Gerald Caplan is an African scholar, former NDP national director and a regular panelist on CBC's Power and Politics.
When Justice Anne Mactavish of the Federal Court struck down the Harper government's policy to slash medical care for refugees earlier this month, she described it as "cruel and unusual treatment" that "shocks the conscience and outrages our standards of decency."
Both phrases were telling. As Justice Mactavish of course knew, Section 12 of the Canadian Charter of Rights and Freedoms reads that "Everyone has the right not to be subjected to any cruel and unusual treatment or punishment." These exact words – "cruel and unusual punishment" – resonate in history. They were written into the English Bill of Rights in 1689 and were then repeated in the 8th amendment to the United States Constitution: "Cruel and unusual punishments [shall not be] inflicted." These are not words used loosely.
The concept of decency also plays a signal role in American history, though whether the judge was aware of this is not known. It was the very word that launched the final fall of Senator Joe McCarthy and the shameful "Communist" witch hunts known as McCarthyism, when lawyer Joseph Welch attacked McCarthy for his latest smear of a perfectly innocent American: "Let us not assassinate this lad further, Senator; you've done enough. Have you no sense of decency, sir? At long last, have you left no sense of decency?"
If a policy is cruel and unusual, if it outrages our standards of decency, what do we make of those promoting it? It's not as if the policy to deny health care is unique in the annals of Harperland. On the contrary, just in the past weeks at least two other government positions seem to reflect some pretty unusual cruelty and indecency: one related to Omar Khadr, the other to prostitution. But nor is the refugee health care issue yet over.
Immigration Minister Chris Alexander immediately announced the government's intention to appeal Justice Mactavish's ruling, and with not the slightest sense of embarrassment. In fact the Minister reminded Canadians of the pitiless kind of politics and policy he has embraced ever since getting elected, repeating word for word assertions that the judge had systematically refuted. We are left with a pretty simple choice. We either trust the minister, or we accept Justice Mactavish's analysis backed up by innumerable medical professionals from coast to coast who have angrily documented the cruel results of Mr. Armstrong's policy (first introduced and championed by his predecessor in immigration, Jason Kenney).
The prostitution bill has a similar cast of characters – the justices of the Supreme Court, who ruled that government must take all steps possible to assure the safety of prostitutes; much of the rest of the country who disagree on much but agree the bill actually would put prostitutes in even greater danger than they are now; and a minister of justice, Peter McKay, who has proved himself completely indifferent to the safety of such women. Is this not simple callousness?
Finally there is the case of Omar Khadr, a young man who to whom fate has been cruel since his birth to a twisted family. There are at least seven separate possible reasons for showing compassion for Mr. Khadr, and the Harper government has consistently dismissed every single one of them with scorn and derision. He was a child under international law when his father forced him to become a soldier. He may well not have killed anyone. He himself was badly wounded. He was involved in a war, when killing another soldier is not a crime. He confessed under torture. He pled guilty to end his Kafkaesque nightmare. He was convicted in a U.S. military court that flouted basic principles of justice. Canadian prison officials have found no evidence that he "espouses attitudes that support terror activities or any type of radicalized behaviour."
Yet he drives Harperland crazy with fear and loathing. They feel no mercy.
Just last week, the Alberta Court of Appeal, in a unanimous decision, ruled that Mr. Khadr's treatment has "violated both the Charter and international human rights law" and that he should be serving a youth sentence in provincial custody (he's now in federal custody) where he has a better chance of parole. Those damn judges – there they go again! The Harper government immediately, petulantly, announced its intention of fighting the ruling to the bitter end. For them Omar Khadr is nothing more than a murderer, terrorist and war criminal and the entire government of Canada will do everything in its power to wreck the rest of the life of this one forlorn man.
In all three of these cases, simple justice surely calls for compassion and humanity. In all three, Stephen Harper's government responds with cruelty. Canadians are asking of the Prime Minister: "Have you no sense of decency, sir? At long last, have you left no sense of decency?"