General Reinforcements

AuthorAlan Borovoy
chapter twelve
General Reinforcements
Those who are serious about civil liberties will focus not only on
specif‌ic laws and their accompanying safeguards, but also on gener-
al measures that would serve to bolster the public’s commitment to
the entire enterprise. Thus, we at CCLA found ourselves debating the
merits of a constitutionally-entrenched bill of rights, the kind of public
education that we undertook, and even the extent to which we ought to
seek or accept money from the government.
The Charter
When the Charter made its f‌irst appearance on Canada’s political
agenda around 1980, it provoked a rather telling debate. That debate
revolved around the limitation clause in section 1, on the basis of which
the freedoms set out in the Charter were to be “subject to such limita-
tions as can be demonstrably justif‌ied in a free and democratic society.”
I am unable now even to estimate how many telephone calls I re-
ceived from the press, asking whether this provision would effectively
annihilate the freedoms in the remainder of the document. But I can
say that we were deluged with such inquiries. It became clear, therefore,
that much of the press and the public regarded the rights in the Charter,
“at the barricades”
not as human-made measures to be weighed against other interests,
but as edicts descended upon us from the heights of Mount Sinai.
I don’t know whether my replies to those telephone calls conveyed
the impression that I was a veritable Benedict Arnold who was pre-
pared to betray my civil liberties mandate or whether I was regarded
as simply too confused to be helpful. But I told each and every one
who called that, even if the Charter did not contain a limitation clause,
the courts would inevitably read one in. The mistake, I said again and
again, was the apparent perception that the rights in the Charter were
a series of absolutes that could not be abridged or modif‌ied under any
I had no trouble characterizing such doctrines as intellectual gar-
bage unworthy of serious people. I readily acknowledged that the rights
set out in the Charter could well be entitled to special treatment, that is,
they should not be abridged without a compelling justif‌ication. But it
nevertheless remained clear to me that “special” was not a synonym for
“absolute.” As vital as the principles in the Charter were, there would al-
ways be some circumstances in which they could be overridden. Indeed,
sometimes those rights were in conf‌lict even with each other. What
do we say, for example, to a newspaper that, on the eve of a serious
criminal trial, publishes much of the evidence and blatantly calls for
a conviction of the accused person? It is at least arguable that such an
article could prejudice the jury and thus jeopardize the fairness of the
impending trial. Which of the competing rights, therefore, should pre-
vail: the right to a fair trial or freedom of the press?
I had occasion to tell a number of my callers that, even though
the United States claimed the rights in its Bill of Rights could not be
abridged, the Americans may not really mean it. When they decided
they were in favour of curbs on certain speech (for example, incite-
ments, defamation, obscenity) they were faced with the problem of how
to reconcile such a law with the fundamental freedom of speech in their
Bill of Rights. One of their solutions was simply to challenge the extent
to which the utterances in question were really forms of speech at all.1
In some situations, they characterized what they sought to suppress as
primarily action, not speech. I told those who interviewed me that it
was far more preferable to determine up front that these rights could be
modif‌ied than to resort to dubious labelling as a way of addressing such

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