The Furor Over Our Flag

When ideology trumps sound policy.

Canadians love their flag. Simple. Distinctive. Instantly recognizable.

And we like to be recognized as Canadians because our self-image is that of a peaceful, kind, warm, friendly and intelligent people. It is a self-image that our flag helps communicate to the world. Like I said, we love our flag.

So why would anyone waste even a moment's thought over the hype Prime Minster Harper has recently lavished on our national standard? Well, perhaps its because we know he attaches a carefully concealed agenda to almost everything he does. Put another way, we are sharp enough to see through the bullshit. As one commentator noted, the PM's glorification of the flag is a joke.

Still, this is a joke with purpose. A new mandate protecting our "right" to show the flag in high-rise apartments -- yes, that's the urgent issue at play here (!) -- is part of the Conservatives' strategy to implant a new symbolism and ideology that they hope will bolster their brand as Canada's permanent ruling party.

The returning reader will recall (here & here) my poor opinion of our prime minister's leadership. As has been very well documented, his governing style is combative and partisan, secretive and controlling. And while these traits have won for him the ultimate seat of power in Canada -- though not yet a simple majority of public support -- they are out of step with the traditions of a parliamentary democracy.

In a recent post I commented on Harper's desire to re-brand the country in his own name. In another I reported on Professor Shadia Drury's views on the rise of neoconservatism in Canada, in which she says,

"Neocons...share [Strauss'] faith in the importance of religion, nationalism and war for the health and well-being of the political society...Religion, nationalism and the looming menace of an existential enemy are the key neoconservative ingredients in the war against liberal laxity and weakness.  Moreover, liberal niceties such as the rule of law, insistence on due process, and the limitations on executive power, can be formidable obstacles in the effort to defend society against unpredictable hazards."

The undemocratic political philosophy practiced by Stephen Harper has been a subtext to his leadership for several years. While he may not be overtly Straussian in his strategies, he has surely embraced the philosopher's general tone and direction -- he has shown a strong preoccupation with the military and nationalism, he has forged strong linkages between religion and politics, and he is highly secretive and controlling in policy, delivery and general communication.

This is Stephen Harper's government, in the most literal sense -- a better example of the singular possessive would be difficult to find. There is not a single government action, statement or strategy that is not conceived and stage-managed by our prime minister and his corps of close aids.

The purity of their thought and execution has produced an agenda that is ideologically locked-in, which is, of course, the whole point. The loud and growing opposition to the omnibus crime bill offers only the most recent example. Contrary to the clear evidence from Statistics Canada, the Harper Government will ram through legislation that goes overboard on sentencing, will put thousands more into prisons and will cost the provinces $billions. And all this at a time when crime rates have steadily decreased.

According the Justice Minister Rob Nicholson, Bill C-10 will deter terrorism, increase the accountability of offenders, and better protect Canadians from violent young offenders, among many, many other much needed outcomes. As he said,

"The objective of our criminal law reform agenda over the past few years has been to build a stronger, safer and better Canada."

And who could not want that? Of course, this tough-on-crime persona solves a problem that did not actually exist. It also fulfills a campaign pledge, and therefor portrays the government as active and effective and trustworthy. And it never hurts to hype the danger and heighten the public's fear -- it's a tactic that worked well in America, did it not?

The Harper Government has also demonstrated it's commitment to ideology in the struggle over Vancouver's safe injection drug clinic. The Insite facility was launched in 2003 under special exemption from prosecution to bring seriously ill addicts off the streets, and to help those afflicted deal with the dangers of their addictions. But the government of Stephen Harper does not use the word "afflicted" when referring to addicts -- it prefers the term felon, and withdrew the exemptions that sustained the site's operation.

In a case of gross over-reach, the government put ideology over the rule of law, as it sought to trump healthcare (a jurisdiction of the provinces) with criminal law (a federal jurisdiction). In what is seen as a landmark victory, the Supreme Court of Canada preserved Insite as North America's only legally supervised injection facility. In so doing, the Court has showed itself to be perhaps the only remaining check on this government's power.

University of Law Professor Errol Mendes commented on the ruling,

"It is extraordinary that the court has found that government decision-making was arbitrary and hugely disproportionate. This is probably the first major strike against the Harper majority government using its hard-right ideology to counter evidence-based health and social initiatives when they impact on Charter rights."

As noted by a news post in the Globe and Mail, the Court grounded its decision in the Canadian Charter of Rights and Freedoms and our right to life, liberty and security of the person. As Chief Justice McLachlin said,

"Iniste has saved lives and improved health. And it did those things without increasing the incidence of drug use and crime n the surrounding area. The Vancouver police support Insite."

She also disagreed completely with government's contention that drug addicts choose their own fate, calling drug addiction a grave illness and not a choice, or sign of immorality (the Harper government's own self-serving and ideological position).

While I don't want to flog this point beyond exhaustion, it is important to hear and understand exactly what the Chief Justice said in reaching this unanimous decision,

"On future applications, the Minister must exercise that discretion within the constraints imposed by law and the Charter, aiming to strike the appropriate balance between achieving public health and public safety. In accordance with the Charter, the Minister must consider whether denying an exemption would cause deprivations of life and security of the person that are not in accordance with the principles of fundamental justice [emphasis added]. Where, as here, a supervised injection site will decrease the risk of death and disease, and there is little of no evidence that it will have a negative impact on public safety, the Minister should grant an exemption."

I wish to draw your attention to the wonderful phrase the principles of fundamental justice, as it is so completely absent from the lexicon of this ideologically driven government.

In both the omnibus crime bill C-10 and the Insite case, the Harper Government has shown itself willfully immune to facts. Statistics and empirical evidence have no merit when they run counter to ideology.

And so the faux veneration of our flag -- like Harper's plan to celebrate the War of 1812 -- is just a diversion from the real agenda intended to reshape the very nature of our country.

Update. The Supreme Court's ruling on the Insite injection facility has generated more news. A post in the Globe and Mail points to a brewing confrontation between the judiciary and the Conservative government of Stephen Harper.

The article begins by suggesting that the Court's ruling, based as it is in scientific fact and statistical evidence, gives judges a "new tool for activism". I find it curious that the Globe believes that judicial activism would grow out of the proximity to scientific facts -- while the government would surely take that view as a means of discrediting the Insite decision, it is clear that facts and truth are the very foundation of our legal system, so I say, bring on the activism.

But this is not judicial activism. It is a refreshing application of the principles of fundamental justice against an over-reaching and ideologically driven government.

The article suggests that the Court "elevated scientific evidence over laws found to be arbitrary and grossly disproportionate". Again, I say bring it on. This is an important check against government abuse, and particularly against the abuses of this government.

The Globe article quotes two prominent legal minds who seem to support the decision;

"The Insite ruling is a warning to the government that any of its laws or policies which restrict liberty or threaten lives or health are vulnerable to Charter challenge, if compelling evidence calls into question their effectiveness in achieving their stated goals." Bruce Ryder, law professor at York University.

"When government policy affects liberty and relies on politics to shunt aside real scientific evidence, the court will step in." Clayton Ruby, a prominent Toronto lawyer.

But for the most part, the article hints darkly at the judicial activism the Insite ruling will supposedly unleash, as well as the worry and discomfort it will cause to judges in lower courts.

And its in the last section of the article that the author fully reveals his own negative opinions on the Insite ruling. Repeating the terms "arbitrary" and "grossly disproportionate", and suggesting that the ruling will invoke "future attacks" on laws and government policy, Kirk Makin asks,

"Arbitrary in whose view? And grossly disproportionate to what?"

He then goes on to cite a Charter expert who worries that courts will scrutinize the intent of legislators when they were drafting a law. Makin quotes the expert, who asks,

"Does the law make sense? Does it cause more problems than it solves? Does it create rather than avoid danger? Does it fail dismally to achieve its objectives? Do the costs of enforcement far outweigh the benefits achieved?"

Good questions, all, and worthy of consideration. But the tone of the Globe post by Kirk Makin seems to suggest that truth and scientific evidence should not be allowed to intrude on the government's will, even if it is ideologically driven. For all Makin's fretting, there seems no concern for the fundamental principles of justice that the Supreme Court's Insite ruling has upheld.

Like I said, if this is judicial activism, bring it on!  

By David.

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Your musical accompaniment for the day: "Breezin" from the album of the same name by George Benson. Enjoy.