Ricardo Duchesne by

Vietnamese refugees, 1979: Canada took 60,000 "boat people" in 18 months

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Immigration Act of 1976

Human Rights Act of 1977

Charter of Rights of 1982

It is unfortunate that many Canadians swallow the populist line even though polls indicate that they generally agree with the court decisions. An examination of the American experience can help us understand this. It has become a dogma of modern American conservatism that judicial activism is nefarious for democracy. In fact, the naming of judges who believe in ''restraint'' has become a Republican mantra. Yet when one seeks to discover what the courts have done to provoke this reaction one finds only two major matters, the integration of Afro-Americans and the facilitation of abortion. This illustrates a remarkable paradox. The American public is ready to prevent future judicial innovations, yet it appears to support the judiciary's past successes. When we consider that no political party could have easily achieved integration or liberalized abortion because this would have offended powerful lobbies, the contradictory nature of the opposition to judicial innovation becomes obvious. No one questions integration and the anti-abortion lobby is clearly a minority but today's politicians have made similar developments in the future highly unlikely.

Ideological-Enlightenment Roots of the Charter

anadian multiculturalism for Pierre Trudeau was about remaking Canada into the first "polyethnic" federal state in human history. Only a Canada without an official culture could be consistently liberal, he argued, for only such a Canada would have ended the domination of one cultural group over the nation's identity. A Canada without a collective culture would be truly liberal in allowing citizens the individual right to choose their own culture. But why would it have been illiberal for Canada to affirm its actual bicultural heritage since the overwhelming majority of its citizens in 1971 were Anglo-Quebecois, and all the institutions and values came from this majority? Because Trudeau, as a member of the immediate post-WWII generation, had inherited the normative climate of his generation . He sincerely believed that Western nations should be based on civic values alone, rather than any form of collective identity prioritizing one cultural group over another. He also believed that Third World peoples were victimized humans in need of human rights and a great source for the making of Canada into a prototype polyethnic nation.In the language of Carl Schmitt, Trudeau endorsed the post-WWII idea that human conflict was a result of racial and cultural divisions. He took it upon himself to be the first Western leader to make a nation, Canada, into a prototype for the harmonious co-existence of multiple cultures without relations of dominance. By making culture a private choice, rather than a collective matter, he thought that Canada would get rid of the friend-enemy distinction, and thus abolish human conflict forever. The key was to decouple Canada from its historic Anglo-Quebecois traditions by populating it with peoples from multiple cultures and races and making cultural identity a private affair.Cultural nationalism, not just ethnic nationalism, was inconsistent with liberalism. To create a multi-racial nation, the borders had to be open to Third World immigration. Only a multi-racial population, not a European population, would allow Canada to stand as a "brilliant prototype" for the future of humanity.Trudeau accentuated the Third World immigration trends that began with the 1962 and 1967 Immigration Regulations. Between 1971 and 1981, 33 percent of immigrants came from Asia, 16 percent from the Caribbean and South America, and 5.5 percent from Africa. Contrast this to the fact that in 1961 only 2 percent of immigrants were from Asia, and 0.6 from "other"-European countries.However, it should be noted that immigration policy in Canada prior to the 1990s was still sensitive to labour-market considerations, with a tap on/tap off approach depending on levels of economic activity in Canada. The spiral had not yet drown out the needs of the native working classes.For this reason, when it comes to absolute numbers, the 1970s recession decade saw low and high years of immigration, with the annual intake of immigrants reduced by about 60 percent from 1974 to 1978 (201,000 to 86,000), rising again in subsequent years, then falling again in the 1980s. The difference in the 1970s was in the ethnic composition of immigrants, and in thepreparation of a future multiracial Canada.The passing of the Immigration Act of 1976 was one of the main legislative measures in the consolidation of Trudeau's multicultural agenda. According to Kelley and Trebilcock, this Act "marked a bold directional shift" (, p. 381). One component that stands out for me is that this Act did not concentrate on who should be restricted from Canada, as previous acts, but instead focused on who should be permitted into multicultural Canada.It created four new classes of immigrants: refugees, families, assisted relatives, and independent immigrants. This was the first time refugees were included as a distinct class and it established Canada’s commitment to human rights to consider as immigrants not only refugees but "persecuted and displaced persons" that may not qualify as refugees under international convention. This Act was also committed to "generous family reunification policies" (Kelley and Trebilcock, p. 381).Distant relatives were no longer obligated to take part in the points system, as long as those sponsoring their relatives demonstrated their ability to provide sustenance for up to 10 years. From this point on, theof immigrants coming to Canada from Third World nations would increase consistently.The Canadian Human Rights Act, passed by Parliament in 1977 , was another measure initiated by the Trudeau government to promote equal opportunity to individuals deemed to be "victims" of discrimination on grounds of race, sexual orientation and beliefs. This Act, together with other legislative measures, increased the responsibility and power of judges and lawyers, and thereby reduced the power of elected representatives in the articulation of the cultural norms of the nation. Human rights imposed from above and formulated by cosmopolitan elites would trump, from now on, the rooted cultural norms of Canadians, if those norms were deemed to be inconsistent with these (elite created) rights.As Hugh Donald Forbes enthusiastically put it, the role of these judges and courts would be "to suppress the negative or discriminatory reactions of the dominant or majority group to the increasing presence of Others" . Accordingly, this Act contained a "hate speech provision" criminalizing the expression of statements categorized as "hateful" toward identifiable groups, the purpose of which was to promote acceptance of mass immigration and diversification among Eurocanadians, by threatening imprisonment against those expressing views against mass immigration.Then came the Canadian Charter of Rights and Freedoms in 1982 , which set out, in essence, to re-define Canadian citizenship, not in terms of historically held beliefs, heritage, and everyday norms of Canadians, but strictly in terms of abstract, universally phrased "fundamental freedoms," "democratic rights," "mobility rights," "legal rights,", "equality rights," and "language rights". This Charter, which was to take priority over every other legislative act in Canada's past, as part of the "supreme law of Canada," understood Canada to be a nation without any collective-national identity. It viewed Canada as a nation populated by individuals whose only identifying mark were rights and values contained in a legal document ensured and interpreted by judges rather than by elected representatives.The standard "conservative" criticism about this Charter is that it decisively broke with the "historic tradition of parliamentary supremacy" embodied in the preamble to the Constitution Act of 1867, in which, to use the words of former Premier of Alberta, Peter Lougheed (1971 to 1985), "the role of the courts was to give effect to the political choices made by the legislators...bound by the idea that Parliament was supreme and the court's role of judicial review was limited."These critics argue that, in spite of the notwithstanding clause (which gives the legislature the power to override rights in the Charter in exceptional circumstances and without affecting the guarantee of some rights and freedoms such as Democratic Rights, Mobility Rights, and Minority Language Educational Rights), the Charter brought a dramatic shift in authority from democratic representatives to judges and lawyers. Today one still hears conservatives complaining about unelected judges afforded "with the means to override the majority views represented by elected parliamentarians."The replies liberals have offered to these conservative criticisms reveal much about the meta-political forces that brought this Charter. The following defence of the Charter by Julius Grey, a well known scholar in constitutional and human rights law, is worth citing Even though he does not use the clearest expressions of admittance, what Grey is saying is that we cannot allow the demos to decide the major questions of a nation, such as whether Canada should cherish its bicultural character, or become a multiracial nation. He is saying that when one examines such legislative measures in America as integration of blacks and whites and facilitation of abortion, one finds that the majority of the public did not support these measures until much later. When he writes that "even though polls indicate that they generally agree with the court decisions," he is referring to polls taken years after the decision, not before, and this is why he calls it a "remarkable paradox".Gray thinks it is great to have courts, judges and legal scholars decide "major matters" for an entire people because they are the ones, apparently, carrying the march of human improvement ahead, the progressive ones, whereas the majority are mentally behind. The demos on their own are backward and cannot be trusted to bring major progressive changes. The elites need to take charge, enact the progressive changes, through manipulation if need be, for once these changes are enacted, the mob will go along with them, as polls later show.As I observed briefly in Part 4 , this reliance on courts to settle "major" political questions began in Canada with the Fair Employment and Fair Accommodation Practices Acts (1951-1954), and, one could add, with John Diefenbaker's 1960 Canadian Bill of Rights, though I agree with Hugh Forbes that this Bill was "largely symbolic," and that it was the Charter that took the decisions concerning the major matters of Canadian society "out of the hands of elected officials [into the hands] of highly trained legal experts appointed by the politicians."Forbes thinks this was a great change to have "highly trained experts" decide the character of Canada rather than the majority of the population, and he is quite open in stating that this had to be done in a "society striving to become genuinely multicultural...a future home for all the world's peoples" (Forbes, "Trudeau as the First Theorist of Canadian Multiculturalism", in Tierney, 2007, p. 37). Canadians, as the polls of the 1960s showed, could not be trusted to bring about Trudeau's "experiment of major proportions".However, these liberal observations don't dig far enough into the metapolitical dynamic behind the imposition of multiculturalism across the West. The norms of human rights, race is a social construct, Third World peoples are benevolent, and ethnic nationalism is illiberal, which spread after WWII, were not norms originated by Canadians out of their traditions, folkways, and natural predispositions. They were norms with intellectual antecedents going back to the Enlightenment, or more precisely, to what has been identified as the "radical Enlightenment movement" that evolved after the 1750s, in the minds of such philosophers as D'Holbach, Helvetius, Condorcet, and Godwin. These thinkers believe that the nature of humans was moulded entirely by the social and moral environment. This nature could therefore be remoulded through changes in the moral and institutional environment. New humans could be created, through a proper education and a proper alteration of the hierarchical and prejudicial institutions of the past. That is, new humans without prejudices and without parochial attachments to their particular locality, country, or race. These new humans would be able to live in harmony with each other away from the wars and religious divisions of the past.Since these humans were not yet born, but only a small elite of intellectuals were enlightened enough to know what it meant to be a new human, this elite decided that it was their role to bring about this new humanity; some used forced, leading to the very violent French and Bolshevik revolutions, but the ones employing gradual steps gained the upper hand after the experience of WWII, laying the groundwork for the Fabian and cultural Marxist strategy of marching gradually and steadily through the institutions, taking them over, and in this way moulding the character and nature of Western peoples. What was new after WWII, and this is why I have emphasized these norms, is that this elite came to the conclusion that White racial identity, European nationalism, and lack of universal human rights, were the remaining stumbling blocs disallowing the creating of a perfected society. It is with this background in mind that we can make sense of what has been going on in Canada and the world since WWII.The Charter is an expression of this radical transformation of Western civilization under the guidance of academics, administrative, legal, political and business elites, all of whom have gradually accepted the idea that the peoples of the West must be remoulded to accept mass immigration and racial diversity through "education" and institutional changes. The demos in the Charter is not the people of Canada, the people who created Canada, the majority of Eurocanadians who never asked for mass immigration. It is humanity and the human rights our elites have ascribed to this humanity, not the national rights and liberties of the Anglo and Quebecois people. As Julius Grey and Hugh Forbes imply, multiculturalism is too important in the creation of a prototype polyethnic state to be left to the will of a particular Anglo and Quebecois majority. The people must learn to be detached from any core-cultural and ethnic identity, they must learn to see Canada as a nation without any cultural identity, a nation based on enlightened values and rights to be defended by the elites for the sake of the ideology of universal human rights, anti-racism, and civic nationalism.