On November 3rd, 4th and 5th of 1981, First Ministers of Canada worked feverishly to finalize a Patriation Agreement after 17 months of talks and Court Actions.
The talks had been interrupted by Prime Minister Pierre Elliot Trudeau when he decided that the talks were fruitless, and that he and his Government would proceed on their own to Patriate the Constitution. The Patriation means having a Constitution Act that would ensure that future changes to our Constitution would be done in Canada with no further reference to Britain. As part of that Act, there would also be a Charter of Rights and Freedoms and other changes.
Many Provinces were upset over this unilateral move by the Prime Minister, and so several Provinces went to court arguing that this unilateral move was unconstitutional. These legal actions ended up in the Supreme Court of Canada which ruled that indeed what the Prime Minister and his Government were attempting was unconstitutional, and that a majority of Provinces would be needed to carry out such measures.
The Prime Minister was forced back to the negotiating table, and on the afternoon of November 05th 1981 as indicated above, and as a result of a Proposal put forward by Newfoundland, the Patriation Agreement was born, which became The Constitution Act of 1982.
The Charter of Rights and Freedoms is an important part of the Constitution Act of 1982 describing individual rights and freedoms. In 1960 Prime Minister John Diefenbaker introduced the Bill of Rights highlighting individual rights and freedoms, but it had two flaws:
a. It was an Act of the Federal Parliament which was subject to easy change by a majority Government and
b. The Act only applied Federally, not Nationally.
Such a feat as getting individual freedoms and rights in the constitution was felt by all to be a magnificent achievement. And it was. No one at the time thought that Governments would attempt to violate any of its provisions, unless we were in some kind of war or major insurrection. And even then to justify such actions.
One of the features of the Charter is that it has Section 1 which provides a means for overriding its provisions:
‘1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’
Fast forward to 2020 and the appearance of a virus which could have serious health effects upon our society. Exaggerated predictions were made which quite early on proved to be incorrect. However, Governments were gripped with fear and panic, and rather that use the already established emergency measures organizations they relied on in the past, a small cadre of health bureaucrats were enlisted and extreme measures were invoked that resulted in the cure being worse than the disease.
This resulted in many Government measures (Federally and Provincially) being implemented which clearly violated Sections 2, freedom of conscience, religion, and expression, Section 6, rights of mobility, to travel throughout Canada and leave Canada, and to pursue a livelihood anywhere in Canada, and Section 7, the right of a person to life, liberty and security of the person and Section 15, the right of equality for individuals before the law.
And let’s not forget that the Constitution is the Supreme Law of the Country. Section 52 of the Charter says:
52 (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
Not one Government has produced a report or study or had Parliamentary Hearings justifying their draconian actions, seeking the broad range of scientific data necessary and performing a cost benefit analysis, all normal requisite actions in a situation like this.
That is, the Governments of Canada have not met the test of Section 1 of the Charter: demonstrably justify their actions within reasonable limits as outlined in law, consistent with living in a free and democratic society.
And they seem to have no interest, even almost two years later, to undertake such crucial study.
Even worse, I have written the Premiers urging them to use the reference procedure ( www.lawyersstandup.ca) that they have at their disposal; that is, to refer their measures to their highest court to see whether their measures are indeed Constitutional.
Not one Premier has moved to take such reasonable action.
Our country stands on the precipice. Will democracy survive?
The Charter begins with:
‘Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.’
Government actions over the past almost two years have shamelessly and brazenly destroyed that meaning and that spirit.
Honourable A. Brian Peckford P.C.
Last Surviving First Minister Patriation Agreement/ Constitution Act 1982