© 1998  Karen Selick
Taking Liberties with "Civil Liberties"
An edited version of this article first appeared in the November, 1998 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


Taking Liberties with "Civil Liberties"

The Canadian Civil Liberties Association (CCLA) has done some fine work when it comes to protecting Canadians against state encroachment in certain areas--freedom of expression, for example.  Some of its other recent projects, however, boggle the mind.

Its ongoing involvement in two drug testing cases indicates some confusion within the organization about what the phrase "civil liberties" really means.  The legal rulings the CCLA has been seeking will actually reduce civil liberty and increase its antithesis: the state’s control over its subjects. 

In Entrop v. Imperial Oil, an employee of Imperial Oil alleged that the company’s drug and alcohol testing policy discriminated against him.  The CCLA intervened on the employee’s side.  In Canada (Canadian Human Rights Commission) v. Toronto Dominion Bank (re Canadian Civil Liberties Assn.), the CCLA itself lodged a complaint that the bank’s drug testing policy discriminated against the disabled.  The CCLA was successful both times, in rulings released earlier this year. 

What’s distressing about reading these decisions is that the CCLA doesn’t seem to be able to separate the wheat from the chaff.  Many of the arguments it makes may be true (for example, that occasional drug use may not affect employee productivity at all), but are irrelevant to the concept of civil liberty. The CCLA misses the crucial issues entirely.

For instance, it seems not to have noticed that neither Imperial Oil nor the Toronto Dominion Bank is the government.  These are not cases of the state telling people,  "Pee in the bottle or go to jail."   Neither company has the power to deprive anyone of his life, liberty or property.  All they can do is offer terms of employment for the employee to consider.  If the terms include drug testing, and a potential employee doesn’t want to be tested, then there will be no meeting of minds, and no contract of employment will result.  The company will then search for another person with whom it might strike a mutually acceptable deal, and the employee will do likewise. 

By invoking the power of the state to strong-arm companies into employing people on terms the companies don’t agree to, the CCLA has helped violate the companies’ civil liberties. Perhaps it would argue that only individuals, not corporations, have civil liberties.  However, corporations are merely collections of individuals acting in concert.  These individuals shouldn’t thereby lose their rights.  Besides, the court rulings apply uniformly to all employers, including sole proprietors.

The only remote connection to civil liberties violations these cases had—that is, before the courts intervened and created some--was that the Toronto Dominion Bank possesses that alchemists’ dream-come-true: a bank charter.  If the CCLA needed something to busy itself with, it should have protested the fact that the government restricts entry into the banking industry, thereby reducing every individual’s liberty to pursue employment in that field.

No doubt the CCLA sees itself as the champion of the little guy—poor little David Filingclerk against Goliath multinational.  What it forgets is that every time the state intervenes to thwart freedom of contract, it creates other unnamed victims—people we’ll never hear about due to the nature of their victimization.  These are the people who won’t get jobs at the Toronto Dominion Bank, even though they are perfectly capable of performing the duties and willing to submit to drug testing. That’s because the bank will have been compelled to hire others who are less suitable to its requirements—namely, people who are unwilling to submit to drug tests.   Why is the CCLA not concerned about the plight of these unfortunates? 

The CCLA demonstrated similar myopia in its choice of underdogs when it intervened in the 1996 court challenge by Ontario welfare recipients (Falkiner v. Ontario (Ministry of Community and Social Services)).  Under a new "spouse in the house" rule, single welfare recipients who were found to be cohabiting with persons of the opposite sex became ineligible for certain categories of welfare benefits.   CCLA general counsel Alan Borovoy described the rule as "a pervasive invasion of people’s privacy and life choices."

Again the true meaning of civil liberty seems to have been forgotten. This case had nothing to do with the state imprisoning welfare recipients or confiscating their property.  It was simply about which category of unearned windfall the state would grant them.  The real victims in this picture are taxpayers.  They’re the ones whose civil liberties are violated by state welfare schemes.  They’re the ones whose lives are retroactively stolen from them through taxation.  And they’re the ones who must submit to pervasive invasions of their privacy by filing annual income tax returns.   Why is the CCLA silent on these issues? 

The sad conclusion I must draw is that the CCLA doesn’t operate on any discernible principles or philosophy.  Instead, it seems to select cases on an ad hoc basis without regard to whether its involvement will enhance or diminish the power of the state. 

It’s a pity.   If there’s one thing this country needs, it’s a real civil liberties association that would stand up in a consistent, principled way for the rights and freedoms of individuals.  The Canadian Civil Liberties Association is unfortunately not that organization. 


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June 20, 2000