"... there are more instances of the abridgment of the freedom of the people by gradual
and silent encroachments of those in power than by violent and sudden usurpations."
~ James Madison
When most of us came to political maturity we were stirred by the possibilities of hope. The hope that we could all become part of what Robert Kennedy called the “…centres of energy and daring…” that would send forth “…ripples of hope…” that in common cause would become currents sweeping down the mightiest walls of oppression and resistance. We understood, viscerally, what Martin Luther King Jr. called “…the fierce urgency of now…”. Rarely in our history have energy and daring been so vitally needed as now.
At an Institute conference a Member of Parliament once characterized Canada as a “controlled democracy”. Today, Canada may well be on the road to becoming a terrorizing democracy institutionalizing a culture of victimization and fear. Over the past few days the federal government has announced that it will proceed with several initiatives that to this writer put the lie to the image of a just and transparent society we like to peddle to the world.
Next month the Martin government will bring forward legislation allowing for the monitoring of e-mail and internet communications. The bill would force providers of internet and telephone services to duplicate records of their clients’ activities and require, on simple request, that the information be passed on to police authorities. The proposal demands that network capacity be constructed to allow for tapping of some 8,000 individuals at any one time. Federal Privacy Commissioner Jennifer Stoddart has told Justice Minister Irwin Cotler that the law would allow security authorities to access more information about Canadians’ personal lives than ever before. Yet Ottawa remains strangely silent on consideration of any judicial safeguards and oversight even in light of the fact that current evidentiary requirements for standard wiretaps have already become flimsy and shallow.
Treasury Board President Reg Alcock announced he is moving ahead with Bill C-11, the much vaunted “Whistleblower Protection” legislation. Yet no revision was done to the bill which from its inception was nothing more than a “Potemkin village” because of five fatal flaws that have been pointed out by civil liberties advocates for months. The bill does not allow for public ruling of cases. The identity of any wrongdoer will be kept protected. The bill doesn’t allow complainants to go directly to the new commissioner but only to their direct superior who may very well be the wrongdoer. The bill doesn’t cover everyone. Only public servants. And the bill provides for no financial protection for the complainant should they need legal representation as American legislation does. Democracy Watch’s Duff Conacher has said that this bill cannot work because it does not protect against “…Ministerial and deputy ministerial influence, so no one looking into the wrongdoing is really independent.” And with this administration’s penchant for invoking or ignoring the Privacy Act as it suits it, things won’t get any better any time soon.
The federal Liberals have also gone on record as being committed to proceeding with Bill C-17, the Marijuana Decriminalization legislation, and with Bill C-53, the Proceeds of Crime act. Though legalization, not just decriminalization, of marijuana is long overdue, the problem of C-17 is that it also allows for random stopping of motorists to check for drugs without any necessity of probable cause as exists in the United States. C-53, which seeks to allow the government to seize any assets obtained through illegal means, also has within it the reversal of burden of proof. Unlike even the RICO statute in the U.S. or the “Guerin” law in Ireland, the Proceeds of Crime Bill would make certain accused guilty until proven innocent turning hundreds of years of civil liberties protections on its head.
It is clear why the United Nations named Canada as one of the most invasive and intrusive governments in the liberal west. It is high time to tell the statocratic control freaks on the Rideau that enough is enough.
If we Canadians have had one boast, one over-riding advantage, not just over totalitarian regimes, but even over sister democracies, it is that our legal traditions reflected our national consensus that our governance would have a broad base in morality and decency and protect our individuality and conscience against direct and indirect breach by government. If we do not act now we may, as Toronto lawyer Clayton Ruby put it, “…lose sight of what our democracy is all about.”
James Madison once wrote that "... there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations." It is the unfortunate story of our land today that above and beyond the abridgments and encroachments Madison warned of, we have witnessed the more subtle and immeasurable imposition of a smug, pallid orthodoxy that has replaced independence of thought. We have witnessed in Canada the institutionalization of a rigid complacency as assumed assurance against state intrusion or intervention. We have witnessed the erosion of the spirit of our people and the corrosion of our fundamental rights enshrined in law only two brief decades ago.
All this has left us a citizenry living in fearful timidity of the intolerance of statist bureaucracy. A national culture that has forfeited the robust battleground of competitive ideas to the parched prejudices of social orthodoxies. And a national will so debased, that Canadians have acquiesced in their own self-abnegation through impotent acceptance of the open abuse of public power because of their fear of state rape.
The new initiatives announced by Ottawa follow in the wake of the giant databases being created by the CCRA which has repeatedly refused to limit its use to anti-terrorism measures as requested by Canada’s privacy commissioner and civil-rights advocates such as former solicitor-general Warren Allmand. They follow in the wake of current Canadian Security Establishment monitoring of some 25% of all land line calls and 50% of cell calls with some 20% of these being sent to the National Security Agency in Washington for transcription. They follow in the wake of the forthcoming biometric national identity cards. They follow in the wake of the proposal to put electronic security anklets on suspects who have not even been charged. And finally, they follow in the wake of the government looking at empowering a host of regulatory functions to be made by Order-In- Council without the approval or consent of Parliament.
All these matters, if allowed to go unchallenged, will set precedents that will open the door to practices that exist in other societies where state authorities routinely check anyone of interest on any pretext. And these issues cannot just be the subject of court challenges. They take too long and damage done cannot be undone. They need to be challenged with the full panoply of weapons including the law, the media and a vigorous public advocacy that threatens to expose what the 18th century legal philosopher Becarria called “… this tyranny of the mindless…” and arrest this triumphant march of the mediocre.
It is time to turn the timidity of Canadians around. A timidity that has led to obsequious obedience when Federal Ministers pre-judge a citizen’s guilt in open pronouncements; when the RCMP raids a reporter’s home in violation of a judge’s order; when Revenue departments compromise longstanding privacy protections on taxpayers files through information exchange with other departments and other levels of government; when CRTC judgments decide what words we are allowed to hear and what images we are allowed to see.
Few crimes are as heinous as that of unbridled government power. Few threats to our public security are as grave as the power of state officials to treat citizens with reckless abandon. Few fears more paralysing to the commonweal than the insidious actions by agents of the state operating without understanding or guidance from compassionate authority. Anybody can become a pawn in someone‘s chess game.
If we have to live our lives weighing every action, every communication, every human contact, wondering what agents of the state might find out about, how they would analyse it, judge it, tamper with it, and somehow use it to our detriment, we can never be truly free. It is time for us to re-assert the sovereignty of our suffrage and overcome that sad Canadian mindset of submission and surrender.
When Franklin Roosevelt outlined the universal Four Freedoms of man they included the freedom from fear. He defined it as protection from the abusive exercise of private or public privilege and preference. And the preservation and expansion of the supremacy of individual civil liberties over the power of the state. What we are witnessing – in this land, at this time, under our current governors – is the slow undoing of progress on these basic rights of man.
Ottawa must be made to recognize the inherent right of every citizen to an equal claim of presumptive tolerance from the state.
That each member of a free society has as a birthright, in Lord Acton’s words, to the “…equity of just consideration…”.
This government has been systematically abrogating that birthright.
Law cannot be continually used, and abused, as a two-edged sword of craft and oppression. It must become the staff of the honest and the shield of the innocent. Elected officials cannot be allowed to marginalize its citizens without restraint of consequence.
We are a society of laws and not of men. But when bad men make bad laws, or when unprincipled officials compromise good ones, then it is time, as Gandhi said, to stand up and exercise “responsible agitation” to stop governments from “…staggering drunkenly from wrong to wrong in order to protect their own immortality…” Let us never become so falsely pious that we forget that today’s laws are merely the limits on our actions placed by those in power who profited from a yesteryear when these laws did not exist, and now seek to protect their own gains by limiting access for others.
The heart of the matter is whether we can afford to sit idly by while this nation continues the restriction and reversion of rights that has been it’s hallmark over the past several decades, or whether we will chart a return to the proper course for this land, that of meeting a liberal democracy’s primordial obligation of protecting and expanding the amount of liberty and dignity which all human beings have a right to expect.