Glendon Campus
York University
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Defender of Canadian Civil Liberties Speaks at Glendon


by Marika Kemenuy

Left: Alan Borovoy

Alan Borovoy, General Counsel of the Canadian Civil Liberties Association, was the invited guest speaker on March 16th at Glendon’s International Peace, Security and Human Rights course, joined by other members of the community.

Borovoy came to discuss “Civil Liberties in Canada Before and After 9/11” – a topic of great and immediate interest to citizens of this country. A clear and eloquent speaker who did not need to consult any notes to recall dates and events of relevance, he is also a wonderful raconteur, able to call up “Ó propos” anecdotes and display a clever, dry sense of humour.

He warmed up the audience by recalling a long-ago event – a University of Toronto debate between the young Conservatives and the young CCF members (the predecessor of the NDP) of the day, on the subject of the Ontario government’s conservation and reforestation project of that time. The Conservative speaker praised the excellent 5-year record of the Ontario government’s performance. Whereupon, the CCF speaker responded that “with all that ‘fertilizer’ [put out by the Ontario government], how could they go wrong?” A nice start – he had everyone’s attention.

As he launched into his topic for the lecture, he took his audience by surprise by stating that “…at its essence, there was very little difference in civil liberties in Canada before and after 9/11…”. By citing an example from the past, he supported his premise, that in fact civil liberties were not so well-protected even before the horrible tragedy of Sept. 11th, 2001. He was referring 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, herded the 35 women in the group into a washroom, ordered them to strip and searched their private parts in a humiliating and frightening procedure. 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 convoyed to this motel to spend the weekend together?

Borovoy used this example to illustrate the comprehensive powers unnecessarily given to and used by the police. After all, they already have 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”. 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 legislation 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.

Mike Harris’ Ontario Conservatives 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 Harris government passed the bill, but the letter of the law was impossible to uphold.

After the tragic events of 9/11, 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 exhorting the population to inform on other citizens. These hysterical laws leave many innocent individuals unprotected and unjustly accused.

This very un-Canadian approach harks back to similar, shameful activities during the McCarthy era in the U.S., 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.

Those whose civil liberties are infringed, added Borovoy, are often vulnerable for a variety of reasons – as members of visible minorities or certain religious groups, welfare recipients, panhandlers, 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.

Borovoy quoted the Protestant minister who spoke out towards the end of the Nazi era in Hitler’s Germany. The minister had said, “first they arrested the Communists and I did nothing. Next they arrested the Social Democrats, and I did nothing. Next the Jews, the trade unionists, the Catholics, and I still said nothing. Now that they arrested me, there is no one left to do anything about it”.

He praised the healthy scepticism of Canadians 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 this excellent opportunity to promote the Canadian Civil Liberties Association as one way of working towards this aim.

The ensuing lively question period demonstrated that today’s young generation is very much concerned with these issues. Borovoy’s remarks and his eloquent delivery were rewarded with the enthusiasm of the audience in Glendon’s classic and elegant Senate Chamber.

Published on March 18, 2004