Free speech, democracy and the question of political influence

in W. Wesley Pue (ed.), Pepper in Our Eyes: The APEC Affair, Vancouver: University of British Columbia Press, 2000, pp. 29-40

By Andrew Irvine
"Free speech is something we extend to the young as well as the old, the foolish as well as the wise. Once we begin to decide who may or may not be granted the privilege of free speech, we have begun the slide towards a dictatorship of either the political left or the political right."
Freedom of speech and freedom of peaceful assembly lie at the heart of what it means to live in a democracy. Without the ability to express ideas of all kinds freely, and without the ability to meet together to hear contrary and often controversial points of view, citizens are not able to exercise their sovereignty over government. Free speech, it is rightly said, is the most powerful weapon we have against tyranny.

Yet if our rights to free speech and peaceful assembly are to be anything more than mere platitudes, they have to be the kinds of rights that cannot be overridden at the mere whim of either individual police officers or our political leaders. As George Orwell reminds us, "If liberty means anything at all, it means the right to tell people what they do not want to hear."

Recently we have seen just how fragile these fundamental rights and freedoms are, and just how easy it is for them to be restricted. During the 1997 Asia Pacific Economic Cooperation (APEC) summit, not only did some peaceful protesters have their paper and cloth signs forcibly removed, others were arrested or threatened with arrest simply for refusing to take their signs down. Still others were intimidated by police officers into signing guarantees that they would give up their free speech rights for the duration of the summit. That these events took place in the public areas of a Canadian university campus makes it all the worse. Universities have long been recognized as centres of free speech, relying as they do on the open exchange of ideas for the advancement of knowledge.

Among the many concerns that have been raised over the RCMP's handling of student protests at APEC are the following:
  1. that the RCMP threatened to arrest students unless they removed their protest signs, and that they did arrest at least one student for refusing to do so;

  2. that the RCMP forced protesters who were detained, as a condition of their release, to sign an undertaking that they would give up their free speech rights for the duration of the APEC summit;

  3. that the RCMP forced students to restrict their protests to specific zones far removed from the view of visiting dignitaries and their motorcades, and that they did so contrary to prior agreement with the University of British Columbia (UBC);

  4. that the RCMP removed a Tibetan protest flag that was flying outside designated security areas in order to placate Chinese students and visiting Chinese dignitaries;

  5. that the RCMP withdrew the press accreditation of two reporters because of their political views rather than for reasons of security;

  6. that the RCMP used unnecessary and excessive force, including the unnecessary use of pepper spray, while attempting to control demonstrators;

  7. that the RCMP failed to supervise armed foreign security forces properly, and that this may have compromised the safety of Canadian citizens and dictated which student groups were and were not allowed to continue their protests;

  8. that the RCMP treated some protesters inappropriately while in custody; for example, strip searching the women but not the men who were arrested;

  9. that the RCMP infiltrated and engaged in surreptitious surveillance of non-violent and law-abiding political protest groups in the weeks preceding the APEC summit without just cause; and

  10. that if it acted outside its lawful authority, the RCMP may have sacrificed the rights and liberties of Canadian citizens in order to advance a number of purely political objectives of the Prime Minister's Office (PMO).
November 1997 therefore represents something of a litmus test for civil liberties in Canada. If it turns out that the free speech rights of Canadian citizens were inappropriately compromised, then it appears that, as Canadians, we cannot afford to be complacent about even the most basic of our civil liberties.

What went wrong at APEC? If the RCMP had not instituted the practice of preemptive arrest, would this have decreased security in any significant way? If protesters had been allowed to display their signs along motorcade routes (rather than only in small, officially designated areas), would this have made the eventual conflict between protesters and police officers less likely? By resorting to the use of pepper spray, did the RCMP in fact hamper, rather than promote, security along important motorcade routes? And if it turns out that unjustified restrictions were placed on student protesters, was this for political rather than security reasons?

Of the ten issues listed above, the first five are primarily about freedom of speech. The next three are primarily about the appropriate use of force in protecting visiting dignitaries and in dealing with student protesters. The next concerns the use of potentially illegal surveillance methods, and the last is about whether politicians, or civil servants acting on their behalf, attempted to influence police policy for political ends.

We are thus left with the following four important questions:
  1. Did the RCMP inappropriately compromise the free speech rights of Canadian citizens?

  2. Did the RCMP use unnecessary and excessive force, or other inappropriate methods, while trying to control student protesters?

  3. Did the RCMP engage in inappropriate police practices, such as the illegal surveillance of non-violent political protest groups? and

  4. Did the RCMP allow itself to be influenced, at least in part, by political directives from the PMO, rather than by security concerns, while carrying out its mandate to protect summit delegates?
While most of the news media and editorial comment since November 1997 has concentrated on the second of these questions, all four are important. Specifically, if Canadian citizens are not permitted to speak freely in public-or to become involved in non-violent political protest groups-without fear of surveillance or intimidation, this strikes at the very core of the democratic ideal. Similarly, if the RCMP allowed itself to be used by the PMO for political ends, this is not something to be dismissed lightly. Canadians across the country need to be assured that Canada's chief law enforcement agency cannot be used for partisan political purposes. We need to know that the RCMP is not inappropriately restricting the most fundamental rights of Canadian citizens. Democracy itself is in peril whenever the police are used, not to protect citizens' rights or to enforce the law, but to violate those rights in order to advance ordinary political objectives.

Among the thousands of documents tabled before the RCMP Public Complaint Commission's hearings into APEC, many are of interest in this context. For example, among the many internal RCMP e-mail messages sent in November of 1997 prior to the arrival of APEC delegates in Vancouver we find a significant exchange between RCMP Inspector Bill Dingwall and RCMP Superintendent Trevor Thompsett. After discussing several security issues surrounding the various summit sites, including the UBC's Museum of Anthropology (MOA), Inspector Dingwall e-mailed Superintendent Thompsett as follows:

If they hang banners towards the MOA, are they going to be visible through the trees? Could we erect some sort of draping to cut off the view? Secondly, they are only leasing the building and I suppose that we could make the argument that the exterior of the building is not being rented and the University, as landlord, could remove them.

Thompsett's reply was as follows:

Common sense tells us we do not want banners nor would the PMO's office. Having said that, banners are not a security issue. They are a political issue. Who is looking after that? If they are not going to be permitted, what is the authority for removing them and who is going to do it? Shooting from the hip here but taking them down is touching with someone else's property that is not a security concern.

Thus we see here both a recognition on the part of the RCMP that free speech and private property rights are to be understood as being distinct from security issues, and a reference to the apparent influence of the PMO.

A second document also concerns security issues at UBC. In a letter to Prime Minister Chretien dated November 19, 1997, UBC President Martha Piper warns that overly restrictive security arrangements may serve to increase rather than decrease the chance of conflict:

I am writing to you to express our concern about a proposal to seriously limit the opportunity for members of the University community, particularly students, to have a sense of involvement in the upcoming APEC Economic Leaders' Meeting on the campus of The University of British Columbia.

In planning the AELM, we had reached an agreement with the RCMP on a "line of sight" gathering place where interested students, including some who are opposed to APEC, could see and be seen, however briefly, by the APEC leaders.

Now, regrettably, as we enter the final planning stages for the AELM, officials from your office have decided to reduce significantly the area available for line of sight access to the APEC leaders. This contravenes the University's commitment to its community, violates a prior agreement, and increases the risk of a serious incident arising out of over-crowding and frustration in a very confined space.

In his reply of November 20, the Prime Minister's Director of Operations, Jean Carle, does little to address President Piper's concerns other than to deny the existence of any prior agreement with the University.

A third document is found among the several dossiers compiled by the APEC Threat Assessment Joint Intelligence Group and is entitled "APEC TAG Daily Bulletin for 1997-11-24". In addition to a series of photographs of various protesters and potential protesters, we find the following comment:

Two members of the media attending UBC last night as invited observers were noted to be overly sympathetic to the APEC Alert Protesters. Both subjects have had their accreditation seized. The first subject is Dr Joan RUSSON federal leader of the Green Party. Second subject Dennis PORTER's accreditation states he is a journalist employed by Working TV.

Deciding which journalists may or may not be accredited based on their political views is a practice more characteristic of totalitarian regimes than of any healthy Western democracy.

A fourth document again comes from the RCMP. Entitled "Conditions for Undertakings before an Officer in Charge", the document contains a list of promises (or undertakings) to which protesters had to agree in order to be released prior to the start of the APEC summit. Among the conditions necessary for release were the following:

I will not attend within 100 metres of any venue or site where officials of foreign governments participating in the Asia Pacific Economic Cooperation may be in attendance between the dates, November 18th, 1997 and November 26th, 1997

and

I will not participate or be found in attendance at any public demonstration or rally that has gathered together for the sole purpose of demonstrating against the Asia Pacific Economic Cooperation or any nation participating in the so named conference.

Signing the above undertaking would not only mean that political protesters could not travel freely throughout Vancouver. For the duration of the APEC summit they would not be allowed to voice their opposition publicly to Canadian government policies of any kind. The unconstitutionality of such undertakings was confirmed shortly after the summit when an RCMP spokesman admitted that it had been a mistake for the RCMP to administer undertakings of this nature.

These documents lend support to the view that the fundamental rights and freedoms of many Canadian citizens may have been compromised during the APEC conference. Equally important, these and other documents clearly provide prima facie evidence that there may have been improper attempts on the part of the PMO to advance its political objectives through the RCMP, and that at least some members of the RCMP recognized the importance of distinguishing issues of free speech from those of security. What such documents seem to indicate is that the PMO was concerned to strike a balance between the expression rights of students and the desire of local and visiting dignitaries not to be embarrassed by unflattering protest signs. This, of course, raises the following two additional questions:
  1. Is there a balance to be struck between the political interests of the PMO, and of other government officials and visiting dignitaries, and the fundamental democratic rights of Canadian citizens? and

  2. At what point does political involvement by the PMO or other government officials in the affairs of the RCMP become political interference?
To answer the second of these two questions first, we need to keep in mind the boundaries which politicians are required to observe in their dealings with Canadian law enforcement agencies. After all, the involvement of the PMO in security arrangements may initially appear to be innocent enough. The Prime Minister and his office obviously have a legitimate interest in the safety of visiting leaders and other dignitaries. Even so, if the PMO attempted to have the RCMP suspend the rights of protesters without there being compelling security reasons for doing so, then this clearly crosses the line from legitimate political involvement to improper political interference. Such violations of the rule of law are one of the basic hallmarks of the police state. Canadians of all political persuasions need to be assured that the RCMP will not allow itself to be used by politicians in this way. Adherence to the rule of law by those who govern us is ultimately our most fundamental defense against police-state tactics. Unless the law can be seen to apply equally and fairly to all citizens without political interference, we will have abandoned one of the cornerstones of Canadian democracy. Governments have fallen for less.

In answer to our other question, the idea that there is a proper balance between observing the rights of Canadian citizens and using the police to achieve political objectives is one that needs to be categorically rejected. The idea that the rights of Canadian citizens are something that can be reduced or eliminated upon the demand of even the highest of government officials is one that no police officer should ever entertain.

Of course, this is not to say that there cannot arise circumstances in which a proper balance will need to be struck between the rights of Canadian citizens and the safety of local and visiting dignitaries. Even so, as Superintendent Thompsett was quick to observe, there is all the difference in the world between a government's political objectives and genuine security concerns. In short, unlike genuine security concerns, the political discomfort or embarrassment of local or visiting dignitaries is never a legitimate reason for restricting the expression rights of Canadian citizens.

Related to these issues is also the question of whether the RCMP conducted illegal surveillance on non-violent political protest groups. Events such as APEC inevitably raise important matters of national security, both for Canada and for other countries. Presumably it was for this reason that high-profile members of various protest groups were placed under police surveillance prior to the APEC summit and that pictures of potential protesters were duplicated and circulated among security personnel.

Even so, in any healthy democracy, law-abiding citizens must be free to associate with each other for political ends without having the blunt instruments of state power follow their every move and thought. State surveillance undermines the openness that is essential for the democratic deliberative process to operate effectively. And too often it also leads to other serious abuses of power.

As Canadians, we know this all too well. In the late 1970s, the MacDonald Commission of Inquiry into Certain Acts of the RCMP found that the RCMP had infiltrated many non-violent public interest organizations, including political parties. It also found that the RCMP had compiled dossiers on tens of thousands of Canadian citizens, and that it had engaged in "dirty tricks" to discredit various political groups. As a result of its investigations, the Commission concluded that it was necessary to remove responsibility for national security intelligence gathering from the RCMP.

This decision was grounded in evidence the Commission found to the effect that police officers lacked the training and judgment necessary for doing the delicate job of security intelligence gathering in a way that properly respected the basic democratic rights of Canadian citizens. It was for this reason that the Canadian Security Intelligence Service (CSIS) was subsequently created in the early 1980s and that its mandate explicitly excludes the covert surveillance of groups involved in "lawful advocacy, protest or dissent" unless it can be proved on independent grounds that they pose a significant security threat.

Events at APEC thus raise questions, not only about the appropriateness of the RCMP's behaviour, but also about its mandate and jurisdiction-questions that were supposed to have been resolved by the MacDonald Commission and the creation of CSIS. Specifically, Canadians need to know what evidence the RCMP had, if any, that may have justified its surveillance of non-violent protest groups. We need to know what sort of role police informants played in these groups. We need to know whether they attempted to manage the activities of these groups or to discredit them. We need to know whether the RCMP shared any of the intelligence information that it gathered on Canadian citizens with security and intelligence agencies from other countries. Finally, we need to know the current status of the dossiers that were assembled on law-abiding Canadian citizens. Could information in those dossiers still be shared with other national and international agencies? And, unless there is evidence of criminal wrong-doing, are all of these dossiers eventually going to be destroyed?

In light of such concerns, it is crucial that Canadians discover whether there was a systematic effort to block the exercise of their basic freedoms, an effort that could have begun with the Prime Minister and his staff and that could have extended through the senior ranks of the RCMP. It is for this reason, too, that the work of arm's length investigative bodies such as the Public Complaints Commission is crucial for the functioning of a healthy democracy. If the Canadian public is to have confidence in both its politicians and its police officers, there must be effective methods of civilian oversight that are independent of both the police and the government of the day.

Reviewing these concerns makes it apparent that the issues raised at APEC go well beyond the actions of a few rogue police officers indiscriminately pepper-spraying protesters. These issues are important because it is ultimately the freedom that citizens have to meet and speak openly about controversial issues without fear of government reprisal that distinguishes democracy from other forms of government. China, the old USSR, the former East Germany and many other countries all serve as examples. As Mr Justice Peter Cory of the Supreme Court of Canada has commented,

It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be over-emphasized.

In other words, as a country's civil liberties are weakened its claim to being a democracy is correspondingly diminished.

Of course, any comparison between a healthy democracy such as Canada and totalitarian countries such as China and the USSR needs to be made very carefully. Canada is a long way from descending into a totalitarian police state. Even so, no country is immune from the many pressures and tendencies which give rise to totalitarianism, and it is by remaining indifferent to apparently small and incremental increases of state power that citizens eventually loose their most cherished freedoms. Even citizens in countries such as Canada cannot afford to become complacent about their most fundamental rights and liberties.

A point of comparison arises with the old Republic of South Africa. Regardless of whether we think of pre-1994 South Africa as a democracy with an extremely limited franchise or as a democracy in name only, by the 1980s that country's government had instituted over 100 laws restricting the movement of ideas. These laws were not introduced over night en bloc. South Africans did not wake up one morning and decide that they wanted to live in a police state. Instead, each incremental increase in censorship was introduced gradually and in response to a perceived need.

In some respects South Africa's censorship laws were remarkably powerful: newspaper and magazine articles were censored, journalists and writers were detained, editors were prosecuted, and papers were closed. Yet even in those dark days many censorship laws remained largely ineffective. Speeches by political leaders were smuggled in and out of prisons and around the country, and it became a badge of honour to possess them, no matter how dry or boring they might be. Legal challenges to censorship were mounted, editorials against apartheid were published, and many government policies were ridiculed, until even this became illegal. When one edition of a newspaper was banned, the paper changed its masthead, publishing the same material under a new name, free from the banning order. Rather than publish an illegal photograph of a violent police action, another paper printed a "connect-the-dots" version instead, together with explicit instructions to readers that they were not to connect the dots.

Blank spaces were also banned, as was obliterated text. Both had been used by the Weekly Mail to indicate the extent of state censorship. But as Anton Harber, a founder and co-editor of that newspaper reports, "The authorities realised that nothing frightened the public more than white spaces in newspapers: vivid imaginations filled the spaces with reports far worse than those that had been removed". Hence there was the absurdity of making it illegal to print nothing!

Other policies were equally comical yet frightening. The Key Point Act made it an offense to photograph or publicize so-called "key points" around the country. At the same time, the list of sites that had been designated by the government to be "key" remained classified. Thus the only way for a newspaper to discover whether it was in possession of an illegal photograph was to publish it, and then wait to see whether charges were laid.

During this time, the amount of material censored by government was phenomenal. The peace sign was banned, as was the book Black Beauty. The American film Roots was banned for the reason that "a substantial number of blacks would, judged on the probabilities, substantially experience great or greater hate against the white [race] as a result of seeing this film...."

Reading this, we may feel relieved that censorship of this kind does not and cannot occur in Canada. Yet this is not so. Even though censorship in Canada is not as common, and the degree of social injustice prompting protests is not nearly as high as in many countries, the ease with which protest signs were removed at APEC shows us all just how easy it is for governments and police officers to overstep their legitimate authority. If we as citizens allow governments to take away our free speech rights whenever there is a perceived need to do so, we will be left with little more than a privilege that can be revoked at will.

But perhaps this overstates the situation as it exists in Canada today. Perhaps, unlike the old South African government, Canadian governments can be trusted to censor only that speech which deserves to be censored. Unfortunately, as events at APEC show, such trust is bound to be illusory. Not only do government agencies have a poor record with regard to censorship, our abdicating of this responsibility to the state is equivalent to throwing away the very building blocks of democracy. By allowing the state to tell us what speech is or is not permissible, we give up our authority over government. Unless citizens are allowed to debate even the most controversial of issues openly and without fear of government reprisal, it is impossible for them to exercise their sovereignty over government.

To take a related example, in any society which wants to eliminate hate, it is important to know who the hate-mongers are. Before electing candidates to our local school boards or to the Prime Minister's office, it is not just accidental that we will want to know their views on economic and educational policies, on evolution and multiculturalism, on immigration and on race. It is essential. Because censorship laws regularly push this type of information underground, such laws are typically accompanied by increased state surveillance. At the same time, when this information does not go underground, it is often given even greater prominence in the media and in the public consciousness than it deserves. There is nothing like a banning order to increase the sales of even the most mediocre of books!

In other words, censorship laws are typically either inefficient in achieving their goals, or else they tend to hamper society's need to know who the hate-mongers are, what role they play in our communities, and what type of influence they have on public policy. Free speech allows hate-mongers to identify themselves for all to see and obviates the need for increased state surveillance.

And still there is more. Not only are censorship laws both inefficient and contrary to the principles underlying democracy, they also effectively divide a country's population into first and second-class citizens. If university professors and government opposition members are allowed to debate Canada's role in APEC openly and publicly, but students and others are not, we have effectively set up the type of division between citizens which no healthy democracy can long support. Free speech is something we extend to the young as well as the old, the foolish as well as the wise. Once we begin to decide who may or may not be granted the privilege of free speech, we have begun the slide towards a dictatorship of either the political left or the political right. Supporting a constitutionally protected right to free speech means that we have to tolerate words and ideas with which we may passionately disagree. Yet this is simply the price we pay for living in a healthy democracy.

The issues raised at APEC are thus of central importance for all Canadians. Like the 1970 October crisis, events at APEC show just how fragile some of our most fundamental rights and freedoms can be. For anyone interested in the preservation and promotion of democratic values, it is important to discover whether the free speech rights of Canadian citizens were compromised at APEC. It is important to discover whether the RCMP used unnecessary and excessive force, and whether it engaged in inappropriate police practices, such as the unjustified surveillance of non-violent political protest groups. And it is important to learn whether Canada's chief law enforcement agency allowed itself to be influenced, at least in part, by political directives from the PMO-rather than by security concerns-while carrying out its mandate to protect summit delegates.

If we, as citizens, are prepared to allow the police or the government to tell us what we can and cannot say, or what we can and cannot read, or what government policies we can and cannot support, we will have given up a lot more than a desire to discover what may or may not have happened to a group of student protesters one rainy November in Vancouver. We will have given up a fundamental cornerstone of democracy itself.



READINGS

Borovoy, A. Alan, When Freedoms Collide: The Case for Our Civil Liberties, Toronto: Lester and Orpen Dennys, 1988

Borovoy, A. Alan, The New Anti-Liberals, Toronto: Canadian Scholars' Press, 1999

Bryden, Philip, Steven Davis, and John Russell, Protecting Rights and Freedoms: Essays on the Charter's Place in Canada's Political, Legal, and Intellectual Life, Toronto: University of Toronto Press, 1994

Burger, Thomas R., Fragile Freedoms: Human Rights and Dissent in Canada, Toronto: Irwin, 1981

Canada, Commission of Inquiry into Certain Activities of the Royal Canadian Mounted Police (Report of the McDonald Inquiry), Ottawa: Queen's Printer, 1981

Irvine, A. D., "Let Truth and Falsehood Grapple", University of Toronto Quarterly, v. 67 (Spring 1998), 549-566 Mollard, Murray, The Citizenship Handbook: A Guide to Democratic Rights and Responsibilities for New Canadians, Vancouver: B.C. Civil Liberties Association, 1997

Andrew Irvine is Professor of Philosophy at the University of British Columbia. As a past president of the BC Civil Liberties Association, he has long been involved in the promotion and protection of basic democratic rights and freedoms in British Columbia and across the country. Founded as a non-profit, non-partisan organization in 1962, the BCCLA is the oldest continuously active civil liberties association in Canada. A graduate of the University of Saskatchewan, the University of Western Ontario, and Sydney University, Professor Irvine is also an occasional contributor to the Vancouver Sun and other Canadian newspapers. He has either held academic posts or been a visiting scholar at the University of Toronto, Simon Fraser University, the University of Pittsburgh, and Stanford University.