In the late 1960s, political scientist Gad Horowitz commented that “in North America, Canada is unique” (Horowitz, 1968). In stark contrast to the United States, Canada has a viable social democratic party and is presumed to possess a culture of liberality and acceptance (distinguishable from mere tolerance). But the reality is that the United States is “unique”, for its relatively politically backwardness amongst economically developed countries. Thus, the social progressiveness Canadians predicate their identity upon is notable only when compared to the United States. In a European or Australian context, Canada’s legislative bodies are comparatively lackluster, reactive and tenuous, most visibly in the arena of minority rights.
Canada’s historical and contemporary records speak to this reality, most nominally in the country’s navigation of the thorny issues of abortion and homosexuality. In the first instance, Dr. Henry Morgentaler’s success in striking down Canada’s abortion laws relied upon significant personal initiative and the utilization of the Charter of Rights and Freedoms, a relatively new human rights tool. Indeed, the 1969 amendment to Canada’s abortion law, which he challenged, was one of the most backward in the industrialized world (Howe and Russell, 2001). The Supreme Court lacked the judicial capacity to repeal the legislation but in 1983, Morgentaler was able to wield the Charter as a weapon against the government for its violation of a woman’s right to “security of person” under s.7 (Morgentaler, 1998).
The key sentiment there is against the government. The Morgentaler case pitted institution against institution, symbolizing the venture of the judiciary (a significantly non-representative body) into a controversial ethical debate that legislators regarded as a political minefield and were loathe to become involved in, despite the lobbying efforts of Morgentaler and partner women’s groups (Howe and Russell, 2001). If said legislators are intended to represent the Canadian populace and thereby Canada itself, what does their complacency, their inaction say about Canadian attitudes to social change?
Moreover, all the Supreme Court’s decision ultimately did was invalidate provisions of the law that forced a woman to prove her life was endangered before permitting her an abortion (Manfredi, 2003). The legislature then had an opportunity to introduce measures that rectified oversights – such as the failure to consider cases of rape or incest – but preserve restrictions (Manfredi, 2003). Parliament’s response? Silence. It was this non-response on the issue after the ruling that rendered abortion effectively legalized in Canada, in opposition to the original intention of the Supreme Court. Abortion’s legalization then reflects not a bold, momentous step for the Charter or for Canadian social conscience on behalf of those deprived of their “essential humanity”. Instead, it was merely an accidental position Canada was cast into because of the paralysis and apathy of its government.
The situation has not improved with time. Provincial governments only incorporated sexual orientation into their human rights codes after Delwin Vriend launched a Charter challenge in the 1990s in Alberta (Vriend, 1998). Subsequently, in 2003, it wasthe Ontario Court of Appeal who ruled in Halpern v. Canada that the common law definition of marriage as between one man and one woman violated Section 15 of the Charter (Kelly, 2006). The president of the advocacy organization EGALE Canadanoted that “This ruling now affirms that our right to equal marriage can no longer be put on hold while we wait for Parliament to act” (Kelly, 2006).
It was that definition that impelled provincial and territorial courts to legalize same-sex marriage, while politicians like Ralph Klein spoke publicly about their intentions to invoke the notwithstanding clause to defend “traditional marriage” andConservative leaders threatened to appeal the courts’ decision (Kelly, 2006). When in 2005, the federal government finally relented and enacted the Civil Marriage Act, which universally legalized same-sex marriage, 90% of the Canadian population already lived in areas where same-sex couples could legally wed (Kelly, 2006).
The message here? Credit for the legalization of same-sex marriage and the illegalization of institutionalized homophobia cannot truly be laid at the feet of forward-thinking Canadian lawmakers, whose role was and continues to be more reactionary than anything else. When social progress is made, it is done so in spite of the Canadian state, not because of it. Two major landmines of social politics – abortion and gay rights – regularly touted as evidence of Canadian liberality speak only to the adversarial nature of a disjointed system, wherein it falls to individuals to pay, in money, time and tears, for change. Indeed, when that change occurs, it is often for narrow legal rationales, rather than any real desire to redress discrimination or cruelty.
Last year, immigration minister Jason Kenney blocked any reference to gay rights in a new study guide for immigrants applying for Canadian citizenship (CBC, 2010). Such a decision forces a difficult question – when our own government chooses not to represent the country as a protector of minority rights overseas, can we truly call Canada a socially liberal democracy?
No comments:
Post a Comment