Our political leaders have confused their authority, transferred it to unelected bureaucrats and otherwise empowered the Prime Minister’s office.
The judiciary has overstepped theirs.
They have ignored independent science and have ignored the words of our constitution or completely mangled the plain meaning of the constitution’s words.
A. In applying the Charter’s Section 1 which allows Government to overrule the rights and freedoms granted , there are conditions for this overrule to be valid. Two of these conditions are : ‘demonstrably justify ‘ and ‘free and democratic society.’ In any fair and open society applying demonstrably justify would entail some sort of cost /benefit analysis . None was ever done in Canada regarding any of the numerous Federal , Provincial/Territorial mandates and lockdowns . And in applying free and democratic society one would think that this would have involved an ongoing role for Parliaments in Canada . This was not what happened. And the courts participated in this distortion of our Constitution.
B. But the most egregious is the deliberate avoidance of addressing the opening words of the Charter by the courts which are the framework through which the rest of the Charter was to be considered. They are:
‘Whereas this Country is founded on the principles of the Supremacy of God and the rule of law:’
A colon was placed after these words . Why?
Because it anticipates what is to come and that what follows is subject to these principles, that’s what!
So where are the courts authority of today for ignoring, abandoning parts of the Constitution but adhering to other parts of the Constitution.
It surely isn’t from the Constitution itself.
No , its from a flawed reading by the courts where they insert their views and completely twist the meaning of ‘ supremacy of God. ‘
In trying to find this flawed interpretation I asked a constitutional lawyer . Leighton Grey , whether , of all the Charter cases of the last 40 years did he know of any where this issue of the opening words of the Charter were considered.
And he identified one . There may be others and that is being researched.
It was the case before the Supreme Court of Canada in 1985 entitled R. Vs Big M Drug Mart Ltd., Case # 18125.
In reviewing a lower court’s decision ( Alberta) The Supreme Court of Canada through Judge Dickson quoted the Alberta Court of Appeal Judge in the case ———
‘Judge Stevenson adverted, at p. 76, to the preamble of the Charter:
A purpose of the Lord’s Day Act is to recognize Sunday as the day of rest for certain Christian denominations. If one now turns to the preamble of the Charter we see that, “Canada is founded upon principles that recognize the supremacy of God”. Bearing in mind that the preamble may not carry the force of law, it still shows that the Charter does not recognize any particular denomination, and (noticeable by its absence) it does not refer to a Christian God. The preamble surely is intended to reflect the multicultural and multi‑denominational make‑up of Canada. If, then, a law which in any way adversely affects the religious freedoms of Canadians is in conflict with the Charter, it must be struck down in accordance with s. 52 of the Charter.’
Oh, its a preamble now and I suppose that means even though its part of the Charter it is somewhat less in importance?
What balderdash!
In reviewing the Constitution Act as written on the Federal Department of Justice website it make no mention of preamble. Its cites Part 1 of the Act and then under Part 1
‘CONSTITUTION ACT, 1982
PART I
Canadian Charter of Rights and Freedoms
Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:
Guarantee of Rights and Freedoms
Rights and freedoms in Canada
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.’
So this makes no sense —the opening words to the Charter are the opening words to the charter ——-full stop!!
And as such are integral to the Charter !!
And especially given that that these opening words end with a colon!!!
Who are these people who can suddenly determine how these words are to be characterized ——-and in any case that characterization whoever thought it up is irrelevant .
The opening words are there IN the Charter and have meaning anticipating as they do the context in which the rest of the Charter is to be interpreted.
But worse than that!!
THE GOD THAT THE FIRST MINISTERS APPROVED TO BE INSERTED AS THE OPEING WORDS OF THE CHARTER WAS NOT A CHRISTIAN GOD!!!
ARE YOU KIDDING ME?
FIRST MINISTERS BENNETT, LOUGHEED , BLAKNEY , LYON, DAVIS , LEVESQUE . HATFIELD, MCCLEAN , BUCHANAN AND PECKFORD AND TRUDEAU WERE ALL RAISED IN THE JUDEAO CHRISTIAN TRADITION . AND THE JUDICIARY SAY THAT THE JUDEAO CHRISTIAN GOD WAS NOT THE ONE WE WERE THINKING OF WHEN WE APPROVED THESE WORDS ?
YES IT WAS ! THAT GOD AND NO OTHER!!
THAT’S THE ONLY GOD WE KNEW !!!!
AND MULTI CULTURAL AND MULTI DENOMINATIONAL WERE NOT PART OF THE EQUATION. IT WAS BI LINGUAL AND BI-CULTURAL , MEANING ENGLISH AND FRENCH !
So now you see how things can get garbled and totally misrepresented even by ‘learned ‘ judges !
And they were and are wrong on this!!
In any case , it is not up the judges to determine the religious and spiritual nature of the country .
If the country through its elected representative want to change the opening words of the Charter and what is to be the new religious and cultural nature of the country or anything else , there is an amending formula through which THE ELECTED can make such changes .
The whole point of a Constitution is to provide stability and certainty. If the unelected branch of our system is to have the power to unilaterally change the nature of our country then representative and responsible Government is no more and what the reformers in the British North American Colonies, even before Confederation, were fighting for and what the First Ministers were fighting for in 1981 and 1982 is all for naught . Let us remember there was a Supreme Court of Canada in September 1981 that rejected unilateralism ( and that by an elected Prime Minister) as contrary to the Constitution and why we have the Charter we have today, negotiated by the legitimate elected leaders of the Provinces and the Federal Government.
Judges interpret law and the Politicians make that law.
And notwithstanding the distain some judges are reputed to have towards politicians it is the elected politicians who created the unelected judges , not the other way around!!
So there is a lot of work to do if we are to reestablish a true democracy —-the Parliament strengthened as envisioned and was practised for decades, The Executive weakened and responsible to Parliament, and The Judiciary , weakened in the sense of going back to interpreting law not making it.
In the interim, the Judiciary could lead the way by volunteering to reign in its illegitimate power and provide much needed leadership by interpreting the plain meaning of the Constitution as written .
Honourable A. Brian Peckford P. C.
Last Living First Minister Who Helped Craft The Constitution Act 1982.
