  
THE PROTECTION OF OUR FUNDAMENTAL FREEDOMS Many, if not most, common law democracies recognize as fundamental a number of additional freedoms. But the rights to due process of law, dissent, security of the person, and personal privacy represent at least the bare bones of the democratic ideal. These civil liberties provide the minimum vehicle for securing the enjoyment of personal freedom and equal consideration. In a democratic society, the fundamental freedoms transcend everything else. They provide the framework and the ground rules for the pursuit of our various and competing self-interests. Whatever differences people may have on any number of issues, there is a common interest in avoiding the dangers of tyranny and ensuring the blessings of liberty. Whether, therefore, we be anglophone or francophone, federalist or separatist, conservative or radical capitalist or socialist, indigenous or immigrant, it behoves us to promote the survival of the fundamental freedoms. Yet, as we have seen, even the fundamental freedoms are not absolute and unlimited. Some limitations under some circumstances are necessary and inevitable. In addition to the limitations already encountered, the Canadian Criminal Code provides that anyone, not only a police officer, may use as much force as is reasonably necessary to prevent the commission of an indictable offence that is likely to cause immediate and serious harm. We also have the common law defence of necessity which, in urgent situations, will enable anyone to commit an act, otherwise illegal, when that reasonably appears to be the only way to avert an even greater illegality. In situations of great emergency for large sectors of our society, Canada has enacted an emergency powers statute that, under certain circumstances and subject to certain safeguards, will permit the government to suspend many of our normal liberties for varying periods of time. The need to protect - and sometimes to abridge - our fundamental freedoms creates a continuing dilemma for democratic societies. The problem is to adopt abridgements only when necessary and to ensure the abridgements adopted are no greater than necessary. How can we minimize the risk of improper abridgements to the fundamental freedoms? Some countries, like the United States with their constitutional bills of rights, that are difficult to amend, rely greatly on their courts to protect the fundamental freedoms. Other countries, like the United Kingdom, without written constitutions, put more faith in their elected parliaments. The Americans believe that, in the area of civil liberties, the courts should be empowered to restrain even the popularly elected legislatures. This means that the courts can actually strike down laws that, in the opinion of the courts, infringe upon constitutional rights. Supporters of the British practice, on the other hand, argue that it is undemocratic for appointed judges to exercise such veto powers over elected legislators. According to the British view, the best hope for the fundamental freedoms lies in the fairmindedness of the parliamentary traditions. The Canadian system represents something of a compromise between the American and the British systems. Like the United States, Canada has a bill of rights - the Charter of Rights and Freedoms - which endows the courts with special powers in the area of fundamental freedoms. But, unlike its American counterpart, the Canadian Charter is only partly "entrenched". It is part of the Constitution and as such can be used by the courts to nullify legislation. But many of the Charter's provisions can be by-passed. Either the federal Parliament or a provincial legislature may overcome most of the Charter by enacting a resolution that any of its otherwise valid legislation will apply "notwithstanding" the Charter. This has the effect of keeping the courts from using the Charter to overturn the legislation in question. The resolution automatically lapses if it is not re-enacted within five years. Legally, it would be easy for our elected legislatures to overcome most of the Charter's provisions. Politically, however, the exercise could be very troublesome. The mere introduction of a bill to oust the application of any part of the Charter would likely spark an enormous controversy. Without pretty overwhelming support in the legislature and the community, a government would be very reluctant to take the heat that such action would invariably generate. And the prospect of having to endure such flak every five years afterwards can only increase the reluctance to embark on such a course in the first place. As of this moment, the only province outside of Quebec that has invoked the "notwithstanding" clause is Saskatchewan and there it was used to protect special legislation aimed at preventing a series of civil service work stoppages which were seen as particularly disruptive. (Since Quebec has never politically consented to the Charter, it must be seen as a special case.) Unfortunately, however, the legal enshrinement of the fundamental freedoms cannot adequately guarantee their observance. Often the victims of civil liberties violations simply don't know of their legal rights to redress. Often, even if they do know their rights, they lack the resources to exercise them effectively. Legal action and court cases can be costly, time consuming, nerve-racking, and exhausting. Frequently, it is only the very rich who have the resources to spend the money and withstand the pressures which successful legal action requires. In the case of groups like Canada's Aboriginal people - Indians, Inuit, and Metis - financial destitution is compounded by cultural estrangement and sheer physical distance. Many Aboriginal people feel a sense of discomfort in attempting to cope with the unfamiliar institutions of the white society. Moreover, a great number of these people live far away from the centres where legal actions are conducted. Extreme poverty inhibits travel and even telephone communication. In recent years, governments at both federal and provincial levels have begun programs to bridge the gulf between libertarian aspiration and practical realization. With the aid of federal subsidies, almost every province provides some kind of legal aid to those whose poverty prevents recourse to legal action. The range of assistance and the methods of delivery differ from province to province. What most government legal aid programs share, however, is a lack of assistance beyond certain segments of the poor and a paucity of response to the problems of ignorance, alienation, and distance. A number of provinces have created also the special office of ombudsman with flexible powers to protect the individual citizen against abuses by government authority. Although in most cases the occupants of this office lack the legal power to make binding decisions, they can compel access to various types of official information and, through the use of publicity and the prestige of their positions, they can exert persuasive pressures on recalcitrant governments. Consistent with our approach throughout, we leave to the reader the task of passing judgment on the various methods by which democratic governments choose to protect the fundamental freedoms. What we can say at this point, however, is that, despite the techniques employed by government, there is no substitute for a committed, intelligent, and vigilant citizenry. The enlightened conscience of the people remains the most effective safeguard of liberty. Conversely, the greatest peril to liberty is a people with a blunted conscience. History has demonstrated, time and again, how tyranny feeds on apathy. Few of us, of course, are apathetic about ourselves and our own immediate self-interests. But the crucial test is how responsive we will be to the plight of other people. Will we insist on civil liberties for others as well as for ourselves, for our rivals as well as for our allies, for those who think differently as well as for those who think similarly? Upon the answers to these questions depends the viable survival of the democratic system. Perhaps the most eloquent warning of the perils to freedom emerged from the ruins of World War II. Recounting his experience with the Nazi regime in his country, Reverend Martin Niemoller, a German Protestant clergyman, made the following statement: "First they arrested the Communists but I was not a Communist, so I did nothing Then they came for the Social Democrats - but I was not a Social Democrat, so I did nothing. Then they arrested the trade unionists - and I did nothing because I was not one. And then they came for the Jews and then the Catholics, but I was neither a Jew nor a Catholic and I did nothing. At last they came and arrested me - and there was no one left to do anything about it." This statement, wrung from the agony of Hitler's Germany, serves as a lesson for democrats in all countries, for all time. The freedom of no one is safe unless the freedom of everyone is safe.
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The Fundamentals Of Our Fundamental Freedoms -- The Booklet Contents |
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