Complexities of Liberalism in Practice Chapter 11 - Unit 3

Chapter Focus Many liberal democracies attempt to reach a consensus over the promotion of individual rights – one of the principles of liberalism – within’ their state, while at the same time attempting to benefit the common good. Sometimes in their pursuit of common good, gov’ts ignore the rights of individuals or groups.

Maher Arar Canadian citizen born in Syria in 1970. came to Canada in 1987 bachelor's and master's degrees in computer engineering worked in Ottawa as a telecommunications engineer stopover in New York returning to Canada from a vacation Sept 2002, US officials detained him Claimed he had links to Al- Qaeda & deported him to Syria despite having his Canadian passport. Maher Arar

When he returned to Canada a year later, he said he had been tortured during his incarceration and accused American officials of sending him to Syria knowing that they practice torture. Arar and his family wanted compensation from the federal government for his abrupt deportation and imprisonment in Syria. The Canadian Government settled with Arar for 10.5 million dollars in January 26th, 2007 and an apology was given by Stephen Harper on behalf of the Canadian government.

Section One – Chapter 11 Why and to what extent to some liberal democratic gov’ts promote individual and collective rights?

Fundamental Rights The following rights are considered fundamental because they are necessary for an individual to enjoy free will or personal independence. Life Liberty Personal Safety Guaranteed in Legislations (entrenched): Canadian Charter of Rights and Freedoms (1982) Quebec Charter of Human Rights and Freedoms (1975) Bill of Rights (1791)

Criticism 1 - rights legislation can have unforeseen negative consequences. The rights included in the constitutional documents focus almost exclusively on the rights of individuals, possibly at the expense of the rights of the community. An example of this is the way society developed during the Industrial Revolution. Industrialization and laissez-faire capitalism led to a situation in many countries where individual rights became meaningless for a large group of people. What good is the right to freedom of expression for a poverty-stricken person who was denied an education and subjected to dreadful working conditions?

Cuba, for example is a dictatorship. Criticism 2 – The words in the documents sometimes have little real power. In some countries (esp. Dictatorships or totalitarian) individual rights and freedoms have been subject to the needs of the state, even though those countries may have a constitution or other documents that resemble the legislation. Cuba, for example is a dictatorship. The dictator and the ruling elite control all political and legal power. The gov’t alone determines the interpretation and implementation of the Constitution. The result is little real protection for the individual rights and freedoms of the citizens.

The number of political prisoners in Cuba has decreased from 283 – end of 2006 to 234 – end of 2007. Human rights abuses continue.

Promotion of Collective Rights Group rights are often achieved only by the extension of individual rights. Individual rights can and must be balanced in the interests of preserving the rights of everyone in the community. Gov’ts in pursuit of group or collective rights take a wide variety of actions.

In the US, policies known as affirmative action came about in the 1960s to address inequalities that minorities and women had historically faced To improve their employment or educational opportunities, the US gov’t introduced hiring and college admissions practices that gave preferential treatment to minorities and women. While this is not written in the US Constitution as “collective rights,” affirmative action programs recognized that members of certain groups need to be treated differently. Affirmative action has been challenged in court by those who see it as “reverse discrimination” and a violation of the individual right to equality.

Canada vs. United States The inclusion of collective rights is the primary difference between the Canadian Charter of Rights and Freedoms and the American Bill of Rights. This difference is due in part to the time period during which the two documents were written.

Canadian Charter of Rights and Freedoms The CCRF, 1982 contains the following: Individual Rights Collective Rights Language rights Aboriginal rights Multicultural character of Canada

Pierre Elliott Trudeau His goal was to entrench rights He succeeded by having the CCRF, 1982 enshrined in the Constitutional Act What does it mean to entrench rights? What does it mean “to enshrine” in the Constitution?

Why Entrench Rights? Protection ensures that rights legislation cannot be easily overturned without due process. Due Process consists of major debate in government, amendment formulas and public support; however, change is needed to keep up with the times. For example: Women’s Rights, Aboriginal Rights and African-American Rights

LANGUAGE RIGHTS ALBERTA Alberta School Act, 1968 Use of French as a language of instruction 50% of daily school time Extended to 80% in 1976 Applied to publicly funded schools CANADA CCRF, 1982 Sec 23 (1)(a)(b) instruction provided in minority language if: 1st language learned was French or English where they live, OR One has received primary education in English or French and the language is of the minority where one lives Supreme Court has ruled that Sec 23 requires sufficient demand for a teacher to be provided. In a rural area this demand is 10 families and in urban areas it is 25 families in a school.

Aboriginal rights are also protected in the CCRF, 1982 Section 25 Section 26 Section 35 CCRF cannot be used to take away Aboriginal or Treaty rights Rights granted cannot be used to deny other rights that exist in Canada Existing Treaty & Aboriginal rights affirmed Aboriginals include: Indian, Inuit and Métis Include rights via land claims or those future acquired Granted equality to males and females

Section 2 – Chapter 11 How do liberal democracies balance the perceived common good with the need to respect rights?

France became a pioneer of Western democracy when it established itself as a liberal republic in the 18th century following the French Revolution. Although it is one of the oldest liberal democracies, the French gov’t may sometimes act in ways that seem illiberal.

Restriction on Religious Symbols In the 1990s, the French gov’t implemented laws which were discriminatorily applied to the hijab (Muslim) and turbans (Sikh), yet yarmulkes (Jewish) and crosses (Christian) were allowed. Students wearing the hijab or turbans were expelled from schools. Sikhs and Muslims sued the French government and were reinstated to school BUT the law remains. Belgium followed suit and no visible symbols of philosophical, religious, political or other opinions were to be worn by public servants when serving in public.

The hijab Are headscarves worn by Muslim women as an expression of modesty, as a symbol of faith, and sometimes as a sign of their commitment to Islamic movements or groups. According to some Muslim scholars, the hijab is mandatory. Taliban forced women to wear hijab (forcing them out into public) and France forced women to remove it (to force French Muslim women to stay at home)

Religious Symbolism In Canada, the wearing of religious headgear by Sikhs is protected by the Canadian Charter of Rights and Freedoms. If it was Passport Canada’s policy to reject applications from Sikhs wearing religious head coverings was approved – would this mean that the gov’t was limiting these Canadian’s religious freedom?

Racial Segregation Viola Desmond was fined and charged for sitting in the lower “white only” section or a theatre in New Glasgow Nova Scotia. Court ruled against her claim of segregation.

Section 3 – Chapter 11 Why do liberal democratic gov’t choose to reject the principles of liberalism in some cases?

During times of war, governments often introduce the illiberal practice of censorship for concerns related to safety and security. A postcard from a WWI soldier to his family in Saskatchewan. All correspondence home was subject to being opened and read by censors to make sure no additional information was being added.

During times of war, emergency, and environmental crisis, liberal democracies have restricted people’s movement, controlled people’s access to information, and limited people’s rights, freedoms, and choices. While these actions are often short term, some illiberal policies have remained in effect for years or even decades after they were implemented in an emergency situation. Illiberal policies are often not universally applied to citizens; rather, certain groups or individuals receive differential treatment.

War Measures Act Was first passed in 1914 in response to Canada’s involvement in WWI. It has been invoked only 3 times in Canada’s history – WWI, WWII, 1970 October Crisis. In each case, the federal gov’t stated reasons for its actions to suspend, restrict, and limit rights, freedoms, and the basic principles of liberalism. The following reasons have been given in the past to justify the Act’s use: It was necessary for the overall good of society It was justified because of the threat or severe nature of the situation It was essential to protect, retain, or secure other principles of liberalism.

War Measures Act WWI Used from 1914 – 1918 Canadians with an ethnic background from Germany, Austria-Hungary or the Ottoman Empire were declared “enemy aliens” The Act limited: Freedom and privacy – “enemy aliens” had to register themselves and carry ID cards Censorship – could not publish or read anything except English and French Mobility – could not leave the country without permits Private Property – could not own a firearms Freedom of Association – could not join groups deemed inappropriate, dangerous or seditious Faced deportation, internment camps, confiscation of property NO apology was granted after WWI nor were people released from camps immediately. (2 years) Seditious – treasonable

War Measures Act WWII Japanese Canadians were interned (22, 000 ppl) Most interned Japanese were native-born Canadians Military and RCMP dismissed public claims of the “Japanese danger” as inaccurate and based upon no evidence. Problem was the anti-Japanese public opinion 18-45 year old males were sent to work camps Women sent to the BC wilderness to live in communal buildings

WWII – WMA Japanese faced poor living conditions Japanese property was seized and sold without compensation End of WWII, Japanese could either be deported or move east of the Rockies as they were ban from BC 1949 – regain the right to go back to BC 1988 – PM Mulroney acknowledged unjust actions and $21,000 in compensation for those who could prove they were directly wronged.

1970 October Crisis Page 400

Canada’s Anti-Terrorism Act In the aftermath of the terrorist attacks on September 11, 2001, the federal government in Canada quickly fast-tracked the Anti-Terrorism Act, which defined what terrorism is and made it a punishable offence in Canada’s Criminal Code. December 18 2001, police gained new powers, including the ability to arrest people and withhold them without charge for up to 72 hours if they are suspected of planning a terrorist act. When this legislation was first introduced in 2001, many Canadian’s felt that the gov’t was taking basic civil liberties away but was easily passed in the HOC by a vote of 190 to 47.

US PATRIOT ACT, 2001 Why was the act needed? “Need for the increased security to deter and punish terrorist acts in the US and around the world” – US Government Opposition to the Act? The Act was heavily challenged by groups that saw the law as a threat to personal liberties. Student Voices

No Fly Lists – page 403 Transport Canada’s Specified Person List - someone “potentially posing an immediate threat to aviation security” If on the list you may not allowed on domestic flights in Canada Criticisms: You are NOT told you are on the list Potential racial profiling Denies legal rights “ innocent until proven guilty” and you cannot challenge your inclusion on a list Example: Maher Arar