Undressing a Trudeau Cheerleader

Canadians generally are starting to wake up to the failure of multiculturalism, the abuses of 'human rights' commissions, the dangers of judicial activism, the collapse of families, the lawlessness of aboriginal enclaves and the threat posed by Islamic expansionism. But while many are feeling the pain, they haven't yet identified the cause of the problem, or even that all these symptoms come from the same disease. Fortunately, the evidence as close as the nearest library.

 Lorraine E. Weinrib

Undressing a Trudeau Cheerleader
By Frank Hilliard

A decade ago Andrew Cohen and J.L. Granatstein edited a collection of essays on Pierre Elliott Trudeau called 'Trudeau's Shadow.' In it, a group of Canadian notables and academics took turns lauding or criticizing the great man's achievements just a year before his death.

One of the cheerleaders was Lorraine E. Weinrib, a law professor at the University of Toronto, who wrote a paean of praise called Trudeau and the Canadian Charter of Rights and Freedoms: A Question of Constitutional Maturation. The very title of her essay showed Professor Weinrib's conclusion, but for anyone unsure what the word 'maturation' meant, her first paragraph made it absolutely clear.

The adoption of the Canadian Charter of Rights and Freedoms is Pierre Elliott Trudeau's greatest political achievement and his most important political legacy. Overcoming obstacles that had baffled his predecessors, Trudeau secured a constitutional change that offered the tantalizing possibility of a new type of national self-understanding. Rather than an evocation of shared blood and history, which could only invite discord in a land of aboriginal peoples, colonial conquest, and increasingly diverse immigration, the Charter bound a pluralistic and far-flung population into a nation of free and equal rights-bearing citizens.

Whew! Praise indeed! The argument Weinrib is making is that shared history—culture in other words—can be discarded and a new organizing structure created out of whole cloth by a statement of principles. In other words, that reason and intellect can guide the relationship of individuals in society. This, of course, is the Progressive argument; that all men have goodwill at heart and all that is needed to organize society is a clear set of rules.

History, indeed 'shared blood' as Weinrib so deliciously puts it, paints a different picture of human interaction. For proof, I take you on a very long detour to the Arabian heartland, to the point where civilization first flowered, to the fertile valleys of the Tigris and Euphrates, to Iraq.

I'm going there because to see if the organizing principle Trudeau birthed and Weinrib applauds actually works, we have to put it under some stress. Iraq can be used as a test because when Saddam Hussein was overthrown, the country was cast into a judicial and constitutional vacuum. While the Americans and their allies, tried to put down the civil war that followed, two attempts were made to create basic law; first, the Law of Administration for the State of Iraq for the Transitional Period and second a Constitution approved by a referendum Oct. 15, 2005.

Despite its interim nature, the Law of Administration had a feature which will sound familiar to Canadians: "equality before the law" (Article 12), guaranteeing the equality of all without regard to "gender, sect, opinion, belief, nationality, religion, or origin."

The Constitution which followed emphasized the same thing; that "no law that contradicts the rights and basic freedoms may be established."

That was the theory. In practice, a religious and ethnic civil war raged pitting tribe against tribe, Sunnis against Shiites, Islamists against Christians and Arabs against Persians. Blood flowed like water. Thousands were blown up, shot, maimed for life, blinded, raped, tortured and a mutilated. The only security anyone had in Baghdad was to set up street barricades and police them with AK-47's. Outside the great metropolis, things were worse.

Except in Kurdistan. In Kurdistan things were better, a lot better.

The Kurdish people, long the target of Turks, Persians and Arabs, solidified on ethnic and linguistic lines, formed an army of their own, the Peshmerga, and rigorously hunted down the Al-Qaeda militants in their midst. In a matter of months, Kurdistan became the crown jewel of Iraq, the one area you could walk around in daylight or dark, dressed in Islamic or western clothes, and not be assaulted, raped, or killed. Since then it has prospered even further with advances in schooling, education, civic administration, law, governance, investment and tourism.

So, to summarize, when push comes to shove, you are far better off with 'an evocation of shared blood and history' than a basic law, however well intentioned. Or let me reverse that; when law is unsupported by general consent, by 'blood and history,' then it is ignored, has no meaning and is essentially useless.

All right, let's go back to Canada and see what other comments Professor Weinrib has to offer on Trudeau's thinking before he dreamed up his Utopian Charter of 'rights'.

Duplessis' Quebec provided the perfect environment for creating an obsession with liberal democracy. Trudeau came to support the values of individual freedom and self-fulfillment and to champion a comprehensive world-view free of state-imposed nationalist, religious, or ideological preferences. His emphasis on individual freedom merged with an attention to cultural identity, an opposition to nationalism, and a defence of federalism—all elements of his constitutional politics.

Let's take this astonishing paragraph apart in reverse order. Federalism is a system that provides local autonomy by region, usually for a cultural group (as in Switzerland, Iraq, the United Kingdom, Canada). In this guise it is the opposite of a system for promoting individual identity and rather supports a smaller 'blood and history' collective (Italians, Kurds, Scots, Quebecois). One can be in favour of individual rights, or in favour of collective rights, but you can't have it both ways.

Now the first part of that paragraph; Trudeau's support for 'the values of individual freedom.' If that were the case, how could he have supported the Canadian Human Rights Act with its enforcement provisions of politically correct thought (Section 13), its use of secret trials, its non-acceptance of truth as a defence and its history of 100 percent convictions?

How could he have accepted the Alberta Human Rights, Citizenship and Multiculturalism Act, which was modeled on the Canadian Human Rights Act, under which an Evangelical Pastor in Red Deer, Alberta, Rev. Boissoin was found guilty by an HRC panel of having exposed homosexuals to "hatred and contempt" by publishing a letter in the Red Deer Advocate warning against the dangers to the social order of homosexual activism, ordered to pay a total of $7,000 in fines, prohibited for life from preaching sermons that are critical of homosexuality and told he cannot criticize homosexuality even in his private communications such as e-mails.

If this is an example of 'the values of individual freedom and self-fulfillment' I'd hate to see what the opposite looks like. The truth is, this decision is exactly what you get if you apply the Charter's provisions, through its human rights enforcement mechanisms to actual cases in the real world. What you get is tyranny of the very worst kind; tyranny of thought. Of course this was not his goal, according to Professor Weinrib:

The maturation of the Canadian constitutional system might be advanced, Trudeau argued, through adoption of a bill of rights. Such a bill would bolster democracy, individual liberty, and equality. . . A bill of rights would provide a stable basis, in terms of democratic function as well as individual liberty and identity, to think about other changes. . . A constitutional bill of rights would also, he thought, have benign institutional effects. The existing constitutional system burdened the Supreme Court with political responsibilities because it was judging legislation without being restricted by the norms of public law that a constitutional bill of rights would would provide.

One shudders to think what 'other changes' she has in mind, but it is the last sentence which is truly shocking. The Supreme Court was bound by the fact that Parliament passed laws which it had to interpret on the basis of the laws themselves. What, they had to decide, did the Parliamentarians mean by a certain law. Far from having 'political responsibilities' they had secretarial, technical and legal responsibilities.

Now under the Charter, they could make law by either rejecting Parliamentary law on the basis of the Charter, or by reinterpreting existing laws not on the basis of Parliamentary intent, but on the basis of their reading of the Charter. To hell with Parliament's idea; we'll put in our own. In other words, the Charter would allow political responsibilities where in the past there were none.

You can take that last sentence and substitute Parliament for the Supreme Court and you'll get the true state of affairs as they existed at the time: The existing constitutional system burdened Parliament with political responsibilities because it was judging legislation without being restricted by the norms of public law that a constitutional bill of rights would would provide. That's what Trudeau was really trying to tackle, he wanted a choke hold on Parliament, on democracy itself.

What Trudeau once called the 'tyranny of the majority' would be restrained by this immovable object called the Charter and these immovable decision-makers called Justices. He wasn't after the Supreme Court, he was after the elected representatives in the big building up the street.

I have finally come round to a phrase which encapsulate the problem with Professor Weinrib's accolade of Trudeau's principles. She writes:

In an interview published in Cite libre in 1997, Trudeau affirmed his commitments to individual over national sovereignty and the need fo rthe Charter to embody not only the traditional liberal rights and freedoms he considered generic, but also the language rights necessary to constitute linguistic justice in the particular circumstances of Canadian federalism.

Again we see that support for the bi-cultural fact of Canada conflicts with individual rights, but that's not the key IED in this piece of pavement. The key word is 'generic.' Weinrib says Trudeau considered traditional liberal rights and freedoms 'generic'.

Generic? Generic to whom and when and for what reason? It's true they had become generic in Quebec culture because since 1756, English criminal law was the law of the land. It's true it had become generic in Quebec because the Catholic Church is a Christian relgion and that religion is based on Judeo-Christian ideas of free will and English ideas of free choice. It had become generic, Pierre, because we were all of us then, Christians, who formed a government and a society based on Judeo-Christian ideals and beliefs.

We are not all Christians any more, and thanks to Trudeau, we can't even ask for these same ideals, standards and laws to be applied to others. If Multiculturalism is to be promoted, as the Charter demands, then we will have to accept the unacceptable. We will have to say it's all right for four Muslim women to be drowned in a canal for reasons of 'honour.'

Why? Because, as I noted earlier, law is derived from culture; from the dominant culture in any community, region or country. If that culture believes in killing women for sexual activity, as Islam allows, then it doesn't matter that Canadian criminal law prohibits it. Law is from culture, not from principles.

Clearly Professor Weinrib doesn't agree, or would like not to agree, but time and history march on, just as they have always done, with little regard for principle, theories and Charters.

Let me say it again since this seems to be a hard thing for everyone to digest: the security of our society rests on the general agreement members of that society have on what is socially acceptable. Laws simply write down these feelings and organize them into simplified form.

If a society is riven by cultural differences, like Lebanon, or Ireland, or the Middle East, it doesn't matter what the law is. The bullets will fly right into the court house, and have, and will again.

Culture is everything; the law had better follow it like the servant it is, not try to lead it. The alternative is repression, tyranny and, eventually, revolution.

Update
As if proving my point, Professor Weinrib later weighed in to the debate over the legitimization of Sharia law courts in Ontario (fortunately abandoned). Naturally, she opposed them, but that pesky cultural thing had her in knots:

The primary commitment of the constitutional state is to recognize and affirm the full personhood of every member of society. This premise displaces traditional modes of social ordering, often based entangled with religious teachings. Within traditional social ordering, privileges vested in certain individuals, including the power to dictate the terms and continuation of that privilege. This privilege took many forms, both private and public, and held tight to the substantive core of family law. It shaped our intimate relationships, set the terms of family formation and dissolution, and delineated the rules for participation in the public sphere. The rejection of this regime of privilege has been a prolonged and arduous process, which began before the Charter and continues under it. The Charter gives express directives for this continuing process, by establishing as supreme law the entitlement to equal personhood for all members of Canadian society regardless of considerations such as gender, age, religion, disability, and sexual orientation.

'Traditional nodes of social ordering' are Sharia law. 'Entangled' with religious teachings? You better believe it. 'Privileges vested in certain individuals?' That would be men. 'Private and public?' Beatings. Veils.

She talks about the rejection of 'this regime of privilege' as 'prolonged and arduous.' Well, that's for sure. And since we're losing this war, it's going to be even longer than she experts.