Khadr and Zündel Revisited

I have argued that since the Charter of Rights and Freedoms is part of Canada's constitution, and Canadian laws, constitutional or otherwise, are only in effect within the Dominion of Canada, the Charter rights of Omar Khadr could not have been violated in either Afghanistan, where he was captured by the Americans, or the detention centre at the American naval base in Guantanamo Bay, Cuba, because neither of these places is within Canadian territory and subject to Canadian law. It has been objected, against that argument, that because Canadian officials were involved in the interrogation of Khadr at Gitmo, his rights were therefore violated because Canadian officials are still bound to act within the limits of the Canadian constitution outside Canadian territory.

Let us grant the validity of the premise. It is, after all, a valid one. If Canadian officials were not bound by the constitution outside of Canada then Canadian citizens upon whom the sitting government looks with displeasure could conceivably be in danger from agents of that government every time they set foot outside of the country. That having been said, the conclusion does not follow from the premise.

The reason for that is simple: if Canadian officials are bound to act within the limits of Canadian constitutional law outside Canadian territory then that is true of the constitution in its entirety, including Section 33 of the Charter. Section 33 authorises both Parliament and each provincial legislature to pass legislation that violates the fundamental freedoms listed in section 2 of the Charter and the basic legal rights enumerated in sections 7 through 14, provided that legislation is set to expire within five years of the date it comes into effect (section 15 can also be overridden by the terms of Section 33 but it contains neither fundamental freedoms nor basic rights). As it so happens, at the time that agents of CSIS and the Ministry of Foreign Affairs were participating in the interrogation of Khadr at Gitmo, just such a bill was in effect, the same antiterrorism/national security bill that was used to justify the detention of Ernst Zündel in a tiny isolation cell on Canadian soil for two years without charge or trial and his deportation to a country where he stood to serve prison time for controversial opinions expressed outside of that country's territory. If the law that allowed our government to do this to Zündel in Canada was constitutional by the terms of Section 33 then, quod erat demonstrandum, it also renders the involvement of CSIS and the Foreign Ministry in the Khadr interrogation, constitutional and legal.

As it happens, while I am satisfied with the conclusion of that reasoning, that the way our agents treated Khadr was constitutional and legal, I am not particularly thrilled with the part of the Charter that renders it valid. I reiterate my longstanding objection to Section 33 of the Charter. This clause is the reason that Brian Mulroney said that the Charter was not worth the paper it was printed on. Former Senator Eugene Forsey, who was one of our leading constitutional experts - his booklet explaining our form of government is still published by the government - was quoted by Charles Taylor as having called this clause "ghastly" and having said "if you are going to have a charter of rights - on balance I'm for it, but not without reservations - it had better be entrenched." (1) I have long maintained that Canadians were freer and their basic legal protections and rights were more secure prior to 1982 than after.

I am also not a fan of legislation passed in the wake of terrorist attacks that enhances government powers at the expense of civil liberties and legal rights. I can see the need for governments to detain and interrogate suspects quickly in the midst of an actual crisis situation but the kind of legislation the American government tried to pass in 1995, did actually pass in 2001, and which our government passed in 2001, all struck me as opportunistic power grabs. My long time readers will recall that prior to the last Dominion election I cited Bill C-51 as the reason why I could never vote Conservative again as long as Stephen Harper led the party.

All of that having been said, I stand by my judgement that it is the Zündel case and not the Khadr case that demonstrates the problem with both this kind of national security legislation and the constitutional loophole that allows for it. My critics may object that in so judging I show greater concern for a non-citizen (Zündel was only a landed immigrant) than a Canadian but in doing so they have elevated a technical distinction that happens to be irrelevant over the real differences between the two cases.

To preserve the corporate integrity of a state and the value of citizenship itself, legal citizenship must contain privileges not fully extended to non-citizens. Basic rights and freedoms, however, belong not to the category of the privileges of citizenship but rather that of the protections extended by the law of the land to all who fall under its jurisdiction, i.e., everyone who happens to be in the country at the time whether citizen nor not. Section 33 of the Charter certainly makes no distinction between citizen and non-citizen when it allows these rights and freedoms to be overridden.

The distinction between citizen and non-citizen is therefore irrelevant to the comparison being made. (2) The only thing further that needs to be said about it is that it ought to be of far greater importance to us that the laws of our country are justly enforced and their protections fully secured to everyone who falls under the jurisdiction of those laws than that privileges of our citizenship are respected abroad. It boggles the mind that anyone could find that ranking of priorities to be controversial.

As to the real differences between the Khadr and Zündel cases, note that the legislation that allowed the Chretien government to override basic rights and freedoms for the sake of national security was passed in order to combat the threat of terrorism of the type the United States had experienced in September of 2001. Omar Khadr actually was such a terrorist. He was fighting for al-Qaida, the same terrorist group to whom the 9/11 attack was attributed. He was at war with an American-led coalition in Afghanistan to which our government under Jean Chretien had committed Canadian troops and hence at war with our country but not as any sort of legitimate soldier for he fought out of uniform. He is exactly the sort of enemy Parliament had in mind when it passed Chretien's antiterrorism bill.

Zündel, on the other hand, was a political prisoner. He was not a terrorist and has never been a violent man. Indeed, when he was living in Canada he was himself the victim of terrorism - a bomb attack on his Toronto home incited by left-wing antiracists during his highly publicised trials. He posed no realistic threat to Canada's national security and the only motivation for the treatment he received was the desire to punish him for saying unpopular and controversial things and to silence him.

Zündel's case, therefore, was clearly an abuse of the legislation that gave the government the temporary power to override our basic rights and freedoms to combat terrorism whereas Khadr's case is an example of the real threat that inspired the legislation to begin with. It is Zündel, not Khadr, to whom we must point to demonstrate what is wrong with that kind of legislation and the section of the Charter that allows for it.

The basic rights and freedoms of Canadians as subjects of the Crown were protected by Common Law, grounded in centuries of prescription, long before Pierre Trudeau passed the Charter, Section 33 of which, rendered them less protected and secure than before. National security legislation, while understandable in a crisis, creates too much potential for abuse, as demonstrated by the Zündel case. The best way to combat terrorism, therefore, is not to fight wars abroad while undermining our own rights and freedoms to create a surveillance state at home. Rather, it is to leave other people alone in their own countries, and tighten up our immigration policies and citizenship laws so that terrorists from other countries like the Khadr family cannot get in, much less have anchor babies here who they then raise elsewhere to be enemies of our country and of Western Civilization of which we are part.

(1) Charles Taylor, Radical Tories: The Conservative Tradition In Canada, (Toronto: House of Anansi Press, 1982), p. 122)

(2) To the objection that citizenship v. non-citizenship matters when it comes to the question of deportation and denial of entrance, I answer that this is true but still irrelevant to the present comparison for the following reasons: a) While it is true that a citizen cannot be deported but a non-citizen can it is against Canadian policy to deport people to countries where they will become political prisoners, as was the case with Zündel's deportation to Germany; b) While it is true that Canadian citizens cannot be denied entry to the country except under extraordinary circumstances this does not mean that the government is in violation of a Canadian's rights whenever it places an obstacle in the way of his return - otherwise, the taxpayers would be liable every time a customs officer keeps a citizen waiting for hours while he does a thorough investigation - and at any rate, Khadr's having been convicted of murder, terrorism, and war crimes constitutes the extraordinary circumstances that justify the government's not wanting to take him back; c) Chretien's anti-terrorism bill may have expired by the time the government tried to block his repatriation but, since it was still in effect during the time in which our agents participated in his interrogation, their actions were therefore legal and constitutional under Section 33 of the Charter and the role the interrogation played in securing the conviction referred to in the previous point cannot invalidate the government's raising that conviction as an objection to his repatriation.

Is Stephen Harper a Conservative?

Betrayed! Stephen Harper’s war on principled conservatism by Connie J. Fournier, Createspace, 2015, pp. 148.

On the feast of Epiphany in the first year of the new millennium, an online forum for the discussion of Canadian political issues from a conservative perspective was launched. Its founders had been Canadian members of Free Republic, a similar message board in the United States, and so naturally, called the new forum Free Dominion. The founders and administrators, Mark and Connie Fournier, gave it the tagline “the voice of principled conservatism.”

Principled conservatism meant a conservatism that consisted of ideas and principles, rather than mere loyalty to the party which calls itself conservative. At the time there were two such parties, the Progressive Conservative Party and the Canadian Alliance, which had been formed the previous year in the first stage of a merger between the Western populist Reform Party and the PCs. Stockwell Day was leader of the Alliance at the time but by the end of the year he had resigned and early in the following year Stephen Harper was elected the new leader. In the year after that, the merger between the two parties was complete, and Mr. Harper became leader of the Conservative Party of Canada. In that capacity he served as Leader of the Opposition, then Prime Minister in a minority government, and finally won a majority government in 2011.

This was a triumph for the Conservative Party, for sure, but was it a victory for principled conservatism? Connie Fournier, in her new self-published book, Betrayed! says no, and she has good reasons for saying so. Some of these are personal, pertaining to the persecution she, her husband, and the forum they have put so much devotion into have undergone at the hands of government agencies and employees, all during the Harper premiership. Due to the nature of these injustices she cannot tell her story in full. She cannot, for example, name Richard Warman as the man who is responsible for most of the abuses of the legal system that Free Dominion has faced since shortly after Stephen Harper became Prime Minister. What she does tell, however, is told because it perfectly illustrates how the present leadership of the Conservative Party has abandoned its principles.

When Connie – who I had the pleasure of meeting a couple of years ago when she accompanied her husband, a truck driver by profession, on a run that took them through Winnipeg – speaks of conservative principles, she means the principles that underlay the Thatcherite and Reaganite movements in the United Kingdom and United States respectively, and the Reform Party here in Canada. This set of principles was created by a fusion – to borrow Frank Meyer’s word – of classical conservative views on society and morality with classical liberal views about government and the freedom of the individual. I am more of an unmixed classical conservative – a High Tory – not because I disagree with the ideas of limited, accountable, government and personal liberty, but because I hold strongly to the classical conservative view that these things can only exist in the context of a stable and secure order of established, traditional, institutions. I bring this up to make the point that while what Connie and I would regard as conservative principles are different – in a complementary rather than a contradictory way, I hope – I find her argument that Stephen Harper has betrayed those principles to be compelling and illuminating.

She tells the story of Stephen Harper’s rise to the federal premiership, showing him to have been ruthless in his pursuit of power right from the beginning. From the curious way in which he won the leadership of the Canadian Alliance away from socially conservative Stockwell Day and the heartless way in which he confiscated the party nomination for Calgary Southwest from Ezra Levant to his stacking the party council with his yes men and negotiating the merger of the two parties against the wishes of both parties' memberships, she demonstrates how within his own party he showed the same contempt for the people who elected him as he later would as the country’s Prime Minister.


She takes us through the way he has sold out one segment of the conservative support base after another, starting with the social conservatives who have no one else to speak for them having been told that their views, which were once, and within living memory, the consensus in the land, are now unwelcome, by the other parties. Harper, knowing this, has been able to collect the votes of social conservatives while doing nothing to deserve them, a pattern established early in his leadership when he offered social conservatives, who had started a grassroots effort to put a ban on partial-birth abortion into the party platform, a discussion of same-sex marriage instead, which never materialized. Even gun owners, widely though of as having benefited from the Conservative government with the abolition of the long-gun registry, are among the betrayed, Connie shows.


The biggest betrayal, however, is of those who fought for freedom of speech against Section 13. Section 13 was part of the 1977 Canadian Human Rights Act. This Act, modelled on the American Civil Rights Act of 1964, proscribed discrimination on certain grounds (race, sex, religion, ethnicity, etc.) and in certain circumstances (employment, housing, etc.) even between private individuals. Section 13 declared it to be an act of discrimination to communicate via telephone, anything that was “likely to” expose someone to “hatred or contempt” on the basis of one of the prohibited grounds of discrimination. Around the turn of the millennium this was made even worse by the adding of subsection 2, which extended its application to all electronic communications including, of course, the internet. This law had, as it was intended to have, a chilling effect on public debate, adding the force of law to the creepy contemporary phenomenon known as political correctness, that protects left-wing social and cultural engineering with loud and hysterical accusations of “racism”, “sexism”. “homophobia”, or some other made-up pathology, against its critics.


In the late 2000s, the public spotlight finally fell upon this terrible law, when Muslim groups laid charges under it against well-known conservative figures Ezra Levant and Mark Steyn. Traditionalists and libertarians united against it, and, through the means of a private member’s bill, ultimately succeeded in having it repealed. This was without the help of the present leadership of the Conservative Party. The charges against Levant and Steyn were made about the time Harper became Prime Minister, and it was during the battle over Section 13 that ensued, that Free Dominion’s legal woes began.


The Canadian Human Rights Commission, having received a complaint about some material that controversial Christian evangelist Bill Whatcott had posted on Free Dominion, urged the complainant to charge the website as well. At the time the CHRC had already targeted Free Dominion, having previously set up a dummy account “jadewarr” on the forum, for purposes of spying or, possibly, entrapment. The charge against Free Dominion was withdrawn by the complainant, but the CHRC, its doings, and Section 13 became hot topics on the discussion board. Richard Warman, the human rights lawyer and former CHRC employee who was responsible for most of the complaints under Section 13, launched a myriad of lawsuits against his online critics, including the suits that have been so devastating to Free Dominion and the Fourniers.


It is not just that all of this took place on Stephen Harper’s watch, however. His government has introduced bill after bill after bill in attempts to monitor and control discussion on the internet. These include bills that would order ISPs to spy on their customers and hand information over to law enforcement agencies without warrants. The worst of them is Bill C-51, which the government rammed through the House of Commons and Senate earlier this year. In the name of fighting terrorism, this bill authorizes law enforcement agencies to spy on Canadians without warrants, share the information they gather with each other, and even engage in disruptive activity.


In light of all of this damning evidence, Connie calls principled conservatives to hold the Conservative Party and their leadership accountable. The party needs to know that conservative votes cannot just be taken for granted, and that their betrayal of conservative principles and trampling all over the privacy and freedom of Canadians will not be tolerated, let alone rewarded.


Every Canadian, especially those who believe in the principles of conservatism, ought to read this book before the upcoming election.

Evelyn Waugh's Excellent Example

Evelyn Waugh, English novelist, satirist, Roman Catholic convert, and High Tory anarchist, stopped voting around the time of the Second World War. Christopher Sykes, his friend and biographer, wrote that he did so “on grounds of conscientious objection”. Waugh, according to Sykes, “maintained that it was disloyal presumption for a subject to advise the sovereign, even in the most indirect way, on the choice of ministers.” (1) In “Aspirations of a Mugwump”, his contribution to a symposium of election comments published by the Spectator in its October 2, 1959 issue, Waugh published this sentiment himself, expressing his hope “to see the Conservative Party return with a substantial majority” but saying that he himself “shall never vote unless a moral or religious issue is involved”. “In the last 300 years” he wrote “the Crown has adopted what seems to me a very hazardous process of choosing advisers: popular election” adding that by “usurping sovereignty the peoples of many civilized nations have incurred a restless and frustrated sense of responsibility which interferes with their proper work of earning their living and educating their children”. Ultimately he concludes that if he voted for the Conservative Party he would feel “morally inculpated in their follies” if they won and that he had “made submission to socialist oppression by admitting the validity of popular election if they lost” and so declared that “I do not aspire to advise my sovereign in her choice of servants”. (2)

As a lifelong royalist Tory, my sentiments are largely in accordance with these but I have long been reluctant to follow Waugh’s example in practice. This year, however, Stephen Harper has finally decided the matter for me. Without denying the good accomplished on his watch – such as the restoration of “Royal” to the air force and navy and the scrapping of the long gun registry – the most important good accomplished in Parliament under the present government, the abolition of Section 13 of the Canadian Human Rights Act, was accomplished through a private member’s bill without the help of the Prime Minister and his Cabinet and, I must say, they gave every impression that it was against their wishes. Now that the Prime Minister has had his way, and Bill C-51, authorizing CSIS to invade the privacy of Canadians has passed the House and Senate, the evil this government has accomplished has so outweighed the good that I cannot in good conscience ever vote for them again.

This means that, barring a Libertarian or Christian Heritage candidate running in my riding – and neither party has run a candidate here in the last twenty years – I will never vote again. The Liberal Party will never, ever, ever have my vote. Founded as the party of free trade and continentalism – which the Conservative Party have adopted to their shame – it is the party of the so-called “Canadian nationalism” that would have our country turn its back on and forget its Loyalist heritage, its British traditions, institutions, and connections. It is the party that made an admirer of Communist dictator Mao Tse-Tung – Pierre Trudeau – its leader and then introduced political correctness to Canada when he and his sycophants in the media began accusing everyone of “racism”, “sexism”, and all other sorts of nasty-sounding “isms” for opposing his policies. While it calls itself by a name that suggests a belief in freedom, it launched a war against the basic freedom of Canadians to think and say what they want, and associate and do business with whom they want, when it passed the Canadian Human Rights Act in 1977. It partially legalized abortion in 1969, introduced same-sex marriage in 2005, and the present leader of the party, Justin Trudeau, son of the aforementioned Pierre, cracked the whip on his members last year declaring support for abortion to be mandatory for Liberal Members of Parliament. No, this party will never receive my vote, especially with a Trudeau at the helm.

As for the NDP – no thank you! Everything I most object to in the Liberal Party including its disrespect for Canada’s Loyalist heritage and British institutions and its political correctness is magnified to the nth degree in this party. Its supporters keep telling me that it speaks for “the working class”. If that is the case, why is it even more dead set against traditional morality and social arrangements, which have their strongest support in the working class, than the Liberals? When Justin Trudeau announced that nobody who is opposed to abortion would be allowed to run for the Liberals he made an exception for MPs already seated, and the creepy leader of the NDP condemned him for making this exception, saying that no NDP MP would ever vote against abortion. If the NDP speaks for Canadian workers why is it even more determined to replace them with immigrants than the other parties? Its platform calls for a quicker immigration process, with less hurdles, and with increased financial support for settlement, to be paid for from the taxes of those workers who the NDP supposedly speak for, and the NDP would like to see any worker who vocally objects to this charged with a hate crime. No, I would sooner die a terrible, excruciating, death from some horrible lingering disease than cast a vote for the NDP.

No, I think the time has come to follow Evelyn Waugh’s example and refrain from voting. As P. J. O’Rourke, adapting an old anarchist slogan put it in the title of a book a few years back, “don’t vote, it just encourages the bastards.” I will remain, as always, a loyal subject of Her Majesty, Queen Elizabeth II, but the ministers who abuse the powers they exercise in her name in Ottawa will never again be able to say they do so with my vote and approval.



(1) Christopher Sykes, Evelyn Waugh: A Biography, (New York: Penguin Books, 1977), p. 365.
(2) “Aspirations of a Mugwump”, reprinted in Donat Gallagher, ed., The Essays, Articles and Reviews of Evelyn Waugh, (New York: Penguin Books, 1983, 1986) p. 537.

Civil Libertarians of Canada, The Charter is Not Your Friend!

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.

Give Up Freedom To Gain Perpetual War? No Thank You!

In times of conflict, when our country is at war, we are willing to tolerate such inconveniences, burdens, and abridgements of our rights and freedoms as are deemed to be necessary for the war effort. We recognize, in such times, that the good of our whole country must come first and that we must come together in support of those who are fighting on our behalf. Implicit in all of this, however, is the understanding that war is an exceptional circumstance and that the conditions of peace in which our rights and freedoms are not so curtailed are the norm.

This long-standing traditional consensus served us well down through the ages but in the last century it was torn apart by attacks coming from two different directions. While there have always been those who have defected from their society’s collective efforts in wartime in post-World War II conflicts these have occurred on a much larger scale as part of organized movements that have been driven by ideologies such as pacifism. From this direction the tradition that tells us to come together in unity when our country is at war has come under attack. The attack from the other direction is upon the tradition that tells us to make the conditions of peace the norm and it is this attack, and especially one particular form of this attack, that I wish to discuss here.

If the tradition under attack says that the conditions of peace in which the public are not overly burdened with rules and taxes and their customary rights and freedoms are not abridged are to be the norm then to attack this tradition is to say that the conditions appropriate for wartime are to be the norm instead. One way in which this occurred in the last century was that liberalism, the ideology that started in the so-called “Enlightenment” and came to dominate the Western world in the period known as the Modern Age, changed, at least in North America, in the period between the two World Wars. Until the First World War the ideas of John Locke, in which the need to protect the rights and liberties of the individual from the state was stressed, formed the most prominent strain in liberal thought. After the war the ideas of Jeremy Bentham, in which the role of the modern democratic state as the agent and instrument of utilitarian progress was emphasized, eclipsed those of Locke. The basis of this shift in liberal thought was the reasoning on the part of many liberals who served in administrative positions in the First World War that if the government can mobilize and organize society for the sake of the war effort in times of war then surely it can mobilize and organize society to achieve a better, more just, society in times of peace. This has certainly taken the liberty out of liberalism.

Another way in which governments, addicted to wartime powers, have resisted the tradition of reverting to the conditions of peace as the norm, has been to make conflict the norm rather than peace. About the time that liberalism underwent the shift described in the preceding paragraph liberals of the older type, including American historians such as Charles Beard and Harry Elmer Barnes, began to see a tendency in the foreign policy of the liberal American Presidents of the ‘30s and ‘40s towards holding up “freedom”, “democracy”, and “peace” as ideals while constantly mobilizing the country for war on behalf of those ideals. “Perpetual war for perpetual peace” was how Beard described this policy to Barnes, who borrowed the title for a anthology of essays he edited in 1953 that took a hard, critical, look at the policies of the Roosevelt and Truman administrations. (1) Another of these older type liberals, who now called themselves libertarians, Murray N. Rothbard, observed that a “welfare-warfare state” had developed that both practiced the policy of perpetual war for perpetual peace and employed high levels of taxation, spending, and regulation for non-belligerent, progressive purposes in the Benthamite manner we have discussed. That a policy of perpetual war for perpetual peace could be used as a cover for collusion between military leaders and arms manufacturers for the sake of war profiteering on a whole new level made possible by the advent of mass production was a danger against which American President Dwight Eisenhower warned in his Farewell Address.

In the last decade and a half events have transpired that our governments have exploited to take the policy of perpetual war for perpetual peace to a whole new level.

Since the end of the Second World War the acknowledged leading country of the Western world has, for better or worse, been the United States of America. After the Cold War came to an end America and the West have become increasingly entangled in the conflicts of the Middle East. When, on September 11, 2001, the United States found herself the victim of a terrorist attack the American President at the time declared a “War on Terror”. As part of this “War on Terror” the American government created a powerful new agency, the Department of Homeland Security, charged with the task of preventing terrorist attacks on American soil, and the USA PATRIOT Act, which enhanced the investigatory powers of law enforcement and security agencies by removing such impediments as the need for a court order to search records, was rushed through Congress. Here in Canada Jean Chretien’s Liberals rushed similar legislation through Parliament in the form of the Anti-Terrorism Act of the fall of 2001.

The supporters of bills like these argued that they were necessary to remove obstructions that got in the way of security agencies and hindered them from doing their job of protecting us from the violence of terrorism. Critics and opponents of the same bills argued that these so-called obstructions were actually safeguards that protected Canadians and Americans against the misuse of government power and that to get rid of these safeguards is to abandon centuries of tradition, stretching back to before the founding of either the United States or Canada, in which these safeguards evolved to protect our rights and liberties, lives and persons. These critics were, of course, right. If we were to interpret every crisis that occurs as indicating a need for either enhanced government powers or a loosening of constitutional, prescriptive, and legal restraints on the use of government powers, very soon we would have an omnipotent state and no rights and freedoms worth speaking of.

Nobody made this case better than the late paleoconservative columnist Sam Francis, who in column after column took the administration of George W. Bush to task for such things as trying terrorism suspects before military tribunals rather than real courts, eavesdropping on confidential communications and issuing national id cards, creating the Department of Homeland Security, and putting police surveillance cameras throughout federal buildings in Washington D. C., as creating a slippery slope, whereby Americans would become accustomed to less rights, liberties, and constitutional protections and to being spied on by their government. Noting that the powers granted to the American government by the Patriot Act “are far larger than the government of any free people should have and that whatever powers this administration doesn’t use could still be used by future ones”, he pointed out that this “is how free peoples typically lose their freedom—not by a dictator like Saddam Hussein suddenly grabbing power in the night and seizing all the library records but by the slow erosion of the habits and mentality that enables freedom to exist at all” and concluded that the Bush administration was writing the last chapters in the story of American liberty.

Chretien’s Anti-Terrorism Act was no better. This Act utterly abandoned our country’s traditions of liberty and justice and allowed for people to be arrested and detained without charges, denied basic legal protections, and tried in secret without being guaranteed the opportunity to hear and respond to all the evidence against them, if the government were to determine them to be a threat to national security. This Act expired several years ago – legislation of this nature can only be enacted for five year periods – but, contrary to Kelly McParland’s claim in the National Post on February 2nd of this year, it did not expire without having been used. Among its other provisions was an amendment to the national security certificate provision of the Immigration Act that made possible an incident that was a shameful disgrace to our country.

An elderly man, who immigrated to Canada from Germany in the 1950s, who had never committed any violent crime here or elsewhere although he was the victim of terrorist attacks on the part of the followers of Rabbi Kahane, but who was repeatedly dragged through our courts for the “crime” of trying to spread the idea that accounts of atrocities committed by the other side in the Second World War still need to be revised to less resemble wartime propaganda, moved to the United States in order to escape this persecution. He married a woman there, applied for citizenship, and was arrested by United States Immigration who handed him over to our authorities, who issued a national security certificate against him. He was placed in solitary confinement and tried behind closed doors by a judge who refused to recuse himself, despite his obvious bias, and found guilty on the basis of evidence he was not allowed to hear in full, and was then sent to Germany, with our government knowing full well that the German government would arrest him upon landing, and sentence him to five years in prison for mere words that he said. This man, Ernst Zündel, was a noted admirer of a rather odious historical regime, but that did not make him a terrorist any more than Pierre Trudeau’s admiration for the even more odious Maoist regime in China, which, as was not the case with Zündel, was still around when Trudeau was doing the admiring, made the former Prime Minister a terrorist. It is certainly no excuse for treating the man with such blatant injustice.

Chretien’s Anti-Terrorism Act has, as we have noted, expired but our current Prime Minister, Stephen Harper, wishes to pass another one. Bill C-51, which has passed its second reading and been referred to the Standing Committee in the House, has several parts to it. The first, and the one most emphasized by the bill’s advocates and defenders, is the Security of Canada Information Sharing Act which tells other government agencies to share their information with those charged with protecting national security. This sounds reasonable at first, until you think about why government agencies were prevented from doing this in the first place. The fourth part is the one the bill’s detractors prefer to emphasize because it greatly enhances the powers of the Canadian Security Intelligence Service (CSIS). The bill’s supporters say this is to reduce threats to Canadian security, its detractors say that it is to enable CSIS to better spy on Canadians. Other parts of the bill include the Secure Air Travel Act, which authorizes the creation of a no-fly list and otherwise ensures that airport security will be even more of an obnoxious pain in the buttocks than it already is, and various amendments to the Criminal Code including one that makes mincemeat out of the traditional right to confront and challenge your accuser in court in the euphemistic name of the “protection of witnesses”.

This bill is an abomination and the vote on it should be a pretty good litmus test as to how much respect for Canadians and their traditional rights and freedoms our Members of Parliament and Senators possess. The present government was elected by supporters who were sick and tired of the way the Liberal Party was overtaxing and overregulating Canadians while showing complete disregard for our traditions, rights, and freedoms. Why then is it determined to establish a surveillance state? It is rather ironic that the most active opposition to this bill in the House seems to be coming from the party whose members can never speak about freedom without sounding like a Cold War era apparatchik spouting off about “the freedom loving people of the Soviet Union”.

The fact of the matter is that the “war on terrorism” is the ultimate form of “perpetual war for perpetual peace”. The enemy in this war is not a foreign government, with its own territory, that can be decisively conquered, defeated, or destroyed. No matter how many Cato the Elders we may find to punctuate their speeches with “terrorismo delenda est”, we will never be able to produce a single Scipio Africanus to conclusively defeat terrorism, or an Aemilianus to raze its stronghold to the ground, and sow its fields with salt, that it may never rise again. It is not that kind of an enemy. Terrorism can pop up anywhere at any time. A war against terrorism is a war that can never end. A government that wishes to constantly retain its wartime powers and abandon the traditional understanding that peace is to be the norm, not war, could find no better means of accomplishing this end, than by declaring a war on terrorism, and passing bills like C-51.

(1) The title was reused by the late, left-libertarian novelist and essayist Gore Vidal, for a collection of essays similarly criticizing the policies of more recent administrations in 2002.