  
In the fall of 1981, a meeting of the federal prime minister and provincial premiers of Canada produced a decision to dilute certain women's rights and delete certain native rights from the bill containing our country's new constitution. Within only a few days, the decision was largely reversed; there was an agreement to restore much of what had been removed. How was it that Canada's powerful ruling elites so quickly and radically reversed themselves? Almost from the moment their initial decision was announced, it was greeted by a storm of public protest - angry demonstrations, picket lines, public meetings, newspaper editorials, radio and television commentaries. The federal and provincial politicians were subjected to a barrage of telegrams, letters, and lobbying efforts. In the face of such widespread and vigorous pressure, Canada's leaders found it prudent to retreat. The essence of what happened is that the people objected to what their governments had done. In democratic societies, the people are the ultimate authority. The machinery by which our laws are enacted (open sessions) and our governments are selected (periodic elections) is designed to ensure that no laws or governments can long survive without the consent of the people who must abide them. However, even in autocratic societies, governments often presume to act in the name and with the consent of the people. The people's "consent" in autocratic societies is often achieved through a combination of secret police, storm troopers, concentration camps, torture chambers, and firing squads. In some of these societies, even though there are elections in which everyone may vote, there is only one party, one slate of candidates, and one set of policies from which the citizens may choose. Coerced and contrived consent do not satisfy the standards of democratic procedure. The democrat believes that the consent of the citizens must be freely given. This gives rise to one of the most vital principles of democratic society. The right of free consent necessarily implies a right of free dissent. Those who oppose existing government policies must have the right to compete openly and publicly with those who support such policies. The citizens must have the opportunity to choose among alternative parties, candidates, and policies. Without open dissent, there can be no effective consent. Without available alternatives, the people cannot effectively exercise their sovereign authority. The right to dissent does not mean a right to disobey a duly enacted law. Rather it means the right to oppose passage of the law in the first place, the right to petition for its repeal, amendment, and replacement thereafter, the right to promote the enactment of different laws at any time, and, at the next election, the right to campaign and to vote for alternative candidates to replace the incumbent law makers.
Freedom of Speech, Assembly, and Association The chief instruments of dissent are freedom of speech, freedom of assembly, and freedom of association. Democratic theory proclaims that all people should be free to speak, write, publish, broadcast, assemble, demonstrate, picket, and organize on behalf of their beliefs, their opinions and their points of view. A necessary complement to these freedoms is the existence of many independent mass media of communication (newspapers, magazines, radio stations, television networks) with the right freely to convey to the public news of social controversy as it occurs in our legislative bodies and in the community. Inevitably, such vast freedom carries with it certain risks. Freedom of speech, assembly, and association can be used to propagate lies as well as truths, wrongs as well as rights, and injustice as well as justice. The underlying hope is that given adequate exposure to all sides of an issue, the people will possess enough good sense to make the proper distinctions and judgments.
The real question here is where to put your trust - in the rulers or in the people. In autocratic societies where there is little or no right to dissent, the rulers decide what viewpoints the people may hear and see. The assumption is that the rulers are sufficiently wise and benevolent to make these decisions. Democratic societies, on the other hand are fearful of reposing so much trust in their leaders. It is not that democratic societies necessarily have blind faith that the masses of people will always choose wisely. It's that they have considerably less faith in anyone else. Indeed, the power to remove viewpoints from public scrutiny carries with it an enormous risk of tyranny. The exercise of such power can decide the outcome of almost any social conflict. Deny tenants the right to distribute their leaflets and you ensure victory for their landlords. Stop unions from picketing and you guarantee the domination of management. Take opposition viewpoints off television and you hand the next election to the government. Democratic societies prefer to run the risk of error through the free competition of viewpoints than to run the risk of tyranny through curtailing what the people may hear and see. If there be error, the answer to it is not less communication, but more communication. This explains why we will often find principled democrats fighting vigorously for the right to dissent even on behalf of those whom they personally dislike. Democrats have made a motto of the famous words of the eighteenth century French writer, Voltaire: "I may disapprove of what you say, but I will defend to the death your right to say it." Yet, freedom of speech, assembly, and association cannot be absolute and unlimited. Some controls under some circumstances are necessary and inevitable. As a great judge once wisely counselled us, there can be no freedom of speech falsely to shout "fire" in a crowded theatre. Moreover, freedom of assembly cannot mean the right to conduct a noisy parade in a residential neighbourhood at 4 o'clock in the morning. And freedom of association cannot include the creation of conspiracies to commit criminal offences. As it happens, in Canadian society today, there are a number of laws which restrict freedom of speech, assembly and association. Defamation laws enable people to sue and recover damages from those whose words and publications have falsely maligned them. Under the Criminal Code, it is unlawful to promote hatred of any group because of race, creed, or ethnicity; to counsel the commission of a criminal offence; to cause a disturbance at or near a public place by shouting, singing, swearing, etc. Moreover, in many Canadian municipalities, permission must be secured from police authorities in order to conduct parades and demonstrations in the streets. It is not our function here to pass judgment on these and the many other Canadian laws which regulate freedom of speech, assembly, and association. Rather, it is our function to declare how essential these freedoms are and to recognize that they must inevitably be subject to some limitations. The problem, at any point, is to decide whether the harm caused by the existence of the freedom is substantial enough to warrant an abridgement of the freedom - with all the dangers that abridgement involves. No doubt, the individual reader will wish to decide how far, if at all, the present laws in Canada encroach unduly on these vital freedoms.
There is one further combination of safeguards by which democratic societies sustain the right of dissent - the periodic election of our law makers through the process of the secret ballot.
Freedom of speech, assembly, and association would have limited value as merely therapeutic exercises. What makes them so important is the fact that they culminate every few years in a collective decision as to who should make our laws. Our law makers are elected for maximum terms. At the end of these terms, the people may re-elect or replace any or all of them. The ultimate expression of the citizens' consent and dissent is the decision as to which candidates shall receive their votes. And the fact which makes the vote a reflection of the citizens' free choice is the existence of the secret ballot. Since no one can watch the citizens mark their ballots, no one can exert undue influence on the choices they make.
But the right to question, challenge, and ultimately to replace the government would be rather hollow in the absence of adequate knowledge about what is going on in government. Although the existence of a free press and free public debate gives the public a large supply of information, the government has traditionally exercised a wide discretion to withhold material under its control. Throughout much of the Western world, there have been increasing pressures to restrict this discretion. The argument has been that government holds its data on behalf of the people. The principles of democratic accountability require that the people have all the facts they can get in order to judge the performance of their governments. In consequence, most jurisdictions in Canada have enacted freedom of information laws subjecting government information to public disclosure. While there is still a need for certain exemptions, the onus is usually on governments to justify every attempt to withhold the flow of data.
The nature and scope of the exemptions raise difficult questions. Just what matters might be properly withheld? National security? Ongoing law enforcement investigations? Material that would invade the privacy of citizens? And who should be empowered to make the final decision? A court? The government? Or perhaps the elected legislatures themselves? And how far should such decision makers be able to look at the material that is at issue? While it is not our function here to resolve these questions, it is our function to ask them. Just as democratic autonomy requires a right of effective dissent, so does the right of effective dissent require an adequate access to data.
Of all the fundamental freedoms, the right to dissent may be the most crucial. The exercise of this right enables aggrieved persons to appeal for public support in their quest for redress. The assumption is that the best antidote to unjust governments and unjust policies is an atmosphere of free public controversy which culminates in secret ballot elections. In this sense, the right to dissent may be the freedom upon which our whole complex of freedoms depends.
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The Fundamentals Of Our Fundamental Freedoms -- The Booklet Contents |
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THE RIGHT TO DISSENT
