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Friday, March 3, 2006

The Supreme Court of Canada and the Righteous Kirpan - Multani v. Commission Scolaire Marguerite-Bourgeoys


The Supreme Court's unanimous decision in Multani v. Commission scolaire Marguerite-Bourgeoys that Sikh boys have a Charter right to wear kirpans, carefully wrapped, to school comes as no surprise. The kirpan has already won in school boards, courts and human rights commissions across the country. It was accepted that Multani's orthodox Sikhism required him to wear a kirpan at all times. The Quebec school board that forbad twelve year old Gurbaj Multani to wear his kirpan to school had no evidence that the wearing of kirpans had led to any injury in schools. The case was practically moot. Multani has been wearing his kirpan to a private school for years. The Supreme Court could have disposed of the case in a few pages. But the court has given us almost twenty thousand words and has said some curious things.

The judges engaged in a heated scholastic debate over whether the case should be decided on the basis of constitutional or administrative law. The majority struck down the decision of the school board as they would have struck down an act of parliament. Having decided that Multani's right to freedom of religion had been infringed the judges considered whether the infringement was a reasonable limit under Section 1 of the Charter using the language of "pressing and substantial", "proportionality" "rational connection" and "minimal impairment" under which they cloak their preferences. Justices Deschamps and Abella were obscurely adamant that the case should have been treated as the review of an administrative decision in which no law was challenged while admitting that no administrative decision could be allowed to infringe Charter rights. Legal scholars who have written millions of words on the largely meaningless "pressing and substantial", "proportionality" "rational connection" and "minimal impairment" analysis will want to write at length on the Deschamps and Abella reasons but it is impossible to see that it could make a blind bit of difference to how any case might be decided or what a lawyer should advise a client to do.

Justice Lebel chipped in two thousand words to say he did not know what to make of the issue raised by Justices Deschamps and Abella and commend flexible reasoning. In doing so he wrote "Case law developed over 20 years or more [since Charter cases reached the courts] can no doubt be used to support any opinion or position." You bet it can. So much for all the ink spilled in an effort to explain what it all means.

The school board tried plausibly to argue that the wearing of kirpans would poison the school environment as a symbol of violence sending a message that using force is the way to assert rights. The court accepted the evidence of a Sikh chaplain that a kirpan is not a weapon and indeed that "kirpan" means mercy, kindness and honour. But it went farther and held that the school board's argument was "disrespectful to believers in the Sikh religion and does not take into account Canadian values based on multiculturalism." Political correctness rules in the Supreme Court. Counsel have been warned. The court will hear no argument a religion might find disrespectful.

The court held that the infringement of Multani's freedom of religion was not trivial or insignificant because it deprived him of the right to attend public school. But no one was arguing that the right to attend public school was trivial or insignificant. The question was how important the wearing of a kirpan is to an orthodox Sikh. The case was maintained all the way to the Supreme Court and obviously a large body of Sikhs think the wearing of a kirpan is very important but must the court simply take their say so? Is everything a religion promotes of such importance as to trump any secular considerations? To answer that question the court would have to attempt a critical understanding of religion. The court was not prepared, probably not able, to do so. Perhaps it is afraid of seeming disrespectful.

The court was very rough with the school board's argument that students would feel it unfair that Sikhs got to wear kirpans while they could not bring knives to school and some students resent Muslim women being allowed to wear the chador when they are not allowed to wear caps or scarves. "To equate a religious obligation such as wearing the chador with the desire of certain students to wear caps is indicative of a simplistic view of freedom of religion that is incompatible with the Canadian Charter." The court accused the school board of thinking teaching geometry (requiring the use of possibly dangerous compasses) and playing baseball (caps) were more important than accommodating Multani's religious beliefs.

The court sternly enjoined schools to indoctrinate students in respect for all religions, multiculturalism and diversity. Are these "values" not a kind of religion? And what of the good old-fashioned atheists who think all religions are vicious tosh? Must they be indoctrinated in respect for religion by teachers whose own beliefs may not run much farther than Oprah's angels.

Religious freedom is come to this. We are not free to believe in any, or no, religion but must believe in them all.

Wednesday, March 1, 2006

THE COLD WAR FROM BEGINNING TO END Igor Gouzenko to Vladimir Putin


March 1, 2006,  Books in Canada

How the Cold War Began
The Gouzenko Affair and the Hunt for Soviet Spies
by Amy Knight
McLelland & Stewart
368 pages, $36.99 cloth
ISBN: 0-7710-9577-5

Kremlin Rising
Vladimir Putin's Russia and the End of Revolution
by Peter Baker and Susan Glasser
Scribner
464 pages, $37.95 cloth
ISBN: 0-7432-6431-2

Spying is a necessarily murky subject. Much that happened was never recorded. Records used code names. Those who knew are dead or their memories failing. Political and patriotic biases are strong. As strong are individual biases: wanting to tell a good story, to claim a discovery, to be a know it all, to make money. In reading spy stories we must keep a level head and hold fast to common sense.

Most of How the Cold War Began is a retelling of the story of Igor Gouzenko: his defection, his revelations, the consequent investigations and prosecutions, the public and political reactions, his life in Canada and his background in Russia. The retelling is informed by the partial, in both senses of the word, release of Soviet and Western archives and all that has been written about Gouzenko in the last sixty years. But there are no revelations.

It is an interesting story, well enough told, but familar to many Canadians. Capsule summaries of Canadian history and politics betray that Knight aims for an international readership. The book's title signals a larger ambition, which spoils it. The Cold War did not begin with Gouzenko's revelations or the hunt for Soviet spies. Amy Knight does not seriously attempt to argue that it did. She uses the Gouzenko story, and other stories only tenuously related to it, to present a pretty conventional anti-anti-communist argument.

No very important information was passed to the Soviets by the people whose activities Gouzenko revealed. The government overreacted and trampled on civil liberties through the Royal Commission set up to investigate Gouzenko's revelations. Gouzenko was a difficult character. Press reaction was often sensational. All this is true. But it is not all that matters.

Knight seems at times to be suggesting that Mackenzie King's idea of having a friendly word with Stalin, who he thought knew nothing of the spying, (and for whom he had conceived, though they never met, an admiration almost as high as that he had for Hitler when he met him in 1937) and covering up the affair would have been the best response. Then there might have been no Cold War?

Canada was rather a backwater and there was not a lot of valuable information for Soviet agents to pick up. It may be because it was a backwater that Gouzenko's bosses at the Soviet Embassy were lax enough let him escape with a pile of secret documents. But if Soviet espionage in Canada had gone undetected, as it might well have without Gouzenko's defection, it could have become a serious problem.

The Star Chamber nature of the Royal Commission on Espionage was attacked at the time by the CCF and the Tories, the Toronto Star and the Globe and Mail. It was and is indefensible, but it may at least have satisfied Canadians that the matter had been thoroughly investigated, leading to a relatively relaxed attitude in Canada, as compared with the United States, to the communist menace. Several of those charged in the affair were acquitted and there seem to have been no wrongful convictions.

Knight has written books on the KGB and its successors, Beria and Kirov and knows what the Soviet Union was. But her knowledge seems to have been sidelined in her analysis of Soviet spying and Western reaction to it. Communists are idealists, at worst naive. Anti-communists are rabid and engage in witch hunts. Why were there anti-communists? Was it just motiveless malice? Or opportunistic demagoguery (Joe McCarthy)? Or reactionary, counter-revolutionary, imperialistic capitalism?

Well, the Soviet Union was a brutal tightly closed dictatorship that had aligned itself with Hitler in 1939, was gobbling up or subjugating its neighbours and spewed out defamatory propaganda against its wartime allies. It expected and often got from foreign communists blind loyalty. Comintern communists were different from other left-wingers, whether Trotskyist communists, socialists or social-democrats. They did what Moscow told them to do. They sometimes kept their party membership secret or were asked not to join but to work for the cause outside the party. Anti-communist anxiety was a natural and reasonable reaction. It was practically intended by the communists.

Of course politicians, the press and the public got carried away and many blameless people suffered as a result. But the proper response to hysterical anti-communism was not anti-anti-communism but reasoned anti-communism. Knight persistently strains to exonerate suspects, extenuate disloyalty and disparage those hunting for spies. She is indulgent to the frequently heard apology for Soviet spies that they only thought they were helping an ally. But they knew they were making unauthorised disclosures to the Soviets and there were reasons why our alliance with them was not as open as our alliance with Britain and the United States. It was not for the spies to set the rules.

She is very hard on Gouzenko. While admitting that there is no evidence of it, she insinuates that he was in contact with the RCMP before his defection. She is reluctant to allow that he could sincerely have chosen freedom. He was keen for money and spendthrift but an ordinary career was impossible for him. He wanted to be acknowledged as a hero but was forced to live in obscurity. But why should he not have been impressed, not just by the prosperity of Canada, but by its freedom and repelled by spying on an ally? He seems always to have testified truthfully, not exaggerating what he knew.

Knight is one of what is now a minority who are not persuaded that Alger Hiss was guilty. She makes much of the various reporting of Gouzenko having said that a Soviet spy was "an assistant to an Assistant Secretary of State under [United States Secretary of State Edward] Stettinius" or "an Assistant to Stettinius". This is the tenuous link of Gouzenko with the Alger Hiss case. But Hiss was famously brought down by Whittaker Chambers and Gouzenko can neither be blamed for nor credited with his fall.

Knight also reviews the case of Herbert Norman, the Canadian Ambassador to Egypt who committed suicide in Cairo in March 1957 while a United States Senate Subcommittee was reviewing old allegations that he had communist links. Gouzenko had mentioned a Norman but maintained it was a Norman Freed. Notwithstanding, Gouzenko's reference added fuel to suspicions of Herbert Norman. But Norman was cleared by an External Affairs review and at the time of his death was at the top of his profession. His suicide, like most suicides, will never be explained, but neither shame for a life of treason nor, Knight's choice, the stress of hounded innocence seems a likely explanation. Knight has nothing to add to his story. Norman is simply presented as a victim of Gouzenko.

Having spent much of her book belittling the threat of Soviet spying Knight says towards the end that Gouzenko's defection created a crisis at Moscow's spy headquarters. Why, one wonders, if they were not up to much? She goes on to describe a KGB built up after the crisis that attracted the best and the brightest of the Soviet Union. She writes a paean to the KGB while reporting that still today it remains an object of Russian pride.

Judging from Peter Baker  and Susan Glasser's Kremlin Rising Russia has not got in Vladimir Putin its best and brightest. Baker and Glasser were the Washington Post bureau chiefs in Moscow from 2001 to 2004.  Their book is an account of what they learned about Russia in those years. It covers the Moscow theatre siege of 2002, the parliamentary and presidential elections of 2003 and 2004 respectively and, most compellingly, the slaughter of schoolchildren at Beslan in 2004. There are also accounts of how people live, the army, the poor health of Russians and much besides. It is thoroughly researched, with over forty pages of endnotes, but not free of the forced drama and personal storytelling of "good magazine writing". A March like every one we have ever known becomes "a grim March that was neither winter nor spring".

There is hardly a page of Kremlin Rising that could have been written during the Cold War. If Baker and Glasser had tried they would have been kicked out of the Soviet Union, if not locked up as spies. Today foreign reporters can go almost anywhere and speak to almost anyone, if often off the record.

This is indeed progress. The openness of Russia in contrast to the secrecy of the Soviet Union, perhaps more than its reduced state and the abandonment of Cold War hostility, has dispelled fear.

There are still secrets and there is still paranoia. Baker and Glasser do not seem to be able to confirm or deny the story that the 1999 Moscow apartment bombings, which killed hundreds and were blamed on Chechen terrorists, were the work of the FSB, the KGB's successor.

High oil prices and an end to the chaotic gyrations of the Yeltsin years have brought relatively good times to Russia. But politically the last few years have seen a consolidation of Putin's power, the establishment of strict state control over television, the management of democracy and attacks on oligarchs who presented a political challenge. Democracy is not thriving in Russia. Putin avoids the word. He seems to have no agenda but his own power. The state's role in the economy has increased only because Mikhail Khodorkovsky was a political threat. Putin had an undistinguished career in the KGB and emerged as Yeltsin's successor it seems by chance and insinuating himself in the right places at the right time. He has no discernible ideology or policy inclinations and may be out of his depth in government, having the native shrewdness to take and keep power but no idea what to do with it. His failure in the Kursk disaster looked like not having a clue.

While Baker and Glasser present a bleak picture of Russia they do not attempt to look into the future. Putin may remain president for quite some considerable length of time or the new establishment of old KGB hands he has gathered around him may tell him he has had his fun and produce another strongman, abler, more sinister, both or neither. Economics, the agony of Chechnya or demographics may lead to crisis and change. But Kremlin Rising does not refer to a new threat in the East. It is the power of the Kremlin in Russia not Russia's power in the world that has risen.

Putin's thuggishness, evident in the gas dispute with Ukraine, will require firm handling. Russia will remain a worry. That the successors of the men who ran Gouzenko in 1945 can build a prosperous and peaceful Russia seems unlikely. But the Cold War is over. It ended where it began: in Moscow.