Archive for March, 2010

Steyn on Free Speech

Ours is “one of the oldest free societies on the planet.” That’s Mark Steyn speaking. Canadians are heirs to a tradition of freedom that goes back “eight centuries.”

In his column of March 23 in the National Post, Steyn says that the University of Ottawa’s attempt to lecture guest speaker Ann Coulter about the “Canadian approach” to free speech, is at odds with “eight centuries of Canada’s legal inheritance.”

Eight centuries! From the time of Magna Carta.

You will remember that anticipating Coulter’s appearance at the U of O, Provost François Houle wrote her to say that Canadians and Americans differ; we’re more civil, supposedly; we’re more constrained on contentious issues.  Houle’s right in one way. Since the 1960s Canadians have been chipping away at their tradition of liberty. But he’s wrong to suggest that there’s an inherent, long-standing difference between the countries. The Canadian tradition of ordered liberty is the same tradition that informs the American Declaration of Independence and the American Constitution.

Canada and the U.S. are heirs to the same eight centuries.

We’re forgetting the legacy. Did I write “forgetting”? That’s a euphemism. We’re trashing it. Consider this statement by Irwin Cotler, then Canada’s Justice Minister, in a speech to mark the twentieth anniversary of the Canadian Charter of Rights and Freedoms. Before the Charter, said Cotler: “Canada had a history of state-sanctioned institutionalized discrimination … The judicial emphasis was with the powers of government rather than the limitations of the exercise of power … Although there was an implied bill of rights, there was no constitutional protection of law” (Rick Kardonne, The Jewish Tribune, 21 April 2005).

“There was no constitutional protection of law.” How could Cotler say that?  What was he taught in law school?

Compare Pierre Bédard’s description of Canadian tradition. Writing in 1806, Bédard promised readers of his political journal, Le Canadien, that he would reveal “the rare treasure which we possess in our Constitution.” No one was more aware of the difficulties of the new regime in Quebec than Bédard. As leader of the majority party in the Assembly, a party consisting mainly of French Canadians, he was constantly at war with the “English” in the Executive and Legislative Councils. But knew what was due to French Canadians under British law. He boldly claimed the British tradition of freedom of speech and in Le Canadien, he reproduced excerpts from John Locke’s Two Treatises of Government,  and excerpts from William Blackstone, and documents associated with the Glorious Revolution of 1688.

We’ve lost Bédard’s long view. We’re letting the treasure slip away.


Remembering Whitney Public

My sister and I are exchanging memories of our public school in Toronto, in the 1940s. We walked the seven or eight blocks, sometimes together.

I wrote: “Memories of Whitney are flooding back. The Railway Bridge: there was always the moment of terror as you crossed. Would a train go through beneath before you got to the other side? I remember climbing the escarpment stairs. I never thought of it as a hardship. It was what you did to get to school.

“I loved the games at recess. Alleys. I didn’t play well, but I had fun. And then I discovered that you could buy bags of alleys at the dime store. That seemed a bit of a cheat. Some people had to win their marbles, some could buy them. Remember the fun we had clattering ink well lids? All the business with pens was fun, filling the well and changing nibs. Getting inky fingers. I loved cleaning the blackboard erasers. You’d go down to the yard and whack the brushes together, raising messy clouds of chalk dust.

“I never had enough to read. The library was open only one or two days a week. And I never understood what I was supposed to be doing at school. Sometimes people would say to me, Janet, you should try harder. I’d get my homework or assignment, and do it. What else was required? “Apply yourself.” What did that mean?

“But those were happy days. Did we know we were happy? I don’t think so. The best thing about getting older is that when happiness comes you recognize it.

She wrote: “I remember other stuff. We all wore a lot of wool, which would get wet and muddy. The classrooms were really smelly places because of the soggy mitts, wool socks, sweaters and thick pants drying in the over-heated classroom, on us or on the radiators that were under the tall windows. Some of the kids hardly washed at all and that was another layer of smell. Clothes didn’t get tossed into washing machines like they do now. Those odd pants the boys wore – breeks – never got washed from September to spring. Now when I go into schools the children look so clean and so very healthy. I remember everyone having sties, pink eye, impetigo, bad dandruff, even ringworm. I used to get boils all the time. Everyone had bloody knees from the rough recess games. There was sneezing and colds. Someone would get measles or chickenpox and that would make the rounds. Physically, we were all repulsive little things. But we did play good games and laugh, in between the bouts of utter terror from bullies or tests or general confusion as to just what was expected.”

Restoring Aboriginal Property Rights

Long promised, now available!

Beyond the Indian Act: Restoring Aboriginal Property Rights

Tom Flanagan, Christopher Alcantara, and André LeDressay, Foreword by C.T. (Manny) Jules (McGill-Queen’s University Press)

The argument convincingly shows what can be done and what is being done to alleviate poverty and the wretched housing conditions on Indian reservations.

In brief, the book makes the case for escaping the Indian Act by developing and extending the First Nations Land Title Recognition Act, a measure already in effect in some jurisdictions, which gives First Nations access to modern, effective property rights while enabling them to retain their autonomy and institutions of self-government. The authors convincingly situate this progressive innovation in the context of Aboriginal history and – to my mind, this is the book’s most important feature – show that the idea for the First Nations Land Title Recognition Act originated in the political thinking and experience of First Nations’ leaders, has been developed and is still being developed by them, and can be put into practice in the First Nations, by First Nations governments.

Thanks in large part to Flanagan’s prior book, First Nations, Second Thoughts, Canadians are ready to conclude that the Indian Act, which on a generous interpretation was intended to protect Aboriginals and to preserve their independence, has failed dismally on both counts and far from promoting the welfare of Canada’s original peoples is contributing to the distressing levels of poverty. Among the general Canadian populace it is widely believed that there is no remedy for the wretched conditions. In Disrobing the Aboriginal Industry, Frances Widdowson and Albert Howard argued that the Indian Act enriches some individuals and groups at the expense of others. But the strength of their book lies in the analysis. They do not propose a believable remedy.

The signal feature of this book is that it proposes credible means to escape the Indian Act, and credibly locates the crucial decision-making powers for making the escape – including the choice whether to make it – at the level of the First Nations governments. Beyond the Indian Act marks an important advance in Flanagan’s thinking. As he notes, First Nations, Second Thoughts called for action “at the top,” that is, by the Canadian governments. It thus paradoxically reinforced notions of Aboriginal dependence in the course of making the case for independence. In the scheme described in this book, the crucial decisions will come “from the bottom.”

The argument develops seamlessly. There is an engaging Introduction by Chief Manny Jules (who also has the last word in the book). Each of the succeeding three Parts is introduced by a brief, helpful preface. In Part One, Flanagan sketches a history of Aboriginal perceptions of individual and collective ownership, reminding us that the intention of the First Nations Land Title Recognition Act is not to impose assimilation on Aboriginals, but to restore their property rights. In Part Two, Christopher Alcantara shows how present modes of securing title to land on the reserves (Certificates of Possession, Customary Land Rights, etc.) inhibit the individual’s autonomy and way of life, and render sustained development of communities expensive and uncertain. The research is exceptional and the stories are well told. The way is thus prepared for the crucial argument of Part Three in which André Le Dressay describes the search for the measures that are taking shape as the First Nations Land Title Recognition Act.

Hernando de Soto, the President of the Institute for Liberty and Democracy, comments: “You don’t have to travel to Zambia or Peru to see dead capital. All you need to do is visit a reserve in Canada. First Nation people own assets, but not with the same instruments as other Canadians. They’re frozen into an Indian Act of the 1870s so they can’t easily trade their valuable resources. Beyond the Indian Act provides strategies to correct this so First Nation people can generate wealth in a manner that other Canadians take for granted.”

Baker, Tomkins, Breckenridge

In recent blogs I’ve praised Dennis Baker’s argument for the cooperation of legislative and judicial branches in a process of coordinate constitutional interpretation (Not Quite Supreme, The Courts and Coordinate Constitutional Interpretation (McGill Queen’s University Press, 2009). But there’s a question.

Is today’s hidebound Parliament in a position to take part in the coordinate game? Don’t we need a feistier House of Commons?

If your thoughts are turning to the proposals for parliamentary reform suggested in Adam Tomkins’ Our Republican Constitution, read George Breckenridge’s short review in a recent letter:


As a result of your reminder I have now read Our Republican Constitution. Fascinating. His critique of legal constitutionalism seems unanswerable and his historical account certainly conforms to what I understand. His argument for republicanism is mostly unobjectionable but he doesn’t pursue the equality principle which raises some obvious problems.

His section on Parliamentary Government Today is excellent. His Worst-Case Diagnosis (125-6) is an excellent description of how Ottawa works at present, while the following pages on Reassessing the Parliamentary Record (126-30) are an excellent short summary of the ways in which the British parliament has come, over the last forty years, to function much better than ours. The frequency of backbench revolts has increased since the early 1970s and the increased independence of the committees from the 1980s.

When it comes to his recommendations for change, however, he shows himself to be a lawyer and not a political scientist. No political scientist would so cavalierly advocate the abolition of political parties. He has obviously no idea of the implications, even if it were possible. One can certainly argue that party discipline is much too tight in Ottawa. Central control of the nomination process is the problem, which does not exist in the UK. And while replacing many prerogative powers with statutory powers would be good, I don’t think you can ever abolish executive prerogative completely. Likewise abolition of the Crown creates problems of which he seems unaware. Apparently he would rely on the Speaker of the House to keepgovernments in check.

Still, a very stimulating argument. George

On this Day, 143 Years Ago

March 8, 2010: The Historica-Dominion Institute reminds us that on this day, 143 years ago, the Westminster Parliament passed the British North America Act (1867). Queen Victoria gave it royal assent on March 20 and on July 1st it came into effect (National Post, AL7).

“The Act joined the colonies of Canada, Nova Scotia and New Brunswick in one federal union and outlined the distribution of powers between the central Parliament and the provincial legislatures.”

It’s hard to squeeze Confederation’s story into a sentence or two. But surely, the Institute’s statement is too concise. It says nothing about the origin of that “central Parliament.” The provinces had parliaments before 1867. But there was no “central Parliament.” To unite the colonies, to make this country, the Fathers of Confederation had to make the Parliament of Canada.

Historians and political scientists typically see Confederation as a “deal,” the result of squabbles among self-serving politicians. They dwell on quarrels about the division of constitutional power; they suppose that the Fathers somehow muddled their way into a union. They don’t view the Fathers as true constitution makers. There was no Canadian “founding.” The United States had a “founding.” We did not.

That’s the usual view. It misses the extraordinary character of what was done in 1867. It misses the greatness. Locke teaches that creating a parliament, “placing the legislative power”) is an act of political founding. It is, for the political philosopher, the act of founding.

In 1982, Canadians changed the name of their original document. What was once the British North America Act (1867) is now known in law as the Constitution Act (1867). Think about it. Any country can have a Constitution Act. Only this one country, ours, among all the countries in human history, had the right to call their original document, the British North America Act.

First we forgot our history. Then we rewrote it.

How The Historians Do It

The Canadian Political Science Association’s Committee on Professional Ethics, now pondering the regulation of  members’ conduct, has turned up this statement  from the American Historical Association (AHA).

“Among the core principles of the historical profession that can seem counterintuitive to non-historians is the conviction, very widely if not universally shared among historians since the nineteenth century, that practicing history with integrity does not mean being neutral or having no point of view. Every work of history articulates a particular, limited perspective on the past. Historians hold this view not because they believe that all interpretations are equally valid, or that nothing can ever be known about the past, or that facts do not matter. Quite the contrary. History would be pointless if such claims were true, since its most basic premise is that within certain limits we can indeed know and make sense of past worlds and former times that now exist only as remembered traces in the present…

“Multiple conflicting perspectives are among the truths of history. No single objective or universal account could ever put an end to this endless creative dialogue within and between the past and the present …

“What is true of history is also true of historians. Everyone who comes to the study of history brings with them a host of identities, experiences, and interests that cannot help but affect the questions they ask of the past and the answers they wish to know. When applied with integrity and self-critical fair-mindedness, the political, social, and religious beliefs of historians can appropriately inform their historical practice. Because the questions we ask profoundly shape everything we do – the topics we investigate, the evidence we gather, the arguments we construct, the stories we tell – it is inevitable that different historians will produce different histories. …

“Frustrating as these disagreements and uncertainties may be even for historians, they are an irreducible feature of the discipline. In contesting each other’s interpretations, professional historians recognize that the resulting disagreements can deepen and enrich historical understanding by generating new questions, new arguments, and new lines of investigation. This crucial insight underpins some of the most important shared values that define the professional conduct of historians. They believe in vigorous debate, but they also believe in civility. They rely on their own perspectives as they probe the past for meaning, but they also subject those perspectives to critical scrutiny by testing them against the views of others.

“Historians celebrate intellectual communities governed by mutual respect and constructive criticism. The preeminent value of such communities is reasoned discourse – the continuous colloquy among historians holding diverse points of view who learn from each other as they pursue topics of mutual interest. A commitment to such discourse – balancing fair and honest criticism with tolerance and openness to different ideas – makes possible the fruitful exchange of views, opinions, and knowledge.”

A thoughtful assertion, beautifully expressed. It appears on page 18 of the Report of the CPSA Committee on Professional Ethics, which is available on the CPSA web site.

Dennis Baker’s Argument

Dennis Baker’s Not Quite Supreme, the Courts and Coordinate Constitutional Interpretation (McGill-Queen’s University Press, 2010) is formidably well grounded in British legal history. It says as much about parliamentary systems as about the judiciary. It draws on and develops arguments I have broached, as I am very happy to report, adding to the mix an impressive mastery of the current legal literature. The style is engaging. There is no other Canadian book like it.

It argues for the cooperation of the legislative and judicial branches in the development of public policy and in this one respect reflects the currently fashionable idea that the Supreme Court and Parliament should engage in “dialogue” about contested decisions. But whereas dialogue theorists typically maintain that after more or less polite tooing and froing on a matter of law, the court must have the final say because it is the “supreme” branch of government, Baker, with his long view of modern constitutionalism, argues that no branch is of and by itself “supreme.”

He argues, indeed, that the three constitutional branches – as Montesquieu understood them, the executive, the legislative, and the judicial – each participate in executive, legislative, and interpretative functions.

The idea is not difficult; we are all of us familiar with it; or we once were. The executive branch (Cabinet) legislates insofar as it draws up the country’s taxing and spending agenda but is powerless to put it into effect without the approval of the Commons and Senate. But then, supposing the necessary approval has been given, the legislative houses in turn must step aside; enforcement of the law belongs to the executive branch and to the courts. Add to the picture the idea that, as we all know, enforcement of law has legislative effect.

In carrying out its constitutionally mandated functions each branch willy nilly participates in the interpretation of law and the constitution. To repeat: interpretation of the constitution is not the Court’s prerogative alone. Following Montesquieu, Baker describes our constitution as a system of “checks and balances.” The Westminster system encompasses “the separation of governing powers.” As a student of the nineteenth century I can attest that this language – “checks and balances,” and “separation of powers” was once the coin of our realm.

We have lost our confidence in this amazingly elegant and effective mechanism for protecting our rights and freedoms. It remains the law of the constitution; Canada is still a free country. But our understanding is imperfect and to the extent that it is imperfect, our freedoms are less secure.

Who today speaks of speaks of the “separation of powers”? The political scientist in the classroom describes the Westminster parliament as an institution that fuses the legislative and executive branches. “Fusion” is said to be the defining characteristic of parliamentary government. But no reading of our constitutional history justifies this notion. It is false to say that in parliamentary systems there is no separation of political powers. I am at a loss to know why the idea of “fusion” persists. And yet it remains standard. Textbooks insist that in parliamentary systems executive dominance of the legislative process is not only current practice, but the norm required by parliamentary tradition, the legitimate norm.

Baker convincingly shows that it is this conviction about the inevitability of executive dominance that allows judicial supremacists to claim for the courts the task of reigning in the oligarchs. “The supremacist vision of Parliament – whose final say is exercised de facto by the dominant executive – begets the only realist check and balance to what is understood as a fused parliamentary power. A strong Charter-empowered judiciary, in other words, is [regarded as] the only means of counter-balancing an executive that would otherwise be unchecked” (page 148). But, as he continues, “the executive is not as all-powerful as the proponents of a strong judicial check suppose and therefore not in need of an unchecked judiciary.”

Not Quite Supreme supplies a wealth of evidence for this assertion, including succinct and eminently readable analyses of old and new judicial decisions in Canada and the United States. I will only add that students of America law will enjoy this book as much as Canadian readers.