Raising Hell

The Canadian Civil Liberties Association marked its 50th anniversary last year. Acting for Freedom: Fifty Years of Civil Liberties in Canada, with Marian Botsford Fraser as primary author, commemorates that anniversary by describing the controversies, court cases and campaigns in which the organization was involved over the first half century of its existence.

A 50th anniversary can be an arbitrary demarcation point. In this case however, the fact that last May saw the death of Alan Borovoy, who, as general counsel, led CCLA for 40 of its first 50 years and continued to put his stamp on the organization even after retirement as general counsel emeritus means the time frame make sense. Acting for Freedom is about CCLA, not about Borovoy, but in many ways his passing marks the end of a discrete chapter in the history of CCLA and of civil liberties in Canada.

Acting for Freedom is neither a history of the internal workings of CCLA nor a philosophic treatise about civil liberties. It is a narrative rather than an extended argument, so the lessons to be learned are to a large extent inferences from the events described, with added insights coming from the inclusion of separate 2014 “conversations” with Borovoy and with his immediate successor as general counsel, Nathalie Des Rosiers.

In the era before the Charter of Rights and Freedoms, CCLA’s focus was largely on opposing initiatives and behaviour that were believed to bear the lineaments of a police state. CCLA itself was brought into being on the heels of the public furor over Bill 99, a 1964 Ontario government initiative intended to fight organized crime by giving police special powers of detention and interrogation. Throughout this period CCLA pursued Borovoy’s favourite tactic of raising hell whenever the police were given extraordinary powers to sidestep the ordinary protections of due process or took those powers upon themselves, from the invocation of the War Measures Act during the October Crisis to abusive police raids on bath houses and other venues.

Vigorous and noisy advocacy has continued to occupy CCLA right up to the present, but the advent of the Charter fundamentally changed the landscape. CCLA had appeared in court cases before the Charter’s introduction, but the Charter turned the courtroom into a main stage for its activities. Not only did the Charter open up civil liberties issues such as pornography, hate literature and detainee rights to a new standard of judicial scrutiny, but the courts also began to be freer in granting intervener status to public interest groups, including, prominently, CCLA. The book’s title Acting for Freedom is itself a bit of a pun, since acting for can not only mean “taking action in support of” but also “appearing in court on behalf of.” Represented by an eager cast of lawyers participating pro bono, CCLA has intervened effectively in a wide range of civil liberties cases. The details of these efforts fill the bulk of Acting for Freedom’s pages.

The issue in Charter litigation usually comes down to whether an infringement can be justified, with the state bearing the burden of proof. Alleged infringements of fundamental freedoms are judged in light of their specific impact and not in the abstract.

CCLA interventions have been especially effective at this granular level.

Charter litigation seldom results in sweeping generalized vindications of civil liberties principles. Keeping a scorecard of wins and losses can be misleading, but it seems pretty clear that the result of all this has been to extend the protected scope of civil liberties.

As a matter of principle, neither CCLA nor Alan Borovoy could be expected to be satisfied with these sorts of results. As the discussion in Acting for Freedom candidly admits, however, civil liberties advocates, including CCLA, have not uniformly had the field of human rights all to themselves. It is trite to observe that the defence of expressive freedom makes strange bedfellows, with civil libertarians on the same side of the legal argument as odious polemicists and merchants of sleaze. More poignantly, that defence can engage unlikely opponents, including feminists and advocates for minority rights who in areas such as pornography and hate speech counter the arguments based on Charter guarantees of civil liberties with arguments based on the Charter value of equality and the protection of the vulnerable.

This scrambling of friends and opponents contains hints of future challenges and potential debates, as well as some possible ironies.

The friendly fire exchanged between erstwhile allies over extreme pornography and hate propaganda raises the issue of the relationship between civil liberties and other human rights. Acting for Freedom does not always differentiate among civil liberties, fundamental freedoms and human rights. This suggests CCLA’s mandate may extend beyond civil liberties in the traditional sense of protections against arbitrary state interference in our personal liberty, in what we believe, in what we say and what we may choose to have said to us, to include broader social justice claims such as equality, which is a claim to protection by government rather than protection from government.

This issue comes up in the interviews with Borovoy and Des Rosiers. Des Rosiers takes the wider view. For her, an essential part of CCLA’s future mandate ought to be addressing equality issues such as disparity in income and socioeconomic rights. Borovoy is equally clear in the opposite direction. Issues of social justice are important but not as part of CCLA’s mandate. There is a bright line and “it’s an error to see an organization like this as having as its concern with the whole panoply of social issues.”

Does Borovoy’s view still command allegiance or does his passing symbolize its eclipse? One suspects the latter.

One final word about the future and the durability of Borovoy’s view of principles. As he makes clear in his interview, despite whatever success CCLA may have had leveraging the Charter in support of civil liberties, as a matter of principle he was never fully reconciled with what he saw as the undemocratic notion of an unaccountable judiciary prevailing over the judgement of elected politicians. Once widespread among progressive thinkers who recalled the role of the U.S. Supreme Court in thwarting and stalling New Deal legislation on the basis of “due process,” this view is heard these days primarily on the right, while progressive voices, such as Kent Roach, who contributes a standalone chapter on the Charter, attempt to debunk the notion of the courts exceeding their proper role.

Conservative opponents of alleged “judicial activism” have lately raised the spectre of redressing the balance by screening judicial appointments on the basis of political creed. Depending on electoral developments, it is possible that the courtroom may in the future not be as comfortable a forum for the defence of civil liberties as it has been up to now. In his interview, Borovoy says that to him, the notion of gains having been made in the courtroom always seemed exaggerated. He always preferred “acting for freedom” in the sense of agitation and “raising hell.” That is precisely the prescription for the focus of CCLA’s future activities with which he ends his interview.

CCLA may or may not take the advice, but sadly we will not see Alan Borovoy on the battlements again.