Speech to the We Unify Conference In Victoria, BC, June 23, 2024
Because of time constraints at the conference this complete address was not given. But here it is!
History and Application of Canada’s Charter of Rights and Freedoms—The Charter —My Magna Carta —Our Future.
Part 1 Introduction
Canada has been without a written bill of rights, charter since its inception —relying on British Common Law.
Charter of Rights and Freedoms History.
Our neighbours to the south had a Bill of Rights added to their Constitution soon after their country was formed (1791–15 years) and here we were over a century after the country’s formation without a codified rights and freedoms document. Of course, there were and are many who argue that the British Common law was sufficient. In 1980 they were in the minority.
There was, of course, the Bill of Rights passed by the Canadian Parliament in the 1960’s but that was a Federal Piece of Legislation and applied only to Federal Jurisdiction. The Bill itself contains the following provision:
(3) The provisions of Part I shall be construed as extending only to matters coming within the legislative authority of the Parliament of Canada.
In other words, this Bill of Rights was a federal piece of legislation that could be changed by a simple majority in Parliament and did not apply in areas of Provincial jurisdiction.
There was a need for a National Act —to cover all of Canada —and that could only be accomplished through the Constitution. Furthermore, some permanence would be needed so that it would be beyond easy change by the whims of one majority Government.
This was all given impetus by the fact that Prime Minister Pierre Trudeau had promised a renewed federalism in the 1980 Quebec referendum campaign; and after the Quebec loss Premier Levesque was quick to press The Prime Minister to keep his promise.
The First Ministers agreed to a process for Constitutional change that continued from 1980 to November, 1981. First Ministers started the process and Intergovernmental Affairs Ministers and Justice Ministers and their staff from all eleven jurisdictions met under instruction from their first ministers and cabinets after that initial meeting.
But a deal was illusive in that there did not seem to be an honest effort by the Federal Government. Some Provinces had warned the others that they doubted the sincerity of the Federal Government. Many of us were naive and thought that this exaggerated the situation.
However, in 1981 the Federal Government abruptly left the table and initiated a parliamentary action whereby they asserted the Federal Government could unilaterally patriate, that is bring the Constitution home to Canada with its own amending formula, and a Charter of Right and Freedoms. The Parliament supported this move.
It was at this point that the provinces’ unity was shattered as two Provinces, Ontario and New Brunswick supported the Federal Move while the other eight did not. The eight were quickly called by a Federal friendly press ‘the gang of eight.’
This gang of eight decided to challenge the constitutionality of the Federal action and began actions in three of their courts. Over time it became clear that the Federal Action was not a sure thing and there was opposition growing within the Progressive Conservative official opposition party. The Federal Government decided that they had better get a court ruling on their action and this reference together with a gang of eight references became one case before the Supreme Court of Canada.
And in September of 1981 the Supreme Court of Canada ruled that what the Federal Government and the Parliament of Canada was attempting to do was unconstitutional. Here is what the court said:
Conclusion
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.’
To this day many journalists and lawyers, who should know better, try and style this as a minor setback for the Federal Government. It was not very minor.
It was major!! Without involving the Provinces substantially constitutional change was dead!!
Even the great scholar, as the press often described Prime Minister Pierre Trudeau, was forced to concede defeat. He was forced to agree to meet the provinces for one last effort. Without the Provinces ‘agreement Trudeau would have been laughed out of London if he had proceeded with his proposal and he knew it.
Some of the Prime Minister’s own legal friends on the court had turned him down.
Those final November 3, 4, and 5 days were momentous days and at the end a deal was struck, then called the Patriation Agreement later to be called the Constitution Act 1982. Quebec did not agree and hence is not a signatory to the Agreement. But ten First Ministers, Governments agreed and that satisfied the Supreme Court decision of September.
The deal was hammered out on the night of November 4 as result of a written proposal put forward by me and my deputy ministers representing our Province to many of the gang of eight at the Chateau Laurier Hotel —The Saskatchewan suite.
That night with some changes the representatives of the Provinces agreed (Quebec was not present, were not in their hotel rooms) and that I should present it to the gang of eight First Ministers at a scheduled early morning meeting the next day. Seven Provinces agreed with the Proposal in the morning meeting and agreed that I should present it to the first ministers meeting scheduled for later that day. Quebec was at that meeting including the First Minister, Premier Levesque, and had an opportunity to read the document with his delegation. They indicated they could not support it.
I presented the approved written proposal, as instructed by the six first ministers, later that day, and with some additional amendment the Patriation Agreement was born. My best seller book Some Day The Sun Will Shine And Have Not Will Be No More published in September 2012 has copies of those final documents and more elaboration of the process.
To this day the Canadian Encyclopedia and others credit the handwritten notes by Attorneys General of the Federal, Ontario and Saskatchewan Governments, allegedly scribbled together in the kitchen of the Chateau Laurier Hotel, as breaking the impasse.
None of the eight Premiers saw these notes and were working from the typed written document I had presented on the morning of November 5 and all First Ministers and their delegations were working from the document I presented that November 5 afternoon. There was no reference whatsoever to, or the existence of, the scribbled notes of the Attorneys General or anybody else.
It is now obvious that egos were damaged and parties who thought than should be the architects of any change were going to nefariously try and enter the stage. Interestingly it is that the Federal archives carry the scribbled notes of the shunned AG’s (if the Canadian Encyclopedia is to be believed) and not the formal document presented by seven provinces and ultimately approved by 10 Governments. Even the gang of eight strongest foe, Prime Minister Pierre Trudeau, recognized the document publicly in interviews on November 5, 1981.
I think it important that this history and context be described since all of this was not an easy process and obvious tensions of this sort are long lasting. And people need to be aware that the November 1981 agreement culminated after a 17-month process that involved major legal action in 4 of the top courts of the land.
The Federal Government’s defeated unilateral proposal was not the end of the tension.
There arose soon after comments by national journalists who put a different spin on how the deal happened resurrecting the three Attorneys General charade. That was reflected in two books, one by Robert Sheppard and Michael Valpy entitled: The National Deal : A Fight For Canada’s Constitution and another by Ron Graham entitled The Last Act: Pierre Trudeau and The Gang Of Eight And The Fight For Canada. But the evidence was sparse , laced essentially with opinion .
Finally, an article in the National Post (1991) by two Alberta professors, Barry Cooper and Ted Morton entitled ‘The Night Of The Long Knives: Who Dunn It’ was supposed to solidify the notion that what I had said was untrue. Of course, when asked for proof by two of my deputy ministers (they had kept copious notes of the time and I had as well from a local interview just days after the event that I kept on tape) the professors had no evidence.
None of these commentators were a part of the constitutional process and were obviously working through unknown third parties for their faulty information.
It is against this backdrop that later we find not only unilateralism and erroneous notions of how the deal came together but obvious omissions of part of the Charter in court rulings, interpretations of the Charter of Right And Freedoms inconsistent with a true reading of it, and obvious omission of the intent of the First Ministers who signed the Patriation Agreement. Such intent being deliberately ignored.
Part 2 —Charter Application
Let us examine what transpired in 2020/1/2/3 as it relates to our Constitution, specifically the Charter of Rights and Freedoms during the so-called ‘pandemic.’
It is clear looking back that the judiciary saw this new Charter as a means to enhance their own power and this was made all the easier by an incompetent political leadership, federally and provincially.
The patriation took political courage and political leadership, sadly lacking today. Decisions that have occurred through the courts are obviously decisions that are clearly in the purview of the elected and the parliaments. But a void appeared and the courts filled it, gladly.
The amending formula through which change could be realized through legitimate political means, that long sought after formula that alluded earlier leaders (10 attempts from 1927 onward) had kept the mother country in play in Constitutional change) was now available but ignored, rejected.
It’s as if the Patriation process had not taken place! Once the country succeeded in becoming its own master in Constitutional Change, it lacked the political leadership, vision and fortitude to actually exercise that leadership.
Part V of the Constitution Act States:
“PROCEDURE FOR AMENDING CONSTITUTION OF CANADA “
Section 38 describes the general amending formula:
“38. (1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by (a) resolutions of the Senate and House of Commons; and (b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.”
Canadians have spent more time on trying to find fault with Section 1 of the Charter than they have in seeking to make Section 38 work. Before we had such a formula the attack was that Canada was still a colony of Great Britain where final approval for constitutional change had to be given.
There is no excuse now!
There is what’s called the Canada Act that introduces the Constitution Act 1982 —Section 2 says:
‘2 No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law.’
Many books have been written on the Courts’ incursion into making law, not just interpreting the law. I am fond of referencing American Judge /former Solicitor General Robert Bork who, through a Massey Lecture here in Canada, produced a book (Coercing Virtue: The Worldwide Rule Of Judges) which highlights the many instances of judicial overreach around the western democratic world including Canada.
Then there is the new approach of interpreting constitutions that swept through western university law schools especially in Canada called ‘the living tree doctrine’. This doctrine is defined as ‘a doctrine of constitutional interpretation that says that a constitution is organic and must be read in a broad and progressive manner so as to adapt it to the changing times.’
This is just what the ambitious judges were looking for —cover for a transfer of power from the parliamentary seat to the judicial bench.
There are many instances from 1982 to 2019 but this judicial overreach really took a front seat in public policy making for all to see during the so-called pandemic from 2020 to now.
It is only now that some sense is being restored with decisions like Judge Mosley’s of the Federal Court of Canada upholding the Charter of Rights and Freedoms. And we do not know as of this writing if this will stand given that the Federal Government has announced, through the Deputy Prime Minister, it will appeal.
The assault on the Charter takes a number of forms including: ignoring certain provisions, ignoring the intent, and a reading that uses the living tree doctrine and flaunts, therefore, the clear meaning of the words and phrases of the document.
In other words the Charter has been massively violated.
- First and foremost the Governments and the courts have ignored the opening words and concepts of the Charter:
‘Whereas Canada is founded on the principles which recognize the supremacy of God and the rule of law:’
This is how the Charter begins. These concepts contained therein must be considered in any legitimate consideration of matters that come before the courts involving the Charter.
Tragic indeed is the reality that our elected and our courts ignored this framework in which our Charter of Rights and Freedoms was to be considered.
The incredulity of the unilateralism of 1981 and the fantasy stories of how the Charter came to be now has to compete with the even greater incredulity of the arrogance of our Governments and our Courts in omitting consideration of these constitutional obligatory concepts.
It is as if the Almighty had miraculously bestowed upon our Governments and Courts special powers!! We can select what we like in the Constitution to decide Constitutional questions.
In the United States of America, a Supreme Court decision that stood for over 40 years was overturned as being unconstitutional.
Decisions of the Canadian Courts that ignored full consideration of the Supremacy of God and the rule of law (not by law) must find a similar fate in order for Constitutional legitimacy to be restored.
And I find even in Judge’s Mosley’s ruling no reference to the opening words of the Charter although he thankfully mentioned the important role of such opening statements.
One really need not go beyond this point to demonstrate the unconstitutionality of what has happened —ignoring the opening concepts of the Charter and hence making all such rulings unconstitutional, null and void.
But even if these words were not part of the Charter the actions of our Governments and Courts would still not be constitutional, consistent with the Charter.
- The Intent
If one scans various court decisions one often finds the judges discussing the intent of the authors of a given piece of legislation. And as the last living first minister who was there and helped create the Charter I can say with certainty that the first ministers intended for Section 1 of the Charter to be used in only very dire circumstances, like war or insurrection, the nation’s existence was at stake. Sect 4 of the Charter demonstrates the authors’ mindset:
“Sect 4 (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.”
The degree to which information was shunned is most evident in that the courts and government were not interested in what the last living first minister whose name is affixed to the Patriation Agreement had to say about the intent of various parts of the Charter. In both the Federal Court on the travel mandates and the Rouleau Commission hearing I was not called.
- And then there is Section 1 itself which many have maligned and twisted.
“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.”
For the rights and freedoms of citizens to be suspended Governments must ‘demonstrably justify’ such actions. Not one of the 14 Governments in instituting their lockdowns and mandates demonstrably justified their actions. Not one cost benefit analysis was done. Professor Douglas Allen of Simon Fraser University concluded after an exhaustive review of the global literature (Covid Lockdown Costs /Benefits —A Critical Assessment of The Literature) that this period of government incompetence could well go down as one of the greatest public policy failures. This was said in August 23, 2021:
“It is possible that lockdown will go down as one of the greatest peacetime policy failures in modern history.”
Time has validated the Professor’s words.
And they were totally ignored, as was, as we all know, ‘The Great Barrington Declaration‘instigated by three of the world’s leading scholars (from Stanford, Harvard and Oxford Universities) and who, themselves, were personally maligned. This declaration is signed by 16,129 Medical and Public Health Scientists and 47, 723 Medical Practitioners.
Section 1 goes on to say Government action must follow the rule of law and be consistent with the values of a free and democratic society.
But the Parliaments were absent, passing over power to the executive and to unelected Public Health Offices and Officers. To meet this requirement, given what governments had framed as a dire emergency, it is customary for Parliaments to be continually involved through ongoing parliamentary committees with public hearings (accountability and transparency) so that the public would gain a full knowledge of the situation and know their duly elected representatives were in charge. That is what Parliamentary Democracy is all about. That’s what our reformers fought for in Upper and Lower Canada, Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland even before there was a Canada.
Even our Chief Justice and our Prime Minister violated the norms of democracy in their public comments, the Chief Judge’s being blatantly inappropriate and the PM’s downright divisive.
There has been a tragic breakdown of the Constitutional order; the executive and judicial power have subverted the role of elected representatives of the people. Socrates, Cicero, Locke and Count Montesquieu are turning over in their graves, not to mention the American authors of the Federalist Papers. Montesquieu, this wise French thinker in his Spirit of The Laws exclaimed that in the final analysis the people and parliament are supreme. He exclaimed:
“…when the laws have ceased to be executed, as this can only come from the corruption of the republic, the state is already lost.”
And
“There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.”
As sitting American Supreme Court Judge Neil Gorsuch has said: the Covid response by Governments represented ‘the greatest intrusion on civil liberties in peacetime history.’
The January 23, 2024 decision by Federal Court Judge Mosley (page 125) comes full circle and brings one back to the reality of Section 1 for which many have maligned me and the other first ministers involved. The Judge says of the Government Emergency’s Act:
‘that the Proclamation was unreasonable and led to the infringement Charter Rights not justified under Section 1.’
One correction for the Judge —‘demonstrably justified.’
After all the verbal gymnastics of the politicians, lawyers and the judges and precedents here or there by a given judge or court, it comes down to what the authors of the Charter said all along —what is reasonable—and is it justified —and demonstrably so!!!
The West has allowed itself to abuse history, the scientific method, culture, order, God and the rule of law. The forest has been lost to the trees.
David Marks, an American investigative reporter and documentary producer wrote an essay on his sub-stack recently (and carried by Naomi Wolf’s website Daily Clout) entitled ‘Reversing The Descent of Humanity’. His final words were:
“At their core, people everywhere do want the same things, but they are not those benefits promised by those wielding power. The reliance on economic salvation and dependence on a reality engineered by the false prophets of government and science has only increased suffering.
These factors have engendered a dysfunctional world divided by meaningless inducements and harsh dictates.
Individuality and creativity have been eclipsed despite the powerful unique spirit within each one of us.
Change will only begin through an awakening and a recognition that new priorities must be established to strengthen the human spirit.
The challenge is staggering; solutions will take no less than an emergence of thoughtful, innovative paradigms and endeavors designed to counterbalance the descent of humanity into disposable automatons.”
Part 3 —A Way Forward
In May 2022 I presented My Magna Carta at an earlier We Unify Conference on the steps of the Legislative Building in Victoria —a way to help restore our Democracy given that the Prime Minister and The Premiers lack the leadership, vision and courage for Constitutional change right now.
A change in the system is needed, not a bill here and a bill there!!
And there are important things we can do until we get some real leadership and Constitutional change.
From My Magna Carta We can insist now:
- Accountable Political Parties —Publishing Annual Audited Financial Statements —details of where the money comes from and where the money goes,
- That MP ‘s and MLA’s amend the Conflict of Interest Act in their jurisdictions whereby legislators who break the conflict of interest law cannot serve in the House of Commons or Legislative Assembly. Our PM has broken the conflict of interest law 5 times.
Do you know what these two measures, just these two, would do?
It would establish honesty, integrity among the political players, something we do not have right now. Citizens would become more trusting and less cynical.
Isn’t it amazing that this is not the standard.
The people must insist on it.
And insist on:
- The power of the First Ministers’ offices must be reduced. Cabinet is the executive. In Canada almost 1500 people work directly for the Prime Minister —it is as if First Ministers have become Presidents!!
- That, the power of the Parliaments must be restored and parliamentary committees playing a bigger role and the process for individual parliamentarians to introduce legislation made efficient and effective. Right now, Parliamentary Committees can be closed down by the tyranny of the majority.
- Civics must become a mandatory subject in the public schools of Canada —at least from grade eight, every year until the end of high school. Post Secondary institutions must appear before Legislative committees to defend their budgets and Professional Organizations like the Colleges of Physicians and Surgeons and the Law Societies must appear before Legislative Committees to justify their mandates.
- Balanced budget legislation to be adopted in all the Federal, Provincial and Territorial jurisdictions.
- That Sovereignty be maintained —no international agreements can be signed by the Federal Government that will in any way reduce the country’s sovereignty.
- That, Reform to the appointment process for Superior Judges in this country. The Parliament must be the major player in a new process.
- That Parliament pass legislation ensuring that the courts are forced in any interpretation of the Constitution to incorporate the opening words of The Charter of Rights and Freedoms in their analysis and that any ruling on Section 1 of the Charter must incorporate a written report detailing a cost benefit analysis before invoking a suspension of rights or freedoms and that specific time frames must be included in such ruling causing a repeat process for any extension.
- That Corporate power influence in Government has to be eliminated —it even works the other way where the US Government gave media companies over 1 billion dollars to advertise experimental vaccines. And in Canada likewise hundreds of millions of dollars went to media companies large and small to push the covid vaccine narrative.
Did you know that most biomedical research is paid for by pharmaceutical companies —in one year 82% of the New England Journal of Medicine published medical studies were funded by companies selling the drug.
That 66% of the FDA reviewers of a drug ended up working for the companies whose drugs they were reviewing.
And in 2020, 72 of the 100 US Senators, 72%, took campaign donations from Big Pharma and 302 of the 435 members, 69%, of the House of Representatives!
How can honest public policy be enacted when the regulatory bodies and the Congress itself is captured by corporate interests. And, of course, similar corporate influence exists in Canada.
Additionally, one should note the corporate tech and media companies who signed on to the fake Trusted News Initiative, involving private and public entities that would decide on what news to be carried.
Robert Kennedy may not get everything right but on one thing he is dead right—our democratic systems have become corrupted and captured by corporate interests not the interests of the citizen. He said in a recent interview:
“People know that they don’t own their government anymore … It’s rigged against them.”
This week American constitutional scholar, Professor Of Law, Jonathan Turley has a new book entitled – The Indispensable Right —Free Speech In An Age Of Rage. An Indispensable book to read as he upholds the person’s right, now under attack, of free speech. Our modern day John Milton, the great English Poet who defended free expression in his Aeropagitica in 1644 before the British Parliament.
If we in Canada will not insist on these unconstitutional changes just enumerated what chance is there that more complicated Constitutional talks could ever succeed?
One of the frightening dimensions of this Corporate —and global dimension is highlighted in Aaron Kheriaty‘s book The New Abnormal —The Rise Of The BioMedical Security State where he explains that given that many of the corporations are agents of the state and are already multinational that regardless of the success of a Global Health Treaty, control is already global through these corporations and unelected globalists.
And Kheriaty asserts that lurking in the corner is a Globalist agenda of transhumanism taking us beyond what we know to be human, advocated by World Economic Forum spokesmen like Professor Yuval Noah Harari. Witness the comments of this man in a recent interview as quoted in Dr. Kheriaty’s book:
“Now humans are developing even bigger powers than ever before. We are really acquiring divine powers. We are really upgrading humans into Gods of creation and destruction.’
This would be in line with a speech he gave to a Google conference saying:
“I mean, all this story about Jesus rising from the dead and being the Son of God, this is fake news.”
This is a significant influencer in the WEF —here is one final quote of his complaining about us peasants worrying about the elites:
“In recent years we saw populist politicians deliberately undermining the trust that people have in important institutions like universities, like respectable media outlets. These populist politicians told people that scientists are this small elite disconnected from real people.”
Yes sir, I stand guilty!!
This is the dangerous road we are already traveling —where we have world intellectuals as international best seller author Melanie Phillips has said —‘turning our world upside down ‘ —and without a shot being fired.
Canadians and Americans, liberty loving people everywhere, must stand up to this encroaching tyranny —we need to become involved , aware of what is happening and taking action if we are ever to restore our democracies —and vanquish the unelected smug elites from removing freedom from our world.
We, the people, must resist this madness.
The three pillars of our democracy have been corrupted: the legislative, the executive, and the judiciary.
It is up to the people to demand our democracy back.
If this is not urgently pursued now, the globalists will win and we will all be Orwellian characters defying the promise of our democratic ancestors.
The Honourable A. Brian Peckford P.C. is the last living First Minister who helped craft the Canadian Charter of Rights
Related Items:
Watch: Leaders on the Frontier with Brian Peckford here. (72 minutes) January 19, 2022
