Desensitizing the System... How To Inoculate The Courts Against Anti-Government Lawsuits

(SASKATCHEWAN) - The difference between the American and Canadian governments in their treatment of indigenous people is – as Helen Keller might have said – the difference between tweedle-dee and tweedle-dum. There are subtle differences, which perhaps only a Philadelphia lawyer (or the variety out of Osgoode Hall) could detect, but they share the central characteristics of hypocrisy and denial.

In America, what passes for aboriginal law is based on the shifting sands of something called the Doctrine of Discovery, that 15th Century anachronism invented by the Roman Catholic Church as an international profit center, and practiced by the five leading European empires that overwhelmed the Hemisphere.

Everyone from Supreme Court justices to Hollywood cowboys pretends that this isn't so, and actually, there is nothing in the incessantly-quoted Constitution to justify or even mention the nation's plenary power over native people. There is merely a reference in the Constitution to the necessity of negotiation. And yet American legal history for 300 years has been drenched in case law and precedent – including rulings by the Supreme Court* – referring to and substantiating the central assumption that the white, superior race has precedence in any question of land, rights or a thing called justice.

In Canada, on the other hand, there is perhaps less hypocrisy and more denial. In a word, they make no bones about how to treat Indians (pun intended. The bones, I mean.). The Indian Act, a medieval colonial law is still in force and the Prime Minister, Stephen Harper, on an international stage (G20) has recently made the unusual and contradictory pair of statements: (1) “Canada has no colonial history,” and (2) “there is no need to amend the Indian Act.”

Nevertheless, when one gets right down to the nitty-gritty of court procedure, the American legal system gets the nod as far as the hypocrisy-quotient (HQ) is concerned. Because here at least, progress has been made and lawsuits are going forward in various states as we speak, against the government, against religious organizations such as the Jesuits, and even against the Vatican itself. The jury, in any event, is still out (literally) over whether that heavily bankrolled institution is or isn't immune from prosecution or even arraignment for money-laundering, child-rape or genocide.

The reason, by the way, that we lump religious organizations such as the Holy See (Holy see, Holy do) in with the government, is that historically and in practical terms, there is no difference. No fewer than 178 world governments (including, no surprise, Canada and the United States, prominent right there in the front pew) are currently not only allowing the Vatican and other holy institutions tax-free status, but have currently existing concordats with Rome, which means that a percentage of GDP is shoveled annually into the Church for “pious and religious purposes.”

And as far as the immunity thing is concerned, the Vatican is recognized by one and all as a separate city state, and therefore has all manner of diplomatic immunity. This is incontestable, as far as most world governments are concerned, because in 1929 the Vatican was declared to be a separate state. Guess who declared it? Benito Mussolini, as part of an undisclosed deal. You member Mussolini – he was imprisoned, shot and hung up by his heels by his admiring countrymen. How can you get a better sponsor than that?

In Canada, the colonial legal system is something else. Here again, most Canadians naively think that we dumped the monarchy and all that royalty stuff along about the time the British High Command decided to send Canadian troops into the suicide mission known as Dieppe. Actually, we still fondly believe that those royal trappings are just sentimental symbolism that we take out and dust off on Victoria's Birthday, or when we let the Governor General (assistant queen) cut a ribbon opening a bridge or an amusement park.

Tell that to somebody who has ever contested a land claim against “the Crown,” or attempted to find a lawyer in order to sue the government. In fact, every judge, lawyer and law clerk in Canada is something called “an officer of the Crown,” and is therefore universally enjoined to do what the Court tells him to do and otherwise sit down and shut up. Although my knowledge is that of a layman and sketchy, I've heard of two Canadian lawyers who have tried to buck the system. One – a native lawyer, as it turns out, is currently an ambulance chaser somewhere in darkest Vermont. The other is flipping hamburgers in remote British Columbia.

Which brings us to our text for today. How does the Government insure that the court system stays on its toes and avoids the remote possibility of some honest judge lapsing briefly and allowing some miscreant to bring a suit against any of the untouchables – i.e., the government itself, or the churches, especially the United Church of Canada, the Anglican church (Episcopalian) and of course, big Daddy, the Vatican?

The latest wrinkle, the latest sort of inoculation, which is almost subliminal, is what I described in the title and subtitle above – a desensitization process akin to vaccination in the medical world. It works like this, or rather, this is my theory: if you allow a lawsuit or class action to enter the preliminary stages, and then arrange for it to be removed by inaction, pay-off or simply squashing it, the effect is to harden the system against any future credibility, by demonstrating that such feeble efforts are lacking in any merit or legitimacy. They are spurious. Courts everywhere reject amateur actions on a daily basis as having no merit.

For example, let's take an entirely fictitious example. Let's say there was - recently - a group of indigenous people in Canada, accompanied by a white man (purely fictional, of course, but let's call him "K") and a growing following of other people, both native and white, who bring a lawsuit against all of the above churches, government, good-guy Mounties, and even honest mainstream newspapers - and that proves my point that this is imaginary. Perhaps – again, purely imaginary – the government enlists the support of a group with a slight experience in success in a suit against somebody bigger than them, in aligning with the litigant group and helping them launch their lawsuit. Before the federal court takes any action, the government moves in, pays off the “prosecuting group,” leaving the litigants high and dry.

Just like an inoculation. The court system remains even firmer in its predisposition to ignore any future lawsuits other than those posed by our sort of chaps.

I'm not sure this kind of thing goes on. As I say, this is just fictitious doodling. If it doesn't go on, I hereby offer the suggestion to the Canadian government as a sound means of continuing our colonial tradition. On the other hand, if it does exist, I wouldn't doubt it. And as far as credibility or otherwise is concerned, I have three or four hundred years of Canadian history on my side. Because my ancestors were part of it.

Bill Annett grew up a writing brat; his father, Ross Annett, at a time when Scott Fitzgerald and P.G. Wodehouse were regular contributors, wrote the longest series of short stories in the Saturday Evening Post's history, with the sole exception of the unsinkable Tugboat Annie.

At 18, Bill's first short story was included in the anthology “Canadian Short Stories.” Alarmed, his father enrolled Bill in law school in Manitoba to ensure his going straight. For a time, it worked, although Bill did an arabesque into an English major, followed, logically, by corporation finance, investment banking and business administration at NYU and the Wharton School. He added G.I. education in the Army's CID at Fort Dix, New Jersey during the Korean altercation.

He also contributed to The American Banker and Venture in New York, INC. in Boston, the International Mining Journal in London, Hong Kong Business, Financial Times and Financial Post in Toronto.

Bill has written six books, including a page-turner on mutual funds, a send-up on the securities industry, three corporate histories and a novel, the latter no doubt inspired by his current occupation in Daytona Beach as a law-abiding beach comber.