A Review of Conrad Black’s Forgotten History: Civil Rights in Canada

Rob Varma, Western Standard, December 1, 2023

142 pages, $19.95

Conrad Black’s latest book, Forgotten History: Civil Rights in Canada, is an insightful work that dispels many cheap slanders and misconceptions about Canada’s past. Black combines a deep knowledge of Western history and an eye for relevant historical details to help shine a new light on Canada’s civil rights record.

Interest in this book may be heightened by the recent calls to upend historically-won civil rights in Canada in the name of social justice. Or it might also come from the rise in new identity-based subgroups – whose demands for collective rights often infringe upon the rights of the individual. Or finally, it may even come from Quebec’s recent string of rights violations being imposed on the English-speaking population within that province.

Given these emerging trends, Black’s look into the origins and development of Canada’s civil rights provides an important historical perspective that can help to ground these discourses. Black’s work tracks the origins and development of civil rights in Canada over hundreds of years which, he argues, culminated in the confirmation of these rights in the Canadian Charter of Rights and Freedoms.

In academic circles, there has been a growing tendency to paint all of Canada’s history with one broad brush, and this lack of nuance has contributed to a collective forgetting of Canada’s past. As such, Black’s book serves as a welcomed reminder of this past, and also helps to deepen our understanding of rights-based politics in Canada.

Among the topics explored in this book are the origins and manifestation of Canada’s English and French approaches to political rights, the history and abolishment of slavery in Canada, Indigenous rights and history, the movement for democratic rights and citizenship, the Canadian Charter, among others.

The foundations of Canada

Forgotten History opens with an account of the early-modern political forces that shaped civil rights in Canada. This includes pre-colonial aboriginal societies, 18^th century European powers, as well as a vivid account of the political tensions and conflicts that arose among the British, French, and American colonies during the Seven Years War and the American Revolution. In his examination of these early conflicts, Black demonstrates how Canada’s unique French and English system of rights was sown into its very foundations, beginning when Quebec was turned over from France to Britain in 1763 at the end of the Seven Years War.

Britain’s acquisition of Quebec occurred at exactly the same time that the American colonies were revolting against the British for alleged over-taxation, and there were concerns among the British that Quebec would join in the revolt and thereby cut Britain’s stake out of North America entirely.

Black stresses that although Britain’s concern was justified, the majority of Quebecers disliked the American style of government because they feared its emphasis on individual rights would lead to their cultural assimilation into the English-speaking majority.

Whether these fears were warranted or not, the British and the Quebecois found a mutual interest in one another and this led to the implementation of the Quebec Act of 1774. The Act gave Quebec modest provisions that protected the French language and the Roman Catholic faith, and it also reinstated French Civil Law in combination with British Criminal Law.

The downside for Quebec was that the Act established an all-British legislative council by which Quebec would be governed. This lack of representation in government was primarily because pre-existing British laws prevented French Roman Catholics from participating in governing affairs throughout the British Empire.

As Black observes, despite the absence of democratic or self-governing rights, Quebec saw this as a reasonable concession to make for a number of reasons.

First, Quebec did not have a strong appetite for democracy at this time because one century prior, France’s Chief Minister Cardinal Richelieu had stamped out any democratic spirit in the French population.

Second, the new British governors had already shown a great deal more political integrity than Quebec’s preceding French governors, who were generally corrupted and self-serving.

Third and last, the French criminal law system at this time had yet to adopt Habeus Corpus, and so there was effectively a presumption of guilt of the accused. It was also still commonplace in French criminal law to torture suspected criminals to extract confessions. As such, French Canadians maintained their civil law tradition but quickly transitioned to British criminal law.

Black argues that it is this political climate that established the English and French foundations of rights in Canada.

The citizenship rights of Canadian immigrants

In Canada today, we provide citizenship rights for newly landed immigrants, a right denied to many new immigrants in other countries throughout the world. Black’s book details how citizenship rights in Canada emerged after the American Revolution –when many British Loyalists migrated from America to Canada. At this time there was still no formal process to naturalize the Loyalists as citizens – and so when the War of 1812 broke out with the Americans, there was considerable pressure to expel them, spy on them, and disqualify them from holding offices or positions.

The issue came to a head in the 1820s when this gray area was politically weaponized to disqualify an American settler from taking a position in the Assembly. It was finally resolved in 1828 with a bill that naturalized everyone who came to Upper Canada prior to 1821, and created a reasonable naturalization process for future arrivals. This set an early precedent in Canada for millions of future immigrants who came to the country seeking refuge or opportunity.

The attainment of democratic rights in Canada

Another key moment in the progression of rights in Canada was the attainment of democratic rights, that Black argues, came about through a sensitive political dance between Canada and the British government.

As Black observes, after the War of 1812, a national identity began to form in Canada,  including a growing desire for democratic representation. At this time, however, Canada’s governing powers still resided in Britain, and politicians had to exercise extreme caution in their asks of the British government. Canada could agitate the British to implement responsible government, but not to the extent that Britain would lose patience with the colony altogether and sell it to the Americans for cash or territory.

Similarly, as Black observes, an all-out revolt against Britain was not even remotely plausible for Canada, as it had been for the former thirteen American colonies. Not only did Britain have the military capacity to crush a Canadian uprising, but Canada also entirely relied on the British military to deter the Americans from invading, a cause for which many American politicians advocated for throughout the 19^th century. Thus, early Canada was forced to take a patient and cautionary approach to asserting its democratic rights.

The push for these democratic rights came to a head with the 1837 rebellions led by William Lyon Mackenzie in Upper Canada and Louis-Joeseph Papineau in Lower Canada. These rebellions were violent, but relatively small in number and ultimately futile. That said, they caused enough of a stir to get the attention of Britain, which sent Lord Durham to investigate their causes.

Durham’s 1839 report concluded that the French ought to be culturally assimilated into the slight English majority under one jurisdiction using an American style of liberty, but the report was met with widespread disapproval among both the English and the French. The rejection of this report is indicative of a key historical difference between the emergence of Canada’s system of rights and America’s system of rights.

The founders of America were heavily informed by the first principles of early Enlightenment thinkers, who held that differences of religion, ethnicity, language and culture could be entirely overcome, and they sought to implement this almost overnight. Nearly 100 years later, Canada’s official founding took a slower and more pragmatic approach under the direction of Robert Baldwin and Louis LaFontaine, who had renewed interests in preserving some organic cultural ties within the country’s foundation. As such, when establishing democratic rights in Canada, they divided the territory into traditional provinces, wherein sovereign decisions required the consensus of both the French and the English.

Black also traces how Quebec’s “group” rights played out over the last 150 years, both in politics and in the courts. On the one hand, Quebec did manage to preserve much of its heritage within the English-speaking majority. On the other hand, Quebec leaders have repeatedly and flagrantly encroached on individual rights in the process – and have done so with increased frequency.

In Quebec’s Civil Law tradition, for example, judges have shown a high tolerance for legislation that encroached upon individual liberties when they are said to be protecting the minority status of Quebec within the broader context of English-speaking Canada.

One such instance was Quebec’s infamous 1937 Padlock law, which allowed the Quebec government to shut down the meeting places of suspected communists. Another instance was the Roncarelli v Duplessis case, where the Quebec government revoked the liquor license of a restaurateur who was posting bail for Jehovah’s Witnesses. The Jehovah’s Witnesses had been arrested for distributing religious pamphlets, and so the Quebec government sought to shut down the source of their bail money.

In both instances, Quebec courts saw these actions as a necessary measure for protecting Quebec’s culture, but when the decisions were appealed to Canada’s English-majority Supreme Court they were overturned. But such decisions have generally played into the hand of Quebec politicians and fueled Quebec nationalism.

Among other recent attacks on English-speaking rights in Quebec, Bill 96 in 2023 capped the number of students in junior colleges who can study in English; it also forced companies with 25-49 employees to adopt French as their official language. The latest infringement on rights occurred this past October when the Quebec government announced that out-of-province students who study in Quebec will pay double the tuition of Quebecois residents to help reduce the “anglicizing effect” they have in Montreal.

Troublingly, these laws not only infringe on English-speaking rights and freedoms in Quebec, but they have been implemented over a period of time when the rest of Canada has taken significant steps to protect the rights of French people outside of Quebec, and to enhance and even prioritize French in Canada. This includes bilingualism and fiscal programs that tilt in Quebec’s favour.

Canada’s abolition of slavery

A myth that Forgotten History helps to dispel is the belief that Canadians should feel guilt and shame for the crime of slavery.

In fact, Canada’s record on abolishing slavery is something to be legitimately proud of and the historical facts are worth reviewing. At a time when slavery was practiced by almost every culture in all parts of the world, the British began to see it as indefensible on moral grounds, and so began implementing measures to abolish it starting in 1772, and entirely abolished it throughout the British Empire by 1833.

As Black observes, when Quebec was handed from France to Britain in 1763 there were fewer than 100 African or East Indian slaves in the territory, and by 1792 there were fewer than 300 slaves in all of Canada. Although slavery in Canada was officially abolished in 1833 alongside the rest of the British Empire, anti-slavery sentiments and its practical abolition were a fact of colonial life in Canada much earlier than this.

For example, in 1783, Lower Canada’s Lieutenant Governor Guy Carleton risked reigniting the Revolutionary war with the Americans by protecting and harboring 3,000 fugitive slaves from George Washington. And in 1793, Lieutenant Governor John Simcoe made it illegal to bring slaves into Upper Canada. He also emancipated the children of all enslaved people. 

In the thirty years leading up to the American Civil War, Canada became a refuge for about 40,000 fugitive slaves and was home to many notable anti-slavery campaigners such as Harriet Tubman, John Brown, and Josiah Henson. Furthermore, at least eleven black Canadian fugitive slaves or children of slaves became doctors in Canada and served in the Union Army during the American Civil war.

Finally, as many as 40,000 Canadians had enlisted in the American Civil War to fight against the Confederate States and bolster the anti-slavery cause. Considering what was practiced in other countries and cultures across the globe at this time, modern-day Canadians can be legitimately proud of most of Canada’s record in abolishing slavery.

Indigenous Peoples

With respect to the history of the Indigenous in Canada, Forgotten History helps to dispel some common misconceptions about aboriginal history, most recently propagated by the “decolonization” movement.

As Black points out, prior to colonization, aboriginals lived in rigidly patriarchal nomadic tribes that were sparsely populated across the territory now called Canada. These tribes practiced slavery, corporal punishment, and were engaged in routine inter-tribal warfare with one another. This included a proliferation of the practice of torturing and executing the losing side in battle, including their women and children. The fact that Western civilization in Canada is now considered by some to be a criminal invasion or illegitimate occupation, Black remarks, is “an outrage… and a double blood libel on earlier generations of English and French Canadians.”

Just as the British saw the stamping out of slavery as a moral imperative guided by the Christian faith, Canadians approached Aboriginals with similar moral precepts. And as Black points out, although it takes a certain cultural arrogance among the Europeans to assume that a government should take upon itself to transform the culture of an entire people, the architects of the residential school program did not operate “with a uniformly negative attitude of racist superiority” – and rather were hoping to spare Indigenous children a life of grinding poverty, illiteracy and hopelessness by integrating them into the modern world.

Black also notes that in the official 1857 residential school guidelines, “An Act to Encourage the Gradual Civilization of Indian Tribes in the Province and to Amend the Laws Relating to Indians”, the final aim was indeed to remove all legal distinctions and create equality between Aboriginals and other Canadians. The guidelines did not denigrate the traditional aboriginal cultures, nor were Aboriginals officially encouraged to discard them.

To be sure, the children who were taken from their homes without sufficient explanation and the distressing number of instances where criminal abuse did occur is a serious stain on Canadian history. But, Black argues, it is a gross historical inaccuracy to conflate residential schooling with the charge of “cultural genocide” as has former chief justice of the Supreme Court of Canada, Beverly McLachlin.

Ultimately, Black concludes that the civil rights record on indigenous issues in Canada is weaker than in other areas such as democratic rights and rights of citizenship. In Black’s view what is needed for the aboriginal community is “a new framework for official native jurisdictions, the administration of government funding to assist the aboriginal communities, and the establishment of appropriate rights for aboriginal individuals to be more or less integrated into Canadian life, more or less established in a semi-separate aboriginal society, and to move between them as they might wish.”

Regardless of what one thinks of Black’s proffered policy recommendations, the romanticization of pre-colonial aboriginal society and the recent “overhasty and histrionic reactions” to news coverage has impeded Canada’s ability to reconcile its past.

In recent years, there has been a tendency to paint the past with one broad brush, and Forgotten History helps to restore nuance to these discussions so that informed judgements can be made. Although history cannot and should not guide every problem we face today, we should at least begin analyses by consulting it.

Robin Varma is the research director for the Aristotle Foundation for Public Policy. He holds a PhD in political science from Carleton University and is the author of Ruling Bodies: A Study of Coercion and Punishment in Plato’s Republic, Laws, and Gorgias (Lexington Books, 2022).