by Dr. Chris Shaw

It seems fitting with the launch of The Common Sense Canadian that we ponder Tom Paine and the Current State of Canadian Civil Liberties. What he man who used the term “Common Sense” as the title of his revolutionary pamphlet on freedom and revolution might make out of the current state of Canadian “civil rights”.

As problematic as it can be to reach back 200 years to interrogate the long departed, Paine’s writings offer some clues how he would answer. Paine would be utterly disgusted at the travesty of faux civil liberties we so blithely assume shield us all and would be shocked at how casually our elected officials to withhold information and misuse our legislative institutions. Sadly, he’d hardly be surprised by either.
Paine was not a fan of governments in general and bitterly opposed in particular to monarchy. In Paine’s view, governments were innately prone to abuse power.

“Some writers have so confounded society with government, as to leave little or no distinction between them; whereas they are not only different, but have different origins. Society is produced by our wants, and government by wickedness; the former promotes our happiness positively by uniting our affections, the latter negatively by restraining our vices. The one encourages intercourse, the other creates distinctions. The first is a patron, the last a punisher. Society in every state is a blessing, but government even in its best state is but a necessary evil; in its worst state an intolerable one; for when we suffer, or are exposed to the same miseries by a government, which we might expect in a country without government, our calamity is heightened by reflecting that we furnish the means by which we suffer. Government, like dress, is the badge of lost innocence; the palaces of kings are built on the ruins of the bowers of paradise.” [italics his]

Paine’s later The Rights of Man was written in defense of the French Revolution. Like Thomas Jefferson in the American Declaration of Independence, Paine would lay stress on natural rights as “inalienable”, essentially a gift from a higher power to all humans derived solely from the very fact of humanness. Following on the Enlightenment concept of “natural law”, natural rights did not depend on the validation of any government or social structure, they simply existed. Governments could – and often would – try to suppress natural rights, but could neither create nor extinguish them.

In contrast, civil and political rights were those bestowed by the state and designed to protect the individual from excesses of power and to enable people to exercise some level of political control. Civil rights are those that guarantee the safety of the individual and protect against discrimination. Political rights the freedoms we often take for granted: assembly, speech, religion, the press, suffrage, due process in law, etc.

Civil and political rights –lumped together as “legal rights”- are rarely given voluntarily by the state, but usually have to be fought. The fight always comes with a significant price tag, since freedom is rarely free. The fight for legal rights can be extremely violent as the American and other revolutions show. In less extreme cases, legal rights can arise relatively peaceful: women’s suffrage, for example.

Paine, viewing 2010 Canada through the prism of history would see what? He would have no doubts that Canadians were functionally bereft of civil liberties in all but name – mirage like, but insubstantial. At the federal level, Paine would note the arbitrary nature of a minority ruling party more than willing to dismiss Parliament at whim. He would find in the Charter of Rights and Freedoms the gaping libertarian hole of Section 33, the so-called “Notwithstanding” Clause. Essentially a political compromise to of the most callous order, the clause allows the federal and provincial governments to opt out of pretty much any of the civil rights provisions of the Charter that they don’t like. Paine would wonder at the ingenuity of politicians who could so casually create a Charter of Rights and include within the same document the means to deny its very provisions.

Paine would watch with dismay the lack of transparency by the government. The clear parallels to his own day would be starkly revealed in the way it deliberately ignores the will of Parliament by denying basic information on the handling of Afghan prisoners.

Paine would have watched agents of the federal government in the guise of the 2010 Integrated Security Unit (ISU) conduct round the clock surveillance of Olympic political dissidents who had committed no crime apart from holding contrary views and harassing and intimidating individuals while tracking down their friends, families and neighbors to probe for incriminating information in the absence of the slightest evidence that such information even existed. Paine would have appreciated the irony of three levels of government applauding ISU for providing a “safe and secure Olympic Games” by trampling the Charter thoroughly underfoot.

Here, to British Columbia, the self-touted “best place on Earth”, Paine could hardly have failed to see the same arrogant misuse of power: Legislation passed at provincial and municipal levels that sought to curtail freedom of speech and assembly on behalf commercial agreements with a private entity called the International Olympic Committee. The City of Vancouver’s and BC’s signage laws made fundamental compromises to civil liberties while trying to pretend that it was all fine since it was only “temporary”. The Assistance to Shelter Act would have caught Paine’s notice with its egregious provisions that made individuals doing no harm to themselves or anyone else subject to removal on the whim of police officers.

Paine would have watched the cavalier destruction of the wild salmon fishery and the expansion of private power projects by a government with no respect whatsoever for the concerns of the citizenry. Paine surely would have wondered how an apparently simple conflict of interest case such as the Railgate scandal could still be shrouded in secrecy even years after the initial disclosure.

In Common Sense, Paine enumerated many of the abuses that had led Americans to rebel: arbitrary misuse of power, abrogation of “English” common law civil rights of the day, violence and harassment directed against its own citizens, and, in the end, the lack of any functional means for redress leaving only surrender. This constellation of abuses left no recourse besides rebellion.

For Paine, an illusion of rights in the absence of their reality was more obscene than an honest denial of the same could ever be. In our own day, despotic regimes around the world, unlike Canada, make no pretense to honouring human rights. Despicable, perhaps, but at least not bearing the sin of hypocrisy.

Paine’s conclusions for Canadians might have come to him in a burst of déjà vu: Your governments have actually become your enemies and serve interests not your own. You would be better off without them. Common sense dictates that you take action to reform or remove such governments; how you do so is up to you.

What Paine would not know how to address would be the question about how we create necessary reforms and generate truly representative government when so much of the public is totally apathetic and/or has been brainwashed by the mainstream media and governments themselves on the mantra of “peace, order and good government”?

This last remains the challenge for our own day.

Dr. Christopher A. Shaw was one of the most outspoken opponents of Vancouver’s 2010 Winter Olympics and wrote a book chronicling Vancouver’s Games, Five Ring Circus.