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Naming Names: Should Canada Reveal Potential Traitors?

silhouette of Canadian parliament

The ongoing foreign interference scandal in Canada has taken another surprising turn.  Last month, a parliamentary committee released a redacted report indicating that some MPs have “wittingly” assisted in providing confidential information to foreign actors – working on behalf of India and China – and relayed privileged information that might be used to manipulate their fellow parliamentarians. The accusations are serious enough to be considered treason. The dilemma now facing Canadian politicians is whether these names should be made public. What might be the risks to democracy and the rule of law?

The issue of foreign interference has been festering for some time. There have already been personal reports from MPs themselves – such as Micheal Chong and Jenny Kwan – that have revealed Chinese attempts to intimidate and harass. In 2019, the Canadian Security Intelligence Service (CSIS) reportedly warned officials in the Liberal Party about attempts to influence candidates but these alerts were ignored by the party. It is also known that China successfully interfered (although not enough to change the results) in the 2019 and 2021 federal elections in order to help secure a Liberal minority government. In response to calls for an official judicial inquiry into foreign interference, readers may recall that Prime Minister Trudeau delayed the process for months by making up the title of “Special Rapporteur” and designating David Johnson – who at first concluded there ought to be no inquiry before resigning after widespread concerns about his conclusions and an obvious conflict of interest. A judicial inquiry has since been called; however the government has largely refused to cooperate.

Many are now trying to figure out what to do with the little information we do have from this separate parliamentary investigation. On one side is the camp of people who believe that it would be improper to release the names of the suspected traitors to the public until a more thorough investigation can begin. Releasing the names or any other details about the investigation would represent a national security threat in revealing methods of intelligence gathering. Beyond this, the argument against releasing the names seems to largely hinge in the idea of some notion of due process and concerns about reputations. Canada has a complicated history with national intelligence and since the 1980s has separated intelligence gathering and policing, creating a gap between intelligence and evidence, making it difficult to use intelligence as evidence in court. As the deputy Minister of Foreign Affairs recently put it, “intelligence is not truth.”

The fact that official investigations have yet to take place, with no indication that any charges or legal indictments being issued, makes some concerned that releasing the names runs the risk of the process descending into chaos with people being branded without due process of the law. As Green Party Leader Elizabeth May recently stated, “There’s no reason to create an atmosphere of McCarthyism.”

There is also a concern that allegations of being a traitor would irreparably damage an MP’s reputation. As one minister put it, “The obvious potential reputational damage a person might suffer if there’s another side of the story, that must be considered.” Another Liberal MP claims, “Somebody’s career could be totally ruined by a frivolous accusation or a comment…I think that if somebody gets charged, absolutely, OK, there you go. But until that time, let’s be careful but let’s be thorough.”

On the other hand, there are also risks with not releasing the names. For example, among those politicians who have read the unredacted report, the public has heard radically different reactions. Green Party Leader Elizabeth May was “relieved” after reading the report, claiming that there is no list of disloyal MPs. Meanwhile, NDP Leader Jagmeet Singh claimed to be “more concerned than ever” after reading the report and stated that the report shows that “a number of MPs” helped foreign states and are “traitors to the country.” What is the public supposed to make of all this?

Certainly it’s true that voters won’t be waiting on legal proceedings to make up their minds if a list gets released. And it would be ideal if we could preserve both the rule of law while also ensuring that voters can be confident in casting their ballot – like, say, knowing whether their MP might be a traitor to the country. Stifling any doubt about the integrity of Canadian elections will be paramount. Even the perception (regardless of the facts) may be damning. If voters cannot trust the process or the candidates, trust in the government, democracy, and the law are bound to suffer.

There is, of course, the risk that potentially innocent MPs have “their reputations unfairly smeared,” and this could real damage – political or otherwise. Though it isn’t as if politicians don’t face false accusations on a regular basis or shy away from unfair attacks on people’s reputations. Besides, the risk of re-electing a traitor may very well be more significant than the risk to a few political careers. Which would you rather be wrong about? We should note that McCarthyism featured vague accusations about affiliations with communism and “unAmerican” activities among bureaucrats and cultural figures. By contrast, the present situation concerns a specific set of elected individuals accused of specific acts that threaten to subvert the people’s will.

It also doesn’t help that there is already mistrust about the motivations of the Trudeau administration when it comes to the issue of foreign interference. They have been accused often of not taking the issue seriously – they have stalled efforts to investigate, withheld information from investigators, and criticized the findings of the investigations. Foreign interference has also benefited the Liberal Party at the expense of their political rivals in the not-so-distant past. Currently, Liberals will not commit to removing any MPs from their caucus if they have been found to have engaged in the activities in the report. Even if Trudeau’s government does take the issue seriously (and isn’t implicated), keeping the report a secret builds no trust. After all, what sort of politician would question the conclusions of their own intelligence organizations and call investigations of foreign interference a “witch hunt”?

While political scientists may point to Canada’s high rank on various freedom indexes, many are expressing concern about the future of Canadian democracy in general. In addition to these foreign meddling concerns, there have been a number of worrying events – the unjustified use of the emergencies act, the government’s inaction in the midst of a housing crisis, the rise of neo-feudalism. Canadian democracy is being stressed from all sides. It would be wise not to raise  the level of cynicism and distrust any further.

Is Canadian Democracy Getting Weaker?

photograph of Justin Trudeau in front of row of Canadian Flags

Last week Prime Minister Trudeau criticized Polish Prime Minister Mateusz Morawiecki for democratic backsliding. This might seem a bit rich from someone who is mired in controversy over whether his government failed to act to stop foreign interference in elections when that interference aimed to hurt his rivals. There is no hard proof of this, but Trudeau has resisted calling a public inquiry into election interference, prompting accusations of a cover-up. Trudeau’s bizarre attempt to avoid an inquiry by appointing a “special rapporteur” recently ended, but it is far from clear whether any democratic checks to hold the Trudeau government accountable on this issue will prevail. Two years ago, I asked whether the U.S. is becoming less democratic. Given this issue in Canada, along with various other issues recently, perhaps this raises questions about the robustness of Canadian democracy and whether we are engaging in democratic backsliding of our own?

Canadian media reported that China attempted to interfere in the 2019 and 2021 Canadian elections, including threatening Canadian politicians. The Canadian Security Intelligence Service (CSIS) had advised the government that China had attempted to deploy disinformation and secure funding for preferred candidates to help the Liberal Party of Canada secure a minority government. Sources have claimed that Trudeau and his cabinet ignored these warnings. It has also been reported that China had targeted MPs like Michael Chong and that the government did not warn him. The government initially tried to claim that they weren’t briefed on this, but it was later revealed that they were aware of these efforts.

This has the potential to undermine democratic trust in Canadian elections, both because it makes it more difficult to accept the results as valid (Conservatives estimate, for example, that Chinese interference may have cost them 9 seats), but also because of the possibility that the government was either complicit or incompetent in the face of it. Thus, the public wanted a public inquiry into the issue. Yet, despite near universal calls for such an inquiry from every opposition party, only the Prime Minister can decide if a public inquiry should be called. Trudeau decided to make up an entirely new and ad hoc process to decide if an inquiry should be called by appointing a “Special Rapporteur” in the form of former Governor General David Johnston to investigate matters and on the basis of his good name alone, ask that Canadians trust Johnston to decide if an inquiry was necessary.

There were already suspicions of a conflict of interest which were only magnified when Johnston’s report announced that there would be no judicial inquiry as it would be difficult dealing with classified materials in a public inquiry. Instead, he suggested leading hearings about the experiences of diaspora communities in Canada. Canadians were not happy with this. Only 27% of Canadians polled believed that Johnston was impartial. The House of Commons passed a motion requesting his resignation and for an inquiry to be held. At first, Johnston resisted, saying he respected the right of the House to “express its opinion” but that his mandate was to the Prime Minister himself.

Does this offer evidence of democratic backsliding? Certainly such an unprecedented and improvised process raises eyebrows. The prime minister handpicked the investigator tasked with determining whether he or his government is potentially undermining Canadian elections. The investigation was conducted in private with no opportunity for cross examination of witnesses, no one testified under oath, and evidence was only provided voluntarily by the cabinet. In other words, the methods used were potentially unreliable and accountable, prompting criticism from Conservatives.

Johnston, who despite enjoying respect and admiration for his time as Governor General, has numerous ties to the Prime Minister. He was a member of the Trudeau Foundation, which had accepted donations from Chinese sources, and whose entire board recently resigned. He was also a long known acquaintance of the Prime Minister and his family, having known Trudeau as a student at McGill University and from a family friendship “rooted only in the five or six times” their families skied together years ago.

Given that Trudeau has a minority government and depends on the opposition, their governing partners in the NDP could have insisted Trudeau and Johnston, acting on their own motion. But, NDP Leader Jagmeet Singh refused to back out of his informal gentleman’s agreement to support the Liberals, citing the fact he didn’t want an election to be called while there were still doubts about election integrity. This eliminated the only realistic democratic check to keep Trudeau accountable on this issue. Until Johnston finally agreed to step down this week. Now the Liberals have even signaled that they are open to a full inquiry.

Defenders of the process have argued that Johnston is an honorable gentleman being treated unfairly – he was simply a public servant working in good faith who fell victim to partisanship. Johnston was known as a person of honor and enjoyed great respect for his nonpartisan role as Governor General. He also privately asked a retired Supreme Court Justice for his opinion on the matter and that judge said he didn’t believe there was a problem. Others have argued that anyone chosen for the job would have had the same fate; criticism was inevitable. Besides, since Johnston ultimately resigned and an inquiry looks more and more likely, perhaps the system ultimately “worked.”

On the other hand, problems with the process remain. For example, the justice who signed off on Johnston also was associated with the Trudeau Foundation at one point, and Johnston’s legal council consisted exclusively of Liberal advisors. Ultimately, the complaints highlight a trend with Trudeau’s government which has had so many conflict of interest problems. It’s gotten so bad that the Ethics Commissioner recently called for basic training for all cabinet ministers.

Does this mean that Canadian democracy is weakening? For many years, critics have expressed worry about the government depending far too much on the executive and the Prime Minister’s Office. Calls are getting louder to reign in that power. There have also been concerns regarding the government’s recent attempt to regulate speech on the internet, laws which have made Canada an outlier. Trudeau’s use of the Emergencies Act to stop a protest he helped inflame, and the use of state power to seize bank accounts serve as additional signals of the weakening of democratic guardrails. This was only further underscored by the fact that the Commissioner who investigated the use of the Emergencies Act and controversially concluded that that the threshold for its invocation had been met, had (you guessed it) a history with the Liberal Party of Canada.

The increasing polarization in the country is making it easier for politicians to try to justify some fairly sketchy policies. A significant base is all too willing to jump to their defense, purely for the purpose of partisanship. This only makes the potential for the abuse of power easier. While some might argue that Canada’s democratic system of accountability ended up working in this particular case, an inquiry is not certain and even if it comes to pass it will only be by luck and public pressure. Johnston asked Canadians to trust him and now Singh is asking Canadians to trust him to judge when Canadian elections are free from interference. But any investigation will still depend on the goodwill of Trudeau and his league of extraordinary gentlemen.

On Canada’s Oath of Allegiance

photograph of Queen Elizabeth on dollar bill

When does it become immoral to swear allegiance to something or someone? Is it wrong to swear allegiance if you don’t really mean it? What if it isn’t clear what you are swearing allegiance to? Is it up to you to investigate and understand what you are doing, or is the party asking for allegiance obligated to explain? What if you live in a monarchy? Is it better to swear allegiance to that monarch or are you only obligated to have allegiance to the nation that they reign over? What’s the difference?

In recent weeks, Canada has witnessed a rash of complaints about the fact that Canadians must swear allegiance to King Charles III if they wish to become a citizen or to take high office. Is it wrong to make such a demand?

Over the years there’s been a steady increase in the number of folks immigrating to Canada who complete the process only to find that they must swear allegiance to the Crown. Prospective citizens must profess “true allegiance” and “be faithful” to the monarch of Canada, their heirs, and successors. Similarly, when politicians are elected to provincial legislatures or to Canada’s national parliament, they must similarly swear that they will be faithful and bear “true allegiance” to the Canadian monarch. With the death of Queen Elizabeth, that oath now refers to King Charles III, and it has become a topic of controversy amongst Quebec politicians, many of whom now say that they refuse to make such an oath, despite the process being constitutionally mandated.

While there were grumblings about the oath following the Queen’s death, the debate has become more prominent following an election in Quebec. The separatists Party Quebecois lost seats, but when members were to be sworn in, their leader announced that he didn’t want to take the oath of office. The Speaker of the National Assembly has now ruled that members who do not take the oath cannot sit in the assembly. The PQ had hoped that a simple motion would be sufficient for a change in the oath, however, section 128 of the Constitution Act of Canada requires that every member of a provincial assembly swear an oath to the monarch before they shall take their seats. Any change will thus require a constitutional amendment.

The PQ Leader has argued that he should be able to take an oath to the Quebec people, but that it is “embarrassing and humiliating” to swear allegiance to the Crown. He argued that “It is a conflict of interest that your first act, your first meaningful gesture is to take an oath toward the population that elected you and simultaneously take an oath to the Crown of a foreign country?” In 2015, when Israeli math professor Dror Bar-Natan applied to become a Canadian citizen, he challenged the required oath of allegiance in court, arguing that the monarchy is a symbol of inequality and that the oath was “repulsive” and that he felt “somewhat humiliated” having to take the oath. After taking the oath, he publicly disavowed it and pledged his “true” loyalty to the people of Canada. The issue caught federal attention this week when the Bloc Quebecois tabled a motion calling on Canada to abandon the monarchy which it labeled “racist” and “colonialist.” When the motion failed to pass Canada’s House of Commons, the BQ Leader said it demonstrated that federal politicians “prefer to support the King rather than the people.”

Of course, the obvious question is why Canadians swear an oath to the Crown in the first place. Canadian media covering this story consistently fails to explain why this is a requirement to begin with. English media will frequently muse about how the monarchy is symbolic anyways, “antiquated but harmless,” and not worth getting upset about.  Unfortunately, this all misses a larger point. The Canadian monarchy is modeled after the British monarchy and thus the monarch has a dual role. They both exist as a person, but they are also considered to be the living personification of the state. In other words, King Charles is Canada, and so by swearing an oath to King Charles, you are swearing an oath to the Canadian state.

Why does this tradition exist? According to Canadian constitutional expert Eugene Forsey, in the Canadian monarchical system the Crown is “the symbolic embodiment of the people—not a particular group or interest or party, but the people, the whole people.” His daughter Helen adds, “the essence of the monarchy was its impartial representation of the common interests of the citizenry…the Crown [is] a permanent and impartial entity in our democratic system, transcending the temporary and the partisan.” Former Ontario Premier Mike Harris described the oath as “fundamental to the administration of the law in this country. It signifies that, here in Canada, justice is done—not in the same of the Prime Minister, or the Mayor, or the Police Chief…but by the people, in the name of the Queen.”

The intuition behind this is not dissimilar to the reason Americans must swear an oath to the constitution rather than merely to the country. Canada’s constitution is both written and unwritten, yet both oaths represent commitments not only to a nation or a people in a temporal sense, but to the rule of law and an established constitutional order that rises above disagreements about day-to-day politics. Just as, for example, the impeachment fulfills an important constitutional check on abusive elected power, the Crown acts as a constitutional check on an elected Prime Minister who no longer has the support of Parliament. These are safeguards built to protect democracy beyond a check beyond the political arguments themselves.

This brings us back to the debate about whether citizens or politicians should have to swear an oath to a “foreign King.” In fact, bizarrely, the PQ have pointed out that courts have said that it is not an oath to the monarch themselves but to the Canadian state. It is obviously not merely a personal oath, nor merely a symbolic one, to Charles that is at stake. If the oath to the monarch is an oath to the state – and the state’s legally determined means of recognizing an oath of allegiance to it is through the monarch – then what does an insincere gesture mean?

There is a big difference between accepting the established constitutional order and working within it to change it and not accepting the established constitutional order, you cannot have it both ways. The courts have said that citizens who have taken the oath have the right to espouse anti-monarchist views and to publicly disavow the message, but nevertheless confusion over the nature of constitutional system risks sending mixed messages.

Perhaps former Quebec Premier Bernard Landry had the most mature way of handling the situation. During his swearing-in he added “for the duration of the present constitutional order, which will hopefully change one day in a democratic fashion.” Politicians should not be able to pledge allegiance only to those parts of the country they like. Publicly proclaiming that you don’t take the oath to the state seriously – or that you don’t understand what the oath means – demonstrates a lack of commitment to the democratic order. You may wish to change the particular details, but loyalty to the system, the state, the people, isn’t something you can take or leave.

The Ethical Risks of Ad-Hoc Bilingualism

photorgaph of Air Canda plane in air

A rather strange episode in Canadian language relations occurred at the beginning of November when the CEO of Canada’s flagship airline Air Canada had to apologize for not being able to speak French, despite living in Montreal for 14 years. Quebec politicians and journalists quickly labelled the remarks as “insulting,” prompting a wave of criticism in his direction, including from the Deputy Prime Minister herself, who wrote a letter to the airline telling the CEO that improvement to his language ability “should be incorporated as one of his key performance goals.” The affair has prompted yet another debate about bilingualism in Canada, but this particular instance highlights a growing ethical problem regarding the way that bilingual policies are understood in practice.

The affair began on November 3rd when Michael Rousseau, the CEO of Air Canada, made his first major speech after taking on the role in February to the Montreal Chamber of Commerce. Rousseau spoke limited French during his speech, and when asked afterwards by a journalist how he could live in Montreal for so long without speaking French, he replied, “I’ve been able to live in Montreal without speaking French, and I think that’s a testament to the city of Montreal.” These remarks were labelled as contemptuous of Quebec and its culture, “appalling and disrespectful,” “insensitive,” and indicative of a “lack of respect for francophones” by various officials at the federal level and from the Quebec government. In response, Rousseau has pledged to take French lessons.

This affair has prompted a counter response that this is simply Quebec “fragility” with each charge against Rousseau being more absurd than the last. But, putting aside the culture war for a second, its worth considering what bilingualism is supposed to mean to a contemporary Canadian society. The role of the French language has been a hot issue in Quebec since the government recently introduced new legislation to strengthen the French language in Quebec and crack down on English use in public. Initially, the policy of official bilingualism in Canada began with the Official Languages Act of 1969, passed by Pierre Trudeau’s government. The intention behind it was to ensure French and English would be given equal status and that French or English Canadians would be able to access services from the federal government in their own language. In addition, Canada’s constitution guarantees equal language rights and education rights. But these inclusive policies seem merely meant to guide government services, not encourage all members of Canadian society to be bilingual.

The dispute playing out stems from an ambiguity. One conception of bilingualism would hold that any Canadian should be able to work in their language of choice. Another conception of bilingualism may specifically promote the idea of speaking both French and English, and as a social policy Canada should become more bilingual in this way. These are very different goals and would require very different resources, carrying with them very different ethical concerns.

For starters, science tells us that learning a new language once we reach adulthood is very difficult because our neural connections have stabilized by that point. This means that a number of social factors will likely determine success in picking up a new language. The science of languages suggests that learning a second language really requires one “to be immersed in it,” “to be around native speakers as much as possible.” Yet, the 2016 Census found that 86% of bilingual Canadians live in Quebec, Ontario, and New Brunswick, meaning that if you live in a difficult geographic region, your ability to learn a second language is far more difficult. In addition, civil servants have argued that current bilingual policies are racist because they effectively exclude immigrants and new Canadians who in many cases must learn not one, but two new languages if they wish to work at the federal level.

There are also concerns that the policy of official bilingualism is exclusionary for aboriginals as well. Former MP Roméo Saganash opposed forcing Supreme Court judges to be bilingual, for example, because it would effectively prevent aboriginals from reaching it. Even recently, there was a controversy over the fact that Canada’s newest and first Aboriginal Governor General, Mary Simon, a bilingual person speaking English and Inuktitut and born in Quebec, was unable to speak French. This raised hundreds of complaints from francophones despite Simon noting how as a child she was denied the chance to learn French.

Finally, even once one has attained bilingual status, ethical concerns remain. The federal government’s own website notes how tension and insecurities between second language speakers and native speakers can lead to exclusion. These insecurities have made it difficult to have a bilingual civil service, so why would we expect these factors not to be a problem if bilingualism were promoted more broadly?

This brings us back to the case of Michael Rousseau. Critics argue that since Air Canada, a former crown corporation, is the only national airline legally subject to the Official Languages Act and required to be headquartered in Montreal, it follows that the CEO should speak French. But while this is a reason for Air Canada to offer bilingual services, it is not an argument that everyone in the company should speak multiple langauges. As Sabrina Maddeaux recently noted,

If no one at Air Canada headquarters spoke French, that’d be a problem to discuss, but that’s certainly not the case. In fact, the airline has a multi-million dollar internal official languages program and employees dedicated to any complaints related to the Official Languages Act. Functionally, this is a non-issue. Rather, it’s a PR problem and optics issue the government has no business sticking its nose in.

Instead, most of the arguments against Rousseau seem to dwell on the symbolism involved. Some argue that Rousseau didn’t show enough “humility,” while other argue that Air Canada is “not just any company” because of its status in Canadian culture. They insist that that CEOs should set an example and that “Official languages obligations should be seen as a duty owed to the nation”: “If the CEO is not bilingual, why should a flight attendant?” Of course, the obvious answer is that a flight attendant directly offers the services mandated to be bilingual while the CEO does not.

But even if it can’t be legally required for a CEO to speak French, should we regard the expectation as more of a social requirement? Should everyone in the company be bilingual? What about other national corporations and institution? If the argument is that either for symbolic reasons or because we actively wish to promote a bilingual society, you must be bilingual if you want to operate at the national level, then we cannot ignore the larger moral issues and potential inequities.

Moving from a model of mandating service in both languages to a model of bilingualism that promotes it as a social policy carries important ethical concerns. Determining who should be bilingual and what national roles should be bilingual is not something that should be handled by a mob of journalists and politicians based on ad-hoc reasoning about which roles rise to the level sufficient importance. This isn’t an issue that affects only a single CEO who could easily afford French lessons. It could conceivably apply to any job field within federal jurisdiction. Such moves in official language policy have the potential to exclude many sections of Canadian society. Policies which could potentially ruin whole careers or exacerbate social inequalities should be rigorously debated and voted on. Given the moral challenges of bilingualism, it is morally irresponsible for a government to proceed in such an ad-hoc or arbitrary way.

Truth and Reconciliation Day

black-and-white photograph of Native American soldiers in the Canadian Expeditionary Force

On September 30th, Canada recognized its first National Day for Truth and Reconciliation following a year where the bodies of hundreds of First Nations children were discovered in mass graves on the sites of former residential schools. Across the country, the day has been considered an important step forward in addressing many of the historical wrongs perpetrated on First Nations people within Canada. However, since then most of the media and larger public attention on the day has been preoccupied with Prime Minister Justin Trudeau’s decision to forgo meetings with First Nation leaders on September 30th so that he could instead go to the beach with his family. But while many have chosen to take this opportunity to point out the moral failings of the Prime Minister, is it possible that this represents a larger moral failure of the country?

The adoption of September 30th as a statutory holiday to allow for public commemoration of the history of residential schools followed recommendations made in the final report of the Truth and Reconciliation Commission. The report called for a statutory holiday to be created to “honour Survivors, their families, and communities, and ensure that public commemoration of the history and legacy of residential schools remains a vital component of the reconciliation process.” Beyond this, however, the exact meaning and intention of this day isn’t exactly clear to everyone.

Even before the day had come, First Nations critics had noted that this was an extremely small step, representing only 1 of 8 other recommendations that have been implemented out of a total of 94. Critics also note that in light of this, the day feels like an empty promise because of the lack of plans of action for the day, making the federal statutory holiday ring hollow. According to the Canadian Heritage Minister, there were no details for any federal plans to mark the day as commemorations should be led by indigenous people. Canadian Senators were also concerned about what this day was supposed to represent. One noted again that this was only one of 94 recommendations which was rushed to adoption following the discovery of mass graves, and questioned whether a statutory holiday will simply be “a day to stay home and put up our feet and watch TV.”

Of course, the day is supposed to mean more than that. Given that this is a day of reconciliation between Canadians and First Nations, and that this was declared a national holiday, it presumably should carry meaning for the whole Canadian public as well as First Nations. But what meaning is it supposed to have exactly? Was this a symbolic gesture meant to convey a sentiment or was this a policy decision meant to change public relations when it comes to First Nations? What goals does the government hope to achieve? According to the Heritage Minister the government hopes it will be a day for Canadians to “reflect.”

This theme of “reflection” is one that the government often likes to bring up when it comes to discussing reconciliation issues. On Canada Day, when the national conversation questioned the merits of national celebration in light of the discovery of mass graves, Prime Minister Trudeau again stressed reflection. “Many, many Canadians will be reflecting on reconciliation, on our relationship with Indigenous Peoples and how it evolved and how it needs to continue to evolve rapidly.” But reflect how? In what ways? When 1/8th of your strategy for reconciliation is to create a holiday and your plan is just to tell people to “reflect,” it doesn’t inspire much faith that you’ve taken the idea that seriously.

This is not to say, of course, that serious public commemoration or reflection did not take place or that such a day of commemoration should not take place. Broadcasts took place honoring Indigenous people, articles were written suggesting different ways to meaningfully recognize the day, and across the country various events took place including flag-raising, drum performances, prayers, protests, and commemorations for the children who were victims of residential schools. But, what this does begin to suggest is that the Canadian Government wasn’t treating this day with the seriousness it should have.

What’s more is that this is a federal statutory holiday. Federal holidays only apply to a limited number of industries in Canada. However, the provinces of Ontario, Quebec, Alberta, New Brunswick, Saskatchewan, and the Yukon have refused to recognize the day as a statutory holiday. This means that more than 60% of Indigenous people in Canada will not be allowed to take the day off. While critics have made their objections to not declaring September 30th a statutory holiday at the provincial-level known, the counter argument is that a statutory holiday lowers productivity. Of course, the Ontario Government still insists that it would observe the 30th as a day to, you guessed it, “reflect.”

Nevertheless, there are no massive outcries from the public for governments to change their minds about this, at least, not big enough to make a government actually change course. My point is that both at the level of the Federal Government and at the level of the Canadian public at large, there seems to be a lack of a serious commitment to make this day mean something beyond symbolic gestures. Contrary to the idea that this day should be Indigenous led, Eagleclaw Thom notes, “This day as a holiday isn’t for the Indigenous peoples who have chosen to share their land with Canadians. It’s intended for settler Canadians, so they can recognize the pain and hurt they’ve caused.” But, neither the Canadian public nor the Canadian Government seem very willing to elevate the meaning of National Truth or Reconciliation Day beyond symbolism anyways.

This brings us back to Prime Minister Justin Trudeau and the fact that he chose to spend the day at the beach. The Prime Minister had been invited by several First Nations groups to attend various functions but declined. There has been much public and media outrage about this incident, but what is the Prime Minister guilty of that most Canadians aren’t? Why the outrage that the Prime Minister didn’t take the day more seriously when most Canadians weren’t willing to either? Of course, there are obvious answers. He’s not just anyone, he’s the Prime Minister; his government created the day in question, he prides himself on focusing so much on reconciliation, and recently won re-election planning to do more. Trudeau’s decision to go to the beach was not only politically inept, but represents a moral failure of leadership.

But had Trudeau attended a few functions that day instead of going to the beach, what might have happened? It would have made the news and the next day it would have faded from the public mind and the media’s consciousness. The main reason this topic is still in the public mind for most Canadians and media outlets is because Trudeau didn’t attend. They are outraged at the political optics when they should be outraged at the glacial pace of Trudeau’s government. His is a moral failing, to be sure, but Trudeau’s problem is representative of the larger moral failure to make National Truth and Reconciliation Day a more significant effort to affect social change.

Moral Lessons from the Meng Wanzhou Affair?

airplane boarding on Xi'an airport runway

Now that Meng Wanzhou has finally returned home to China and Canadians Michael Kovrig and Michael Spavor have been released from Chinese custody, a situation has been brought to a close which incited a great deal of moral controversy. The two Canadians were believed to be taken into detention in retribution for the arrest and detention of Meng, and given the state of relations between the U.S. and Canada, many wondered whether simply releasing Meng in exchange for the release of the two Michaels would simply be a better alternative. Last year, I covered some of the ethical concerns involved with this situation. But in light of the fact that the affair has now been settled, what is the status of these ethical issues in hindsight?

To briefly recap the situation, Meng was arrested by the RCMP in December 2018 at the request of the United States who charged her with conspiracy to commit fraud. After the U.S. requested extradition, the matter was placed before Canadian courts. That same month China detained two Canadians named Michael Spavor and Michael Kovrig who were later charged with espionage. The move by China has been taken to be retaliation for the arrest of Wanzhou after they threatened “grave consequences” for Canada and despite the fact that China insists that the arrest of the Michaels is unrelated. And, while Meng was placed on house arrest and forced to wear an ankle monitor while living in a Vancouver mansion, the two Michaels were subjected to hours of interrogation every day, were not permitted to go outside, and were limited in their ability to talk to their families.

As this situation stretched from weeks into years, many Canadians took the position that Canada should have resisted American calls for the arrest and extradition of Meng, or should have released her in exchange for the release of the Canadians. This proposal created a great deal of moral debate about the rule of law, arbitrary detention, and the potential precedents such a move might set in the world of “hostage politics.”

But, now the situation has been resolved. On September 24th, the Department of Justice announced that a deferred prosecution agreement had been reached with Meng which led to the withdrawal of its extradition request against her. That day, Meng boarded a plane and arrived in China after spending more than 1000 days under house arrest. On the same day, in an apparently unrelated sequence of events, China released the two Michaels “for medical reasons” who were then flown home to Canada.

It is worth noting that many believe that this situation was sparked by the United States as a politically motivated tool in their trade war with China. This is supported by remarks made by then President Trump and Secretary of State Mike Pompeo who suggested that they could intervene in the case for the sake of securing trade and by the fact that the arrest was unprecedented. China’s position, in response, is that this was politically motivated and that Canada conspired with the United States. Legal experts on extradition have called the case against Meng a “silly” “political type of enterprise.” Former Prime Minister Jean Chretien claimed that the “United States played a trick on Canada by forcing Ottawa to arrest Ms. Meng,” and many more prominent Canadians called on Meng to be released and a prisoner exchange arranged or who shared the view that this was a political matter and not a legal one. Thus, Canadians were faced with the dilemma of either releasing Meng and angering the United States or holding Meng and endangering its own citizens.

As I noted in my previous article on the subject, the Government of Canada’s position has always been that this is a legal matter falling under an independent judiciary, even accusing China of failing to understand such a concept. Meng, so the claim goes, had been charged with a crime and the extradition and trial process must be followed to preserve “the rule of law.” Thus, it would be a violation of such principles to offer to release Meng arbitrarily in order to secure a “hostage exchange.” A second argument was made that agreeing to release Meng in exchange for the two Michaels would set a bad precedent. Justin Trudeau argued that such an exchange would send a message to China that all they or anyone else had to do was arrest Canadians in order to pressure the Canadian Government and that this would put millions at risk.

So, how did this situation resolve itself? After several months of court proceedings the Justice Department offered Meng a deferred prosecution deal on the condition that she admit guilt in misrepresenting efforts of Huawei to circumvent sanctions against Iran. According to the Americans, there was “no link” between the deferral agreement and the desire to secure the release of the Michaels. After which, she was released in Canada and sent back to China. Simultaneously, after securing the “guilt” of the two Michaels for espionage weeks prior, China decided to release the two Michaels on bail for “health reasons” and they were subsequently sent back to Canada. Canada, the U.S. and China have all insisted that there was no deal despite the entire affair seeming “highly choreographed.”

Indeed, many see the entire affair as nothing but a prisoner exchange or “hostage swap.” Of course, we may not know for sure what exactly happened. The U.S. claims that the decision was reached by the Department of Justice free from political tampering. China claims that they too were following the rule of law in finding the two Michaels guilty after their confession and later releasing them. But if this just was a prisoner swap in the end, what does this mean for those who wished to stand on principle or prevent the establishment of a precedent?

First, let’s consider that each side is being truthful: the resolution to this case was purely a legal matter, and that this was, as some believe, a triumph for the rule of law. It is difficult to see how. There is no legal consensus that the case against Meng wasn’t politically motivated to begin with. So, the fact that the issue was settled in a manner consistent with legal procedure doesn’t support the idea that this was a victory for the rule of law. If anything, we are still left with questions about whether the law is being used in an arbitrary way for political ends. But, there is also the public perception of the affair to consider as well. Given the seemingly suspicious nature of the exchange, one wonders whether the public will see this as a success for the rule of law?

On the other hand, if there was some sort of coordination; if, in the end, this situation was only settled by an exchange, then what is the point of standing on principle for the rule of law or because you are worried about setting a bad precedent? To what ends did it serve to insist on such principles just to engage in an exchange anyways? Could a great deal of suffering have been avoided to achieve a similar result? Did, at the end of the day, the detention of Meng and the two Michaels actually achieve anything as morally important as it ultimately cost in moral terms? As my previous article covered, it was always a murky argument that the rule of law would not permit the Canadian Government to facilitate Meng’s release, so the notion that because Canada stuck it out until legal proceedings could conclude that this was thereby a victory of the rule of law is not certain either.

Either way, this doesn’t seem like a great principled victory for the rule of law. Perhaps if there is a moral lesson to be learned for Canada it is that principles can be great ideals, but that their application must factor in the situation they are applied to. This is particularly true if, as in this case, it seems that following the rule of law in the way the Canadian government chose to conceive of such a principle only served to deny Canadians their rights for years.

A Pause on Rights: Canada’s Constitutional Clause

photograph of interior of Canada's House of Commons

Imagine a world where overturning Citizens United could be done with a simple act of Congress. According to polls, 88% of Americans hailing from both sides of the aisle would back a constitutional amendment to overturn the decision. But why does it take a constitutional amendment? Because the U.S. Supreme Court ruled that political donations constitute free speech, and because corporations have a constitutionally protected right to free speech, including unlimited donations. Since changing the U.S. Constitution is exceedingly difficult, this is not likely. But what if Congress could simply override the Supreme Court and say that there are limits to such forms of free speech. Canada has such a mechanism in its constitution, and it is starting to raise serious ethical concerns.

All rights in Canada enshrined in the Charter of Rights and Freedoms are already subject to “reasonable limits,” an ambiguous phrase whose meaning must often be determined by courts. However, under section 33 of the Charter, the federal Parliament of Canada or a provincial legislature can declare that a piece of legislation will operate notwithstanding the Charter. So, if a court rules that a law violates the Charter, a legislature with a simple majority can say that the law will remain in force for up to five years before the legislature must revisit the question and potentially renew the exception. In essence, it can put individual rights on pause for half a decade at a time. The clause doesn’t apply to democratic rights or mobility rights, but legal rights concerning detention, trials, punishment, and fundamental freedoms like freedom of association, peaceful assembly, and free speech are all fair game.

The clause has been called “uniquely Canadian,” and would no doubt be controversial in the United States. It could be used to limit political donations or enact stronger gun control legislation, but it would also be easy to limit protest or engage in practices that might be considered cruel and unusual. Created as part of a constitutional bargain to appease the provinces, the clause has almost never been used and has always been controversial. The Charter is highly prized by Canadians, and so the idea of overriding it is typically politically perilous. Nevertheless, in the last three years there have been about as many threats to use it as there were during the first eighteen years of its existence or the eighteen years after that.

The latest controversy involves Premier Doug Ford of Ontario who has threatened to invoke the clause in response to the courts striking down election finance legislation that the Ford government had passed, limiting third-party advertising for a period of one full year from an election (prior to this, the law restricted spending six months before the election). Typically, these third parties are supported by public sector unions which tend not to support Ontario Conservatives, so the move to use the clause in this case, described as using a “sledgehammer on a gnat,” appears even more controversial as it seems to politically benefit Ford. (Ford had previously threatened to use the clause in 2018 after his government unilaterally changed election laws in Toronto during an election.)

In other provinces since 2018, the threat of invoking or actually invoking the clause has been a response to issues relating to public funding for Catholic schools, legislation requiring vaccination, the use of religious symbols in the civil service, and, recently, protecting the French language in Quebec at the expense of minorities in the province. This increasing willingness to use the clause, and use it more frivolously to pre-empt a court decision before it is even made, is a cause for concern. As Justin Trudeau’s former secretary puts it, “what’s at stake here is whether the ultimate arbiter of your Charter of Rights and Freedoms is the Supreme Court of Canada or your provincial premier.” But “don’t democratic societies put minority rights into inviolate foundational documents precisely because they’re politically tempting to violate?”

Indeed, Canada has recently seen exactly what can happen when the rights of minorities are ignored for the sake of a political majority, and there are plenty of other historical examples in Canada where rights have been violated. So obviously, there are ethical concerns about the clause. So why keep it? Originally, it was thought that the clause would only be used in non-controversial circumstances because it would be so unpopular to use it otherwise. However, for those who support the clause, there are two important factors to consider. The first is that the clause is considered to be an important check on judicial review.

While the Canadian Supreme Court does not have the same partisan tinge that it’s U.S. counterpart has, in the Canadian legal framework, Parliament is supposed to be supreme, meaning that what it says goes rather than the rulings of unelected judges. Some who support the clause argue that it is ultimately one of the reasons the court is less partisan; judges will be less activist and partisan if they know they can be so easily overridden. Indeed, with such a clause in the U.S., there might be less concern about when certain justices retire. Another reason why the clause is supported goes back to part of the reason it was created: to allow provinces to opt out for the sake of balancing collective rights.

Quebec has used the clause the most, typically defending its usage by claiming it is needed to protect the French language. Long concerned about declining usage of French and eventually becoming assimilated into English Canada, Quebec’s defenders seek to protect collective French community rights over individual rights to secure what Quebecers consider to be a distinct society in North America. Thus, they claim that the clause serves a vital moral good.

On the other hand, critics might charge that this simply amounts to securing the rights of the majority over the minority by bypassing individual rights. Indeed, imagine any state simply choosing to ignore Roe v. Wade simply because it would be a popular move to do so. To that extent, the clause has raised new issues of moral concern as provinces now seem more willing to use it, even for things other than “non-controversial issues.” The concern now is that the more it is used, the more it will be overused for the sake of convenience and political gain rather than as a last resort.

The moral issue for Canadians reconsidering the clause after almost forty years of existence is: How should collective and individual rights be balanced relative to each other? And how might these calculations change when a government threatens to use it? Experts believe that a move like Doug Ford’s will be unpopular because it carries a lot of political baggage. On the other hand, Canadians are famously apathetic about politics and rarely turf one-term governments. It remains to be seen whether Canadians will be keen to defend the Charter from clause users come election time. I’d be skeptical that Ford’s use of the clause becomes a major election issue a year from now. But the moral danger is that a constitutional tool capable of doing something so potentially harmful slowly shifts from a taboo to a norm fueled by populism. The moral task for the public is to re-evaluate how comfortable we are with this and under what conditions we consider the clause’s use acceptable.

Under Discussion: Undermining a Democratic Response

photograph of protestors with "People over Pipelines" sign

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: Combating Climate Change.

On the first day of his administration, President Joe Biden issued an executive order cancelling the permit for the Keystone XL Pipeline. Premier Jason Kenney of Alberta, the province where the oil sands are located, expressed his disappointment stating that this is “not how you treat a friend and ally,” and indeed Canada’s Premiers apparently “want to go to war” over it. This kind of political posturing reminds one of recent events. The riot at the U.S. Capitol followed weeks of politicians lying to voters about the election, and as a result people, who were frustrated by a reality that was not matching what they were being told, lashed out violently. If there is one lesson that any democracy should be able to learn from such an episode it is that misleading the public does have consequences, it undermines the capacity of voters to evaluate their options, and thus it undermines democracy. Does this lesson have relevance when it comes to climate change, something which has the capacity to wreak massive economic and social instability?

Was Keystone ever viable? Are Canadian politicians simply spreading false hope that there is a significant economic future for that pipeline? If so, are they on any better moral grounds than Republicans who lied about elections? First, it is important to recognize that the province of Alberta is heavily dependent on natural resource development, particularly the extraction of bitumen from the oil sands. In recent years, this sector has been badly hit by floundering oil prices, troubles getting pipelines built, and now more recently COVID-19 has caused prices to drop resulting in even lower oil revenues. The Alberta economy, slowly recovering from a recession, has now been even harder hit. Unemployment is up, and investment is down. As a result, the Alberta government is now running a record high deficit.

In an effort to push back against these forces over the past few years, the Alberta and Canadian governments have been significant supporters of the Keystone XL pipeline. Despite the troubled history of the project, the Alberta government became an investor in order to move construction along at a cost of 1.5 billion dollars with an additional 6 billion in loan guarantees. It was expected that the pipeline could create tens of thousands of jobs. Despite all of this, the pipeline project has been troubled since its inception. It has been met with opposition from indigenous people for cultural, treaty, and health reasons, and it has been widely protested because of concerns about the climate. While some concerns involve air pollution, and the potential for an oil spill, the potential for increased carbon emissions has been especially problematic politically speaking. Extracting the crude bitumen of the Alberta oil sands involves 17% higher carbon emissions than conventional oil. As a result, then-President Obama was heavily lobbied to deny a permit for construction, ultimately doing so because it was seen as undercutting the credibility of the United States in climate change negotiations. Eventually, President Trump did issue the permit for construction, before this permit was withdrawn by President Biden.

The question is whether Keystone XL was ever a very realistic option for the Alberta government to cling to. Was the writing on the wall? As Canadian journalist Aaron Wherry notes, “The project’s fate seemed sealed years ago, but it haunts us still.” Afterall, there were years of court challenges, revisions to the design, permits were granted and taken away. The public soured on the project as well. In just four years public support in the United States for the project fell from 65% approval to 48%. A 2017 poll of Canadians found that only 48% supported the project even though 77% of Albertans supported it. Investors were shy about putting money into the project, and thus the Alberta government is now on the hook for billions of dollars. And, with the public and politicians increasingly showing a willingness to act on climate change, this project’s future was always in question.

Despite this, the Alberta government continued to, and continues to, unrealistically give the public the impression that something can be done to change this. Alberta Premier Jason Kenny, for example, was said to be counting on union support in the United States for the project, despite “not understanding American politics well enough to know that that particular ship has sailed; it was as realistic as the company’s Onion-esque last minute pledge to power the operation of the pipeline with renewable energy.” And as Warren Mabee of Queen’s University notes, “While the reaction from Alberta implies Biden’s move came as a shock, the truth is that cancelling Keystone XL was a key part of Biden’s election platform” and has suggested that Canadian politicians should get a reality check when it comes to the oil sector.

So, it is worth noting whether there are similarities between what Republicans told their constituents following the election and what Canadian politicians are telling theirs regarding Keystone XL. In both cases you have frustrated citizens, many vulnerable to unemployment and a lack of prospects. In the United States, Republican politicians granted credibility to the claim that there were significant election irregularities despite almost no evidence and were complicit in unrealistic and long-shot attempts to overturn the election in order to satisfy what their voters wanted to hear. In Alberta, politicians continue to grant credibility to the viability of pipeline projects which promise to restore good times to the province, despite evidence that the project was environmentally risky and that the project looked increasingly doomed. And now, even still Premier Kenny calls for trade sanctions which are considered “unrealistic and unproductive in the extreme” in order to appeal to a base of supporters.

In the case of the United States, the effect of this willingness to entertain lies about the election was the storming of the Capitol and the undermining of democracy. While the Canadian Parliament may be safe for now, the Alberta government has made use of inflammatory language and promises which may also undermine democracy. For example, the governing party of Alberta claimed that their predecessors “surrendered to Obama’s veto of Keystone XL” and ran on a promise threatening to hold a referendum over constitutional changes if they could not get a pipeline built. In other words, politicians trying to appeal to their base, optimistically attached their hopes to a pipeline that investors soured on and invested billions of public money into despite facing increasing political opposition at home and in the United States. As a result, the people of Alberta will likely be angrier at the Canadian federal government and the rest of Canada. Politicians could not be honest with their voters, and as a result social and democratic cohesion may suffer. Is there a moral difference between the two cases?

It is important to note that this is only a case study to demonstrate a larger moral concern. We have seen in the last year that citizens will accept complete falsehoods if it fits with what they want. Despite over 2 million people dying of COVID-19 in real time over the past year, many still believe that the virus is not real or is no worse than the flu. So, looking forward, what will happen when the effects of climate change become even more prominent? If Florida begins to sink due to rising sea levels, will that be branded as just a fluke or a bad summer? If actual economic and climate problems are facing society, it will be the convenient mistruths that will be exploited to undermine the ability of citizens to make decisions that are in their best interests.

Collective Responsibility and the MMIWG Report

photograph of bead art piece

Note: for immediate emotional assistance relating to Indigenous survivor and family experiences, please call 1-844-413-6649, a 24/7, toll-free national hotline in Canada.

Canada has long had a crisis of missing and murdered Indigenous women and girls.  The number of Indigenous women and girls who were killed between 1980 and 2012 alone is estimated to be close to 4,000. Indigenous women are six times likelier to be murdered than non-Indigenous women, experience intimate partner violence at a rate three times greater than that of non-Indigenous women, and compared with non-Indigenous women, are three times likelier to be killed by a stranger.

 On June 4, Canada’s National Inquiry into Missing and Murdered Indigenous Women and Girls released its long-awaited analysis. The two-volume report (available in full and as an executive summary) aimed at a cohesive account of the causes and remedies to the violence enacted against First Nations women, girls, and 2SLGBTQQIA (two-spirit, lesbian, gay, bisexual, transgender, queer, questioning, intersex and asexual people).  

The report documents the testimony of 2,380 survivors, family members, Knowledge Keepers and experts. The participants shed light on more than facts: sharing the experience, context, and recurring stories of families torn apart by Canada’s recent colonialist history, including the impact of residential schools, the “Sixties Scoop”, and the extractive industries which are particularly fraught with risk for Indigenous women as well as challenges to Indigenous autonomy.  

The inquiry confronted structural issues, defining the Canadian government’s systematic treatment of Indigenous peoples and the resulting deaths of Indigenous women, girls, and 2SLGBTQQIA persons as genocide. Its analysis takes intergenerational consequences of forced assimilation into account. While the accusation of genocide has caused some controversy in Canadian media (see here, here, and here), others note that Canadians’ reaction to the term is revealing of the colonial structures that are maintained in the present day.

Genocide was defined by the UN in 1948 to encompass more than immediate wholesale slaughter, but also the intent to eliminate the group through “killing members of the group; causing serious mental or bodily harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group [and] forcibly transferring children of the group to another group.” The MMIWG inquiry appended a 46-page legal analysis defending their use of the term, both with regard to the mens rea (the intention to destroy) and the actions as listed above in the UN’s definition.

What is the collective responsibility of Canadians for the violence against Indigenous women, girls, and 2SLGBTQQIA members?

While speaking in terms of settler ‘privilege’ is an established way of framing the positionality of non-Indigenous peoples in the Americas, Beenash Jafri proposes ‘complicity’ with colonialism as a framework that removes the lens from the complexities of individual privilege and oppression (which can derail into comparing the personal experiences of inhabitants). Instead, the model of ‘complicity’ can help non-Indigenous people and their descendants comprehend the larger structures that were designed to decimate Indigenous sovereignty, cultures, and peoples.   

The notion of ‘complicity’ encourages a forensic approach to this Canadian genocide, which maps easily onto the findings of the MMIWG investigation. Grandmother Leslie (or Giizhigooweyaabikwe) recounts the linguistic apparatuses of colonialism in blaming missing and murdered women for their own disappearance:

“There’s always the polite terminology, which is coded, racially coded, like ‘at-risk,’ or those kinds of things. There’s ways of people washing their hands as if to say, ‘Well… that has really nothing to do with us.’ (…) They’ve contributed to their own disappearances, and/or rapes, and/or murders, by their personal behaviours – by the way that they are dressed, by what they were doing, by being Indigenous, and by being women. Many people don’t see the system as violence. But in fact, missing and murdered Indigenous women and girls is the result of imposed poverty, legal and individual racism, discrimination and the patriarchy.”

Another such assumption wielded against First Nations communities is the popular statistic, first voiced in 2015 by Harper-appointed Aboriginal Affairs Minister Bernard Valcourt, that 70% of murdered Indigenous women are killed by Indigenous men, a claim that is not linked to measurable data. Valcourt has elsewhere displayed his penchant for reducing Indigenous issues to intra-family  problems by dismissing the suicides of Indigenous youths as being the concern of their parents, and was tepid concerning a nation-wide inquiry into the cases of missing and murdered Indigenous women.

Lack of data does not prevent Valcourt’s claim from being used as a rhetorical derailment against conversations on national responsibility for Indigenous deaths and disappearances. While there are de-colonizing approaches for discussing family violence in the context of intergenerational trauma, this is not the conversation which immediately involves all Canadians, except insofar as reparations for centuries of violence can contribute to support for Indigenous families.

The violated freedoms of Indigenous women which result in inadequate options and the genocidal context of their murders and disappearances do immediately implicate us as a nation. Certain patterns are known in these cases: Men appear to be the primary perpetrators of violence on Indigenous women (to the tune of 92 percent, according to one study). Offenders often prey on Indigenous women because the latter lack safe housing and safe transportation. Killers of Indigenous women are treated less severely than those who kill non-Indigenous women, revealing that Indigenous women are devalued in the justice system. The Chief Commissioner of the MMIWG report, Marion Buller, proposed an automatic charge of first-degree murder when the victim is an Indigenous woman, girl, or LGTBQ member to correct this imbalance. We could look for new legal categories to apply to crimes where the victim is an Indigenous woman, girl, or 2SLGBTQQIA member (adopting a lesson from Columbia, for example, which in 2015 defined “feminicide” as a hate crime carrying its own minimum penalty).

All Canadians can take it upon themselves to be informed, to condemn, and cease to tolerate abuses of and violence against First Nations women, girls, and 2SLGBTQQIA members. It is also crucial to educate ourselves concerning the historical and contemporary factors leading to this crisis. A combination of legal, cultural, and political structures resulted in systematic genocide of Canada’s first peoples – a legacy reflected in the histories of survivors.

Indigenous women have been marginalized since the earliest days of Canada’s colonization. While First Nations cultures traditionally held women in high regard, this norm was threatening to the patriarchal social organization of European colonists.  The consequences of the 1876 Indian Act, which stripped Indigenous women of their status if they married outside their tribe, continue to the present day.

Forced assimilation and genocide in Canada is often trained on Indigenous women’s bodies. Coercive sterilization is one instance. Disasters like long-standing water emergencies within Indigenous communities often burden women most heavily.

Reading the MMIWG report, one gets a glimpse of the power and agency of Indigenous women, their families, and their communities. As a nation, we need to listen to and support Indigenous women when they lead.

What would stopping this genocide look like in practice?  The report issued 231 specific recommendations addressed to the government, Canadians at large, healthcare professionals, police, lawyers, educators, media influencers, and extractive industries. It must be a collective effort, not a one-stop measure. There have been 98 calls-to-action on Indigenous well-being in the past that have not yet wrought widespread change. At the same time, the MMIWG report, a key part of the successful 2015 Liberal election campaign, marks the first nation-scale inquiry into missing and murdered Indigenous women and girls. It represents an imperative to change.

The report should awaken us to the need for systemic shifts – to increase the presence of First Nations’ women in legislation, in budgeting, in the regulation of services. We also need radical rethinking of our institutions. Canadian political and legal institutions are shaped by colonialism and patriarchy and marginalize First Nations’ peoples by design. We need to address the interlocking functions of patriarchy, colonialism, and racism. Finally, we need to be informed of and support the inherent prior rights of Indigenous peoples and to value the lives and leadership of Indigenous women, girls, and 2SLGBTQQIA members.

First Nations in Canada and the ‘Duty to Consult’

Photograph of First Nation people in Vancouver protesting

On Thursday, October 11, Canada’s Supreme Court issued a judgment which, some argue, has turned back the clock on First Nations’ rights to pre-1982. The Mikisew Cree Nation of Alberta contended against the federal government that Canada’s enshrined ”duty to consult’ with First Nations peoples should apply to the legislative process in constructing bills that impinge on Aboriginal or treaty rights. In a majority 7-2 ruling, the Supreme Court decided against the Mikisew Cree First Nation’s claim, citing in their decision the separation of judiciary from legislative powers.

This lengthy legal conflict began in 2012, when Stephen Harper’s Conservative administration passed controversial omnibus bills C-38 and C-45. While omnibus bills are not unusual in Canadian legislature, these bills were contested for their extraordinary length and scope. They radically reshaped Canadian environmental policies. Among other things, bills C-38 and C-45 withdrew Kyoto protocol commitments, removed protections on ninety-nine percent of Canadian waterways, ransacked the existing Canadian Environmental Assessment Act, and struck down existing rules to preserve fisheries and endangered species. This removal of protections applies to resources in First Nations’ territories, directly impinging on Aboriginal and treaty rights.

These two omnibus bills triggered in their wake a nation-wide protest and environmental movement begun by Indigenous, Métis, Inuit, and allies called ”Idle No More”. Massive cuts to environmental regulation moved the Mikisew Cree First Nation in Alberta to take the federal government to court. The Mikisew argued that the “duty to consult” should include the legislative process (applying to the passing of bills like Harper’s unwieldy omnibuses), and not just the executive and implementation stage of projects.

The Mikisew First Nation had the weight of international standards on their side, as the foundation of the “duty to consult and accommodate with Aboriginal peoples” is upheld in the United Nations Declaration on the Rights of Indigenous Peoples. (As an aside, Canada was initially one of only four nations that objected to this declaration, citing concerns that First Nations would be acknowledged veto power in decisions that affected natural resources within First Nations territories, though Canada has since got on board with the declaration as of May 2016).

Despite this reluctance from the federal government to endorse international norms on Indigenous rights, the overall direction of Canadian jurisprudence has been to uphold the principle of duty to consult in both federal and provincial contexts. This ”duty to consult” itself was a sign of progress in an otherwise oppressive settler-colonialist history. By dint of diligent interrogations by First Nations reacting to Canada’s assimilationist policies, Canadian jurisprudence has steadily moved towards the acknowledgement of First Nations’ inherent prior rights and treaty rights.  Indigenous rights were officially recognized in Section 35 of Canada’s Constitution Act of 1982.

Pamela Palmater, Mi`kmaw lawyer and Indigenous governance professor, sees the October 11 decision as a major reversal of this hard-won progress. While the majority decision cited the separation of judicial from legislative powers in their decision, she writes: “Isn’t the whole purpose of reconciliation—at least from Canada’s perspective—supposed to balance constitutional rights and principles and find a way to make them work together?” Dialogue and reconciliation are, after all, core foundations of Aboriginal and Canadian culture.

Dwight Newman, law professor and expert on Indigenous rights in law, notes that the decision is not conclusive. While it is true that 7-2 judges on the Supreme Court ruled against the Mikisew, their legal reasoning differed. Three of the majority ruling, Justices Andromache Karakatsanis, Richard Wagner, and Clément Gascon, deferred to the ”honour of the Crown” – a principle underlying the duty to consult – that could invite future litigation and re-negotiation.  Dissenting justices Rosalie Abella and Sheilah Martin asserted that the ”honour of the Crown” permeated all relationships between the government and Indigenous peoples, entailing the duty to consult at the legislative as well as executive levels.

Mikisew First Nation representative and director of Government Industry Relations, Melody Lepine, expressed trepidation at the Court’s consignment of Indigenous rights to ambiguity: ”In my several years of working with the federal government and with the provincial government to try to force them to consult, there is no honour, there is no willingness, and it has been a complete struggle… I have no faith that the government will do the right thing.” This sense of betrayal was echoed by Mikisew lead council Robert Janes, who noted that the SCC ruling displayed a missed opportunity for Canada to engage First Nations as committed partners. As it stands, this decision means that First Nations will have little resort but to litigate unilateral legislation that has already been passed, ensuring the continuation of an adversarial, burdensome, and costly model of feedback.

The Mikisew ruling is a setback for all First Nations in the process of reconciliation, but it should also be a wake-up call for Canadians. The political and legal struggles of First Nations in Canada recurrently show that real, meaningful, decision-making power comes from obtaining a place at the table. They exemplify the key importance of what John Rawls called “procedural justice,” the ability to participate in governance processes as a means of ensuring fair outcomes.  Procedural justice also satisfies a fundamental principle of recognition, in allowing concerned parties to have a say in their fate. It is time for Canadians to campaign for legislative mechanisms that reconcile procedural justice for First Nations communities, i.e. processes which meaningfully include First Nations’ peoples at every level of decision-making that impacts them.

Democracy Notwithstanding: The Strange Case of a Canadian Constitutional Scuffle

Photograph of the Canadian Parliament building in Ottawa with a hotel in the background

Canada is rarely imagined as a place of political instability. Yet an unfolding political situation in Ontario has garnered international attention and, for some, a national sense of constitutional crisis. The origins of the story are local, but the consequences shed light on something global for the ethics of constitutional democracy. The problem began with a Conservative bill to reduce the number of Toronto council members by half, ostensibly for cost-saving and expediency goals, yet startlingly one month before an election. It escalated when a Superior Court Justice ruled the bill unconstitutional and in violation of certain portions of Canada’s Charter of Rights and Freedoms which ensures basic – though, as we will see, not inviolable – human and political rights (in the case of this judgment, the freedom of speech and assembly in city council and election). The situation became interesting, however, when Doug Ford, Ontario’s new Premier, invoked in response what is called the “notwithstanding clause” of the Charter. This effectively allows a parliamentary body to temporarily override certain parts of the Charter and any judicial review – that is, to suspend rights of citizens and prevent any court challenge – in order to continue a legislative agenda.

Let’s set aside the possible political motivations behind the bill itself – which proponents see as a rightful purview of the province to legislate its municipal elections, and critics see as a politically motivated assault on and unnecessary intervention in the council during an election process. What is of interest to us here is the history, philosophical function, and ethical implications of a constitutional mechanism that can be invoked by any parliamentary majority to overrule constitutional rights themselves, and to disregard and render ineffectual a judicial decision upholding those rights. But first, what is the origin of this thing that has suddenly entered national attention?

The notwithstanding clause, peculiar to the Canadian system, is neither a perennial feature of Canadian government nor a prevalently employed one. It originated in a compromise between the federal and provincial representatives during the repatriation of Canada’s constitution in 1982. It has been used rarely outside of Quebec in the 1980s, where for a number of years it was “blanketly” employed for all legislation, and it has never been used in Ontario. Thus we have a kind of public shock and condemnation, as well as an educative moment in which many Canadians scramble to figure out how the nuances of their political system work. The deal that was struck in 1982 ultimately ensured the adoption of the Charter, but it contained a concession to provinces from the federalist program of universal rights. This overnight-deal of a clause provides a specific leveraging power to legislatures in relation to the judiciary’s power to rule over laws in the final instance.

This shows a distinctly different perspective on the role of the judiciary from the American political model, which I have written about elsewhere. Where the founders of the U.S. constitution saw the Supreme Court as a safeguard against legislative caprices which might produce laws violating constitutional rights, there is a strain of Canadian provincialism that fears the reverse: the oppression of legislation by historically defined judiciary sentiments. This reactionary concern against federalist and judiciary power is most pointedly and coarsely articulated in Conrad Black’s recent letter in the National Post. “The real importance of the premier’s invocation of Section 33,” Black argues, “is the threat it poses to the ability of the bench to ignore the intention of legislators and interpret every statute as they choose in light of current sociology and legal convention.” Black’s concern is with what he takes to be “eccentric decisions” by the judiciary. “We have the courts to thank, almost untethered to what the law states,” Black scornfully laments, “for … the theory that almost accuses the ancestors of the Europeans in this country of effectively invading and seizing the nations of the native people virtually as Hitler and Stalin invaded and occupied Poland in 1939 and that implies that we have an uncertain right to be here,” as well as departing from what he calls “the unquestioned and demonstrable view that there are two sexes in the human species (among others), though a variety of sexual orientations.” The content of Black’s political and philosophical concerns speak for themselves. The crux here in this strange diatribe, however, is not just a concern with the allocation of powers between the federal and the provincial, but a fundamental disdain for the adjudication by principles and rights. Conflating “law” with legislation removes actual legislation from questions of right and justice with universal scope.

Critics of Ford’s move range widely as they come to terms with an intrinsic possibility largely dormant in the Canadian political world. One concern is about the anti-democratic nature of invoking the clause itself, and a more nuanced claim about its inappropriateness in a specific context – or, as one commenter dramatically puts it, “using a nuclear bomb to kill a bug.” However, the weight of this depends on how we understand democracy. Constitutionally, if we understand democracy as an accord with constitutional rights and privileges, then it is in the full power of the Ontario parliament to do so. Perhaps then it is not an issue with the parliamentary decision to invoke the clause, but rather with the existence of the clause itself. And yet suggesting that the clause is anti-democratic is not exact, since in practical and intended effect it shifts power to elected legislative assemblies and away from unelected justices of the court. If we hold onto the claim that the suspension of rights for legislative purposes is anti-democratic, then it seems that the critique needs to move toward a wholesale defense of the inviolable integrity of the Charter against all possible infringements, federal or provincial. But this is, at least traditionally understood, the purview of the judiciary. Canada, perhaps just starting the honeymoon with the substance of its Charter, might also be reckoning with the family of unelected members (whether justices or ministers) with which it looks to spend the rest of its life.

There is a deeper issue revealed in the notwithstanding clause. It is an instance of what theorists call a “state of exception,” that is, a feature of government that allows a legal political power to suspend the law in its totality, in specific geopolitical areas, or in restricted and tactical ways. This mechanism is what Carl Schmitt, the renowned Crown Jurist and political theorist during the Third Reich, isolated as the highest power of sovereignty: not any positive structure of government, but the power of the law to suspend itself in times of emergency. This is shown not merely by the indefinite suspension of the Weimar constitution during the Second World War for a political authoritarianism, or governance via state of emergency. As Giorgio Agamben develops Schmitt’s definition, it is also a perennial feature of state power that we see in different forms widely in our ostensible constitutional democracies: the power in the U.S. to suspend habeas corpus during situations of national threat, the construction of extra-judicial prisons like Guantanamo Bay beyond national and international legal statutes, or declarations of martial law. What seeps through our attention with this relatively small provincial bill, and the invocation of an obscure constitutional clause, is this anti-democratic power tucked into the fabric of our democracies like a safeguard against the principles of justice we imagine holding our societies together.

Canada’s Indigenous Water Crisis

Photograph of mountains and trees framing a lake

Canada is one of the world’s most water-rich countries. The Great Lakes, shared between Ontario and the US, account for eighteen percent of the world’s fresh surface water. And yet, many First Nations communities within Canada suffer from lack of access to clean water. There are currently 72 long-term boiling water advisories in effect on First Nations’ reserves. Justin Trudeau’s 2015 election platform included ending all such advisories by 2021. As of July 17, 2018, 67 such advisories had been lifted, while 34 had been added. At the same time, residents of the communities whose advisories have been lifted are concerned that lack of overhauling local infrastructure may endanger long-term prospects for clean water. Continue reading “Canada’s Indigenous Water Crisis”

A Call for the Reform of Diplomatic Immunity

Embassies in Washington, DC

Codified through international law at the Vienna Convention on Diplomatic Relations in 1961, diplomatic immunity grants foreign diplomats legal immunity to ensure safe passage and prevent lawsuit or prosecution based on the host country’s laws. The tradition behind diplomatic immunity dates back thousands of years, traced through Indian epics and accounts by Roman and Greek officials. Despite this, the invocation of diplomatic immunity has not been constrained by many governments and has allowed cases of rape, sexual exploitation, human trafficking, driving while under the influence, and many other crimes to go without prosecution.  This calls into question whether or not the international community should consider constraints on when diplomatic immunity—or diplomatic protection as an extent—can be invoked in certain crimes.

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In Canada, Apologizing for Forced Adoption

A school photo from a Canadian residential school.

For decades in the 20th century, the US, Canada, and Australia took thousands of indigenous children from their families and either put them in residential schools or found non-indigenous adoptive parents for them. These practices ended in the 1970s, but only now are governments in Canada and Australia trying to make amends. Former Australian Prime Minister Julia Gillard apologized in 2013, while the government of Manitoba apologized for forced adoptions in 2015.  At the beginning of this month, the Canadian government agreed to pay reparations to victims of the “Sixties Scoop”—the forced adoption of indigenous children in the 1960s and 70s. 750 million Canadian dollars will be paid out in legal settlements.  

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Regulating Consumption and Canada’s Trans Fat Ban

A close-up photo of onion rings.

On September 15, Canadian Health Minister Ginette Petitpas Taylor announced the prohibition of artificial trans fats from all foods sold in Canada starting on September 15, 2018. In the United States, a similar order from the Food and Drug Administration (FDA) will prohibit trans fats starting on June 16, 2018. While some have hailed the regulations as significant milestones in public health policy, others have objected to the restrictions on the food industry.

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Battle for Citizenship on Cultural Terms

In mid-September, Zunera Ishaq, a Muslim Pakistani immigrant seeking Canadian citizenship, was turned away because she refused to take off her veil during the citizenship ceremony. Ishaq brought the case to court, which ruled in her favor that is was unlawful for the government to ban religious veils at the ceremony. The federal government is currently undergoing an appeals process to challenge the ruling in the supreme court.  Timing is everything in this process; the decision will affect her ability to vote in the Canadian federal election on  October 19th.

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