Canadian Freedoms Are Very Fragile: A response to Kelly McParland of the National Post

“This may be because Canadians have been accustomed to democratic government for all of the 147 years since Confederation, know their rights, and defend them energetically against abuse. It’s downright silly to think they would just turn a blind eye to a rogue police force that started hauling away the neighbours.”

  •  Kelly McParland: Hold the crisis, Harper’s new anti-terror bill will not make Canada a police state, by Kelly McParland, National Post, Feb 2, 2015, Last Updated: Feb 2 10:46 AM ET

I read Mr. McParland column, “Hold the crisis, Harper’s new anti-terror bill will not make Canada a police state” and I shook my head. To be fair, he did say that we needed more scrutiny of Canada Intelligence Agencies like CSIS, the RCMP and CSEC.

However, I found him a bit disingenuous when he said that “it’s downright silly to think they would just turn a blind eye to a rogue police force that started hauling away the neighbours”. For history does not show this to be true.

As a Black Canadian, I know of Africville. It was a community in the Halifax-area that predated Confederation and had remained untouched until the 1960s. It was a community whose ancestors had fought in the American Revolution or the War of 1812. It was a community that was created by those Blacks who sought freedom in the cold of Nova Scotia rather than be slaves in the warmth of Alabama, North Carolina, Mississippi or Louisiana.

After generations of being there, only 14 residents though had clear legal title. The city of Halifax never did extend water and sanitation to the area. In spite of that by 1962, it has been noted that the many of the homes in the area were clean and well-furnished. By that time, most owner-occupied dwellings had refrigerators and telephones. With that being said, some Africville residents could not get car insurance because of where they lived – a so-called “undesirable area.”

When the issue of the relocation of the community came up in 1960s, Africville residents organized to try to maintain their rights.  They met with many prominent people. Even Alan Borovoy – the man that would eventually become the general counsel for the Canadian Civil Liberties Association – assisted them. But to no avail. Those with clear title would receive full market value, while those without received $500. A community that was older than Canada itself was extinguished without a whimper from the larger community.

Nova Scotia’s history is littered with such violations. In the 1946, it was Viola Desmond. Similar to Rosa Parks, Viola crossed barriers by sitting in the “wrong place” in a movie theatre. While in 1986, Donald Marshall, Jr., had a Royal Commission Prosecution look into why he was wrongly convicted. So history shows that Canadian State does cross the line from time to time.

Or think about the Internment of Japanese, Italian and German Canadians. They were interned in the 1940s because they looked, talked or ate differently than the average Canadian. Before David Suzuki, CC OBC became an academic, science broadcaster and environmental activist; he was detained in those internment camps. His father was eventually sent off to a labour camp. As he remembers them, the camps were in the cold, desolate remotes of BC. Under the War Measures Act, the Suzuki family accounted for some of the more than 27,000 Japanese Canadians that were interned and classified as “enemy aliens”. Few Canadians stood up for Japanese, Italian and German Canadians.

Or think about the more than 200 year relationship with Aboriginal Canadians. Think of the herding of Aboriginal Canadians on to reserves or the establishment of the Indian Residential Schools system: Two Institutions whose purpose was to “anglicise” Aboriginal Canadians. For successive Governments, both Federal and Provincial, wished to strip Aboriginal Canadians of their language, their way of life, their religions and purpose. Or think of the right to vote. For it was only in 1960 that Aboriginal Canadians were allowed to both hold their treaty rights and allowed to vote. Prior to that Aboriginal Canadians had to renounce their status under the Indian Act in order to qualify for the vote.

But the courts were no salvation. In 1888, in St. Catherine’s Milling and Lumber Co. v the Queen [1888], the Judicial Committee of the Privy Council, affirming a ruling by the Supreme Court of Canada, held that Aboriginal Title was held at crown’s pleasure, and could be taken away at any time. It was not until 1973 and the Calder case that Canadian Courts recognized the possibility of a more rigorous understanding of Aboriginal Title. It was only when Aboriginal Groups gave up trying to negotiate with Provincial and Federal Governments that they received any recognition. Yet the Courts were not able to provide much solace. For, the Courts were not able to get federal or provincial governments to either sign treaties or uphold treaties. Canadian Courts were not able to establish much in law.

In fact things did not start to move until the 1982 Amendments to the Constitution. For after the amendments, First Nations, Inuit and Metis Communities could go to the Courts and seek injunctions that could compel Governments to act. Consequently, Aboriginals have not seen this century long tradition of Freedoms. If Kelly McParland understood Canadian History, he would understand that.

Or take the example of the Franco-Manitobans. One can read their story in Thomas Berger’s wonderful book called “Fragile Freedoms: Human Rights and Dissent in Canada”. It was in reading that book that I understood that before 1982, the Crown didn’t have to accept the ruling of the Court. In fact, in 1976, according to the a Factum provided by the Société Franco-Manitobaine to the Supreme Court of Canada, it was noted that “the then Attorney-General (now Premier) of Manitoba stated after the Court’s ruling: ‘The Crown does not accept the ruling of the Court with respect to the Constitutionality of the Official Languages Act’”.

That factum, filed in 1984, noted that this was the fifth attempt to have “section 23 of the Manitoba Act, 1870 and section 133 of the Constitution Act, 1867” enforced. For those provisions should have ensured that the Official Language Act (1890) would never have the force of law. In fact, to be fair, the 1890 Act was challenged and ruled unconstitutional in 1892, 1909, 1976 and 1979. Yet the Crown never accepted those rulings and followed the law as if it was not unconstitutional. It was only in 1984 – with the addition of the Charter of Rights and Freedoms and the Supremacy Clause – that the Courts could not only rule it unconstitutional, they could ensure that the law would never be used by the Manitoba Legislature or the Government of Manitoba again.

This is the truth and this is our history. When Mr. McParland says that “Canadians have been accustomed to democratic government for all of the 147 years since Confederation”, when he says that we know our rights and can defend them, he is disingenuous. For much of our history, Canadian Governments could override the rights which were written in law. Our courts could not save us and it depended on the good grace of the government of the day to allow us to have them. When the Governments didn’t, we know what happened. In Alberta, there was the Sexual Sterilization Act of 1928, and in parts of British Columbia and New Brunswick, Aboriginal Treaties were never signed. Our history is replete with abuses from the Chinese Head Tax to the discrimination of religious, ethnic and cultural minorities.

What has been our saving grace has been our ability to speak freely. From 1864 to the 1920, this meant allowing Irishmen to speak about the need for Ireland to be free. Some of those men spoke about peaceful means, while others didn’t.  From 1929 onward, there was a very fierce debate in Canada as to whether to support or oppose European Fascism. While at various times in our history Quebec, New Brunswick, Nova Scotia and Alberta have all debated secession from Canada. These debates were so real that Quebec, New Brunswick and Nova Scotia have elected members to the provincial and/or federal house on the plank of separation. If we have learned any lessons from the FLQ Crisis or the Air India bombing, one of them is to never touch the freedom to speak. As a result, Mr. McParland, our history tells us that we are right to be a bit melodramatic about C-51 because it is a piece of legislation which does not fit in with our understanding of democracy.

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