As I tried to sleep last night, the words of the lawyers and The Judge in my lawsuit kept swirling around in my mind. The Judge’s attitude seemed almost like they were debating the validity of a dog license!
And recalling the words of my lawyer’s interviews some hours earlier about the case —
Reading the judgements just brought down by Judge Hinkson in British Columbia in the case brought by Victoria lawyer Jeremy Maddock—
Recalling the judgements I read of earlier Constitutional cases in Manitoba, and British Columbia and Ontario—
Recalling the denigrating views expressed about certain citizens of our country by our Prime Minister and Chief Judge:
I realize now that we have lost the ability to distinguish between a simple commodity for trade and the values and principles that are meant to bind a country together.
A Constitution is not a Trade Agreement.
We are not talking milk and egg quotas, a lumber deal between the US and Canada, a monetary policy of interest rates and inflation, debts and deficits, GDP, and trade imbalances. And all the horse trading that is embedded in all this.
When Socrates stood before the Athenian Jury millennium ago, around 590 BC, he knew the jig was up——freedom, liberty, free speech would be traded away, it was too dangerous for the power elite. Cicero knew he was fighting a losing battle in the Senate with the Authoritarians of his day as he fought for the rights of the Sicilians.
Socrates knew he would have to take the poison.
When I was in Ottawa this year with the courageous Truckers, the cloud hung over the multitude—-the power elite would not negotiate —and The Emergencies Act followed—-the power elite were scared their power was crumbling. Defending freedom like Socrates must be stopped. Even the terms of reference assessing the Emergencies Act validity is be determined by the Government who imposed the Act!
When I, along with others, began a lawsuit through the Justice Centre for Constitutional Freedoms seeking to protect our constitutional right of mobility who would have thought that this so-called expedited process would still be ongoing and that our Federal Government would be attempting to block the case from even being heard. Using legal tricks, especially relevant description in this case of freedom and rights, Constitutional protected rights and freedoms, one would have thought such a ploy, should I say ‘play ‘wound never be even considered or entertained. One would have thought the Government would want constitutional validity of what they were doing!
We have lost our moral compass and have allowed principles and values to become commodities, tradable even by the courts——mootness must now be negotiated before we know whether we have any right of mobility under Section 6 of the Charter. Judge Hinkson ‘measures ‘whether enough liberty has been taken away to infringe upon the value, principle of ‘Life, Liberty and Security of the Person In our Charter, our Constitution. A Judge in Manitoba just ‘believes ‘the state’s narrative in the face of credible independent evidence.
Your honour I understood your role was: ‘to protect freedom not limit it. ‘I thought that the onus was on those trying to limit it to prove this. Yet we see you taking upon yourselves to determine the limits on personal liberty all based upon a circumstance that was and is unscientific by an objective measure.
Jeremy Maddock who took the case of liberty to the BC Supreme Court says about the decision limiting his freedom:
“If this precedent stands, [the government] can make your life as inconvenient or unpleasant or uncomfortable as it wants to without infringing your right to liberty.”
I remember the King James version of the Bible, excerpt from 1st Corinthians:
‘When I was a child, I spoke as a child, I understood as a child, I thought as a child: but when I became a man, I put away childish things. — 1 Corinthians 13:11, King James Version.’
‘For now we see through a glass, darkly; but then face to face:’
Or more ominously Wordsworth’s famous words —‘the still sad music of humanity.’
Values don’ t die or fade away or be replaced like trade agreements —
They last ——that’s why Socrates, Cicero, the Magna Carta, and Voltaire, The American Declaration of Independence, The Federalist Papers, the early French Revolution are all still relevant. They speak of values, principles —-freedom and liberty —-that will never die as long as we retain our humanity.
That’s what Constitutions are supposed to be —to encompass values, principles. That’s why Section 52 of the Constitution Act 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.
And why it is difficult to change. Deliberately! Democracy must reign for it to be changed.
Even last generation pop song writers got it right when they lamented in song: ‘Is Nothing Sacred Anymore——‘
And your honour, the intent of Section 1 of the Charter was for it to be used only when the state was in peril, war or insurrection——-there was no circumstance in the last two years when this condition existed. This idea of the framers was clearly expressed in Section 4 of the Charter:
‘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.’
Do you think it plausible that the framers would include the extending of sitting of parliament under war and invasion, insurrection and not the rights and freedoms that they were enshrining for the first time in the Constitution?
Furthermore, even if the intent was not clear, and in my view it is, the tests in Section 1, especially of ‘demonstrably justify in a free and democratic society’ have not been met by those Governments who have tried to argue they met the Charter conditions and imposed draconian, charter breaking measures. Where are the cost benefit analysis to give meaning to demonstrable justify? There are none!!! Where are the parliamentary debates and supervision to give meaning to in a ‘free and democratic society. ‘There were none.
In the last days an American Federal Judge has ruled
‘In the ruling permanently enjoining the vaccine and mask mandate in 24 states, U.S. District Court Judge Terry A. Doughty writes:
‘The public interest is served by maintaining the constitutional structure and maintaining the liberty of individuals who do not want to take the COVID-19 vaccine.
This interest outweighs Agency Defendants’ interests. The public has a liberty interest in not being required to take a vaccine or be fired from their jobs. The public interest must be taken into account before allowing Agency Defendants to mandate vaccines. Although vaccines arguably serve the public interest, the liberty interests of individuals mandated to take the COVID-19 vaccine outweigh any interest generated by the mandatory administration of vaccines.”
This is the crux of the matter —where does personal freedoms and rights stand with you concerning our Charter provisions and what is now happening in our country? Will fear, bad science and government dictate overrule fair and reasonable assessment —-will rights and freedoms gain their rightful, elevated place in the pantheon of democracy’s values —or just another degraded bargaining chip leading to our democratic decline?
Your courts use in many of its judgments intent, context to render a fair decision. Such is needed now.
Sadly, It seems clear to me now as the last living first Minister who signed the 1981 Patriation Agreement that was to become The Constitution Act 1982 that since its inception two things have occurred which have limited our liberty and freedom and the integrity our Constitution:
From its inception the process on how our Charter came together was abused and wrongly described.
But more importantly, as your courts ignored in their decisions the two principles that the framers deliberately inserted at the introduction of the Charter ——‘supremacy of God and the rule of law’ ——-there was the undermining of values, principles and permanence necessary for individual rights and freedoms to be paramount in the conduct of our democracy.
If this cannot be restored, given the failed state of the other two branches and the failure of the fourth estate, the press, (none carried any news on this weeks Federal Court hearing on rights and freedoms) our democracy is in deep peril.
Individual Rights and Freedoms are not bargaining chips in a trade war—but fundamental, permanent values and principles in the pursuit of satisfying the ‘supremacy of God and the rule of law, the foundational principles ungirding our Charter of Rights and Freedoms, an integral part of The Constitution Act 1982.
Honourable A. Brian Peckford
The Honourable A. Brian Peckford P.C. is the last living First Minister who helped craft the charter and Chairman of ‘Taking Back Our Freedoms ‘