The hazards of "Living In America"
By Daniel M. Ryan
If you haven't heard of the Human Rights Commision (HRC) flap involving Mark Steyn and Maclean's magazine, you must have been away from the blogosphere for quite some time. This case has become notorious amongst Netified conservatives as a case of Big Government tromping on civil liberties. Entering the search string "Star Chamber" into google.ca and clicking for the Canada-only results gets, on the first page, five Websites critical of the HRCs. One of the original lobbyists for the HRCs, Alan Borovoy, has complained that the HRC tribunals have gone far beyond their original intended purpose: that mission was to combat housing and job discrimination. In fact, its original mission sounds a lot like…the underlying purpose of the United States Civil Rights Acts of 1964 and 1968.
Thankfully, Mr. Borovoy hasn't confined his protests to words. The organization he heads up, the Canadian Civil Liberties Association, has assisted defendants (not respondents!) against HRC actions that infringe upon free speech. (One example, also mentioned in this column by Ezra Levant.) The position that civil libertarians have taken is, of course, one side of the controversy over the HRCs. The other is, that certain forms of speech have to be prohibited because they hurt certain people: a protection argument. The more depthful part of the civil-libertarian side has made comparisons to England's long-defunct Court of Star Chamber, and (occasionally) colonial America's Court of Vice-Admiralty. (There was one in colonial Canada too, at about the same time: it was in Nova Scotia.) One aspect of the controversy, though, hasn't been that well explored: the nationalist angle.
In large part, this dearth has been the result of patriotism going out of fashion. Had nationalism been part of the accepted brew of conventional ideas, there would have been a criticism of the HRCs such as this hypothetical one: "Canada made a bad mistake by importing the United States Civil Rights Acts of 1964 and '68, and retooling them into the clunker we have today. Canada is Canada: it is not the United States, nor will it ever be. Expecting us Canadians to atone for the sins of United States slavery, which in large part is what the American Civil Rights Acts are, is ridiculous. Why should we be expected to carry the American cross – especially after America itself is finally shouldering it? Why are we so hell-bent upon importing American guilt – especially since we didn't bother to import the sin that it's atoning for? The fact is, the only ‘slaves' that we Canadians imported were fugitives…so as to give them Canada's freedoms in co-operation with America's abolitionists! Must we keep ripping apart our traditions of freedom and rule of law merely to keep up with the guilt-ridden Joneses?"
In other words, as the above tub-thump draws on, laws do not translate well over borders because each nation is a different polity with a unique history. Canadians and (some) Americans may be similar socially, but the Canadian and American polities are profoundly different. In Canada, criminal law is at the federal level; in America, at least traditionally, that kind of law has been put in the hands of the states. America had a Bill of Rights almost from day one; Canada's Charter came long after its 100th birthday. The structural equivalent of the Prime Minister is the House majority leader, not the President. The Canadian Senate, the chamber of second sober thought, has cultivated a collegial anonymity that is almost nothing like the more publicity- and star-friendly American Senate. Our Head of State is little more than titular: it's Her Majesty The Queen. There's also one more crucial difference, pertaining to the origin of each nation: America won its independence through fighting the Crown. Canada won its own in co-operation with the Crown.
That last item says volumes about the differences between the two nations. Americans are expected to stand up and "fight the power." Canadians are expected to be co-operative with the powers that be. Similarly, the "powers" in America are freer to be more standoffish, except during election time, than the Canadians powers are: co-operation works both ways. Even citizen unruliness shows a difference: Americans tend to descend to thievery (if not to debt skips,) whereas Canadians tend to get unruly through rioting. If we Canadians have any thirst for brutes' anarchy, it would be in the direction of vandalism and assault, not theft. Another difference, in practical statecraft, comes with governmental response to organized revolt. Americans tend to be resistant to a wholesale crackdown on domestic insurrectionary attempts; the typical Canadian cheers it on. (After all, bringing about insurrection is about as "un-co-operative" as a citizen can get.)
These differences being noted, it's unsurprising to see that political import-export is fraught with disaster in a way that economic import-export isn't. Here's an example from the other side of the cross-border trafficking of "programs:" multiculturalism.
Like it or not, multiculturalism is Canadian. Canada was first off the gate with multiculturalist programs, and the underlying intellectual fabric for them was provided by a Canadian book written in 1938. The tie between Canada's cultural mosaic and multiculturalism was made in 1965 in the form of a rudimentary disparate-impact study. That's why "multi-culti" programs haven't generated a lot of outrage in Canada.
They have, on the other hand, in the United States. Remember the American conservatives' fury over the most virulent form of American multiculturalism – political correctness?
The clashing of the gears clearly works both ways, even though scrupulousness impels me to concede that there are some genuinely transnational programs, typically interventionist in nature. The introduction of a central bank to Canada, despite the fact that there was no Depression-centred need for one because Canada never had a bank run between 1929 and 1933, didn't cause any turmoil. In fact, the utter lack of "BoC-haters," in contradistinction to the continual presence of "Fed-haters" in the United States, suggests that us Canadians took to a central bank more readily than Americans did. (Evidently, such an institution takes better to co-operativeness.) So, it would be going overboard to conclude that proving that certain laws are "American laws" would be prima facie grounds for petitioning the Crown to disallow them. (See article 56.)
The whole point of the above is to counsel caution. It isn't just Canadians liberals who like to draw inspiration from the American political scene: many Canadian conservatives do too. In fact, more than a few like to "live in America" as a hobby. The HRC mess could be seen as a cautionary tale from the liberal side of the divide, but conservatives are far from being immune from becoming the same kind of Sorcerer's Apprentice. So are libertarians.
Take the case of Ron Paul, for instance. A Canadian libertarian, or libertarian-minded conservative, might be tempted to lend full support to Dr. Paul's current campaign in the hope that formal implementation of libertarian-oriented policies in America will spill over into Canadian lawmaking. Nice thought, but it overlooks one seemingly unimportant detail: Dr. Paul, if elected President, would try to withdraw from NAFTA.
So, the likely unintended consequence of Dr. Paul succeeding in his two bids would be a revivification of Canada's National Policy – a "program" not only un-libertarian, but also anti-classical-liberal. The old, laissez-faire Grits fought it hard. As far as I know, the only prominent Canadian political figure who would greet such a wind-down with unambiguous joy is David Orchard. This hypothetical chain illustrates quite neatly why American policies imported into Canada often lead to – well, unintended consequences.
Speaking of imports gone wrong, the "key parts" of a more recent re-tooled import from America has been struck down as unconstitutional by the Supreme Court of Canada: security certificates. None other than Mr. Borovoy's CCLA was the organization supplying aiding counsel for the challenge.