Blog Posts

The Case of Viola Desmond in Nova Scotia – Black History Month

1/17/2021

I must confess that I was not aware of this case that occurred in the province of Nova Scotia in 1947. As the Canadian Museum of Human Rights recounts:

In November 1946, hair salon owner Viola Desmond went to a film at the Roseland Theatre in New Glasgow, Nova Scotia… Unaware that the theatre was segregated, the Black Nova Scotian chose a main‐floor seat. When she refused to move to the balcony, where Black patrons were expected to sit, she was arrested and dragged out of the theatre.. In Canada, there were no official laws enforcing separation of Black and white Canadians. However, communities and businesses such as shops, theatres and restaurants made their own unofficial rules.

Then on “November 8, 1946, Viola Desmond was convicted and fined for defrauding the government for sitting in the wrong place at the Roseland Theatre in New Glasgow, Nova Scotia. Although she offered to pay the difference between the upstairs and downstairs tickets, she was still arrested and detained” as Madison Veinotte writes.

Veinotte goes on to describe how the Supreme Court failed to take up the appeal on weak (in my view) procedural grounds. Nonetheless, Veinotte quotes that Justice Hall (part of the Supreme Court that denied taking up the appeal), “One wonders if the Manager of the Theatre who laid the complaint was so zealous because of a bona fide belief there had been an attempt to defraud the Province of Nova Scotia of the sum of one cent, or was it a surreptitious endeavor to enforce a Jim Crow rule by misuse of a Public Statute.”

While couched as a rhetorical statement, the answer is clearly yes. Enforcing a privatized from of Jim Crow is precisely what the manager of the business was doing. The case illustrates the insidious nature of racism and the limitations of using the court to redress wrongs. While the Supreme Court of Canada, post Charter, has written some landmark rulings and has set a solid foundation for human rights in Canada, this particular ruling of the Court is a blemish on its history in Canada. Further to the foregoing, while this ruling was pre-Constitution and Charter, it is, nonetheless, regrettable that the Court stood on ambiguous procedural grounds in its refusal to consider the appeal. Profiles in courage it is not!

This case underscores, however, precisely why human rights needs to be part of the consciousness of free people acting in a noble manner that upholds the dignity of every person irrespective of race, gender or gender expression, creed, sexual orientation, or class to name just a few.

The strategy must be both the heart, mind, and even body. Legislation and jurisprudence has its place – Martin Luther King famously said that while legislation will not change the heart, it will restrain the heartless – but work also needs to occur in our consciousness and this happens through education.

And part of that education is in Black History month beginning February .

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Stoicism - Ancient Wisdom for Modern Anxieties

1/8/2021

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Much unrest, anxiety and unease in the world today due to the ongoing Covid 19 pandemic, the events in the US capital, and apprehension about the future.

The Stoic philosophers can contribute much to helping modern people navigate turbulent times. Three of its most prominent ancient representatives come from diverse backgrounds. Epicetus (d. 135 CE) was a Greek slave, Marcus Aurelius (d. 180 CE) was a Roman emperor, and Seneca (d. 65 CE) was a Roman politician. Each drew on something very important and one of the most important insights from Marcus Aurelius influenced CBT or at the very least is very similar to it.

Marcus Aurelius said famously that it is not events that disturb people, it is their judgements concerning them. This is a profound quote and one that we will all have to contemplate in our minds. We may resist the truism of this quote in times of great distress, but, actually, this is profoundly accurate. Often events happen outside of our control and in this age of social media we are accustomed to feeling as though we need to somehow be disturbed or disrupted by them. Or even events in our own lives can rock and destabilize us. However, the height of conscious agency is to realize that the thoughts we form about those events and the narratives we create are just that - thoughts and narratives. Consequently, we need to cultivate the habit of being self-critical and not assume that our narratives of the event is useful especially if it disrupts our interior tranquility.

In fact, interior tranquility and freedom is the goal of Stoic philosophy (and I would add psychology). When our inner tranquility is challenged in some way, we need to step back and consider the source of that discord. That discord may be because we are not living in a way that is integrated and we may feel we lack integrity. In this case we need to take steps to become more integrated. Here, the Stoics do support a certain degree of asceticism both in terms of intellectual asceticism, emotional asceticism, and lifestyle asceticism. This kind of detachment is difficult but it is the way to become spiritually free. In this regard, one can see congruence between Stoicism and Buddhism.

But Stoicism also clearly influenced many forms of Christian spirituality and certainly monasticism.

Take time, therefore, to drink deeply and hear the muses of this ancient wisdom.

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Things fall apart; the centre cannot hold

1/6/2021

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William Butler Yeats said it best and feels timely today

Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.

Surely some revelation is at hand;
Surely the Second Coming is at hand.
The Second Coming! Hardly are those words out
When a vast image out of Spiritus Mundi
Troubles my sight: somewhere in sands of the desert
A shape with lion body and the head of a man,
A gaze blank and pitiless as the sun,
Is moving its slow thighs, while all about it
Reel shadows of the indignant desert birds.
The darkness drops again; but now I know
That twenty centuries of stony sleep
Were vexed to nightmare by a rocking cradle,
And what rough beast, its hour come round at last,
Slouches towards Bethlehem to be born?

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Revisiting Adam Smith

1/2/2021

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Many on the left have as reflexive a reaction to Adam Smith and capitalism as many on the right have when they hear Karl Marx or socialism. But communism is as far from what Marx discussed as modern capitalism (sometimes called crony capitalism or globalism) is from Adam Smith.

This article by Dennis Ramussen in the Atlantic, The Problem With Inequality, According to Adam Smith is useful to read as a primer. Ramussen writes:

Smith states, explicitly and repeatedly, that the true measure of a nation’s wealth is not the size of its king’s treasury or the holdings of an affluent few but rather the wages of “the laboring poor.” In a passage that Obama quoted in his speech, Smith declares that it is a matter of simple “equity” that “they who feed, clothe, and lodge the whole body of the people, should have such a share of the produce of their own labor as to be themselves tolerably well fed, clothed, and lodged.”

Immediately this should cue the reader into how far removed the conventional wisdom of economics, as reflected in media reports and politicians’ advocacy, is especially for those on the right. Often, we see the ticker tape of the stock market scrolled across the screen. We hear about the percentages on the TSE or the Dow Jones average or the Nasdaq. But this metric was completely the opposite of what Adam Smith envisaged in his famous work, The Wealth of Nations. Instead, the focus should be on the purchasing and spending power of the lower or middle classes. Although Smith places markets at the centre, this is misleading. What contextualizes the market is morality, values, norms, and social conventions. His Theory of Moral Sentiments preceded The Wealth of Nations where his market theory is expounded. The podcast below makes that point and it is an important one. Economics is an aspect of ethics and morality it is not simply a mathematical model superimposed amorally and abstractly on real groupings of people. Instead, economics grows out of, and is connected to the human community which itself is comprised of norms, values, and ethics.

For Smith, in terms of our collective meaning in life, it would be better for people if their attention was towards more spiritual or other pursuits than in trying to emulate and admire those with wealth (including Hollywood celebrities, Fortune 500 folks, etc.). He wrote his Theory of Moral Sentiments in line with thinking about questions of happiness and what brings happiness. On that point, Ramussen writes, Smith goes so far as to proclaim that the “disposition to admire, and almost to worship, the rich and the powerful, and to despise, or, at least, to neglect persons of poor and mean condition” is “the great and most universal cause of the corruption of our moral sentiments.”

Clearly, economics is an important marker and our politics should have a role in facilitating equity in society. In fact, Smith argued that a society cannot progress if there is a large gap between the haves and have nots. The right and the anarchic left are wrong on seeing the government as necessarily the enemy of the people - although it does need to be limited and circumscribed. History shows that government invariably becomes tyrannical. But that is different than saying it is not a co-created good. In another article, Lauren Brubaker writes that Smith’s solution to the problem of globalism and neoliberal ideology (aka crony capitalism).

(1) by limiting government to a few essential powers (defense, administration of impartial justice, and certain limited public works and institutions), and (2) by educating the public concerning the “folly” of attempts to direct the economy by legislators who, even if well intentioned, inevitably lack sufficient knowledge of local conditions and thus are incompetent to direct the economy to the ends they propose. These approaches offer the best chance to limit crony capitalism, its corruption of natural liberty, and its consequent undermining of benefits of free markets.

This tracks with Sam Vankin’s thesis that the marriage of the state with capitalism has led to the very major problem we are facing today with Neo-liberalism (that is the new aspect of liberalism - the marriage between the state and capitalism). The anarchists are correct that big, regulatory government is the problem as most citizens do not consent to the spending of government that does not, in turn, benefit them and instead benefits the classes that are aligned with the government that massively spends (this includes military manufacturers - military industrial complex -, health care technologies - big Pharma). All of this at the expense of the local economy and people. The right, although claiming to limit government, only means by limiting government - cutting spending to the vulnerable – rarely do they support redistribution in the form of infrastructure or stimulus or guaranteed income.

Brubaker continues, saying that Smith saw a definite role of government.

Smith, (in The Wealth of Nations) outlines his view of the duties of government with admirable clarity:

According to the system of natural liberty, the sovereign has only three duties to attend to; three duties of great importance indeed, but plain and intelligible to common understandings: first the duty of protecting the society from the violence and invasion of other independent societies; secondly, the duty of protecting, as far as possible, every member of the society from the injustice or oppression of every other member of it, or the duty of establishing an exact administration of justice; and, thirdly, the duty of erecting and maintaining certain public works and public institutions.

She continues “It should be clear from this discussion that Smith is not a doctrinaire advocate of laissez-faire if that is understood to mean that “anything goes”—that the government has no responsibility to ensure justice or protect the least advantaged.”

What I take from this is that we need to change our system for sure! And it needs to be built from below! In so doing, we should take the best ideas from different thinkers. I do not agree with all of Smith nor all of Marx but as I write and think through these issues, I hope we can co-construct a community with a newer paradigm that will be more just and fair to more people. Adam Smith might have something to contribute to that conversation.

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Merry Christmas!

12/24/2020

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Supporting the Great Barrington Declaration

12/24/2020

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As the province of Ontario and most of North America are poised to yet again enter into a new phase of lockdowns, it is important to look at alternative policies. The Great Barrington Declaration is such policy. While I am not an immunologist, I did sign the declaration as a concerned citizen. What is the The Great Barrington Declaration. ?

The Great Barrington Declaration

As infectious disease epidemiologists and public health scientists we have grave concerns about the damaging physical and mental health impacts of the prevailing COVID-19 policies, and recommend an approach we call Focused Protection.

Coming from both the left and right, and around the world, we have devoted our careers to protecting people. Current lockdown policies are producing devastating effects on short and long-term public health. The results (to name a few) include lower childhood vaccination rates, worsening cardiovascular disease outcomes, fewer cancer screenings and deteriorating mental health – leading to greater excess mortality in years to come, with the working class and younger members of society carrying the heaviest burden. Keeping students out of school is a grave injustice. ...

The most compassionate approach that balances the risks and benefits of reaching herd immunity, is to allow those who are at minimal risk of death to live their lives normally to build up immunity to the virus through natural infection, while better protecting those who are at highest risk. We call this Focused Protection. ...

Those who are not vulnerable should immediately be allowed to resume life as normal. Simple hygiene measures, such as hand washing and staying home when sick should be practiced by everyone to reduce the herd immunity threshold. Schools and universities should be open for in-person teaching. Extracurricular activities, such as sports, should be resumed. Young low-risk adults should work normally, rather than from home. Restaurants and other businesses should open. Arts, music, sport and other cultural activities should resume. People who are more at risk may participate if they wish, while society as a whole enjoys the protection conferred upon the vulnerable by those who have built up herd immunity.

This strikes me as reasonable, moderate, and appropriate. But don't take my word for it, view the debate and come to your own decisions and if you support it, sign the declaration and inform your local representative of it.

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What is Populism

12/6/2020

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With the rise of Brexit, the yellow vests, Trump, and various other disparate movements around the globe, commentators are once again coming to grips with the phenomenon of populism. Axel Mueller has an interesting paper in Philosophy and Social Criticism that is useful. While I do not agree with his conclusions and distinctions, he does a very methodical and clear job of laying out the contours of what is broadly known as populism. Mueller writes, The term ‘populism’ is agreed among journalists, theoreticians and participants in contemporary political discourse to stand for a kind of platform or politician who engages in confrontational anti-establishment politics aimed at displacing the governing elites in representative liberal constitutional democracies and everything that politically enabled them. In this generic sense, populism is a particular phenomenon, a stance exercised towards liberal democracy and not merely an anomaly – like a transitory anti-system protest vote intended to shake traditional parties up – owed to special circumstances. Instead, it is a sort of permanent possibility in liberal representative democratic politics, like ‘democracy’s shadow’.

This is a good working definition although Mueller, in the rest of the piece, as evidenced by even his footnotes in the section above seems to be arguing from a conclusion instead of to a conclusion (HT Viva Frei). The conclusion he arguing from is that populism is, described by him in Jungian terms, the shadow side of democracies. Actually the trajectory of the argument would lead him to exactly the opposite conclusion. Populism is, in fact, the very genesis and beginning of democracy. Afterall, the rise of the nation-state in Europe was the dawn of the Enlightenment period. Accompanying the Enlightenment was the rise of democratic political institutions. But, it was the force of populism that broke down monarchies, inherited aristocracies, and even eventually displaced Christendom as the operative political paradigm for Western Europe.

I see liberal capitalism and the rise of neo-feudalism and all manner of elitism in banking, media, the military industrial complex and big tech as the shadow side of democracy and not the other way around! Consolidation and centralization of power is the opposite of democracy and popular rule. The movement to de-centralize and diffuse economic and political power has been part and parcel of the populist enterprise since the dawn of Western democracy.

As far as his criticism that populism engenders xenophobia and the tyranny of the majority, such problems were anticipated by Locke which is specifically why he placed strict limitations on the force of government power, ensuring that civil liberties were protected. Shortly after Locke's writings, the UK passed the Bill of Rights in 1689 and Locke's ideas clearly inspired the US Bill of Rights in 1789, Granted, social inequities and racial discrimination existed. Colonialism and slavery were both still practiced. But even in these instances, it was largely populist movements that encouraged abolitionist movements as well as eventually universal suffrage.

In the modern era, government and centralized power has been interpreted as an impediment to human flourishing. Anticipating contemporary theorizing on the force of governmentality, also referred to in the literature as bio-politics, the French anarchist Proudhon wrote that to be governed means to be “noted, registered, enrolled, taxed, stamped, measured, numbered, assessed, licensed, authorized, admonished, forbidden, reformed, corrected, punished .... repressed, fined, despised, harassed, tracked, abused, clubbed, disarmed, choked, imprisoned, judged, condemned, shot, deported, sacrificed, sold, betrayed ... mocked, ridiculed, outraged, dishonoured”. HT Ferretti in Beyond Electoralism: Reflections on anarchy, populism, and the crisis of electoral politics

The political problem that exists is in our world is the problem of governmentally - how we are to be governed. This was precisely the issue Foucault was grappling with before his death and it remains the key problem today. Framing the problem as populism obscures the entire problem - namely how will we be governed? That means asking critical questions of who governs us how are we being governed? The answer to that question, for me, leads to an analytics of what is called "Neo-feudalism". Populism is one tool to deconstruct the feudal edifice - both historically and presently.

There can be no central program or party of populism since, by definition, populism is diverse. Diverse forms emerge in response to unique circumstances facing a particular community. These communities simply require spaces to organize and develop in order to ensure that the constituents can flourish. Growth is bottom up and not top down. But we have learned in our human evolution that discrimination and colonialism are each negative movements - human rights instruments protects the former and populism guards against the latter (colonialism of all types and descriptions).

By ensuring that we have robust international human rights protections, the tyranny of the majority can be avoided through the development of republican forms of convivial democratic communities akin to what the US founders envisioned (although what they envisioned does not even closely resemble the lived experience of most Americans today). The shadow side of the rise of populist democracy is precisely what is broadly referred to and Neo-feudalism and not the other way around.

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Progressives need to come to grips with the rise of neo-feudalism

12/3/2020

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I have written before about the rise of what is termed neo-feudalism and this review by Jodi Dean in the Los Angeles Review of Books does an effective job of outlining the contours of it. I am not so allergic to the concept of capitalism as many progressives. I interpret capitalism as simply an economic theory of how the market functions within a given collective creating a fair exchange between goods and services. It is still worthwhile to read Adam Smith in this regard. Capitalism, however, does not have a governing philosophy and when it fuses with the state, it becomes problematic and morphs into neo-feudalism.

Communism has fallen as a competitor to counter this dynamic. That does not mean some of the economic and political theories associated with Communism are wrong. Historically, though, the most successful political competitor to feudalism was populism. Populism emerged at the end of the dark ages (which was feudal) and with it came the Modern system of democracy and human rights (think John Locke, Thomas Hobbes, and the Dutch republicans). Theories undergirding human rights and popular democratic rule drove populist movements against the ruling feudal/aristocratic/monarchal class. Obviously, there were excesses such as those seen in the French revolution but overall populist movements predicated on democracy thrived.

Now, however, gaining ground as the dominant political paradigm is neo-feudalism and this is precisely where Jodi Dean shines.

She writes that: Over the past decade, “neofeudalism” has emerged to name tendencies associated with extreme inequality, generalized precarity, monopoly power, and changes at the level of the state. Drawing from libertarian economist Tyler Cowen’s emphasis on the permanence of extreme inequality in the global, automated economy, the conservative geographer Joel Kotkin envisions the US future as mass serfdom. A property-less underclass will survive by servicing the needs of high earners as personal assistants, trainers, child-minders, cooks, cleaners, et cetera. The only way to avoid this neofeudal nightmare is by subsidizing and deregulating the high-employment industries that make the American lifestyle of suburban home ownership and the open road possible — construction and real estate; oil, gas, and automobiles; and corporate agribusiness. Unlike the specter of serfdom haunting Friedrich Hayek’s attack on socialism, Kotkin locates the adversary within capitalism. High tech, finance, and globalization are creating “a new social order that in some ways more closely resembles feudal structure — with its often unassailable”

She references that “Albert-László Barabási explained the processes underpinning such a neofeudalism in his analysis of the structure of complex networks, that is, networks characterized by free choice, growth, and preferential attachment. These are networks where people voluntarily make links or choices.”

Neo—feudalism does not emerge by design but is an organic evolutionary movement which inevitably centralizes and turns power into a hierarchy. With the popular developments of the seventeenth century came such concepts as separations of power, limited government, and free people gathering to create their own political orders but with deliberate checks on the growth of those orders. The United States was an experiment in this form of government and it worked for about sixty years in the early nineteenth century before eventually giving way to forces of centralized consolidation. Now with big media, globalized free trade, and high tech, we are seeing neo-feudalism as a form of political organization and with it a particular style of governmentality referred to by Foucault and other as bio-power. The model of governmentality in the feudal system is phrased succinctly by the French anarchist, Proudhon. Proudhon writes that to be governed means to be “noted, registered, enrolled, taxed, stamped, measured, numbered, assessed, licensed, authorized, admonished, forbidden, reformed, corrected, punished .... repressed, fined, despised, harassed, tracked, abused, clubbed, disarmed, choked, imprisoned, judged, condemned, shot, deported, sacrificed, sold, betrayed ... mocked, ridiculed, outraged, dishonoured” H/T: Beyond electoralism: reflections on anarchy, populism, and the crisis of electoral politics

But knee-jerk populism from the right (e.g. Trump) is not the most effective vehicle to thwart this dynamic. A clear, more progressive, less bellicose, and more progressive philosophical development needs to be articulated and that is among my new year’s resolutions. Still, an informed citizenry and commitment to democratic and human rights principles is going to be essential. I mentioned before that in the US the deplorables are going to have to find common cause with the Bernie bros, Yang gang, and yellow vests in carving out a new populism to address the new feudalism.

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Conviviality as new post-political paradigm: Part II

11/29/2020

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This post is a follow up to an earlier post where I referenced Ivan Illich’s conviviality as post-political paradigm. Post-political does not mean that we, as a body politic, abandon politics. It means considering what kinds of politics or governance model should we adopt to replace the existing model. But this does not mean that our entire lives are made of politics. Paradoxically, if we adopt the correct paradigm, the force of politics will have less and less importance in our lives. The tradition of democracy, specifically the idea of consent of the governed as well as the tradition of human rights that supports the enfranchisement of previously excluded groups and people enables this kind of convivial (explained below) life. Ironically, by getting the form of our politics right we can free ourselves from the negative aspects of partisanship which is what currently exists. Talisse (2020) says it well in Democracy: What’s it good for?

The crucial point at present is that by creating a political order in which equals rule themselves by way of representative and accountable government, democracy sets the conditions under which we can pursue other valuable things. In freeing us from the dominating gaze of omni- present politics which characterises authoritarian orders, democracy supplies social conditions in which we can devote our individual and collective lives, at least in part, to projects and ambitions other than politics. In other words, because we are political equals, we can build relationships beyond our political roles and see one another as something in addition to political actors. As equal authors of a shared political order, we can exercise authorship of our nonpolitical lives by cultivating valuable relationships with others – relationships of creativity, support, fidelity, love, and care that have little if anything to do with politics.

In a previous post, I refer to this whole process as conviviality instead of anarchy even though the ideas converge. Anarchy conjures up too many discordant messages and that is why I select Illich's term, conviviality. The term conviviality suggests a more positive of non-political, cordial, friendly social and cultural tradition.

Nonetheless the anarchist tradition does have intellectual merit. A journal article entitled Beyond Electoralism: Reflections on anarchy, populism, and the crisis of electoral politics is a good example of research in the anarchist tradition. In the first article they write that Schneider (2017) argues:

The bulk of anarchist tradition has sought for people to be better organised in their everyday lives—while they work, where they live, how they manage disagreements. This type of power emanates from below, and it is shared. Anarchists aspire to a kind of world in which the Donald Trumps among us can shout all they want but nobody has the need for flocking to them. Real, daily democracy does not leave much room for quite so much greatness.’ (emphasis added)

This basic model of local control, to the extent possible, is also referred to as subsidiarity. Conviviality is different than subsidiarity. Subisidiarity is more of a governance principle that means, to the extent possible, a higher order of government should not impose itself on the prerogatives of a lower order. Conviviality actually begins from below and the only reason there is a higher order is through consent of that community and not the other way around. The political movement of conviviality is from the particular to the universal rather than the reverse. Politically, this means that the overarching order needs to be broken apart and divested so that the local community can thrive. This is not so radical as it sounds. Thomas Jefferson argued similarly.

What this looks like in practice is difficult to programmatically assert and sketch out as there will be varying and diverse forms that organically grow. This organic process, as in natural ecology, provides inherent organization principles that keep people together. As we grow and evolve our consciousness increases and we co-construct the principles and the tools that will help us. The key point is the tools (medicine, education, etc) should be deployed as close to the people as possible as opposed to enshrined in big institutional bodies that invariably become involved with capitalist and neo-liberal ideologies.

A concrete example of the foregoing is from Democracy Now, A People’s Vaccine? Drugmakers Set to Profit from COVID Vaccines Made with Publicly Funded Research. Big pharma currently profiteers from these developments instead of ensuring that these technologies (vaccine and therapeutics) are accessible and available to people from below. A good quote below from Amy Goodman illustrates the point:

Last week, drug giants Pfizer and Moderna reported their vaccines are almost 95% effective. The new vaccine manufactured by Oxford-AstraZeneca could be easier to distribute than the others because it does not have to be stored at ultra-freezing temperatures. It could also be cheaper because AstraZeneca has pledged not to make a profit on it during the pandemic, and agreed to price doses at about $2.50 each. The Associated Press reports Pfizer’s vaccine costs about $20 a dose, while Moderna’s is $15 to $25, based on the companies’ agreements to supply their vaccines to the U.S. government. As many as 14 billion vaccine doses would be required to immunize everyone worldwide.

Corporate watchdog Public Citizen says the vaccines belong to the people, as Pfizer and Moderna’s vaccines relied heavily on discoveries from research funded by taxpayers, who actually paid twice, when the Trump administration also gave Moderna an additional $1.5 billion to secure doses in advance.

To be continued...

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Free Expression and Section 2b of the Canadian Charter of Rights and Freedoms

11/17/2020

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This seems like a good time as any to explore the issue of free expression. Charges are levelled against Twitter and Facebook that they are suppressing Freedom of Expression on their platform. They argue, as a private platform, they have a right to establish any terms of service on their property. At issue is whether or not Facebook, Twitter, etc. are or can be considered a public space for a Charter challenge.

I am still exploring the idea. But one of the cases from the Supreme Court of Canada, R v Committee for the Commonwealth of Canada helps me in thinking through the issue. In particular, I want to focus on the concurring opinion of Justice L'Heureux-Dubé.

I won’t go into comprehensive detail but a few areas jumped out at me that are relevant. In her opening paragraph, I thought this line was particularly elegant.

However, rather than importing ready-made "tests" into our jurisprudence, one must be attentive to the unique character of our Constitution, recognizing that it has evolved within, and will continue to shape, the Canadian parameters and approach to these complex, yet challenging issues. The present case provides a logical context in which to cultivate this undertaking.

Case studies are effective ways to explore an idea and this case study involving pamphleteering is a great way to explore the idea of expression. I liken this to online politicking and would argue that these sites (Twitter, Facebook, etc.) function in effect like an airport in that while they are ostensibly private, their public use virtually renders them public as will be demonstrated based on a US example.

She argues that s. 2 of the Charter is “fundamental law”. Section 2 of the Charter of Rights and Freedoms reads:

Fundamental freedoms

2. Everyone has the following fundamental freedoms:
· (a) freedom of conscience and religion;
· (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
· (c) freedom of peaceful assembly; and
· (d) freedom of association.

Quoting Justice Dickson in another case, she writes concerning the fundamental nature of Section 2 that:

It is because of the centrality of the rights associated with freedom of individual conscience both to basic beliefs about human worth and dignity and to a free and democratic political system that American jurisprudence has emphasized the primacy or "firstness" of the First Amendment. It is this same centrality that in my view underlies their designation in the Canadian Charter of Rights and Freedoms as "fundamental". They are the sine qua non of the political tradition underlying the Charter.

She goes on to discuss freedom of expression in greater detail and then, in the context of the distinction between protected speech and private property, argues that even private property has not been ruled absolute but must be interpreted as public even if it is private!

Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. (Marsh v. Alabama, 326 U.S. 501 (1946), at p. 506).

She develops this line further regarding a shopping mall and it is here that the jurisprudence gets a bit dicy and the private status of companies is not settled. This case involved government property and free expression. The issue of online content prohibition is still very current.

Viva Frei does a great job of outlining how the US Supreme Court landed on the issue of expression and tech companies. I am not aware if this has been tested in Canada and would be interested in reading how they might land.

At the end of the day, though, free speech is a democratic value that should be carried into public use such as the internet, irrespective of the character of the space (i.e. technically private). I have heard the latest political movement being launched is “the great reset” alluded to by Justin Trudeau. I am not sure what it is exactly but I believe it involves re-alignment of the global capitalist order. I will have more to write on this but, in broad strokes, I agree with the concept as I understand it in terms of its objective of systemic economic international reform (although the devil and God are both very much in the details!).

To the extent that free speech online is concerned, I think we should lean towards an expansive interpretation of s2 of the Charter and tech companies should at least adopt the spirit of these findings for their settings rather than hide behind the veneer of private domain as a means of not addressing challenging questions.

Finally, Justice L'Heureux-Dubé sums up the spirit of the entire issue of supporting any kind of government censorship. She supports the well worn notion of airing out perspectives in "the marketplace of ideas". She writes that “Robert J. Sharpe explains the futility of basing this axiom merely upon some yearning for ultimate truth, in "Commercial Expression and the Charter" (1987), 37 U.T.L.J. 229, at p. 236: The essence of the market-place of ideas argument is that control and regulation of expression is intolerable because we can trust no government to know the truth. Those who purport to legislate the truth invariably turn out to be tyrants. The market-place of ideas argument prescribes an open process precisely because we cannot agree on what is the truth. [Emphasis added.]

Styxenhammer, who I listen to, and occasionally agree with, framed the issue in a vlog a few years back. I would like to debate him on this point even though I think he is generally joining the issue correctly. I think he draws a fair point here although I disagree with his hesitation to make tech companies public utilities. I think they should be public utilities on the ground of speech issues. I post this because I think he raises the correct issue although I will come across on the different side.

I agree, though, that the Charter should be a philosophical value generally shared as a democratic value and not perceived as a legislative enactment. It should be something much deeper - and tied to our very nature of what it means to be human and to express it freely.

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My Pensées

The title of this blog is an allusion to the famous work of Blaise Pascal. This blog represents the variety of my interests and thoughts on any given day and are strung together, like Pascal's Pensees, in no particular order. I work in the field of mental health, education, and human rights. I write and am a human rights advocate. I enjoy poetry, jazz, spirituality, politics and a potpourri of other interests that you will see reflected in this blog.

My Pensées

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