

In Canada, most of the recent cases involving civil disobedience seem to have arisen in British Columbia and most involve environmental and anti-logging protests (other cases that have given rise to court decisions addressing the issues of civil disobedience have included abortion disputes, native rights, labour disruptions and strikes, and occasionally, drug charges and prosecutions). Because of the time and costs involved in prosecutions under the Criminal Code, the British Columbia Attorney General's department has adopted a policy of usually leaving such matters in the hands of the private parties (usually the forestry companies) to pursue by way of their civil law remedies. Those who feel their rights are being infringed by protesters (logging companies, abortion clinics, and others) may seek injunctions from the courts to prevent or stop the disruptions, and if those orders are not obeyed, may seek to have the demonstrators declared to be in contempt of court and punished accordingly. Only where the actions of the demonstrators are criminal in nature (usually involving violence against other persons, including the police, or property damage), or where the contempt of court is serious enough to risk bringing the administration of justice into disrepute or public ridicule, will the Attorney General become involved and prosecute the matters as criminal offences, or as criminal contempt of court.

The judges before whom such matters have proceeded have usually taken account of the motivations of the protestors in determining the appropriate sentence to be imposed. As at least one judge has pointed out, however, the fact that the accused were engaged in civil disobedience can be both a mitigating and an aggravating factor. It can reduce the seriousness of the offence if the court is convinced that the individual(s) were truly motivated by pure and laudable objectives, but it can also aggravate the situation, especially if the individual(s) in question have been brought before the courts for the same reason in the past. Even while they might personally approve of the goals of the protestors, judges too must act according to the law, or they risk chaos and lawlessness on a broad scale.

In a very real sense, the courts too become something of pawns in the overall struggle to change the law, if the true principles of civil disobedience are followed. Those who seek to emulate Ghandi and King do not seek to mitigate their own conduct or to avoid punishment, but rather, invite the court to do what it considers appropriate under the law being challenged. Change is not sought or achieved merely by disobeying the law, but rather, by forcing those who have passed the laws to see the injustice which results from their enactment and enforcement. Civil disobedience is only likely to succeed where the actions and punishment of those concerned receive sufficient publicity, and have sufficient public support, to ultimately shame the legislators into repealing or changing the laws in question.

The Case of the Disobedient Granny:

The case of Betty Krawcyk illustrates some of the issues that arise for both the courts and those who believe civil disobedience is an appropriate approach to bringing change.

Now 74, Krawcyk has been an energetic defender of the environment for years. In 1993, she was one of the over 750 people arrested for blockading the road into Clayoquot Sound to prevent clear cutting. In 1999, when Interfor moved into the Elaho valley, she again protested. For her participation in the Elaho blockade, Krawcyk was convicted of criminal contempt and sentenced to one year in prison.

Krawcyk stated her reasons -- and the case for civil disobedience -- at her trial: "... I hear so often from friends and people who love me, `Why do you do this, you know? It's not called for. Let things work out as it will,' but if everybody did that, the society would never evolve ... I know the difference between lawlessness and responsibility, and the only way things ever change is through responsibility and the willingness to take on the consequences ...

"About sentencing, ... I can only say that I am responsible for my own actions. The devil didn't make me blockade Interfor logging trucks and God didn't tell me to do it either ... I told me to do it.

"In my opinion, my attempt to try to help stop Interfor's rapid destruction of the Elaho Valley by standing in front of the logging trucks was not an evil, criminal, crazy thing to do. In my scheme of things, it was an eminently sane thing to do. I believe it to be crazy and insane to stand by mutely while our collective life support systems are being destroyed."

The trial judge stated the court's position on such civil disobedience clearly:

"What can I say about Betty Krawcyk? She at least has the courage of her convictions. She has never wavered from her open intention to force on others the task of arresting her and putting her in jail. Her goal in ensuring this end is to use her appearance, her age and her willingness to speak out as a vehicle to obtain media and public expression. She openly advocates public defiance of the law and the orders, and asserts the goals in which she believes."

He quoted from United Nurses of Alberta v. Alberta (Attorney General), decided in 1992 by the Supreme Court:

"What the courts have fastened on in this and other cases where criminal contempt has been found is the concept of public defiance that `transcends the limits of any dispute between particular litigants and constitutes an affront to the administration of justice as a whole' (B.C.G.E.U. v. British Columbia). The gravamen of the offence is not actual or threatened injury to persons or property; other offences deal with those evils. The gravamen of the offence is rather the open, continuous and flagrant violation of a court order without regard for the effect that may have on the respect accorded to edicts of the court."

Thus are the two positions set out. Are there tangible results for either position?

Krawcyk appealed the one year sentence and the trial judge's direction that she must serve every day of it. On appeal, the BC Court of Appeal reduced the sentence to four months writing that "this sentence violates the principle of proportionality and is demonstrably unfit."

As a result of the Clayoquot protests and years of negotiations between governments, the forestry industry, environmentalists, and First Nations, great change has come to logging practices in Clayoquot Sound, and some change has come to BC forestry practices overall. Logging in the Elaho Valley remains an open question.

Has respect for the law and administration of justice been maintained by the conviction and sentencing for criminal contempt of Betty Krawcyk and her fellow protestors? That too remains an open question.
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Author:Davison, Charles B.
Publication:LawNow
Date:Apr 1, 2002
Words:1802
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