July–August 2007

Contents Related Letters

Re: “Teenage Mutant Supreme Court Judges,” by Christopher Moore

“What’s this got to do with the price of tea in China?” Chris Moore seems to ask in his essay on the Heather Robertson case (“Teenage Mutant Supreme Court Judges,” July/August 2007). The simple question was whether a newspaper publisher must get author consent—and must pay— for the right to reproduce a freelance newspaper article in online databases and CD-ROMs. The Supreme Court of Canada, Moore complained, focused instead on such metaphysical questions as “What is the true essence of originality?”

One sympathizes with Mr. Moore. Law, like religion, has its holy writ—here the Copyright Act—which frames debate in terms that may seem to the laity to be at a far remove from the point of the matter. But cut the court some slack. There are two separate, but layered, sorts of copyright in a newspaper: a copyright in individual freelance articles, typically held by the author, and an overarching compilation copyright in the newspaper as a whole, belonging to the publisher. Copyright gives the holder the right to control the reproduction of a work “in any material form whatever,” including electronic form. So, in putting material in online databases, was the news- paper posting the newspaper, as it was entitled to, or was it posting individual articles? To answer this question, the court had first to identify the essential characteristic of a compilation copyright—the “true essence of its originality”—to see what was what online.

Metaphysics has its uses.

Grace Westcott

Re: “Canada: More Liberal Than Tory?,” by Katherine Fierlbeck

Although Katherine Fierlbeck’s review of Janet Ajzenstat’s The Canadian Founding: John Locke and Parliament is entitled “Canada: More Liberal Than Tory?” (July/August 2007), confusions abound in the juxtaposition of liberal and Tory rather than liberal/conservative or Whig/Tory, and especially in “Locke, the liberal, and not Burke, the Tory.” Locke and Burke were both Whigs (undemocratic liberals), or supporters of the Glorious Revolution, which established Protestant succession of the Crown and constitutional monarchy where executive prerogative is limited by the power of the purse in the parliamentary hands of representatives of landed magnates (gentry in the Commons, hereditary aristocrats in the Lords). Locke and Burke were at one in thinking that the principal function of government was in securing property and rights of inheritance as the basis of a stable tradition. Burke supported the American rebellion and other progressive causes, although he is best known for his opposition to the French Revolution, which I suppose is the reason Fierlbeck calls Burke a Tory, although neither she nor Ajzenstat indicates that Canada is the only country in the Americas without a revolutionary break from Europe.

Ajzenstat’s Locke is a supporter of democracy and universal human rights. Like other members of the “Calgary school” of political thought with whom she has been affiliated, Ajzenstat uses the notion of universal human rights to oppose spe- cial rights of the Québécois, First Nations, femi- nists, gays or those who use the Charter of Rights and Freedoms to have its claims adjudicated by the courts. Although the most ideologically American of Canadian political thinkers in their opposition to central Canadian dominance, the Calgary school is united in their opposition to entrenched rights and the American tradition of judicial review of legislation. The Locke Ajzenstat champions is not exactly the Locke championed by Thomas Flanagan, who used him to invalidate all First Nations land claims, or by Barry Cooper and David Bercuson to dismiss any special status for Quebec (Deconfederation: Canada without Quebec), the welfare state, equalization payments and First Nations land claims (Derailed: The Betrayal of the National Dream). No Canadian has endorsed Locke’s justification of slavery, however enthusiastically it was used by American republicans. No Canadian has espoused Locke’s ardent anti-Catholicism; Ajzenstat depre- cates Samuel Huntington’s characterization of American political culture as “Anglo-Protestant.” Indeed, the Quebec Act of 1774, which granted Catholics rights for the first time in the British Empire, was one of the three major causes of the American rebellion.

Ajzenstat champions Locke’s justification for popular sovereignty, which is not the same, pace Ajzenstat and Fierlbeck, as parliamentary supremacy. There are much more apt defend- ers of British parliamentary government than Locke, as Ajzenstat admits, and Locke was rarely considered by the Fathers of Confederation. The people (and Fierlbeck is certainly right that this erm excludes the vast majority of the popula- tion) entrust its sovereignty to parliamentary legislatures insofar as parliament observes the laws of nature, but if “the Body of the People, or any single Man” anticipates that the legislative or executive powers jeopardize their property, they have a right to take up arms against govern- ment “by a Law antecedent and paramount to all positive laws of men” (Second Treatise, #168). Judicial review would be an alternative to Locke’s right of revolution, founded upon the right of private judgement of the laws of nature. The doctrine of popular sovereignty moreover does not indicate whether it is the people of the states or the people of the American union who are sovereign, and Locke could not help us out of a constitutional crisis regarding whether James Bay belongs to the Cree, the people of Quebec or the people of Canada.

So why do Ajzenstat and other members of the Calgary school buttress their right-wing ideol- ogy with Lockean doctrine? Readers will have to decide for themselves.

Ed Andrew
Toronto, Ontario

Re: “Minority Views,” by Farouk Shamas Jiwa

Farouk Shamas Jiwa asks what should be the role of Canada’s diasporas in shaping foreign policy (“Minority Views,” July/August 2007). This is an appealing question on three counts and one that my colleague David Bercuson and I attempt to answer in a forthcoming volume, The World in Canada and the 3Ds: Diasporas, Demography and Domestic Politics. First, there is the normative claim that diasporas should have a role to play in shaping foreign policy. An assumption premised, perhaps, on a particular political perspective that sees diasporas as having common interests, articulating those interests and acting on them. Or perhaps Jiwa wants an answer on how to channel diaspora “energy” into creative and productive ends. It is well recorded that Canada’s diaspora groups have in some instances helped finance conflict abroad and are foci of economic and political development in countries torn apart by war. Diasporas are a force for both positive and negative change at home and abroad, and since Canada is and always will be an immigrant society, a better understanding of these forces is essential. Just as we might see Canada at home in the world, we cannot be blind to the fact that the world is at home in Canada.

Second is Jiwa’s suggestion that diasporas somehow shape foreign policy as opposed to directly influencing it through conventional political channels. Shape is an interesting choice of words. It implies a nebulous process that defies generalization across groups. There is some truth to this when it comes to understanding how diasporas function in an interconnected world. Informal knowledge and financial diaspora networks play a significant role in influencing Canadian trade, development and diplomatic policy. But we know very little about the size of these networks, their degree of influence or how fast they are growing.

Third, and final, there is reference to “Canada’s diasporas.” This too is an interesting idea since diasporas really don’t belong to Canada or to any one state for that matter. They are transnational actors whose loyalties, values, interests and connections are the bridge between states. We are all (or were) part of the global diaspora. For some, our diaspora connections remain stronger than others. There are a number of reasons for this, not the least of which is that our bonds to the homeland tend to fade with time. Today, however, the increasing use of the term diaspora reflects the rise of truly transnational populations, people who can be thought of as almost literally living in multiple places, playing an active role in two or more communities simultaneously.

In brief, Jiwa’s question is an important one. It is a question he is not alone in asking. Given rapid changes in Canada’s demography, what are the implications for the way in which Canada conducts itself in international affairs and how will these changes in turn affect Canada’s place in the world? His frustration in finding answers in the 2006 edition of the Canada Among Nations volume is understandable. The series has of late become a “grab bag” of unfocused ideas, lacking an underpinning framework and theoretical premise. The best Canada Among Nations ever was the 1995 edition evaluating the democratization of Canadian foreign policy. Jiwa’s sugges- tion that the series employ, like that one, a more rigorous analytical approach to understanding Canada’s place in international affairs is sound advice and one the editors may wish to heed.

David Carment
Ottawa, Ontario

Re: “Our Toxic Harvest,” by Harriet Friedmann

In her review of Greener Pastures: Decentralizing the Regulation of Agricultural Pollution (“Our Toxic Harvest,” July/August 2007) Harriet Friedmann is right to insist that not all agricultural pollution can be addressed by restoring rural residents’ rights to challenge agricultural nuisances in court. As Friedmann explains, “to hang the solution to agricultural pollution on courts responding to complaints by neighbours seems wildly inadequate … [Neighbours] cannot be expected to take responsibility for wider problems that affect whole societies, watersheds and bioregions.”

Friedmann is not right, however, to suggest that I embrace such a solution. In Greener Pastures, I propose a layered regulatory environment in which private citizens can initiate legal action, communities can control land use through zoning and planning, those sharing a watershed can regulate pollutants in their river basin and upper levels of government can manage issues with broader implications. I argue that “only when local environmental impacts are addressed locally and broader impacts are regulated at higher levels will farming become truly sustainable.”

I advocate a regulatory regime that respects the principle of subsidiarity, under which decisions are made as closely as possible to the people themselves—where feasible, by individuals; otherwise, as required, by local communities or higher levels of government. Restoring control of agriculture’s impacts to the lowest workable level will best reflect the diverse needs and values of affected individuals and communities. It will also most effectively protect the natural environment, since those who are directly affected by pollution have long proven to be our most reliable environmental stewards.

The pollutants from which local people would, under such a system, protect themselves could come from farms of all sizes. Friedmann distinguishes between large corporate livestock businesses (often referred to as factory farms or confined animal feeding operations) and traditional farms. While rightly pointing out that large animal operations are some of the worst agricultural polluters, she overlooks the severe environmental damage done by smaller farms. Manure from a family farm with fewer than 100 cattle contaminated Walkerton’s well water.

Little evidence supports Friedmann’s suggestion that traditional farmers object to the right-to-farm laws that shield farmers from legal liability for the nuisances they create. While many complaints about larger farms do originate with more traditional farmers, the latter have not shunned the protection offered by right-to-farm laws. Indeed, the organizations lobbying for New Brunswick’s first right-to-farm law represented hundreds of small farmers producing a variety of animals and crops.

Elizabeth Brubaker
Toronto, Ontario

Re: “Why Canadian History Is Boring,” by Mark F. Proudman

In “Why Canadian History Is Boring” (July/August 2007), Mark F. Proudman offers an excellent introduction to a larger subject by arguing that Canada has been marginal and largely dependent in the world. A sequel might develop an equally striking feature of Canadian history: practically all our fundamental institutions—political, religious, social and intellectual—were formed and developed elsewhere. For a full and satisfactory history of our laws, courts, parliamentary system, electoral structure, police forces and the “peace, order and good government” mentioned the British North America Act, there can be no substitute for the history of the British Isles and France.

The languages we use, the schools, universities, newspapers and journals, and academies (such as the Royal Society of Canada) are incomprehensible apart from British and European history. Our armed forces are not only based on their British equivalents but derived from them. When in 1914 that determined imperialist, Premier Richard McBride of British Columbia, bought two submarines in Seattle because Ottawa (an inland capital) was neglecting the defence of the Pacific coast, the men he mustered to examine, crew and sail them to Esquimalt were born in Britain, mostly Royal Navy or ex–Royal Navy.

The only good course in Canadian history at the University of British Columbia during my undergraduate days long ago was on Canadian constitutional history, and it did not reach Canada at all until about half way. The British half of the course gave the Canadian half great interest; all that stuff about interpreting the BNA Act would otherwise have been intolerably boring—like most Canadian history. Only a blind, misguided nationalism prevents us from teaching the history of Canada in its proper context as a part of the British Empire and an offshoot of western Europe. After all, it was the European Middle Ages, the Reformation, the Counter-Reformation and the imperial struggles of modern times that made this country. There is a place for local, provincial and national history but only in a wider framework. Bothwell knows this as well as Proudman and I do, but avoiding the politically correct approach to the past is hard in Canada—and risky!

J.F. Bosher
Ottawa, Ontario

Re: “Guns and Gangs: A Deadly Duo,” by Paul F. McKenna

Paul McKenna’s long career as a police policy wonk has regrettably prevented him from gaining a true understanding of Canada’s growing street gang situation, which he demonstrates in his review of my book, Young Thugs: Inside the Dangerous World of Canadian Street Gangs (“Guns and Gangs: A Deadly Duo,” July/August 2007).

McKenna suggests that so-called “broken windows” policing—increasingly offered to us as a solution to gangs along with a tab for more frontline officers—is community policing writ large. As I argue in my book, the misguided arrest-our-way-out-of-our-problem approach inherent in broken windows is neither the most effective form of community policing nor a panacea to the gang situation. Like the increasingly used gang sweep, broken windows steers us away from dealing with the underlying causes of the gang situation and does little to ensure cops earn trust and respect in the fractured communities that produce a disproportionate share of gangsters. His disrespectful critique of my association with the world’s most experienced gang cop, Tony Moreno of the Los Angeles Police Department, again reveals his ignorance. While we should not blame the U.S. for our gangs, we must nonetheless remain mindful of the mistakes Americans have made in dealing with theirs. Moreno is neither the architect of nor apologist for America’s failed “get tough” policy on gangs. Because he has literally seen it all in terms of suppression and prevention in his 31 years in the world’s most gang-infested city, his insights are essential, especially since the trajectory of our gang policy is mimicking U.S.-style approaches. Perhaps before McKenna questioned the value of Moreno’s return plane fare from LAX, he ought to have first averted his eyes from his arcane textbooks and investigated Moreno’s approach, one that is unfortunately not practised in Canada because of our preoccupation with expedient get-tough tactics like broken windows.

Finally, McKenna’s pretentious homily on morality suggests that he believes the root of the gang problem is largely moral poverty, presumably according it greater weight than the true causes of street gangsterism—dismal economic conditions, persistent discrimination, community despair and the massive trade in illicit drugs. While I discuss the gang prevention benefits of parents instilling a moral compass in their children, those of us who have actually worked with at-risk youth know that morality lessons are not enough, as we have all met otherwise good kids who fell victim to the pull of the gang.

Michael Chettleburgh
Richmond Hill, Ontario

Re: “Brave, But Mostly Wrong,” by Zeba A. Crook

Zeba A. Crook seems to have been reading an excessively condensed version of the Gospels when he writes that “rendering to Caesar things that are Caesar’s means giving him nothing, because all things are God’s alone” (“Brave, But Mostly Wrong,” July/August 2007). “Render unto Caesar” is only the punch line of a story that begins with a tricky question about paying Roman taxes and continues with Jesus drawing attention to Caesar’s “image and superscription” on a coin usable for that purpose. So far from being a “politically subversive and subtle way of undermining the Roman occupation of Palestine,” Jesus’ saying gives a hint (which he characteristically left to his hearers to work out) that paying taxes to the Romans might not be such a bad idea after all. St. Paul’s bold assertion that the (pagan) “powers that be” were “ordained of God” and his fateful decision in a tight spot to appeal to Caesar followed quite logically. Christianity’s willingness from the very outset to distinguish, yet interrelate, valid secular and religious spheres of action has been one of its historic strengths and a contribution to civilization that secularists and devotees alike should find it worthwhile to ponder.

Nicholas Wickenden
Edmonton, Alberta

Re: “A Rich Heritage Ignored,” by David P. Silcox

Re “A Rich Heritage Ignored,” July/August 2007: While I am flattered by David Silcox’s tribute to my research, analysis and documentation, and am not surprised that he disagrees with my arguments and conclusions, I must take issue with his misrepresentation of certain key areas and events.

The thesis is not that Native arts were excluded from Canada’s national image in the 1920s through “malice,” “conspiracy” and “subterfuge.” Precisely the opposite. After 1925, various efforts to include them occurred in national and international exhibitions and restoration projects. Rather I propose that the continued presence of Native peoples and cultures was incompatible with a national image based on their erasure in the Group of Seven’s empty landscapes, and with official representations of the disappearing Indian, based on a national policy of repression and assimilation.

Conflicts appeared when Native arts were displayed at the 1927 Jeu de Paume exhibition where they were praised by French critics who disparaged the group’s landscapes. Silcox states that I do not place these responses into context, yet I position them, and their authors, within the French definitions of modernism, nationalism, regionalism and the primitive.

Silcox eschews context when he discounts links between art and state in Canada, even claiming that the National Gallery of Canada is not a state institution. I do not attribute its actions nor those of other government agencies, to conspiracies—as Silcox claims—but rather to the practical expressions of government policy.

Silcox states that I impute motives to the principal figures in the narrative. The imputation lies not with the text, which allows actions and words to speak for themselves, but with the reviewer. Claiming that I see “malice” in the exclusions of Native arts trivializes the issues, although it places them within the type of simplistic personalized narrative that is all too common in writing on Canadian art. Similarly, dismissing Kihn’s Native portraits with a misleading claim that I value them as overlooked masterpieces redirects attention from their historical significance and links to government policy on Indian land claims.

Most egregiously, Silcox ignores the documentation of Gitxsan resistance to cultural repression during this period, trotting out old clichés about Native disappearance being so generalized a truth that everyone could be excused for believing it. As I indicate, it was then widely known that many Northwest Coast Native cultures and peoples were resisting displacement. Continuing to rehearse the discourse of disappearance when narratives of continuity and survival are becoming prevalent suggests that this willful “blindness” still survives among those who regard themselves as the official gatekeepers of Canadian identity.

Leslie Dawn
Victoria, British Columbia

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