When Freedoms Collide: The Case For Our Civil Liberties

by A. Alm Borovoy
384 pages,
ISBN: 0886141890

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The Voice Of Reasonableness
by Desmond Morton

IT OFTEN SEEMS that civil liberties are more honoured in the long-ago and far-away than in the here and now. in Britain, cradle of our free institutions, the bar to self-incrimination has been sacrificed to the war with the I.R.A. In the United States, George Bush campaigners found a weapon in Michael Dukakis's membership in the American Civil Liberties Union. Canada finally offered compensation to JapaneseCanadian internees, but only 45 years later, when half of them were dead.

. Yet many civil liberties issues only seem easy in retrospect or at a distance. The same people who applaud unions and strikes in Poland sometimes have a lot less sympathy for labour organizations and walk-outs in Canada. Whose rights should prevail, the mother's or the fetus's? Surely it is an abuse to allow any rights to Ernst Zundel, Jim Keegstra, and their kind. Many feminists insist that the right of free speech stops short of pornography. Other crusaders insist that war, particularly with nuclear weapons, is such an offence against our civil rights that we should willingly surrender if that is the price of survival.

For more than 30 years, Alan Borovoy has lived and worked at the heart of the civil liberties movement in Canada, wrestling with dilemmas invisible only to the passionate. First as an underpaid staffer for a succession of labour-backed human rights committees and, since 1968, as general counsel to the Canadian Civil Liberties Association, Borovoy has-never been far from the front lines. Canadians know him best from television, a boyish, balding face, a few words of penetrating reasonableness.

Yet, like others in public life, Borovoy knows that voice and video clips can distort and caricature complex ideas. Twenty years with the CCLA have taught him how easy it is to attract supporters to one or two good causes; how hard it is to find a pattern among the scores of seemingly contradictory issues through which civil libertarians must thread their way.

Why is it right to impose fair hiring practices on employers but wrong to insist on affirmative action quotas? Why shouldn't judges overrule legislatures and labour relations boards? Surely civil liberties are all about due process? And weren't our freedoms protected when a civilian CSIS took over the surveillance of spies and troublemakers from the militaristic cops in the RCMP?

On these and a host of other issues, from the rights of welfare mothers to the wrongs of the Cold War, Borovoy has attempted to set out a unifying rationale for civil libertarians. His starting point is a profound but Churchillian commitment to democracy. "To opt for democracy," Borovoy explains, "does not require that we have a blissful faith in the people. It simply requires that we have less faith in anyone else."

Integral to majority popular rule must be the fundamental freedoms of speech and association. Without unfettered access to those freedoms, democracy could indeed become a tyranny of the majority.

Borovoy's firm defence of the rights of unions as well as those of the poor, the eccentric, and the troublesome rests on his conviction that masses of people, given the choice, will do the right thing. Among the traps that ensnare supporters of civil liberties, he. reserves his deepest scorn for the Redemptive Fallacy - that some means will redeem mankind, be it God, socialism, or Montessori schools. "We should renounce the attempt to create heaven on earth," he insists, "and focus instead on reducing the hell."

Achieving the "less bad" solution is Borovoy's guideline, whether he is defending the mentally ill from enforced treatment, or justifying -with a few safeguards -- police spot-checks for drunk drivers. In the real World, Borovoy knows, there are spies and traitors and subversives. It should be the police - again, with proper legal safeguards - who track them down, not CSIS. What matters about CSIS is not its ostensibly civilian membership but the massive and unjustified powers of surveillance over all Canadians that "civilianization" was supposed to justify.

A book eight years in the making is easily by-passed by events. For some Canadians, the 1982 Charter of Rights and Freedoms marks such a new era in civil liberties that most of Borovoy's experience is irrelevant. On the whole, Borovoy was underwhelmed by the Charter, less for its content than because handing authority over legislation to appointed judges strikes him as a threat to democracy. "To the extent that the value preferences of appointed judges prevail over those of elected politicians, democracy becomes replaced by a form of oligarchy." No more than aristocrats, theocrats, or Lenin's vanguard of the proletariat can the judiciary claim to be wiser than masses of voters.

Borovoy's passion for democratic institutions leads him, in a deliberate and charicteristically provocative chapter, to defend the morality of force. In a world that is savage in its treatment of human rights - and Borovoy is not deterred by glasnost or the uncritical treatment of the Sandinistas democracies must defend themselves. Domestic hawks and international doves will find little to comfort them from the CCIA's general counsel.


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