For several months now civil libertarians in Canada have been – rightly – concerned about Bill C-51, the anti-terrorism legislation introduced after the shootings in Ottawa last October, which passed its final reading in the House of Commons earlier this month and is now before the Senate. The primary concerns are that the bill defines terrorism so loosely that it could be used against legitimate dissenters and that the information collecting powers it gives to CSIS threatens the privacy of Canadians.
This is not the first time the threat of terrorism has been used as an excuse to pass legislation unnecessarily expanding the powers of government. Jean Chretien’s Liberals passed anti-terrorism legislation in the fall of 2001, similar to the USA PATRIOT Act and, like the American bill, a response to the September 11th terrorist attack against the United States. Predictably, the legislation was abused. Rather than being used to stop jihadists bent on murder, mayhem, and torture from harming Canadians it was used by our authorities to throw an elderly man, Ernst Zündel, who lived in Canada for decades without ever being a threat to anyone (although he himself had his home bombed by terrorists) into a 6 x 10 cell in which the lights were constantly on, where he was kept while an obviously biased judge was presented with “evidence” to which he and his lawyer were denied access maintaining that he was a threat to national security, which resulted in him being deported to a country where he faced, as our government was well aware, arrest, conviction, and a stiff prison sentence merely for uttering his controversial views. This, of course, violated all sorts of rights, liberties, and constitutional protections that have long been traditional in Canada and all other countries under the Crown.
The Chretien anti-terrorism legislation was actually a greater violation of our traditional rights and freedoms than Bill C-51 is. I say this, not to dismiss or play down concerns over Bill C-51 or to make excuses for the present government, but to make an important point about a flaw in the way opponents of Bill C-51 have been framing their arguments. The bill, we are told by serious civil libertarians, from whose number we will exclude the tinfoil hat crazies who see the bill as a plot against Indians, environmentalists, and non-jihadist Muslims, endangers the rights and freedoms guaranteed by the Charter. Thus the whole issue is framed as a conflict between two documents, a good document, the Charter of Rights and Freedoms which guarantees and protects our liberties, and a bad documents, Bill C-51 which threatens them. The problem with that structure is that while Bill C-51 is certainly a threat, the Charter of Rights and Freedoms is no solid ground for its opponents to stand on. The Chretien anti-terrorism legislation did violence to the traditional rights and freedoms of Canadians without violating the Charter of Rights and Freedoms.
That so many Canadians think that the Charter of Rights and Freedoms, which was passed as part of the Constitution Act of 1982 that repatriated the British North America Act, either gave us or secured to us our basic rights and freedoms, indicates just how badly our educational system has failed us. The Charter’s second section identifies as “fundamental freedoms” belonging to “everyone” the following:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
Canadians did not have to wait for the Trudeau Liberals to introduce the Charter in 1982 to possess these freedoms. Freedom of religion, not in the modern liberal sense of “the separation of church of state”, but in the sense of Roman Catholics being allowed to practice Roman Catholicism, Protestants being allowed to practice Protestantism, and so on, without persecution and interference, has long been part of the tradition upon which our country is built. Nor did the Charter make these freedoms any more secure.
Consider the “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. It was two years after the Charter was introduced that Ernst Zündel was first put on trial for publishing a pamphlet maintaining that significantly less than six million Jews died at the hands of the Nazis and that the Third Reich had no designs to physically exterminate European Jewry. He was put through two public trials over this, then was investigated by the Canadian Human Rights Commission for expressing the same views on the internet (an “other medium of communication”).
The agency that conducted this latter, much more secretive and less public, investigation was created in 1977 by the same government that gave us the Charter. The Act which created the CHRC is itself a major violation of the fourth of these fundamental freedoms, which bestows upon certain people because of their “race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered”, a right to not be discriminated against by others, which is a phony right because it places burdens upon other people other than a) those which arise naturally out of their relationships with the rights-bearers, b) those they have voluntarily contracted to or c) the basic duty to leave the rights-bearer to be in peace.
The fourth time our government went after Zündel, during the premiership of Chretien, it was more than just the freedom of “thought, belief, opinion, and expression” that was violated. The seventh section of the Charter says “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Is it in accordance with “the principles of fundamental justice” to throw somebody in a tiny cell with the lights on around the clock and refuse to allow his advocate to hear and respond to all of the claims against him? Not according to our traditional standards of justice and not according to the ninth through twelfth sections of the Charter either.
Nevertheless, the anti-terrorism legislation which allowed for this treatment of Zündel was not in violation of the Charter. This is because the first part of the thirty-third section of the Charter reads:
Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
The second section is the section about fundamental freedoms quoted in full above. Sections seven through fourteen are the sections about our legal rights. All of these freedoms and rights were part of our tradition before the Charter was passed. Rather than making them more secure, the Charter clearly makes them less secure by allowing Parliament and the provincial legislatures to disregard them entirely. There are limitations on the use of the notwithstanding clause – part three places a five year limitation on bills that make use of it, but the limitations are fangless as the next part allows for the legislation to be re-enacted.
So no, civil libertarians of Canada, the Charter is not on our side. All the present government would need to do to make Bill C-51 comply with the Charter is to insert a five-year sunset clause and invoke the notwithstanding clause. This is how the Chretien Liberals got away with passing the laws that allowed them to commit that grotesque injustice against Ernst Zündel.
The fundamental freedoms listed in the second section of the Charter and the legal rights listed in sections seven through fourteen already belonged to every Canadian long before the Charter was introduced. In 1776, British North America divided between those who declared their independence, established a federal republic, and put their faith in the ability of a parchment document to forever safeguard their rights and freedoms, and those who refused to break with Britain, remained loyal to the Crown, and built Canada within the older tradition the organic continuity with which had never been broken. This older tradition had evolved over more than a thousand years of history to include the rights, freedoms, and legal protections we regard as basic today, and while the Loyalists rightly rejected the American Revolutionaries’ claim that Parliament was violating these “Rights of Englishmen” by passing a small sales tax, they did not dispute that these rights belonged to the tradition. Canadians looked to this tradition and our organic connection to it as the source and safeguard of our rights and freedoms and the tradition never let us down. It was only when the Liberals turned their backs on the tradition and decided that we needed a written guarantee of our rights like the American Bill of Rights that these rights and freedoms were placed in serious jeopardy. The Liberals have never understood or appreciated how our rights and liberties are tied to our British institutions and tradition so that the former stand or fall with the latter.
The Old Conservatives did understand this and they defended our British traditions as the foundation of our rights and freedoms. This, unfortunately, is not the case with the Conservatives of the present day who, to a large degree, share the Liberal Party’s tendency to look away from our British heritage towards the United States. Bill C-51 is an attempt on the part of the present Conservative – supported by the Liberals – to follow the example set by the United States in the passing of the USA PATRIOT Act and the Department of Homeland Security. The example of a government whose first response to a terrorist attack is to vastly expand its own powers and to try to remove constitutional and legal roadblocks to the abuse of those powers while all the while doing a cheerleading dance for “freedom” and running it up the flag pole is a terrible example to follow.
Civil libertarians, however, will need solid ground to stand on in opposition to this bill rather than the sinking sand that is the Charter of Rights and Freedoms. The only such ground is Canada’s British institutions and traditions. Alas, most of the opposition to the bill in Parliament is coming from the party which is not only the party of the tinfoil hat wingnuts who think that the true purpose of the bill is to allow the government to throw tree hugging hippies into jail but also the party most hostile to our British heritage. The outlook is not good for our traditional rights and freedoms.
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