Philip Slayton’s books include Mighty Judgment: How The Supreme Court of Canada Runs Your Life and the recently published Nothing Left to Lose: An Impolite Report on the State of Freedom in Canada.
Is Canada a free country?
What a question! Of course it is. Let’s tick off the reasons why; we know them by heart. Why waste time on this?
We elect those who govern us. We have an independent judiciary. We have an unfettered press. Young people have access to a competent educational system. We have civilian control of the police. We are a tolerant and peaceable people. We acknowledge the worth of the individual. We are socially progressive and right-thinking. We have a constitutionally entrenched bill of rights, guaranteeing fundamental freedoms, democratic rights, mobility rights, legal rights and equality rights. What could be better? As our anthem says, “God keep our land glorious and free!”
But wait a moment. Is all this completely true?
Complacency about our freedoms in Canada is not well-founded. There are things to be careful about, quite apart from the way government abbreviated our rights during the COVID-19 pandemic panic – hopefully, but not certainly, temporarily. There are fundamental causes for concern.
First, Canadians are generally unduly and dangerously deferential to authority. We often defer to status and presumed expertise – to judges, bank presidents, medical experts, university professors, senior bureaucrats and other assorted pundits and sages. After all, despite the fact that these people’s views are sometimes vague, suspect and contradictory, they must be more intelligent and better informed than we are. Otherwise, how did they get to their positions?
Our well-known politeness and civility accentuate our deference to authority. Of course, as we look around the world – at the divisive and confusing Brexit debate in Britain, for example, or at Donald Trump’s shambolic and angry United States – we might congratulate ourselves on a Canadian restraint that helps avoid debilitating and absurd excess. But this is not a straightforward calculus. Excessive deference and restraint only bury ideas that have merit and marginalize their advocates. They alienate dissenters from the mainstream political system, limiting participation in public debate and the flow of contrary ideas. They promote easy acceptance of things that an engaged populace should be quarrelling about. They leave us vulnerable to those to whom we defer and the direction they would take us.
We freely elect those who govern us, that is true, but our political process and constitutional structure is seriously flawed. Our first-past-the-post electoral system gives little room to smaller but important political parties that garner significant percentages of the popular vote. The prime minister and the executive branch of government dominate the elected legislature in the lawmaking process. This has been particularly evident during the pandemic, when vast amounts of money have been spent and radical programs put in place with minimal parliamentary oversight. Ordinary members of Parliament? The first Trudeau described backbench MPs as “nobodies” when they were not on Parliament Hill. They scurry around, taking orders from the prime minister if they are members of the governing party, powerless and irrelevant if they are not. Parliamentary procedures and devices – omnibus bills, for example – emasculate parliamentary debate. And the country’s constitution is lopsided, giving the provinces complete power over cities, where most Canadians live, depriving municipal governments of the authority and financial resources to do what their citizens want and need.
An independent and fair justice system, accessible to all, is an essential part of a free democracy. One job of the justice system is to protect citizens from government and from each other. Protection from government, especially in defence of minority rights, is essential in Canada, a country where the supremely powerful executive branch has the ability to ride roughshod over anyone. To their credit, the courts have, from time to time, held government at bay since the 1982 Charter of Rights and Freedoms. But on other occasions, using the Charter, they have inappropriately decided fundamental public policy questions that should be answered by elected representatives, such as the laws concerning abortion, prostitution, aboriginal title, the definition of marriage and medical assistance in dying. Matters once properly considered political issues, to be dealt with by application of generally accepted public policy legislated into law by elected representatives of the people, have been recharacterized as legal questions to be answered by appointed judges.
Meanwhile, for economic reasons – lawyers cost a lot – few Canadians have access to the justice system. Few can afford to assert or defend their rights against government or each other. In particular, the ordinary citizen may desperately need the protection of the courts if he is the target of the awesome legal power and unmatched financial resources of the government. David Johnston, a former governor-general and a lawyer who is not given to controversial statements, gave a hard-hitting speech at the 2011 annual meeting of the Canadian Bar Association in Halifax: “For many today, the law is not accessible, save for large corporations and desperate people at the low end of the income scale charged with serious criminal offences.” Nothing has changed since 2011. The former Chief Justice of Canada, Beverley McLachlin, has frequently pointed out this frightening feature of our justice system.
Canada’s traditional free press, essential to exposing and reining in the excesses of those in authority, has largely collapsed as advertisers flee to the internet and subscriptions decline. It has been replaced by social-media commentators who, for the most part, lack resources, credibility and discipline. The amplification and validation effects of the internet – “an open sewer of untreated, unfiltered information,” according to Tom Friedman of The New York Times – allow isolated and uninformed individuals to join together electronically in hate and become a threatening and cocksure worldwide community that instantly condemns and convicts those believed to have transgressed. Social media, used in this way, subverts and undermines a legal system that many have laboured mightily for a long time to put into place and develop for the common good – one that seeks to uncover the facts and presumes innocence.
Universities have also let us down. They have replaced education with job training in their mandates, and free speech with political correctness in their values. A curious and well-informed mind is a free mind, and a person with a free mind is a free person; creating this free person is what education, particularly postsecondary education, is meant to do. Universities need to reject a corporate consumer-driven model; a student is not a “client.” Universities must eschew misguided vocationalism, emphasize the development of critical thinking – in particular, the ability to distinguish between a good argument and a bad argument – and recognize that society needs dreamers at least as much as technicians. They need a fee structure that makes postsecondary education available to all without career-distorting long-term debt. And they need to welcome the expression of all views, even extreme ones. They must reject any attempts to suppress them, whether they come from the political right or the political left, and deploy critical thinking, good judgment and a sense of humour instead of a heavy-handed suppressive approach to repudiate views that seem wrong and dangerous.
Meanwhile, our concept of human rights has become vague and overly accommodating. Expansive notions of human rights, and an energetic bureaucracy enforcing them, can chill the free expression of unpopular ideas and opinions. We should be wary of “human rights” newly invented by special interest groups. Some may have a legitimate place in the permanent list of rights that must be protected; others are repressive or trivial ideas intended to deceive and compel. As Dominique Clément, a professor of sociology at the University of Alberta, wrote: “Human rights is the language we use to frame the most profound – and the most commonplace – grievances.” Sometimes, it can seem as if the main purpose of human-rights laws and principles is to enforce what is politically correct, rather than – as one might naively expect – to protect freedom of speech and action by those who think differently.
And our police forces have run rampant. Just look at how police responded to demonstrations at the 2010 Group of 20 summit in Toronto, for example, or at the Canada-wide practice of carding Black Canadians, or the general treatment by police of racialized groups, or our national-security organs’ excessive reaction to spurious terrorist threats. We need the police to keep order and shield us from harm, but they can be a threat themselves. Former Supreme Court justice Ian Binnie caught part of the predicament in the 2009 Charter case of R. v. Grant: “While the uniformed police embody society’s collective desire for public order and livable and safe communities, they also present a serious and continuing risk to the individual’s right to be left alone by the state.” Add in surveillance and the continuing loss of privacy to the mix – accelerated in the age of the pandemic – and consider the consequences.
Economic inequality has increased dramatically and vast parts of the population have been rendered financially impotent, unable to secure even modest housing, vulnerable to disease (the poor are far more likely to contract the coronavirus than the affluent) and vulnerable to exploitation by a handful of rich people and corporations. There are many more poor people than rich people, and in a true democracy each person has only one vote. You might expect that a poor majority would make certain that wealth was redistributed in its direction, through tax policy and social programs. Yet, by and large, this does not happen, because inequality corrupts democracy. One explanation is that political power goes hand in hand with riches; those with money can influence opinion, thwart the popular will and protect themselves.
The treatment of Indigenous people in Canada remains appalling. Their plight is a wound that never heals. Any mention of it easily evokes pain, misunderstanding, resentment and anger. We measure the freedom of a democratic society by the extent to which all of its members are free. A free society is one where those who are less fortunate and more vulnerable are respected and helped by all so that they enjoy almost as much liberty as the person who lives in the big house on the hill. So long as Indigenous people are badly treated, and until a desperate history is overcome and ceases to determine the future, our country will continue to fall short of freedom.
And then there are the horrors of climate change and the collapse of biodiversity, catastrophes now sidelined by obsession with the coronavirus. How much freedom will we have when fires sweep across our country, the seas rise relentlessly, the animals die and the beauty of nature is gone? How much freedom will we have when there are vast migrations of people across continents, fleeing natural disasters, ignoring national borders, fighting for scarce resources?
What is to be done? There can be no freedom without selfless, principled, informed and courageous leaders. There can be no freedom without selfless citizens committed to civic engagement and the common good. The general welfare must trump personal interest if we are to survive, let alone prosper. If political leaders care mostly for themselves and their personal political ambition, and average citizens care mostly for themselves and their immediate families, the result will be societal and state dysfunction, a pointless and unproductive butting of heads leading to a dystopia where freedom has been lost and social progress reversed. If that happens, there will be nothing left to lose – and there really will be a simple, one-word answer to the question of whether Canada is truly free.
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