L'ASSOCIATION DES MUSULMANS PROGRESSITES DU CANADA

ASSOCIATION OF PROGRESSIVE MUSLIMS OF CANADA

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Keynote Address by Hon. R. Roy McMurtry, Chief Justice of Ontario

Delivered at the 6th Annual Eid-ul-Fitr Celebrations at Queen's Park on December13, 2002.

                                 

I am indeed honoured to be with you this evening and to receive this award from the Association of Progressive Muslims of Ontario.  It is a recognition that I shall always cherish.

It has been a pleasure for me to have come to know officers and members of your Association since its incorporation in 1998.  I am, of course, familiar with some of your work and particularly the mandate of building bridges of Understanding between Muslims and other faith groups and communicating an accurate image of Islam and its values.

I would like to congratulate your founder and President, Mr. Mobeen Khaja, and to wish all of the members of the Association every continuing success in pursuing your mandate.  In reviewing your mandate, I noted that it included the improvement of relations between the Muslim community and what you refer to as “mainstream Canadians from all faiths and backgrounds”.  I should like, therefore, to make a personal observation that all members of the Muslim community in Canada should regard themselves as A mainstream communitY.

The best estimate that I have encountered of the number of Muslim Canadians in our nation is approximately 650,000 AND THEY are contributing in immense ways to the strengthening of our country as they pursue Professional, business, political and other careers. 

The reality of the Muslim Canadian community being paRt of the mainstream is reflected by the fact of the many people here tonight who are not Muslims, led of course by Minister of Finance, Janet Ecker and former Chief Justice Charles Dubin.  Former Premier Bill Davis was here earlier at the reception.

The pluralistic character of Ontario and of Canada is INDEED a fundamental fact of our nationhood.  Canadians should take much pride in the fact that so many people of diverse racial, ethnic, cultural, and religious backgrounds have chosen and will choose Canada as their home.  I have often stated that there are really two broad categories of Canadians, namely people like myself whom you might describe as Canadians by chance or accident, in that we were born here, and those Canadians who made the conscious and deliberate decision to choose Canada as their home.  This choice HAS often demanded great courage in facing the challenges of a different culture, language, and a sometimes hostile climate.  I think THAT Canadians should RECOGNIZE the respect that is due to those who made that choice and who, in so doing, have helped make ours a truly remarkable country, despite our ongoing challenges.  

AT THE SAME TIME, I RECOGNIZE THAT The tragic events of 9/11 of last year have regrettably placed a very unfair burden on the Muslim Canadian community as some Canadians irrationally AND UNFAIRLY equate the Islam religion with terrorism.  There APPEARS SOMETIMES to HAVE been an attempt to impose a collective guilt on the Islamic community, which risks CREATING a defence mentality.  Any such OCCURRENCE WOULD could obviously be very damaging to our OFTEN FRAGILE social fabric.

There ARE also no shortageS of voices internationally who would characterize unfolding events as a clash of civilizations.  Any such rhetoric, of course, plays into the hands of terrorists and extremists.  Indeed, it wOULD make it very difficult to root out the terrorists if we allow a whole religion and an entire community to be demonized.

I would hope that the lessons of history would alert us to the extreme dangers of demonizing any single minority group.  In fact there has been no major world religion of which I am aware that has not been exploited BY SOME to perpetrate atrocities on the perceived non-believers.  One only need remember the Christian Crusades in the Middle East or the Spanish Inquisition in Europe and the Americas.  Even Christian fundamentalisM of today can producE a Timothy McVeigh.  

On a much more positive note, I was AT THE SAME TIME pleased to read a recent column in Maclean’s Magazine entitled “Thanks to My Country.  On Thanksgiving Day, I as a Muslim Celebrated the Generosity of Canadians”.  The Toronto based author and broadcaster, Irshad ManJI, wrote in part as follows:

Let me begin this way; recently my mother was chosen to sit on a jury in British Columbia noting that she celebrated the fact that “a woman who came here as a refugee could be selected to carry out one of the most sacred duties as a citizen”.

Ms. ManJi also referred to HER RECENT meeting OF a young woman wearing a head covering, hijaB, who worked as a lawyer at the federal justice department.  She emigrated to Canada in part to practice her faith meaningfully which she could not do in TUNISIA.  There were other similar stories.  

She also pointed out “that what never gets audited, quantified and publicized in this country is the opposite of backlash – and that’s unsolicited eruptions of decency towards Muslims. Let’s recall that immediately after Sept. 11 last year, Christian and Jewish clerics scrambled to get in touch with Muslim leaders. They organized multi-faith services and held press conferences to make the point that it’s individual terrorists who ought to be held accountable, not any religious or cultural community”.

I do hope that the experience of Irshad ManJI is SHARED BY Muslim Canadians GENERALLY although I DO REALIZE many less positive experiences HAVE BEEN RECORDED.

In any event, it is required that eVERY citizen commit himself or herself to strengthening the relatively fragile fabric of our pluralistic society.  This is particularly important in AN ERA where there IS uncertainty and fears of attacks from unexpected QUARTERS AS there are inevitably malevolent forces simply looking for scapegoats.

It has also been acknowledged that in times of fear, the majority of people place security above all else and are quite willing to cede government extraordinary authority.  As one U.S. law professor recently expressed it “We love security more than we love liberty ”.  This was dramatically and I think tragically illustrated for example by the jailing of Japanese Americans and Japanese Canadian citizens during the Second World War and, IN MY VIEW AT LEAST, the imposition of The War Measures Act in Quebec in 1970.

The Canadian security proposals to date have raised COncerns as Canadians debate how to defend the Canadian model of a diverse and A tolerant society in the facE of international terrorism.

The debate taking place in Canada is taking place at a critical time in the history of the world AND there can be no doubt that ANY Canadian government WOULD HAVE a duty to take measures to protect Canadians against international terrorism.

It would, of course, be entirely improper for me to state my personal views with respect to any legislation unless it is related to a matter before me in court.  However, the legislation may well be tested in our courtrooms and as a result the role of judgeS could be subjected to closer scrutiny than at any time before in our nation’s history.  While the accountability of any important institution is essential in a democratic society, it is appropriate that it occur with an understanding of the basic principles of our Constitution.

The Constitution Act, 1982 provided that the Constitution which, of course, includes the Charter of Rights “is the supreme law of Canada and any law that is inconsistent with the Constitution is invalid”.

In the past decade, some Canadian commentators have argued that the Charter has given the courts too much power to enforce the rights of minorities and criminals.  They state the courts have generally become too ACTIVIST AND GIVE TOO LIBERAL A MEANING TO THE EXPRESSED RIGHTS AND FREEDOMS OF THE cHARTER. 

The task of the Legislature and The courts will be to balance concern around terrorism against the reasonableness and rationality of the means selected to combat it.  This test of proportionality and balance includes a consideration of whether there is a rational connection between the threat and the response AND whether the response impairs Constitutional freedoms as little as possible.

While judges have the task of interpreting the often uncertain provisions of the Charter, I would like to stress that judges recognize that their task must be exercised in a principled fashion.  We are very much aware that any suggestion of judicial imperialism can only serve to undermine the public confidence which is essential to the discharge of our responsibilities.  My court and other appellate courts have stated in many decisions that without public confidence the courts cannot effectively fulfill their role in society.

Courts are not representative bodies in that they do not represent specific or special interests.  They are impartial bodies that must reflect the basic values oF our society.  Courts are not necessarily democratic institutions as they are not bound by the majority of public opinion.  However, I believe that when the majority takes away the rights of a minority that is not democracy.  Democracy is, therefore, a delicate balance between majority rule and individual rights.

The values which should direct a judge are basic and fundamental values rather than the outcomes of public opinion surveys.  They cannot be the transient and revolving fashions of the day.  They are not headlines.  They reflect history rather than hysteria.  A judge is not to express the changing winds of the day but again is to express the basic values of our society and when a society is not faithful to its basic values, a judge may be required to intervene.

The history of our legal system has been gradual development and evolution not revolution.  While a judge should often be guided by public consensus, there are times when a court should lead and be the crusader for a new consensus such as in Brown v. Board of Education where the Supreme Court of the U.S. held segregation in schools to be unconstitutional.

Generally speaking, a judge’s decision should reflect the deep values of society not merely his personal values.  It means that the judge just free herself or himself from personal biases.  The interpretation of the Charter requires balancing and judicial neutrality.

While a judge must be impartial, neutral and objective, the goal of objectivity is not to cut a judge off from his surroundings.  Furthermore, the goal of objectivity is not to liberate a judge from life experiences but to make use of these experiences in attempting to reflect the fundamental values of a nation.

In so far as the role of the courts are concerned, I am confident that they will continue to re-examine and re-evaluate our laws, institutions and procedures thROUGH the new LENS of multicultural fairness as illustrated by this passage from a decision of the Supreme Court of Canada:

Canada is not an insular, homogeneous society.  It is enriched by the presence and contributions of citizens of many different races, nationalities and ethnic origins.  The multicultural nature of Canadian society has been recognized in s. 27 of the Charter.  Section 27 provides that the Charter itself is to be interpreted in a manner that is consistent with the preservation and enhancement of the multicultural heritage of Canadians.  Yet our judges must be particularly sensitive to the need not only to be fair but also to appear to all reasonable observers to be fair to all Canadians of every race, religion, nationality and ethnic origin.

At the same time, we must recognize that all the laws in the world and all the human rights codes, count for little if individual citizens are not prepared to make a personal commitment to tolerance, to understanding, and above all to fighting intolerance and bigotry at every opportunity.

My many years as a lawyer, Attorney General, and as Chief Justice of Ontario, have made plain for me this palpable truth:  the law alone is not enough to protect those who are a different colour, or those who profess a different religion.  The law will never be enough, by itself, because there is no legislature in the world capable of legislating ultimate principles.  You cannot legislate to what degree a man must love his neighbour, nor even that he must not hate him.  It is, I think, true of tolerance as it is of liberty, that, in the words of Justice Learned Hand:  “…It lies in the hearts of men and women; when it dies there, no constitution, no court, no law can save it; no constitution, no court, no law can even do much to help it; but while it is alive, it needs no constitution, no court and no law to save it”.  

But merely because no law can stamp out discrimination, it is equally true that it will flourish the more for lack of any laws against its flourishing.  And so I come to what I perceive to be the responsibility and challenge of the law – Namely, to ensure that whatever prejudices may lie in the hearts of men and women, they are not translated into actions that offend the basic principle, that except in self-defence, it is wrong to hurt another person.

It also should be pretty obvious that our courts alone will never be able to produce a social order based on caring, compassion and social justice.   While our courts are a vital cornerstone of our free and democratic society, they can only deal with the results of social disorder and not its causes.

In this holiday season in particular, we should reflect on the fact that many of the causes of our social ILLS are simply related to poverty.  An estimated 200,000 Canadians are homeless and 1.7 million families are in “core housing need”.  Every winter a few of these people freeze to death.  Thousands more develop ailments that those with warm secure homes will never know; close to 800,000 Canadians use food banks every month.  Forty-one percent of them are children.  

ONE OF THE REASONS That we have gathered together this evening IS because we all share a concern for social justice.  We believe that while the poor and friendless may often be out of political fashion, we know that they are never without human needs.  We also know that the poor and vulnerable may live in a free country but that it is often difficult for them to feEl free.

In conclusion, I thank the Muslim community for the contributions that you have made AND CONTINUE TO MAKE to the rich diversity of our country.  It is the pluralistic and largely tolerant nature of Canadian society that gives Canada such a special place in the world.  

The very unity of our country requires a determined effort by all of us to strengthen our social fabric by continuing to the strengthening of tolerance and the respect of all our minorities as a cornerstone of our democracy.  

The continuing challenge for Canadians is to accommodate diversity in unity.  

In conclusion, I am confident that Canada will continue to show the world new ways of achieving this goal.  The drama is still continuing to unfold, and we cannot guess at its conclusion.  

It is a drama of law, and of politics, and of commitment too.  A commitment to something intangible – a spirit – something called Canada.  

Let me end with the words of Professor Jacques Monet, a distinguished Canadian historian and a Quebecois:

The challenge of brotherhood, of an experiment that bursts through the limits of nationalism to embrace men of diverse ways and diverse tongues, is what it means to be a Canadian.  You see, it is not a question of economics or common sense; it is a question of the heart.