I am sitting in my office this afternoon feeling unmotivated when I have no real excuse. It is the last day of April and I have a significant enough tax bill to cause me to reflect on both my good fortune and how hard I am going to have to work to pay it (I know spend less, save more would solve this annual problem, but I digress). As a result A. Alan Borovoy is foremost in my thoughts.
It’s hard to believe but Mr. Borovoy is retiring his post as General Counsel for the Canadian Civil Liberties Association after 30 years of service. He is an institution and like all institutions I always just assumed he would continue on and be there to speak out when Governments, in the name of crime control or efficiency, found unexpected or creative new ways to circumvent the Charter and the basic Human Rights I sometimes take for granted.
And take them for granted I do. For example, I often think of Privacy as a good; sometimes I place a high priority on it (I like the fact that my communications on my Blackberry are encrypted thus making it hard for anyone to snoop or listen in); sometimes I don’t (I am endlessly amused by Facebook). In other words I like being able to control privacy, placing a high value on it but sometimes being willing to give some up for the sake of convenience – an average Canadian.
Borovoy was never an average Canadian. I first read “When Freedoms Collide: The case for our Civil Liberties” when I was an undergraduate student at the University of Winnipeg. His reasoning was scrupulous and I felt inspired by his rigorous logic. I was barely aware that most of the things he was talking about were really even issues. I had never thought much about Pornography, hate literature, affirmative action, employment practices, the scope of police powers, the right to privacy, or the protection of the mentally ill (okay, I had thought about pornography – but not in relation to the intellectual notion of freedom of speech). As I formed my own Political philosophy and set of guiding principles – what I thought was important, Borovoy was a guiding light. In a recent interview he said he was never one to privately buttonhole, but rather to publicly agitate.
That last statement gave some pause for thought. It was always my admiration for the public agitators like Borovoy that lead me to my chosen career, but I have noticed myself becoming more of a private buttonholer. Borovoy and Civil Libertarians are never content to follow conventional wisdom. They can be irritating, they are rarely ‘polite’ and sometimes the threat of hurt feelings has to give way to winning the argument when we debate fundamental freedoms and liberties. Borovoy once set up a booth on a street in Toronto and charged people a dollar to sign a petition that said the police should be allowed to beat confessions out of suspects. I thought how quaint; an era, maybe the 60’s when people would pay to sign such a petition (It was a fundraising tactic for the CCLA). I contrast that to the news today: in the last few days reports are that The Alberta Government has co-opted bar owners into collecting personal information from patrons in case they might be gang members, and ‘streamlined’ our personal health information so that we no longer have the option of keeping any part of our health records private (so if your family Dr. treats you for say depression - the emergency room personal can see that 20 years later when you go in for a broken bone or whatever). The potential for abuse is rife. I envision a production order for lab results sent to the hospital resulting in the release of an entire medical history).
When Borovoy was asked he said the single greatest current threat to civil liberties in Canada was the introduction of Mandatory Minimum Sentences (see the amendments to the Criminal Code for Firearms charges). That eliminating discretion would disallow Judges to take into account personal circumstances. An interesting response. I have always had mixed feeling about this given that in Alberta the Court of Appeal routinely prescribes ‘guideline’ sentences (tariffs) because the Judges don’t even respect Judicial Discretion in this province, so you can see why it is easy to be a little cynical about the whole thing. This year it is gangs, last year it was child pornographers, then it was child lurers, before that identity thieves. There is always another bogeyman around the corner that is the worst single threat to our way of life ever known to law enforcement that justifies a draconian reaction in the interest of saving the innocent lambs from the criminal lions.
I have these buddies who agitate when they see Civil Liberties being diminished and attacked. Sometimes people find them aggressive and confrontational – which is often true. I think that Mr. Borovoy would be proud to know them and encourage them (for the sake of discretion I will only refer to them as Mr. Chow and Mr. Bates – of course discretion has little to do with civil liberties). They frequently refuse to accept the Status Quo and they often react quite angrily when they see the constant erosion of basic rights I mentioned earlier. They are the definition of the public agitator that Borovoy talked about.
I suppose that I am comforted by the fact that they exist given that I was shocked to learn that Borovoy was laying down his cards and giving up the holy game of poker so-to-speak. I was thinking about it only in terms of my responsibility in all of this. Here I am, the son of a Métis single Mother and the first person in that family to graduate from university thinking about voting conservative because of my tax bill and forgetting that my Mothers whole plan in life for me was that I would someday do well enough to be able pay taxes. Borovoy’s retirement came to mind because for a brief moment I was becoming complacent. Forgetting that I live in a country where I am possible and that I can speak up for civil liberties, I have that ability. I have that right. Should police be able to tap our phones and open our email? Should women have the access to abortions on demand? Is a breathalyzer test an unacceptable invasion of privacy? Do hate-mongers have the right to publish their views? Should the mentally ill be treated against their will? I have the right to say something about all of those questions! And none of those questions will be resolved by the private buttonholing of politicians and judges. It wasn’t Borovoys ‘relationship’ with a Crown, or his desire to not ‘be like the guys in Edmonton’ that resolved the issue of whether the government should be allowed to censor books and movies. This is tough and serious business, Human rights are important and it takes tough serious people to stand up for them. When these issues arise we are too quick to dismiss them as ‘philosophical’. I am a pragmatic man, but my job is not always done well by pragmatists. Sometimes what is right and wrong is a very philosophical question, but it is important to how we treat strikers, welfare recipients and the mentally ill, what scope we put on police powers. The pragmatic approach doesn’t often serve us well and now that Borovoy is gone I am hopeful that there are some people around who can step into those big shoes, it will take more than one or two to fill them.
Submitted by:
David Andrews
Barrister & Solicitor
