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Mark Milke: Pierre Trudeau was right about individual liberty—and it remains paramount

Commentary

The Aristotle Foundation for Public Policy is a new policy think tank focused on Canadian civil society, democracy, and the country’s foundational ideas and values. Its first major output is an essay compilation entitled The 1867 Project: Why Canada Should be Cherished—Not Cancelled. The Hub is pleased to publish weekly excerpts from the book’s essays over the coming weeks.


“Your rights take priority over those of the state… The collectivity is not the bearer of rights: it receives the rights it exercises from the citizens.”

—Pierre Trudeau, Cité Libre dinner speech, Montreal, October 1992

It is time to debunk a nonsensical myth that has metastasized in Canada in recent years: That any attempt to rank ideas and values as preferable or civilized is intolerant at best, racist at worst, and a sign of a misplaced cultural superiority complex.  

For example, in a 2015 year-end interview with the New York Times, Prime Minister Justin Trudeau described his view of Canada this way: “There is no core identity, no mainstream in Canada. There are shared values—openness, respect, compassion, willingness to work hard, to be there for each other, to search for equality and justice.”

The prime minister then contradicted his own claim that Canada has no “mainstream” or “core identity” by going on in the same interview to trumpet the “shared values” of Canadians. He listed what he thought those were, another way of saying that Canadians do have a core identity and that there is a dominant, i.e., mainstream view. 

But beyond the prime minister’s contradictory conceptual confusion, there was a practical reason to articulate a standard of beliefs and behaviour: any country that wishes to survive as a functioning entity and avoid cracking up into a broken, dysfunctional set of competing tribal clans needs agreement on the basics of what citizens should rally around. 

Also, Trudeau made an historical error: Canada does have an identity and one would think that Trudeau, himself the biological product of French and English coupling, would have been aware of it. Canada, as with other nations, is a fusion of battles and ideas and political compromises mostly, though not exclusively, between the English and the French (the armies of both colonial powers had Indigenous allies). 

In general historical terms, one can reference the pre-1759 history of French Canada or the decisive victory of the English over the French on the Plains of Abraham in that year and the Royal Proclamation of 1763; the inflow of United Empire Loyalists during and after the American Revolution; the 1840 Act of Union that fused together the colonies of Upper and Lower Canada into the Province of Canada; 1867 and Confederation; or even the 1982 Constitution courtesy of Prime Minister Pierre Trudeau and willing premiers of the day who recognized the English and French dominance of British North America and enshrined both languages into the Constitution.  

Canada’s identity: British liberalism and French ideology

As well, ponder the ideas that bound Canada together. They assume the worth of the individual and were directly inherited from the United Kingdom, but are also the product of Jewish and Christian intellectual history, as well as the Renaissance, the Reformation, and the Enlightenment. 

These ideas and developments include the: 

  • Magna Carta of 1215 and its enunciation of rights including to property and on the limits on rulers and the implicit assumption of the rule of law; 
  • Enlightenment writings of John Locke on the social contract and his overall contribution to liberal thought; 
  • 1688 Glorious Revolution which limited the power of the monarchy;
  • the economic works of Adam Smith and others on the usefulness of free markets; 
  • value of political and societal evolution rather than revolution written about by Edmund Burke;
  • public and parliamentary anti-slavery advocacy of abolitionists, most chiefly the initial efforts of British parliamentarian William Wilberforce that led to millions more converted to that cause
  • John Stuart Mill on the “why” of liberty; 
  • and Mary Wollstonecraft on the rights of women—among many others.

Positively, it is precisely because such concepts are ideas and not connected to ethnicity, race, or gender, that they can and are adopted by peoples the world over—anyone can adopt preferences for a free nation, a free economy, and equal opportunity. The most recent example has been Hong Kong residents who, while they obviously share the culture, history, and ethnicity of those in mainland China, have been in near-constant protest against the regime in Beijing for withdrawing freedoms first tasted under British colonial rule. Also, many among the older generations in Hong Kong deliberately fled communist China earlier for just such freedoms.  

All this matters to a proper understanding of Canada including the rights and responsibilities assumed “normal” today. All of the foregoing and more were critical to those who shaped a liberal democratic country on the northern half of the North American continent pre- and post-Confederation. 

In contrast to Justin Trudeau, his father, Pierre Trudeau, prime minister of Canada between 1968 and 1979 and again from 1980 to 1984, was clear about Canada’s core identity and its historic commitment to classical notions of individual liberty. 

Unlike many of today’s politicians, this equal treatment of the individual in law and policy is something that Pierre Trudeau grasped and argued for in 1992 in debates over the Charlottetown Accord. That referendum which, if passed as an amendment to the Constitution, would have granted special status to Quebec. It would have allowed its government to treat citizens differently based on their identity and language preference (anglophones, francophones, or others). 

That accord would have constitutionalized the allowance of such discriminatory treatment. It was why Trudeau was clear that to recognize Quebec as a distinct society and constitutionalize its “collective” right to discriminate against individuals was wrongheaded and illiberal. 

As Trudeau remarked: “That is why the French Revolution established liberty as a fundamental right. No one is subject in his fundamental rights to the state: that is liberalism—which says that the individual in the exercise of his fundamental rights precedes the state, and all individuals are equal.”

Unlike his son, Pierre Trudeau grasped that tribalism based in unchangeable characteristics has been the norm in human history, which is why citizens must instead consciously think of each other as individuals first and define each other that way in law and policy if they are to avoid the unresolvable conflicts that arise between collectives.

This attention to individual rights is why Pierre Trudeau saw the individual and the equal treatment of individuals as paramount: “Citizens, you are all first of all equal among yourselves….” said Trudeau in the same speech. 

This attention to individual rights is also necessary because a collective writ large, such as governments, possesses substantial powers and can make life exceedingly difficult for an individual citizen. Such a collective can even become tyrannical. This why in the same rhetorical breath when he emphasized the need for equality among citizens, Trudeau also emphasized that rights ultimately flow from citizens and not the state “[Y]our rights take priority over those of the state… The collectivity is not the bearer of rights: it receives the rights it exercises from the citizens.” 

This, then, is why equal treatment under the law is such a critical policy: Individuals “hand” power to the state and in turn the state must not treat one individual as inherently more privileged or more punishable based on one’s identity. To do otherwise is to break the bargain between the state and the individual: I allow the state to engage in certain actions with power transferred from me as a citizen, and in activities that only a government can do—set up courts, arrest those who break laws, tax me for some good that presumably only a collective can provide—and in turn, the state promises not to prefer another citizen over me but to treat us as moral and legal equals. 

Joanna Baron: Criminalizing residential school ‘denialism’ is both unnecessary and unconstitutional

Commentary

Independent Special Interlocutor Kimberley Murray, in her Interim Report, “Searching for Missing Children and the Unmarked Burials,” has recommended that the government introduce new legal tools, including the adoption of civil and criminal remedies combatting “denialism.” In her report, Murray wrote that, “There are significant gaps in legal protections at the federal, provincial, and territorial levels to protect the sites pending searches and investigations” and that “[…] denialists are attacking the credibility of Survivors’ truths about missing children, unmarked burials, and cemeteries at Indian Residential Schools as sensationalist.” Murray’s proposal has been countenanced with openness by Attorney General David Lametti, so it bears consideration.

Lametti, who appointed Murray to her role, indicated at her recent presentation held at the Cowesses First Nation that he is open to all possibilities for fighting residential-school denialism. He said that includes “a legal solution and outlawing it,” adding that Canada can look to other countries that have criminalized Holocaust denial.

“Denialism” is defined by the Oxford Dictionary as “a person who does not acknowledge the truth of a concept or proposition that is supported by the majority of scientific or historical evidence”. It’s a term borrowed, as with many current lobs in the culture wars, from psychology, where it refers to a person who rejects an uncomfortable or identity-threatening truth. Denialism has emerged as a recent shibboleth for abetting increasingly illiberal restrictions on open discourse.

There is such a complete lack of rigour and clarity in what constitutes denialism that any legal project proposing to attach criminal sanctions to it would be devoid of clarity and predictability, basic stipulations of the rule of law. Would residential school denialism, for example, encompass investigative journalism such as Terry Glavin’s trenchant piece from 2022?

In his bombshell investigation for the National Post, Glavin agreed that the government’s residential school policy amounted to cultural genocide and entailed brutal psychological, physical, and sexual abuse. Glavin also found that, for all of the country’s paroxysms, a year after the announcements not a single mass grave was discovered, nor any human remains unearthed. Not a single child among the 3,201 registered on the Truth and Reconciliation Commission’s 2015 record of deaths was located. Glavin also noted the caution urged by local Indigenous leaders most involved in the sites in question.

Glavin’s piece asked questions that are rightfully, and somberly, asked in the wake of as grim an allegation as the discovery of unmarked graves of children: What remains were unearthed and how can they be connected to existing historical records? What charges ought to be laid? Who will lead these efforts? For asking these questions, Terry was made persona non grata by the legacy media. Journalist Bari Weiss, who interviewed Glavin in September 2022 for her Honestly podcast, summarized her interest in l’affaire Glavin as showing what happens to a society “ when the truth no longer matters.”

Murray’s report quotes MP Leah Gazan for the proposition that “denying genocide is a form of hate speech. That kind of speech is violent and re-traumatizes those who attended residential schools.” However, hate speech is already criminalized in Canada—although defining the line between merely repugnant speech and hate speech is a famously fraught exercise, and free speech defenders like myself would be more comfortable if the state relegated itself to its highest fetter on liberty—imprisonment—only in cases of actual or threatened physical violence, since it is particularly these grey areas that create huge chill effects against open discourse.

But Murray’s proposal seems to go beyond that, urging the adoption of new legislation which would conflate any critical discussion surrounding residential schools and unmarked graves with hate speech or pathological denialism. If the new law goes beyond what has previously been defined as hate speech, it is likely unconstitutional under s. 2(b) of the Charter, which protects even the most offensive and repugnant speech which comes short of hate speech.

Besides being unconstitutional, such a law would be thoroughly illiberal and ill-advised. It raises the spectre of driving anti-Indigenous racism underground, where it will flourish away from the disinfecting influence of open discourse.

Other discourse that Murray would seem to target, while distasteful, is best responded to with rational argument rather than criminal censure. There is a somewhat arcane small fringe of Canadian conservative intellectuals who are apologists for residential schools, and I personally find these apologists misguided and odious. In an op-ed published last year, Brian Giesbrecht decried the fact that, in the midst of a national frenzy of self-flagellation following the announcement of the detection of 215 human remains, nobody bothered to mention that enrolment in the schools was often voluntary, nor did they mention “the fact that at that time the school had an impressive outdoor swimming pool.”

This minimizes real horrors. Canada’s policy of residential schools was unmistakably evil and cruel, stripping children from their families, meaning-making traditions, and communities, and any attempt to minimize this by pointing to the upsides of assimilation or the impressiveness of swimming pools are wrong-headed. Still, it seems likely that a law aimed at criminalizing those who “don’t want to admit the schools inflicted those harms”, as one survivor quoted in Murray’s report put it, would put Giesbrecht’s blithe comment, better dealt with by opprobrium and counter-speech, within the realm of criminalization.

The practicalities of criminalizing denialism also should be contemplated. Were such a law to be passed, and someone prosecuted under it, it would effectively put residential schools on trial. In the 1980s, Holocaust denier Ernst Zundel sat trial several times for his pamphlets “Did the Holocaust Really Happen?” His trials effectively put the Holocaust on trial, with the crown bringing in Holocaust researchers and survivors to support their case, while the defence put noted Holocaust deniers on the stand and cross-examined Holocaust survivors about the accuracy of their recollection. The trials gave Zundel a platform to bolster his case that the Holocaust never really happened. It was an unsightly, disgraceful spectacle.

The solution to ignorance or prejudice in a free society can never be censorship. Attorney General Lametti is a celebrated legal scholar and was even my dean at McGill Law. He knows full well that Murray’s proposed law is constitutionally suspect and should put a halt to it.