The Incivility of Civil Disobedience: Part One

Civil disobedience is a familiar phrase these days what with the Occupy movement occupying public space and now University students protesting higher tuition rates. The term “Civil Disobedience” was coined by American author, writer, poet, naturalist and all around polymath Henry David Thoreau as the title of an essay originally published in 1849 as "Resistance to Civil Government." At the time, Thoreau was the voice of a country struggling with itself, both politically and morally. His was a voice of reason but also one of deep moral principle. In 1846, Thoreau was arrested and imprisoned for a failure to pay his poll taxes. Poll taxes were levied on all eligible voters as a prerequisite of voting and were the main means of raising funds for local governments. The poll tax, which anti-slavery abolitionists like Thoreau refused to pay, was levied to fund the Mexican War in a bid to extend American slave territories. The amount of the tax, even at that time a paltry $1.50, was viewed by Thoreau as too high a moral price to pay. Although his Aunt, against his wishes, paid the fee and Thoreau was released after only one night in jail, his essay on the experience remains today the first in a line of many personal actions of civil disobedience. I say “personal” as there was already an American example of group disobedience in the form of the famous Boston Tea Party, an act of disobedience heard across the ocean by King George III and the British Parliament.

Martin Luther King Jr., in another example of personal disobedience to the law, would also pen a famous piece of prose in the Letter from the Birmingham Jail. In this acerbic response to his critics, King tackles head on the moral and ethical issue of obeying “just” and “unjust” laws. To support his actions, King refers to St. Augustine’s position that an “unjust law is no law at all.” He also uses as a stark analogy the ultimate “unjust” laws of Nazi Germany. The letter became a touchstone for the civil rights movement and the idea that morally “unjust” laws should not and could not be followed became a permanent fixture in the American psyche.

Unsurprisingly, in Canada, acts of civil disobedience have been most pronounced in Aboriginal rights issues such as in the Burnt Church conflict involving the traditional fishing rights of the Mikmaq nation of Atlantic Canada. Another high profile case of civil disobedience was the Ipperwash Crisis and the police shooting death of Native activist, Dudley George.  Of course, more recently, the Occupy Movement is another example of collective disobedience. Canadians even have a “how-to” book for such practices with the Protestors’ Guide to the Law of Civil Disobedience in British Columbia. This document is easily accessible on-line and is written by Leo McGrady Q.C., a well-known BC lawyer specializing, on the union/employee side, in labour relations. No surprise, as BC has seen more than its share of civil unrest relating to teacher labour issues. Read my previous blog on the Legal Politics of Seussville for more on the issue.

With this little history lesson, my next posting will deal with the legal aspects of civil disobedience. How have the Courts reacted to this issue? Is the Charter engaged when acts of civil disobedience are stopped? And finally, what kind of legal defences are available when such acts become subject to the criminal courts?