Published in The Journal for Christian Scholarship/Tydskrif vir Christelike Wetenskap1Abstract Each discipline has its area of expertise, its, if you will, jurisdiction, within which the kind of questions proper to that discipline may be investigated and taught. Dispute may exist at the margins as to whether a particular subject is properly one within the discipline or is something that should be taught in another area. Within the teaching of biology in schools, a debate has existed for some years with respect to what sorts of approaches to the teaching of the theory of evolution are appropriate for public school classrooms. This is important because, for some parents, the "theory of evolution" has assumed dogmatic aspects in which theology and science are inappropriately mixed. Or, again, theories of origins believed in by some sorts of belief, whether religious or non, can raise conflicts if taught as "scientific fact" when, it is argued, evidence exists sufficient to present alternative theories. What should happen when the differing viewpoints conflict? Part I of the article sets out some of the theoretical issues involved in this area and suggests that attention to the proper jurisdiction of science assists in placing the "evolution debate" in a context which should allow for greater discussion of alternative theories to those of random chance and ateleological development. In particular, the idea of "intelligent design" is discussed as a subject that might well be suitable for a science classroom if taught as a theory in competition with other theories—what one commentator has termed "teaching the conflicts."2 Part II of the article chooses an actual example from a dispute relating to the curriculum of upper level school biology courses in British Columbia Canada. This dispute is analyzed since the various positions taken by school administrators, teachers, community groups and the Ministry of Education itself show the widespread perspectives that have informed debates elsewhere. It concludes by arguing that how the matter was "resolved" in British Columbia, is an inappropriate response to the conflicts and that banning any teaching about "intelligent design theory" in the biology curriculum amounts to an ideological restriction on matters that are appropriate to high-school education.Introduction The title "the Jurisdiction of Science: what the Evolution/Creation Debate is Not About" was chosen for this article because it seems to me that one of the most critical questions facing us in terms of what many call the "evolution versus creation" debate is often overlooked. In short, neither "chance" nor "design" can be proven by science. We may hypothesize about both theories but we cannot prove either design or chance by scientific means. This simple fact requires us, therefore, to insist that both chance and design be presented as aspects of the discussion. The current domination of what might be called "the assumption of an ateleological chance" is improper and amounts, often, to little more than an anti-religious dogma because it is assumed that if "design" is excluded from consideration, then so is teleology, purpose and, by inference, God. None of these assumptions, for or against chance or for and against design are accurate and it is the burden of this article to make this argument. I have chosen to do so by way of discussing the jurisdiction of science in order to understand better what sorts of questions are properly scientific questions and what are not. A failure to examine this point can lead to errors.Part I: Theoretical Aspects of the Relevance of Chance or Design in Biology Courses Though it is often overlooked, a larger question than the false dualism "evolution" or "creation" lays behind the debate about evolution as it is often formulated. Should we include consideration of both "design" and "chance" in our biology teaching because, simply, we do not know which idea is actually behind "how it all works?" Because we operate on the basis of "what things we take on faith" (and there are both religious and non-religious faith commitments), both "chance" and "design"- based explanations are, strictly speaking, faith-based since neither can be empirically proven. The question is then one of assessing the evidence to see, over time, which approach best comports with the scientific and other evidence. But it is a mistake to assume that choosing to believe in chance is a denial of design or somehow more scientific. In short, both the atheist, committed (unscientifically) to their being no God is in the same position as the theist committed (also unscientifically) to the claim that there is a God. Science cannot help either of them since the key questions are non-empirical. In fact, it is logically possible that "chance" operates within a system of overall design. So the fact that many religiously committed people might see "chance" as the enemy of God (or design) or non-religiously committed people might see "design" as the enemy of free scientific inquiry (or what have you) does not lead to a pre-emptive exclusion of either "chance" or "design" as outside the broadest scientific discussion. But the adoption of one side to the exclusion of the other is simply bias and not in the spirit of free inquiry or within the proper jurisdiction of science. Much of the contemporary discussion of the roles of science and technology as they relate to faith and society has to do with the scope or the competency of science and philosophy. Science cannot tell us either why something exists or what its ultimate purpose is. The question of ultimate causes or ends is the province of philosophy and religion. But it is a serious mistake to assume that only the religiously committed person has faith or beliefs. To live as a human being is to be a believer, the question is "in what do we believe?" not whether we believe. Similarly, to make assumptions is to have faith of some sort. I use the word "faith" here, in relation to society, to include both the more organized and defined "religious" faiths as well as the natural faith everyone has whether or not they know it. People often make the mistake of assuming that only religious people have faith (that is they trust things that they do not or cannot empirically prove to themselves in the manner in which they live). A scientist trusting in the accuracy of his or her instruments and observations relies upon faith just as much as, but in a different sense, the person trusting that the sidewalk he or she walks upon is actually there; that the world around them will perform in predictable ways; that the sun will rise tomorrow; or that they will continue to live beyond the moment so as to undertake projects of a variety of sorts (including experiments). Religious people just have a different basis to describe what (or whom) they believe and trust in than those who operate with a less developed theory based on "natural faith." So the question at all times, contrary to the current confusion of secularists language, is not whether we have faith or not but what kind of faith or faiths we have and operate out of? And "faith" for many people is something they do not think about; but it is faith nonetheless. It is, when not considered, implicit rather than explicit faith that they base their lives upon.3 The term "Jurisdiction" is usually used for legal matters but the second root of the word in addition to jus for law is dicere for "speak." So the question of the jurisdiction of science is an invitation to consider what is the area of the proper authority of science. Every age has its strengths and weaknesses, those areas it more naturally focuses upon and those towards which it tends to have blind spots. An era that is aware of the world of spirit and religion might focus too much on these to the detriment of science and the material order or might bend science to conform its conclusions to over-reaching religious claims. Another era, focused, perhaps rather more on the material than the spiritual, the physical rather than the metaphysical might focus too much on what are perceived as "material facts" and not enough on how these physical facts relate to other questions of life. In such a condition, science might be bent to conform its conclusions or methods so as to over-reach to the detriment of what is properly the territory of metaphysics and religion. At all times the areas of overlap must be carefully and sensitively handled. This question of overlap poses a particular difficulty when disciplines are not in proper communication with each other as in the contemporary age. Many philosophers today lament the fragmentation of learning as universities have become multi-versities and inter-disciplinary perspectives can all too easily be driven out of sight by a variety of competing pressures.4 In a profound study entitled, Science, Faith and Society, and that has aged little since it was first published in 1946, Michael Polanyi commented on the importance of science staying in close contact with what he termed "spiritual reality" and the need for commitment to "emergent meaning and truth."5 Polanyi, in words that have relevance for every area of our lives in western countries, wrote: . . . if citizens are dedicated to certain transcendent obligations and particularly to such general ideals as truth, justice, charity and these are embodied in the tradition of the community to which allegiance is maintained, a great many issues between citizens, and all to some extent , can be left—and are necessarily left—for individual consciences to decide. The moment, however, a community ceases to be dedicated through its members to transcendent ideals, it can continue to exist undisrupted only by submission to a single centre of unlimited secular power.6We ignore the importance of this question of the jurisdiction of science at our peril. For the consequences of defining science in such a way that the moral ramifications of the actions of scientists are viewed as outside some supposedly "pure" realm of research is unwise because who has the knowledge of the new thing but the scientist working on it? As Denis De Rougement once asked, "if science rules the world, who is to rule science?"7 The idea that any area of human endeavor operates outside moral evaluation is just wishful thinking by those who do not want to make the effort to do the moral work required or who wish others to do their thinking for them or who simply "don't care" what the implications of their theoretical work are on the practical level. We are surrounded now by area after area of culture deceived by those who claim that their area operates free from morality: business, law and science, for example all have proponents that suggest the discipline functions according to the "laws of the market place" or the "laws of science" or the some other law than a human moral law. For no amount of knowledge about how things work will tell us either why they exist nor whether what they may do is good or not. Science cannot tell us the answer to the question "why is there something rather than nothing?" Science itself cannot tell us if a discovery will work for the good or ill of people. And no-one is so naive as to say that the question about how or whether to apply scientific discoveries, is an irrelevant one. The idea that we can simply focus upon the fact of discovery and avoid the questions of why or whither—is dangerous. Interestingly this positivism, of the separation of an area of insight from moral analysis, has parallels in other areas of human learning. To take law for example, it is the debate between legal positivists and natural law theorists about whether laws are formal things separate from whether they are good or bad laws, that provides a significant portion of the fodder for philosophy of law classes. Do not ask about the goodness or badness of laws says the legal positivist, if this law satisfies the formal requirements for law then that is all we can properly say about it.8 Isn't this just the kind of debate that is involved between "pure" science and the questions of how the science is to be used? No amount of fathoming the material constituents of bodies will tell us about the soul. And the importance of the soul, of that immeasurable part of humankind, has been the preoccupation of philosophy and theology for thousands of years. So critical is this contemplation of the soul, in fact, that Aristotle in the Ethics says that "the true student of politics must study virtue above all things and must study the soul. . ." And, further, Aristotle noted that classification of which questions belong to disciplines is important: For it is the mark of the educated mind to look for precision in each class of things just so far as the nature of the subject admits; it is equally unreasonable to accept merely probable conclusions from a mathematician and to demand scientific proofs from an orator.9Now neither virtue nor the soul can be measured, quantified or described by science and yet what we are as human persons and communities, what the moral laws are or may be that govern our lives together would seem to be an issue that is fundamental to our communities. To view the matter from another angle, the pure scientist might be very impure person. So to focus on only the purity of science at the possible expense of the kind of person we are training to be scientists would seem to be a highly relevant matter that we ought not to avoid in all our analysis about whatever technique we are discussing — whether it be the scientific method or some other discipline that is being discussed. Science, at the least should not foreclose matters it cannot comprehend. Morals are said to be, in that hideous language of the modern era "personal values" and judges do not wish to get involved in "moral questions." Yet the fact that we are not trained in this area or are not comfortable with an area such as morality or the interface between religions and morals in a pluralistic society, does not mean that we can avoid moral questions: the moral character of a society is a fact. To not discuss or teach about morals is to be taught by that silence. There is no neutral space to occupy since so-called neutrality is filled with morals of whatever sort. And one of the most potentially dangerous statements of the modern world is often seen as one of its greatest affirmations. I refer to the statement that "you have your values and I have mine." When applied to aesthetic determinations such as what kind of food or clothing or music one likes, there is a certain undeniable truth to this statement and "values" as an economic term have a certain private dimension to them. But when "values" are the language we use to discuss moral choices themselves —like respect for life or what used to be called "virtues" then we have taken an objective criterion and made it relative. And it is the relativism of modern life that is so dangerous for our pursuit of shared goods together. The late English judge Lord Denning, one of the most influential and learned judges of the twentieth century, began a talk at Cambridge University in 1982 by quoting the scriptures and asking "what profiteth a man to gain the whole world and lose his own soul?" Now this was a startling thing to hear from a judge in that setting. But Lord Denning knew that law as a technique is not the same thing as understanding the purpose of law or human communities and was urging those of us in the audience to consider a wider context for legal techniques. He was right to do so. And as it goes for the law of society, so it is for the laws of science. They can tell us how things work but they cannot tell us "why" they work nor what their purposes are. They can tell us how such and such a thing might have come about but they cannot thereby inform us whether or not such and such a thing ought to occur. For the minute the word "ought" is introduced, or raised, we are then in the realm or jurisdiction of morals, not science. In an interesting book dealing with the trial of accused former Nazi's in England, one can read the letters back and forth between top- ranked officials in the German government of the day and the executives of the I.G. Farben company.10 The discussion was very scientific. . ..how many "units" could be processed through the particular machinery involving thermal energy and certain human actions in a particular time after another process that involved exposure to a certain chemical pellet. Yet, the thermal energy was the gas ovens and the human actions involved the disposal of large numbers of human beings after they had been exposed to Zyklon B. and gassed. And all this science and business happened only a few years ago. Those letters seemed shocking because the techniques of the corporate world and science seemed so adept at simply avoiding the moral questions. Technique had become entirely separated from moral questions. Have things changed appreciably since that time? How well are we doing culturally in integrating moral with technical questions? At the invitation of a school principal some years ago, I gave a series of talks to a small group of Grade 9 students about the arguments for and against belief in God. What intrigued me at that time was how confident some of the students were that science could explain everything. The students had, without knowing the source, decided that they simply had no need of the God hypothesis or of informing themselves about wider philosophical or theological questions. Somewhere in their training at school or at home (including exposure to television and computers) these students had got the idea that science is the new explanation for everything and has simply replaced religion as an explanatory framework. They did not state this as an observation, or tentative hypothesis, but as a necessary fact. They believed that science is simply a better explanation than religion. Science, being newer, being current, was seen by them as a replacement theory, as being correct, as offering a new explanation for which religion was, in a sense, the old explanation. To the credit of the school principal, he, though not a religious adherent himself, recognized that this matter called for some discussion with his students and that was how I came to be invited to address the class. It was a fascinating and chastening experience and led to the realization that in the contemporary world, perhaps it would be useful to examine in a wider context what opportunities there should be, within teaching of science itself, to raise the questions of the relationship between science and other disciplines including those questions that make us uncomfortable because they raise the borderline questions that are most likely to keep technique and purpose before us. One area in which such issues could be raised is the one that is the subject of this article —what Gifford Lecturer Stanley Jaki has called "the Science of Origins." How well are we doing in keeping context with theory in science?Part II: Case Study of the 1995 Abbotsford School District Dispute over the Curriculum of Biology Courses in High School It may assist our analysis of context and theory to consider a practical example for our discussion of the jurisdiction of science. A good example exists if we take, as a case study, a situation that occurred in the province of British Columbia, on the west coast of Canada between the Spring and Fall of 1995 at a School District in the town of Abbotsford. This debate usefully frames some of the key questions and issues. What occurred was described publicly as a debate about the teaching of creation science in public education alongside theories of evolution. When the facts are analyzed, however, it was actually not about this simple a conflict. And what eventually resulted in the public school Guidelines province-wide was not only the complete exclusion on any teaching of creationism but any teaching or discussion of "creative evolution" or "design theories" as well as a prohibition of adding anything to the curriculum whatever. The Abbotsford situation is a worthy case-study for our topic because as it unfolded it became clear that the role of science in education is one that has widespread implications for political, philosophical and theological disciplines as well, as we saw in Part I of this article. In any case, I would like to first describe a general overview of what occurred in the Abbotsford School District in 1995, what followed from it and then raise what seem to be a few questions that should be addressed.11 This article will not evaluate the situation of science education in other provinces, nor will it deal with the scientific debate at the root of the dispute in Abbotsford. For the purposes of our discussion I would like to see if we can parse out the principles that were operative in British Columbia and see whether they reflect an accurate assessment of the role of science in contemporary culture and, if so, whether that role is one that is proper to science and culture or one that will, over time, cause problems for our common life in community. I will argue that the issue is not, in fact, evolution or creation but something more fundamental than either and that can only be addressed if we look at what sort of questions are properly scientific and what are not. Abbotsford is a largely rural area in the Fraser Valley near Vancouver in British Columbia's lower mainland on the west coast of Canada. The Abbotsford School District, in 1983, drafted a policy regarding the teaching of biology (and specifically the teaching of the theory of evolution) in the high schools in its District. The original policy was drafted in response to the beliefs of many parents and school trustees that alternative theories to evolution and chance origins ought to be available.12 The 1983 permitted the exposure of students to alternative explanations in addition to the theory of evolution in biology classes. The original 1983 Abbotsford School District Policy on the Teaching of the Origin of Life, and which was consistent with the curriculum guide then in place, reads: In view of the fact that neither Divine creation nor the evolutionary concepts of the origin of life are capable of verification by means of scientific experimentation, all teachers, when discussing and/or teaching the origin of life in the classrooms, are requested to expose students in as objective a manner as possible to both Divine creation and the evolutionary concepts of life's origins, with the evidence that is presented in support of each view, and to refrain from any assertions that would set forth either view as absolute.All proceeded quietly until a complaint was made to the Ministry of Education in British Columbia in 1995. Other groups in the Province were concerned about the need for students to be exposed to competing theories. In 1995, the British Columbia Association of Parents Advisory Councils voted on a Members' Resolution dealing with the teaching of science in schools. The Motion was carried and read as follows: Be it resolved that the British Columbia Association of Parents Advisory Councils request the Ministry of Education to ensure the opportunity for students to be:1. taught the most commonly held theories on the origins of our universe and life on our planet, or at least be given a list of resources to explore these on their own;2. encouraged to discuss the pros and cons of these theories without being criticized for their opinions, in order to promote critical thinking skills;3. taught evolution as a theory, not fact.(Minutes of the 1995 BCCPAC AGM.)No doubt the successful passage of this motion concerned those who had reason to wish origin/evolutionary theories and assumptions unchallenged and alternative (religious and other?) theories excluded from the province-wide public school biology courses. Two months later, in April 1995, the province's Minister of Education wrote to the School District indicating that concerns had been expressed about "the teaching of 'creationism' in the science curriculum." The Minister noted in his letter to the Chair of the School Trustees that the Grade 11 (next to final year of school) Biology Curriculum included a component on "Adaptation and Evolution" and that the Curriculum Guide accompanying the course materials "does not contain a component or learning outcomes on 'creationism' as this is not considered a scientific theory but, rather, a religious theory." It was also pointed out that: Teachers may explain to students that science is only one way of learning about life, and that other explanations have been put forth besides that of biological science. However, as these viewpoints, including 'creationism', are not derived from the discipline of biological science, they are not part of the Biology 11 curriculum. . ..While teachers are encouraged to be aware of, and to respect, the personal beliefs of their students, they should do so without providing instruction any one belief system.It was also pointed out by the Minister that the Provincial School Act provides that "no religious dogma or creed shall be taught in a public school." The Minister then sought assurances that the policies and practices of the School District were in conformance with the learning guidelines. This letter was answered by the School Board which pointed out that they had, in fact, surveyed the teachers in the district and determined that "creationism" was not, in fact, being taught in the schools.13 The Minister responded to the Board by saying that ". . .it is inappropriate to add onto, delete from, or replace a unit or topic in the Biology 11/12 Curriculum Guide." The Minister then demanded that the Board's policy be rescinded and replaced with the following policy: In view of the fact that concerns may be expressed by some students and parents respecting the teaching of the topic "Adaptation and Evolution" in the Biology 11/12 Curriculum Guide; and, that the evolutionary perspective of modern biology may conflict with personal beliefs, teachers, when teaching this topic in the classroom, should explain to students that science is only one way of learning about life, and that other explanations have been put forth besides that of biological science. As Divine creation and other viewpoints are not derived from the discipline of biological science and are not part of the curriculum, teachers will refrain from providing instruction in Divine creation, in any single belief system or viewpoint, or adding any other topics or units not already set out in the Biology 11/12 Curriculum Guide. In all cases, teachers are encouraged to be aware of, and to respect, the personal beliefs of their students without providing instruction in any one belief system (underlining additional).Obviously it was assumed that by "any single belief or viewpoint" did not apply to the sole teaching of evolution and chance origins (and what particular form was never addressed). Significantly, "no other topics" could be added. Meanwhile, at the same time, other groups in the community became involved and both the local Teacher's Association (union) President and the British Columbia Civil Liberties Association wrote letters to the Minister to express their concerns about the School District's Policy. According to the union President the teaching of alternative explanations for origins offended the School Act requirement that schools shall be conducted on "strictly secular and non-sectarian principles" and that "no religious dogma or creed shall be taught in the school." In addition, the union President said that the ramifications of the policy could be "devastating" for the community because "few teachers will want to get into the politics of the creation vs. evolution matter" and there is a possibility that some will not teach evolution at all. Moreover, since the Board Policy allows for the teaching of creation, a "most difficult "problem" arises because parents may "push teachers to include Divine creationism in their classes." In one instance, the President alleged that a parent discovered that a teacher was not including any materials on Divine creationism and so the parent wished to have some materials included and gave the teacher a 20 minute video he could show in his class —"this I find extremely dangerous" wrote the union President. While this issue was heating up, the Press was uniformly hostile to the School District and portrayed them at every turn as "fundamentalist creationists." Despite the Board Chairman's assurances that the bible creation story is not preached but that "creation and evolution are presented as theories about how life began and [we] let the students decide for themselves" the critics focused on the provision of materials about creation as imposition against, presumably, the neutrality or fact of purposeless evolution. The assumption was that matters held as "natural faith" but identified as "facts" are to be accorded greater value than views that may be based on alternative explanations whether or not grounded in religious faith. This kind of distinction (that discussion of "design" or other teleological approaches, for example, need not be framed as necessarily "religious") was never raised and Board chairman Sutherland expressed frequently his frustration with the way the media covered the issue.14 It is interesting to note that media coverage failed to point out that science classes are provided in every school province- wide but there is no provision for so-called "religions classes" as the editorial suggests. The dominance of non-design or "chance based" scientific approaches is therefore effectively guaranteed by this approach and was not seen, itself, to be an imposition or "indoctrination" of a view. Quoted in a column in the national article the Globe and Mail (Friday, May 26, 1995), then Minister of Education Art Charbonneau (himself an engineer) stated: To try to construe creationism as science is false and not acceptable to me. . .evolutionary theory, the theory of gravity, the theory of quantum mechanics are all subjects on which one can do objective tests and present evidence. You cannot present tests of religious dogma. Either you believe it or you don't. The School Act specifies that religious teaching will not occur in the public system, and I have instructed the Abbotsford board to correct this problem. [underlining added]Note how "alternative theories" are considered "religious dogma" and nothing may be added to the curriculum. But here, again, no one turned his attention to the possibility that consideration of the strengths and weaknesses of all positions (of whatever sort, evolution, creation, chance and design) would benefit the greater understanding of students and might not as likely lead to the prejudices that a so-called "pure science" approach more readily admits. In addition to the media, other local groups weighed in. The British Columbia Civil Liberties Association wrote to the Board on May 31, 1995 and urged that the Board comply with the Minister's request saying that ". . .the Genesis account of creation should be taught in [the non-existent] religious studies classes, together with the creation accounts of other world religions." The Association stated that the materials used to teach "creation science" "are part and parcel of a fundamentalist Christian perspective" and to that extent the policy of the School Board was, in the Association's opinion, in breach of the School Act provision requiring "non-sectarian" education. The Civil Liberties Association alleged that some of the materials in the District came from the Institute for Creation Research in California and that these materials make it clear that the dissemination of the materials is part of a wider evangelical purpose. Finally, the Association stated that the present School Act "properly attempts to ensure neutrality with respect to religious views in our public schools. . .." The School Board policy would lead to students being ". . .disadvantaged without any understanding of evolutionary theories as they compete for post secondary positions and jobs." Here again, even if (and there was never any evidence of this) the materials being used in classes came from a "fundamentalist" or "Creation Research" perspective, there is nothing to say that the arguments within them could not be usefully critiqued in a program for students in the higher grades. Moreover, even if true, to suggest that these sorts of materials are the only alternative materials available to challenge certain forms of evolution, is simply wrong and testifies more to an overly defensive protectionism than a free discussion of academically respectful ideas. The Civil Liberties Association made no reference at all to intelligent design or teleological theories constituting "dogma" or "indoctrination". This dimension of the discussion was simply ignored. No mention was made that, perhaps, entire confidence in "chance" as the operative cause of everything might not be its own sort of dogma nor that "chance" could well be seen within or as part of an overall system the parameters for which might be established by some teleological framework outside the bounds of measurable science itself. In short, chance could just as much be a part of design as could evolution. The question of ultimate purpose is not "defeated" by introduction of chance or evolution operating within science. As has already been stated, neither "chance" nor "design" can be proven scientifically so to categorize one or either as scientific fact is just bad science. Both ought to be presented theoretically with the "gaps" and implications of both spelled out for students to consider. Fundamentalism, as an attitude, is just as present in false scientific claims as it is in inappropriate religious claims. The issue is not, therefore, evolution versus creation or chance versus design. Why these false dichotomies are the meat and substance of these debates is an interesting aspect of our current disputes. In June of 1995 the Abbotsford Board re-crafted its policy ". . .to promote critical thinking skills, students shall be encouraged to discuss the scientific pros and cons of evolutionary theories and alternative theories. . ."15 The British Columbia Civil Liberties Association remained unsatisfied and said that no "faith-based accounts of the origin of human life. . ." could be tolerated in a public school.16 Note what is implicit in this letter. "Faith based accounts" are for religious studies. The writer, and presumably the Civil Liberties Association itself, considers that belief in evolution or "chance" origins are not "faith based" or equally as "hypothetical" as teleologically based explanations. Chance as the only operative principle is assumed to be, erroneously, entirely factually demonstrable. The literature within science is rife with dispute and counter-dispute about all manner of theories. A "science of the gaps" is just a materialistic analogue to a "god of the gaps." The failure to identify and acknowledge gaps is a mark of ideological brittleness not genuine inquiry. Leading scientists of all stripes have pronounced the notions of chance origin or certain naturalistic assumptions indefensible on this or that front. I was present, for example, at Cambridge University in 1982 when cosmologist and professor of astronomy Professor Fred Hoyle announced to a crowded Senate House containing most of the biology faculty, that the theories underlying the official biological orthodoxies of the day with respect to the origin of life and evolution were, in his view, largely untenable and contained levels of probability that would never be accepted for other theories. Far from being hooted down, many of the people present agreed that there were serious difficulties with the current theories.17 So, to say the least, overconfidence in the entire structure of evolution, without mentioning the serious challenges to its various theories would seem to be misleading and arrogant, if not dishonest. Science and technology need to be informed by moral analysis found outside scientific method itself. At the very least, therefore, the kind of strident exclusion of alternative explanations and corresponding implicit denial of the content of those descriptions leads in the direction of an alienation of science rather than an integration with disciplines that could inform it. The British Columbia curriculum materials make no effort to link the study of science with any philosophy or moral/ethical analysis of any kind. The only formal linkage is to "gender studies" and "multiculturalism" neither of which contain any epistemological rigor in the moral area. In short, it seems that the approach this debate in Abbotsford shows is a bias against alternative explanations for which there might well be valid scientific support and important implications for science to consider. Following the re-drafting of its policy in an attempt to find a midway between the Scylla of Education Ministry criticisms and the Charybdis of maintaining openness to alternative theories, the Board again entered into the odyssey of seeking a legal opinion. The opinion they received from learned counsel noted that the revised policy provided for a balanced approach to the teaching of evolution and other alternative theories but "that is not in accordance with the curriculum." The legal opinion suggested that the policy "must acknowledge that the concept of evolution as set out in the curriculum guide will be taught as a stand alone concept. Neither the policy nor its application provide that evolution is taught as one of two main theories." [underlining added] While policy-making was recognized to reside with the Board it was noted that the Minister had the power, under the School Act, to appoint an official trustee and terminate the employment of Board Trustees were they to be found in "substantial non-compliance" with the School Act or Regulations or Orders under it. While the legal opinion did not consider the policy on the Origin of Life to constitute "substantial non-compliance" it was noted that the Minister "may choose to exercise that option." One might call this the exercise of scientific "neutrality" with a vengeance. It was also pointed out that a school district might develop and offer local programs for use in schools and that such a program could be a program on Origins of Life. Such a program would only be optional and must not be considered religious indoctrination. Further deliberation became a moot point on September 5, 1995 when the Minister of Education issued Ministerial Orders and a revised Biology 11/12 Curriculum Guide to ensure the complete exclusion of "religious beliefs or religious viewpoints" from the biology curriculum (these exclusions continue to the present day —2007) Relying upon the "non-sectarian" provision of the School Act and the constitutional provision in the Charter of Rights and Freedoms guaranteeing "freedom of conscience and religion" the three ministerial orders replaced the province's curriculum guide and learning outcomes. The original 1995 amendments provided: Concern may be expressed by some students and parents because the evolutionary perspective of modern biology conflicts with personal religious beliefs. Teachers should respect these religious beliefs; however, because religious beliefs and views flowing from religious beliefs on these matters are not derived from the discipline of biological science, teachers should refrain from providing instruction in or requiring discussions on these beliefs. Under no circumstances may a teacher as part of a science course, provide instruction in a religious dogma or religious belief system.While respecting the personal beliefs of students, teachers are only to provide instruction in classroom activities in accordance with the scientific purpose and scope of the learning outcomes set out in this curriculum guide. These learning outcomes do not include any religious instruction based totally or partially on an interpretation of religious scriptures or writings nor on beliefs or viewpoints commonly characterized as creationism, theory of divine creation, intelligent design theory, or other theories based on religious beliefs.Similarly, in the choice and use of learning resources to support the learning outcomes of the science curriculum, school boards, administrative officers and teachers should ensure that no religious dogma or religious belief system is advocated or presented as part of the discipline of science. [underlining added]18Much turns, of course, on how "faith" or "religion" is defined in this schema. It is clear from the approach the ministry has taken that only expressly "religious" positions are religious. But this is contentious and avoids entirely any thought of other "faith" positions whether animated by religion or not. After all, all human beings are believers of some sort, the question is not whether they believe, but what they believe in. Of course, contemporary society begins in its definition of "secular" by assuming that it is "neutral" and in any relevant respects "non-religious" or "non-faith." Secularism then urges upon culture a strongly dualistic conception in which only religious beliefs are outside the supposedly neutral "secular." In fact, all citizens being believers, the only beliefs left inside the "secular" by this kind of characterization, are those beliefs that emanate from atheistic or agnostic presuppositions. When the matter is argued this way it is clear that an unfair exclusion of religious beliefs has occurred. In a case that went to the Supreme Court of Canada in 2002, the nine judges of the Supreme Court unanimously upheld a united three justice division of the British Columbia Court of Appeal in finding that "secular" should be interpreted to be religiously inclusive rather than religiously exclusive. The implications of this paradigm shift is in its infancy but it has vast implications.19 The shift has not been applied to the biology curriculum issue in British Columbia. What occurs frequently is that the expressly religious aspects ("creationism") are lumped in with other conceptions ("intelligent design as a possibility or theory") that are not necessarily religious. The Ministry of Education Press Release (September 7, 1995) that accompanied the Guideline Revisions stated that the revisions ". . .have been revised to make it clear to school boards that teaching creationism as part of a science course is not permissible in B.C. schools." But much more than "creationism" was excluded. The Press Release quoted the Minister in the following terms: The science classroom is not the place to provide instruction or require discussions of religious dogma or religious belief systems" said [the then Education Minister]. "It is my expectation that all school boards will comply with the law and ensure that biology courses are offered in accordance with the curriculum guide and ministerial orders. The only place where instruction on religious belief systems may occur is in a locally developed comparative religions course.In a letter to the chair of the Abbotsford school board, the minister required the board to provide a new policy that complies with the revised curriculum guide and ministerial orders by Sept. 15 [1995]. . .. The curriculum guide—which outlines curriculum and learning outcomes for biology 11/12 courses—was changed to clearly specify that, despite the personal beliefs of some students and parents, the unit on adaptation and evolution must be taught. . ... . . The changes provide that creationism, or any religious belief or dogma, are clearly outside the material that can be taught to meet biology 11/12 learning outcomes or the learning outcomes of any provincially mandated course. (emphasis added)One wonders where "design" or purpose/teleology and the possibility of them or even the nature of the debate itself, such as the implications of assuming a universe based upon chance or design, will fit in to any part of the science curriculum or if it will remain preemptively excluded as "dogma" or "religious belief?" There are various leading scientists for whom an acceptance of "design" is separate from both dogma and religious belief. For example, some have suggested that the extreme improbability of life originating "out of nothing" must lead to the suggestion that "life" was introduced from somewhere else.20 Yet the possibility of admitting, even for discussion purposes, the notion that design, or some other operative principle other than (or, in fact, utilizing) chance (such as a version of the anthropic principle 21) is the guiding force behind the universe seems to be foreign to the powers that be in British Columbia and many other places. Faced with the directives and orders, the Board decided that its refusal to comply would likely result in termination of the Board and appointment of a government trustee. The Board decided it would not serve the interests of the community for this to occur and stayed on and complied with the new directives. In light of the entire dispute it is an irony that one of the officially listed "resource materials" that accompanied the "revised curriculum" was a short video showing "the life and theory of Charles Darwin. . .depicted in light-hearted animation." Its title: "Hallelujah Darwin."Conclusion: The Importance of the "Abbotsford Over-Reach" for Contemporary Society Historian of Science, physicist, theologian and Gifford Lecturer, Stanley Jaki has pointed out that: Although nothing is more needed for making a discourse than the air we breathe, nothing is proportionately less reflected upon than the air itself, be it the climate of opinion or the temper of the age, religious or secular.22It is, indeed, difficult to transcend the climate of opinion of the times and we were, after all, formed within that very climate of opinion so sometimes seeing its assumptions proves difficult but may be essential to evaluating our own assumptions. Arnold Toynbee, in his monumental study of history and human societies made some important observations about the relationship between science and religion. He noted that: The truth is that the command over non-human nature, which Science has in its gift, is of almost infinitely less importance to Man than his relations with himself, with his fellow men, and with God... Man's intellectual and technological achievements have been important to him, not in themselves, but only in so far as they have forced him to face, and grapple with, moral [100] issues which otherwise he might have managed to go on shirking. Modern Science has thus raised moral issues of profound importance, but is has not and could not have, made any contribution towards solving them. The most important questions Man must answer are questions on which Science has nothing to say.23Recognition and description of the proper jurisdiction of science from within science as well as from outside it, will enable a better recognition of the jurisdictions of other subject areas as well. Given the importance of these issues to the necessarily moral enterprise of citizenship and culture, much hinges on how these questions will be answered. In the surrounding culture, questions of purpose and meaning are important to us as persons. They are said to be key for mental well-being.24 In this setting, confident and strictly unscientific assertions (implicit or explicit) that "the universe is based on chance" or that "we know that there is no purpose behind the universe" such as are present (implicitly) in the curriculum Guideline under review in this article, need urgent reexamination. As they stand they contribute to a growing problem and add unnecessarily to a stance of purposeless materialism. In a article entitled "Science and Dogma" given at a world Congress on Science and Freedom in 1953, then rector of Hamburg University, Bruno Snell, pointed out that science must be dogmatic in one area: . . .tolerance cannot extend to the enemies of freedom. It is true that the liberal mind is at a disadvantage in the conflict with illiberal opponents, since the fight cannot be pursued by means consistent with the convictions of the liberal outlook. It is all the more important that all those who value the preservation of science—and here I would include not only the scientists themselves, but also the communities in which they live, and which benefit from the achievements of science — should lend their unstinted support to the struggle for the preservation of freedom of the intellect. If we allow science to be lowered to the status of mere technical service, whose functioning is restricted to the discovery of means for the achievement of prescribed ends, we shall sink back beyond the beginnings of European civilization.25This article began with a quotation from Michael Polanyi in which the specter of "unlimited secular power" is held up as the result if commitment to key metaphysical truths is abandoned by citizens. It would be fitting here to close my article with a quotation by his son, Nobel Prize laureate chemist from the University of Toronto, John Polanyi who, in an article written in 1994, notes that mankind can be dazzled by the technological successes of science and fall victim to "perverted science." Such perverted science, he writes is: . . .the invoking of the authority of science to justify inhuman behaviour. For it is this that truly characterizes the century that is coming to a close. . .the central perversion in all this [misuse of science] is the proposition that science operates in isolation from the remainder of human experience. When, for example, the scientist narrows his field of view to one molecule, he is regarded as doing science. In fact, this describes only an aspect of science.The scientist is in the situation of a swimmer who, holding his breath, plunges deeply to examine the sea- bed. Such activities, though necessary, must be temporary. Before long the scientist must resurface in order to integrate his experience with all that he knows of the world through every avenue open to him—including his experience of life, literature, religion and art. It is only then that his findings can illuminate thinking. . .Far from being mechanical and unassailable, science is redefined in the furnace of criticism. Tolerance of dissenting views, and open debate, are the very stuff of science.26What occurred in British Columbia in the Spring and Summer of 1995 and what persists to this day, in the Ministry of Education's express exclusion of certain matters from mention in the biology curriculum in the public schools, is an example of ideology under the guise of science; an example of what Lois Sweet has called "overzealous secular fundamentalism."27 The wish to dominate alternative explanations is a common trait and there is nothing that exempts scientists from this human failing. If our culture, like all cultures dominated by technology, is to remain free and flourishing, then our science must be appropriately tempered by questions that come from beyond science. Humans are free to err but do so to their cost. Just as religion or philosophy can over-reach and infringe upon the proper place of science, so can science over-reach and infringe upon the proper places of philosophy and religion. It is essential, therefore, if we are to maintain a proper concern for humanity and the humane (as John Polanyi urges, above) that contemporary scientists in fact identify and reject antireligious or anti-transcendent biases where they appear and seek to inform science both internally and externally with lines of thought and other disciplines that will humanize science. When scientism28 seeks to include or exclude what it can neither prove nor disprove under the guise of science it must be corrected by other disciplines and within itself by a deeper conception of the richness and limitations of science and scientific method. Civilized society requires that techniques, whether they be scientific or otherwise, are circumscribed by moral boundaries. These moral frameworks have both an internal and an external aspect. The "pure" scientist, in selecting areas for research or in carrying out certain research, must, on occasion, ask moral questions to ensure that the techniques are, themselves, morally appropriate. These questions require both internally and externally a notion of what are the proper ends for human endeavors —and that, in the broadest sense, raises the questions about what purposes (or "designs") exist for human beings. Design, like the existence of God, love, human dignity or justice might well be beyond the proofs of science. But like justice and love, human dignity and God, or even the idea of chance itself, design cannot be disproven by science. We should introduce discussion about the possibility of "design" alongside "chance." Failure to note that there are competing theories for key notions such as origins, evolution, design, chance or intelligence show that a certain kind of arrogance, prejudice or fear are dominant and that scientism has trumped proper science. In this regard, it is important to note a certain kind of scientific fundamentalism that is the counterpoint to a certain kind of religious fundamentalism. An earmark of this scientific fundamentalism is that it fears informing science internally or externally by philosophical or theological questions as much as the religious fundamentalist fears informing theology or philosophy by scientific insight. Both fundamentalisms are culturally destructive and to deal with them both we must deal almost as much with the psychological barriers of the personalities involved as with the theoretical arguments.29 Science and law must not be the unwitting tools of a so-called "secular" (better termed "secularistic") ideology. We must reconsider the proper jurisdictions of science, philosophy and religion and learn that humility and proper tolerance are excellent companions for those committed to honest scientific investigation and the intelligent design and execution of science courses.30 Only this sort of approach enables science to maintain its right and proper place in a society and offer what benefits it can. It seems obvious in light of the arguments, above, that we cannot ultimately answer the question of the role of science from only a scientific perspective. Nor would it seem wise for us to view disciplines as hermetically sealed-off from other areas. In fact, it seems that many of our current problems in the academy and in life are caused by a fragmentation of unitary knowledge or approaches and an all but complete failure to ask questions about how all the disciplines together form a unified whole that must be kept together for the good of society itself. This has long been recognized as a problem and great historians such as Toynbee and scholars of science and history such as Michael Polanyi and Stanley Jaki have noted the importance of keeping science related to metaphysics (philosophy and religion). If this is not consciously understood to be necessary, the technical domain of science will not be informed by the moral questions of the day since morality is not internal to the science quest itself. At certain points in history scientists have had to ask themselves whether either the means they are to employ or the ends they seek are morally acceptable. When this step is circumvented or overlooked grave consequences can result. In a more recent and extremely useful overview of evolutionary theory and some of the attempts made to explain human life in relation to it, the former Director of the Royal Institute of Philosophy, Professor Anthony O'Hear has written: What we have to realize is that the Darwinian world is not just a nasty world, as Dawkins, among others, is ready to concede. It is a world which bears very little relation to any human world or society, in which we do not find nothing other than genes and their bearers striving and struggling for reproduction....Human social life, then, is not Darwinian life. It involves behaviour and habits which go beyond that. The question, then, arises as to the origin and status of the traditions in which our non-Darwinian inheritance is embodied.31To teach a "Darwinian" world without being critical of it is, therefore, a serious error. Yet where are such criticisms to come from if not from the sorts of arguments and approaches argued for in this article? O'Hear shows convincingly that evolutionary theory cannot give a satisfactory account of such distinctive facets of human life as the quest for knowledge, moral sense, and the appreciation of beauty, all of which transcend our biological origins. In fact, "... from a Darwinian perspective, truth, goodness and beauty and our care for them are very hard to explain."32 He concludes his important study with these words: ...one moral to be drawn from this study is that Darwinism, if applied to our forms of intellectual, moral and aesthetic life, is indeed a dangerous idea, as Dennett at least recognizes. For even though we and our capacities may have evolved in Darwinian ways, once evolved we and our capacities take off in quite un-Darwinian ways. It is not just that Darwinian analyses strike at the basis of our sense of self and at our self-respect, though they do that. It is rather that the account that they give of ourselves and our capacities involves a radical and unsustainable re-description of what we are and what we do.33The experience in British Columbia certainly offers guidance for other jurisdictions wrestling with these problems. The current "resolution" in place in British Columbia high schools is not one that could be considered a proper conclusion for science, philosophy, religion or society.34 It remains for more enlightened educators, and better scientific thinkers and politicians, to make the necessary changes and for those in other jurisdictions to learn from the mistakes continued over the last decade in Canada's westernmost province.Dr. Peter Hodgson's Response to Iain Benson's Paper Toronto, July 9, 1999 I have taught physics and mathematics at the University of Oxford for over forty years, and no one has ever told me what to teach. It is taken for granted that I will teach the truth to the best of my ability. If I were a biologist I would teach the evolution of plants and animals as part of that whole stupendous process going back to the Big Bang, and possibly before that. The development of our understanding follows its own internal criteria, independent of external influences. If a student were to ask me where God comes into all this, I would say that as a Christian and a Catholic I believe that God created the universe out of nothing and continually holds it in being. The task of science is to study that universe in all its details. These theological beliefs leave me totally free to study the universe by the methods of science. If someone tells me that I must also teach that evolution is a chance process, that the universe came into existence by chance, and that there is no God, I would reject this as a series of atheistic beliefs that are in no way entailed by the scientific data. If someone says that he is a Creationist and congratulates me on my belief in Creation but says that I have made a mistake about the timescale, that in fact the universe was created 6000 years ago because the Bible says so, I would be obliged to say that this is contrary to the scientific evidence. It is not acceptable either scientifically or theologically to say that God created rocks with fossils already inside them. This is rank anti-science. I would add that I believe that the Bible is divinely inspired, but that if it seems to say something that is definitely disproved by science, then this means that we have misinterpreted the Bible and must think again. This position is fully consistent with the teaching of the Church. If anyone then tells me that as a result of some law I must teach biology in this way or that, I would regard this as an assault on my professional integrity. The only possible response that I could make is to tell him, as politely as possible, to get lost.Dr. Peter Hodgson is the former Head, Nuclear Physics Theoretical Group of the Nuclear and Particle Physics Laboratory of the University of Oxford. He received his M.A. from Oxford, a D.Sc. and Ph.D. from London. His professional memberships include: A.R.C.S., D.I.C., C.Phys. F.Inst.P. His research is in theoretical nuclear physics. He has also written on theology and science, and on nuclear power. Dr. Hodgson's book Nuclear Power, Energy and the Environment has recently been published by Imperial College, London.Notes 1 The views expressed in this article reflect those of the author and not necessarily those of the Centre for Cultural Renewal for which he is executive director. The author gratefully acknowledges those who invited him to address the Toronto Workshop on the Design of Academic Courses in Science and Religion. In particular he would like to acknowledge Professors Trenn and O'Malley and Gordon Baker as it was in conversation with them some time ago that the idea for the article first arose and their invitation to address the workshop materialized ex nihilo. He also acknowledges helpful conversations with Logan Craft, Peter Hodgson, Denis Lamoureux, Brad Miller, John Patrick, Margaret Somerville, John Sutherland and Brian Bix (the latter on questions related to jurisprudence).2 The phrase comes from Dr. Denis Lamoureux in personal conversation with the author.3 The author has profited greatly from Professor Thomas Langan's insights on "natural faith" in his book Being and Truth (Missouri: Missouri University Press, 1996) and from discussions with him over several years. Earlier recognition of the reliance of science upon "natural faith" and the risk of science inappropriately assuming a religious function in culture thereby excluding the questions that are properly religious is found in the "The Tamworth Reading Room" essays of John Henry Cardinal Newman. Discussions and Arguments on Various Subjects (London: Longmans, 1899) p.p. 254—305 and, in particular, "Secular Knowledge without Personal Religion Tends to Unbelief" at p.p. 298—305. The importance of "natural faith" in relation to the understanding of law and what we mean by the term "secular", also in relation to "natural faith" has been examined elsewhere; see: Iain T. Benson, "Notes Towards a (Re) Definition of the 'Secular'" (2000) 33 University of British Columbia

CALGARY -- There is a new class of people being recognized within Calgary's evolving civic aesthetic. We call them "buffalo hunters."Exactly who they are is still taking shape, but there is a growing consensus they represent the "gold rush" culture that produces million-dollar staircases of Italian marble but has the Salvation Army's kettle campaign, for instance, fighting to meet its goal. They are -- notwithstanding the knee-knocking spectacle of a carbon-taxing prime minister Stephane Dion -- the only discernible threat to Calgary's otherwise remarkable economic and fabulous cultural growth.The term "buffalo hunters" refers to those who view their stay in this city as a temporary assignation, not something permanent. Their ambitions are short term, i.e. to make as much money as they can in as short a period as possible before they go "home." Their long-term aspirations, if any, lie elsewhere.No one's saying that buffalo hunters are bad people or that they are not free to accept what this city has to offer and move on. It's a free country, after all, and these are not the "eastern bums and creeps" infamously referred to by Calgary's then-mayor Ralph Klein in the 1980s. Often they are here simply because of a lack of opportunity from whence they came. They need economic opportunity, and Calgary badly needs people willing to work and take advantage of the opportunities that exist here. In that sense, the relationship makes perfect sense -- at least on a temporary basis -- from both an economic and social point of view.It is not a marriage, however. It is a one-night stand. In the long run, Calgary doesn't just need workers -- it needs citizens willing to commit their time, and their money, to the evolution of the city's soul. After all, the temporal attitudes of buffalo hunters have already proven capable of producing devastating cultural consequences."We all see that the day is coming when the buffalo will all be killed, and we shall have nothing more to live on," said Chief Crowfoot in 1877 as he pondered the bewildering circumstances of his people less than 30 years before barbed wire went up across the prairie.Today, we live in a new era of accelerated change that, just as it did to Crowfoot, is making Calgarians anxious. Business leaders are faced with unwieldy staff turnover rates. People come, people go -- making it increasingly difficult to build and sustain corporate cultures, let alone a sense of shared loyalty. The greater the sense of temporary status, the lower the levels of trust. And the trust that comes from commitment is the foundation for spirit -- corporate or civic -- that is the essence of greatness.It wasn't, after all, just the repeating rifle that killed the buffalo. Temporary greed killed the buffalo. Most of the hunters then, as now, just wanted to make as much money as they could in as short a period as possible and ship it back "home." This is a genuine challenge as Calgary's civic, business and cultural leaders struggle to understand and nurture commercial (innovation) and cultural (volunteerism) values that have traditionally been the foundations of what is certainly among history's most economically prosperous societies.There is a lot of excitement in this city. Arts organizations long neglected by the provincial government are nevertheless blossoming commercially and artistically. Communities of shared enthusiasm such as the Red Mile (at times to the consternation of civic planners) are emerging spontaneously as they do in real cities. There is breathless anticipation of a new cosmopolitanism that will be organically Calgarian and not an imposed reproduction of something superficially attractive, yet essentially foreign to the city's soul.Citizens, whether in this city, corporate or otherwise, need a set of shared aspirations, not just economic ambitions, laudable as those might be. People don't just need "buzz." They need to foster spirit, and that is difficult in a city to which a significant number of people have assigned their skills but not their souls.Toronto poet laureate Pier Giorgio Di Cicco, speaking of Enthusiasm and the Creative City during his recent visit to Calgary, put it this way: "City spirit is the engine to city building. Physical construction may give the illusion of a dynamic city, an illusion that may stimulate citizens and create 'buzz'; but the soul of citizenship is what makes a city stand head and shoulders above others."Calgary's next great hurdle probably isn't economic. It's learning to manage prosperity so it continues to invest in the social capital that produced it in the first place.Buffalo hunters, alas, leave only piles of bones and rotting cultural carcasses in their wake. It's all they can do.Citizenship requires more than that.Peter Menzies is a past publisher of the Calgary Herald and a senior fellow with the Work Research Foundation.

Preface and Summary Throughout history the family has always been a mystery. But like all good mysteries, it hides a set of clues about the nature of its members and life itself. The mystery of the family has both internal and external components. Internally, the family is shielded from the world by all those customs and privacies that are necessary for freedom and social decorum. It hides its most joyous and anguished faces from the world around it. Externally, families in relation with one another form neighbourhoods and a host of different communities. These intertwined networks or relationships of citizens, centred on families, make up the state itself and it is the role of the state to serve them. Both aspects of this mystery are now viewed as a challenge by those who fear diversity and true pluralism. In order to avoid a "tyranny of the majority," a society must maintain allegiance to principles that transcend the democratic process itself. But what these principles are is precisely where modern liberal thought is weak. When liberalism became insecure about tradition, it did not see that this would undermine morality as well. Now its rejection of tradition and morality call its ability to maintain liberalism, true pluralism (as opposed to relativism) and democracy itself into question. After all, the principles that undergird democracy (such as respect for the freedom of religion, the sanctity of life or the principles of natural justice) are more than the mere processes of the state, they are moral principles rooted in reason, human nature and the philosophical and theological traditions that gave form to our notions of freedom and truth. Since false freedom lacks morality, it must rely more on the authority of government since "self-governance" of the person is absent. Having sent children out into the street assured of their own "values," we are surprised when their "values" don't correspond with the virtues of fairness, compassion, honesty and temperance, or with other goods that relate to human flourishing. Having stopped teaching about love, we set up tribunals to make every critical word subject to "hate-speech" laws. Slowly but surely, the wrong kind of tolerance destroys our abilities to make the right kind of discernments and any moral discernment is easily characterized as discrimination. Students of political theory have long known that the family and religion have been attacked throughout history by those who give the state an undue role or who allow morality and politics to diverge. At a time when both the family and religion are once again under pressure on many fronts, some of which David Brown discusses in this paper, it should not be a surprise to see those who cannot command public support for their positions use the power of the state and its administrative organs to effect the changes they wish to impose. Many of these changes, such as some in the area of public education, are opposed to the deeply-held beliefs of parents and are being introduced as "health" concerns in the same way that psychiatric incarceration of the mentally fit was said to be justified by totalitarian regimes for the "mental-health" of the dissident. Recently, a "gay-rights" advocate said in a CBC radio interview that parents who wished to deny their children access to a program about homosexuality (styled as "homophobia" and "heterosexism") were guilty of "child-abuse" and that his group was working closely with the Ministry of Education in British Columbia to ensure that this would be considered "child abuse." One wonders how long it will be before perfectly normal families are threatened because their views no longer coincide with the views of those who direct the police. David Brown, who has argued cases before the Supreme Court of Canada, has performed a great service in highlighting how the philosophical errors underlying recent Court decisions have elevated the autonomous person to the extent that any idea of "the common good" has been rendered virtually superfluous. He shows, in tracing the errors through actual decisions and legislation, that faulty theory precedes faulty practice. In Canada today, we have both aplenty. Two of the most influential Christian apologists of the 20th century foresaw the current situation many years ago. As long ago as 1910, G.K. Chesterton wrote that "[m]odern education means handing down the customs of the minority, and rooting out the customs of the majority." This is a situation which any opponent of many of the new "sex-education" initiatives knows only too well. C's. Lewis, on the other hand, saw the importance of family autonomy to the maintenance of democracy itself when he wrote: Where the tide flows towards increasing state control, Christianity, with its claims in one way personal and in the other way ecumenical and both ways antithetical to omnicompetent government, must always in fact (though not for a long time yet in words) be treated as an enemy. Like learning, like the family, like any ancient and liberal profession, like the common law, it gives the individual a standing ground against the State.The family is a natural society which is largely independent of the state and chooses its religion independent of the state. Since the principles of religion also act as a check on the errors of human and social institutions including the state, it is not surprising that when errors begin to dominate the state, both religion and the ecclesia domestica (domestic church) of the family come under attack. As Solzhenitsyn was fond of pointing out, once a lie has been adopted by a state, it can protect itself only by a proliferation of more and more lies. This is the situation which we are beginning to witness in Canada and it will call for the exercise of great wisdom, courage, fortitude, faith and hope to resist the rising developments. It will be a project of the first importance to show the failure of the concept of individual autonomy to those who see it as an affirmation that there is no moral order beyond that which the self wills. Unless contemporary thinking sees that most of our current rights talk has established a basis for institutionalized selfishness, there will be little future for our citizens, families, communities or democracy itself. Where legislation has "amended" the definition of such concepts as "spouse," it has been done without the support of the popular will. British Columbia's recent move to amend the definition of "spouse" in its Family Relations Act so as to move towards giving general spousal recognition to same-sex couples has been accomplished by legislative fiat, without any real attempt to weigh public support and against wide-spread opposition. Where popular will has been sought (as in Ontario), overwhelming opposition has led to the rejection of the change. Novel ideas need to be weighed against historic understandings. In this case, the constant philosophical and theological understanding that marriage (and therefore "spousal status") is heterosexual. The importance of this history was recognized by the judges on the majority side of the Supreme Court of Canada in its landmark Egan decision in 1995. A "democracy" that situates itself outside of the popular will, evaluated within the philosophical/theological history of its culture, is democratic only in name. Governments must make policy for the common-good and this should involve an examination of the principles that underlie the culture. These principles are philosophical and theological and, in our tradition, do not support treating samesex couples as spouses however much we might wish to support the dignity of homosexual or lesbian people in other areas. A democratic state must be concerned with justice, and that necessarily involves a consideration of the common good. David Brown's excellent diagnosis will help those who wish to assist in leading our body politic towards greater health and away from despotic tendencies. —Iain T. Benson Senior Research Fellow July, 1997The Role of the Family in Democracy: Obstacle or Necessity? Introduction In recent years, family and "family values" have entered the political stage as "hot items." Issues which are extolled by some and dismissed by others as remnants of a dusty past. But the debate about the family is important. In fact, a debate about the family could never be unimportant. A tension has now emerged between the family and democracy, which, in large part, is due to a change in our political philosophy or the way that we think about democracy. The concept of individual autonomy is now afforded greater importance than the democratic principle of the "common good." As a consequence of this shift in thinking, fault lines, or areas where this tension between the family and contemporary Canadian political thought are particularly evident, have emerged. Three fault lines which are highlighted in this paper include: 1. the definition of the family 2. the education of the young 3. the scope of parental authority.Finally, this paper suggests that the family is necessary for the proper operation of democracy; precisely because the family is a non-democratic institution.A. The Debate in our Courts For better or for worse, our courts have emerged as the makers of social policy in this country and debate about the family is ongoing, especially in the Supreme Court of Canada. In several recent cases, one group of judges reiterated the central importance of the family to Canadian society and the crucial role played by parents in raising children. In the 1995 Richard B decision, the Supreme Court considered the central role played by parents in the education of their children, particularly with regards to educating them in the tenets of their religious faith. Justice Iacobucci stated: That constitutional freedom [freedom of religion] includes the right to educate and rear their child in the tenets of their faith. In effect, until the child reaches an age where she can make an independent decision regarding her own religious beliefs, her parents may decide on her religion for her and raise her in accordance with that religion.1The 1995 case of Miron v. Trudel debated the rights of heterosexual common-law couples to receive insurance benefits that are traditionally given to the spouse in married couples. In the Court's decision, Mr. Justice Gonthier quoted with approval the following language from a U's. Supreme Court decision: [Marriage] is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.2In the Miron case, Justice Gonthier characterized the family as a foundation of society which, because of its important place in society, deserved the support of legislators. When viewed from this vantage point, the family and democracy appear in perfect harmony. But the Supreme Court of Canada is a complex institution in which flow many different currents of thought. One such current which has gathered increasing strength in the last decade is the concept of "individual autonomy." The notion of individual autonomy is not new, and its origins can legitimately be traced back to the late 18th century. It received a major impetus following the Second World War with the enactment of various human rights declarations and statutes, both in Canada and elsewhere in the Western world. Traditionally, the concept of individual autonomy served to protect an individual from unlawful detention, arrest or surveillance by the state. However, in the course of some Supreme Court of Canada decisions interpreting the 1982 Canadian Charter of Rights and Freedoms, this concept has been significantly expanded. Madame Justice Wilson, in a 1988 decision, defined the concept of individual autonomy in the following language: The Charter is predicated on a particular conception of the place of the individual in society. An individual is not a totally independent entity disconnected from the society in which he or she lives. Neither, however, is the individual a mere cog in an impersonal machine in which his or her values, goals and aspirations are subordinated to those of the collectivity. The individual is a bit of both. The Charter reflects this reality by leaving a wide range of activities and decisions open to legitimate government control while at the same time placing limits on the proper scope of that control. Thus, the rights guaranteed in the Charter erect around the individual, metaphorically speaking, an invisible fence over which the state will not be allowed to trespass.3Where does this concept of the individual lead? According to Justice Wilson: These are all examples of the basic theory underlying the Charter, namely, that the state will respect choices made by individuals and, to the greatest extent possible, will avoid subordinating these choices to any one conception of the good life.4This formulation presents serious consequences for the family. First, Justice Wilson regards the respect for individual choices as the "basic theory" underlying our primary political document, the Charter. While the issue of human action, or choice, constitutes one of the primary matters for political consideration, it is troubling to suggest that we should primarily be interested only in "respecting" the decisions of the individual, rather than evaluating, or judging, the merit of the choice. Indeed, in her second element of the basic theory of Canadian law, Justice Wilson is quite blunt in stating that there should not be "any one conception of the good life." This statement has profound implications for our society and it cannot be ignored as the isolated musings of one judge, for Justice Wilson's conception of the place of the individual in society has subsequently been adopted by other members of the Supreme Court.5 In brief, some of the political implications posed by Justice Wilson's proposition include:If our law should "avoid subordinating (individual choices) to any one conception of the good life," on what basis can our laws be made? Laws are not required where the goal of society is to permit everyone to do what they want. On the contrary, laws restrict and guide the actions of people. As the 13th century philosopher St. Thomas Aquinas once stated, "...law is given for the purpose of directing human acts."6 Justice Wilson's proposition contains a profound challenge to the legitimacy of the very act of making laws.A second serious implication relates to another aspect of lawmaking in democracies. Justice Wilson implies that since there can be no one conception of the good life, then there is no basis upon which to judge good laws from bad laws. For a democracy, such as ours, to rely simply on the will of the majority without providing the majority with any guiding principles for distinguishing good laws from bad, risks reducing law-making to an exercise in decision making by those who wield the most power at any point of time. Rules which rely for their foundation only on their usefulness to the majority, in the end, rely on the exercise of power alone. For example, the slave laws of the American South in the 1700s and 1800s were quite useful—as long as you stood on the slaveholders' side of the line.In rejecting the concept of "the good life," Justice Wilson has rejected the political and ethical insights offered by the philosopher, Aristotle, who divided human desires into two categories: (1) Needs: the desires inherent in our natural capacities or needs such as food, water, shelter or knowledge; and (2) Wants: which are our acquired desires. For example, we do not need different kinds of food to satisfy our hunger, but we acquire tastes for certain food and when we get hungry we want those kinds of foods. In other words, we want things that we don't need.According to Aristotle, a right plan for our lives involves seeking and acquiring all the things that are "good" for us to have. In our quest for "the good life," we must identify the good things that we genuinely need and then embark upon the right course of conduct to obtain them during the course of a lifetime. To do this at the individual level, we must act in such a way that we develop a good moral character and good habits of choice; which then enable us to seek real goods in the right amount, in the right order and in the right relation to each other. These habits of right choice consist of the virtues, both intellectual and moral. Aristotle thought that the political state should help individuals to obtain and possess the real goods that they need by enacting laws which cultivate virtuous conduct. He saw a strong link between laws and the formation of good character, and believed that if the state is to assist individual men and women in achieving the good life, then those who make its laws must be virtuous and understand what the good life entails. Aristotle did not rely on external sources such as divine revelation to illuminate the content of the good life; instead he thought that the good life could be ascertained by people employing right reason. There are three profound implications or consequences which arise from Justice Wilson's rejection of Aristotle's ideas. First, Justice Wilson implies that the distinction between needs and wants is untenable. That is, there is no such thing as "right desire." Second, if no such thing as "right desire" exists, we do not require any faculty or ability to decide what is or is not a right desire. Simply put, reason becomes subordinate to passion. Ironically our age, which styles itself as the culmination of the Enlightenment has, in fact, plucked reason from its pedestal in order to let our passions have free reign. Third, if there does not exist some highest good, or good life, on which we should set our sights, why do individuals need to learn and develop good habits of choice? Any choice will do. By ignoring these implications, Justice Wilson has proposed a theoretical framework for sweeping the virtues (understood as shared goods) out of Canadian culture.The Fault Lines The concept of individual autonomy, as articulated by some of our Supreme Court judges, underpins this new view of democratic life and accounts for the fault lines, or areas of tension, which have developed between the family and Canadian democracy. Three such fault lines have emerged:1. The Definition of the Family It should not come as a surprise that a political philosophy which rejects the sanctioning of any one conception of the good life, should open the doors to a reconsideration of the very definition of the family. In 1952, Mortimer Adler, then Editor-in-Chief of the Encyclopedia Britannica, supervised the publication of the Great Books of the Western World, a collection of the great writings of all times. As a companion to the series, Adler later wrote a series of essays on what he considered to be the 102 great ideas treated by the great minds over the centuries. One such essay dealt with "The Family," and opened with these words: "The human family, according to the philosopher Rousseau, is 'the most ancient of all societies and the only one that is natural.'" On the naturalness of the family there seems to be general agreement in the great books, although not all would claim, like Rousseau, that it is the only natural society.7 Adler's essay summarized the themes about the family addressed by the great writers, all of whom treated the family as consisting of a husband, a wife and their offspring. In the past five years our courts, and on a few limited occasions our elected legislators, have departed radically from this conception of the family. A new definition of the family is emerging from cases dealing with the availability of certain financial benefits to same-sex couples and, as a result, the historical definition of the family now appears at odds with a changed view of Canadian democracy. In the 1993 Mossop case8, the Supreme Court of Canada narrowly ruled that the term "immediate family," as used in a government collective agreement, did not include same-sex couples. Justice L'Heureux-Dube, in a dissenting opinion, canvassed the meaning of the term "family." Her conclusions were that, first, no consensus exists today as to the boundaries of family and the word may have varied meanings9; and second, the "traditional family is not the only family form and non-traditional family forms may equally advance true family values."10 What, then, are true family values? According to Justice L'Heureux-Dube, we have to look at the values that lie at the base of the family and why society desires to recognize and support families.11 Here, according to the Justice, are the reasons why society supports the family: first, it is a vehicle to support social stability; second, it encompasses intimate and emotional relationships; and third, it provides a loving and nurturing environment.12 None of these values, according to the Justice, requires any particular form of relationship, and each value can be accomplished by heterosexual and homosexual couples alike. To the suggestion that one of the key values underlying the family is its importance to society in fostering procreation, Justice L'Heureux-Dube gave two responses. Her first response was that since not all married couples have children, families do not require procreation as an element. For the Justice then, it appears that the fact that most married couples do have children carries no weight. In the past we used to say, "This is the exception that proves the rule," but it now appears that if one can point to an exception, one can conclude that no rule exists. There is a certain degree of unnaturalness in this logic. The court is attempting to employ the scientific method (where an hypothesis is rejected if it fails to explain all observed phenomena) in examining the social behaviour of human beings. Aristotle provided some common sense to those who observe the human condition when he suggested that we should always look "for nature's own norm in things whose condition is according to nature," and not base our observations on exceptions to the norm.13 In her second response, Justice L'Heureux-Dube stated that "though procreation is an element in many families, placing the ability to procreate as the inalterable basis of family could result in an impoverished rather than an enriched vision."14 With all due respect to Her Ladyship, an "enriched vision" of the family divorced from procreation is a vision which will have a short life. It will die out because it cannot replenish itself. Justice L'Heureux-Dube gave the broadest definition to the term, "family," because in her view the purpose of laws which prohibit discrimination and promote equality is to "provide an equal opportunity to make the type of life one wishes... "15 In other words, since democracy conceives of equality as providing an equal opportunity to make the type of life one wishes and the historical definition of the family stands in the way of this concept, the judges stand prepared to change the definition of family. How do judges answer the observation by philosophers, both ancient and modern, that the family is a "natural society" because it is necessary for human welfare. Necessary in the profound sense of the continuation of the species. The 1995 Egan16 decision of the Supreme Court of Canada reveals the Court's disparate views on this issue. Some of the judges essentially adopted Justice L'Heureux-Dube's analysis, accepting the proposition that "it is in the nature of humankind to form family bonds, this desire not being dependent upon heterosexual orientation."17 Justice Cory wrote: "the definition of "spouse" as someone of the opposite sex reinforces the stereotype that homosexuals cannot and do not form lasting, caring, mutual supportive relationships with economic interdependence in the same manner as heterosexual couples."18 Other judges, in the words of Justice La Forest, held that: ...marriage has from time immemorial been firmly grounded in our legal tradition, one that is itself a reflection of long-standing philosophical and religious traditions. But its ultimate raison d.etre transcends all of these and is firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship. In this sense, marriage is by nature heterosexual. It would be possible to legally define marriage to include homosexual couples, but this would not change the biological and social realities that underlie the traditional marriage.19 In their haste, some judges have turned their backs on the experiences and thought of history, including the simple insight that the continuation of any society depends upon the existence, preservation and support of a social institution which will continue the species.2. The Public Education of the Young In Ontario, at least, the concept of individual autonomy now underlies the curriculum offered to young students. For example, The Common Curriculum, which the Ontario Ministry of Education first published in 1993 to outline the goals of education in Ontario's elementary schools, describes the role of elementary schools in the moral education of their young students. Adapting to changing attitudes is a difficult process for all of us and one that can place special demands on students, who are just beginning to develop and test their "values." It is important, therefore, that schools and their programs provide both clear guidelines and a climate of flexibility and understanding in which independent thinking can thrive and in which students can develop values that they themselves consider relevant for the life they envisage. The Common Curriculum, with its emphasis on responding to a variety of needs, provides the basis for such a climate.20 (emphasis added) Two principles emerge from this statement of purpose. First, schools do not teach shared principles, instead they provide a climate of flexible and personal "values." Second, students develop the values which they choose and their choice is based upon their own perception of the "relevance" of the value to their life. Values are determined independently and any commonality amongst the values chosen by different students is pure coincidence. Because The Common Curriculum is predicated on the principle that there is no right or wrong, one cannot find in it a simple statement that students in Grades One to Nine should be taught right from wrong. G.K. Chesterton once wrote: "Education is only truth in a state of transmission..."21 For those parents who share Chesterton's view of education, the "values clarification" approach taught in the public schools collides with the workings of their family life. If at-home parents teach their children that there are right and wrong ways to conduct themselves, their children then proceed to spend a large part of their days in an environment whose philosophical underpinnings fundamentally contradict those of the home. Looking at the issue from the point of view of the state and its schools, the family which functions as a "school in the virtues", challenges the message which the state seeks to impart to the young. Those values are simply a menu of choices, and individuals are free to pick "what is relevant for the life [they] envisage." For parents who object to the educational approaches embraced by the public schools, the option of sending their children to private schools or even schooling their children at home exists in most Canadian provinces. One would think that an education system that emphasizes options or choices would fit in well with the concept of individual autonomy. After all, if no one conception of the good life exists, neither should there exist any one way to educate one's children. This may sound logical in theory, however, in practice provincial governments are extremely reluctant to give up their dominant role in educating the young. The following is a somewhat extreme, but recent example. The Butler family of Red Harbour, Newfoundland, had three children, two of whom were of school age. The Butlers belonged to a branch of the Seventh Day Adventist Church and opted to educate their children at home, in large part to ensure that their children were educated in their faith. The parents approached two school boards to have their home schooling program certified, but the boards refused, although they gave no reasons. The Butlers were then charged and convicted of failing to provide adequate education for their children and ordered to register their children in the local school. They refused, and their three children were subsequently apprehended by the child welfare authorities and placed in foster care. When it was discovered that the youngest child was not of school age, she was returned to her parents. The parents sought to set aside the apprehension order and were successful. The appeal court22 observed that no evidence had been placed before the first court by the provincial authorities to demonstrate that the children were not receiving an adequate education. It is clear from the appeal court's decision that the child welfare authorities considered the religious zeal of the parents to be contrary to the interests of their children. This is an extreme case, but it is remarkable in its implications. For the state to remove children from the care of their parents because its officials disagreed with the strong religious teaching imparted by the parents marks a dangerous intrusion into the inner workings of the family. In essence, the state is saying, 'If you teach your children that there are immutable truths based on your faith, we will consider your children as in need of protection and take them away from you.' This is a sharp contrast to the words of the Supreme Court in the Richard B23 case in which the constitutional freedom of religion was held to include the right to educate and rear one's child in the tenets of one's faith.3. The Relationship between Parent and Child In 1989, the United Nations passed the Convention on the Rights of the Child, which Canada then ratified in 1991. The Convention contains many worthy sections, insisting that states should ensure that all children have the basic necessities of life such as food in their stomachs, shelter, clothes and access to education. Yet several sections of the Convention import the concept of individual autonomy into the family, thereby cloaking children with rights which they can then assert against their parents. One example of this is the right of children to access information published by the mass media. The Convention recognizes two rights of children in this regard: The first is the right of a child to freedom of expression, including the freedom "to seek, receive and import information and ideas of all kinds ... either orally, in writing or in print, in the form of art, or through any other medium of the child's choice."24 But the Article does not contain a limitation subjecting the child's right to seek information to parental review of the materials. Article 17 of the Convention25 provides that governments "recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources." It then goes on to call for the development of guidelines to protect the child from information harmful to his well-being and invites the consideration of the parents. views in such an exercise. But the Article envisages parents merely as one group amongst many that should participate in developing the guidelines for the child whom they have the duty to raise. By injecting "legal rights" into the relationship between parent and child, the situation is created where, to paraphrase Justice Wilson, an invisible fence is erected around each child which parents will not be allowed to penetrate. Parental authority, or guidance, is excluded from important areas of a child's life. This is already occurring in the area of health care, where physicians often will not consult with parents before providing treatment to a child, especially when the child is an adolescent or teenager. Recently, a private member's bill was introduced in Ontario which would require any physician to make reasonable efforts to consult with a parent before providing treatment to a child under sixteen years of age.26 The bill did not make it past first reading and drew opposition from some physicians. groups that regarded it as an interference in the doctor-patient relationship. Yet if the relationship between parent and child is simply equated to, or made subordinate to, the relationship between child and physician, then parents stand in no better position than strangers to teach and guide their child. When we promote laws which push parents out of important areas in children's lives, we risk cultivating parents who then become indifferent to their children's lives. Our legislators and judges sometimes forget that the law also performs an educative function. Do we really want laws to erect invisible fences around each child and thereby encourage parents to ignore the development of their children in those areas? Child welfare laws are necessary to protect the unfortunate child abused by a parent who has abandoned his or her responsibilities to the child. But apart from such cases, laws should not step between a parent and child to remove the child from the teaching influence of the parent. In the Senate last December, Senator Carstairs introduced Bill S-14, a bill which seeks to repeal Section 43 of the Criminal Code. Section 43 reads: "Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances." Simply put, Senator Carstairs. bill seeks to abolish spanking. Parents may have different views on spanking which are reflected in their different approaches to disciplining their children, even though spanking, when judiciously chosen and reasonably applied, has long been recognized as a legitimate form of parental discipline. But for the government to propose to remove from parents a hitherto accepted means of discipline represents a significant intrusion into the relationship between the parent and child, and should not be undertaken without a clear understanding of the consequences to the relationship between parent and child. The impetus for the repeal of Section 43 appears to be linked with the United Nations Convention on the Rights of the Child. In 1991, the federal government founded the Children's Bureau to implement the Convention and the Bureau then set up a committee to study the repeal of Section 43. The committee subsequently advocated the repeal of the section and, in one of its releases, had this word of advice to parents, "Revise your expectations. Young children are naturally loud, curious, messy, willful, impatient, demanding, forgetful, fearful, self-centred and full of energy. Try to accept them as they are."27C. The Family as a Necessity for Democracy When viewed against the backdrop of these court pronouncements and legislative efforts to enter the lives of families, one could conclude that the family, as we have known it, is an obstacle to the democratic progress. It is an obstacle to equality because its historic definition unfairly limits its availability to unions between men and women; it is an obstacle to equality because it rests on the ability of its members to procreate; it is an obstacle to equality because some parents teach their children that there is a right and wrong, rather than promote the more-common notion that there is no one conception of the good life; it is an obstacle to the liberty of the child because parents try to make children do things which they do not want to do or restrain them from doing that which they desire. In all these ways, some could say that the family poses an obstacle to the working of our democratic values as expressed by our highest court or contemplated by some of our legislators. And there is validity to this charge. Families really do pose an obstacle to this new vision of democracy. However, by reviewing the ways in which the family stands as an obstacle, it is also clear that the family is necessary for democracy. The first reason is obvious: the family is the social institution which ensures the propagation of the species and the continuation of society. Democracy requires the family for a second reason. The family teaches children about the proper limits of human conduct. While democracy fosters the exercise of political liberties, it also depends on moral restraints for its survival. If citizens of a democracy are not bound together by a common code of ethics, political liberties will become illusory. This point was best made by an early 19th Century French aristocrat who travelled throughout the United States in an effort to understand the workings of the young republic. In the book that he wrote about that trip in 1835, Democracy in America, Alexis de Tocqueville commented on the crucial role played in American democratic life by another institution, religion. He wrote: If the mind of the Americans were free from all hindrances, they would shortly become the most daring innovators and the most persistent disputants in the world. But the revolutionists of America are obliged to profess an ostensible respect for Christian morality and equity, which does not permit them to violate wantonly the laws that oppose their designs;.... Hitherto no one in the United States has dared to advance the maxim that everything is permissible for the interests of society, an impious adage which seems to have been invented in an age of freedom to shelter all future tyrants. Thus, while the law permits the Americans to do what they please, religion prevents them from conceiving, and forbids them to commit, what is rash and unjust."28de Tocqueville continued: When ... men attack religious opinions, they obey the dictates of their passions and not of their interests. Despotism may govern without faith, but liberty cannot. Religion is much more necessary in the republic which they set forth in glowing colours than in the monarchy which they attack; it is more needed in democratic republics than in any others. How is it possible that society should escape destruction if the moral tie is not strengthened in proportion as the political tie is relaxed?"29This insight is profound. Traditionally, we have regarded our liberties as political ones, founded upon a common moral code. What we have witnessed during the past few years, especially since the advent of the Charter, is a confusion between political and moral liberties, with the Supreme Court of Canada frequently equating moral liberty with political liberty. This risks removing the moral underpinnings required for the exercise of our political liberties. The family serves as one of the most important social institutions which strengthens the moral tie of a country. Parents must not only teach children that there are limits or boundaries to human conduct in a community and what those limits are, but they must also raise their children, through example, discipline and love, to restrain their will so that their conduct stays within those boundaries. The following description of parental responsibility captures well those virtues necessary for democracy which parents must transmit to their children: Parents have the first responsibility for the education of their children. They bear witness to this responsibility first by creating a home were tenderness, forgiveness, respect, fidelity and disinterested service are the rule. The home is well-suited for education in the virtues. This requires an apprenticeship inselfdenial, sound judgment and self-mastery. The preconditions of all true freedom.The third reason why democracy requires the family rests in the way that virtues are taught within the family. The family is the most effective teacher of the virtues precisely because the family is not a democratic institution. Within the context of family, parents indoctrinate their children, in the best sense of that word, and form the character of their children by relying on their authority and love. Their authority guides the child with the voice of tried experience; while their love ensures that any correction of discipline occurs with the interests of the child at heart. Over 2,500 years ago, Aristotle recognized the efficacy of the family in teaching the virtues: In fact laws and customs have the same place in states as paternal precepts and customs have in families. In the latter case supervision is even more effective by reason of relationship and benefit conferred, for the children first love their parents and readily obey them out of natural affection.30Recently Luis Lugo, a professor of Political science at Calvin College in Michigan, pointed out the somewhat strange, but necessary, dependence of democracy on non-democratic institutions such as the family. He wrote: A democratic society actually requires non-democratic institutions to survive. There's an interesting complementarity built into society, and part of it is that people operating in the context of non-democratic institutions absorb certain values that they then can take to a more democratic setting and use responsibly. That is why I am extremely concerned about the push of individual rights into the sphere of the family. Talk about children's rights is alarming, not only because of how it affects the family, which is alarming enough, but because of its long-term consequences for the body politic. I don't think the liberal tradition has sufficiently acknowledged the importance of non-liberal institutions. To the extent that every institution becomes a carbon copy of the liberal polity, the liberal polity itself becomes an untenable proposition.31Some may consider my observations about the role of family to be idealistic and unattainable. Although in this day and age they may sound idealistic, they are not unattainable. Indeed, it is only in the past three decades that this ideal has been displaced. We must not underestimate the critical support which the family provides to our democracy. Democracy may allow us to exercise a broad range of political liberties, but its ability to do so depends upon a well understood and practised set of rules of human conduct. We should not be too eager to subject the family to the influence of the concept of individual autonomy. For every time that the law cuts another tie in the private realm of the family, it also cuts a tie which holds together our public institutions and threatens democracy itself.Notes 1 Richard B. v. Children's Aid Society of Metropolitan Toronto. [1995] 1 S.C.R. 315, at pp.434-5.2 Miron v. Trudel (1995 ), 124 D.L.R. (4th)693, at p.712c, quoting Maynard V. Hill 125 U's. 190 (1888).3 Morgentaler v. The Queen (1988). 44 D.L.R. (4th) 385, at p.485.4 Morgentaler, supra., at p. 486.5 R.v. Zundel, (1992), 95 D.L.R. (4th) 202, per Cory and Iacobucci, JJ, at pp.239-240; and R.v. Salituro, (1991) 3 S.C.R. 654, at pp.673-4.6 Summa Theologica, Pt.1-11. Q.92, Art. 1.7 Mortimer Adler, The Great Ideas: A Lexicon of Western Thought (New York: MacMillan, 1992), p.221.8 Canada (Attorney-General) v. Mossop (1993), 100 D.L.R. (4th) 658.9 Ibid, at p.706b.10 Ibid, at p.712d.11 Ibid, at p.708f.12 Ibid, at pp.708-711.13 The Politics, Book 1, Ch. v., at 1254a28-1254b2.14 Mossop, supra., at p.710c-d.15 Ibid, at p.700e.16 Egan v. Canada, (1995), 124 D.L.R. (4th) 609 (S.C.C.).17 Ibid, per Iacobucci, J. at p.681h.18 Ibid, at p.677b.19 Ibid, at p.625e.20 Ministry of Education and Training, Ontario, The Common Curriculum: Policies and Outcomes, Grades 1-9 (1995), p.8.21 G.K. Chesterton, What's Wrong with the World? (San Francisco: Ignatius Press, 1994), p.140.22 Butler v. the Director of Child Welfare, unreported decision, December 15, 1995, Nfld. S.C. T.D.23 See fn. 1 above.24 United Nations Convention on the Rights of the Child, Article 13 (1).25 Ibid, Article 17.26 Ontario Legislature, Bill 91, 1996.27. "Coping with tricky times: conflict resolution in adult/child relationships," Repeal 43 Committee.28. Alexis de Tocqueville, Democracy in America, Vol. 1, c.17 (New York: Vintage Books, 1945), p.316.29. Ibid, p. 318.30. Nicomachean Ethics, book X, c.9, @1180a34.31. Luis Lugo, "Caesar's Coin and the Politics of the Kingdom: A Pluralist Perspective," in M. Cromartie, ed., Caesar's Coin Revisited: Christians and the Limits of Government (Grand Rapids: Eerdmans, 1996), p.32.

In his Reflections on the French Revolution, Edmund Burke announced what he took to be a 'natural right': 'whatever each man can separately do, without trespassing upon others, he has a right to do for himself'. By calling this a 'natural right' Burke implied that its validity precedes any pronouncement of the law, and that a law that violates it—by criminalizing some act that involves no 'trespass' upon others—involves a transgression of natural justice, and can therefore be justly resisted by those who are oppressed by it. Burke was not the first philosopher to think in this way—similar ideas can be found in Locke, and even in Aquinas. Nor, of course, was he the last: John Stuart Mill's famous pamphlet On Liberty involves a rephrasing of Burke's thesis in terms of 'liberty' rather than 'right', and 'harm' rather than 'trespass'. But it is worth drawing attention to Burke, since his account of natural rights occurs as part of a conservative protest against the 'rights inflation' that he witnessed in the pronouncements of the French Revolutionaries. Revolutionary rhetoric about the Rights of Man seemed to Burke to be so much dangerous hot air, exhibiting a preference for intoxicating abstractions over the concrete realities of legal order. There are indeed natural rights, he believed, but they exist as limitations on the legislative process, rather than as overarching goals. In a proper constitution natural rights are respected, since they are guaranteed by the ordinary procedures of the courts, and the long-standing tradition which limits the sphere of government. The noisy advocacy of the Rights of Man was being used, by contrast, to justify huge extensions in government power, and acts of confiscation and persecution that no court obedient to the principles of natural justice could possibly condone. Burke was of course right about the French Revolution and the danger of seeing rights as positive goals rather than negative constraints. And there is something highly persuasive in the view that legislation should permit people to do whatever involves no 'trespass upon', or 'harm towards' others. However, two problems arise: first, what about the demands of morality? Secondly, how do we define these notions of 'trespass' and 'harm'? Thinkers like Burke assumed the existence of a moral consensus, expressed through custom and tradition, and broadly upheld by a law whose principal purpose was to protect the natural forms of human society. It did not occur to them that subsequent thinkers might try to drive a wedge between the ideas of immorality and trespass, so as to argue that you can breach common moral precepts and still not be trespassing upon your neighbour. For Burke a breach of the shared moral code was in itself a trespass. People have an interest in the conduct of their neighbours, and this interest is violated by the common forms of immorality. Mill's adoption of the 'harm' principal was perhaps the first move towards what subsequently became liberal orthodoxy: namely to distinguish legal from moral wrongdoing. Mill's background assumption was that ordinary morality was not so firmly founded or universally accepted a system, as to provide a sufficient condition for outlawing the behaviour of which it disapproved. There was need for another and more objective test, one that would enshrine and guarantee the fundamental liberal premise, which is that the law exists not to curtail our freedoms but to promote them. By preventing people from harming their neighbours, the law would promote the freedom of everyone. So what is meant by 'harm'? One suggestion is that human beings are harmed by any invasion of their rights, and this does indeed seem to be what Mill had in mind. Although in another sense I am harmed by everything that inflicts suffering upon me, the law does not prevent that suffering if I have no right to escape it. For example, the law does not prevent, but on the contrary enforces, punishment, when the victim has, through some fault of his own, invited it. For punishment, in these circumstances, is not the violation of a right. Likewise the law, which acts to prevent libel and slander, does not prevent people from relaying truths about other people's wrongdoing, however much suffering this causes. It is only falsehood that harms, in Mill's sense, the victim of gossip, since it is only falsehood that violates his rights. It is fairly obvious that the concept of 'harm', so understood, is very close to what Burke meant by 'trespass'. But it leaves open the possibility of separating the spheres of law and morality, in ways that Burke would probably not have approved. This became very clear in the debates over homosexuality and the law, following the British Wolfenden Report during the 1960s. The received liberal view was that homosexual acts between consenting adults in private harmed no-one in the wider world. Those who thought such acts to be immoral could not prove that they violated any right, either of the parties, or of others. Hence such acts could not be legally prohibited. In the case of sexual conduct, the distinction between immorality and illegality has for a long time been upheld. But it is important to recognize that it has not been upheld, as a rule, on the grounds put forward by John Stuart Mill. Consider the case of adultery: this ceased to be a crime in Victorian times. Nevertheless, even if the partners fully consent to the act of adultery, that act harms another—the wife or husband who is the victim. It harms that person psychologically. But it also harms him or her in the sense implied by Mill's criterion: it invades his or her rights. The marriage bond, as normally understood, gives to each partner a right to the fidelity of the other; and even if this is not a legal right, it is on many understandings a natural right, one the violation of which involves an injustice. (So it is described by Aquinas, for example.) Still, someone might respond by saying that sometimes the law permits actions which harm others, because it would be impossible to prohibit them in an enforceable way. Maybe that is the case with adultery, though clearly the Muslims don't think so. Even so this does not affect the point that where there is no proof of harm, the law has no right to intrude. And that, surely, is the case in the matter of homosexual acts between consenting adults. Some people—possible a majority—may think these acts to be immoral; but that is not yet a sufficient ground for making them illegal. If you look at the arguments surrounding the Wolfenden Report and the subsequent UK Sexual Offenders Act 1967, you will find that argument used again and again, and rapidly adopted as orthodoxy. But you will also be struck by the thought that those who so adopted it did not, on the whole, belong to the moral majority. On the contrary, they were part of that liberal élite for whom homosexuality had long been part of the culture. They did not, themselves, experience the clash between legal and moral judgement that they were imposing on others; and to that extent the reforms that they advocated were not, for them, a challenge to their worldview or something that they had to swallow reluctantly, despite its bitter taste. For ordinary people, however, law reform in these matters is not the neutral thing that Mill and his followers suppose it to be. To discover that the law no longer enforces a moral prohibition that is fundamental to your worldview is to suffer a kind of existential challenge: a sense of being cut off from the public culture, so as to stand unprotected in the midst of moral threat. This feeling is part of the daily diet of Muslims in Western society, and we ought by now to be grown up enough to acknowledge it. I am not saying such a feeling is right or appropriate, in our current circumstances. But it is natural, all the same, and the proof of this lies in the fact that the liberal élite is also subject to it. I will give a couple of recent British examples. When the Labour Party took office in 1996, the House of Commons was suddenly filled with people animated by fashionable left-liberal causes, many of them concerning animals and their supposed 'rights', but many also concerning the extension of the permissive agenda in matters of sex. During the next decade we saw the age of consent for homosexual intercourse lowered from 18 to 16, legislation to permit the teaching of homosexuality as an 'option' in schools, and legislation introducing 'civil unions' and quasi-marital rights between homosexual partners. All this was supported with arguments of the kind advanced by Mill, to the effect that 'you may think it immoral; but if you cannot prove that it harms anyone, you cannot forbid it'. And to those who protested that there is, for example, a serious risk to young people in being exposed to homosexual propaganda in school, at an age when it is now legal to engage them in homosexual acts, the response was one of outrage. Such slurs are proof of 'homophobia', and ought to be criminalized. (In Belgium they already are criminalized.) To put it mildly, the debate was conducted at the level of prejudice, with no attempt to investigate whether the reforms proposed might lead to recognizable harm, and from the premise that moral disapproval was in any case no more than a quaint survival of values which have no part to play in a genuinely liberal society. At the same time, however, when it came to animals, the ruling élite took quite the opposite view. One of their number introduced a private member's Bill to ban fur farming, which was subsequently converted into Government policy. The arguments given for the Bill, which had the support of the entire liberal establishment, carefully avoided all mention of liberty, rights and harm. Those concepts belong, after all to the opposition, which could reasonably claim that the liberties of fur farmers were being curtailed, with no proof of harm to other people—and, incidentally, no proof of harm to the animals either. (Though of course to apply Mill's concept of harm to animals is to assume that animals have rights, a contentious position that was not in any case argued in Parliament.) The arguments given for the Bill hinged on something called 'public morality'. By this was meant 'the aspect of morality with which the law rightly concerns itself, with a view to improving the observable conduct of the nation'. To rear animals for their skins, when these were to be used entirely for the production of luxuries, was regarded as so offensive to 'public morality' that it was well within the remit of a democratic state to pass a law forbidding it. It goes without saying that this argument reverses at a stroke the jurisprudential foundations of legal reforms concerning sexual offences. When Hart and Devlin argued over 'the enforcement of morals', it was Lord Devlin's contention that the law had every right to uphold the moral consensus, in the face of liberal reforms which would otherwise permit acts regarded as deeply offensive by the majority. This argument was dismissed by the liberal élite as both oppressive and quaint. Faced with the opportunity to impose its morality on the nation, however, the élite took exactly the same line—with one notable difference, namely, that the 'public morality' which it chose to enforce was not that of a majority, but that of a minority of bien pensant puritans who, despite their habit of wearing leather shoes and woollen cardigans, cannot bear the sight of a Venus in furs. There is another reason for taking that censorious line, besides the desire to impose an élite morality on others who do not spontaneously share it. By arguing from 'public morality', you make the resulting legislation immune to criticism on grounds of proportionality. This is well illustrated by the other example that I have in mind—that of the UK Hunting Act 2005, which introduces the criminal offence of hunting a wild mammal with dogs. The ostensible goal of the legislation was to promote animal welfare, something that it arguably does not do. But the legislation has an inevitable impact on trade within the EU, affecting the buying and selling of hunting horses, and similar matters, in ways that could be said to interfere with the free movement of goods and services within the Union. European treaties hold that any legislation which adversely affects trade within the Union must be shown to be proportionate to the goal that it is designed to achieve. Appealing against the Act on grounds of proportionality, a group of victims (mostly horse traders and livery-yard owners), argued that, since no proof was offered to Parliament that animal welfare would be bettered by the Act, and a large section of Veterinary and other opinion was convinced of the opposite, the Act could scarcely be held to be proportonial to its aim. In the face of this the Government shifted its position, arguing that in fact the goal of the Act had been to uphold 'public morality', that regardless of the effect of the Act on the well-being of deer and foxes, that even if it could be shown that those animals have been seriously harmed by forbidding what some argue to be the most humane way of culling them, it is still offensive to 'public morality' that people should be seen scrambling across the countryside in pursuit of a helpless animal, their faces aglow with unseemly pleasure. That argument, which of course reminds one of H.L. Mencken's definition of puritanism, as 'the haunting fear that someone, somewhere, might be happy', was adopted in the Court of Appeal precisely in order to escape the test of proportionality. If the argument for legislating against against hunting is that it is immoral, then nothing short of a ban can achieve the legislative goal. Any attempt to argue for less stringent measures will be defeated from the start, and there is no need for Parliament or the courts to measure the proportionality between the measures imposed and the effect achieved. But once again the 'public morality' being urged upon us by the politicians is the morality of a minority: one that can see nothing wrong with laws that destroy the privileged position of heterosexual marriage, that expose boys barely out of puberty to the advances of their homosexual teachers, or that do their utmost to legislate the gay 'scene' into a normal and accepted feature of modern life. The argument from 'public morality' is being used to forbid what is disapproved of; that from liberty to permit what is desired. There is neither consistency here nor principle, but simple opportunism. I think we would all agree that, if there really is to be a distinction made, between moral and legal wrongdoing, and between the sphere of private freedom and that of public control, there must be some principle which we can invoke in order to draw the boundary. Whether or not that principle is the one advanced by Burke or Mill, or whether some new formulation is needed, it must exist if we are to have an objective procedure for determining what the law can and cannot forbid. If we don't have that procedure, or if we can chop and change, invoking liberty when liberty goes in our favour, and 'public morality' when it goes the other way, we are only pretending to distinguish law from morality. And recent experience of the UK Parliament, which is peopled by a new breed of inverted puritans, who are every bit as keen to impose their views on the rest of us as their 17th-century forebears, and every bit as keen as those forebears to claim the exemptions required by their own beliefs, suggests that there is a real temptation among those who find themselves able to make laws for the rest of us, to be guided not by the love of freedom but by the morally-inspired desire to extinguish it. This, it seems to me, is the crucial point. You cannot have it both ways. If there is to be a genuine limit to the enforcement of morals, then it must be a limit for the liberal just as much as the conservative. It must be a limit that anyone could come up against, if he really has moral convictions, over and above the conviction that people should live according to liberal laws. If someone comes up against that limit, and then invokes 'public morality' (meaning his own private morality writ large) in order to transgress it, this simply means that he doesn't recognize it as a limit. Law for him is the servant of his own morality, and the morality of others is not the master of law but its slave. In response to this impasse I want to return to two ideas that I have so far passed over: Burke's idea of trespass, and the distinction between the private and the public spheres. In land law a trespass is an invasion of a right of property; but Burke meant the term more generally, to denote any invasion of a right. In the Lord's Prayer the term is used to mean any kind of wrong, committed against others and against God. Invasions of right are wrongs committed against the person whose rights they are; but there are other wrongs, which cannot easily be expressed in those terms. Consider indecency, for example. A person who indecently exposes himself to passers-by commits a wrong against them; but not because he is violating a right. His wrong consists in presenting them with a perception that they do not wish to have: he does this voluntarily, and is therefore to blame. But there is no 'natural right to unsullied vistas' that he violated. If the law protects people from indecent exposure it is because it recognizes that there are ways of disturbing, unsettling and provoking people that go beyond their natural rights. Nor can we say that people are harmed by indecent exposure. Maybe the extremely young or extremely sensitive can experience serious mental repercussions. But for most of us the reaction is simply one of disgust, together with indignation that anyone should have the presumption to inflict such a thing upon us. The perpetrator of this act is crossing a barrier, and that barrier must remain in place if we are to enjoy the peaceful coexistence among strangers that is the norm of human society. This brings me to the other idea that I had previously passed over: that of the distinction between the public and the private spheres. Some actions, we believe, are permissible in private but not in public. Undressing is one of them, defecating another. And the concept of decency is absolutely essential to defining the distinction between them. There is nothing indecent about the act of undressing in private—not, at least, in the normal circumstances in which this act occurs. There is nothing indecent about the love-making of husband and wife in private. But when these acts are put on display they take on another character. They lose their innocence; they become an affront, a challenge, and an invitation to states of mind that have no place in the public sphere, and no place in the private sphere either—voyeuristic states which we regard as repugnant, without necessarily overcoming thereby the temptation to indulge in them. Now it is here that we begin to see the significance of the word 'public' in the phrase 'public morality'. The public sphere has its own moral norms. There are things which, while innocent enough in private, lose their innocence when put on display. They lose their innocence because they invade the emotions and the peace of mind of those who observe them, upsetting the delicate balance on which the routines of society depend. Obscenity is the paradigm case of this—though one that it is increasingly difficult to see for what it is, namely, as an invasion not only of the public sphere, but also of the privacy of those who inhabit it. The obscene performance is one that puts something private on public display. It breaks through the barrier between public and private, violating the sense of decorum without which people cannot maintain the objectivity and distance from each other on which the public sphere depends. The point here is not one that I find easy to make. However, here is one way of putting it. In our daily lives we make a radical distinction between the rules that govern our intimacies and those that govern our posture towards those with whom we are not intimate. The rules of the public sphere exist to maintain the kind of distance that makes it possible to live without existential involvements, to negotiate our path through the world of strangers with minimum entanglements and always by negotiation and consent. These rules must be anchored in law if they are not to be exploited by the predators and egoists, who will use them to their own advantage. For example, the public display of sexuality and sexual readiness, which seeks to rewrite all distant and objective relations as forms of entanglement and intimacy, must be strictly controlled. If it is not, then people will begin to see the public sphere as merely a messy and promiscuous version of the private, one into which they are at risk from the predators, and constantly invited to perceptions and emotions that are incompatible with a life among strangers. Now the law exists to protect individual rights and freedoms; but that is not its only function. It also exists in order to protect and foster the public sphere. The purpose of the division between private and public is not, as liberals suppose, simply to maximize permission in the private sphere. It is there also to impose order in the street—the kind of order that is the precondition of the freedoms that we enjoy in the public sphere. The purpose, in other words, is not merely to enlarge the liberties enjoyed in private—valuable though many of these are—but also to confine those liberties to the private sphere, and to ensure that the things that people do in their bedrooms are not put on display in their windows. If we do not accept that this is a legitimate function of the law, then we are in danger of losing the public sphere altogether. The forum in which strangers can act freely but at a distance from each other, in a posture of mutual respect, will be eroded. Many say that it is already being eroded, as pornography and 'in your face' rudeness gain a hold of the media and the manners of the street. Nevertheless, the law still does its best to maintain the rules of decorum, and to ensure that those who transgress them do not transgress them with impunity. If we look at matters in that way, we can, I think, see another approach to the question of law and morality than that advanced by Mill. It is not that the law should withdraw from the moral sphere, making no judgement as to right and wrong, and concerning itself purely with the maintenance of rights—including the right to be wrong. Nor is it merely there to protect the individual from harms wrought by others, leaving him free otherwise to wreak whatever harms he chooses on himself. The law is there to maintain a public sphere, in which freely chosen relations between strangers are the norm. The law may permit activities between consenting adults that it forbids in public: but the goal may be less to permit private freedoms, than to prevent their public display. On that view, there really is such a thing as 'public morality', which it is the business of the law to enforce. Of course, it is not the morality of the animal rights activists, nor is it offended by the wearing of fur (unless in the manner described by von Sacher-Masoch in Venus in Furs). It is the morality of public decorum, which seeks to confine those activities which have no part in the free society of strangers, to the sphere where they belong. Seeing things this way we can propose limits to legislation that will impede the ambitions of the puritans, whether liberal or conservative, while also retaining laws of decency and decorum that protect our shared investment in the public sphere. Liberals could have their way in permitting homosexual acts between consenting adults in private, while conservatives could have their way in forbidding sex clubs which put those acts on display. Liberals could have their way in forbidding dog-fights and other activities in which sadistic gloating is given public endorsement, while conservatives could have their way in permitting hunting with hounds and the occasional fur coat at a party. Both will be constrained, both annoyed, but neither mortally offended.

A Presentation to the House Standing Committee on Justice and Human Rights Parliament Hill, Ottawa, Canada November 6, 2006Introduction Constitutional litigation is in everyone's interest. No one group owns the constitution and no one set of aspirations controls how the constitution will change and develop as it is interpreted over time. In an open-society the capacity for self evaluation and criticism is a good thing. In that respect, having a system that permits evaluation of laws against a constitution is to a certain extent healthy. Similarly, providing financial assistance to those who cannot afford litigation, if done fairly and appropriately, can also, with some important caveats, be a good thing as well. I am not concerned, today, to praise the CCP as it was or to bury it. There can be no doubt whatsoever that the CCP did important and formative work in Canada for many years and significantly achieved its outcomes of influence through constitutional litigation. It had advisors of the highest ability and strategists of considerable brilliance. Its track record speaks for itself. Perhaps we now have an opportunity to rethink what sort of programs will serve the country best going forward: programs will come and programs will go. What is buried as a "dead duck" can sometimes rather quickly, show the characteristics of a Phoenix. The effects of the program cut leads to considerations well beyond the footprint of the previous program. Those who wish continuance of the prior program form one of the most powerful lobbies in Canada today. So I would like to offer some principles which, it seems to me, ought to concern us all and be applied to considerations should such a program of financial assistance for constitutional litigation be considered again in Canada. First, I would like to raise a concern about such methods of governmental constitutional litigation support generally and, second, set out some principles that might be useful to consider should programs of constitutional financial assistance be considered again in the future.PART 1: Why we should be concerned about governmentally supported constitutional litigation and why we should be careful how such support is set up and who will decide on applications. It is often said in Canada that the relationship between the courts and the legislature is a "dialogue." If that is true then it is also true that, in a further sense, the debates within cases themselves are part of that dialogue. There is a dialogue and a debate about the nature of the constitution carried on within each case and then between cases over time. Society itself and the law that is part of it are dialogical. It changes over time, in part due to the debates and discussions and self-understandings that are part and parcel of our common lives together. Thus, in cases on any particular theme, there are, as strategists well know, developments and a good strategist chooses cases carefully with a view to obtaining the desired outcome over time. Because the results affect everyone it is essential that the greatest access possible be given to citizens. The Repatriated Constitution of 1982 and the Charter of Rights and Freedoms that forms a part of that constitution is no longer in its infancy. It is now, if we assume its birth in 1982, 25 years old. But it is, in fact, considerably older than that because, as scholars of the constitution know it is based much earlier and those principles, were not buried in order that the constitution of 1982 could live, but were incorporated in a very real way to provide the body within which such things as the Charter of Rights functions. Interpretation of the Charter, now over two decades of it, has accomplished a great deal. Interpretation is an ongoing reality and our constitution is, as we are told frequently, a "living tree." It is useful to recall that trees are not usually found alone, they are not the only growing things and, second, they are dependant upon a soil that will nurture them. That garden, too, is a living reality. Threaten the soil and you threaten the tree itself. Constitutional documents are words on paper unless the living reality of the community breathes life into them in its day to day being. It needs to be clearly understood that Canada is not the Charter of Rights and the Charter of Rights is not Canada. This is important to understand because there are those, in fact quite a few, who seem to speak as if Canada will be developed, furthered and based "on the Charter" which is shorthand for saying "by the judiciary" or within that "dialogue" between legislature and the courts. We must remember, however, that there are other equally important dialogues at work. One of these is the dialogue within cases themselves, the very debate of principles that is located within each piece of litigation. This dialogue needs to be as well developed as possible in order for the best arguments to be formulated for the benefit of courts or legislatures and, ultimately, the constitution itself. This wider perspective has long been recognized as important in a constitutional assistance project. Recall that the Court Challenges Program funded not only litigation but conferences and even discussion between government officials and members of activist organizations on a particular theme1 and in recent Reports suggested that it should be extended to the provinces as well.2 In such an environment it is important that this be done openly and fairly and not just from one perspective. Any method of governmental assistance for constitutional litigation needs to be aware of the problem of rights' disputes in terms of society itself3 and the fact that ALL citizens should be encouraged to be part of the dialogue that is constitutional litigation. If we assume that courts are not merely necessary but are sufficient for the maintenance of a constitution we assume too much about the role of law. That is the central point of my comments today. For any program of constitutional litigation assistance to be just it must be open to everyone not just to those challenging laws but to those defending them or arguing against a particular sort of challenge (where there is no "law" as such in the area—which was the situation in the "same-sex marriage" cases). If constitutional litigation is going to effect everyone then those who may need assistance in relation to that litigation do not all come neatly labelled as "challengers" and therefore any program seeking to develop constitutional interpretation must do so on a neutral basis and not only assist one side of the arguments. What is constitutional is not just what is new and challenging; it can also be what the parliament and legislatures, federal and provincial, may have brought into place already. In addition to this we must realize, as well, that litigation is not the best strategy for a state to use as a method for nation building or the creation of communities of respect. There are serious drawbacks to litigation. As Canadian philosopher Charles Taylor has noted: Judicial decisions are usually winner-take-all; either you win or you lose. In particular judicial decisions about rights tend to be conceived as all-or-nothing matters . . . The penchant to settle things judicially, further polarized by rival special-interest campaigns, effectively cuts down the possibilities of compromise.4When litigation is being used this way, however, because we are encouraging it to be so used, it would make sense to ask what kind of equality is being pursued. Is the outcome, for example, based upon an assumed "rights as trumps" model or the establishment of a genuine diversity respect around a modus vivendi.5 Any program suggesting that the courts are the best or only place to develop constitutional principles confuses the ability to do so with the appropriateness of doing so. It is true that the ultimate word of interpretation is the courts, but that is not to say that it is the only or best place to raise matters of interpretation and debate in relation to already established or currently wished for alternatives. In other words, we need to consider that recourse to courts should be a last resort not a first one. To view "court challenges" as the best, only or most appropriate means of developing principles to "change society" asks too much of the litigation process due to the limitations of that process to which I have already referred. It invites us to view law as a means of social re-structuring and will inevitably (as we have seen) provide a temptation to use law inappropriately to achieve legal outcomes of a particular kind not outcomes argued for in the give and take of democratic debate and social consensus. While laws can, and often are, remedial (a principle of interpretation has it, in fact, that all statutes are assumed to be remedial and must be interpreted in a generous and liberal manner so as to further their purposes), it is quite another thing to view constitutional litigation itself as the means of achieving social change rather than just the protection against inappropriate state action. Why is this? Litigation is not suited for balancing interests. In the courtroom are those who can afford to be there or those who are being severely negatively affected by the costs of the litigation, nowhere more so than on large-scale constitutional cases. Many times cases before the court fail to include those, who while they may have an interest in the area, cannot afford to be part of the discussion. To that extent, governmental assistance for constitutional litigation could be a good and necessary thing, if done fairly and with the national interest in mind, so that everything it does is done in a fair, transparent and time-appropriate manner. Providing access to a privileged fund for litigation to those who fit a politically driven conception of disadvantage and the necessary outcomes may sound fair, but it is not, when a framework of litigation itself end runs the possibilities of debate and balancing that can occur better elsewhere. In short, it does not assist those with a perfectly acceptable "traditional" view of a matter whether it is abortion, same-sex marriage or the funding of public education; it only assists those who oppose them. With invitations to use the courts precisely to change society in a pre-ordained direction, or, as it is put in the newspeak "advance equality seeking groups" the focus of social change and development is liable to be judicial, not legislative and one-sided instead of inclusive. There are many reasons this is unwise in a democracy. For one thing, funding one-sided litigation is no way to frame a society because litigation is a big game of "king of the castle." Each case offers one side a win and the other side a loss. This is not good for society to rely upon. There are often, as in many current debates for example, a variety of views that should be tolerated in society even though they are in stark disagreement. Should the court give in to one side of these debates it tends to put pressure on the other side to shut up and leave civil society to the victors. The results of such a strategy over time are hardly a recipe for justice, long-term civil peace or negotiated achievements—the kinds of "possibilities of compromise" already referred to. There are good reasons why law should be understood to have its own limited jurisdiction. One is that many of the things that must inform the law (politics, philosophy and theology to name three) are outside it. As Chief Justice McLachlin observed in her Cooke lecture: Canadians have embraced their constitution as a means to achieve justice; they have not yet established a consensus on where that justice comes from and on what it is based.6Clearly the search for such a "base" will not be found entirely within the law itself but will involve the contributions of other disciplines—a further reason for the kind of comprehensive approach already recognized as important by the former CCP. This proposal would simply see such comprehensiveness broadly based rather than narrow but comprehensively driven (as with the CCP approach). In a widely known passage, Chief Justice Dickson in Canada's first case dealing with Sunday closing legislation, speaking for the Court, stated that it was important to recall that "the Charter was not enacted in a vacuum, and must therefore...be placed in its proper linguistic, philosophic and historical contexts."7 In Egan v. Canada, the first Supreme Court of Canada Charter case to deal with whether a same-sex relationship should be considered a spousal relationship, Justice La Forest added "religious traditions" as a category to be taken into account as an aspect of the ground or basis of our legal tradition.8 How are we to best do this task of placing the Charter in its proper linguistic, philosophical, historical and religious traditions if we do not do it with maximal inputs from the people and groups who can best tell us what these are? In one of the Recommendations, below, I argue that litigation is not the best way to accomplish the kinds of reflection most suited to the effective judicial decisions. Some will argue that taking the approach I am advocating, placing less emphasis on litigation, would not lead to the results we have seen through the courts in the first two decades of assisted litigation. They may point to such developments as equality jurisprudence or same-sex advancement as two examples where strategic litigation with a particular purpose in mind was successful. That may be so. On the other hand, Canada's current position in relation to both issues is hardly a sterling example of the creation of civic confidence. Debate and analysis in relation to both subjects (equality and the scope and nature of sexual orientation protection and advancement) still exist and in relation to same-sex marriage might erupt sooner rather than later again. We would have had a more measured, nuanced and richer understanding of the necessary limits to various claims (on all sides of the issues) once we sat down at the table and debated things without recourse to the guillotine of litigation in the way that happened in Canada. Canadians have not yet had any proper discussion about whether marriage is properly a matter for the state once the conditions of agreement about what marriage is no longer command general support. The state got into marriage very late in history after all. Yet the manner in which same-sex marriage challenges were pushed in the courts with careful strategy that skirted around the edges of marriage then dove into the heart of it did not leave room for a proper analysis of marriage in relation to the state. A big part of that failure of analysis was precisely the way in which litigation with its "winner take all" prize provided a goal for litigants. Yes, constitutional rights are important and the courts have a necessary role in defending them, particularly when the state is acting against individuals or groups: but it is a necessary role the courts' have, not a sufficient one. When recourse to law is used as a foreclosure on debate we see what happens to democracy when debate and analysis (best suited to Parliamentary and Legislative Committees and more flexible formats than courtrooms) are truncated by premature recourse to judicial determination. It is well known that hearings by the Justice Committee of the day were simply cancelled once the government of the time, with no caucus discussion, no discussion in the House, in short, none of the usual opportunities for analysis and discussion, simply skipped the matter to the Supreme Court in the Marriage Reference.9 That was not our finest hour and our analysis of the optimum relationship between the irreconcilable views of citizens and the state with respect to same-sex marriage has suffered as a result. We have only seen the beginning of the disputes that will erupt in such areas as public education curriculum.PART II: Recommended Principles That Should Apply to Any Government Initiatives to Assist Constitutional Litigation. The items that follow are not intended to provide an exhaustive list of key principles but only some of the more important ones. Specifics will have to be worked out through discussion with stake-holder groups should it be deemed advisable to establish a constitutional litigation assistance program in the future. It is important to note that the focus of these recommendations is not litigation only or even primarily but as an adjunct to a more widely consultative and representative process than has existed in the past.1) Assistance should seek to best elucidate the merits of both challenges and defence to laws since constitutional merit does not belong only to challenges: Any program should not operate to assist only those challenging laws since there is or should be no principle of constitutional equity, express or implied, which states that "challengers are always right" or "defenders of the laws are always wrong." To give financial support only to "challenges" biases any support program against existing laws and those who support them—some of whom are, themselves, disadvantaged minorities. Any litigation assistance program must operate, therefore, in terms of advancing the best arguments to assist the court to frame the issues before it, not to pursue a favoured outcome by one side of the argument. That has been a cardinal error in how the former program was set up from its inception; one glance at the title will make that clear.2) So that all citizen groups may have confidence in its fairness any Constitutional Assistance Program should be set up with representative fairness: Transparency and fairness apply not only to the Reporting requirements and accountability of any program giving out government monies, but also to the question of who staffs such a program and who decides about applications. As far as practicable it would seem to make sense to involve those from a variety of different groups themselves (we know from the history of litigation in this country over the last many years who these groups are) as part of a Board of Advisors or Members making decisions. This Board would have full access to all materials and would make up its own Report for the assistance of the government and the public. Currently there is a widely shared perception that the former program represented a narrow ideological band of Members leaving many groups "out in the cold." Annual Reports, for example, did not give a list of all the cases in which assistance was given by the program but only a "selection" of such cases: this is unacceptable.3) Once the courts have granted Intervener Status to groups in a constitutional litigation, funding assistance to a certain level should flow to all sides of the litigation subject, perhaps, only to a "mean's test" principle: This could be done on a demonstrated needs basis for individuals or for charitable or not for profit organizations. The elucidation, by the courts, of the application of the constitution affects everyone and it is unfair that only one side of the arguments are supported by the tax monies of all citizens. Once a judge has determined that particular bodies have an interest and valid representative status in a constitutional litigation it should follow that recourse to financial assistance is possible. This is not the place to spell out what rules would apply only that some rules are necessary to ensure fairness and the feasibility of such an assistance program should any be put in place again in the future.4) There is a need to clarify the role of litigation participation/education and advocacy in relation to charitable status. The history of certain groups10 in relation to the Canada Revenue Agency and generalized concerns expressed by many others, suggests that clear administrative statements showing why some groups are entitled to active legal and political involvement under the rubric of "education" while others are denied it, is in order. Perhaps it is time to recognize frankly that legal intervention and advocacy necessarily have a political dimension and we should be careful that a political dimension to a group's work not be used to deny recognition or access to funding to those who might well have important contributions to make to debates of the day. Given that constitutional matters require inputs from philosophy, political theory and theology/ religious studies, it is time to re-evaluate a restriction on the very groups whose participation might well assist constitutional reflection.5) Instead of focusing governmental monies federally or provincially primarily on "court challenges," for some consider establishing a Constitutional Forum for stakeholders that will benefit all Canadians: The establishment of a Constitutional Forum to foster discussion and debate from representative organizations will go a long way to encourage genuine dialogue and ameliorate a spirit of "sectarianism" between groups of differing perspectives on issues of the day. In line with what has been proposed above, such a body, if it is seen to have a role in a reinvigorated place for constitutional "dialogue," might well come to be seen as important to politicians and the judiciary for the analysis so often missing in the vast areas of non-discussion that end up seeking the "winner take all" results of court-based processes. Use of such a forum could, in fact, be incorporated into a litigation assistance program as a requirement prior to financial support being given. This would go a long way to restore confidence in the representative nature of any assistance program and the rigour of its analysis. A constitutional forum of this sort would be innovative, creative and progressive in Canada. It would build upon and advance what has gone before while correcting the errors that became manifest in the Court Challenges Program. THE FOREGOING IS RESPECTFULLY SUBMITTED Iain T. Benson Barrister & Solicitor Executive Director Centre for Cultural Renewal Ottawa, CanadaNovember 6, 2006 www.culturalrenewal.caNotes 1 In its Report for the years 2000—2001 the CCP funded negotiations described as follows: 3.3 Negotiations EGALE—definition of spouse in federal legislation (Bill C-23)—This group undertook negotiations with the Federal Government concerning proposed changes meant to bring Federal laws dealing with relationship issues into conformity with the Charter. The Federal government's Bill C-23 amended the opposite-sex definition of spouse in 68 pieces of federal legislation to include "common-law partnerships" of either heterosexual or same-sex partners. The full Report may be found at: http://www.ccppcj.ca/documents/annrep0001.html2 The most recent Report available from the CCP has an introduction by Chantal Tie, Chair of the Board, which shows the program's wider ambitions as follows: . . . the importance of the Court Challenges Program (Program) cannot be overstated. Comprehensive strategies, which include social mobilization, academic analysis and commentary and strategic litigation, need to be developed in a coordinated and comprehensive manner. Now, more than ever, the expansion of the Program's mandate to include challenges to provincial legislation has become urgent for our members.See Report 2004-2005, p. 4 available at: http://www.ccppcj.ca/documents/Annual-Report-2004-2005.pdf3 Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991).4 Charles Taylor, The Malaise of Modernity, (Toronto: Anansi, 2001) p. 116.5 This theme is explored at greater length and with particular reference to contemporary political philosophy and the nature of two kinds of liberalism in the paper the writer prepared at the invitation of the Canadian Bar Association National Conference in Newfoundland, August 2006. That paper, "The Context for Diversity and Accommodation in the Democratic State: The Need for a Re-evaluation of Current Approaches in Canada" may be found at: www.culturalrenewal.ca under the heading "Resources."6 Madam Justice Beverly McLachlin, "Remarks" given as the 2005, Lord Cooke Lecture, Wellington, New Zealand, December 1, 2005, at p. 13 see: www.scc-csc.gc.ca/aboutcourt/judges/speeches/UnwrittenPrinciples_e.asp7 R. v. Big M Drug Mart Ltd. [1985] 1 S.C.R. 295, 18 D.L. R. (4th) 3218 Egan v. Canada (1995) 124 D.L.R. (4th) 609 at 625 [emphasis added]. [M]arriage has from time immemorial been firmly grounded in our legal tradition, one that is itself a reflection of long-standing philosophical and religious traditions. But its ultimate raison d'être transcends all of these and is firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate....In this sense, marriage is by nature heterosexual. It would be possible to legally define marriage to include homosexual couples, but this would not change the biological and social realities that underlie the traditional marriage.9 For the views of a Liberal Party M.P. on the processes followed in relation to the Marriage Reference, see: Tom Wappell (Scarborough, South West, Lib.) Hansard, 38th Parliament, No. 060, Friday, February 18, 2005 available at: http://www.tomwappelmp.ca/Speeches/C-38.htm10 Human Life International (deregistered); LexView 18.0 "An Uncharitable Threat"; Citizens Against Pornography (denied charitable status); Christians against Torture (deregistered). On the other hand, the Legal Education and Action Fund (LEAF) has not, as far as the writer is aware, had difficulty with CRA despite its clear involvement in law and political advocacy. In his Appearance before the House Standing Committee on Justice and Human Rights in July 2005 in relation to Bill C-38, Bishop Fred Henry of Calgary stated that he felt "harassed" by an official from the CRA on the position he had taken with respect to same-sex marriage in his capacity as a Bishop. Another group, Focus on the Family (Canada) was similarly subjected to an audit by CRA and warned about their advocacy of certain positions around the time of the 2004 elections. Other groups have also voiced concerned that their views are not "politically correct" according to CRA and are concerned that there will be taxation consequences to views that it is otherwise perfectly legitimate to hold in Canada. The Court Challenge Program itself supported the claims of a west coast women's advocacy organization that also fell afoul of the restrictive interpretations currently in use. Clearly, some changes are warranted.

1. Preface and Summary Just how liberal is contemporary liberalism? Many people have asked this question in light of a multitude of situations where freedom of expression has been effectively denounced by those purporting to be within a liberal tradition that upholds both openness and tolerance. Professor Peter Emberley of Carleton University, Ottawa, examines an aspect of this question in the following paper which developed out of a forum sponsored by the Centre for Cultural Renewal and held in Vancouver in the Fall of 1996. In his last book, the late American writer Christopher Lasch made an important observation that provides a sort of frame within which to view Professor Emberley's paper. In The Revolt of the Elites and the Betrayal of Democracy (New York: Norton, 1995, pp. 12-13), Lasch noted that: Once knowledge is equated with ideology, it is no longer necessary to argue with opponents on intellectual grounds or to enter into their point of view. It is enough to dismiss them as eurocentric, racist, sexist, homophobic in other words, as politically suspect.In recent years, mostly south of the border, a variety of books have sought to describe and critique developments that, it is argued, pose a threat to the spirit of free enquiry and exchange that is necessary for academic pursuit and intellectual honesty. Books such as Dinesh D'Souza's Illiberal Education: The Politics of Race and Sex on Campus (New York: Free Press, 1991) and David Lehman's Signs of the Times (New York: General, 1991) have raised serious questions about higher education and the threat to liberty posed by contemporary theories that, amongst other things, attempt to explain social evils as rooted in class or gender and suggest that their solutions reside in the power politics of class and gender. Whether from the right or the left—McCarthyism or Marxism (or their numerous and various progeny), liberty is and always has been threatened by partial totalisms that, in order to further group interests, will have others excluded. That central misdiagnosis about the nature of evil—that it is located in the other instead of in each of us—causes great harm and may be seen as an identifier of erroneous schools of thought. Students come to places of learning with a host of longings and in order for these longings to lead to freedom, a higher vision must be provided. In this paper, Professor Emberley discusses the important role that higher education should serve in the formation and maturation of this vision. For, as Emberley notes, "Freedom will not rise above mere instinctual response unless instincts are matured towards higher satisfactions." Quoting the English academic Michael Oakeshott, Emberley draws upon the distinction between a universitas and a civitas and says that we need to recover an understanding of the university as a civitas as well as the more-commonly understood model of universitas. A universitas was defined as an association that pursued some recognized substantive end and promoted some enduring interest, be it salvation, profit, military conquest or study, and it was ruled accordingly. It was this model that became dominant in medieval Europe by the end of the 13th century. A civitas, on the other hand, is defined as an association bound by rules rather than common undertakings, and by civic decencies rather than moral precepts. Civitate are associations whose members have a common acknowledgment of the authority of civil laws specifying the conditions for undertaking a diverse range of actions. Civitate, says Emberley, encourage merely the continuous exploration of the conditions of association. The idea of the university as a civitas came equally to prevail at some European universities in the late middle ages. The difference between universitas and civitas can be seen as a distinction between modes of understanding that continue to compete as options for our current debates about the university. Emberley suggests that: When the university expresses its commitment to freedom of speech, recognizes the essential plurality of human ends and elevates the virtues of civility and tolerance above all others, it retrieves this idea of the university as a civitas.In addition to problems of self understanding, related to the nature of the community of higher learning, are the substantive problems of content themselves. Emberley reminds us that: However remote the legacies of Athens and Jerusalem may appear from the daily enterprise of teaching and learning in today's university classrooms, the symbols "intellectual knowing" and "moral doing" still constitute the major forms of students' intellectual and spiritual search.However, the higher goals are being undercut by certain developments that have occurred in higher education. Where students need a language to understand existence, the contemporary focus on "empowerment" fails them. It is thin and partial and, ultimately, unhelpful in the important tasks that face those charged with teaching. At the same time as they are deprived of a rich framework within which to understand their own lives and studies, the new students are subjected to a barrage of regulations to govern their conduct because, without being taught manners, the universities, like the wider society, must fall back on increasingly draconian regulations. As C.S. Lewis wrote in The Abolition of Man, "we laugh at honour then are shocked to have traitors in our midst" or "castrate then bid the geldings to be fruitful." Emberley notes another aspect of this double standard that creates objective tests for conduct while denying the validity of objective moral frameworks and states: "dating contracts, discipline codes, rights charters and other regulative devices are necessary only when and after the university has failed to forge the link between the scholarly culture and civil association." In the final section of his paper, Professor Emberley turns his attention to the chill that political correctness has unjustifiably placed on education. While being careful to set out the valid aspects of concerns about civility between men and women and equitable treatment for women, Emberley notes some of the nonsense that hides behind valid claims. And there is more than nonsense in the wilder regions of the new ideologies. Emberley comments on the danger of the now discredited Ontario NDP's "zero tolerance" guidelines to harassment and how they would have avoided the protections of the rule of law for those alleged to have been harassers. Though beyond the scope of his paper, it is perhaps worth pointing out that support for Emberley's concern has come from civil courts. Various rulings arising from decisions of internal discipline tribunals have shown clear attempts to circumvent proper standards of proof in the cause of rooting out harassment. In recent years, the British Columbia College of Teachers attempted to justify a teacher's dismissal on thin evidence on the basis that a lower standard of proof was appropriate in a case in which sexual harassment had been alleged. The College argued that it wished to protect "young females from intentional but unwanted and unwarranted physical contact" by males. The British Columbia Court of Appeal rejected the College's arguments, overturned its decision and noted: "that concern must not become so dominant as to erode universal standards of proof adopted and applied so as to ensure for all members of society that the innocent are not convicted or those without fault held liable." [Hanson v. College of Teachers (Disciplinary Sub-Committee) (1994) 110 D.L.R. (4th) 567 at 577 per Gibbs J.A.] While it is too early to proclaim a meltdown of the frigid edifice of political correctness, the first signs of a thaw in the seeming permafrost may now be noted in certain areas. There are indications that a vast number of people and an increasing number of institutions are more willing than they were a few years ago to stand up against some of the more blatant threats (such as the Ontario NDP government's "zero tolerance" attempts and College of Teacher decisions such as that overruled in Hanson, both referred to above). Whatever the precise causes of the dominance of "political correctness," it seems clear enough that a long period of intellectual and moral neglect has permitted much greater infiltration into the academy (and society at large) by illiberal frameworks than would ever have been allowed had the process been recognized for what it was and firmly resisted years ago. It will take considerable time to undo the unfair processes and properly educate the confused students and their teachers that have been misled by decades of silly teaching. In this context, Professor Emberley's paper raises important points for wide consideration. Perhaps his paper will strengthen the resolve of those who have seen so many teachers and students (virtually an entire generation) led into a false freedom that squanders liberty and makes a mockery of real liberalism. Resolve is necessary because so many have been cowed into silence by the lack of civility (or worse) exhibited by those with whom they disagree. It is time to bring down the curtain on a sad period in higher education when liberal education was led astray by false-freedoms and chilled by the anger of uncivil and partial totalisms.—Iain T. Benson, Senior Research Fellow, July 1997The Role of Political Correctness in the Decline of Liberal Education by Peter C. Emberley Every fall, one hundred thousand new students arrive at Canada's universities. They are curious and intellectually hungry; they have known or are hoping to know love; they fear or revere or are indifferent to their gods; many have seen or heard about death; individually, they are tasting of that absolute freedom which is given to human beings to enjoy; they have all suffered some injustice at the hands of the stronger; they have encountered mercy and charity and forgiveness; they have nearly all appreciated in one form or another the essential mystery of being. Their longings are beautiful, inchoate, passionate and sometimes dark. Many of these students come to acquire job skills and equip themselves to become productive and informed members of society. No one should discount the role the university must play in designing programs, building research units and encouraging partnerships with business, government and diverse social agencies to meet these expectations. Two factors in particular suggest that student expectations must be seriously entertained. First, with the increasing financial burden students are being expected to shoulder, their expectations are legitimate calculations of the price and worth of their investment. Second, the far greater worldliness of today's students their broad awareness of world events, their appreciation of the cunning and shrewdness informing the ways of the world, their scepticism about ancestral traditions and authority serves as one of the most potent expressions of society's perennial concern about the relevance of the university. In light of the fact that all human institutions, the university included, are subject to decay and to sclerosis, the eruption of novelty reflected in the free actions of young women and men in the university is one of the most important components of that institution's ability to undertake periodic renewal and be truly relevant in the most ecumenic sense. Contrary to what many advocates for students say however, expectations of future prosperity and social well-being do not exhaust what students long for. It is essential to recognize that these young men and women, troubled with the anomie of their times and with the personal horrors that modern life has brought to visibility, also arrive with needs more enduring and potent than those arising from the contingencies of their personal and social lives. Their sense of drift and meaninglessness, their apparent inability to see the importance of meaningful personal and social relations, and the gulf between their interior lives and public institutions, while real and widely observed, obscure other vibrant needs. For, lying dormant in their consciousness are layers of historical culture and legend, nascent intimations of spiritual adventures, primordial fears and hopes, incipient conceptions of justice and charity, and anticipations of wholeness. Indeed these other, and often much more important, forms of understanding are what the university is best at cultivating and maturing, even when it does so imperfectly. Students will express these expectations in myriad ways. It is not accidental that, when students were polled across Canada in 1994 about the "hottest" courses on campus, all five courses named were on sex. Controlled by law, convention and habit, desire is nonetheless the potent force that percolates in every classroom. Every conversation students conduct is a seduction, every search for meaning is a longing for reconciliation and completion. Students love to seek the extreme they are naturally drawn to the works of Rabelais, Boccaccio, D'Annunzio and the Marquis de Sade for the transgressions and ambiguity into which they are invited by these authors. They are awake to the powerful images of primordial wandering that will lead them to reject stability and continuity. Their awakened peripatetic ways may be expressed as the desire to travel to foreign lands or to embark on a spiritual odyssey, an illustration of which is conveyed beautifully in Bruce Chatwin's Songlines a book that has a cult following among students. Students are also in search of a narrative in which the contingencies and predicaments of their lives are given meaning. What students seek when they pick up a book and immerse themselves in its world is the key to developing and harmonizing all the parts of their being. They search for unity and proportionality, thereby expressing a need for forms of reconciliation transcending a world given to strife and difference. Their renewed interest in the cosmological visions and life-affirming rituals of Canada's indigenous cultures and the spiritual adventures of many non-Western peoples reflects their longing to understand the mystery of existence and to satisfy their thirst for wholeness. Any of these expressions of human need can be easily derailed and deformed. Freedom will not rise above mere instinctual response unless instincts are matured towards higher satisfactions. Students' natural desire for recognition may become a powerfully disruptive passion such as the urge to bully or lust for domination. The pleasure of wandering may lead to dissolution of their selves and to cynical abandonment of all principles. The search for wholeness may find surrogate forms of satisfaction in prejudice and dogma. The expression of religious need may become maudlin sentimentality. For this reason, a balanced assessment of the priorities of the university must recognize that folded within the scholarly culture's commitment to the intellectual life lies a moral responsibility to mature the needs of students. Those needs are often inchoate prior to an engagement with the scholarly culture. When students arrive at a university, they often have only an elusive sense that the scholarly culture offers opportunities to satisfy their deepest longings. In a seminal manner—simply through awareness of the evident experience of living—they are acquainted with the world of imagination and poetic creativity, the soul-leading quality of genuine conversation, the "aha"-experience of understanding, true friendship and the exercise of civic virtues. But acquaintance with the scholarly culture, in an environment that promotes leisure and intellectual trust, cultivates and refines these experiences. The question that we are debating today is how liberal is liberalism, or what is the balance between freedom and responsibilities implied by the practice of liberal education? A whole host of subsidiary questions must immediately arise in an attempt to ask that question: what is the scholarly culture? what is academic freedom? what is the place of subaltern cultures at the university? how are the civil conditions within which free speech operates produced? There are no simple answers to these questions, not only because there is a plurality of essentiallycontested perspectives on these questions, but also because the university itself is an institution defined by the tension between these perspectives. In my mind, there are two ways of approaching the complex tensions defining the heterogenous purposes that compete in the scholarly culture; one the result of the historical sediments circumscribing the purpose of the university, the other the result of the symbolic inheritance defining what the university does. Analyzing the scholarly culture through the prism of history garners us an appreciation of how the university's institutional founding in the thirteenth century set in motion two apparently contradicting tendencies. The university, like other more recent institutions such as the law court and the modern political state, is the product of conflicts of the middle ages—between emperor and pope, city and monastery, clergy and layperson, faith and reason—and through them all, the theology of Augustine and that of Aquinas. The major European universities—Bologna, Naples, Toulouse, Paris, Oxford and Cambridge—were established as guilds or corporations devoted to study and as places where masters and scholars could come together in a collective enterprise. The common concern was usually animated within an overarching theological design, even when the explicit discipline of inquiry was medicine, law or letters. Many of the universities were supported directly by the papacy. Like the priesthood, its members were also granted a wide range of privileges, protections, immunities and exemptions, seen as salutary to maintaining the distinctness and singlemindedness of the scholarly enterprise. There is etymological support for the identification of the university with the Church. Universitas is a medieval designation that refers generally to a corporate enterprise with an identified common purpose. An ecclesia, or community of faithful tied together by common belief in orthodoxy, was a type of universitas. Generally, a universitas referred to an association that pursued some recognized substantive end and promoted some enduring interest, be it salvation, profit, military conquest or study, and it was ruled accordingly. As a guild, it was created by an act of authority endowing it with specific powers and franchises—thus the origin of our university charters. By the late thirteenth century, the term universitas came to refer especially and exclusively to a higher place of study the university. When groups today appeal to the moral authenticity they find in ethnic, gender or racial bonds, I believe they are retrieving important elements of the legacy of the idea of the universitas. If Take Back The Night marches (to express solidarity with victims of male violence) or recovery and healing sessions, are two of the more maudlin of these exercises, then the search for forms of commonality, even when they exhibit the fervour of Pentecostal communities, are legitimate expressions of the work of the scholarly culture. There is a place at the university for "transformative" studies and the creation of corporations of solidarity, reflecting its function as a universitas. But the universitas was not the only form of association in medieval Europe, nor did its design alone define the emerging universities. An equally important medieval association was the civitas, an association bound by rules rather than common undertakings, by civic decencies rather than moral precepts. Civitate are associations whose members have a common acknowledgement of the authority of civil laws specifying the conditions for undertaking a diverse range of actions.1 One could say that instead of advancing from a common predicament or specifiable interest, civitate encourage merely the continuous exploration of the conditions of association. The idea of the university as a civitas came equally to prevail at some European universities in the late middle ages. The difference between universitas and civitas, Michael Oakeshott has suggested can be seen as a distinction between modes of understanding that continue to compete as options for our current debates about the university. In a universitas, he writes, members will see themselves as engaged "in a common enterprise and as sharer[s] in a common stock of resources and a common stock of talents with which to exploit it. The enterprise may be described in various terms: the search for Truth, the pursuit of the Common Good; "making nature yield what it has never yielded," etc. It is a co-operative undertaking and therefore in terms of managerial decisions about performances; there is a notional "one best way" of conducting it. In this self-identification, outcomes are preferred to adventures and satisfactions to wants...."2 The civitas, on the other hand, Oakeshott notes, is comprised of "adventures of unpredictable fancy" and rules of conduct. When the university expresses its commitment to freedom of speech, recognizes the essential plurality of human ends and elevates the virtues of civility and tolerance above all others, it retrieves this idea of the university as a civitas. We can fill in the details of these two images by looking at the second way of accounting for the complex tensions defining the university the symbolic order. The essence of the university is more than layers of historical sediment. From these cultures, the university also inherited distinctive symbols that emanate from a perennial human need to interpret experiences characterizing our participation in the process of reality. Symbols such as "mind," "moral goodness," "wholeness," "justice" and "friendship" are attempts to articulate these experiences and assist us in establishing meaning in our personal lives, in society and in history. When the university, as an institution, was founded in the middle ages, these historical legacies and symbols were sifted and synthesized to create a tapestry of myriad invitations to rich explorations and encounters. The great roots of Western civilization were identified as Athens and Jerusalem, and the university was designed to maintain the fertile tension between these two originating forces. From Athens emanates a set of symbols defining intellectual vision, or what Aristotle so magisterially identifies in the first line of the Metaphysics as our primary impulse: "all humans, by nature, desire to know." This legacy is evident in our continuing equations of goodness with reason, order with harmony and unity, and truth with statements of proof all manifestations of how reason can become a living presence in society. And in our personal lives, our continuing endorsement of the Socratic accent on conversation ("yes, but...") as the vehicle of understanding ("aha!") has decisively moulded our intercourse with others, especially our expectations concerning the purposes of friendship and citizenship. That we should think of the university as one of the chief means of preparing citizens by linking the life of reason and political order, and conceiving of the state as the individual soul writ large is testimony to the Socratic heritage that the Platonic Academy transmitted. From the second root emerges a different set of symbols and human needs the desire to do good in the world. The Hebrew and Christian legacy offers us paradigms of right action, affirming our capacity for compassion, forbearance, humility, charity, love and above all else, faith in the simple goodness and mystery of existence. The injunction to live a moral life, within the rhythms of a spiritual pilgrimage and within a community of believers, is simultaneously a recognition of the individual's free power to make the world better. It is an injunction to use human gifts to serve and to improve, as externalization of our interior struggles to heal ourselves. The symbol of Jerusalem endures whenever individuals today affirm in strict conscience our duty to do what is right, or exhibit redemptive hope in free actions and new beginnings, or demonstrate faith in the binding power of love with which human life can be graced or dwell on the link between the richness of their interior lives and the capacity to do good in the world. But there is another legacy the university has inherited from this root. The moral imperative to do good in the world comes with an admonishment against letting our moral accomplishments become objects of pride. Central to the Judeo-Christian teaching is a warning against human pride, of virtue become irascible because it believes falsely that humankind's weakness and dependence on grace can be overcome. Such presumption, that gives rise to sinful fantasies and projects of self-deliverance and self-redemption, is a betrayal of the patience, forbearance and mercy also required within Christianity. And from that legacy flows the Western world's continuing recognition of the need for tolerance and of the capacity for forgiveness even in the face of evil. However remote the legacies of Athens and Jerusalem may appear from the daily enterprise of teaching and learning in today's university classrooms, the symbols "intellectual knowing" and "moral doing" still constitute the major forms of students' intellectual and spiritual search. They continue to be the horizons within which the business of the university is conducted and the tension between them is, in great part, the source of the alternative positions put forward whenever reforms and restatements of the university's essential mission are undertaken. While these symbols come down to us through the distinctly medieval appropriation of the complex cross-fertilization of near eastern and far eastern, Judaic, and Hellenic ideas, and became associated with specific doctrines promulgated by scholastic philosophers in the thirteenth century, it would be reducing severely the richness and suggestive quality of these symbols to believe they are narrowly "Western" or "Christian-Platonic." One might say, instead, that these two primals contain a vast range of meaning, and that vital threads present at the origins of the "West" which may have been marginalized by the medieval idiom are always available to be unearthed and used for their restorative possibilities. Indeed, one of the great virtues of the present recognition of the achievements of other civilizations and the creative efforts to recover ancient wisdom is the discovery of the enormous impact near eastern and far eastern thought had on defining the legacy of Socrates and Christ. These discoveries are now serving, amidst great tumult and fertile creativity, to renew symbols like "intellectual knowing" and "moral doing" that have become, in part, dogmatic and sterile in Western life. Our growing reacquaintance, for example, with the cosmological visions and life-affirming rituals of our aboriginal peoples, with the Hindu understanding of the sacramental nature of everyday existence, with moral authenticity in Islam and the oral tradition amongst native peoples is not a repudiation of the figures of Socrates and Christ, but a renewal of the deepest meaning of the symbols we have inherited from them. I would like to use these images of the university as the backdrop to my comments on academic freedom and on the meaning of "liberal" in the term liberal education. Let me begin with an example that highlights the confusion in today's university. In 1992 at the University of Calgary, a poster, announcing a student party, sported a bare-breasted woman. Two female students complained to the university administration that they were offended. The official response was to place a "censored" sticker over the woman's breasts. This little story tells the whole story of the breakdown of the moral society of the university: for failing to attend to the culture within which moral attitudes are formed, the university is brought finally to using technical regulations to impose social order, whose zealousness stamps out the opportunities for ambiguity and intellectual play that characterize a healthy scholarly culture. At the heart of the scholarly culture is the pure, unadulterated pursuit of understanding, unfettered curiosity and the courage to question contemporary shibboleths down to first principles. The discerning judgement, cultivated imagination and critical detachment that are formed in this intellectual adventure, where every theoretical option is dispassionately entertained and weighed, is the university's enduring form of accountability to society. What the scholarly culture offers is a powerfully transformative effect on a young person's needs and expectations, preparing him or her to become a productive employee, an informed citizen and a person with a sense of direction and purpose. How powerful can the student's metamorphosis be? Even in the first year of university, many eighteen-year-olds will become permanently estranged from former high school friends, siblings and parents. A genuine education, as Socrates taught, is quintessentially the work of "corrupting the young," of bringing individuals to see opportunities that betray their own lives as provincial and limiting. The powerful myth of ancestral wisdom, of the authority of the seniors, of the supreme virtue of continuity, will have been broken. This is what Harold Bloom means, in his book The Western Canon: The Books and School of the Ages, when he speaks of the "uncanniness" of the great works: "their ability to make you feel strange at home." Having accepted the invitation to question and to uproot, students lose the innocence of early pieties and will experience restlessness, dissatisfaction and tension. They are awake to the powerful images of primordial wandering that will lead them to reject stability and continuity a spiritual odyssey conveyed so beautifully in Bruce Chatwin's book, Songlines. As Northrop Frye points out, education is a militant enterprise, a constant warfare against "prejudice and malice, the attitude of people who cannot stand the thought of a fully realized humanity, of human life without the hysteria and panic that controls every moment of their lives."3 But this exploration, tentative and vulnerable to so many false paths, will make them terribly out of sync with society's demands for certainty, continuity and order. Residence directors and university security officers, not to say harassment officers and human rights consultants, often express their moral outrage at the destructiveness and gratuitous libertinage that they see on university campuses. But the youthful exuberance they observe is a criminality that, having taken the risk of flaunting convention, can also be tamed to form genuine independentmindedness and non-conventional thought and judgment. As illustration, let me recount an incident at McMaster University. Last year, university administrators registered outrage when they learned that frosh, as part of their initiation rites, were required to simulate sex. But those same administrators applaud aboriginal studies and the consciousness associated with respect for aboriginal practices. Native peoples have complex rites to celebrate passage from one state to another. The required acts are fraught with ambiguous sexual imagery, the coincidence of the sacred and the profane, and the mingling of terror and purification. As we are relearning, these rites are important to self-development and group identity. Granted, one major difference distinguishes aboriginal rites of passage from McMaster's frosh activities traditional rites of passage are guided by elders who take on the responsibility of sublimating sexual desire. Left to their own abandon, the McMaster students may have been left, in the absence of authority, with no guidance as to how to satisfy their longing for wholeness in the future at a more elevated level. One should not defend the barbarisms of the hazing practices of the Airborne Regiment, but neither should one be overcensorious about the playful transgressions of young students. Such censoriousness nearly always arises out of bureaucratic over-zealousness and it is fuelled by protestant distrust of the body and the residual, though discounted, Cartesian view that mind and body are separate entities. To be sure, this is the most dangerous time of a young person's life, but also the moment of the greatest possibility. An alchemical imagery is most appropriate for this time in their lives. The privilege of university life is that students have been allowed to enter into an in-between time where contraries coincide, where destruction and recreation coexist and every subsequent moment of understanding recreates this mystical act of recreation. Not all of this dissolution and recreation will be comforting some may be hugely unsettling and distasteful, and the process will include violent disagreement, confrontation and anger. It is precisely here that the university must exercise its most powerful responsibility to tame and sublimate primordial longing. And it is especially here where the language of "empowerment" fails students. So much of the fault for the indecencies that erupt in university classrooms and residences lies with those who are happy to indulge their students to the maximum but then fail to take on the responsibility of maturing that newly-released vitality and exuberance. Imposing regulative codes and punitive actions is no answer, for at best such codes produce only external conformity. Students require instead that their more profound needs be brought forth and that longings for wholeness and completeness be fulfilled in constructive ways that will disarm the new dangers. When indifference to the need for guiding students on to maturity is justified by an appeal to "academic freedom" and the classroom is allowed to be a free-for-all, the scholarly culture has degenerated into a state of moral decay. True freedom is the maturation of instinct towards the higher satisfactions that come from the exercise of moral choice and intellectual independent-mindedness. Student desire left to its own devices, and not invited to participate in the scholarly culture, will exploit the dangers of the in-between time it has been allowed the privilege of enjoying and may become a powerfully disruptive passion such as lust for domination. When university managers are confronted with such wildness, their response has usually been to devise technical rules and codes to suppress it. The scholarly culture is thus badly served. The student is denied the pleasure of the higher forms of freedom and the classroom no longer has the opportunities for ambiguous play that are necessary to the learning process. This breakdown of the university's civil association leads to a dangerous polarity of unchecked desire and technical regulation. If I may be permitted a mild polemical point, the breakdown has, I believe, a historical origin. In a classic example of the sons having the sins of the fathers visited upon them, we now have a generation of students taught by 1960's academics who believed that the lifting of all restraint and the release of the instincts even "polymorphous perversity" would usher in a new age of tolerance and reconciliation. Now, living with the effects of that teaching, where some students believe they can transgress all boundaries and vent the passion of the moment, we are compelled to exercise authoritarian rule by decree, thus vitiating the gains that were made by the generation that rediscovered the power and beauty of desire. Intolerance shown towards the young at this time risks producing submissiveness or uncontrollable rebellion. Few university officials have much inkling of how to act towards students at this time. One would wish that university legislators and administrators would read Rousseau's Emile for its sage insights into the shaping of a young person's naturally irascible will, or note the practical advice in Plato's Symposium on how to weave together strands of human longing. Both Rousseau and Plato are excellent guides, for not only did they recognize the broadest range of relevant longings, but they also offered ways of educating these longings with an eye to the healthy tension between individual desire and public duty. Regrettably, most administrators have been weaned on the cynical teaching that the only relevant questions are "who gets what, when and how," as Harold Laswell once rather narrowly defined the scope of political inquiry. This is ultimately a teaching about power and how it is consolidated. Even at best, most university administrators have adopted the narrow horizon of some branches of contemporary psychology that see humans only in terms of basic needs, the desire for recognition and a creative pampering of the self. Surprise and indignation follows when their students actually exhibit more potent passions such as erotic longings for wholeness, moral righteousness and political idealism, some of which will of necessity be foolish and reckless, but some of which are highly attractive and educable. Education's task is to engage them at this time in the serious reflection that guides these passions to their thoughtful exercise. Dating contracts, discipline codes, rights charters and other regulative devices are necessary only when, and after, the university has failed to forge the link between the scholarly culture and civil association. The humanizing process that the university offers through stewardship to the scholarly culture is far less certain, though vastly more durable, than any lesson that might arise from vain attempts to manage desires that have been left to run wild. There are many grounds for believing that the university has lost its way in terms of moulding and shaping students' longings. While the university must, for the vitality of its scholarly culture, tolerate a wide latitude of experiments and adventures, there can be no justification for the abuse of academic freedom that manifests itself in taunts and abuse, crude indecencies and belittling insensitivities. An evident case in point is the notorious 1988 case of Professor Richard Hummel who, equipped with snorkel and flippers, followed women swimming in the University of Toronto Hart House pool, staring (some alleged leering) at them through his mask. The indignity suffered by those women, who legitimately advanced charges of sexual harassment, is only exceeded in distastefulness by an ensuing appeal which attempted to have the ruling of guilt overturned because Hummel had not intended to create an intimidating and hostile environment. Equal revulsion should be directed at the criminology instructor at College of New Caledonia who assigned to his male students the homework of planning a perfect rape. These incidents, and far too many more, are what makes so deeply troubling the actions of the Trent University faculty who signed a declaration of the right to be offensive and dared thereby to align themselves with John Stuart Mill's majestic words in defence of liberty "If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind" while forgetting how circumscribed Mill's defence really is.4 Mill, after all, argued that the exercise of liberty must not infringe on another person's liberty and he held that the evolution of liberal society depended on progress in social manners. Some may say that the behaviour of university members is no worse than that in society generally. What a terrible admission! The university community ought to set a standard higher than the behaviour one observes in society at large, not one that merely mirrors it. Academic freedom should not be distorted to mean merely the right to speech of any kind or the right to indulge in any desired behaviour, but the moral and intellectual freedom that is fostered by the maturing process of the scholarly culture. The academic community has not served the higher purposes of that culture well when they have sowed the seeds of confusion between job security and academic freedom, academic freedom and right of speech, and right of speech and "right to offend" (as some Trent University professors would have it). It is an embarrassment to permit, by an appeal to an academic freedom preserved by tenure, the sliding logic that culminates in the indecencies uttered by Matin Yaqzan of the University of New Brunswick (UNB) who wrote that "When a boy invites a girl to his bedroom, especially after meeting her for the first time, she should consider it as an invitation for sexual intercourse" and "If a promiscuous girl becomes a victim of an unwanted sexual experience, she might more reasonably demand payment for her inconvenience or discomfort rather than express moral outrage." Even more embarrassing are the contortions by the Civil Liberties Association, The Society for Academic Freedom and Scholarship and John Fekete in his book Moral Panic (declaiming against the "venality of the biopolitical climate" that had presumed to raise concerns about Yaqzan's actions), to defend Yaqzan's right to write these things. Equally questionable was the UNB faculty association's response when the UNB president wrote a strong opinion essay entitled "Date Rape is Never Acceptable" and circulated a letter to the media explaining why he had taken the route of suspending Yaqzan. The faculty association complained of a "witch hunt." For someone who wrote that regular sexual intercourse is a "necessity" for "boys?" For someone who regularly wrote to newspaper editors defending Malcolm Ross, a Moncton teacher debarred from the classroom for his anti-Semitic views? Only more unconscionable are the unconfirmed reports that Yaqzan was given three years full salary as a buy-out. Michael Bliss, at the conference "When Rights Collide" held at UNB in September 1994 in the wake of Yaqzan's date-rape essay, argued that one should distinguish between offensive ideas and offensive behaviour. His argument was reinforced by Alan Borovoy, the General Counsel of the Canadian Civil Liberties Association, who argued that freedom of speech was the condition upon which all other rights are based. If there ever was a time in the past when untempered thoughts or words were dissociable in principle from vicious actions, I do not think that by any stretch of the imagination could one think that such a time is now. The distinction assumes a culture of trust, of civic friendship. But our present state is one of mutual suspicion, a highly-volatile atmosphere of potent passions, in which speech too readily precipitates agitation and mobilization. We cannot hang our cap on the liberal distinction between thought and action, in the absence of the moral restraint that ensured a civil association. Neglect of the idea of moral responsibility is the warning sign of decay in the scholarly culture. As the meaning of tenure becomes increasingly identified with freedom of speech, the horizon of the scholarly culture is diminished. Equally humiliating to the scholarly culture is University of Alberta physics professor Gordon R. Freeman's 1990 publication of the notorious "Kinetics of non-homogenous processes in human society: unethical behaviour and societal chaos." Freeman indulged himself with the extravagant thesis that ran: birth control is the source of the feminist movement, feminism leads to socialism and feminism is to blame for the Marc Lepine massacre, a chain of inferences he culled from talking with students of working mothers whom he concluded had a statistically significant predilection to cheat on exams. That the Canadian Journal of Physics permitted its publication, thus conferring the authority of science on such nonsense, reinforces the cry against tenure and for greater accountability. It is not a matter here of extending to academics a right that exists in society generally. The point is that academics, through tenure and academic freedom, are invested with an authority that confers on them a responsibility to express the most enlightened understanding of the predicaments and adventures of our lives. This brings me to the thorny issue of feminism and gender studies at the university. Again, a concrete illustration of the environment in which questions of academic freedom and liberal education are being debated. In 1995, Jackie Stalker, a recently retired professor of education from the University of Manitoba contributed an essay to the Globe and Mail entitled "The Chill Women Feel at Canada's Universities."5 The essay compared universities to harems, where "men are in the positions of authority, as tenured professors and senior administrators, exerting their will over women who are students, staff and even a small number of colleagues...a locker-room culture where they don't understand the game and have few or no mentors to turn to for advice." She complained of "entrenched and prolonged systemic discrimination" and a state of affairs where "the rules, regulations, curriculums, language, cases and support will not always make sense to female students either; they were developed sincerely and with the best of intentions, but by men and for men" and constitute men's "hereditary privilege." "Entrenched and prolonged systemic discrimination," Stalker concluded, has led to "the 'chilly climate' condition, created by the serious power imbalance, consist[ing] of hostility, discrimination, harassment, inequitable treatment, violence and sometimes silent terror for more than half the population in our male-dominated institutions." Nonetheless, efforts to redress the former injustices, and accelerate the project of equity, are fraught with perils. Leaving aside, for the moment, the concerns being raised about the injustice of reverse discrimination, equity action is also producing numerous negative side-effects on the project for equity itself. Many women legitimately claim that because of the push to improve gender representation on university committees, tenure is harder to obtain. This is the result of a policy that stipulates that service on university committees carries less weight than research publication and teaching. Another peculiar side-effect of current efforts to establish more equity is occurring when larger universities, undertaking preferential hiring, compete vociferously and successfully for outstanding women, leading to a situation where there are fewer of them available for smaller universities. The more modest, and sometimes mediocre, hirings that occur at small universities, legitimately raises the wrath of applicants excluded, on equity grounds, from fair consideration, while following the practice of hiring only on merit, does nothing to balance the proportion of men and women at smaller universities. Perils notwithstanding, Stalker's outrage has a core of truth to it and it is to the shame of Canada's universities that the small steps being undertaken to recognize the rightful place of women, are too little and have come too late. The hot-button politics driving so much of our current university debate began, I believe, in 1989 with the Marc Lepine massacre. In my mind, the most balanced assessment of the massacre is to see it as an isolated incident of radical evil. That is not, however, how radical feminists interpret what happened. They saw it as evidence of widespread misogyny throughout Canada and as a symptom of the violence bred in the patriarchal structure of the university. Then Ontario attorney-General Marion Boyd claimed that when a law professor at Western referred to one of his female students as a good girl, that this condescension was on a continuum with the Montreal massacre.6 Nevertheless, the other extreme regarding the latitude we should permit in our universities is taken by those who assert that their rights are being abrogated by the feminist agenda. My own view is that our politics of rights as entitlements has greatly distorted sound social practice. Those who question the libertarian defence of an abstract freedom of expression are raising important questions as to whether the language of rights and the art of prudent statesmanship are always compatible with one another. Take the arguments of Somer Brodribb (the University of Victoria instructor who headed that university's Committee to Make the Department More Supportive to Women, and whose "chilly climate" findings accused her department of "growing antifeminism"). If she is now excessively vehement in her actions of bringing down the University of Victoria political science department, part of the reason for her views seems legitimate in light of the inappropriate responses to earlier complaints she had made elsewhere. In 1986, Somer Brodribb gave a lecture in Montreal. During the event, a man carrying a rifle case seated himself in the front row. The moderator of the event called security. The man produced a license and so was merely asked to place the case under his seat! When the Montreal massacre occurred, Brodribb recognized Marc Lepine as the man with the rifle case. "I want the administrations," Brodribb later said, "to stop telling the men to put the guns under their seats." A few years later, in the counselling psychology department at the University of British Columbia, where Brodribb was supporting a 1993 rally in support of women, women had been receiving anti-feminist hate mail. Forensic experts brought in to review the letters concluded that they "were not written by a psychopath." Reasonably, Brodribb and the other UBC women replied, "We know there's a threat. We feel there's a threat and we don't need university officials buying time and hiring experts to tell us there's no threat."7 I believe Brodribb is right. The narrowest interpretation of the letter of the law as rights to bear firearms and of free expression has, in these incidents, taken over the spirit of the law, which is to form a civil association. Rights without responsibilities and the web of civic friendships become dangerous instruments. Now it is time to turn our attention towards the overzealous managerialism that is utterly intolerant of the latitudes essential to the scholarly culture. Again, let me begin with an example. In 1994, the Carleton University Students' Association sent out a memo to all faculty a "no-party memo" declaring that professorstudent socializing beyond the classroom was "decidedly inappropriate." The memo read: "This type of social activity creates a haven for harassment and coercion." In the chilly climate descending on faculty-student relations, many faculty will now no longer meet a student behind closed doors, unless with a chaperon. Is this political correctness or justifiable concern with the conditions needed to ensure civility and decency? Nothing has been more notorious on these issues than the Ontario NDP's infamous "zero-tolerance policy." This policy originated in a report produced by the Ontario Council of Regents for Colleges. Its opening words declared: "The government of Ontario has adopted a policy of zero tolerance of harassment and discrimination at Ontario universities." It set out prohibited behaviours and proposed a review of all courses or instructional materials for "sexist, racist, homophobic or Eurocentric content." It recommended that all students and employees be required to attend an orientation on anti-discrimination and antiharassment, that a module on harassment and discrimination be integrated in all courses, and that there be a compulsory course on social relations which would include women's studies, race and ethnic relations, sexual orientation and the changing workplace. The real clincher came with the recommendation to "establish complaint procedures without legalistic constraints," meaning that complainants and respondents, ideally, should not be represented by lawyers at any stage of the process, and that the standard of proof should be that of proof on the balance of probabilities, rather than the criminal law's demand for proof beyond a reasonable doubt and proof of intention. The policy that was finally sent out to Ontario's colleges and universities defined harassment as "something known 'or might reasonably be known' to be offensive, hostile and inappropriate," pertaining to race, ethnic origin, sexual orientation and disability. Central to the policy was the argument that harassment was not restricted to discrete incidents or specifiable actions, but could be "environmental" or "systemic." The zero-tolerance policy was to apply not only to what was said in the classroom, but also to books cited by professors, library reading materials and art. It was to apply to visitors or guests with "no ongoing connection to the institution," to off-campus actions and even to telephone calls from another country to anyone in the university community. Ontario's NDP government pledged to make $1.5 million available to support the development and production of training packages, data collection models, evaluation models and audit models if colleges and universities would make zerotolerance "the central goal" of their policy and assume a role of being "proactive" in a prevention campaign. The "framework," the government hastened to add, "reflects the Ministry's minimum expectation." And what was the university response? Academic administrators and faculty unions were, characteristically, asleep at the switch. The Carleton Faculty Association simply denied that the directives existed, until Ottawa Citizen editor Peter Calamai took them to account: "The Ontario government has banned free thought and expression at the very institutions devoted to such freedoms our universities and there has been no public outcry." Robert Fulford kept up a steady pressure, aptly describing the policy as "relentlessly grim priggishness" and asking, reasonably, whether the policy would apply to feminists who make men uncomfortable, economists urging welfare reform making those on social assistance uncomfortable or law professors lecturing against shield laws in rape cases in the off-chance their views could be construed as sexist. "Being offended," he added, "is part of learning how to think." And Naomi Klein pointed out what should have been obvious, that "zero-tolerance" began as low-cost grandstanding concerning workplace and classroom behaviour and ended as a proposal for high-budget judicial apparatus.8 At the University of Toronto there are eight equity officers, who command a per annum budget of $1.5 million. In 1991, when its only two investigated cases were thrown out, the University of Western Ontario's equity office spent between $400,000 and $600,000. Economy has now pared that budget down to $320,000 annually. Other universities continue to bring in consultants at $90,000 per annum (the average salary of a full professor) to professionally manage the education equity regulations they were compelled to institute. Cost is not the only concern about the new regulations designed to monitor campus behaviour. Human rights jurisprudence is of recent vintage, and the administrative law developed to permit judicial review of its findings is still feeling its way tentatively. In criminal law, the awesome power of judicial authority is tempered by procedural hurdles that weight all proceedings in favour of the accused by putting the onus of proof on the plaintiff. Strict regulations govern every stage of the process. Offenses are set out precisely in statute. Prosecutors must respect the presumption of innocence, are required to demonstrate their case beyond a reasonable doubt and must prove intention. Punishments are based on the application of a pre-determined table of sanctions to the particular case. Tort law between private parties, by contrast, is not hampered by the complex onus of proof. Nonetheless, here too there is a concrete basis for judicial decisions: remedies, in the form of damages, are based on an objective measure of loss, namely monetary costs incurred. Human rights jurisprudence occupies a wholly new space. Like criminal law, its authority comes from statute and it enjoys criminal law's vigorous investigative powers. But its tribunals are not obliged to follow due process as defined in criminal law. They need not name the accuser nor are they obliged to permit legal representation. Nor must complainants prove their case beyond a reasonable doubt or prove intention. In this, human rights law is more like a public version of tort law, with one major difference: its remedies are not necessarily damages based on incurred losses but may also include various punitive remedies. When "climate" or "environment" is the object of a tribunal's attention, these punitive remedies are no longer tied precisely to the alleged "offence" particularly if the offence is "systemic" and thus has no discrete target but can be anything deemed appropriate to the climate the tribunal wishes to create or foster. The adjudication of "systemic" harassment, sexism, racism or homophobia by the new area of law is also slippery in one other way. In the law of negligence (nonintentional torts), the measure that is used to determine whether a case of negligence is proven is whether the "standard of care" that would be held by a reasonable and prudent person under similar circumstances has been met. Particularly in allegations of "systemic" or "environment" forms of harassment, this last concrete standard also vanishes. The accused need not ever know, or even be expected to know, what is required to prevent a "chilly climate." The particulars required to prove a "reasonable person" test are so diffused as to become meaningless. This new field of law, then, constitutes a fundamental shift in judicial procedure, from being based on verifiable circumstances and weighted in favour of the accused to one that disperses the effects and thereby loads the deck in favour of the accuser. The opportunity for politicizing the law, under these conditions, is endless. In formal human rights tribunals, accused persons have recourse to an apparatus of judicial review that can raise concerns about errors of fact and of law. The accused may raise questions as to the impartiality of the adjudicator and whether natural justice was upheld. The more informal tribunals operating at universities run roughshod over most of these options. Zero-tolerance policy (as a generic term to cover the wide array of equity, harassment and human rights codes being applied to the universities), is a dangerous political tool, especially when it is combined with expansive interpretations of "harassment" or "poisonous atmosphere," and when it has adopted an ideology intolerant of the imprecisions and dissenting views comprising the scholarly culture. Moreover, zero-tolerance policy leaves open a huge window of opportunity for what University of Calgary political scientist Rainer Knopff has called "social technology"—using the judicial apparatus to socially remanufacture human relations.9 The traditional purposes of the university are, I believe, lost in the shuffle. Once universities abandon the complex work of shaping moral attitudes, and then find it necessary to introduce hyperrationalist technical regulations to control the license they have allowed to grow, we are hearing the death rattle of the university as an idea and institution. Codes and tribunals do not make for a civil association! We have permitted politicized moralism to replace the careful incubation of a moral attitude that transpires wherever good books are read and soul-leading conversations are pursued.Notes 1 See Michael Oakeshott, "On the Character of a Modern European State, in On Human Conduct, (Oxford: Clarendon Press, 1975).2 Ibid., pp. 324-325.3 Northrop Frye, "Language as the Home to Human Life," in Salute to Scholarship: Essays Presented at the Official Opening of Athabasca University, ed. Michael Owen (Athabasca: Athabasca University, 1986), p. 4.4 See Michael Oakeshott, "On the Character of a Modern European State," in On Human Conduct, (Oxford: Clarendon Press, 1975), pp. 324-325.5 Jackie Stalker, "The Chill Women Feel at Canada's Universities," The Globe and Mail, 25 July 1995, p. D6.6 Peter Emberley, Zero Tolerance: Hot Button Politics in Canada's Universities (Toronto: Penguin Books, 1996), p. 213.7 "Brush with Killer Related as Women Demand Safer Campus," The Vancouver Sun, 12 November 1993, p. B1.8 Naomi Klein, "Why Universities Feel Harassed by Zero Tolerance," The Globe and Mail, 6 January 1994.9 Rainer Knopff, Human Rights and Social Technology: The New War on Discrimination (Ottawa: Carleton University Press, 1989).

1. Preface and Summary What are we to make of a culture that seems to have developed amnesia, insecurity, and "chronological snobbery" at roughly the same time? For that seems to be our condition judging by how we approach contemporary education. The amnesia relates to just about every aspect of the necessary links between character, culture, and education. The insecurity seems to relate to anything to do with morality, and the "chronological snobbery" to the common (largely implicit) belief that the most recent innovation is more valuable than that developed in time past. Yet the forgetfulness, insecurity and faddishness are not total, and it is in an effort to overcome the polariztion that exists between "progressives" and "traditionalists" that Dr. Gow has written this paper. If we examine the current situation a little more closely, we note some inconsistencies: while contemporary models say it is inappropriate to commit the "moral imperialism" of suggesting that there are standards of conduct that are simply better than others, it is still somehow definitely wrong to be intolerant or to say anything that might make another uncomfortable or damage "self-esteem." Such "relativism" is of a soft or mushy type and its inconsistencies suggest that it may yet be worked with. Commentators in the 1930's and 1940's indicated that a proper teaching of freedom required a firm sense of rights and duties. These writers expressed concern that disastrous shifts had already occurred which, unless corrected, would threaten society itself. In Education at the Crossroads (New Haven: Yale, 1943), the French philosopher and theologian Jacques Maritain, said that the task of moral re-education is "really a matter of public emergency" (p.93). It was clear to Maritain that "...for the educational body as well as for the individual citizen, freedom, rights, and autonomy have responsibility, duties, and moral obligations as their correlatives. In the human commonwealth, freedom and authority are as necessary for one another, by virtue of the nature of things, as their occasional conflicts are inevitable in actual fact" (p.98). Yet it is precisely the inter-related nature of moral obligations with true freedom that contemporary education disdains and its confident avoidance of yesterday's truths makes it vulnerable to the latest fad. Where concern about "victimization" and "empowerment" within an increasingly vapid framework of "values clarification," has usurped teaching about how choices relate to character and why certain conduct is virtuous, education has lost its way. In this paper, Dr. Gow focuses on a particularly good example of the current debased educational approach—the notion that education is primarily about furthering "self-esteem." As against the individualistic and relativistic tendencies of a "self-esteem" focused education, Dr. Gow suggests the need to construct a "moral vision" for today's students. Her paper suggests that it is necessary to break through the polarization between the traditionalist and the progressive camps in an effort "... to come to grips with questions of the essential nature of education and methodologies which link these essentials." In the course of her evaluation she notes that "... it will be obvious that one is working from the premise that intellectual and moral endeavours are inter-related and that this has very fundamental connections for the good life, morality, amorality, immorality and not least toward discovery of the real self." In short, to have any meaningful "self-esteem" one must have a meaningful sense of a real self. An "itch and scratch" existence is simply not adequate. What is needed is a moral vision that must excite and convince and be freely chosen. It is implicit that to be chosen, it must at least be presented and it is against the stunning banality of the choices presented to today's students that the exciting possibilities of the author's suggestions will be immediately evident. Such a moral vision, she says, cannot be indoctrinated if it is to be valid. Free assent based on their own reasoning from their own experiences will lead to a conviction that certain forms of conduct etc. are the only approaches conducive to "genuine community." Yet, in the face of "self-esteem," moral visions about what is best and noble are not likely to be taught much less, as Gow argues, experienced. We must first see how flawed and insufficient the current approaches are. Many of the strategies for building self-esteem are misdirected since they address only the material manifestation of discontent rather than tracking the deeper but less visible roots from which real lack of self-esteem arises. The false approach that views each person as literally a law unto him or herself (auto-nomos = self law) cannot be the basis of a society of responsibly interrelated citizens. A more flourishing sense of civil society urges us to reach beyond the pale and emaciated visions of personhood that underlie so many educational insecurities today. In the current British Columbia Ministry of Education's Grades 8—12 programme entitled "Career and Personal Planning," it is made clear that only "experts" ought to give any training in first aid. Yet, what expertise does the average teacher have to ground students in moral responsibilities, true freedom and the arguments in favour of a robust sense of citizenship? Dr. Gow's paper joins an increasing chorus of critics who suggest that the current focus on "self-esteem" is not only foolish and insufficient, but it is also tragic and, as Maritain pointed out long ago, poses a genuine threat to the common good. The content of "framework for values" lists put out by current Ministries of Education, which students are encouraged to add to and then rank-order, shows the confusion of contemporary models when they are placed alongside any usual list of "virtues" in the tradition. How can anyone think that a student's selfselection of such "values" as "physical attractiveness" or "an adventuresome life" or "achieving something special" could be of any real guidance to a student (these examples come from British Columbia's current manual for Suggested Classroom Activities for its Career and Personal Planning 8—12 Programme)? Gone is any sense that the relationship of moral choices to happiness needs to be pursued with some rigour and structure. In fact, in the "alert" accompanying the "values" exercise, teachers are told that "Judging values is not appropriate." Yet the teacher is told that it is appropriate to "model the process" of value discussion using themselves as examples. The example given is interesting: "I am the oldest of seven children in a step-family. Both of my parents worked and I had to work part-time. I believe that hard work and effort is very important and helps you to value your leisure time." Leisure time is no goal unless one is given insights into how to spend such time usefully (here one might recall that Josef Pieper devoted an entire book to the nature of leisure as the basis of culture!). Even the lesson plans are inconsistent with their avowed goal to not judge "values." What is the point of exchanging any and every version of "what matters to me" unless it is to improve the lot of students? Important matters are not best served by a stance of neutrality (even assuming such a stance is possible—which it is not). In such a setting the banal, trivial, or bizarre are placed on par with the noble and the worthwhile, and one is expressly directed not to make the distinctions that are, in fact, the essence of education itself. Faced with this approach, how could students even learn what they should be tolerant and intolerant about—and why should "rights" matter (they are referred to as important to the "empowerment" that the manual sees as an antidote to "victimization")? These examples of confusion give some indication of how major a change is necessary and how difficult it will be to re-introduce a moral vision into education. But it must be re-introduced and the Centre will do what it can to assist this endeavor through a host of future activities that will examine what is missing from current models and what might usefully be employed by way of corrective. It is hoped that readers will find Dr. Gow's paper an encouraging nudge in this direction.—Iain T. BensonMaking a God of Self-Esteem: The Tyranny of Misdirected Sentiment by Kathleen Gow These days, taking issue with making a god of self-esteem probably places one somewhere between Atilla the Hun and the early Desert Fathers. But so be it! Of course one is not against self-esteem, simply that the term has become the virtual first principle, the major objective, the excuse for much of what is being heralded as the sine qua non of progressive education. In this there is confusion of wellintentioned sentiment with directives which often serve to exacerbate the very problems they seek to address. Clearly, we are appalled at the crushing costs to youth which poverty, fractured family life, substance abuse, sexual and emotional assault are exacting—erupting in violence and suicide. More pervasively, sheer apathy of mind and spirit abound in many classrooms. Diagnostic work-ups by mental health professionals whether individual or collective in their focus, inevitably target "lack of self-esteem" as a key dynamic driving these crises. A California-based task force to promote selfesteem in the U.S. went so far as to conclude that "lack of self-esteem is central to most personal and social ills plaguing our state and nation as we approach the end of the 20th Century."1 We want to respond. Consequently, from broad-based Ministry of Education guidelines to specific texts and course materials, "building self-esteem" has become a consuming focus in the classroom. The dictum is that students must feel good about themselves, and too often this preempts the promotion of academic initiatives and diligence, and consistent standards of personal discipline and responsibility. This is where it is important to take issue. For most self-esteem curricula are rooted in little or no foundational philosophic engagement with the nature of self or the nature of esteem and therefore make little organic connection between self-esteem and questions of meaning or sense of purpose in life. But this reification of self at the centre is scarcely new. Many of us recognize it as essentially the gospel of moral relativism exemplified in the Values Clarification approach to teaching moral "values." This approach has been firmly entrenched in elementary and secondary school classrooms across North America since the late 1960's. One Ontario study conducted among 10,000 teachers, 650 administrators, and 550 teacher-educators indicated that values clarification was by ten times the most popular approach to teaching "values" education.2 Self-esteem curricula may sport different labels and packaging, the language may be traded or modified, but essentially it claims the same preeminence for individual license. It parades under the aegis of tolerance and is rationalized under the umbrella of pluralism. Self at the centre of all things.The Values Clarification Movement To recap briefly, the underlying philosophy of this approach holds that for teachers to promote or support virtues such as honesty, justice, or compassion, constitutes indoctrination of children and is a violation of their moral freedom. It is argued that children—from kindergarten forward—should be free to create and choose their own "values." The teacher "avoids moralizing, criticizing, giving values or evaluating. The adult excludes all hints of 'good' or 'right' or 'acceptable' or their opposites."3 If having gone through a seven-stage process of considering the alternatives and the consequences, a child chooses, for example, to value stealing or intolerance, his or her decision will not be challenged. In this model, the chief criteria is that students go through a process of clarifying their values and that they feel comfortable with whatever they choose. It is the process that is all important, not the content. Whatever you choose will be right for you because you chose it. In Values And Teaching: Working With Values In The Classroom, world promoters Raths, Harmin and Simon specifically state: It is not impossible to conceive of someone going through the seven value criteria and deciding that he values intolerance or thievery. What is to be done? Our position is that we respect his right to decide upon that value.4Students are exempt from all traditional moral precepts or constraints. Moral subjectivism is the only absolute—the intellect freed of moral obligation. Some educators have protested: This statement carries the ideal of individuality to the point where one can no longer distinguish between the moral and the immoral. Can an educational theory produce a dishonest person and then merely say the choice of dishonesty is a legitimate expression of individual preference?5One of the reasons for the extensive adoption of the values clarification approach, is that it purports to take a "neutral" position. It holds that we live in a pluralistic society which embraces many conflicting values and the best schools can do is take a neutral approach. At first blush, this strikes a responsive note and many educators and parents concur. They are advised that to do otherwise could smack of intolerance and even bigotry. But the position that, for example, any view regarding stealing, lying, cheating, murder, suicide6 is as "right" as any other, is not a neutral position. It is just as much a dogma and doctrine as any other stance, and as such can be equally authoritative and indoctrinating. So the prescription that a pluralistic society has no choice but to support total moral relativism in its educational system is a false association of ends and means, fact and "value." Elsewhere, one has dealt at some length with analysis of this extremely influential movement.7 However, the above references indicate something of the degree to which this educational model—well into its second generation—discounts the search for true meaning/true self and trades it off for "I will be or do whatever works for me at any given moment". This, then, has fed, legitimized and perpetuated the wide-spread cult of self-esteem—the frenetic preoccupation with the necessity that we must "feel good" about ourselves at any cost—even the cost of addictions which assist us in maintaining the escape from real freedom.The Politically Correct Movement Significantly, into the midst of the free-fall individual utilitarianism of the values clarification movement has exploded the so-called "politically correct" movement of the 1990s. It dictates that there is a "right" way to think, feel, and act concerning a very wide range of behaviours and issues. Were we ripe for such a movement? Had we discovered that wide-open moral relativism did not fulfil our expectations of autonomy and freedom, but rather plunged us into more alienation and disconnectedness? But alienation and disconnectedness from what? Or from whom? My self??? Was this illusion of freedom just too confusing and too "heavy?" In any case, into the moral vacuum of values clarification burst political correctness—yet another packaged solution to the question of self-identity. As in most movements, there are positive aspects to the politically correct movement as, for example, the injunction that disparaging references to colour, gender, race be lifted from public parlance and printed materials, and that more inclusion of women's and multi-cultural contributions to society should be fostered. But to mention only one extrapolation of that injunction, it is being heatedly argued in North American universities that the Great Books from Plato, Aristotle, through Shakespeare, etc. should be struck from course material on the grounds that these books, written by men, automatically perpetuate a model of maledominated Western civilization and thereby reflect a skewed interpretation of history.8 Again, foundational content critical to the educated mind is pronounced irrelevant in deference to 'self-process' as both means and end. Both the values clarification movement and the politically correct movement are anti-intellectual, reductionist and prescriptive. Layered on top of each other—or along side—they make for individual and collective chaos. In both movements, we witness the apparently unending hope and expectation of human beings that they will find the "self" (self-esteem) in the subjective freedoms of individual utilitarianism or in the "objective" solidarity of a collective "cause." To note a further commonality between them, both these movements reflect the antihistorical position of the post-modern era. For the mind-set required for belief in the inevitability of progress and scientific optimism requires strategic dissociation of the so-called "modern" from the so-called "traditional."9Traditionalists and Progressives In their compelling book, Bankrupt Education: The Decline Of Liberal Education In Canada, Peter Emberley and Waller Newell address this point: Increasingly, public debate is polarizing teachers and parents into camps, and drawing battle lines between them, thus driving 'traditionalists' and 'progressives' into tight corners of polemic . . . the first [camp], it is said, wish to preserve the static, hierarchical, content-burdened curriculum, while the latter focus on dynamic interchanges, democracy, and process—and student-centred learning.10Each is in danger, the authors point out, of not seeing the loopholes in its own approaches, thereby "flattening" and confounding genuine educational debate. The construct which follows is offered in the spirit of trying to break through the polarization between the traditionalist and the progressive camps in an effort to come to grips with questions of the essential nature of education and methodologies which link these essentials. It will be obvious that one is working from the premise that intellectual and moral endeavours are inter-related and that this has very fundamental connections for the good life, morality, amorality, immorality, and, not least, toward discovery of the real self. I would propose the construct of "moral vision" as a bridge for those on the one hand who are, understandably, opposed to presenting to students a purely cognitive and didactic approach to moral ideals but at the same time fall prey to concentrating so exclusively on the personal preference, affective domain that the rigors of critical and moral analysis become irrelevant. I am suggesting that the construct of moral vision and the objective of developing in students the capacity for moral vision incorporates both cognitive and affective components of learning and at the same time avoids indoctrination. As such, one is hopeful that this model may offer a constructive alternative and even serve to break through a measure of the entrenchment and polarization which characterizes much current debate.Moral Ideals and Moral Vision There is a critical difference between a moral ideal and moral vision. An ideal is essentially a concept. A vision is essentially an experience. A moral ideal—however one may "look" to it—remains "extrinsic" to oneself; an objective toward which one may (or may not) strive. Moral vision, on the other hand, by its very nature denotes involvement; one "sees" with the inner eye; one is touched in the inward person. An ideal can be dismissed as simply that; too ideal of attainment, too far removed from the realities of life in today's society. But a moral vision cannot be dismissed, for it has been experienced. It is alive. It is personally compelling. It is the stuff of genuine morality, for moral vision has its roots in both cognitive and affective insights and these roots necessarily give life to moral incentive and commitment. A moral ideal can be taught. There are various methods of teaching ideals—some meaningful and some exceedingly non-meaningful—to which point we will return. Moral vision on the other hand cannot be taught. It may, however, be "caught." Perhaps it is necessary to state that the construct of moral vision as put forward here is quite clearly based on the premise that certain attitudes and behaviours in relationship with students—and indeed with people in general—are more growth enhancing and humane than others; justice and kindness are more humane than injustice and cruelty and so on. While most educators would agree with this premise, as we have noted, a major controversy still continues over whether teachers should be seen to be promoting or in support of such virtues due to the perceived danger of indoctrinating youth. It is important therefore specifically to examine the distinctions between a moral ideal and moral vision as they translate into teaching methodologies. Let us approach this first-of-all using the example of teaching mathematics, and then explore the obvious parallels which pertain relative to the presentation of the moral virtues.A Mathematical 'Sense' Conscientious math teachers, whether they are working with students at the elementary or advanced level, seek above all, to inspire in their students a "feel" for math, a mathematical "sense." Some teachers do this well for they enjoy the subject and their enthusiasm is catching. They are challenged by math not simply because they want to find the right answer, but because they are excited about the discovery of relationships and because they have a "sense" that they are grappling with fundamental realities. They have "caught a vision" of math as a holistic endeavour—and they readily transmit this excitement to students. At the same time, however, it would be unthinkable for such a teacher to teach, for example, that 4 + 4 = 8 "because it is simply a fact" or "because I say so." Rather, he/she seeks to provide an experience for students within which they are able to uncover and discover this reality themselves. Whereas the math teacher knows very well that there are mathematical theorems and objective mathematical truths which pertain, he/she will not present these theorems to be learned by rote. After all, being able to recite formulae and theorems does not constitute a grasp of the subject on either the part of the teacher or the student. The teacher realizes that if this is the extent of learning, students will be unable to creatively apply these "models" in advanced problem solving. Theorems will remain isolated parcels of memory work which ultimately disconnect and alienate the student from discovering the holistic nature of math in which lies, of course, both its essence and its excitement. It is only as students are given the opportunity to test these theorems, in the sense that they may embrace and personally experience their reality that they may genuinely validate their truths and know why and to what end they may apply them meaningfully and creatively in problem solving. As this occurs, the student moves beyond a purely mechanical problems-focused perception of math to "connect" with its universal and holistic nature. The student experiences math as an integrator of self, society, and fundamental relationships. This becomes exciting. Euclid and Copernicus come alive. There are connections to explore and a self to expand. But is it really essential to develop such a mathematical "sense?" Students who do not "catch" such a vision become increasingly disenchanted and disengage from investing themselves in it as a serious endeavour. They regard it as an isolated "subject" rather than a perspective. A whole world becomes closed to their intellectual and, one would argue, moral sensibilities.A Moral Sense By now the parallels with the addressment of the moral virtues are obvious. Educators fear, and validly so, that if moral principles or theorems such as honesty, justice, and compassion are inculcated on the basis of being "obvious fact" or "because I say so," these principles will be regarded as ponderous rules or abstractions outside the "self"—divorced from real meaning. Again, validly, we hold that it is only as the student is given the opportunity to test these moral principles in the sense that he or she does (or does not) experience their reality, that the student may be able to genuinely validate them and know whether or not, or why, and to what end he or she will commit to them. As educators then, we need to identify modalities which might offer such opportunity for cognitive and affective moral exposure and for testing validity. From Von Goethe: A teacher who can arouse a feeling for one single good action, for one single good poem, accomplishes more than he who fills our memory with row on row of natural objects, classified with name and form.11Precisely. In the same way that we spoke of teaching mathematics toward a mathematical "sense," it is incumbent upon us to follow the same objectives and methodology through the teaching of literature, history, philosophy, music, art, politics, and science. For this is the beauty and wisdom of a liberal arts education. It fosters a perspective which addresses the human condition with all its vagaries, inviting dialogue, refuting easy answers, calling us to transcend the mediocrity of self at the centre. Further, in An Experiment In Criticism, C.S. Lewis asks, "Why do we read?" Not to "get" morality, but toward the enlargement of our beings; the opportunity to "see" and experience through another's lens. For example, he said, he was not looking for C.S. Lewis in Lucretius but open to discovering Lucretius in C.S. Lewis.12 Unless this is the nature of the search, I am always meeting myself: I see everything through my own mirror or the mirror of my special interest/lobby group which may take its perspective (mirror) as the measure of all things. Indeed such groups may seek to dictate to me the necessary components of my self-esteem in which case I can become a faceless means toward their prescriptive end. In either case, when my self or group-esteem is challenged, I can become highly threatened by opposing perspectives and openly hostile, unable to risk reasonable open debate in the spirit of civility. In fact, Canadian schools are becoming militant platforms for individual and group violence. With corresponding dogmatism, classical works of art and literature can be deconstructed to parochial and exclusionist interpretations which seek to deflect the fact that eternal questions have a way of getting through to us in a way that oratorical answers do not. But the eternal questions get through only when we become aware that we have been programmed not to hear them, and as we seek to allow them expression. In fact, it is interaction with those eternal questions which takes us out of ourselves. It breaks the circle of wholly reflecting or wholly experiencing because, in this perspective, which inspires vision, one can reflect and experience at the same time. Put another way, the possibility for union takes place. The music plays the band. This is the intrinsic connectedness and freedom which liberal arts education understands so well. Another modality which offers opportunity for moral vision is of course relationship between persons or in community. It can be argued, for example, that it is primarily through relationship that one really "knows" compassion for one has experienced it and can therefore "connect" with it as having reality and intrinsic validity. Beyond cognitive appreciation of the concept, in relationship one affectively understands and "feels"(i.e. experiences) the fundamental distinction, for example, between "Looking Out For #1"13 and I shall pass through this world but once. Any good therefore that I can do, or any kindness that I can show to any human being, let me do it now. Let me not defer or neglect it for I shall not pass this way again.14 One has moved beyond perceiving morality as a list of ideals to personally uncover and discover its universal and holistic nature. One "catches" a vision of the virtues as integrators of self and society.The Teacher as Role Model in Relationship By and large, teachers are very aware that the teacher-student relationship can be a key factor in a pupil's life. They are aware that especially when a student is, for example, lacking in compassion he or she desperately needs personally to experience compassion to be able to test and validate whether it can be real. But actually to be that testing ground; to respond to students with compassion; to mobilize the psychic and spiritual energy necessary to cope with dislike of some students, anger and threat, is very costly. Understandably the teacher as role model is not very popular among teachers today. Yet this is moral vision in living action and it is exceedingly powerful. It is not a hypothetical moral dilemma or a contrived exercise about compassion or honesty or justice. It is seeing and feeling a teacher being compassionate, honest, and fair, especially when it is difficult to be so. At the same time, it should be selfevident that helping to create and maintain classrooms as moral communities is not only the function of students, their parents, and classroom teachers, but also the mutually supportive responsibility of principals, school boards, and ministries of education across all echelons of the system.The Question It is easy enough to nod our heads in agreement with this concept of moral vision actively lived in moral community. Yet it requires far more than intellectual assent. It requires hard work. It asks each individual to confront the issue at a very personal level; to ask "Are there any moral principles which I have experienced and tested and found to be valid: Honesty? Justice? Compassion?" That is, do I "connect" with any of these moral ideals as being essential integrators within my person and in my relationship with others (e.g., "I will be compassionate even when it is difficult to be so."). Have they become for me deep and consistent commitments of will and heart; integral to my moral vision? For example, do I feel less than my "self" when I am not compassionate; that I have compromised a basic tenet of my being and broken a form of sacred trust afforded me as a human being among other human beings? If the answer to these questions is "yes," then each attitude and each situation in one's life will reflect this holistic integrative orientation. At the same time, that individual will not be indoctrinating others, for one cannot indoctrinate a moral vision. One can simply offer as consistently as is possible an experience of honesty and benevolence, through which others may touch into the essence of commitment which, by its very nature, will involve self-sacrifice. And in participating in this essence, genuine community may be born. If, on the other hand, the answer to the question is "no," then each attitude, each behaviour, each situation in a relationship will be a law unto itself—disconnected from any holistic or integrating principle (e.g., "I will be compassionate if I feel like it or if the other 'deserves' it"). For the teacher, the endeavour of being a role model in relationship will be rejected as irrelevant because there is nothing foundational or consistent to offer to students. There is no frame of reference to inspire moral, intellectual, or spiritual vision; in Aristotle's terms, a rejection of ethos (habit) and logos (reason) as essential components. Indeed where this is the case there is no reason for anyone to reach outside his or her self; only a pooling of subjectivity which serves to keep us circling in the whirlpool of individual rights. Indeed there is a sense that without the ego-inflating protection of self-esteem to buoy me up, I may become irretrievably sucked under. Consequently (or what I may perceive to be consequently), I must choose to answer "no" to risking the possibility of life lived beyond self at the centre. And thereby evolves the end of conscience. For as long as self-esteem remains a god, legitimizing whatever perversions the autonomous self may elect to pursue, it is surely true that community will not be possible. For bastardized forms of community in their collectivized reification of self-esteem cling to tribal exclusivism and name it "culture."Expectation and Disenchantment as Broken Ground for Encounter In order to understand the foregoing in context, it is important to appreciate that up until quite recently in this land of opportunity, most Canadians have believed in the inevitability of progress. In many respects this power model may be described on four "legs:" 1) the inevitable triumph of objective critical intelligence over superstition, 2) sophistication over simplicity, 3) human beings over nature, and 4) abundance over scarcity.15 It has been assumed that the combination of hightech electronic and scientific management would power these four dynamics. Much of our confidence in this assumption centres in the ever evolving powers of the computer and its revolutionary capabilities to reduce the "human error factor." Less-heeded are warnings that our ability to think creatively about our world may be undermined by the very "information" which is supposed to help us understand it: that the data processing mind-set may replace thought, and that "data glut" may obscure basic questions of justice and purpose.16 Clearly minute-by-minute eye witnessing of the Gulf War computer strikes, and yet the subsequent non-"victory" of this war, gave a razor-sharp edge to these warnings about the machine as human and the human as machine. And on a continuing basis, the push of a control button is all that is required to be "entertained" by Bosnian carnage, pornographic fantasies, killer video games at the corner arcade or, more symbolically, in the "family" room. This instant stop/start/replay/ violence and destruction depending upon one's mood of the moment becomes fertile ground for the illusion of power and control at the cost of the utter desensitization of self. On the social organization side of Canadian society we recognize the increase in crime, gangs, substance abuse, and the numbers of disenfranchised. But by and large we have assumed and counted on the fact that this could be handled by the appropriate organization employing the appropriate experts. This has given rise to an ever-expanding class of professionals who claim a monopoly on the basis of their bio-psycho-social (i.e., "scientific") expertise—in social contract exchange for the public's legitimation and trust. But there is an angry restlessness now; a sense that the "experts" do not have all the answers and that our social institutions are not holding. At root, there is a lack of consensus about direction and "values" and this is acted out by individuals and groups through anger, scapegoating, and distorted perceptions of "me as victim." This, in turn, feeds back into the social psychology of our institutions—the educational system being a prime example and a most critical one. In short, to the extent that a society's norms and values are unclear and dissociated from each other and from implementation in practice, day-to-day living in that society becomes idiosyncratic and fragmented. At the same time, we are loath to admit that the system isn't working because we are afraid. So the pretense of truth and justice persists: rhetoric to mask the half-true or the untrue. In many of us, perhaps, there is the unspoken realization that as individuals we (choose to) participate in the hypocrisy and the power/control configurations which continue to perpetuate and further compound the very situations and problems we say we deplore. We "go with the flow" on the rationale that one has to survive. Damn the system, play the system, work the system, change it later? We fight appearances with more appearances, layering on more jewelry to suit the occasion. It looks good, it feels good, it enhances the image. No longer are we in touch with whether or not we are trying to obscure the basic garment if, in fact, we are wearing a basic garment at all. Perhaps the truth of the matter is that the jewelry has become the garment.17 Exactly. The jewelry of deconstructionism is accented with self-esteem. Can adults be surprised that in projecting this life-view into the classrooms of our nation we are clocking escalating rates of teenage disorientation and suicide? Characteristically, children and youth are the first to detect disconnectedness and pretense in adults around them. They are singularly open to truth beyond that which is seen. They deserve opportunities for vision. In the midst of shattered expectations, considerable disillusionment and a deep sense of malaise in Canadian society, we stand in danger of grounding such opportunities by claiming self-esteem as our ultimate security i.e., "I am all I've got." As a result, many of our strategies for building self-esteem are misdirected—they address the visible (material) manifestation of our discontent rather than tracking the invisible (spiritual) root from which it springs.Vision Revisited I have tried to suggest that vision and, ultimately, hope lie in examining and addressing foundational and relational reality beyond self as the centre. Northrop Frye recognizes that this is how vision develops: "Normally it is only after prolonged contact with a specific discipline of thought or imagination that one can face the kind of reality that detachment reveals, a reality unaffected by socially acquired prejudices or passions of the ego."18 I have proposed that there are significant parallels between teaching math toward developing a mathematical "sense" and teaching the virtues toward developing the capacity for moral vision. In fact both, as vision, require personal discipline if they are to be lived commitments. They offer essential connectors and integrators of the self: connectors and integrators in the sense that the self is called to touch into fundamental realities and in so doing comes to recognize our illusions as addiction. This can actually lead to a reframing of ego reality as referenced in the increasingly popular Twelve Step Programs which recognize the limits of ego and the necessity to invest in matters of the spirit.19 Indeed it is as we accept our human condition in humility that ironically enough we transcend our absorption with ego. This alternative way is often very painful. It demands perseverance of heart and will toward a gradual realization that the illusory or "false" self, as Thomas Merton would have it,20 clings feverishly to its own agenda of pride, power and control and actually serves to limit the freedom of clear, honest vision. In Biblical terms, this is stated as the freedom which comes in losing one's life in order to find it.21 This internal and persevering engagement toward the integrating of mind, body, and spirit is not for cowards. It entails a willingness to penetrate the truth rather than to speculate on our own terms. There is an acceptance that the need to search for our true self is deep within each of us, that we do not grow out of it, that it is not childish or immature, much less merely "traditional." It is this quest which liberal arts education embraces with all vigor. I have tried to trace the "way" as being an attitude of heart (vision) as differentiated from simply "feeling" or cerebral opinion, and have suggested that the true professional professes from inner experience of this attitude. These attributes have been recently mocked and abandoned because of the prevalent hypocrisy of disconnecting the experience from the ideal. I would submit that this underlines much of what is currently defined as the crisis in self-esteem. Surely the way to move further is again to begin the humble way of trying to live out the mystery of the way which itself provides the superhuman grounding of confidence in each individual who risks to begin, to falter, and to persevere.Notes 1 See Chester E. Finn Jr., "Narcissus Goes to School", Commentary (June 1990), p.40.2 The Moral Education Project (Year 4): Annual Report 1975/76, Ontario Ministry of Education, Toronto:1978, p.6.3 L. Raths, M. Harmin and S. Simon, Values and Teaching: Working with Values in the Classroom 2nd ed.; Columbus, Ohio: Charles E. Merrill Publishing Co. 1978, p. 55.4 Ibid, 1st ed., 1966, p. 227.5 Ivan Cassidy, "Values Educators Test the Spirits," Journal of Education, sixth series; Vol.3, No.4 (Summer 1976), p. 26.6 For specific documentation see Kathleen M. Gow, Yes Virginia, There is Right and Wrong, Toronto: John Wiley and Sons Inc., 1980, rev. ed. Wheaton: Tyndale House, 1985.7 Ibid. See also Peter C. Emberley, Values Education and Technology: The Ideology of Dispossession, Toronto, University of Toronto Press, 1995.8 See for example D. Kimura, "A Defense of Discomfort and Discrimination" in Peter Emberley and Waller Newell, Politicizing the Classroom, Toronto, University of Toronto Press, forthcoming.9 For example, current usage of the term 'chronological snobbery' which refers to the dictum that 'present-day' thinking is, ipso facto, superior to 'earlier' or 'past' thinking. See also Iain Benson, "Tradition or Traditionalism?" in Centre Points, (Newsletter of the Centre for Cultural Renewal), Vol. 2, No. 1, Spring 1996. pp. 1-2.10 Peter Emberley and Waller Newell, Bankrupt Education: The Decline of Liberal Education in Canada, Toronto: University of Toronto Press, 1994, p. 22.11 J.W. Von Goethe, Elective Affinities tr. by J.A. Froude, cited in John Bartlett, Familiar Quotations 11th ed. Boston: Little, Brown and Co., 1938, p. 1057.12 C.S. Lewis, An Experiment In Criticism, Cambridge; Cambridge University Press, 1961, p. 86.13 Robert Ringer, Looking Out For No.1, New York: Fawcett Publishing, 1978.14 These words have been attributed to many authors, among them Etienne de Grillet. However, the author is actually unknown. See John Bartlett, Bartlett's Familiar Quotations, Boston: Little Brown and Co. 1968, p. 531.15 See Christopher Lasch, The True and Only Heaven: Progress and its Critics, New York: W.W. Norton and Co., 1990.16 See Joseph Weizenbaum, Computer Power and Reason, Penguin: London, 1976 and Theodore Roszak, The Cult of Information: The Folklore of Computers and the True Art of Thinking, Pantheon: New York, 1986.17 James S. Gow, "In The Wake of the Flood", unpublished manuscript, 1991.18 Northrop Frye, On Education, Markham: Fitzhenry and Whiteside, 1990, p. 35.19 See, for example, Alcoholics Anonymous: Twelve Steps and Twelve Traditions, World Service Inc., New York, 1953.20 See Thomas Merton, The New Man, New York: Farrar, Straus, and Giroux, 1978.21 Holy Bible, Gospel of St. Mark 8:35.

Preface and Summary Throughout history the relationship between the state and the family and the role and duties assigned to each has been much debated. Some have seen the family as a servant of the state while others have seen the state's role as essentially to provide families with the security they need to do their work as the primary unit for raising children as future citizens. In his book, The Socialist Phenomenon (New York: Harper & Row, 1980), Igor Shafarevich, once a professor of mathematics at Moscow University, catalogued the historic tendencies of a certain type of utopian socialism which sought a perfected or utopian state it believed could be achieved if only society was restructured in certain ways. Shafarevich traced this type of socialism through antiquity, the heresies of the Middle Ages and the Reformation, the utopian writings of philosophers such as More and Campanella, the state socialism of the Inca Empire, the 18th Century Jesuit state in Paraguay and the ancient Orient. Over this wide expanse of time and place, Shafarevich noted three trajectories common to utopian restructuring: the abolition of private property, the abolition of religion and the abolition of the family. One does not need to become paranoid in order to notice that in Canada today these three institutions are, in fact, under considerable strain. Particularly with respect to the family, there are signs that it is once again time to renew the discussion about the proper role of the family in a free and democratic society. There is always a tension between the state and the parts that make it up. The state and its institutions must always be careful to facilitate the function of the family without usurping its proper role. The state has a role to play in ensuring that the lives of children are not threatened by neglect or abuse but must be careful not to tread on the independence of the family. The state exists, so the principle of subsidiarity tells us, to facilitate and assist the smaller units, not to occupy their proper "space" in society. In past decades, ideological camps have arisen which have called, on occasion, for the abolition of any demarcation between the family and the state. This idea, as old as Plato, threatens the notion that the family is, and ought to be, the first "school of virtue" for citizens. Unfortunately, as virtue itself has slowly evaporated from consciousness (a result of its gradual disappearance from formal education itself), the family's role in the teaching and propagation of a coherent understanding of virtue and character has also become misty. When key aspects of social life cease to be argued for, debated and taught, it is only a question of time before they become threatened by acts of commission or by neglect. There is growing evidence that this tension between the state and family may be in need of examination and correction at this time. Such correction will involve, as part of its task, the re-articulation of the family, its nature and its proper place in civil society. If this task of description or re-membering does not occur, there is a risk that those who seek deliberately to weaken the family will triumph, not because their arguments are better but because the rest have lost any sense of what the family's proper role and duties are and how to argue for them. But, prior to any proper prescription, one must first be convinced that the diagnosis is sound. In this paper Vancouver lawyer Cindy Silver, who has followed developments in this area for some years, has chosen to examine the effects of recent development in national and international law that touch on the issue of "family autonomy". She notes the importance of seeking "the best interests of the child" in certain circumstances but sounds a note of warning lest the ambit of such inquiries extend beyond those where the lives of children are actually at stake. It is not the state's place, for example, to make determinations about the religious education a child gets from its family nor should a family's religious beliefs be a relevant factor in "child apprehension" cases. It will come as a considerable shock to some people to realize that just this sort of inquiry has occurred in Canada in recent years. We do not need to subscribe to the view that the family is under threat of imminent abolition in Canada in order to decide that it is time to start asking some hard questions. First amongst these are questions that relate to how we are to protect family autonomy in a society that is given over more and more to forms of state control and state regulation that allow less and less scope for the exercise of meaningful family autonomy. It is useful to reflect, for example, on whether parents in Canada at the present time have an effective choice about the type of curriculum their children are going to be taught from in systems supported by their own tax dollars. How accountable is the public school system and what can be done to make it effectively accountable? While these questions are not dealt with in this paper, they arise when its central theme is considered more broadly. Effective family autonomy is not something we can take for granted even within existing institutions in Canada and, as Silver shows in her paper, there is now a sufficient basis in documented cases for politicians and policy makers to take positive steps to ensure that valid concerns about the welfare of children are not used in ways which inject the state and the courts into areas they have no proper place to enter. Considerable work will be necessary in the future if we are to discover what aspects of civil society need to be strengthened so that families will have the resources they need. It is hoped that by showing some key recent developments that touch on the place of family autonomy in Canadian society, this paper will contribute to a broader discussion of the issues so that the state and the family can begin to occupy their proper places.Family Autonomy and the Charter of Rights: Protecting Parental Liberty in a Child-Centered Legal System Recognition of due process and the retained rights of parents promotes values essential to the preservation of human freedom and dignity and to the perpetuation of our democratic society. The family is the principal conservator and transmitter of cherished values and traditions. Any invasion of the sanctity of the family, even for the loftiest motives, unavoidably threatens those traditions and values. Family autonomy helps to assure the diversity characteristic of a free society. There is no surer way to preserve pluralism than to allow parents maximum latitude in rearing their own children. Conversely, there is no surer way to threaten pluralism than to terminate the rights of parents who contradict officially approved values imposed by reformers empowered to determine what is in the 'best interests of the child."1 Canadians live in a world where post-modern human rights are now a driving force, challenging the philosophical and legal traditions on which our social institutions are based.2 This is nowhere so evident as in the radical restructuring of the roles and relationships of the family and the state, while the state takes an evermore active role in protecting child rights as defined under the United Nations Convention on the Rights of the Child.3 This paper discusses the impact on the family of state attempts to both define and protect "the best interests of the child." In particular, it brings to light internal contradictions in child-rights jurisprudence, particularly when the state's power collides with the parent's right to liberty under Section 7 of the Charter of Rights. This paper discusses recent ideological and legal developments that challenge the a priori right of parents to nurture, maintain and educate their children free from undue interference of the state. It reviews the macro-social, philosophical and legal traditions that underlie Canada's long- standing policy of respecting the autonomous nature of the nuclear family. It examines changes in federal and provincial policies as a result of Canada's commitment to the United Nations Convention on the Rights of the Child, the plan for which is contained in Brighter Futures: Canada's Action Plan for Children.4 It discusses the role that non-governmental organizations (N.G.O.s) currently play in initiating policy changes and how this might be affected by a recent Supreme Court of Canada decision that places parental rights squarely within Section 7 of the Charter of Rights.Deconstructing the Family, Promoting the Child As Canadian law and policy moves from an implicitly Christian framework to an explicitly secular one, the conceptual roles and legal rights of family members are being redefined. The once implicit right of parents to raise their children free from the undue intervention of the state has become obscured, while the individual rights of children have become a primary focus. Before the Charter, family autonomy and parental rights enjoyed a quasiconstitutional legitimacy. This was derived primarily from the Canadian Bill of Rights, the preamble of which states: The Parliament of Canada affirming that the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions.Affirming also that men and institutions remain free only when freedom is founded upon respect for social and spiritual values and the rule of law.As a constitutional document, the Charter of Rights is now primary in determining human-rights issues and, in practical application, prevails over the Canadian Bill of Rights. The Charter's preamble, now the definitive purpose statement for the protection of human rights in Canada, is much shorter and has deleted references to the family: "Whereas Canada is founded upon the principles that recognize the supremacy of God and the rule of law." By deleting express reference to the family, the Charter of Rights removed from plain view the grounds for constitutional protection of parental and family rights. This omission has contributed significantly to the demise of family autonomy and the devaluing of the family in law and legislation. Although the Charter failed to mention the family, it did specify age as a prohibited ground for discrimination within Section 15(1), a characteristic not mentioned in the anti-discrimination provisions of the Canadian Bill of Rights. Section 15(1) states: Every individual is equal before and under the law and has the right to the equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, color, religion, sex, age or mental or physical disability.The inclusion of age as a prohibited ground for discrimination effectively changed the constitutional status of children to one of prima facie equality with adults. Although age-based challenges have proved unlikely to succeed, the fact remains that any legislation that distinguishes children from adults based on age is vulnerable to challenge under Section 15 (1). Even as the Charter was being developed and implemented in Canada, there was a growing sense elsewhere that the rights of children were being ignored. Initially there was concern than, at the very least, children should be guaranteed protective rights, including the right to proper nutrition, basic medical care, hygiene and literacy, and the right to be protected from child labor, child prostitution, and the atrocities of war. Then, as child-rights theory became more sophisticated, human-rights groups included their concern that there was an 'epidemic' of family violence, including child abuse, in the developed world.5 Child-rights advocates argued that abuse within the family was rooted in and perpetuated by the hierarchical authority structure of the traditional family and by the veil of privacy that discouraged government intervention in family matters. The solution, they believed, was for the state to shift the balance of power in the parent-child relationship through policies that would define and limit the power of the parent while increasing the power of child. This would necessarily include changing the legal status of the child from an integral part of the family unit to an individual rights-possessor, and then conferring on the child explicit decision-making choice rights. In 1979, the United Nations (U.N.) proclaimed the International Year of the Child, an event that set in motion a ten-year process that culminated in the drafting of the United Nations Convention on the Rights of the Child. The final document reflects an attempt to address all of the concerns raised by childrights groups. As a result, the U.N. Convention confers both protective rights, and choice rights, thereby establishing a presumption that children should be able to act autonomously whenever possible. The Convention, which Canada ratified in December, 1991, includes the following choice rights:6Article 13—the right to freedom of expression, including the freedom to seek, receive and impart information and ideas of all kinds...whether orally or in writing, in the form of art...or through any other media of the child's choice. Article 14—the right to freedom of thought, conscience and religion. Article 15—the right to freedom of association. Article 16—the right to privacy. Article 19—the right to be free from all forms of physical and mental violence.7The U.N. Convention and the Charter of Rights have become powerful companions for defining the scope of child-rights. Together, these documents function as the reference point for the development of child-rights law in Canada. Both documents emphasize the state's role in protecting the autonomy of the individual against the institutions of society. In functional terms, this has recast the state and its courts as child-advocate against parents. In a recent article, Iain Benson, Executive Director of the Centre for Cultural Renewal, discusses the theoretical and functional chaos that is being created as our society attempts to separate the technique of the academic disciplines from a shared understanding as to their purpose within the social good.8 Recent developments in child-rights law illustrate the problem Benson describes. The technique, or theory, that defines child rights has expanded and become more sophisticated, while a shared understanding as to the purpose of child rights as components of the social good has become increasingly narrow. This separation of technique and purpose largely explains the present confusion as to the goals of child-rights law reform, not only among academics but among the offices of government and the courts. Having severed the connection between its technique and its purpose, child-rights theory, policy and law are in chaos; our society is trying to define child rights without clear reference to family autonomy or parental rights, and without deference to the best interests of society. This is a no-win situation, analogous to placing children in a speeding vehicle on an unmarked road with no clear destination.Constitutional Challenges and the Role of N.G.O.s A brief review of a few recent cases best illustrates the present chaos in childrights law reform. In May 1995, in the case of R. v. Carmen M., the Ontario Court of Appeal struck down Section 159 of the Criminal Code after the defendant argued successfully that this section violated Section 15(1) of the Charter of Rights.9 In this case, the defendant was charged under Section 159 for engaging in anal sex with a fourteen-year-old youth. Section 159 made it a criminal offense to engage in anal sex unless both parties consented and were at least 18 years-old or married. In contrast, the age of consent for heterosexual sex was 14 years. Focusing on the discrepancy in the law regarding the age of consent, the accused argued that this section violated the equality rights of youth to consent to anal sex after age 14. The Crown conceded that the age distinction created by Section 159 was discriminatory, but argued that the distinction was justified under Section 1 of the Charter. They argued that the section had a legitimate objective in protecting young persons from engaging in a specific form of sexual activity, anal intercourse, for which there were increased risks of physical and psychological problems, including the transmission of HIV. However, Madame Justice Russell, relying on the recent federal court decision in Halm v. Canada, struck down the law on the grounds that it discriminated on the basis of both age and sexual orientation.10 In Halm v Canada, Mr. Halm was denied immigrant status and faced extradition after authorities learned that he had recently failed to appear for sentencing after being convicted of ten sex offenses in New York State, including five counts of sodomy and three counts of endangering the welfare of a child.11 Halm appealed Canada's decision to deport him back to New York State for sentencing. He argued that Section 159, the Canadian equivalent of the charge for which he had been convicted, contained an age discrepancy that violated Section 15(1) of the Charter, therefore rendering the section unconstitutional and invalid. He argued that, in the absence of Section 159, the acts for which he was convicted would have been legal if they had occurred in Canada, therefore the immigration officials lacked the grounds necessary to deport him. In Halm v. Canada, Madame Justice Reed held that Section 159 violated the Charter on both the enumerated ground of age and the analogous ground of sexual orientation. Like Madame Justice Russell in Carmen M., she rejected the government's argument that the section served three legitimate objectives, reinforcing moral precepts, inhibiting youth from engaging in anal sexual activity and protecting youth from the increased risk of HIV transmission. In rejecting the first objective, Madame Justice Reed stated: I agree that there has always been a close connection between the Criminal Code and moral values. That does not mean, however, that today in our pluralistic society, moral values alone can justify making an activity criminal. If it could, one immediately has to ask, by whose moral values is the state to be guided? I am not persuaded that in a free and democratic society it is justifiable to make an activity criminal merely because a segment, indeed maybe a majority, of the citizenry consider it to be immoral.12Responding to the second and third legislative objectives, to discourage anal sex and prevent HIV transmission among youth, Madame Justice Reed stated: All of the evidence indicates that AIDS is spread by a number of activities (sharing needles among drug users, blood transfusions, both anal and vaginal sex). In absolute numbers, it would appear that anal sex is the least frequent method of transmission. It is not rational to make one such activity a criminal offense and not the others. Also, while unprotected anal sex may be riskier, as a potential conduit for HIV transmission than vaginal sex, in both cases it is unprotected sex which is the cause, not the activity itself.13In both Halm and Carmen M., the government did not appeal, notwithstanding the fact that a Quebec court facing the same issue that year upheld Section 159 in a well-reasoned judgement.14 Several child-rights groups, including a government-funded N.G.O. called Justice for Children and Youth, intervened in Carmen M. to strike down Section 159. The final ruling of the court was described by the intervenors as a victory for the right of youth to make sexual choices and to have equal legal access to all sexual activity. It is difficult to understand how this could be construed as a significant advance for children's rights as contemplated by early proponents of protective rights for children. However, the issue in this case was one of choice rights and was based on an unqualified concept of youth as individual rights-possessors. This accounts for the complete failure of the court to justify its decision in terms of the "best interests of the child," or to refer anywhere to the autonomy of the family or to the interests of parents in policy issues that could potentially effect their children. Justice for Children and Youth is one of several child-rights N.G.O.s presently playing a leading role in child-rights law reform in Canada. This is unsettling given that the ideology of many influential child-rights N.G.O.s is not only inordinately child-centered, but in many cases, antipathetic to established authority. The focus of these organizations is too often on defending the child against authority, whether exercised by social agents or parents. The activities of organizations such as Justice for Children and Youth illustrate the functional chaos that is resulting as the Canadian government funds and mobilizes N.G.O.s in order to promote child rights without a contextual framework that gives due weight to parental rights. Since 1992, the federal government has allocated $459 million toward conforming Canada's law and policy to the provisions of the U.N. Convention. Part of this amount was used in 1992 to create the Children's Bureau of Health Canada, whose mandate is to "ensure consistency and coordination for all federal programs and policies for children."15 From its inception, the Children's Bureau has worked with federal and provincial N.G.O.s to develop and implement Brighter Futures: Canada's Action Plan for Children, which is a massive effort "to work through all sectors of society—business, labor, communities, other governments, N.G.O.s, families and individuals—to improve the lives of children."16 Most state intervention in the parent-child relationship occurs at the provincial level. Provincial legislation empowers social workers to undertake measures that intrude on the autonomy of the family and the rights of the parents. For example, social workers are empowered to conduct inquiries and petition the court for a variety of orders with regard to a family under investigation. The court may give child protection authorities supervisory powers over the family, including unannounced "spot visits" to the family home, the power to interview children on demand or in the absence of a parent, and the power to require a suspect parent to attend one or more counseling programs. As well, the authorities may seek an order restraining a parent from being alone with the child, or having any direct contact with the child, or returning to the family home. It may make recommendations to the court regarding parental access to, and alternative placement of, the child. Finally, the child protection agency may seek an order for wardship of the child. The powers of government authorities in child protection proceedings are manifold compared to those of the parent. The state, with all of its personnel and money, is pitted directly against the parent. Yet the procedural safeguards are minimal. The cases indicate that even though protection authorities exercise quasi-judicial powers, the standard of proof in child protection proceedings is, at best, based on a balance of probabilities.17 Under provincial law, all that authorities require before initiating an intrusive investigation of a family is one complaint by an anonymous third party. Under provincial legislation, a child may be apprehended if the social worker decides they fit within the catch-all term a "child in need of protection". Although this term is well defined by the legislation, unclear procedural and evidentiary standards often mean that state interference in the family is based on assumptions rather than facts, leaving a disquieting margin for error.18 The powers of social workers might be necessary, but it is imperative that these powers expressly require not only justification and responsibility but procedural safeguards as well. The following cases illustrate the tragic impact this can have on a family. Until February, 1995, Charles and Sandra Butler home-schooled their children, ages eleven, eight and five.19 According to Newfoundland law, parents are allowed to home-educate their children as long as the curriculum they use is accredited by the district school board. The Butlers followed a home-school curriculum developed by the Seventh Day Adventist Church, one that the school board had refused to accredit. The family had no past history of neglect or abuse. In February 1995, the Department of Social Services decided that the Butler children were in need of protection as contemplated by the province's Child Welfare Act on the ground that the Butlers had neglected to provide adequately for the education of their children. However, within hours of apprehending the children, the Butlers realized that their five-year-old was not required by law to begin school until September; therefore, the grounds for apprehension could not rightly apply to her. Not wanting to release any of the children without further investigation, Social Services reapplied to the court to amend the application. Four days after the initial apprehension, Mr. Justice Handrigan granted Social Services four months temporary custody of the children based on an expanded list of grounds. These included, not only concerns about the education of the children, but also concerns about the children's health and medical care, the possibility of physical and / or mental abuse of the children and the religious zealotry and fervor of the parents. The Butlers retained counsel and appealed the order on several grounds: that the judge applied an improper standard of proof, that he relied on inadmissible evidence and hearsay, and that the hearing violated the principles of fundamental justice in that the appellants were unrepresented, were not properly informed of the nature of the hearing, and were not given an opportunity to call evidence.20 On appeal, Dunn J. reviewed the evidence that the trial judge had relied on: [The Butlers] are adherents to a breakaway sect of the Seventh Day. Adventist Church. They associate with people of like religious views and practice a lifestyle which may be regarded, by some, as out of the norm. They are vegetarians and follow a strict dietary regime. The children are permitted two meals a day. They are not allowed liquids with their meals or for one hour prior to and one hour after same. The children have not been immunized as recommended by the Department of Health, Newfoundland. Instilling certain religious beliefs in reference to the Bible is fundamental to the lifestyle of the appellants. For example, they believe that the end of the world is fast approaching and are teaching their children to expect and prepare for same.In December 1995, the court granted the Butler's appeal and ordered that the children be immediately returned to their parents. In her conclusions, Dunn J. found that the Butler's parental rights under Section 7 of the Charter of Rights had been violated. She concluded that the children's academic abilities seemed normal for their age, they appeared well-adjusted, were physically healthy, were rarely sick and that there was absolutely no evidence that the parents physically or mentally abused the children. In response to the Butler's claims of fundamental and procedural injustice, Dunn J. stated: Where parental rights to custody of children and the possible deprivation of such custody are at issue, proper procedure and reasonable notice are essential to the process. The application was not conducted in a manner in keeping with the principles of fundamental justice and on this basis alone I would have been prepared to grant the appeal.21Although the Butler children were eventually returned to their parents, they had spent more than six months in foster care. The devastating results that this has had, and will continue to have, on the family and on their relationship to their community cannot be underestimated. The Butler's case is not isolated. Similar incidents are occurring across Canada. In June 1995, for example, a Nanaimo couple's three children were apprehended by Social Services on grounds later described by an attending psychiatrist as diagnostic speculations. The event occurred after Terry and Lisa Neave's two-year-old daughter, Karianna, was transferred from Nanaimo General Hospital to B.C. Children's Hospital in Vancouver for testing and treatment of a choking disorder. One day before the transfer, the Nanaimo pediatrician taught Mrs. Neave a jaw-thrust manoeuvre that would clear her daughter's airway when she was choking. This manoeuvre involved raising the child's jaw with a hand at her neck. At Children's Hospital, Lisa and Karianna Neave were assigned to a double room, which they shared with another mother and her sick child. The mother observed Mrs. Neave perform the manoeuvre during Karianna's choking episodes, suspected that this was abuse and reported her suspicions to hospital authorities. Soon after, the head of the hospital's child protection unit (C.P.U.), together with a social worker, questioned Lisa Neave, at which time she explained her doctor's instructions. The C.P.U. director did not contact the Neave's pediatrician or family doctor because, as she later told the court, it was not her responsibility to do a thorough investigation. She diagnosed Mrs. Neave as having Munchausen by Proxy Syndrome (M.P.S.), an unusual form of child abuse in which a parent fabricates an illness for their child and allows multiple unnecessary investigations and treatments. The next day, social services apprehended all three of the Neave's children. Later, in family court, the judge accepted the social worker's recommendation that Mrs. Neave was high-risk and that the children should be temporarily placed with their grandparents. The order allowed Mrs. Neave to visit her children under supervision, but she could not be alone with them. The only evidence before the court was the C.P.U. director's diagnosis and an affidavit by Mrs. Neave's cousin, a social worker, who stated that Mrs. Neave was "emotionally troubled and a good person struggling with huge problems...who may very well be crying out for help in the only way she knew how." At trial, the cousin conceded that he had never seen Mrs. Neave do anything in his presence that could be misconstrued as abuse. In fact, no one had ever seen Mrs. Neave abuse her children. In the meantime, the Neave's family doctor and pediatrician tried to contact the acting social worker but reported that their calls were not returned. In December, the children were allowed to come home, with Mr. Neave acting as supervisor over his wife. In January, the results of a court-ordered psychiatric assessment of Mrs. Neave concluded that Mrs. Neave's only psychological problem was caused by the apprehension of her children and by an R.C.M.P. interrogation shortly thereafter. In February, the Ministry of Social Services applied to the court to have all orders against Mrs. Neave set aside. At the time the orders were set aside, the Neave children had lived away from home for five months and the Neave's legal bills exceeded $10,000. As these cases illustrate, the margin for error in Canada's child protection laws place families in a vulnerable position. This is not to say that the state has no role in protecting children. Society has a vested interest in ensuring that a child's best interests are served. There are times when the state's power to intervene in cases of genuine physical or sexual abuse or neglect are crucial. A parents rights do not trump the rights of their child. Neither are the two necessarily opposed. The rights of the child must be paramount. However, where the parent and the state disagree on the child's best interests, the law must begin with the presumption that the parent, and not the state, is right. Beginning at this point places the onus on the state to rebut the presumption according to the principles of fundamental justice. For example, when a parent administers corporal discipline in a manner that a child-protection worker decides is abusive, but which the parent believes is appropriate in the circumstances, it should be presumed that the parent is in the best position to assess the situation and act with the child's best interests in mind. In Ogg-Moss v. R (1983), 41 C.R. 297 (S.C.C.), the Supreme Court concluded that if corporal discipline was administered reasonably, and was intended for the benefit and education of the child, this constitutes legitimate discipline falling within Section 43 of the Criminal Code. A chronological study of the case law suggests that the risk of successfully invoking Section 43 to justify physical injury to a child is steadily diminishing. Prosecutors and judges are more aware of child abuse and are more responsive to protecting children's rights than were earlier courts. This observation was recently made by one of Canada's leading authorities on family rights, Queen's University law professor Nicholas Bala. In a presentation made to the Consultation on Section 43 of the Criminal Code, Professor Bala stated that: The law and its application has clearly changed in the last two or three years. Court decisions interpreting Section 43 are moving away from tolerating the levels of physical injury to children cited from earlier years. While there are differences between judges and even between the courts of appeal of the different provinces, positive change may best come about through the development of case law to reflect changing attitudes toward the acceptance of severe corporal punishment of children.22It then becomes incumbent on the child protection worker to rebut the presumption with evidence that is directly probative of the ultimate question, is this child in need of protection as contemplated by the legislation? Speculative allegations would not in and of themselves be sufficiently probative to justify apprehension. Placing family autonomy and parental rights squarely within Section 7 of the Charter of Rights would be a significant step toward ensuring a more equitable child-protection system. Deference to parental rights would not detract from the rights of the child; it would protect the child against the trauma that accompanies wrongful apprehension and temporary placement away from home and family. In addition, it would provide some protection to parents against the formidable powers of the state, which are sometimes exercised in ways that do not comply with the principles of natural justice. In December 1994, for example, the Children's Aid Society (C.A.S) began to investigate an Ontario family after someone in the change room of a local swimming pool noticed a bruise on the boy's bottom. A C.A.S worker requested that she be allowed to come into the family home and examine the child. The parents refused, insisting instead that they would have their family doctor examine the child as quickly as possible and submit a report to the C.A.S. The doctor s report indicated that there was a transient bruise on the boy's bottom. The father readily admitted to the C.A.S. worker that he had spanked his son after the boy kicked the family cat and then refused to go to his room. The father explained that he had carried his son, kicking and screaming, to the boy's bedroom, where he proceeded to smack the boy's bottom with a belt. The father acknowledged that the spanking in question was excessive and that bruising a child was not within the purview of reasonable corporal discipline. However, he maintained that this was an isolated incident, unlikely to recur.23 The C.A.S. tried to have the couple sign a contract agreeing to refrain from using corporal punishment to discipline their children. The couple had six children between one and nine years of age. This was the first allegation of abuse against either parent. The couple refused, stating that they believed corporal punishment was an appropriate form of discipline reserved for instances of blatant disobedience or defiance. They retained a lawyer and attempted to negotiate with the C.A.S. The next day, with no advance warning to the father, two police officers arrested him at his place of work. In the presence of his co-workers, the father was charged with assault causing bodily harm and assault with a weapon. He was handcuffed and taken into custody pending a bail hearing. In May 1995, six months and eight court appearances after the father was charged, the Crown, without explanation, asked the court to stay the proceedings. By this time, the family had incurred approximately $8,000 in legal fees and much emotional stress. As a result of the ordeal, the husband believed his opportunities for advancement with his employer had been seriously undermined. This case, like Butler and Neave, raises questions about fundamental justice and procedural fairness in child-protection cases. Much of what occurred would not have, if family autonomy and parental rights were clearly understood to be within the scope of Section 7 of the Charter. The theoretical and functional chaos that characterizes much of Canada's child-rights policies is due in large part to Parliament's failure to ensure that the Charter of Rights expressly protects family autonomy and parental rights. In order to reintroduce the contextual purpose into child-rights theory, policymakers must recognize again that protecting family autonomy is foundational to ensuring the best interests of the child. Recently, the Supreme Court of Canada took steps to initiate the recognition of family autonomy by importing American jurisprudence that supports the inclusion of both parental rights and family autonomy as protected liberties within the meaning of Section 7 of the Charter.What is Family Autonomy? In 1982, the Utah Supreme Court provided that family autonomy should be among the primary objectives of the state: The parental liberty right at issue...is fundamental to the existence of the institution of the family...Recognition of the due process and retained right of parents promotes values [that are] essential to the preservation of human freedom and dignity and to the perpetuation of our democratic society. The family is the principal conservator and transmitter of cherished values and traditions . . . Any invasion of the sanctity of the family, even with the loftiest motives, unavoidably threatens those traditions and values.24Family autonomy is recognized and protected in several international humanrights documents of which Canada is a signatory. For example, the Universal Declaration of Human Rights provides: Art. 12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence.... Everyone has the right to the protection of the law against such interference.25Similarly, the International Covenant on Civil and Political Rights provides: Art. 23.1 The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.26As referred to earlier, the Canadian Bill of Rights states in its preamble: The Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions.27In addition, the United Nations Convention on the Rights of the Child states in its preamble: Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities in the community.28The pro-family provisions of these documents reflect an age-old philosophical tradition that it is in the public interest to support and protect the family. This tradition has developed out of the commonly-held belief of societies throughout history that the family is the principal social institution, uniquely equipped to carry out various functions that advance the public interest (including care for the physical, economic and relational needs of its members) with minimal reliance on the state.29 Today, child-rights advocates argue against using the traditional concept of family. They want to change what they consider as blatant inequalities and injustices within the traditional family structure. It is increasingly common for child-rights groups to call on the state to invoke its parens patriae jurisdiction in order to remedy these injustices.30 Events of the U.N. Fourth World Conference on Women, held recently in Beijing, illustrate this ideology in action on an international level. In 1948, the Universal Declaration of Human Rights defined the family as "the natural and fundamental group unit of society...entitled to protection by society and the state." Contrast that statement with the dismissive mention of the family in the conference's Platform for Action: "In many cases, violence against women and girls occurs in the family or in the home...violence against women throughout the life cycle derives essentially from cultural patterns, in particular the harmful effects of certain traditional or customary practices. . ." This statement would be fine if it were clear that traditional and customary practices referred to such things as genital mutilation, female infanticide, and child marriage. When read within the context of the Platform for Action though, this statement has a wider application which includes the traditional family structure. Mary Ann Glendon, Learned Hand Professor of Law at Harvard University and leader of the Vatican delegation to the Beijing Conference, made the following observations about the treatment of the family and the role of the parent in the Platform for Action, "The documents barely mention marriage, motherhood, and the family—except negatively as impediments to women's self actualization (and as associated with violence and oppression)."31 Professor Glendon also noted that a coalition of countries, including Canada, opposed any affirmation of parental rights. "Though the Beijing documents had identified the situation of the 'girl child' as a 'critical area', the coalition attempted to eliminate all recognition of parental rights and duties from the draft.... They seemed indifferent to the fact that the Universal Declaration of Human Rights and subsequent human rights documents have consistently protected the parent-child relationship from outside intrusion."32Conclusion: Extending Charter Protection to the Family In January 1995, in R (B.) v. Metro Toronto Children's Aid Society, the Supreme Court of Canada undertook an in-depth analysis of the liberty right referred to in Section 7 of the Charter of Rights and its application to family autonomy and parental rights. In this case, the appellants, Jehovah's Witnesses, declined to allow their infant daughter to receive blood transfusions which the attending medical doctors believed necessary to preserve the child's life. Responding to their refusal, the C.A.S. secured an order for temporary wardship of the child and authorized the hospital to perform the transfusions. Authorities returned the infant to her parents once the transfusions were complete. The appellants challenged the Ontario Child Welfare Act, arguing that its power to force temporary wardship of their child, based only on their refusal to consent to a blood transfusion, infringed the appellants' right to choose medical treatment for their infant, contrary to Section 7 of the Charter of Rights. Although the Supreme Court of Canada rightly rejected the appeal on the ground that the child's right to life will always supersede the parent's right to make medical decisions for the child, this case is extremely significant for what it says about parental rights and family autonomy. The court considered "instructive" a series of court decisions defining the relationship between family autonomy and liberty in the American Bill of Rights. The court followed the reasoning in these cases to conclude that the liberty right in Section 7 of the Charter includes the right of individuals to pursue family life free from undue interference by the state. The court concluded that the individual's right to pursue family life included the right of parents to make decisions on matters that affect their children. Writing for Gonthier, McLachlin, L'Heureux-Dube, JJ. and himself, Mr. Justice LaForest made the following statement: ...the American experience can give us valuable guidance as to the proper meaning and limits of liberty. The United States Supreme Court has given a liberal interpretation to the concept of liberty, as it relates to family matters. It has elevated both the notion of the integrity of the family unit and that of parental rights to the status of constitutional values through its interpretation of the Fifth and Fourteenth Amendments.... Although [in Canada the parents'] liberty interest is not a parental right tantamount to a right of property in children, our society is far from having repudiated the privileged role parents exercise in the upbringing of their children. This role translates into a protected sphere of parental decision-making which is rooted in the presumption that parents should make important decisions affecting their children because parents are more likely to appreciate the best interests of their children and because the state is ill-equipped to make such decisions itself....I would have thought it plain that the right to nurture a child, to care for its development, and to make decisions for it in fundamental matters such as medical care, are part of the liberty interest of a parent. We must accept that parents can, at times, make decisions contrary to their children's wishes—and rights—as long as they do not exceed the threshold dictated by public policy, in its broadest context.33In conclusion, the chaos that characterizes child-rights law reform can be remedied only by substantive and procedural recognition of the value of the family and the importance of its autonomy within society. This requires recognition that the present direction of child-rights law is in some respects unbalanced and thus corrosive of the importance of the family in society. The way to affirm its importance would be to, once again, give it explicit recognition within the Canadian constitution. This would be best achieved by an amendment to the Charter of Rights to include the family, and continued development of case law built on the Supreme Court of Canada's judgement in R.(B.). The former could be done in tandem with provincial measures to affirm the importance of the family in provincial human-rights legislation or in separate legislation for that purpose. Amendment of the Federal Human Rights Act could be important to clarify Justice Minister Rock's assurances that the recent inclusion of "sexual orientation" as an enumerated ground for the purpose of protection from discrimination was not intended to indicate any alteration to definitions of "spouse" or "family" for matters under federal jurisdiction (this would be in line with the decision of the Supreme Court of Canada in Egan v. Canada).34 By extending Charter protection to parental rights and family autonomy, the Supreme Court of Canada has laid a foundation for renewing the constitutional status of the family. It is significant that in Butler and Butler, the Newfoundland Supreme Court relied on the majority judgement in R. (B.), and quoted the words of Mr. Justice LaForest as authority for the protection of parental rights within Section 7 of the Charter of Rights. At best, this renewed recognition of the family could restore a much-needed balance to the administrative and judicial policies of the state on matters relating to the parent-child relationship.Notes 1 Re J.P., 648 P. 2d 1364 at 1375-76 (Utah 1982). Quoted in Family Law and the 'Liberty Interest': Section 7 of the Canadian Charter of Rights, Nicholas Bala and J. Douglas Redfearn, 15 Ottawa L. Review 274.2 I use the term "post-modern human rights" to distinguish the present objectives of human-rights initiatives from those of 1948. According to the United Nation's 50th anniversary report, Our Global Neighborhood, the post-war objective was to develop an international community to foster commonality on economic and social matters. The guiding principles were general and included a respect for life, a sense of liberty, justice, equity, and integrity, and a commitment to mutual caring. This contrasts with post-modern human rights theory in which the focus is on protecting individual autonomy and eliminating perceived inequalities between social groups.3 Convention on the Rights of the Child, Can. T.S. 1992 No. 3 Art. 1-54.4 This document is available free of charge upon request from the Human Rights Directorate, Department of Canadian Heritage, Ottawa.5 Children's Rights as Communication: "Reflections on Autopoietic Theory and the United Nations Convention," The Modern Law Review, 1994, Vol. 54, at 385.6 Convention on the Rights of the Child, Can. T.S. 1992 No. 3, Art. 1 - 54.7 Article 19 has been interpreted by the U.N. Convention Review Committee to include freedom from reasonable corporal discipline by a parent for the purpose of correction. In its report, entitled Concluding Observations of the Committee on the Rights of the Child: Canada, June 19, 1995, available from Heritage Canada, the Committee criticizes Canada for failing to repeal Section 43 of the Criminal Code, the section that allows parents to use corporal discipline reasonable in the circumstances to correct their children. In this document, the Committee specifically recommends that Canada prohibit all corporal discipline of children. Lobby groups within Canada, including the Canadian Coalition on the Rights of the Child and the Repeal 43 Committee, have relied on the Committee's recommendation to argue that the government is obliged to repeal Section 43 in order to fulfill its commitments under the Convention. In fact, neither the Convention nor the Committee's recommendations have legal force in Canadian law. However, they have added considerable political and persuasivevweight to the arguments of no-spank lobbyists.8 Iain Benson, "The Meaning of Renewal," Centrepoints, September 1995, Vol.1 No.2, p. 1.9. Indexed as R. v. M. (C.), 23 O.R. (3d) at 629. 10 Halm v. Canada (Minister of Employment and Immigration) 27 C.R.R. (2d) 23.11 Ibid.12 Halm v. Canada, p. 32.13 Ibid., p. 33.14 R. v. Roy (C.Q.) [1995] R.J.Q. 282. This case contains a careful analysis of the law, and it comes to the conclusion that Section 159 does not violate the Charter.15 Convention on the Rights of the Child: First Report of Canada, May, 1994, Human Rights Directorate, Department of Canadian Heritage, Ottawa.16 Ibid., p. 5.17 Some academics recommend that the evidence against a parent be "clear and convincing," a degree higher than a mere balance of probabilities, but not as strict as the "beyond a reasonable doubt" standard. See "Family Law and the Liberty Interest: Section 7 of the Canadian Charter of Rights", Nicholas Bala and J. Douglas Redfearn, 15 Ottawa Law Review 274.18 For further analysis of potential parental rights violations under provincial child-protection legislation, see "A Family Law Hitchhiker's Guide to the Charter Galaxy," D.A. Rollie Thompson, [1989], 3 C.F.L.Q. 314, 327-339.19 The Director of Child Welfare v. Butler and Butler, Provincial Court of Newfoundland, Family Division, March 23, 1995, File No. 015, unreported. Appeal decision, Butler and Butler v. The Director of Child Welfare, Supreme Court of Newfoundland, Trial Division, December 15, 1995. File # G.B. No. 46, unreported.20 Butler and Butler v. The Director of Child Welfare, supra, at 1-2.21 Ibid., p.27.22 Final Report—Consultation on Section 43, 31 March 1994: An Examination of Physical Interventions with Children Summary Paper, p.6, presented by The Canadian Coalition for the Rights of the Child to the Children's Bureau, March 31, 1994.23 R v. Joseph Cleary, Ontario Court, Provincial Division, December 15, 1994.24 Supra, see note 1.25 The Universal Declaration of Human Rights, as adopted by the United Nations General Assembly , Resolution 217A (111), 10th December, 194826 The International Covenant on Civil and Political Rights, U.N. General Assembly, Resolutions, reported in 21 C.A.O.R. Supp. 16, U.N. Document A/6316 (1966).27 The Canadian Bill of Rights, 8-9 Elizabeth II, c. 44 (Canada), assented to 10th August, 1960.28 supra, see note 6.29 There is a wealth of scholarly research to support the primacy of the family throughout history. For instance, Max Rheinstein, the comparative law scholar from the University of Chicago, in an article in The International Encyclopedia of Comparative Law describes the family as "pre-legal," noting that, for most of history, the state existed not as an aggregate of individuals, but of "family clans" or "houses."30 Parens patriae, translated into English means "the state is the parent of society." However, child-rights groups advocating greater state control of the family stretch the doctrine of parens patriae beyond what the jurisprudence can support. In Hepton v Matt, [1957] S.C.R. 606 at 607-08, Mr. Justice Rand made clear that parens patriae was never intended or used to justify the broad regulation of family life by the state. The kind of state authority that child-rights advocates promote more accurately describes what some academics have termed the therapeutic state. The therapeutic state refers to a government structure in which the casework method of social philanthropy is linked to the coercive power of the state, with the result that "there are no rights except those of individuals and the state." See Mary Ann Glendon, The Transformation of Family Law, Chicago: University of Chicago Press, 1989.31 What Happened at Beijing, Mary Ann Glendon, First Things, January 1996, Number 59, p. 31.32 Ibid., p. 32. The coalition referred to included the fifteen-member European Union, Barbados, Canada, Namibia, and South Africa.33 R (B.) v. Metro Toronto Children's Aid Society et al., 1995 1 S.C.R. 315.34 Egan et al v. Canada (1995), 124 D. L. R. 609 (S.C.C.).

The Canada-US border is the crossing point for the largest merchandise trade relationship in world history. Driven by the Canada-US Free Trade Agreement and the NAFTA, Canada’s merchandise exports to the US reached US$255 billion in 2004, while imports from the US were US$163 billion, for total two-way merchandise trade of US$418 billion, leaving Canada with a merchandise trade surplus of US$92 billion. In this article, adapted from the publication, Greenlighting Trade: A Trade Corridors Atlas, from the Work Research Foundation, the author drills down on the numbers and finds that Canada-US trade can be broken into six corridors, largely along regional and sectoral lines, such as the Ontario-Michigan automotive corridor, and the Alberta energy corridor. In A Special Relationship: Canada-US Trade in the 21st Century, a speech delivered to a Trade Corridors Roundtable in 2005, Allan Gotlieb argued for the deepening of bilateral channels between the two countries, given “a common commitment to values, principles and way of life that marks our relationship as different from that of most other nations, even the most friendly.” Former ambassador Gotlieb advocates the broad strategy framed by common commitments that reflect the trading culture of Canada and the US. The following argues that these commitments and our trading culture are expressed in the various trading communities shaped by geography, the sectoral character of most trade, and by the myriad human and institutional relationships that make trade possible. Canada-US trade can best be understood framed by the concept of “trade corridors.” The following proposes a sector-based and geographically conditioned argument for the “corridor character” of Canada-US trade. That Canada and the US cooperate in the production of goods and services across political boundaries within sectors, by geographic proximity, and by way of physical transportation infrastructure. Trade corridors tend to integrate the Canada and US economies. Trade corridors are more than transportation infrastructure. Therefore, trade corridors are defined as streams of products, services, and information moving within and through communities in geographic patterns according to a matrix or “culture” of trade agreements and treaties, statutes, delegated legislation, and custom that govern and guide trading relationships, institutions, and structures. In what follows, the six largest sectors of Canada’s export trade to the United States, which illustrate the usefulness of the concept of trade corridors, are described. First, trade corridors are related to two other conceptual frameworks currently employed in understanding Canada’s international trade, gateways and global supply chains. David Emerson was sworn into the Harper cabinet as minister of international trade and minister for the Pacific Gateway and the Vancouver-Whistler Olympics. Part of Emerson’s title, minister for the Pacific Gateway, is indicative of a Canadian trade priority focusing on the Pacific Rim and, especially, development of trade with China. Canadian traders are enamoured of the prospects of reaching a market populated by more than 1.2 billion people. However, market access and penetration tends to flow in favour of the Chinese. This is clearly illustrated in respect of Canada’s largest trading partner and export market, the United States. From 2000 to 2004, China’s merchandise exports to the US grew from about US$100 billion to US$196.2 billion, while US merchandise exports to China grew from about US$15 billion in 2000 to US$32.6 billion in 2004. The US trade deficit with China increased US$38.6 billion to US$163.6 billion from 2003 to 2004. The clear advantage went to China. For comparison (from the same US government source), Canadian merchandise exports to the US rose from about US$235 billion in 2000 to US$255.7 billion in 2004. US merchandise exports to Canada rose slightly from about US$160 billion in 2000 to US$163.2 billion in 2004. The US trade deficit with Canada increased US$17.2 billion (23 percent) to US$92.5 billion from 2003 to 2004. While China’s merchandise exports to the US rose in 2004 over 2003 by US$44.5 billion or 29 percent, Canada’s merchandise exports to the US in the same period increased by US$31.6 billion or 14 percent. Again, advantage China. For purposes of comparison, Canada’s merchandise exports to China increased from US$3.4 billion in 2003 to US$5.1 billion in 2004 and to US$5.8 billion in 2005. Canada’s merchandise imports from China increased from US$13.2 billion in 2003 to US$18.5 billion in 2004 and to US$24.3 billion in 2005. Yet again, the advantage clearly goes to the Chinese. To frame Canada’s international trade policy in terms of gateways focused on trade with China is to reinforce their competitive advantage, not ours. This is true for the bilateral trade, and for Canada’s competition with China in the US merchandise market. The latter is the case since a gateway’s framework tends to divert Canada’s international trade focus from the world’s largest merchandise market, and from the merchandise market, where Canada holds the greatest competitive advantages in terms of geographic proximity, language, and culture — including business culture. That market, of course, is the United States. In February 2006, the federal Department of Industry hosted a conference in Ottawa designed to educate public servants with the department about the concept of “the global supply chain.” Over the last few years, Industry Canada has pursued research framed by this concept, seeking to drill down onto how goods and services move, not just through the Canadian economy, but through Canadian industry to and from the world. In effect, “the global supply chain” is framing Industry Canada’s efforts to understand the flows of Canadian exports and imports — Canada’s international trade. Global supply chain research points to how Canada’s trade is organized mainly in terms of businesses, offering a description of Canada’s trade flows. It is helpful. But this presents an inadequate explanation by itself of Canada’s trade capable of informing and providing direction to Canada’s international trade policy. That said, both “gateways” and “global supply chains” are conceptual metaphors designed to bring coherence to our understanding of international trade. “Trade corridors,” however, is a metaphor grounded in history that offers greater coherence, insight, and a more fully rounded understanding of international trade, and allows us to account for Canada’s most important trading relationship — that with the US. Canada’s challenge is to maintain and expand the infrastructure necessary to keeping itself accessible to the world, especially to the US. The Canada- US trading relationship is by far the largest and most valuable in the world. In terms of merchandise trade, Canada’s exports to the world in 2004 were valued at $411.3 billion. Exports of merchandise to the United State amounted to $348.1 billion, constituting 85 percent of Canada’s merchandise exports. Canada’s dependence on the US market for merchandise exports can hardly be overstated. For example, over half of Ontario’s output is in exports to the US. Canada’s dependence on the US market for services exports is similar. In 2004, Canadian service exports globally were $62.3 billion. Service exports to the United States were valued at $36.0 billion. If trade is the foundation on which Canada’s economy is built, then trade with the United States is the cornerstone. Our living standards and our ability to fund health care, education, old age pensions, and other social programs are predicated on trade, especially Canada-US trade. Canada’s trade is characterized by a heavy dependence on trading with the United States, and on a Canada-US economy that is integrated by way of trade. This integration of the Canada-US economy is represented in Canada’s top six export sectors to the United States: motor vehicles and parts, mineral fuels and oils, machinery and equipment, forest products, commercial services, and agricultural and fish products. These six sectors illustrate how Canada’s trade is shaped by its sectoral character, and how these sectors’ regional orientations — or, concentration in certain geographic regions of North America — tend to integrate the Canadian and US economies regionally. The integration of these sectors of trade constitutes trade corridors. Since exports of merchandise and services are concentrated by region, the trade corridors account that follows focuses on the region, province, or provinces that are the primary source of these exports from Canada and their destinations in the United States. This research looks at Canada to US merchandise trade in two ways: first, by industry; and then by product and service. However, for consistency, the statistics cited and the analysis given is based on the value of export products and services. 1. The Ontario-Michigan automobile manufacturing trade corridor (figure 1). Canada’s exports of “motor vehicles, trailers, bicycles, motorcycles and other similar vehicles” in 2004 to the world were valued at $80.1 billion. Canada’s exports to the United States in this category totalled $77.6 billion in 2004. This export category accounts for a favourable trade balance — a trade surplus — of $28.3 billion with the US. Some 95 percent of Canada’s exports to the US from automobile manufacturing come from Ontario. Ontario’s merchandise exports to the world in all categories amounted in 2004 to $199 billion, of which $180 billion, or 90 percent, went to the United States. Of Ontario’s exports to the world, $75.8 billion, or 38 percent, for 2004 were in the automotive industry. From Ontario, automobile manufacturing exports were responsible in 2004 for $73.8 billion or 41 percent of Ontario’s total merchandise exports to the US. Over the last five years, Ontario’s exports in this category were relatively stable, averaging $75 billion, albeit trending slightly downward overall. That Ontario is engaged in automobile manufacturing with Michigan becomes clear when one considers that Ontario’s exports in this category to Michigan are valued at $46.6 billion. Compare this with exports to other states and regions of the US, which are relatively evenly distributed, except for California, which receives automobile manufacturing exports from Ontario valued at $13.8 billion. Nearly 60 percent of Ontario’s exports to the US in this category are to Michigan. As Stephen Blank of Pace University, New York City, put it: “We (Canada and the United States) make cars together.” To narrow or focus this remark further, Ontario and Michigan make cars together. What this suggests is the integration of a Canada-US auto industry concentrated in the Ontario- Michigan trade corridor, which then distributes the products of this industry in a supply chain throughout the rest of Canada and the United States. Consequently, the greatest strain on physical infrastructure — highways, ports and canals, railways, bridges and tunnels, and customs and border facilities — are those incoming and outgoing between Ontario and Michigan. But the greatest strain is on infrastructure from Ontario to Michigan. The strain placed on this infrastructure should not be underestimated: 27 percent of all Canada-US merchandise trade exports pass over the Ambassador Bridge between Windsor and Detroit. 2. The Alberta mineral energy trade corridor (see figure 2). Canada’s total merchandise exports to the world in the category of “mineral fuels, mineral oils, bituminous substances and mineral waxes” in 2004 were valued at $68.6 billion. Canada’s exports to the US in this merchandise category were valued at $66.5 billion in 2004, or almost 97 percent of its world exports. Canada’s trade balance with the US in this sector alone is $43.4 billion in Canada’s favour. This sector is responsible for almost 77 percent of Canada’s overall trade surplus with the US accumulating to $56.6 billion in 2004. Some 69 percent of all mineral energy exports in this category from Canada to the US, valued at $46.1 billion, comes from Alberta. Alberta’s 2004 merchandise exports to the world are valued at $67.3 billion, of which $59.5 billion, or 88 percent of the total, go to the United States. Of Alberta’s exports to the US, 77 percent are “mineral fuels, mineral oils, bituminous substances and mineral waxes” valued at $46.1 billion. Year on year, Alberta’s mineral energy exports increase at a remarkable rate. Alberta’s mineral energy exports to the US increased 6.8 percent from 2000 to 2001, decreased 17.5 percent from 2001 to 2002, increased 32.6 percent from 2002 to 2003, and increased 15.2 percent from 2003 to 2004 — for a total increase in the value of mineral energy exports of 34.6 percent from 2000 to 2004. Alberta’s exports of oil and gas follow a network of energy pipelines, and as such the destinations of these exports follow the pipeline network. From the point of view of infrastructure, the Alberta mineral energy trade corridor is defined by this pipeline network. Its number one and number two export destinations — to Illinois, valued at $9.8 billion, and to Washington State, valued at $6.8 billion, or more than one-third of total mineral energy exports to the US — are the sites of major pipeline terminals. While the key to understanding Canadian and US automobile manufacturing is that it is a North American automobile manufacturing industry centred in Ontario and Michigan, mineral energy exports from Canada are somewhat different. Here, the key things to keep in mind are that Canada is a net exporter — by far — of mineral energy to the US, and that mineral energy production is concentrated in Alberta. Canada’s production of oil is far outstripping domestic demand and is projected over time to approach US levels of oil production. Canada’s demand for natural gas is a fraction of domestic natural gas production, most of which is exported to the US. So, while there is a North American mineral energy industry, Canada’s role and, especially, Alberta’s, is as a net supplier of mineral energy to US demand. Alberta’s mineral fuels industry — “the oil patch” — is poised for another stage of if not unprecedented, near-unprecedented growth, with the potential to create thousands of new jobs in Canada. According to the Alberta Chamber of Resources, the industry is poised to see its production increase “more than twofold to five million barrels a day, or 16 percent of North American demand by 2030,” and to “generate an additional $40 billion of economic growth in Canada.” More than $100 billion of development construction has been announced in the Fort McMurray- Athabasca oilsands, alone. The Alberta Chamber of Resources calls for advance planning to keep pace with development of supply and demand as this trade corridor expands and intensifies. As Alberta’s production of natural gas from northwestern Alberta and production of oil sands crude from northeastern Alberta increases along with US demand, exports will outstrip pipeline capacity. As more production of offshore crude comes onstream from Atlantic Canada, pipeline capacity must be increased in order to move supply to US markets. But the big player in the Canadian export market for mineral energy is, and will remain for some time to come, Alberta. 3. The Ontario-Quebec Machinery and Equipment Trade Corridor. According to Trade Date Online, Canada exports electrical or electronic machinery and equipment and nuclear reactors, boilers, machinery and mechanical products to the world valued at $51.5 billion. Of this, $40.3 billion or 78 percent goes to US destinations, resulting in a negative trade balance of $11.6 billion. Some 87 percent of US-bound exports in this sector, valued at $34.9 billion, are from Quebec and Ontario. Exports of machinery and equipment from Quebec and Ontario represent 80 percent of Canada’s such exports to the world. Of these exports, nearly 55 percent, valued at $19.1 billion, were to the Great Lakes states, the “mideast,” and New England. With the exception of some $2.3 billion to California, most exports of this equipment are distributed in a trade corridor running mainly east of the Mississippi south to Georgia, Florida, and Texas. However, the value of exports of this equipment to the US has fallen by about one-quarter over the last five years, representing a shrinking export market and trade corridor for Canada. It also represented a negative trade balance of $11.6 billion, albeit the lowest over the past five years, beginning in 2000. Even with this taken into consideration, these exports represent about 10 percent of Canada’s total exports to the US — an important source of jobs and trade. 4. The Forest Products Trade Corridors. Canada exports forest products in 2004 were valued at $44.7 billion, of which $35.6 billion, or nearly 80 percent, went to destinations in the United States. Canada enjoys a huge trade surplus with the US in this sector totalling $27.4 billion. The largest part of forest products bound for export is produced in seven provinces clustered in three groups: Quebec and Ontario; New Brunswick and Nova Scotia; and British Columbia, Alberta, and Saskatchewan. Quebec and Ontario together export forest products valued at $19.1 billion, or almost 54 percent of all such exports to the US. British Columbia, Alberta, and Saskatchewan together export forest products valued at $12.6 billion, or nearly 36 percent of such exports to the US. New Brunswick and Nova Scotia together export forest products valued at $2.8 billion, or 8 percent of such exports to the US. Ontario and Quebec export forest products throughout a trade corridor supply chain running east of the Mississippi from the Great Lakes, the “mid-east,” New England, on south to the southeast and Texas, valued at $16.3 billion or 85 percent of the total bound for US destinations from Ontario and Quebec. Nova Scotia and New Brunswick export forest products valued at $2.5 billion, or 91 percent of their US exports in this sector throughout the same trade corridor. The British Columbia-Alberta-Saskatchewan cluster, however, exports forest products valued at $7.9 billion, or 62 percent of its total US exports, to the “far west” (including a small amount to Alaska and Hawaii), to the southwest, the Rocky Mountain region, and to the plains states. To the Great Lakes region, these provinces also export forest products valued at circa $1.8 billion, or another 14 percent of their total exports of this type to the US. Since most forest products are moved between Canada and the US by rail or by highway, the key physical infrastructure challenges may be potential choke points at border crossings for customs, particularly with respect to exports from British Columbia to Washington and Oregon. But the greater barrier of long standing to the export trade in forest products from Canada has more to do with US tariffs and quotas on Canadian forest products and the ongoing dispute prosecuted by the US forestry industry in US courts and by the US administration alternately through the FTA, NAFTA, or the World Trade Organization disputes resolution processes. The 2006 softwood lumber agreement between the Harper and Bush administrations ends a five-year trade war, provides seven to nine years of certainty of access, though at capped levels of market share, and with some money left on the table. 5. The commercial services trade corridor. To reiterate, Canada’s service exports to the world total $62.3 billion, of which half are in the form of commercial services valued at $32.3 billion, or nearly 52 percent of the total. Canada’s service exports to the United States are valued at $36 billion, and of these $20.4 billion, or nearly 58 percent, are commercial services. By comparison, over one-quarter of service exports to the US were travel services amounting to $9.7 billion, and transportation and government services amounting to $5.8 billion. In 2004, Canada ran a trade deficit of about $5.8 billion in this sector. Exports of commercial services to the US represent nearly one-third (33 percent) of all service exports there. Of service exports to the United States, over half were commercial services amounting to $20.4 billion. Key advantages for Canada in this sector are the overall integration in business and information technology and in accounting practices, shared time zones, and, to a large extent, our common language and culture. This sector may well represent an archetype of our definition of trade corridors. The research does not trace the flows of Canadian exports of commercial services from specific Canadian jurisdictions to specific US jurisdictions or regions. This begs further study to track the trade corridors of commercial services from Canada to the United States. 6. The agricultural and fishing products trade corridors. Canada’s agricultural products for export — excluding implements— total $26.7 billion (2004), of which $16.5 billion or almost 62 percent went to US destinations. Canada enjoys a trade surplus with the US in this sector of $4.7 billion. By far, the majority of agricultural exports to US destinations follow a trade corridor to northern states across the Canada-US border, and to California, Texas and to the more populous southeastern states of North Carolina, Georgia, and Florida. The bulk of Canada’s agricultural exports come from six provinces: Quebec, Ontario, Manitoba, Saskatchewan, Alberta, and British Columbia. Close to one-half, or 45 percent, of Canada’s US-bound agricultural exports come from Ontario, about 15 percent from Quebec, 13 percent from Alberta, about the same from Saskatchewan and Manitoba taken together (14 percent), and about 6 percent from British Columbia. Or, to put it differently, about 60 percent from Quebec and Ontario, 27 percent from the three Prairie provinces together, or almost 20 percent from Alberta and BC. Canada’s exports of fish products to the US in 2004 totalled $2.4 billion, or more than 62 percent of its exports to the world ($3.9 billion) in this category, with a resulting trade balance in Canada’s favour of $1.7 billion. The value of US-bound fish products from Atlantic Canada in 2004 totalled $1.6 billion, or 67 percent of Canada’s exports in this category. If Quebec is included with Atlantic Canada, that brings the total exports of fish products from this region to $1.7 billion — 71 percent of the total from Canada. British Columbia represents 22 percent of Canada’s fish products exports to the US. Of Atlantic Canada’s (excluding Quebec) fish product exports, nearly 84 percent follows a trade corridor to New England. British Columbia’s fish products exports to Washington, Oregon, and California total $436 million — 79 percent of its exports to the US in this product category. Each of Canada’s six largest sectoral, trade corridors is conditioned by its geographic proximity to the US market. But it is more than that. Much more. Each trade corridor represents a common or shared culture of trade. The culture of trade is more than the Canada-US Free Trade Agreement or the North American Free Trade Agreement, or any other trade agreements and treaties. The culture of trade includes a common commitment to constitutional, representative government in which the rule of law is upheld and elected officials are accountable to a popular electorate. It includes the myriad business and accounting practices, a common commitment to the sanctity of the contract, and the numerous webs of business and personal relationships, which allow orders to be placed and filled on the basis of a telephone call and the strength of a handshake. These are components of what are understood here to be trade corridors. It is this more rounded understanding of Canada-US trade that encompasses both the “gateways” and “global supply chain” frameworks, and takes both a step further. In Greenlighting Trade: A Trade Corridors Atlas, published in 2005, a number of next steps are proposed that would take account of these dimensions of trade corridors. Also discussed, at greater length, is the philosophical framework that informs this development of the trade corridors concept. Trade is more than the econometrics of international transactions in goods and services. The Canada-US trade corridors are illustrative of this. The Canada-US trade corridors can point to what Canada’s trade priorities should entail, predicated as they are on our shared culture. It may be that Canada should focus its trade policy by geographic proximity, but not geography alone. Canada’s trade policy should take account of geography, of shared business and trading culture, of common commitments and similar institutions, and personal, human relationships across frontiers. This means to recognize the “trade corridor” character of Canada’s international trade, as streams of products, services, and information moving within and through communities in geographic patterns according to a matrix or “culture” of trade agreements and treaties, statutes, delegated legislation, and custom that governs and guides trading relationships, institutions, and structures.   Russ Kuykendall is senior researcher with the Work Research Foundation (www.wrf.ca) and the assistant editor of Comment (www.wrf.ca/comment). He is a former speechwriter for Stephen Harper. rkuykendall@wrf.ca Russ Kuykendall Trade is more than the econometrics of international transactions in goods and services. The Canada-US trade corridors are illustrative of this. Canada-US trade corridors can point to what Canada’s trade priorities should entail, predicated as they are on our shared culture. It may be that Canada should focus its trade policy by geographic proximity, but not geography alone. Canada’s trade policy should take account of geography, of shared business and trading culture, of common commitments and similar institutions, and personal, human relationships across frontiers.