A Conservative View of Civil Liberties

MR. DERRY:

Ladies and gentlemen: It is an interesting exercise to focus on how best to describe a person in one word, and still capture the essence of that person and what he or she stands for or has accomplished. For instance, today's guest speaker has been involved in a wide variety of activities for many years, including being a newspaper reporter and columnist, a freelance journalist, an author, a TV host, and a driving force behind numerous volunteer organizations. Yet, if one looks at all of these activities, there is in fact one common underlying theme, and this is an interest in and concern for people, particularly those most in need of assistance. It seems to me the essence of June Callwood is "humanitarian."

June Callwood started her career as a newspaper reporter and quickly, this job grew to include a wide range of other activities. For instance:

- She has written seventeen books, including Love, Hate, Fear and Anger in 1964, Canadian Women and the Law in 1973, The Law Is Not For Women two years later, and Portrait of Canada in 1981. Next fall, a new book will be published. Its title is Emma - The Improbable Spy, and it is about one of the people exposed by Igor Gouzenko.

- In the sixties and seventies June was a host on such television and radio shows as "In Touch," "Generations," "Court of Opinion," and "Human Sexuality." She has written numerous articles for such magazines as Maclean's and Chatelaine and has been and is currently a columnist for The Globe and Mail.

She has not merely lent her name to new projects, but has been a leader in getting them off the ground and seeing that they succeed. To mention only a few, she was a founding member of the Canadian Civil Liberties Association, the Writers' Union of Canada, Nellie's Hostel for Women, Amnesty International, Justice for Children, Jessie's Centre for Teenagers, the Periodical Writers' Association of Canada, and Women for Political Action. In almost all of these organizations and in others, she has served in senior executive roles, usually at some stage chairman or president, making certain that they operate successfully.

Of course, for most of us this would take 150 per cent of our time. However, June has done these activities on top of the responsibilities of a household of a husband and four children.

As you can see, the common theme running through all of this, as mentioned a moment ago, is a deep concern for people. It is not surprising that she has received a number of awards, including the Humanitarian Award of the Canadian Council of Christians and Jews and being made a member of the Order of Canada.

You will recall that last December we were addressed by Solicitor General Robert Kaplan on Canada's proposed Security Agency. Throughout the discussion of various drafts of the proposed legislation, June Callwood and the Canadian Civil Liberties Association have been active in making certain that our rights as individuals are appropriately considered.

June's involvement in the Civil Liberties Association goes back some twenty years and she has been Vice-President since 1965. It is this involvement and concern for individual rights that make her so well qualified to address us today on "A Conservative View of Civil Liberties." Please join me in welcoming June Callwood.

MS. CALLWOOD:

Mr. Chairman, ladies and gentlemen: Everyone's concept of civil liberties is individual and homemade. The answers to the key questions of where the right of an individual to be difficult must give way to the right of the state to operate a coherent society, and where the state's understandable preference for serenity must yield to the quirks of its citizens are thorny ones. We resolve the dilemma with more than reason. Our reactions are complex mixtures of our early values system, our adult experiences, and some reflection. Very often, our view of civil liberties is shaped primarily by something in our Canadian bones. That gut reaction, a conservative reaction, is what makes us a distinctive people. We are not Americans who happen to have drawn the worst climate and geography; we are a different people, and this is nowhere as apparent as it is in the area of civil rights.

The pattern in Canada when a civil liberties crisis erupts is a rhythmic response. The first organ sound is a celebration of approval for the government and the police who have behaved ferociously to end the crisis. The second sound, much delayed and a bit ragged, is to question whether the government and police did indeed behave well, and very often to conclude that they did not. Both responses, oddly enough, come from the same source: the bedrock of conservatism on which the Englishspeaking portion of this country was founded, and which has been the bulwark which has kept the United States from its manifest destiny for more than two hundred years.

There is probably no other democracy on earth that would have supported so enthusiastically the War Measures Act of 1970, when the civil rights that knights obtained seven centuries ago at Runnymede were stripped from almost five hundred people because two men had been kidnapped in Montreal. And what other democracy has as its national symbol a police force - the Royal Canadian Mounted Police - and does not appear to be unduly dismayed that this police force falsifies documents, commits burglaries, steals dynamite, collects files on eight hundred thousand citizens - one file for every seventeen adults in the country - and spreads lies about the mental health of Canadians the police don't happen to admire?

On the other hand, if the country is as blindly trusting of authority as it appears to be from these examples, why is it that use of the War Measures Act is now largely discredited? Why did the Canadian Civil Liberties Association receive such widespread support for its petition asking police to obey the law? And why did the secret service bill which Robert Kaplan presented last summer run into a hurricane of resistance to its proposal that Canada should have a secret police force with unlimited powers accountable to no one?

There is a paradox at work. There is consistency in what seems to be inconsistency. It is a sense of decency and fairness that brings Canadians home to the centre, despite flurries of autocratic zeal. In my view, we have been misled for two hundred years by the kind of conservative extremism that the Loyalists advocated because of their terror and rage at being uprooted and thrown into the wilderness by the American Revolution. The War of Independence of 1776 did not create one nation, the United States of America; it created two, and the other was Canada. One side of the border celebrated individualism and got with it enterprise and stagecoach robbers; the other side of the border, out of necessity, celebrated the military model of reflexive obedience to authority and got with it branch plants and safe streets.

The Tories, the Loyalists who fled that revolution and created two new colonies, New Brunswick and Upper Canada, found nothing to admire about American liberty. In the name of freedom and civil rights, they had experienced mob violence which stripped them of their freedom and civil rights.

In early Canada, the word "liberty" was seditious. With Americans rattling their sabres along the border, and not infrequently invading, it was understandable that notions of the state protecting diversity would find little support. Tories had

endured an excess of speeches about the nobility of the common man; the eternal vigilance they vowed was not at the altar of freedom but on the barricades where upstart common men could be drenched with burning oil.

We can respect those early Canadians. We can admire them and be grateful to them because the border did hold throughout the years of challenge. But it is time to say that their values were distorted out of imperial necessity. Real conservatives of their day protected diversity - New York was one of the most polyglot cities on earth - and respected dissent. Their convictions about the usefulness of a strong structure flowed from their belief that freedom could flourish better within stability than amidst chaos. We bear the legacy of radical conservatism, pushed to the wall by the atrocities of the American Revolution, and we must gently restore the fundamental principle of conservatism, which is that the responsibility of a strong state is to protect minority opinion and not to destroy it. Deep within the plates of rock that support this country, there are small, sighing shifts. The new Charter of Rights and Freedoms has created few changes in law or the interpretation of law because of the higher courts' fondness for status quo decisions, but something is happening within us all. There is an attitudinal change, a spunky scepticism of such traditional tenets as "Might is right" and "The end justifies the means."

If we now entertain some cynicism about the nobility of the Royal Canadian Mounted Police, we can be sure that it can only lead to improvements in leadership and training within the force, and will not expose the settlers of Medicine Hat to invasion by the United States cavalry.

If we think it excessive for the Attorney General of Ontario to suggest that blood will run on the streets if illegally obtained evidence is not allowed in court, it may follow that our splendidly equipped, well-disciplined police, employing the generous powers accorded them, will be able to combat crime without becoming criminals themselves. Respect for the law can only be improved if our police behave as well as they rightly insist that we do.

Cautiously, as befits our Canadian way, we are venturing into areas where we once feared to tread because we didn't believe that the country could survive. The ruthless practices that the state ordered against the peaceful demonstration in Winnipeg in 1919, in Regina when the jobless were on a protest march in the thirties, in Quebec's Padlock Laws of the fifties, all were measures of a state that was unsure of the loyalty of its citizens, a state so immature as to react violently at the slightest criticism.

We do not live in a house of cards. We are ready, at last, to tolerate a measure of quirkiness, of perversity even. A handful of loony racists in our midst is not a threat; racist organizations in Canada do not flourish. A demonstration against the cruise missile testing or the shortage of day-care spaces for children of the poor will not destroy our equilibrium. I might even venture to say that gay men may be permitted to bathe in private without the necessity to mount the largest police raid in recent history to make sure they rinse the tub.

We are developing a faster reaction time to autocratic measures. For instance, few Canadians thought it was reasonable that a man should be acquitted of the same offence three times by a jury of his peers but should be sent to prison anyway, as happened to Dr. Henry Morgentaler. Most people, I suspect, also feel that a person who detests the metric system should be able to say so, but a civil servant whose job did not involve any application of metrication lost his job some time ago.

Civil liberty issues are difficult. They are rarely as black and white as those examples. They involve the balancing of two rights which are in collision. Oliver Wendell Holmes declared sternly that freedom of speech does not mean freedom of the speech with which you agree. If that were so, there would never be any question about it. That is the kind of freedom of speech found in, say, the Soviet Union. The freedom of speech which really matters, that which marks the health and vitality of a nation, is the freedom of speech with which the majority profoundly disagrees. That is where protection of those freedoms is highly unpopular, and where prohibitions against them will win votes. It takes moral courage to defend the rights of villains, but if we do not, there is no defence for the rights of saints either.

What do we do about a nut who cranks out pamphlets outlining his theory about a Jewish-Communist conspiracy to take over the world? Or the man who wants to look at a videotape depicting a woman being mutilated? Or a member of a Jehovah's Witness sect who would rather die than accept a blood transfusion? Some individual liberties quite properly must yield to the imposition of control in the interest of common good. A factory owner cannot operate a dangerous workplace, for instance. We have accepted a high degree of regulation but it does not follow, as the night the day, that all regulation which purports to be in our best interests should not be examined critically. The excellence of conservatism lies in its fairness.

Let me cite a contentious example, our abortion laws. There are two clear choices: one is that all abortions should be against the law and the other is that abortions should be permitted. Some years ago, Parliament tried to find a weird position between those two clarities: abortions are legal under certain conditions. They must be done in hospitals and approved by hospital committees. What has happened is that there are 1,348 civilian hospitals in Canada but only 271 of them have committees. Of these, 17 per cent have never approved an abortion. A further 33 per cent approve fewer than fifty abortions in a year, some as few as one. As a result, millions of Canadian women live in areas where abortions are not available. That's patently unfair. Implementation of legislation should not depend on accidents of geography.

Obscenity laws are intrinsically unfair. The present clauses in the Criminal Code describe as criminally obscene a number of portrayals of sexuality in what the law calls an "undue" degree. It has taken our courts about thirty years to come to a rough, uneven, mystic consensus about what "undue" means. Recently, Judge Stephen Borins startled that consensus by deciding, quote "the standard run-of-the-mill sexual intercourse," end quote, which he described as cunnilingus, oral and anal sex, and lesbianism, did not offend "community standards." Masturbation, however, does offend community standards except in Manitoba, where the Faculty of Medicine of the University of Manitoba was permitted, after an initial dispute with customs, to import a sex-therapist training film on masturbation.

An analogy would be if we decided that the country was losing credibility because so many Canadians wore silly hats. Moreover, a number of studies would be produced to demonstrate a correlation between the wearing of silly hats and silly behaviour. Accordingly, the Criminal Code would stipulate that hats which are unduly silly and offend community Standards are contrary to the law. Police and courts then would busy themselves with trials featuring as exhibit one an allegedly silly hat. Expert witnesses would assemble and declare on one hand that the hat was not a bit silly and on the other that it was. An underground of banned hats would spring up. As Judge Borins observed himself, the obscenity laws are the only ones on the books in which a citizen doesn't know he or she has broken the law until the judge says so.

As a further reflection on the pitfalls of legislating in matters of moral choice, we have the Ontario Film Censor Board which operates in a star chamber, blissfully immune to the vagaries of the Criminal Code. We do not have prior restraint in any other area of our society, as lawyer Ken Swan pointed out in court this week, not even in an area so vital to our well-being as national security. Why are we doing this to films which can be restricted for adult viewing? We see today a strong movement to extend the obscenity laws and the powers of provincial censor boards. The rationale is that men become violent when they view violence. I assume we will be consistent: contact sport also will be banned; let us have no more gory Shakespeare or news footage of corpses in Beirut. Once all that is sanitized, men will be as docile as lambs.

My point is that laws must control what people do, not what they might do. We do not, for instance, prohibit the sale of high-speed cars on the grounds that people will break the speed limits if they own one.

In contrast, there was a Supreme Court of the United States' decision during the Vietnam War, when a schoolteacher in the Midwest was fired for wearing a black armband in the classroom. The court ordered him reinstated under the provisions of the first amendment guaranteeing freedom of speech and noted: "The will of the transient majority can prove devastating to freedom of expression."

I need not remind this audience that the single most distinctive difference between a totalitarian society and a democracy is the existence of freedom of speech and the right to dissent. Freedom of speech can be a mockery, however, in the absence of a government which is open and accountable to the electorate. We have in the federal Liberals and the Ontario Conservatives two secretive governments whose freedom of information legislation is dedicated to concealing information. We also have, in the Official Secrets Act, which was amended forty years ago to bring it into the nineteenth century, an instrument of stupefying power. It belongs in a medieval museum and not in a country which is one of the soundest democracies on earth.

The rebels of 1776 took the idealist view that people are essentially good and noble and should be unfettered. The conservatives who reacted against that vision declared that people are innately evil and unpredictable and therefore require severe restraint until after they are long in their graves. We are gradualists, so today we have a glorious opportunity to find the sane middle between those positions. A conservative interpretation, one based on justice and fairness for all, is beginning to grow. This country is not destructible unless we lose our nerve, sink back into severity, and destroy it ourselves with narrow righteousness.

The appreciation of the audience was expressed by Jean Casselman Wadds, a Director of The Empire Club of Canada.