The courts cannot be democracy’s last, best hope

David Moscrop is a writer and political commentator. He is the author of Too Dumb for Democracy and a Substack newsletter.

For years, experts have warned that democracy is in retreat. Facing the rise of toxic authoritarian populists and right-wing extremism, as well as declining trust in our institutions, self-government seems like it’s up against the wall. The existential threats of climate change, geopolitical conflict, and various crises – from housing to healthcare – have only made things worse.

Fortunately, democracy is a system that has backstops to defend itself. It is comprised of many rules, practices, norms, and institutions that include elections, legislatures, commissions, officers of Parliament, protests, and the courts.

We’re seeing one backstop at work here in Canada. Chris Barber and Tamara Lich are currently on trial, fighting charges related to their alleged roles in the 2022 convoy occupation of Ottawa. The proceedings opened with Crown prosecutor Tim Radcliffe arguing that the court case was “not about their political views,” but about “the means they employed.” Indeed, it’s one thing to oppose COVID-19 measures and protest them; it would be another altogether to lead an occupation that shuts down a city for an extended time and terrorizes its residents.

Mr. Radcliffe’s point is this: The charges faced by Ms. Lich and Mr. Barber absolutely stem from actions fuelled by their political views; the trials are political, insofar as they relate to actions which affect self-government, were aimed at shaping democracy itself, and emerged from political decisions. But the trials are perfectly consistent with the rule of law, as they are focused on actions, not beliefs.

The actions of the participants of the Jan. 6, 2021 riot in Washington also stemmed from political grievance, though the two events are not the same. Yes, convoy participants in Canada did try to “overthrow the government,” in the words of national security and intelligence advisor Jody Thomas, and that certainly tracks with reports that occupiers demanded a meeting with the governor general in pursuit of a “coalition” with opposition parties. But as odious and absurd as that may have been, storming the U.S. Capitol building is on another level.

Still, in both cases, it feels like the justice system is the best democratic backstop we have. Former president Donald Trump faces 91 felony counts across four trials, including conspiracy charges related to his efforts to overturn the results of the 2020 election. Earlier this week, former Proud Boys leader Enrique Tarrio was sentenced to 22 years in prison for his part in the Capitol attack; three other members of the group were also convicted of the same.

Through it all, as Mr. Radcliffe has set out, the rule of law has remained the guiding light. The Jan. 6 defendants, for instance, were perfectly free to avail themselves of their country’s law and its protections, and they did. So too did Ms. Lich and Mr. Barber. That is to be welcomed. Democratic self-government only works when it is backed by the rule of law, and the rule of law only works when it is applied equally to all, regardless of their political beliefs.

The problem is that it can feel like the justice system is the only remaining democratic backstop – the only part that can process and reconcile politically driven actions that upset democratic norms or even threaten democracy itself. It feels that some politicians have lost touch with people, particularly the forgotten and marginalized, whose ensuing anger may take forms that are productive or toxic. Of course, some politicians work to generate more grievance, only to use the popular anger they’ve whipped up for their own ends, leaving people high and dry – but the political functions in our democratic systems appear to be delivering fewer and fewer consequences for such actors. It may feel, too, that law enforcement is failing to protect the common good.

But ultimately, the people are the final backstop in a democracy. Through our representatives, and sometimes directly, we set the rules. However, in our democracy, we have increasingly left members of a small political class to their own devices, allowing them to decide the rules for us, with little recourse left for a course correction beyond elections – and, in some cases, court proceedings.

Democracy only works when its many elements co-exist in a mixed state of harmony and productive antagonism: sometimes cooperating, sometimes checking, sometimes balancing, sometimes speeding up or slowing down one another. The January 6 attacks, the Ottawa occupation, and the subsequent trials of their alleged leaders remind us that we ought to build a more inclusive, egalitarian, participatory, and healthy democracy that elevates the people, and is better built to forestall extreme, desperate and misguided measures that lead to attacks and occupation. Because while the justice system is a democratic backstop, its best moments are the moments when it’s not needed.