Peckford: The Fight Just Begins for The Charter of Rights and Freedoms As Mandates Fall

Commentary, Civil Liberties, Free Speech, Role of Government, Brian Peckford

Now is the time for a regroup, a refresh.

Mandates removal are battles not the WAR.

The WAR IS The Mandates were and are unconstitutional .

They must be found to have been unconstitutional , that they have all violated our Charter of Rights and Freedoms . Otherwise our democracy is diminished——we will not be fully free as a nation of individuals.

We have perhaps 20 or 30 Judges who will decide—Judges of the Courts of Appeal of the Provinces , the Federal Court and the Supreme Court of Canada.

For those who may have forgotten and those new to the cause, let’s review .

Written Constitutional entrenchment of individual rights and freedoms was late coming to Canada—-not until in the Constitution Act of 1982. It was authorized by the Patriation Agreement of 1981 after 17 months of talks; one hundred and fourteen years after the nation was founded. In the US the time between the country’s founding and a entrenched bill of rights was 15 years.

Pierre Eliot Trudeau , Prime Minister of Canada in 1981 broke off talks and tried to unilaterally patriate the constitution and add his version of a Charter of Rights and Freedoms . Eight Provinces opposed this move and took the Federal Government to Court. In September 1981 the Supreme Court ruled that what the Prime Minister of Canada and the Federal Government were trying to do was unconstitutional. That any such changes, the court said , must involve the Provinces. Here is directly what the Court said:

‘We have reached the conclusion that the agreement of the provinces of Canada, no views being expressed as to its quantification, is constitutional­ly required for the passing of the “Proposed Reso­lution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” and that the passing of this Resolution without such agreement would be unconstitutional in the con­ventional sense.’

A last ditch effort was made in November 3,4, 5 ,1981 to accomplish patriation , a Charter , and other changes( indigenous rights, equalization etc) .

On November 5, 1981 a deal was struck based on a Newfoundland proposal presented the night before to some Provinces. Nine Provinces and the Federal Government agreed. Only Quebec did not sign .

Today and for almost two years the Governments of Canada have been implementing policies that violate the Provisions of the Charter, individual rights and freedoms, particularly Sections 2, 6, 7, and 15.

These involve freedoms of assembly, and association , religion, conscience, expression and the press. They involve the right to travel throughout Canada and leave Canada, the right to a livelihood, rights of life , liberty and security of the person and equality before the law. Rather precious one would think.

Governments have attempted to ignore or in some cases give passing notice to the Charter in their policies even though their policies are subject to the Charter. The audacity is astounding.

And in other cases they try and invoke Section 1 of the Charter as their saviour.

But Section 1 was intended to be used only in times of war, insurrection, perils to the state. The past two years of manufactured emergencies hardly apply. Just a few sections below Section 1 , there is Section 4(2) . It states:

2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be.

This clearly shows how we were thinking at the time. Does one think that those of us who were drafting this would not treat removing individual freedoms and rights under the same circumstances as extending the life of a Parliament?

And even for argument’s sake , Section 1 did apply , the four tests in that section have not been met by the Governments so that Section 1 could apply—-especially the tests of ‘demonstrably justify,’ and ‘ free and democratic society.’

No Government has ‘demonstrably justified ‘ any of their mandates let alone conduct them within the values and practices of a ‘free and democratic society. ‘ The former would involve an objective cost benefit analysis and the latter a continuing involvement of Parliament and /or the people.

All of this is most shocking when one considers :

  1. Section 52 of the Constitution Act 1982 which 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.’

  1. The Beginning of the Charter says:

‘Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:’

Every Canadian of thinking age needs to become knowledgeable concerning our Constitution and realize that if we are to keep it we must defend it in every way we can within the law.

 

Honourable A. Brian Peckford P.C.

Last Living First Minister Who Helped Craft The Charter

Chairman of ‘Taking Back Our Freedoms