An Open Letter to TransLink Regarding the “Disappearing Palestine” Ads

Disappearing PalestineDear TransLink:

I am writing to express my wholehearted support for your decision to display the pro-Palestinian transit ads recently unveiled at the Vancouver City Centre Skytrain station and on several buses. The ads offer an important perspective that needs to be heard as part of any informed debate on the Middle East conflict.

My praise may sound a bit strange, since, as you yourselves have noted, “within defined limits TransLink has no legal authority to decline advertising content.” A 2009 Supreme Court decision established that TransLink, as a public body, is bound by the free speech provisions of the Canadian Charter of Rights and Freedoms.

Nevertheless, I insist on applauding you during the minor melee currently underway in the city’s media. Please do not feel deterred or bullied by the individuals and organizations that have criticized the ads in recent days — shamelessly conflating legitimate criticism of Israel with anti-Semitism, even going so far as to threaten legal action. I myself am Jewish and do not feel unsafe or offended in the least. Many members of the Palestine Awareness Coalition, the group responsible for the ads, happen to be Jewish as well. And while neither they nor I make any claim to be representative of all Vancouver Jews, to characterize the Jewish community as monolithically mortified by the ads, as strongly implied by some media coverage, is clearly ridiculous.

Ethno-religious affiliations are one thing; politics are another. Most people are perfectly capable of looking beyond the former in coming to opinions on the latter.

Thank you for standing up for the principle of freedom of expression and for facilitating a public discussion that needs to be had.


David Taub Bancroft

Vancouver, BC

Environmental Rights and Canada’s Constitution

Environmental Buttons

Our Conservative government’s recent penchant for gutting several decades’ worth of environmental rules all at once using the stealthy technique of omnibus legislation is no secret. Given this depressing reality, some Canadian environmentalists yearn to ground conservation in something more stable, more permanent, than mere statutory law.

Enter environmental rights.

Environmental lawyer David Boyd, author of The Environmental Rights Revolution and The Right to a Healthy Environment, makes a powerful case for directly and explicitly enshrining environmental rights into national constitutions. He notes that over 140 countries in all parts of the world now have constitutions that feature some form of environmental protection, finds a correlation between these provisions and strong environmental performance, and provides examples of these tools being put to work by regular people and enforced by the courts.

Unfortunately, Canada finds itself on the wrong side of this divide, making no mention of the environment in any of its constitutional documents. Accordingly, and contrary to our self-image, we tend to find ourselves situated near the bottom of OECD rankings on environmental measures. It is for this reason that David Boyd and many other Canadian environmentalists support some kind of green amendment to Canada’s Charter of Rights and Freedoms.

Three possible objections to this approach spring immediately to mind. First, it is often claimed that human beings ought to regard their relationship to the natural world from a perspective of duties, whereas national constitutions more often than not speak the language of rights. Would environmental rights take us in the wrong direction?

I prefer not to get bogged down too much in such symbolic considerations, as it is a well-known truism that every right has a corresponding responsibility. If Canada were to confer upon its citizens a constitutional right to a healthy environment, this would entail enforceable responsibilities to respect this right on the part of individuals, industrial polluters, and all levels of government. But if semantics are a concern, I would certainly not object to a constitutional amendment that characterizes sustainability as both a right and a duty.

Second, not everyone has equal access to the institutions of justice. Could it be that the environmental rights approach would provide remedies only for those who can afford to take the government to court?

The legal system’s inaccessibility is a serious problem for many poor people, but it is a problem that is neither created nor exacerbated by the idea of constitutionally enshrining protection of the environment. Much environmental destruction is so widespread and indiscriminate that virtually everyone suffers (although the poor are without doubt more vulnerable). However, even in those unjust cases where the cries of poor communities go unheard, the solution is not to prevent a potentially useful environmental remedy from coming into being, but to work all the more strenuously to reduce inequality and make the benefits of the legal system more widely available.

The third possible objection is that environmental laws are best left in the hands of democratically elected governments. To allow unelected judges to overturn any aspect of environmental governance put in place by Parliament, according to this argument, is anti-democratic.

This objection is routinely trotted out every time someone disagrees with a court decision, and in fact was commonly heard during the original debate over the adoption of the Charter of Rights and Freedoms. But if it is granted that the courts ought to be able to overrule the government on at least some occasions — and the majority of Canadians who support the Charter’s existence must believe this — then we should ask ourselves what makes it acceptable.

For me, it comes down to the issue of majority rule. In certain situations, even in a democracy, majority rule is not the appropriate way to settle things. Take individual and minority rights, for instance. Freedom of speech, freedom of religion, marriage equality, and Aboriginal rights are a few of the many areas widely considered to be none of the majority’s business, and hence offered explicit or implicit constitutional protection. I believe that the well-being of the natural world is entitled to the same protection, because not all relevant stakeholders are included in a democratic majority. Particularly glaring in their absence from the electorate are future generations and other species — entities who, it might be argued, have even more to lose from environmental destruction than the current generation of human voters.

Yes, for practical reasons it is necessary to secure the consent of the majority and its representatives in dealing with many environmental questions, but that should not give elected governments unlimited authority. For future generations and other species, as well as for ourselves, we must to some extent keep the long-term health of the natural world out of reach from the frivolous, short-term machinations of this or that government, to bestow upon the environment the same aura of almost inviolate importance as constitutionally protected civil liberties.

If only such environmental rights existed already, whining about foreign-backed radicals might be the extent of a government’s attack on the natural world, rather than a mere opening salvo.

Assisted Suicide, Discrimination, and the Constitution

The Death of Socrates

Suicide is a difficult case. I do not believe that people, under most circumstances, have a moral right to unilaterally kill themselves. An individual’s life is not the sole property of the individual; it belongs also to her or his loved ones, to all who are deeply affected by such an irreversible decision.

But does that mean that suicide ought to be illegal? The state, with one-size-fits-all statutes at its disposal, is not well-suited to govern over such a heavily context-dependent arena. To do so would set a disturbing precedent of public involvement in a profoundly personal matter. This debate is largely moot here in Canada where, contrary to what many believe, there is no law preventing a person from taking her or his life. And despite my misgivings, that is probably for the best.

What is prohibited in Canada, curiously, is assisted suicide — or at least, it was.

In a case brought by Gloria Taylor, who suffers from ALS and wants the right to die at a time of her own choosing, the Supreme Court of British Columbia yesterday struck down the federal ban on physician-assisted suicide. Justice Lynn Smith gave Parliament one year to draft new legislation on the grounds that the current ban violates the Charter of Rights and Freedoms, not surprisingly citing the Section 7 guarantee of the right to life and liberty.

Interestingly, Smith also cites the equality rights of Section 15. The issue of assisted suicide is relevant not to those able-bodied individuals who are tragically inclined to overreact to temporary setbacks, but to the sick and the physically disabled — those who spend their lives in agony. Often in consultation with their loved ones, people in these conditions may come to the conclusion that there is only one way out — and nobody can rightfully judge them for doing so. Unfortunately, such people are frequently incapable of carrying out their free and informed decisions without a doctor’s help. For this reason, says Smith, to ban assisted suicide is to discriminate against the disabled. Furthermore, it may even perversely encourage those with deteriorating conditions to rush their suicides while they still have the ability.

A person’s death is never something to celebrate, but we should not go to despotic lengths to prevent it from coming about. Under some circumstances, it can be necessary. This does not mean that all or even most suicides are okay. But to make only assisted suicides illegal is, absurdly, to criminalize those suicides which, with the right safeguards in place, are the most morally defensible. Justice Smith has issued a ruling of compassion and respect for individual freedom, and I hope that the higher courts see things the same way on appeal.

Electoral Reform — the Wrong Way

Distributing copies of the Canadian Charter of...

The Quebec-based group l’Association pour la revendication des droits démocratiques is nearing the end of the legal battle it started in 2004.  After early losses in the lower courts, it is taking its case against Quebec’s (and by implication Canada’s) first-past-the-post electoral system to the nation’s Supreme Court, with the backing of Fair Vote Canada and Green leader Elizabeth May.  It will argue, with some justification, that first-past-the-post violates the “democratic rights” and “equality rights” provisions (sections 3 and 15) of Canada’s Charter of Rights and Freedoms.

I am reluctant to admit this — both as a strong supporter of proportional representation and as a Green Party member — but I think this is the wrong approach.  While it is true that there is evidence in some opinion polls of vague support for electoral reform in Canada, every time a concrete question is placed on a referendum ballot, proportional voting systems seem to lose their popularity.  I understand that this is frustrating, but it would be unfair for proportional representation advocates, having failed to convince the public, to turn around and sneak their changes in through the judicial back door.  Societies have a right to any electoral system of their choosing, and at the very least, ours has not yet made up its mind.

In 2003, a small number of Quebec sovereigntists proposed the abandonment of their longstanding call for a referendum on independence, preferring instead to read the election of a Parti Quebecois majority government as a sufficient mandate for secession.  The mainstream of the sovereignty movement swiftly rejected this idea, understanding that the principle of independence by referendum had always been at its heart.  There is something admirable in this recognition that there is a right way to go about achieving change, and a wrong way.

I never thought I’d say this, but electoral reformers could learn a thing or two from Quebec separatists.