Defender of Canadian civil liberties speaks at Glendon

Alan Borovoy, general counsel of the Canadian Civil Liberties Association, was the invited guest speaker March 16 at Glendon’s International Peace, Security and Human Rights course.

Borovoy came to discuss “Civil Liberties in Canada Before and After 9/11”. He warmed up the audience by recalling a long-ago event – a University of Toronto debate between the young Conservatives and the young members of the Co-operative Commonwealth Federation (CCF was the predecessor of the NDP), on the subject of the Ontario government’s conservation and reforestation project of that time. The Conservative speaker praised the government’s excellent five-year record. Whereupon, the CCF speaker responded that “with all that ‘fertilizer’ [put out by the government], how could they go wrong?” 

As the chuckles died down, he took his audience by surprise by stating that “at its essence, there is very little difference in civil liberties in Canada before and after 9/11.” To support his premise, he referred to the May 1974 Fort Erie strip search of over 100 people staying at a motel for the weekend. The police of the Niagara region swarmed the motel, searched every individual, including 35 women who were strip searched. Borovoy questioned the necessity and usefulness of this search. For, as he affirmed, it was unlikely that all 100 were involved in some sort of illicit activity such as drug dealing. But had they been, would they then have gathered at the motel to spend the weekend together?


Left: Alan Borovoy

Borovoy used this example to illustrate the comprehensive powers given to and used by the police, including the power to arrest anyone under reasonable suspicion of performing illegal acts in a public space. He argued that these blanket powers, further broadened since 9/11, were a manifestation of the government’s lack of confidence in the efficiency of its own laws. He stated his conviction that the damage resulting from the use of these powers “did not represent the will of autocrats seeking to do bad, but rather parochial bureaucrats seeking to do good.” According to Borovoy, as justice is a constant balance between the two sides it represents, the effort to cover all eventualities often results in a continuing addition of amendments. Thus, a particular law becomes too broad and infringes on the values and freedoms of individuals, often with the best of motives.

Borovoy cited some amusing examples from the Mulroney era and the Harris government of Ontario. Mulroney’s government wanted to rewrite the law on obscenity. Bit by bit, all the acts which could be connected to sexuality were included in the prohibited list, to the point where even holding hands in public could have been considered an obscene act. It was a classic example of legislation getting out of hand – just to be on the safe side. The bill died a natural death, as it would have been unenforceable.

The Harris Conservatives in Ontario decided to regulate panhandling, with all the usual prohibitions. But by the time they added more and more restrictions, it was so broad that any individual who had ever needed to ask a stranger for a quarter for a phone call could be considered an outlaw. The government passed the bill, but the letter of the law has been impossible to uphold.

After the tragic events of Sept. 11, 2001, the Canadian legislature compiled over 150 pages of complex measures in Bill C36 to protect Canadian society, and presented it by mid-October for discussion and vote. By the end of 2001, this bill became law, demonstrating the panic of the government, without adequate time for a full debate. The measures in this bill give blanket powers to the police, including electronic “bugging” and encouraging the general population to inform on other citizens.

This very un-Canadian approach harks back to similar, shameful activities during the McCarthy era in the US, said Borovoy, when many innocent left-wing Americans were persecuted as Communists, or the internment and relocation of thousands of Japanese-Canadians during the Second World War, for fear of their being traitors to this country.

Right: Glendon Principal Kenneth McRoberts (left) with Alan Borovoy

Those whose civil liberties are infringed, added Borovoy, are often members of visible minorities or certain religious groups, welfare recipients, panhandlers or political activists, among others. “No one doubts that we must protect our society”, he said, “but the act of protection must not become an excuse for giving out comprehensive powers without judicial scrutiny”. He added that the one measure which could have provided long-term protection to Canadian civil rights – a one-year shelf life to the new powers voted in at the end of 2001– was not adopted. Had the government done so, then at the end of the year each new measure could have been evaluated for its usefulness and fairness, keeping only those which passed this important test.

He praised the healthy scepticism that Canadians have concerning authority and the anti-terrorist legislation resulting from the events of 9/11. He stated that although Canada is still a country where human rights and human life are greatly valued and upheld, “there is a certain fragility in the freedoms that we prize so much. We need to be vigilant and make a great effort to protect them.” He did not waste the opportunity to promote the Canadian Civil Liberties Association as one body working towards this aim.

This article was submitted by Marika Kemeny, Glendons public relations and communications advisor.