DOWNHILL ALL THE WAY Canada's military as it appeared in 1997

DOWNHILL ALL THE WAY 
What killed Canada's military? Years of refusing to take ourselves seriously as a country


March 16, 1997,  Ottawa Citizen

The murder of Shidane Arone in Somalia on March 16, 1993 has led to the military becoming a major political issue in Canada for the first time since the uproar over unification of the Forces in 1966. The focus on the Canadian Airborne Regiment led to the exposure of extreme hazing practices and racist infection in the regiment and its disbandment in January 1995. The Somalia Inquiry was given terms of reference broad enough and went about its work with such ambition that no aspect of Canada's military leadership, training, equipment or organization seemed likely to escape its attention.

The commissioners have been preparing to point accusing fingers at several individuals. They have also been preparing a sweeping analysis of what is wrong with our military.

 The cut off of the Inquiry in its prime will prevent it from addressing the most important issues it was set up to investigate. It is unlikely to be able to pin blame on any but a handful of secondarily involved individuals. Brigadier-General Ernie Beno's success on February 19 in having the Federal Court ban its chairman, Mr. Justice Gilles Letourneau, from passing judgment on him is just the start of the inquiry's troubles on that front.



One Minister of Defence, David Collenette, and one Chief of Defence Staff, Jean Boyle, have fallen victim to the surge of public attention focused on the military. Opposition politicians and much of the public may be satisfied if more individuals can be found to take the blame for the messes that have been revealed.

Commentators on military matters have argued that the roots of the problems go beyond the individual failings. One school, best represented by Tarnished Brass, Scott Taylor and Brian Nolan's crisply depressing account of careerism and venality amongst the officers and bureaucrats, blames the top brass. Others have condemned the bureaucratization of National Defence Headquarters in Ottawa and the lack of political leadership. No one from Master Corporal Clayton Matchee, who beat Shidane Arone to death, to Perrin Beatty, whose relatively long stint as Minister of Defence in the heyday of Mulroney's government led to nothing but a mountain of white paper for recycling can be excused from their individual responsibility. The fault, however, is finally with ourselves. Canadians have not paid much attention to the military until it has forced itself on their attention and the mess we see is the result of decades of public indifference. If Canada took itself seriously it would have no problem maintaining a serious military and not be just discovering a military with serious problems.



Close to two million Canadians served in the the two World Wars and over one hundred thousand gave their lives. But even in World War II, despite the one week delay in declaring war observed to mark Canada's legal autonomy, we were following Britain's lead. Canada had never assumed responsibility for its own defence. We assumed we were safe if Britain was safe and in peril if Britain was in peril. In peacetime the military was little more than a poorly equipped skeleton force backed by a militia that was as much a social institution as a serious potential force.

On the eve of World War II Canada had less than eight thousand men in uniform. In the fiscal year before the war, defence spending, despite some steps towards rearmament, was under thirty-seven million dollars or about 0.6% of Gross Domestic Product. In four years it would rise to $4.6 billion or over 38% of GDP. After the war the military establishment collapsed almost as fast as it had risen. The army shrank from half a million to fifteen thousand troops in two years. By 1949-50 defence spending was down to $385 million or about 2% of GDP. The military looked set to return to its prewar token status. The Korean War and the building of NATO's forces in Europe combined suddenly to reverse the decline. In 1952-53 defence spending peaked at just short of two billion dollars or about 7.5% of GDP.



Canada's involvement in both Korea and NATO reflected its conscious post-war middle power status. With Europe only slowly recovering from the war and most of what came to be known as the Third World still colonial dependencies Canada had for a decade after the war an international status it has never had before or since. Led by Lester Pearson, Canada's clever and self-confident new diplomatic corps sought to take advantage of Canada's place at the relatively small tables. Its first and most important role was in the founding of NATO. In this role, still the most important that Canada has played on the world stage since the war and the keystone of our foreign relations ever since, Canada was acting in its authentic historic tradition. We helped formalize the links between our traditional allies and acted as the bridge between Britain and Western Europe and the United States. There was no pretense of a special vocation for peacekeeping or being the friendly disinterested country that could help with everyone's problems and be looked up to and walk with righteous pride around the world. We acted to protect our interests by joining with allies with whom we had an historic basis of trust and who shared our interests.

Our joining NATO expressed our continuing interest in the security of Western Europe, for which we had already made great sacrifices in the two world wars, and put our necessary alliance with the United States in a comfortable multi-lateral context. With memories of the war still fresh and many of those who served in the war still of military age the rapid resurrection of the forces from 1950 was relatively easy and uncontroversial. Korea was an anomalous war in almost every respect, but Canada's participation seemed both a restoration of the wartime alliance, with Canada joining in a Commonwealth Brigade, and a first serious use of the United Nations in which we placed such hopes. A volunteer force was recruited, lead by officers all but the most junior of whom had served in the war and remained in the regular army or the reserves.



With this background, the late 1950's were the heyday of the peacetime Canadian military. By 1960 regular forces strength was touching 120,000 and spending, though down from its Korean War peak and a declining share of a growing GDP, was over $1.5 billion, a healthy 3.8% of GDP. The army got Centurion tanks, the navy was getting first rate Canadian designed St. Laurent and Restigouche class escorts and the air force, despite the cancellation of the Arrow, had its all Canadian predecessor the CF-100 and was to get American Starfighters and Voodoos.



Since the 1960's it has been downhill all the way. Paul Hellyer was an ambitious minister who did not serve over four years as Minister of Defence to weaken Canada's defences. His work eventually and predictably had that effect. One of his goals in unifying the forces was to save money. Any savings were achieved by the integration of headquarters and support operations prior to unification. Hellyer's ambition expressed itself in a kind of policy wonk conceit. He thought unification was such a clever idea that he forced it through in the face of the reality of obviously distinct land, sea and air roles in the military, which had to survive unification.

Unification cut off the forces from their history and confused their purposes. For the public it became more like abolition as soldiers, sailors and airmen disappeared into their parking attendant uniforms. Real defence spending declined to about 2% of GDP, around which it hovered for twenty years until the public expectation of a post Cold War peace dividend and the search for politically palatable spending cuts to eliminate the deficit sent it towards 1%.



Unification was a mistake, but it was a mistake that occurred and would not be corrected because Canada was losing its way in the world. The United Nations, which had 59 members in 1950 had 127 by 1970. The former great powers like Britain and France had sunk to the status of middle powers and Canada, despite its economic strength, had fallen into other ranks. The memory of the war receded and Canada's political and military leaders had less and less experience of our role in the war or even the immediate post-war world.

Canada's neo-nationalism and opposition to the American role in Vietnam made Canadians increasingly reluctant allies of the United States. An entirely home grown peacekeeping mythology boosted by Pearson's Nobel Peace Prize fostered an fantasy image of Canada as a peacekeeping country without interests of its own or alignments. The inconsistency of this image with Canada's great military history and continuing membership in NATO never seemed to matter. As Canada agonized over its identity and fretted about its independence, the problem of Quebec and national unity came to dominate national politics. Despite Trudeau's invocation of the War Measures Act and calling out the army in the 1970 October crisis, it was always evident that the military could play no role in holding Canada together. The application of bilingualism to the forces led to a healthy participation of French-Canadians in the forces without answering the question of what country in the long term they would serve.



Trudeau had shown his contempt for the military during the war. Canada's place in the world never meant more to him than an excuse for foreign travel and a chance to indulge his intellectual musings before a diplomatically polite but usually indifferent audience. An attempt to strengthen ties with Europe as a balance to the United States, described by Trudeau himself as banal, North South dialogue, and the 1983 peace tour only obscured Canada's interests and relationships, premised an exaggerated appreciation of our power and dissipated our influence and obscured our alliances and our commitment to Western security.

Canadians took little interest in all of this, apparently satisfied by a series of photo opportunities that Canada was playing its rightful role in the world. They took even less interest in military affairs. Apart from press releases from disarmament lobbies the principal press coverage of military matters was as business news. When big purchases could be delayed no longer without a conscious decision to abandon defence entirely, as with the 1976 purchase of Lockheed CP-140 Aurora maritime patrol aircraft or the 1982 purchase of MacDonell Douglas CF-18 Hornet attack fighters there was business to be done, either directly on the projects or as offset purchases negotiated by the government as part of the acquisitions deals. The only political controversy was over who, or which province, was to get the work. The 1986 decision to have the Hornets maintained in Montreal rather than Winnipeg was never forgiven the Tories in the West.



Equipment purchases were always too little too late, but political support could generally be found for billions in spending as a questionable mix of industrial strategy and regional job creation. The price of big purchases was always inflated by the need to arrange production in Canada or offset orders for what could not be built in Canada. When the decision was finally made to order new frigates for the navy to replace ships nearing thirty years in service, the result was a massive $6.2 billion dollar order for twelve of the most expensive ships of their size ever built. The order had for political reasons to be split between New Brunswick and Quebec. There were several European designs that could have been adapted for and largely built in Canada for little more than half the cost and in less time. Instead the industrial strategists entertained vain hopes that having revived a warship building industry that had been neglected for decades we might be able to sell warships abroad. The prospect never grew serious enough that the political complications of such major arms sales had to be faced. Even when we decided that we had more frigates than we needed we were unable to negotiate a deal with the Saudis to sell ships from our production.

As the ships entered service the complimentary helicopter project necessary to make them the effective anti-submarine platforms they were designed to be fell victim to politics as the price tag, inflated by provision for Canadian assembly and customizing and offsets, for the EH 101 helicopters ordered by Kim Campbell became politically indefensible. The experience showed that political support for any large defence expenditure had disappeared. Canadians were grudgingly prepared to accept, largely out of thirty years habit, the small burden of Cold War commitment to NATO. With the end of the Cold War Canadians were incapable of imagining a true military threat or an interest requiring military commitment.



Peacekeeping had become the only acceptable political justification for Canada's armed forces just as Bosnia and Somalia were about to expose the phoniness of the idea. It ran directly counter to the purpose of having armed forces. The military exist to be ready to kill and be killed in defence of the country's interests. For a country like Canada their use has always been in concert with our historic allies. Peacekeeping premises having no interests and no alliances that might imply partiality between warring parties. Peacekeepers are not supposed to kill anyone and no one is supposed to want to kill them. Over one hundred Canadian soldiers have been killed in peacekeeping deployments, but they were not supposed to be. The level of mortality is not much higher than what results form peacetime training accidents and would not have been accepted if it had been.



Canada's infatuation with peacekeeping set in deeply after Pearson's succès d'estime in the Suez Crisis. Diefenbaker's government was prompted to overcome initial reluctance to send Canadian soldiers to the Congo in 1960 by public enthusiasm. Peacekeeping proved to be habit forming. Canada has managed to achieve an almost unbroken record of participation in UN peacekeeping missions since Kashmir in 1948 and claims to have unique expertise in peacekeeping. The unveiling of a monument to peacekeeping next to the National Gallery on a scale to rival the National War Memorial and the issuance of a peacekeeping loonie in 1995 marked the climax of Canada's celebration of its peacekeeping prowess. The extent to which peacekeeping had come to obscure our historic role in the world was strikingly evident when Jean Chrétien devoted much of his speech on the 50th anniversary of the Canadians embarkation for D-Day at Gosport, England, to Lester Pearson and Canada's peacekeeping.



Foreign leaders and diplomats are too polite to say it, but the truth is that Canada's peacekeeping efforts amount to no more than a few footnotes in the history of international politics since Suez. Whatever may have been the case in the 1950's, there are now scores of countries ready, willing and able to provide more than enough peacekeepers for any number of conflicts. The only problem is who will pay.

We hear little of other countries' peacekeeping roles. Canadians were always one of the smaller contingents in the former Yugoslavia behind the Dutch and the Ukrainians, of whom we heard nothing. A total of 35 countries had peacekeepers in the former Yugoslavia in 1994. The United Nations Interim Force in Lebanon is now made up of contingents from Fiji, Finland, France, Ghana, Ireland, Italy, Nepal, Norway and Poland. So long as Canada has any armed forces it can continue to contribute to UN peacekeeping missions. But it is not needed and it will not impress anyone but Canadians by making peacekeeping the principal purpose of its armed forces.



With the end of the Cold War most Canadians have been at a loss to think what need Canada could have for armed forces beyond peacekeeping. But the circumstances of the Cold War, when the battle lines were drawn for a war that happily never took place, were unique. For most countries throughout history there are a range of more or less remote possibilities of conflict, some of them remote precisely because they are ready for them. For Canada, as for most advanced countries, there is little prospect of having to face a hostile power alone and little chance that it could do so successfully. But in seeking security in common with other countries, formally in NATO, and less formally beyond NATO, we must be prepared to bring our fair contribution to facing any threat. Without a serious military capability we cannot expect to be heard when any question of the use of force arises. We cannot call for a forceful response when we have nothing to contribute. We cannot urge restraint when we cannot exercise restraint ourselves but are merely impotent.



Canada's inability to shoulder properly an important military role can be seen plainly in the state of our navy. We now have sixteen modern or very expensively modernized surface warships. There principal purpose is anti-submarine warfare. After some difficulties in the early years Canada played an important role in anti-submarine warfare in both world wars. The threat posed by submarines is now greater than it has ever been. The volume of ocean going trade is vastly more important than it was sixty years ago. More importantly the capabilities and elusiveness of modern submarines, whether nuclear or conventional, make them effectively a new weapon system compared to the submarines that nearly strangled Britain in the two world wars. We have practically no experience of what they can do. The sinking of the Belgrano during the Falklands war was one of only two occasions when a submarine sank a ship since 1945.

The conventional opinion is that at the end of the Cold War submarines ceased to be a threat. But Russia continues to build formidable submarines: the 11,000 ton Akula II class and the 16,000 ton Oscar II class. The first of a new Severodvinsk class could be ready in the year 2000. The keel was laid in November for the first of a new Borey class of ballistic missile submarines. How many of Russia's 120 nuclear submarines could put to sea in time of war is anyone's guess. Older ships are steadily being scrapped. New warships have their problems. The crew of the Akula II Vepr struck in August over back pay. But the Germans had only 21 submarines at sea at the beginning of World War II. Russia can do a lot better than that. Its newer submarines have been regularly deployed in recent years, coming close to North America a times. They are the most heavily armed and reportedly the most stealthy submarines ever built. If, in their present state of disarray, the Russians think it worthwhile to build and deploy such ships, it surely makes sense to prepare seriously to defend against them.



Nor are the Russians the only threat. China has a growing fleet of submarines of all kinds, conventional, nuclear and ballistic missile carrying. It bought some from the Russians but makes its own in all categories. A large number of countries of varying degrees of responsibility have modern conventional submarines including Iran, Algeria, Syria and Libya. The submarine threat is large and growing. Who knows what these ships may be up to early in the next century? By that time Canada will still not have replaced its over 30 year old Sea King helicopters with the modern ship-borne helicopters necessary to make its new City class patrol frigates effective anti-submarine warfare systems.

The best choice would be an off the shelf purchase of a smaller number of the Anglo-Italian EH101 helicopters we agreed to buy in 1993. But for political reasons we are not likely to make that choice. We seem likely to have no submarines as the political will cannot be found to replace our three 30 year old Oberon class diesel electric submarines even with their near perfect replacements, the basically mint condition British Upholder class on offer at a bargain price after the Royal Navy decided to go for an all nuclear submarine fleet.



Ecuador, Portugal and Venezuela will keep submarines younger than those we are retiring. Australia, no more obviously threatened than Canada, is already replacing its six younger Oberons with six bigger Swedish designed and Australian built submarines at a cost of close to $5 billion dollars from a defence budget about two thirds of Canada's. Meanwhile Canada's frigates, according to recent reports are having trouble keeping their grocery and laundry bills within budget while showing the flag in Europe.



All writers on Canada's military pay fulsome tribute to the dedication and professionalism of our soldiers, sailors and airmen. Generally this is deserved. Particularly praiseworthy was the courage of Canadian soldiers in Croatia and Bosnia who found themselves in the middle of a real war, taking casualties and being humiliated by the forces of those they were supposed to be helping when they could not understand, any more than Canadians generally, what purpose their being there served. They have reason to be proud. Canadians should be ashamed that they have not been ready to assume the burden of preparing our forces to fight, but sent them vainly where they had to fight anyway.

 Somalia was the other side of the coin.

One immediate reaction to Somalia was that we were training killers in the army and should stop. But armies do not train their men to beat defenceless teenagers to death and have no need of recruits who would. It is an old saying that their are no bad soldiers, only bad officers. The implication is that the quality of recruits does not matter. Canadians have signalled in their indifference to the military, their unwillingness to pay to equip and train it properly, and their smug self-satisfaction with our peacekeeping that they do not want to recruit men ready to kill or be killed in the service of their country. Many step forward anyway and make the best of it. But along with those who are looking for training in a skill useful in civilian life and those who look forward to a cushy bureaucratic career it is not surprising that some delinquent characters are recruited and not weeded out or reformed. In Croatia and Bosnia Canadians were killed when they were not supposed to be. In Somalia they killed when they were not supposed to.



Canadians have to face the question of whether they are prepared to have armed forces ready to go abroad to kill and be killed in defence of their country's interests. All the evidence, from the infatuation with peacekeeping, to their low tolerance for defence spending and their recoil from the harsh facts of even limited involvement in minor real conflicts such as those in Bosnia and Somalia, is that they are not.

On Canada's present readiness to support its military and give them not only the money but the direction they need, we should do better to give up any pretense of assuming responsibility for our own defence. But it is a hard world and force and the readiness to use it are as much a part of it as ever. A nation that cares enough to survive will have to face that fact. Despite our experiences in the two world wars, we have evidently not grown up enough to do so. We are heading back to our prewar impotence. We have not learned to see long range or long term threats and forearm against them and thereby possibly forestall them. We have not learned that in collective security there are shared burdens as well as shared benefits. We have not learned to treat defence as a permanent part of our national life in which we all must take an interest.



The lesson of the last four years is that Canada's military require our constant attention and support. If we turn away when the present scandals have worked themselves out, lay the blame on a few individuals and refuse to support forces adequate to the tasks we may give them, new scandals will surely arise. We shall be powerless to defend Canada's interests abroad and our friends will not help. We shall have only ourselves to blame.

The Reform Party is not part of Canada's Conservative Future

September 1, 1996,  GRAVITAS

Which will be the conservative party in Canada after the next general election: the Progressive Conservative Party or the Reform Party? Merger is out of the question. But an answer can be given now. It will not be the Reform Party; for the Reform Party is not and will not be a conservative party. It cannot be a question simply of political strategy, of how best to exploit a given mass of conservative supporters for electoral success. The history, leadership, structure and active supporters of the two parties have shaped and will shape the nature of conservatism in Canada. The choice between the parties in not one of instruments but of philosophies.

The Reform Party's reputation is that of an rudely conservative movement. It arose in part as a reaction to a perceived failure of the Progressive Conservative Party to keep faith with is more right wing supporters. By far the greater part of its voters in the 1993 general election were Progressive Conservative voters in previous elections. But the Reform Party is not a breakaway conservative party. It is the creation of one man and its basic doctrines concern party and government structures and processes and have nothing conservative about them. Reform is a populist party inherently incapable of advancing conservative or any other consistent principles beyond the short term. In the classic paradox of populist parties, despite its claim to be the voice of the people, it is the tool of its leader.

Preston Manning is a square old fashioned sort of man. He heads a conventional traditional family. He practices a fundamentalist Christianity. His father was for twenty-five years a conservative premier of Alberta. He assisted his father in the research for, even ghostwrote, Political Realignment, the 1967 tract in which Ernest Manning called for two national parties offering clear right and left wing alternatives. Political Realignment espoused what Manning senior called "social conservatism" and his preferred choice for the national right wing party was the Progressive Conservative Party. As an alternative "if the cause of conservatism continues to suffer and decline" because of the failure of existing parties Manning senior warned that the formation of a new party was a prospect.

It is natural then to think that the party Preston Manning founded in 1987 is the new conservative party his father had foreseen. The right wing political culture of the Reform Party's home base in Alberta and the maverick right wing tradition of British Columbia, where it found its next strongest support, shaped the party's character and reputation at the outset. Alarmist reactions by liberals and leftists reinforced the party's crude right wing image. Some of this was just a cynical smear. Some if it was just stupidity, a plentiful resource among left wing academics particularly.

Preston Manning is a peculiar man and a peculiar politician. Before he became a politician he was a management consultant and as he presents himself in The New Canada he wants to extend his management consulting to the governance of Canada. He is an evangelist of systems analysis, a now dated American ideology developed in the 1950's and applied most notably to the management of the Vietnam war. The business of Manning Consultants, which he started when he was 26 with his father, immediately upon the latter's retirement as premier, grew from Manning senior's political contacts. Much of its work seems to have been in the fields where government and business meet in a mixed economy.

When Manning's policy pronouncements are most specific they are technocratic. His first contribution to public life was in jointly drafting The White Paper on Human Resources Development in 1967 for his father's Alberta government. Manning's description of it in New Canada gives a good taste of his policy making:

Our concept of human resources development focused on achieving certain levels of physical and mental health by requiring public and private sectors to perform specific functions: development/prevention, rehabilitation/adjustment, maintenance. The White Paper was accompanied by case studies analyzing poverty and underdevelopment problems..., and an inventory of public and private resources available to cope with these problems. It provided for the establishment of a Human Resources Development Authority to bring the resources of the big social-service departments...to bear on particular needs... It also provided for the creation of a Human Resources Council.

Happily nothing came of the report.

Manning's technocratic tendency fits naturally with the Reform Party's populism. Politics is reduced to the people's will and technical questions. Conflicts of interests and ideas, the real stuff of politics, disappear.

Manning is famously shy of confrontation and his personality, his religion and his management consulting lead him to want to be a conciliator. He seems never to have engaged in serious argument and, beyond his religious faith, not to have any convictions, which can only be developed in argument. He has reportedly read a lot but does not seem well read. His most famous reading was the Revised Statutes of Alberta, a testimony to his adolescent earnestness and interest in government, but it does not seem to have occurred to him that the work would be better if shorter. A more troubling literary interest has been the life of Lincoln and the secession crisis in the United States.

Manning's fundamentalist Christianity has alarmed many, who suspect that he may want to impose his religious principles through politics. But he has carefully explained that he does not seek to impose his religion on anyone and there is no reason not to take him at his word. The significance of his religion is different and twofold. Even in this secular age, perhaps particularly in this secular age, there is a tendency to think that the devout are people of principle and more likely honest. This has helped him sell himself as a new breed of honest politician even though his record is no better than that of the rattier sort of Liberal. His religion also seems to have given him a sort of moral complacency reflected in his manner and the confidence with which he has lead the Reform Party as he pleased never doubting that he spoke for the people. The one explicit connection he makes between his religion and his politics he also makes with management consulting: "How do God and man get reconciled? I studied that from a theological standpoint. I tried to see if there's any application of these principles that are in the Christian Gospel to conflict resolution in other areas." Manning sees himself as a conciliator rather than the champion of any particular political philosophy.

Manning's conception of Reform is so broad that it amounts to nothing more than a resentment of established parties. He claims for the Reform tradition in Canada Louis Riel and John Diefenbaker, Social Credit and the CCF, the Bloc Populaire Canadien and the Parti Qébecois. The fall of communism in Europe he writes in the preface to The New Canada came "under the banner of Reform." Writing in the early twenties he would perhaps have claimed Lenin and Mussolini for the Reform tradition. All that the various movements Manning claims for the Reform tradition have in common is that they were, for a time, popular protests. While he carefully avoids calling himself a conservative Manning does invoke populism, claiming to speak for "the common sense of the common people." This, as far as it goes, has been the foundation of the Reform Party's doctrines.

Many Reform Party activists are disenchanted Tories. But Manning was never a Tory and despite excellent political contacts ( he worked with Joe Clark thirty years ago on a study of the possibility of a merger between the aging Socreds and Peter Lougheed's rising Alberta Progressive Conservatives) he stood completely aloof from politics until the prospect of founding his own party emerged in 1986. His egotism largely explains this. But had he been a conservative he might have tested his father's hopes for a clearly right wing Progressive Conservative Party on the fringes of politics. Instead he waited to exploit the wave of disenchantment with the Progressive Conservatives as a base for his own party, with which he undertook the destruction of the Progressive Conservative Party while firmly refusing to make the Reform Party a new conservative party.

From before the founding of the Reform Party, at the Western Canada Assembly in May 1987, when plans for founding the party were laid, Manning was explicit and firm in rejecting any ideological base for the party.

In order to ensure that we could draw support from the disaffected members of the Liberals and the NDP as well as the Conservatives, it is important that a new western party have a strong social conscience and program as well as strong commitment to market principles and freedom of enterprise.

A new federal party which embodies the principal political values of the West will transcend some of the old categories of left and right....It should be a party whose members and leaders...attach high importance to wealth creation and freedom of economic activity on the one hand, but who are also genuinely concerned and motivated to action on behalf of the victims of the many injustices and imperfections in our economic and social systems.

We need a political party in which Canadian youth...will feel at home. Canadian youth have a special interest in jobs, in the economy of the future, in environmental protection and conservation, and in conflict resolution on a world scale-concerns which once again are not easily classified on the old "left-right" spectrum and which again call for ideological innovation and balance.

In the face of this, it is hard to see how conservatives could hope to make their home in Manning's party.

The second principle in the Reform Party's statement of principles, after a vacuous commitment to one Canada of equal provinces and citizens added recently, is support for a Triple-E Senate. The idea was talked up with religious fervour until it became obviously tedious and was sidelined with all constitutional talk after the 1992 referendum. In its origins it was an understandable expression of Western resentment against new wrongs like the National Energy Policy added to the history of Old Canada's periodic disregard for the interests of the West. But it is also the most concrete of a series of notions supposed to give the idolised people better control over government. Referenda and popular legislative initiatives are also called for. Most telling for any assessment of the Reform Party's claim to be a party of "stated values and principles", in accordance with the third of its principles, is the doctrine that M. P.'s should be simply the delegates of the voters, subject to no party discipline but bound to consult their constituents on how they should vote and subject to recall.

Opposition to party discipline has a long history in the West where it was felt that Liberal and Conservative members were prevented by it from properly representing Western interests. It was given new impetus by the GST, which was overwhelmingly opposed in Alberta but voted for by 22 of its 24 Progressive Conservative M. P.'s. That the 22 voted for it because they believed it was best for the country or that the Tories who bolted did not vote from conviction but to save their political skins (one, David Kilgour, became a Liberal and the only M. P. elected from Alberta in 1988 to be reelected in 1993) was irrelevant under Reform Party doctrine. The voters did not want the GST, largely because Manning and the Liberals were dishonestly attacking it, and M. P.'s should do what they are told.

A myth has grown up that M. P.'s are somehow forced to vote as their party says and that a good party could simply say that it would not do that and give M. P.'s and by extension their constituents more power. But if a party is to stand for anything its candidates must share a programme and confidence in its leadership and a commitment to work together. If there is to be no party discipline voters cannot know what they are voting for in voting for a Reform Party candidate and the party cannot honestly promise to do anything specific.

The Progressive Party, which in 1921 outdid the Reform Party in taking 65 seats in a smaller House of Commons in its first general election, foundered on a dogmatic refusal to be disciplined. In contrast to Preston Manning's dogged pursuit of official opposition status the Progressives declined the honour, leaving it to Meighen's Conservatives. Their inability to commit themselves led to the constitutional crisis of 1926 and the party effectively broke up in the general election of that year, only nine members being elected as Progressives.

As a practical matter the Reform Party's delegate theory of parliamentary representation might not amount to much. An M. P. is usually able to claim popular support for whatever position he may want to take and frequent detailed polling to test such claims is not possible. But the doctrine that M. P.'s should simply be spokesmen for whatever voters happen to feel makes the Reform Party's claim to be a party of principles untenable.

Up to now the contradiction between the party's claim to be simply the people's voice and its claim to be a party of definite principle has not been much of a problem for it. Its grassroots and its members' constituents are distinctly conservative and the party has comfortably reflected their views. There is a contingent link between the Reform Party's right wing politics and its populist doctrine. Its grassroots have assumed that people generally share their views and that only the deformation of political institutions, giving too much power to special interests and detaching politicians in Ottawa from the voters have led to governments following what they see as a leftist course. Hence the call for political reform that they presume will lead to smaller, cheaper and more sympathetic government. Hence also a tendency to advance simple right wing policies without either a sense of the complexity of government or the need to win people over to their policies. Developing and winning people over to policies requires a party of principle prepared to take unpopular stands. From the perspective of Reform Party doctrine a party taking an unpopular stand makes no sense because a party is supposed to be simply an instrument of popular will.

To the extent that they are defined and as they are perceived Reform Party policies probably have the support of about 20% of the voters, concentrated in the West. Beyond that, as has been tritely observed, the party garnered in 1993 a historically high protest vote. Some voters sympathetic to its policies still voted Tory in 1993. But if the party is not to stagnate before withering away it must be prepared to take a stand and risk unpopularity while developing its policies and facing the challenge of selling its policies to a majority of voters in English Canada or lose its conservative character.

Preston Manning understands this problem and is determined to resolve it and become Prime Minister. The advertising men and campaign strategists with old party or American experience have been recruited to do the selling job. But Manning does not want to try to sell conservatism to the voters. He wants to sell himself. And what he is is an opportunist looking for the wave that will carry him to power. The pollsters have also been recruited to find the wave.

The Progressive Conservative Party is the historic home of conservatism in Canada in all its aspects. It grew from the loyalism, respect for parliamentary government and compact between English and French from which the country grew. Its one historic departure from free market economics, the policy of protectionism proclaimed by Macdonald as the National Policy, could be excused on political grounds as necessary to integrate a sparsely populated country occupying half a continent. After tariffs had ceased for two generations to be an important political issue the Tories put protectionism behind them with their espousal of free trade in 1988.

Two things have confused the conservative identity of the Progressive Conservative Party. Any party is liable to act opportunistically and to try to win or hold votes by doing what seems popular. In the postwar period when there was a vague social democratic hegemony and when spending always seemed easier than fiscal restraint this affected the Progressive Conservatives as much as any party. They were in a sense infected by populism and promised to do and in office tried to do what people wanted rather than standing for principles and trying to bring people around to them.

More damaging to the integrity of the party was the Red Tory theory advanced in the sixties by the left-wing academic Gad Horowitz. Horowitz purported to trace a collectivist tradition in Canada back to the Loyalists and forward to the CCF and NDP and a Red Tory tendency in the Progressive Conservative Party. Chief in the meagre list of Red initiatives by Tory governments was their involvement in the founding of the CNR and the CBC. The establishment of the CNR was a purely pragmatic measure impelled by the railways' wartime debt crisis. The establishment of the Canadian Radio Broadcasting Commission was a national measure that did not exclude private broadcasting. Mildly interesting as an academic essay the Red Tory theory had a pernicious effect on the Progressive Conservative Party. It gave a spurious intellectual respectability to Tories who, under the sway of the leftist and big government ascendancy of the sixties and seventies and political opportunism, could see no conservative principles to separate them from the NDP, only matters of style.

The Mulroney government did much that was dismaying and not just to Westerners. But it was always the best conservative government available. With the GST it suffered for forthrightly applying conservative policies. Its main faults were a timid fiscal policy and constitutional conceit. The party also undoubtedly became unbalanced by Mulroney's personalisation of it. By the time the Mulroney era ended Preston Manning had drained away too much Western support for it to be righted.

Tories have always stood for the historic value of Canada. They have seen English Canada as having a real identity, not just leftovers from the American Revolution spiced up by the French. Their Canada has always included Quebec, without any illusions that its distinctness can be papered over by a hybrid nationalism. They collapsed in Quebec in the two wars when the historic attachment of English Canada came into conflict with the historic detachment of Quebec since the Conquest. But the Tories have always been a national party.

The Reform Party cannot claim to be a national party. It is not just a question of the concentration of its vote in the West. That could change. But the party was founded as a Western party to represent Western interests. Its roots lie in a Western Assembly held in Vancouver in 1987. Only in April 1991 did it resolve to expand into a national party, excluding Quebec. The only legitimate elements in the vast Reform tradition Manning claims are the parties of Western discontent. Manning wants to be Prime Minister and will offer whatever he has to to appeal to Ontario and the Maritimes in the next election, even at the cost of exposing his Western flank. But he cannot affect for himself a sense of Canada that neither he nor his party has. There is nothing in the Reform Party's or Preston Manning's history or pronouncements that suggest a sense of Canadian history beyond Western discontents, there is no sense of why Canada should exist. Reform's political doctrines about parliament and a Triple-E Senate show a contemptuous ignorance of why our parliamentary institutions came to exist as they do and how central they are to our identity. Reform has only a fig leaf foreign policy. Because it has no sense of Canada it has no sense of its place in the world.

Reform Party constitutional policy contemplates massive devolution of powers to the provinces. The suspicion of the left is that it intends that the provincial governments should do less with the powers devolved to them than the national government is doing, leaving holes, particularly in health care. But the more important point is that in the Western separatist tradition it seems just not to believe that Canadians as a nation can be trusted to work for their common good. The suspicion that Manning and his party would not mind if the country broke up is not without foundation. The party's policy Blue Book states that 'The Reform Party opposes the conception of Canada as "a meeting of two founding races, cultures, and languages"': but Quebec cannot be kept in the country on any other basis. If bilingualism has been oversold and applied dogmatically without, evidently, binding the country solidly together, the Reform Party's official languages policy is only what would be expected of an international organisation like the European Union. The Blue Book sections on national unity and the constitution do no even mention Quebec. The party's more recent 20/20 paper on national unity is most concrete in its description of the twenty consequences of secession, which reads more like a blueprint for separation than the Chrétien government's Plan B warnings about the consequences of a breakup. The party's unctuous refusal to see that Quebec is not a province like the others must mean either that Quebec cannot be satisfied or that separation would be generalised across the country. On one of his early forays into Quebec Manning allowed that in accordance with party doctrine a Reform member from a predominantly sovereigntist riding could speak up for sovereignty. Despite the tentative attempts to organise in Quebec it may be taken as given that the Reform Party will never make a breakthrough in Quebec unless it does a deal with the Bloc and makes explicit its implicit separatism.

Its claim to be a national party and Jean Charest's popularity in Quebec have kept the Progressive Conservative Party going since 1993. Supporters have hung on for old times sake and from suspicion of the Reform Party. But the party's necessary rebound has not begun. It has not overcome the legacy of loathing for Brian Mulroney and the uncertainties of Jean Charest's leadership. Time will slowly put Mulroney behind them; but only if his personalisation of the party is replaced by definite principles. Charest is the most deft and personable politician to emerge in Canada in a generation. But he is all technique. He has carefully avoided taking any position, cultivating good relations with Ralph Klein while pouring cold water on the enthusiasm of young Tories for the new right. All policy was put off to the Winnipeg policy conference in August, but without definite leadership the party risks being too vague to motivate a revival. It is an often successful strategy of opposition parties to wait for a government to defeat itself without advocating specific policies. But to wait for both the Liberal government and the Reform opposition to self-destruct is expecting too much. People must have positive reasons to vote Progressive Conservative and Jean Charest does not seem ready to give them.

But unlike the Reform Party the Progressive Conservative Party is more than its leader. Its riding and other associations and informal networks have independent strength and can shape the party if Charest will not. Progressive Conservatives are conservative. The operators and careerists who supported the party have fallen away and will not be back while the party struggles to revive. Beyond the activists there is a large Tory intellectual tradition in Canada that the Reform Party and Preston Manning reject. Canadian conservatives can make the Progressive Conservative Party a forthrightly conservative party with a national reach. If they do that, it will be the only conservative party on offer as Preston Manning tries to take his party across the political spectrum while his supporters straggle about offering right wing suggestions they lack the discipline, leadership and persuasiveness to make effective.

RIGHT TO WRITE OFF THE RIGHT? Hugh Segal and Dalton Camp

July 1, 1996, Books in Canada

In August 1991, shortly after going to work for Brian Mulroney, Hugh Segal attended the Progressive Conservative Party general meeting in Toronto. There he witnessed

beyond the normal affection for a leader who had brought them to power twice with historic majorities, an outpouring of confidence and affection I had never seen before....On one day Mulroney gave fifteen speeches... campaigning with an intensity and level of connection with the crowd that was stunning....It was awesome.

I was at the August 1991 meeting. It was more than usually tedious in its unrelenting ritual enthusiasm. As I walked away from one of Mulroney's speeches, I thought he needed someone to keep him humble. Hugh Segal was apparently not the one for that. Segal has made himself since the party's rout in the 1993 election the most prominent national Tory after Jean Charest. He has gone on the road to speak to local party meetings and has repeatedly debated David Frum on the future direction of the party. No Surrender is an attempt in the form of a personal memoir to set out what is valuable in the party, to explain its devastation, and to map a course for its future.

He was born in 1950 and became a Tory in 1962 when Diefenbaker spoke at his school, breaking with the conventional Liberalism of his Jewish immigrant family in Montreal. Since then he has spent most of his life in Progressive Conservative politics. He was the candidate in Ottawa Centre in 1972 and 1974, doing remarkably well. He was legislative assistant to Robert Stanfield and then went to work for Bill Davis in Ontario until the end of the constitutional negotiations in 1982, with brief time off as a young corporate relations vice-president at Labatt's, a position he won through his Ontario Tory connections. From 1982 to 1991 he worked for the public relations and public affairs offshoot of Camp Advertising. He then went to work in Brian Mulroney's office, soon becoming his chief of staff. Tirelessly genial, he early earned the sobriquet "the happy warrior", and has known every prominent Tory of the last twenty-five years and a great many obscure ones. Scores and scores are mentioned and praised in No Surrender. Only two Tories are criticized: Joe Clark and Kim Campbell. Even Joe Clark cannot escape his praise: he was "a bright, confident, able, thoughtful, and caring person" with "a tremendous commitment to the country." It is hard to reconcile this with the detailed picture Segal gives of a stolid, self-important incompetent too insecure to thank those who had worked for him and the party.

The teenage Segal had been impressed by Diefenbaker's appeal to Canadians of all ethnic and religious backgrounds. He suddenly saw the Liberals as the party of the establishment and those on the make, and the Conservatives as the open party of the outsiders. But there was also a lot of adolescent teen spirit in his fateful commitment:

The identification with Diefenbaker and his message became a means of self-realization....Some people do it through sports, some through rock music....For me, the path of self-definition became the Conservative party, a blessing and a debt I can never repay.

 

The party gave him companions and recreation from his teens, and employment through most of his life. But there is no doubting Segal's loyalty and sincerity. What is not clear is whether he can say what the party has to offer Canada.

When he leaves the details of political organization and campaigning to discuss policies and principles, his bland prose becomes prolix and vague. His account of BILD, the Board of Industrial Leadership and Development, on which Davis ran his 1981 general election campaign, is in terms that may have gone down well in election publicity, but offer no insight into whether the program could be justified on any grounds beyond its electoral success:

BILD was the ultimate coming together of province and enterprise because it spoke about Ontario's industrial, energy, social, technical, and agricultural self-sufficiency so as to give us the capacity to export our excess in a way that generated value-added jobs and opportunities.

He devotes nine pages of introduction and several more pages later to his decision to go to work for Mulroney in May 1991. The agonizing he recounts is implausible. Any financial sacrifice was evidently short-term. Someone as addicted to politics as Hugh Segal could not pass up the chance to be the prime minister's right-hand man, hailed in Maclean's as the one who might save his party and possibly the country.

He had not been close to Mulroney. In 1983 he had tacitly supported Joe Clark's re-election to the leadership despite his low regard for him. In a curious mix of cynicism and naivety, he supposed that Clark could not last long and would give his hero, Bill Davis, another chance at the national leadership of the party. But Segal became the staunchest of Mulroney loyalists; he is still trying to figure out why the media were so hard on him. Perhaps he was disarmed by Mulroney in his first interview before he went to work for him, when he listened to

the frankest, most bare-knuckle self-assessment, assessment of the country...I had ever heard from any source, all presented in a fashion so humble and direct as to make me wonder whether or not he was too down on himself to help. He understood why he was where he was in the polls.

 

Apart from the usual line about having had to make unpopular decisions and an unspecific reference to his style, Segal offers no details of this self-assessment. Perhaps he is just too genial ever to have given Mulroney the rough handling he needed. Perhaps that was why he was chosen.

Segal argues that Mulroney had to personify or personalize his government to protect against the fractiousness that had historically undermined Tory governments and oppositions. But such a tactic, if it was a tactic, combined dangerously with Mulroney's vanity, to identify the party and its loathed leader. Mulroney was not jealous of potential successors, but he left a party sure to be crushingly defeated at the polls, discouraging most likely successors from seeking the leadership. Kim Campbell's curious emergence needs no further explanation. The last-minute idea of Segal's own candidacy, broached for the "five days in April" recounted here in detail, was another symptom of the party's weakness.

When Segal tries to set out where the party should stand, particularly in a long stretch at the end of the book, it is impossible to make out what exactly he is saying. He is clearly against separatism, though, as he blames it all on the War Measures Act, he shows little understanding of the threat. And why should he be so proud of the party's "recognizing Quebec's right to self-determination" in August 1991? For the rest he struggles to map out a middle ground that the Liberals have always succeeded in occupying. But he seems to think the Tories are the natural party of opposition made up essentially of outsiders. He blames the party's present state on its having governed.

Dalton Camp has been Canada's best-known behind-the-scenes Tory since his dramatic role in the ejection of John Diefenbaker from the leadership in the 1960s. In the imaginings of Diefenbaker loyalists and other traditional Tories, he has been behind more scenes than he ever knew about. He was first active in politics as a Young Liberal. He became a Tory simply on being invited to become executive secretary of the New Brunswick party at twenty-nine, as a bright boy who had been to the Columbia School of Journalism and, on a Beaverbrook scholarship, the London School of Economics. For over forty years he has served the party formally or informally, finally serving Mulroney as a senior policy adviser in the Privy Council Office from 1986 to 1988. His reputation has been as an organizer, speech-writer, and campaign strategist. He served and worked with Tories of all stripes, including Diefenbaker. He had a particular soft spot for George Drew. If he was called a Red Tory it was more as a term of abuse coming from older Tories suspicious of his influence than any serious assessment of his political position, which was inscrutable.

Whose Country is This Anyway? is a collection of his journalism from recent years, largely columns in the Toronto Star. As I do not read the Star, I had not observed Camp's emergence as a scourge of the New Right, corporations, and Americans and champion of the deficit, taxes, and big government. His book comes with praise from Linda McQuaig and Rick Salutin. Perhaps because he cannot attack free trade head on, only Maude Barlow is missing. In retirement in New Brunswick, Camp at full throttle seems no longer Tory and just Red.

Lest I expose myself to the scorn Camp dumps on a Young Tory who, Camp reports, accused Jean Charest of Communist tendencies-who knows, the young man may have been on to something; no-one else has been able to discern any political principles in Charest yet-I hasten to say that there is no evidence that Camp is a Communist or a Socialist or subscribes to any particular political doctrine. It's just that when he gets a little heated he looks a bit reddish:

It is simply a disgrace that the failure of capitalism-its chaotic dysfunction and its disastrous default of social responsibility-has made a civic virtue of selfishness and turned the middle class upon the victims of its failure.

Few writers can collect columns and make a decent book of it. Camp is not one. He can write well, but does not always do so, and not as well as he fancies. There is sometimes a self-consciousness to his writing that is wearing at book length. He has some wit but little humour. "It is the function of the columnist," he writes modestly, "to say what he thinks...with grace, preferably with wit, and with the full strength of his conviction." There is little grace and doubtful conviction in a book almost relentless in its sneering. It comes oddly from him to criticize Ken Whyte's Saturday Night for snideness. He seems as upset by the youth of the New Right as by its doctrines.

The book is divided into sections, the first headed "Carpet Bombing the Deficit". Interestingly, it begins with one of the oldest columns reprinted, praising Michael Wilson's first budget. In May 1985 he thinks the deficit is a problem, blaming it on a "protracted reign of fiscal irresponsibility under the previous government." He likes it that Wilson raised taxes. Wilson also cut spending and Camp does not comment on that. Ten years later, the deficit is still with us, the national debt has doubled, and Camp thinks the deficit is not a priority, though he is ready to pay more tax and make the rich and corporations pay more: the left's fantasy solution to all fiscal problems.

The attack on the attack on the deficit runs through the book long after the subject has been exhausted. Four columns make fun of an alarmist editorial in the Wall Street Journal, and despite Camp's promising to drop the subject, digs at the Journal run through the book. His line on the deficit is conventional, much like that of McQuaig and Salutin, who also share with him the claim that they are voices crying in a wilderness against a stifling consensus that has been mysteriously imposed by sinister forces. In fact one has heard it all before without reading the Star. There is no argument or persuasion in his pieces, which can only give comfort to those beyond persuasion.

Reform Camp describes as "a party populated by bigots, racists, and haters, and led by a charismatic authoritarian" in a piece full of ominous hints of a new Nazi threat. This sort of thing can be mildly amusing in Frank. But, being myself someone who has plenty of harsh things to say about the Reform Party and would not join it if it were the last party in the country, I feel free to say that Camp's attitude to Reform is bigoted if not simply affected.

There are only two pieces in the book that deserve reprinting and those are the longest: on his time spent waiting for a new heart, and a cagey valedictory on Mulroney's resignation. Camp knew Mulroney too long and worked with him too closely for him to be decently hard on him, but he is not prepared to expose himself by praising him as Segal does. He manages to give some idea of how a likeable young man became a loathed prime minister.

It is not clear that Camp still has any interest in the Conservative Party. His suggestions to Charest amount to a revival of late 1970s nationalist left Liberalism, which got us into our present mess. He seems not to have expected the Tory victory in Ontario, won by young Tories as skilled as he ever was in campaign strategy. He turns his fire on Mike Harris immediately after the election.

Camp will not debate David Frum. He makes a column of his refusing an invitation to do so. Segal will debate Frum. But Segal believes that what they both call, somewhat inaccurately, neo-conservatives, have no place in his party. Camp believes they have no place in the country. Both depict a caricatured, straw-man New Right. The question is whether the Progressive Conservatives are a right-wing party at all. If they are, they can find room for hard-liners in a coalition broad enough to win back most Reform voters, command moderate right-wingers, and return to government. If Segal and Camp are right, Reform supporters were right to reject the Progressive Conservative Party and form a new party. Writing off the right, as these authors do, there can be no future for the Tories. This will make Segal sad. Camp is past caring.

PUBLIC DEFENDER Arthur Maloney

March 1, 1996, The Literary Review of Canada

The Life and Times of Arthur Maloney:
The Last of the Tribunes
Charles Pullen
The Osgoode Society for Canadian Legal History

Arthur Maloney was a famous criminal lawyer. In the O. J. Simpson trial a squad of famous criminal lawyers got their client an acquittal before a mass audience still largely convinced he is guilty. In the Paul Bernardo trial John Rosen became a famous criminal lawyer in the unsuccessful defence of a client whose guilt was never really in doubt. The importance of top lawyers needs critical assessment. Despite the opportunity offered by its subject this interesting book fails to provide it.

Arthur Maloney came from Renfrew County west of Ottawa. His father was a doctor and a Conservative M.P. from 1925 to 1935. After an undistinguished but agreeable time at the University of Toronto he began training as a lawyer under the old regime, mixing work in a law office with lectures at Osgoode Hall. As he was working on the side and no great scholar he had to pull strings to get called to the bar in 1943.

Fame came in 1952 when a chance elevator encounter with Chief Justice James McCruer led to his court appointment as counsel for Leonard Jackson, who with his fellow member of the bank robbing, gaol breaking Boyd gang, Steve Suchan, was charged with the murder of a police sergeant.  J. J. Robinette, already famous for his successful appeal and second trial in the Evelyn Dick case, defended Suchan. Both Jackson and Suchan were convicted and hanged. By Pullen’s account both murder convictions may have resulted from Maloney’s failure to dissuade Jackson from taking the stand in his own defence, a mistake attributable to his lacking the confidence and authority that comes with experience. The case received coverage in the relatively primitive provincial media of the early fifties comparable to the Bernardo case. There was never any doubt that Suchan shot Sergeant Tong. Maloney’s failure to save his client from the gallows was not held against him by anyone, not even his client. He was able to play the role to everyone’s satisfaction and his public reputation was established.

Maloney had a melodramatic and rhetorical sense of himself and his role as counsel. While a student he developed an interest in drama and opera. He debated and made recruiting speeches, though respiratory weaknesses kept him out of the war. He did radio commentary for Sunday masses at St. Michael’s Cathedral in Toronto. He was a great admirer of Churchill and managed to get in to a wartime press conference as a stringer for the Eganville Leader, by his account asking him a question. He had an egocentric gregariousness and from his first years in practice was the centre of a circle who drank after work at the Metropole Hotel, occasionally joined by police officers, and handy to the newspapers offices, with whose reporters he early established good relations. A long line of spirited students and juniors passed through his office and often on to distinguished careers in the law and beyond. Ontario Associate Chief Justice Patrick Lesage, who presided at the Bernardo trial, is one several times quoted in this book. Charles Pullen, Emeritus Professor of English at Queen’s University, is another.

Much of the book is based on fond recollection. Maloney was almost as celebrated as a popular fellow as for his legal or political careers. The cover photograph of Maloney smiling behind a raised glass is the image the book supports. But there is another view of him, as Pullen admits at the outset:

There is an accumulation of public, desultory memory of Maloney that is not flattering. From the beginning of this project, there has been some eye-shifting dubiety about the man. Indeed, within the Osgoode Society, and certainly within the legal profession, there are those who have a jaundiced view of him. Much of this opinion is confused, as well as vague, depending upon dim memories of newspaper reports and unsolicited word-of-mouth derision. Most of these people are innocent, unbiased spectators of the public scene who had heard enough about Maloney to presume to dislike him without much personal knowledge of the man.

None of this appears in the rest of the book. Through the warm glow of Pullen’s prose it is only possible to surmise that some who were not part of his circle may have grown weary of hearing what a great lawyer and a great fellow he was. The opportunity is passed up to try to assess just how good a lawyer Maloney was and what it would mean to the administration of justice if outstanding talent made a lot of difference to who was convicted of what and what such talent means if it does not. We do not see what drove him to make himself so popular and why with many people he failed.

Maloney was a great drinker:

...Arthur had a taste for drinking long into the night, even if he had started in the early afternoon....The later it got, as is the way of the world of alcoholic excess, the more questionable the company would become, as his legal associates withdrew, slipping away one by one....Many of his bar acquaintances were simply not fit company for a man in his position. When he was a young criminal lawyer, much of his social life in close connection with the sub-fusc [sic] side of the city was just barely acceptable, sustained by the public’s romantic ideas of how a criminal “mouthpiece” would comport himself....[Former Maloney student and eminent criminal counsel Clive] Bynoe, who had close connections with the police department..., had an arrangement with some senior detectives to keep an eye on Arthur as he roamed the clubs late at night.

Such loyalty is impressive. He was evidently not an ugly drunk. He was surely at times a boring or embarrassing drunk.

Pullen reviews in detail a few of Maloney’s cases, quoting from transcripts. The cross-examinations are skilful, but despite Pullen’s claims, unremarkable. Two jury addresses are reproduced as appendices. So far as one can judge them in cold print they are excellent. But there were and are plenty of lawyers as capable as Maloney appears from the evidence of this book. Maloney lost most of his cases as most criminal defence lawyers always have. Many cases are lost despite the most skilful defence. Many defendants are acquitted after an only a just competent defence. This is as it should be. Otherwise acquittals would depend on who could afford the best counsel or which defendants appealed most to the best counsels’ dramatic sense of themselves. The eminence of counsel depends more on their ability to impress clients and colleagues and their ability to get and get through a lot of work, than on the results they achieve. Lawyers themselves, as it sustains the prestige of the profession and provides occasion for fond and gregarious reminiscence, encourage a cult of the great advocate. The popular press to some extent supports it. Some scepticism is indicated and legal history should inform it.

Maloney’s public career outside the law was largely fruitless. He was lucky enough to be appointed at age 28 to the Ontario Parole Board, but resigned after three months, earning his first significant publicity. He argued that the board was too rigorous in considering prisoners’ records and should have dealt with them on a case by case basis. He seems never to have had the patience to work with others and bring them around to his views.

In the 1957 and 1958 he was elected the Progressive Conservative M. P. for the Toronto riding of Parkdale. He was defeated when the Tories collapsed in Toronto in 1962. He was a natural candidate, bringing name recognition, gregariousness and a readiness to make a rousing speech when that still counted for something. But his years in Ottawa seem largely to have been wasted. He was bored, found new watering holes in Ottawa and kept up a criminal practice. Apart from a predictably impassioned speech on capital punishment, he seems not to have interested himself in the work of parliament. Pullen devotes most of his chapters on this period to speculation as to whether he might have been made a minister and why he was not. It is perfectly possible that his support for Donald Fleming in the 1956 Progressive Conservative leadership convention or his drinking were factors. But in the end no definite explanation is needed. He was not so obvious a candidate for minister as Pullen supposes and there were more than enough Toronto ministrables ahead of him.

In 1966 Maloney was persuaded to run for the presidency of the national Progressive Conservative party in opposition to Dalton Camp, whose campaign to end Diefenbaker’s leadership was proceeding to its climax. It was a quixotic gesture. Maloney had never really been a Diefenbaker man. Dief’s dramatic style and high estimation of himself as a tribune of the people appealed to Maloney but they had never been close. While Maloney had continued to attend party meetings he had never held office in the party and knew nothing about political organisation. He simply lent his name to the battle to save Dief. His campaign was poorly organised, but that probably made no difference. The real question was whether Dief should go. Maloney got 43% of the votes at the party general meeting.

Maloney’s last and most notorious entry into public life was as Ontario’s first Ombudsman in 1975. It can be seen as his finest or worst hour. Pullen tries to come down somewhere in the middle. The office itself is something of an absurdity, a political fifth wheel, adopted on the basis of the once widely held belief that they do things better in Sweden. The office has no power beyond investigating and reporting. It is supposed to be a last resort for citizens who feel that they have been abused by government. Maloney, with an unqualified confidence in the goodness of his heart and ample confidence in the sharpness of his mind, wanted to establish himself as a one man alternative government. He personally stage managed an elaborate installation ceremony, insisted on handsome offices and with much publicity and to some mockery adopted a gryphon crest for the office. He quickly hired a large staff, largely young men from his circle. Pullen defends him against the charge of personal extravagance. The furniture in his own office was chosen and paid for by his wife. But Maloney’s defence against the charge of folie de grandeur, that as a matter of principle it was necessary to establish the presence and prestige of the office in order to serve its public clients, was unpersuasive.

The overwhelming majority of the Ombudsman’s clients fall into three groups: people who cannot be bothered to figure out what government office to turn to and need a citizens’ information office to steer them politely elsewhere; people who have existing rights of appeal that they are too impatient to exhaust; and people who just will not take no for an answer however fairly and patiently their complaint may have been reviewed by the responsible authorities. Maloney wanted to take on everyone, waiving the statutory requirement of a written complaint and keeping phones manned to late at night to capture the maximum business. In his first annual report he recorded 10,000 complaints, of which 90% were outside his jurisdiction.

One issue dominated Maloney’s three years as Ombudsman. The provincial government had purchased lands around Pickering for a proposed new airport. The sellers felt that the province’s land agents had misled them and driven too hard a bargain. After an informal investigation Maloney agreed and recommended substantial further payments. The government baulked at the prospect of having to pay out possibly tens of millions of dollars on the mere recommendation of Maloney and the issue became bogged down in further more formal inquiries and court proceedings before much of what Maloney recommended was done years later. It was never clear why, except for political reasons, the landowners deserved any redress. If there had been any legal wrong in the purchases they should have challenged them in the courts. A challenge to the purchases on broader, political, grounds was bound to involve a lengthy battle. Maloney was instrumental in supporting the landowners’ fight. But any idea that he could offer them a quick and simple solution was folly and his attempt to do so complicated and exacerbated the conflict.

Frustrated and tiring at the mass of mundane complaints Maloney resigned in 1978. He had managed to alienate members of the legislature’s committee on the Ombudsman of all parties, a perverse situation given that it is part of the the theory of the Ombudsman that he is the servant of the legislature. The office has continued, his successors little heard of, wasting several million dollars a year. Troubled by ill health in his last years, Maloney died in 1984 aged 65.

All of Maloney’s public career can be seen as an extension of his sense of vocation as a people’s advocate. He saw himself as a tribune of the people, hence Pullen’s subtitle. Most of his career as a criminal lawyer was before legal aid and he often took cases for nominal fees or none. Trials were much shorter then. Pullen gives some information on Maloney’s finances. His wife had money. His income ranged from under $10,000 a year in the fifties to six figures in the seventies. How this happened and how much was due to legal aid he does not explain.

Maloney defended the criminal defence lawyer’s role in conventional terms carried to the extreme: it was a privilege to gain acquittals for men he knew were guilty. He may have seen Jackson and Suchan as “feckless rogues” (Pullen’s phrase), particularly in the perspective of their poignant last days. They faced long years in prison if they had been acquitted of murder. But Maloney’s sentimental attitude to criminals evades the seriousness of public concern with crime. His practice seems a long way from the world of protracted trials, complex frauds and plea bargaining, a subject not touched on. One wonders how he might have handled the Bernardo defence and what sympathy he could have found for him. John Rosen’s efforts to arouse some sympathy for his client, “None of us are perfect.”, seemed laughable. His pronouncement in the face of legal aid cuts that “None of us work for nothing.” was not true in Maloney’s heyday.

Maloney appeared before the Supreme Court of Canada on the appeal of William Coffin, convicted of and later hanged for the murder of three American hunters in the Gaspé in 1955. He also appeared before a Royal Commission into the conviction in 1964. He believed Coffin had committed the murders. But he believed the proceedings leading to his conviction had been marked by unfairness. This is a perfectly reasonable and proper position. Whatever the rules of fairness may be they must be observed for everyone. The question that Maloney’s stance as tribune cannot answer is how far fairness must go. Criminal proceedings are not a game of cops and robbers. The only assurance of no wrong convictions is no prosecutions. Discussion of accuseds’ or suspects’ rights, even more with the Charter, becomes an abstract appeal to vaguely revered principles. Getting off on a technicality may result. The public cannot expect to be satisfied with the advocate’s claim of the privilege to achieve that result.

Pullen’s book meanders back and forth through time, giving perhaps too much family history and reminiscence of other legal stars of years past. It is often too literary and simply too long. It can be read with interest by those close enough to the law to read it critically and is a fond memorial to the man. Legal biography must play an important part in legal history. Some of the Osgoode Society’s initiatives in this have been successful: David Ricardo Williams on Duff; Patrick Boyer on McCruer. This is its first biography of a counsel. Its next legal biographies will be studies by Williams of seven eminent counsel. Biography of counsel is perhaps a more difficult undertaking than that of judges when what made counsel eminent was an often ephemeral celebrity. It is difficult to revive the interest of long forgotten trials and their interest is is usually more in the accused or the victims than in the counsel, however capable or flamboyant. But the effort, not entirely successful in this case, must be made if we are to have critical understanding of the law and its processes and keep alive the past beyond sentimental memory.

WHAT'S THE EVIDENCE? The Use the Supreme Court of Canada Makes of Evidence in Charter Cases

January 1, 1996,  Rethinking the Constitution  Oxford University Press

The coming into force of the Charter of Rights and Freedoms in 1982 launched a mass of speculation on what it might mean. It was suggested immediately that the courts would have to rely on evidence in deciding whether legislation should be struck down under the Charter.

While not unprecedented in Canada1, the use of evidence in constitutional cases is an American practice and speculation drew on American precedents. The Brandeis brief, long revered in law schools, was always referred to. Louis Brandeis, several years before his appointment to the United States Supreme Court, had filed government studies and other material to support the constitutionality of employment standards legislation specifically protecting women2. The practice became common in American constitutional practice, and with its apparent promise of litigating political issues was attractive to law professors and their more impressionable students.

Also rehearsed was a distinction between adjudicative facts, the ordinary facts in litigation of who did what to whom and where and with what effects, proved by conventional evidence and tested by cross-examination, and legislative facts, general social facts on which it might be thought legislatures should rely in making laws, to be established to the Court’s satisfaction in Charter cases by different kinds of evidence subject, if only for practical reasons, to less rigorous testing3. One of the grounds of this distinction was the suggestion that with legislative facts all that was necessary was to establish a reasonable basis for legislative action. For that purpose more laxed standards of admissibility and less rigorous testing of the evidence might be indicated. If the purpose of leading evidence was simply to show what the legislature was trying to do, and thus to explain away any apparent infringement of rights, the scrutiny of the evidence and the role assumed by the Court would be limited.

The early years of speculation have been superseded by more than ten years experience with Charter litigation. Evidence has been used to explain what the Charter’s rights and freedoms must mean and whether they have been infringed and what remedies there may be4. But the consideration of whether impugned legislation can be, in the words of section 1 of the Charter:
such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
has been the commonest and key use of evidence.

An examination of the more significant cases in the Supreme Court of Canada in which evidence was, or might have been, introduced to help the Court pass judgment on the work of the legislatures does not reveal settled principles or practice. But three uses of evidence for the Court are apparent. The Court has effectively used a call for and the availability of evidence to enhance and protect its authority and power. Firstly, calling on evidence has helped to protect the Court from blatantly imposing its political opinions on the legislatures. Secondly, by insisting that it decides, on evidence, whether legislation can be justified, rather than simply satisfying itself that there was a reasonable basis for the legislation and deferring to the institutionally competent and democratically accountable legislatures, the Court reserves for itself unrestricted power. Finally, by purporting to base its decisions on findings on the evidence in particular cases it has reserved to itself the freedom to revisit every political issue.

***

The first significant reference in a Supreme Court of Canada judgment to evidence in Charter cases came in 1984 in Skapinker5. Skapinker, a South African citizen at the time he was to be called to the Ontario bar, objected to the requirement in paragraph 28(c) of the Law Society Act that persons called to the bar be Canadian citizens or British subjects. Estey J., having decided that Skapinker’s rights had not been violated, nonetheless commented on the case that the Law Society would have had to make to justify the citizenship requirement if the Court had decided that it did violate Skapinker’s rights. He characterised the material that the Law Society would have relied on as minimal. It consisted of reports of government studies of professional organisations and a survey of the requirements in other jurisdictions. He insisted that more would be expected in the future:
As experience accumulates, the law profession and the courts will develop standards and practices which will enable the parties to demonstrate their position under s. 1 and the courts to decide issues arising under that provision. May it only be said here, in the cause of being helpful to those who come forward in similar proceedings, that the record on the s. 1 issue was indeed minimal, and without more, would have made it difficult for a court to determine the issue as to whether a reasonable limit on a prescribed right had been demonstrably justified. (D.L.R. 182; S.C.R. 384)
In light of what has been looked at in later cases it must be understood that it was the bulk rather than the character of the evidence that seemed deficient to Estey. Moreover, the deficiency would not have prevented the Court from deciding whether a reasonable limit had been justified, as Estey seems to say, but simply from deciding in the limit’s favour, something he appeared inclined to do, but wanted evidentiary cover for.

Almost a year later Wilson J. in Singh6 expressed disappointment at “the limited scope of the factual material brought forward by the respondent in support of the proposition that the Immigration Act’s provisions constitute a “reasonable limit” on the appellant’s rights.” and quoted Estey from Skapinker. (D.L.R. 467/8; S.C.R. 217) The appellant refugee claimants argued successfully that the act in denying them an appeal to the Immigration Appeal Board unless it was of the opinion on the basis of written material that the Minister’s determination not to grant refugee status could likely be overturned denied them security of the person without regard for the principles of fundamental justice contrary to section 7 of the Charter. It was contended for the Minister of Immigration that the U. N. High Commissioner for Refugees had approved Canada’s procedures, that Commonwealth and Western European countries offered no right of appeal and that the Immigration Appeal Board, already under strain, would be unreasonably burdened by a requirement of an oral hearing in every case. What exact factual material would have been satisfactory is unclear as Wilson doubted that “utilitarian” considerations could be allowed to prevail over the Charter rights that she held had been infringed. (D.L.R. 469; S.C.R. 718) She placed more reliance on a task force report and an Appeal Board chairman’s speech, which contained merely political comment more to her taste. The utilitarian results of the Court’s decision were a huge backlog of refugee claims, tens of thousands of claimants in welfare limbo, a raft of new patronage appointments, public lack of confidence in the refugee programme and a legal aid crisis.

***

The exact evidentiary character of the material needed to justify a limit under section 1 of the Charter remained vague. But the celebrated R. v. Oakes7, in which Chief Justice Dickson attempted to codify the requirements for a section 1 justification, seemed to call for something like evidence in the received sense. Before outlining the requirements of “pressing and substantial concerns”, “rational connection”, “minimal impairment” and “proportionality” on which a whole scholastic industry has since been built, the Chief Justice held that the onus of proving justification is on the party seeking to uphold the limitation and that the civil standard of proof by a “preponderance of probability” applies.

By speaking of onus and a standard of proof, concepts of the law of evidence, the Chief Justice called on evidence as the principal basis for the justification of limits to Charter rights. It was not surprising that he should do so. But it was not necessary. Justification could have been left a matter of argument, with legislative history and some evidence of political or economic context as an adjunct of legal argument. Reading the Court’s reasons this is often all that seems involved. But the Chief Justice said “cogent and persuasive” evidence would generally be necessary and, whether or not it has been cogent and persuasive, his wish to have evidence has generally been granted.

Dickson’s consideration of evidence in Oakes does not much help to show how evidence should be used. Oakes challenged section 8 of the Narcotic Control Act, which put the onus of showing that possession, once proved by the Crown, was not for the purpose of trafficking, on the accused. The Court held that this reverse onus was contrary to the presumption of innocence required by paragraph 11(d) of the Charter. The Crown argued that any infringement of the right to be presumed innocent was justifiable under section 1.

Dickson was satisfied that Parliament’s concern to fight drug trafficking was substantial and pressing on the basis of government reports from the fifties and seventies, international conventions and legislation in other countries. Reasonable people might judge that a recent leading article from The Economist was as good evidence, and more cogent and persuasive, to the contrary.

Having satisfied himself of Parliament’s pressing and substantial concern on doubtful evidence, the Chief Justice then struck down the reverse onus provision without further examination of evidence by holding that there was no rational connection between possession of a narcotic and possession for the purpose of trafficking. The implicit characterisation of the legislation as irrational seems unfair to its framers. The provision did not simply deem possession possession for the purpose of trafficking, which might arguably be irrational. It placed an onus on anyone proved to have been in possession of a narcotic to prove, on the balance of probabilities, that it was not for the purpose of trafficking. The question was not therefore whether “the possession of a small quantity of narcotics does not support the inference of trafficking.” but whether the reverse onus would help the fight against drug trafficking. On this specific point, which the Court does not even seem to have grasped, no evidence was considered and its absence or insufficiency went unremarked.

After the elaborate analysis and solemn talk of cogent and persuasive evidence the determinative finding comes too easily. The case could have been decided on brief reasons without the encouragements to Charter scholasticism and an inflation of constitutional evidence. The consideration of evidence in Oakes demonstrates that the use of evidence will be strongly determined by the context of the specific case and the positions taken by the parties. The Court purports to endorse parliament’s concern with drug trafficking on the basis of doubtful evidence when it was never seriously in issue. It then rejects the instrument by which parliament attempted to address its concern by reasoning without evidence, no attempt being made to consider how the instrument might work.

References to legislation in other countries and international conventions have been common since the earliest attempts to justify legislation under section 1. It is argued that if legislation like that impugned under the Charter is tolerated in other nice countries it must be a reasonable limit demonstrably justified in a free and democratic society. The references in Oakes were only intended to show that the object of the impugned legislation was “substantial and pressing” and not to justify the specific impugned legislation. The logic of attempts to justify impugned Canadian legislation by showing similar legislation in other putatively free and democratic countries is doubtful. But they present little problem of getting evidence as the foreign legislation can generally simply be filed without controversy. The analysis in Oakes indicates that, as always seemed likely, justification by foreign legislation alone will not work. But as Oakes itself demonstrates, foreign legislation can still puzzlingly be accepted as evidence to satisfy one or another of the Oakes criteria for justification.8

As Oakes illustrates, the use made of evidence by the Court in Charter cases will be determined by the judges’ preconceptions. In ordinary trials the judge has no preconceptions about the facts and must rely entirely on the evidence to decide where the cars were at the time of the accident, who shot whom, where the money went or why the machine would not work. In Charter cases judges appear to invoke evidence or pass it by depending on how it suits their arguments. It is often difficult to determine from the Court’s logorrhoeic reasons exactly what evidence they considered and what they made of it. Ordinary cases often turn entirely on the facts and judges’ reasons review the evidence in detail and make findings expressly based on it, particularly of credibility. The credibility of the reports and studies relied on in Charter cases is never made an issue.

***

Oakes implied a readiness to weigh up the merits of legislation in light of political findings based on evidence. A few months before, in Operation Dismantle9, Dickson J. (who became Chief Justice between the argument of the case in February 1984 and judgment in May 1985) firmly refused to be drawn into political judgments, dismissing them as matters of speculation. The appellants alleged in their statement of claim that cruise missile testing would violate the section 7 right to security of the person and life because,inter alia:
verification of the extent of this nuclear weapons system [would be] impossible;
with the impossibility of verification, the future of nuclear weapons control... [would be] completely undetermined as any such agreements become practically unenforceable;
the testing...would result in making Canada more likely to be the target of nuclear attack;
a “Launch on Warning” system would be necessary in order to respond to the cruise missile...increasing the likelihood of either a preemptive strike or an accidental firing;
the cruise missile [would] have the effect of a needless and dangerous escalation of the arms race, thus endangering the lives and security of all people. (D.L.R. 485/6; S.C.R. 448)

The usual approach in deciding whether to strike out a statement of claim, the issue in Operation Dismantle, is to assume that the allegations in the statement of claim are true and decide whether they could support any claim at law. Dickson decided the case on the novel basis that the allegations made by the appellants simply could not be proven:
Since the foreign policy decisions of independent and sovereign nations are not capable of prediction, on the basis of evidence, to any degree of probability, the nature of such reactions can only be a matter of speculation; the causal link between the decision of Canada to permit the testing of the cruise and the results that the appellants allege could not be proven. (D.L.R. 488; S.C.R. 452)
In later cases the Court has been ready to hear and make findings on evidence no less intractable than what might have been led by Operation Dismantle and on issues no less speculative than those raised by it. While the dismissal of its claim came as relief to sensible people, the reasoning was unsatisfactory. Had the Court chosen to impose some limits to the imperial and despotic powers plausible and prevailing interpretations of the Charter give it, on the grounds that the Court simply cannot properly deal with certain kinds of issues, it would have been a healthy development.10 But in deciding the case on a kind of finding of fact, for which no evidence was considered necessary, or even possible, the Court showed that it was not prepared to set any limits to its powers beyond its energy and interests.

***

By 1986 what evidence could be lead to justify a limit under section 1 of the Charter remained a matter of speculation and lobbying. While seized with Operation Dismantle, Chief Justice Dickson, addressing a Bar Association meeting in Edmonton in February 1985, had invited counsel to:
become more imaginative in their presentation of factual material in constitutional litigation....While I cannot pre-judge the evidence the Court will deem relevant and admissible in a particular case, I urge all counsel in constitutional litigation to offer the Court, as evidence, any material they deem useful to the questions at hand. [emphasis added]11

With this encouragement it might have been expected that some Charter litigation would have degenerated into a battle of the social scientists, like the battles of psychiatrists in criminal cases or social workers in custody cases. But generally a mass of dull paper has been dumped on the Court without controversy and become matter for argument between counsel and been picked over by the judges.

In Thomsen12, Hufsky13 and Ladouceur14 the respective accused drivers argued successfully that their right not to be arbitrarily detained under section 9 of the Charter had been infringed. But the Court accepted in justification several volumes filed by the Crown as evidence of the seriousness of impaired driving and unlicensed and uninsured driving and the need for breathalyser tests and random checks to deal with them. Though these considerations may justify the attacked legislation and go some way beyond judicial notice, the show of bringing an open mind to be persuaded by evidence strains credibility. The Court was making political judgments. On such issues lack of existing opinion is improbable. Judging by the questions asked by Sopinka J. in Ladouceur, the evidence, for the assembly of which the case had been adjourned for a year in the Ontario Court of Appeal, did not itself compel the Court’s conclusion:
Although the statistics are voluminous, there is no evidence as to whether during the relevant period police officers were actually exercising the “roving random stop” power. For example, was the percentage of accidents involving unlicensed drivers realized notwithstanding the fact that police officers were employing this method of enforcement? If it was, presumably it is only since s. 189a(1) was enacted in 1981. What were the percentages before this method was used? How many motorists who were perfectly law-abiding were stopped for every one that was committing some violation? On the other hand, if the police have not been using this method and this case is an isolated incident, what is the evidence that police officers consider that this power is essential to effective enforcement? (C.C.C. 27/8; S.C.R. 1265)

Some other questions might be asked. Did the legislature do wrong in giving police the power being challenged without exhaustive evidence to satisfy Sopinka? Sopinka, in a minority of four, held that the “roving random stops” in question in Ladouceur could not be justified. Was Sopinka asking the questions because of a principled requirement for evidence or because he did not like police having the power and just wanted to strike down this particular bit of legislation? In later cases Sopinka was prepared to be much less demanding of the evidence.

In the cases dealing with Quebec’s language legislation at the end of 198815 the Court accepted material simply attached to the Quebec attorney general’s factum in the Court of Appeal. It ranged
in nature from the general theory of language policy and planning to statistical analysis of the position of the French language in Quebec and Canada. (Ford D.L.R. 626; S.C.R. 777)
Excusing the irregular way in which it had been submitted the Court commented that:
...the parties did not appear to be taken by surprise..., but showed themselves fully prepared to argue the merits of the material.... The material is of the kind that has been invited and considered by the Court in other cases involving the application of s. 1 of the Charter, without having been subjected to the evidentiary testing of the adversary process. It is material that is treated similarly to treatises and articles in other judicial contexts. (Ford D.L.R. 626; S.C.R. 776/7)

The printer Singer, in Devine, attacked some of the material as biased or misleading and submitted other statistical analysis and the Court said “due regard” should be given to this. But what is remarkable in the cases is the readiness of the Court to accept the whole of Quebec’s linguistic national policy “without [its] having been subjected to the evidentiary testing of the adversary process”. Because the Court struck down the outright ban on English signs and Quebec reacted strongly and invoked the notwithstanding clause the public saw the Court as condemning Quebec linguistic nationalism. In fact it endorsed it, only balking at the outright ban on languages other than French on signs, holding that it failed to meet the proportionality test in Oakes.

The French language decisions illustrate the artificiality and evasiveness of the Charter evidence practice. In accepting Quebec’s language policy the Court had not only to accept the statistics it submitted “without [their] having been subjected to the evidentiary testing of the adversary process”. It had also to accept Quebec’s “general theory of language policy and planning” and the value placed on Quebec’s language and culture as against other affected values. By discussing the issues in terms of “materials” or “evidence” the Court obscures the fact that it must and does make political judgments beyond anything determined by the general language of the Charter itself.

***

In the Irwin Toy16 case, a toy manufacturer argued that Quebec’s ban on advertising directed to children was a denial of freedom of expression. Having already forced itself to accept that argument by its inclusion of “commercial expression” within freedom of expression in Ford and Devine, the Court was ready to consider social science evidence justifying the ban. Irwin Toy argued that studies done after the legislation was enacted could not be relied on to justify it. It seemed to contend that legislation should be reviewed like an administrative decision, only what was before the legislature when it enacted the legislation, an extended legislative history, being considered. The Court would only go so far as to look for some justifiable intention at the time of the enactment. While it wondered:
why the Attorney-General did not tender in evidence certain reports and studies that were used by the government both in enacting the legislation and subsequently in reviewing its operation. (D.L.R. 619; S.C.R. 985)
it was content “to assess the constitutionality of the legislation on the basis of the material that was filed.” including “studies post-dating the enactment of the [legislation] and upon which the government did not rely in adopting [it].”
In showing that the legislation pursues a pressing and substantial objective, it is not open to the government to assert post facto a purpose which did not animate the legislation in the first place (see R. v. Big M Drug Mart [(D.L.R. 352/3; S.C.R. 335)]:17  However, in proving that the original objective remains pressing and substantial, the government surely can and should draw upon the best evidence currently available. The same is true as regards proof that the measure is proportional to its objective: see R. v. Edwards Books & Art Ltd. (1986), 35 D.L.R. (4th) 1 at p. 41...[1986] 2 S.C.R. 713 [ at p. 769]. It is equally possible that a purpose which was not demonstrably pressing and substantial at the time of the legislative enactment becomes demonstrably pressing and substantial with the passing of time and the changing of circumstances. (D.L.R. 618; S.C.R. 984)

The result seems to be that the legislation must have had an objective when it was passed that can be justified when the matter comes before the Court, but that it does not matter whether that objective could be justified when the legislation was passed. Legislation may come to be justified some time after it is passed as its objective becomes pressing and substantial or the proportion between the objective and the measure shifts. It should also follow that legislation once justifiable may in time cease to be18.

The implication of these principles is that the Court may be asked to revisit any issue on the grounds that circumstances have changed since it last upheld or struck down any particular legislation. Indeed, it should not be necessary to argue that circumstances have changed. As the Court claims to decide the issues on evidence, it should be enough to say that there is evidence the that Court has not previously considered. While Irwin Toy has had its chance to rebut the Crown’s evidence any other toy maker, or children’s advocate, who wants to challenge the Quebec legislation should be free to do so.

On this analysis the claim to decide section 1 issues on evidence must largely preclude any final settlement of constitutional jurisprudence as the Court pushes its way through the first wave of Charter cases. Cases decided on evidence are generally only binding between the immediate parties.

***

By 1989 the Court’s appetite for evidence in Charter cases seemed to have become an addiction. In MacKay v. Manitoba19 MacKay challenged provisions of the Manitoba Election Finances Act for the subsidisation of candidates elections expenses. He contended that the use of tax monies, to which he was obliged to contribute, to support candidates with whose opinions he disagreed and the 10% of votes requirement for the subsidy as a barrier to small or new parties infringed his freedom of expression. The case was apparently pursued with more enthusiasm than thought and no facts were put before the Court beyond the legislation itself. The government of Manitoba was content that it should proceed on that basis and the judge at first instance and the Manitoba Court of Appeal held that there was no infringement of freedom of speech.

Before the Supreme Court of Canada the attorneys general of Canada and Ontario intervened and took the position that there was no factual basis for dealing with the appeal. Cory J. agreed and delivered a homily on the need for evidence in Charter cases:
In light of the importance and impact that these decisions may have in the future, the courts have every right to expect and indeed to insist upon the careful preparation and presentation of a factual basis in most Charter cases. The relevant facts put forward may cover a wide spectrum dealing with scientific, social, economic and political aspects. Often expert opinion as to the future impact of the impugned legislation and the result of the possible decisions pertaining to it may be of great assistance to the courts.
Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. (D.L.R. 388; S.C.R. 361)
For a Court that dismissed Operation Dismantle on the basis that its allegations about international politics could simply never be proved the readiness to be persuaded of the future impact of impugned legislation and the result of possible decisions is remarkable. Also remarkable is the contrast between the demand for the careful preparation and presentation of a mass of factual material and wide eyed acceptance of any social science and expert opinion without “the evidentiary testing of the adversarial process”.

MacKay’s counsel argued that Neo-Nazis might get 10% of the vote and be entitled to public funding. Cory would have none of this without evidence. But it is not clear what help evidence would be. Did Cory mean that only when a Neo-Nazi actually had 10% of the vote and was about to receive public funds would freedom of expression be in danger? Or would some specific probability of a Neo-Nazi getting 10% of the vote testified to by some dubious political scientist have decided the case?

MacKay’s case was simple enough. Even Cory dealt with large part of it as presented:
    The appellants also argued an issue that does not require a factual foundation. It was said
that the statutory funding of candidates could, whenever a losing candidate or candidates received 10% of the vote, force a taxpayer to support a candidate whose views are fundamentally opposed to that of the taxpayer. This enforced support of a contrary view was said to infringe the taxpayer’s right to freedom of expression. I cannot accept that contention. The Act does not prohibit a taxpayer or anyone else from holding or expressing any position or their belief in any position. Rather, the Act seems to foster and encourage the dissemination and expression of a wide range of views and positions. In this way it enhances public knowledge of diverse views and facilitates public discussion of those views. (D.L.R. 392; S.C.R. 366/7)
But by 1989 the Court had become so used to buffering its decisions in masses of evidence that it would not fully deal with MacKay .

***

In 1990 and 1991 the Court became more and more confident and ambitious in dealing with political issues, upholding mandatory retirement provisions in universities20 and hospitals21, but striking down a provisions of the Unemployment Insurance Act that restricted benefits for people over 6522, upholding hate propaganda bans in the Canadian Human Rights Act23, but striking down limits on political activity by public servants24. In all of these cases quantities of evidence were before the Court, but it is hard to tell from its reasons how much an of it was relied on.

Merv Lavigne’s unsuccessful attempt to have the requirement that he pay dues to the Ontario Public Service Employees Union in order to keep his job teaching at a community college25 demonstrated how far politics cloaked in evidence could go. Lavigne objected that his dues were being used to support the New Democratic Party, disarmament campaigns and other causes. None of the judges thought Lavigne’s right to freedom of expression had been infringed by his being forced to contribute funds to support causes he disagreed with. Wilson J. relied on MacKay . Only three of the judges thought Lavigne’s right to freedom of association had been infringed. But all of the judges held that whatever rights or freedoms might have been infringed, it could be justified under section 1. LaForest J., who had held that Lavigne’s freedom of association was infringed, nevertheless insisted that he could not even be allowed an opt out for dues not spent strictly on collective bargaining, having evidently been persuaded by the evidence of the following:
...there is evidence to support the view that the cause of unionism has been advanced by the NDP. The respondents referred to the role that the party played in the establishment of medicare, pensions, and unemployment insurance, and of what unions would have had to give up in the way of demands in other areas in order to get medical coverage from employers, private unemployment insurance coverage, and so on. In the light of the foregoing, it is inconceivable that support of the NDP could be considered irrelevant to the union’s obligation to represent those who pay dues to it. But the important point is that if individuals can “opt out” of supporting the NDP, the unions will have much fewer dollars to support it. (D.L.R. 638; S.C.R. 337)

It was never in the cards that the Supreme Court of Canada would take on the unions over the use of compulsory dues for political purposes, something that people with more political nous than the Citizens Coalition, which backed Lavigne’s case, would have known. This was all the more so after the Court had repeatedly held in 1987 that freedom of association did not include a right to strike despite alarming dissents by Dickson and Wilson. But the readiness to find political facts on which to base its decision shows a Court acknowledging no bounds to its political competence.

***

In more recent cases there have been comments that might be read as indicating that the Court had developed a more modest conception of its competence and might be ready to defer slightly to the legislatures. They might even be read as saying that the Court would be satisfied with a “reasonable basis” for impugned legislation. In Dickason26, yet another lengthy and inconclusive treatment of the issue of mandatory retirement, Sopinka J. (dissenting) says:
The first question in this appeal is the meaning to be ascribed to the phrase “reasonable and justifiable”. I agree with the board of inquiry, the courts below and my colleagues that the jurisprudence developed with respect to s. 1 of the Charter is a useful guide in applying s 11.1 of the I.R.P.A. There is also substantial agreement that in determining whether the proportionality factor has been met, the Court should not defer to the decision of an employer in the same way as in the case of a governmental actor. The rationale for this approach in the latter case is that in dealing with governmental actors, it is often difficult, if not impossible, to prove in the ordinary way whether a particular measure will in fact achieve its objective. Accordingly, if Parliament...had a reasonable basis for concluding that the measure would achieve its objective, that is ordinarily a basis for concluding that there is a rational connection between the measure and the governmental objective. Accordingly, although the government could not prove that advertising toys on television had a manipulative effect on children, nor that hate propaganda actually promoted hatred against an identifiable group, nor that pornography caused harm to women, the fact that there was sufficient evidence to provide a reasonable basis for the legislature to adopt the impugned legislation in aid of its objective was sufficient to save it. (D.L.R. 482/3; S.C.R. 1195/6)
There is no reason to see this as indicating that the Court will not, as it has readily for ten years, put itself in the place of the legislature. The point in Irwin where the Court would not second guess the legislature was the age limit of 13 for ban on advertising. It was following Edwards27, a Sunday shopping case, in which Chief Justice Dickson accepted the exception for stores with seven employees or less saying:
...I do not believe that there is any magic in the number seven as distinct from, say, 5, 10, or 15 employees as a cut-off point for eligibility for the exemption. In balancing the interests of retail employees to a holiday in common with their family and friends against the s. 2(a) interests of those affected the legislature engaged in the process envisaged by s. 1 of the Charter. A “reasonable limit” is one which, having regard to the principles enunciated in Oakes, was reasonable for the legislature to impose. The courts are not called upon to substitute judicial opinions for legislative ones as to the place at which to draw the line. (D.L.R. 51; S.C.R. 781/2)

Clearly in these cases the Court had no different idea of its own on where to draw the lines and might as likely as not have done so at 13 years and seven employees. It was not so much deferring to the legislatures as condescending to them, leaving them the details to work out. Contrary to the implication of Sopinka’s comments in Dickason, the Court seemed satisfied in Irwin that advertising toys on television did have a manipulative effect in children. It was only unsure at what age this ceased to be a pressing and substantial concern.

In Keegstra28 the Alberta school teacher was charged with wilfully promoting hatred against an identifiable group under subsection 319(2) of the Criminal Code and argued that the provision infringed his freedom of expression and, in putting the onus on him to prove truth, his right to be presumed innocent. There was a real difference of opinion between the majority and the minority in the Court over whether the hate propaganda provisions of the criminal code would be effective to combat racial hatred, an objective all agreed was pressing and substantial. The minority was persuaded by the argument that the prosecution of hate propagandists can give their views free publicity and encourage a public suspicion that there may be something to what they say because it is suppressed. Though a newspaper report of Ernst Zundel’s relishing his Court battle was referred to, this does not appear to be an argument for which evidence was considered necessary. The minority was also impressed with the argument that the use of an anti-hate law in pre-Hitler Germany did no good. “Historical evidence” was relied on for this argument. But Chief Justice Dickson, writing for the majority, simply brushed aside this argument, most pertinently observing that post-war Germany had enacted new anti-hate legislation. Typically, Keegstra is a rambling political discussion given an air of detachment by the Oakes jargon of “minimal impairment” etc. and the citation of many authors putatively learned in the law and other subjects. It is clear, however, that in the end the Court is deciding whether it likes the legislation, without any deference to the legislature. Contrary to Sopinka’s claim in Dickason that the case did not depend on the government proving “that hate propaganda actually promoted hatred against an identifiable group” Dickson held:
...it would be difficult to deny that the suppression of hate propaganda reduces the harm such expression does to individuals who belong to identifiable groups and to relations between various cultural and religious groups in Canadian society. (C.C.C. 52; S.C.R.  767)

Keegstra contained a statement by Dickson of a common recent theme of flexibility in the use of the Oakes criteria:
The analytical framework of Oakes has been continually reaffirmed by this Court, yet it is dangerously misleading to conceive of s. 1 as a rigid and technical provision, offering nothing more than a last chance for the state to justify incursions into the realm of fundamental rights. From a crudely practical standpoint, Charter litigants sometimes may perceive s. 1 in this manner, but in the body our our nation’s constitutional law it plays and immeasurably richer role, one of great magnitude and sophistication. (C.C.C. 28; S.C.R. 735)
This typically vain and self-serving comment on the Court’s chief source of power cannot be read as indicating a readiness to defer to the legislatures. Rather it is an announcement of the Court’s refusal to be bound by the straight jacket it might have fashioned for itself in Oakes. A rigid application of Oakes might have obliged the Court to strike down legislation it liked when the evidence it called for was not forthcoming.

In Butler29, in which a Winnipeg adult video store owner challenged the obscenity provisions of the Criminal Code, Sopinka J. did find that the government could not prove that pornography caused harm to women. He referred to the conflicting conclusions of reports in Canada and the United States. Notwithstanding, he was prepared to uphold freshly interpreted obscenity legislation on the basis of the possibility of harm. But again there is no basis for the suggestion, encouraged by his own comment in Dickason, that he was deferring to parliament. Clearly he thought that the evidence of the possibility of harm was enough and that the obscenity law as he reinterpreted it was worth having to guard against the possibility of harm and he would not have deferred to parliament if he had not thought so. If he had taken the trouble to follow Oakes closely enough to speak of standard of proof, perhaps he would have been prepared to find that, on the balance of probability, pornography does cause harm.

The Supreme Court of Canada’s call for and acceptance of a mass of doubtful political evidence and its casual use of it has simply illustrated the incapacity of any Court satisfactorily to exercise the power that the Court so complacently holds. A proper use of evidence would limit its quantity and limit its use to showing that the legislature was reasonably addressing a problem and not simply contemptuous of rights and freedoms. It would see the Court expressly relying on evidence in its reasons or expressly rejecting it as unhelpful and unwanted. It would subsume evidence within an extended legislative history and allow the Court to speak once on the validity of legislation rather than leaving it open for fresh evidence or changed circumstances. Most importantly it would require the Court expressly to limit its own absolute power.

JOHN T. PEPALL

OCTOBER 22, 1994

1 P. W. Hogg, “Proof of Facts in Constitutional Cases”, 26 U.T.L.J. 386 (1976)
2 Muller v. State of Oregon (1908), 208 U.S. 412
3 K. C. Davis, “An Approach to the Problems of Evidence in the Administrative Process” (1942) 55 Harvard Law Review 364
4 Carl Baar, “Criminal Court Delay and the Charter: The Use and Misuse of Social Facts in Judicial Policy Making”, (1993) 72 C. B. R. 305 is an interesting discussion of the use and abuse of evidence in the Askov  fiasco, although biased by Baar’s interest as a part-time researcher in the field of Court delays and the source of much of the evidence.
5 Law Society of Upper Canada v. Skapinker (1984), 9 D.L.R. (4th) 161, [1984] 1 S.C.R. 357
6 Re Singh and Minister of Employment & Immigration (1985), 17 D.L.R. (4th) 422, [1985] 1 S.C.R. 177
7 R. v. Oakes (1986) 24 C.C.C. (3d) 321, 26 D.L.R. (4th) 200, [1986] 1 S.C.R. 103
8 Even more doubtful is the logic of appeals to international conventions [see Keegstra and Butler footnotes 28 and 29 infra ], but as these may be considered part of the law of Canada they may be left out of a consideration of the role of evidence.
9 Operation Dismantle v. The Queen (1985), 18 D.L.R. (4th) 481, [1985] 1 S.C.R. 441
10 Uncharacteristically Wilson J. seemed ready to accept a presumptive limit on the Court’s power to review “governmental action which concerns the relations of the state with other states...” (D.L.R. 490; S.C.R. 518)
11 Quoted by Brian G. Morgan in “Proof of Facts in Constitutional Litigation”, notes for an address at the University of Toronto Faculty of Law Constitutional Litigation Programme on February 26, 1986. The papers were revised and published as Robert J. Sharpe (ed.) Charter Litigation (Toronto, 1987). Morgan drops the quotation from Dickson but Katherine Swinton cites it in “What do the Courts Want from the Social Sciences”. Swinton and Morgan’s chapters and John Hagan’s “Can Social Science Save Us? The Problems and Prospects of Social Science Evidence in Constitutional Litigation” are a good representation of the state of knowledge and speculation in 1986. For the practitioner no more is known now.
12 R. v. Thomsen (1988), 40 C.C.C. (3d) 411, [1988] 1 S.C.R. 640
13 R. v. Hufsky (1988), 40 C.C.C. (3d) 398, [1988] 1 S.C.R. 621
14 R. v. Ladouceur (1988), 56 C.C.C. (3d) 22, [1990] 1 S.C.R. 1257
15 Ford v. Quebec (Attorney-General) (1988), 54 D.L.R. (4th) 577, [1988] 2 S.C.R. 712 and Devine v. Quebec (Attorney-General) (1988), 54 D.L.R. (4th) 641, [1988] 2 S.C.R. 790
16 Irwin Toy Ltd. v. Quebec (Attorney-General) (1989), D.L.R. (4th) 577, [1989] 1 S.C.R. 927
17 This is not exactly what Big M  (1985), 16 D.L.R. (4th) 321, [1985] 1 S.C.R. 295 says. There Ottawa only had legislative jurisdiction to pass the Lord’s Day Act if it was criminal law enforcing a religious observance. If it was that, according to the Court, it offended the religious freedom provision in paragraph 2(a) of the Charter. If the Lord’s Day Act only established a secular day of rest, the basis on which Ottawa tried to justify it, it was not within Ottawa’s legislative jurisdiction.
18 In Butler footnote 29 infra and R. v. Zundel  (1992) 95 D.L.R. (4th) 202, [1992] 2 S.C.R. 357 added confusion and argued with itself over whether there could be a shift in emphasis giving new constitutional life to legislation without the shift in purpose rejected in Big M. A shift in emphasis allowed obscenity legislation for the protection of women in Butler, but the argument that section 181 of the Criminal Code could now be considered anti-hate legislation was rejected.
19 (1989), 61 D.L.R. (4th) 385, [1989] 2 S.C.R. 357
20 McKinney v. University of Guelph (1990), 76 D.L.R. (4th) 545, [1990] 3 S.C.R. 292 and Harrison v. University of British Columbia (1990), 77 D.L.R. (4th) 55, [1990] 3 S.C.R.451
21 Stoffman v. Vancouver General Hospital (1990) 76 D.L.R. (4th) 700, [1990] 3 S.C.R. 483
22 Tétrault-Gadoury v. Canada( Employment & Immigration Commission) (19910 (4th) 81 D.L.R. 358, [1991] 2 S.C.R. 22
23 Canada (Canadian Human Rights Commission) v. Taylor (1990), 75 D.L.R. (4th) 577, [1990 3 S.C.R. 892
24 Osborne v. Canada (Treasury Board) (1991) 82 D.L.R. (4th) 321, [1991] 3 S.C.R. 69
25 Lavigne v. Ontario Public Service Employees Union (1991), 81 D.L.R. (4th) 545, [1991] 3 S.C.R. 211
26 Dickason v. University of Alberta  (1992), 95 D.L.R. (4th) 439, [1992] 2 S.C.R. 1103. Dickason is not a Charter case, but the Court proceeded on the basis that the “reasonable and justifiable” defence provided for in the Alberta Individual’s Rights Protection Act was equivalent to section 1 of the Charter and embarked on an Oakes analysis.
27 R. v. Edwards Books and Art Ltd. (1986), 35 D.L.R. (4th) 1, [1986] 2 S.C.R. 713
28 R. v. Keegstra (1990) 61 C.C.C. (3d) 1, [1990] 3 S.C.R. 697
29 R. V. Butler (1992) 89 D.L.R. (4th) 449, [1992] 1 S.C.R. 452