The Most Important Section in the Charter

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The Canadian Red Ensign

Friday, May 8, 2020

The Most Important Section in the Charter

As I have said many times in the past, I am not an admirer of the Charter of Rights and Freedoms. This is not because I disagree with the “fundamental freedoms” listed in Section 2 or the basic legal and civil rights listed in Sections 7 to 13. All of these rights and freedoms, which are by far the most important rights and freedoms in the entire document, Canadians already possessed as subjects of Her Majesty under Common Law before 1982. The reason I dislike the Charter is because the Charter, rather than making these rights and freedoms more secure, as the Liberals who drafted it want you to believe, made them less secure. It includes two extremely broad loopholes.

The clause “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” found in Section 1 is the first of these. Who says what limits are “reasonable” and who decides whether they are “demonstrably justified in a free and democratic society?” The government that seeks to place limits on these rights and freedoms cannot be trusted to make this decision itself.

The second loophole is Section 33, the Exception Section with its notorious “notwithstanding clause”. This section allows the Dominion and provincial governments to pass Acts which will operate “notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter”, i.e., the sections about our fundamental freedoms and basic legal rights. Although such Acts are required to sunset in five years (subsection 3) they can be renewed (subsection 4). This second loophole is the reason former Prime Minister Brian Mulroney said, and he was right to say it, that the “Charter is not worth the paper it’s written on.”

This is not the only problem with the Charter.

Section 7 reads “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”, substituting “security of the person” for “property” which is the third of the basic rights under Common Law, in which the security of person and property is the concise way of stating all three basic rights. Property is nowhere mentioned in the Charter. This has long been criticized as one of the chief failings of this document and has been thought to reflect the Marxist inclinations of those who have led the Liberal Party, arguably since Lester Pearson became leader in 1958, but especially since Pierre Trudeau took over in 1968.

Subsection 2 of Section 4 allows a Dominion or provincial government with a large enough backing in the House of Commons or the provincial legislature – a supermajority of two-thirds – to suspend elections indefinitely in a time of “real or apprehended, war, invasion or insurrection.” Note the words “or apprehended.” The threat of war, invasion or insurrection does not have to be real. Pray that neither the Liberals nor any other party, ever obtain enough seats in Parliament to put this subsection into effect.

Subsection 2 of Section 15 nullifies what subsection 1 says about how every individual is “equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

I am not particularly keen on the wording of subsection 1 either. Saying that everyone has a right to “equal protection and equal benefit of the law without discrimination” can be interpreted in two ways. It can be interpreted as binding the State, preventing it from practicing said discrimination in its administration of the law and justice. I would not have a problem with that interpretation. It can also be interpreted as empowering the State to interfere in our everyday interactions to make sure we aren’t discriminating against each other. I have a huge problem with that – it is a form of totalitarian thought control.

Consider the Canadian Human Rights Act which was passed five years prior to the Charter. Although the expression “human rights” is thought by most people to mean rights which all human beings possess by virtue of their humanity and which only bad governments violate, and the phrase “human rights violation” is ordinarily understood to refer to governments incarcerating people for indefinite periods without a trial, torturing them, murdering them, and the like, this Act places limits on individuals not the State, which it empowers to police the thoughts and motivations of Canadians in their private interactions with each other.

The second subsection of Section 15 states that the first subsection “does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” In other words, the State is allowed to practice discrimination on the basis of race, rational or ethnic origin, colour, religion, etc., if that discrimination is the type sometimes called reverse discrimination, that is to say, discrimination against white people, especially those of British and French stock, Christians, males, etc.

Section 15 as a whole, then, appears to authorize the State to interfere in our private affairs to prevent us from discriminating against each other, while allowing the State to practice a form of discrimination itself.

Other flaws in the Charter itself could be pointed out but those that I have mentioned here are by far the worst. Worse, in my view, than any actual flaw in the Charter, however, is the attitude towards the Charter and the set of false notions about it that the Liberal Party has encouraged us to hold ever since 1982. There are many, for example, who refer to the Charter as if it were our constitution and claim that Pierre Trudeau gave us our constitution. This is not a claim the Charter makes for itself and it is no such thing. The Charter has been a part of our constitution since 1982, but it is not the constitution itself. Indeed, even the British North America Act of 1867, which was renamed the Constitution Act, 1867 during the repatriation process which gave us the Charter but remains in effect, is not the whole of our constitution. Most of our constitution is in fact, unwritten, or, to put it another way, written in prescription and tradition rather than paper and ink. As our greatest constitution expert, the late Eugene Forsey used to say to those who made the absurd claim that Pierre Trudeau had given us our constitution, we still have the constitution we had in 1867, albeit with a new name, and bells and whistles added.

Even more common is the strange notion that the Charter itself gave us our rights and freedoms. Admirers of the Charter tend to view it this way. Some critics, such as William Gairdner (The Trouble With Canada, 1990) and Kenneth McDonald (The Monstrous Trick, 1998, Alexis in Charterland, 2004) have argued that the Charter is an example of continental-style charter law, like the Napoleonic Code, intended to replace our Common Law system of rights and freedoms. The reality is more nuanced than that. Before explaining the nuance and what really happened, we need to understand the difference between the two systems and why this would indeed be a “monstrous trick” if it were in fact true.

Under continental-style charter law, everything is imposed from the top down, from the law itself, to the rights and freedoms that exist under it. Therefore, under this kind of law, you only have the specific rights and freedoms that are spelled out on paper in black and white. The question, under this system of law, is whether or not I have permission to do something.

Under Common Law, the law is not imposed from the top down, except in the sense of the underlying natural law being laid down by God, and even then this raises the much-debated theological question of whether God’s law and justice are expressions of His character or of His will. Don’t worry. I will not attempt to answer that question here as it is quite extraneous to this discussion. The Common Law is not imposed by the State. Although the Sovereign authority, the Queen-in-Parliament, has the power to add to, subtract from, and otherwise alter the Law, the Law is not the creation of the Sovereign authority. The law arises out of natural law and justice, through a process of discovery in the courts, where disputes are brought to be arbitrated on the basis of fairly hearing all the evidence on both sides. Rights and freedoms, under Common Law, are not limited to those that are spelled out in black and white. The question, under this system of law, is whether or not I am prohibited to do something. If not, I am free to do it.

The Charter of Freedoms does not actually replace Common Law with continental-style charter law. It merely creates the impression of having done so. The Charter does not identify itself as the source of our rights and freedoms, nor does it say that we have only those rights and freedoms it spells out. Indeed, it states the very opposite of this. Remember that the addition of the Charter was part of a constitutional repatriation process that required adopting an amendment formula and which required the participation of the provincial governments. Nine out of ten of the provinces are fully Common Law, and it is the exception, which under the provisions of the Quebec Act of 1774 has a hybrid of Common Law criminal law and French civil law, which dissented from the final product. The Liberals would never have been able to get away with substituting continental law for Common Law in this context in 1982. They, quite in keeping with their modus operandi of never telling the truth when a lie will suffice, settled for creating the impression that they had done so. Their totalitarian ends would be met, as long as Canadians started to think in terms of “am I permitted” rather than “is it prohibited.”

This is why the most important section in the Charter of Rights and Freedoms is Section 26. Here it is in full:

The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.

This is the Charter’s acknowledgement, tucked away in the miscellaneous category towards the end rather than being placed in the very first section as it ought to have been, that the Charter did not take us out from under Common Law and cause all of our Common Law rights and freedoms to disappear.

To illustrate what this means in application to a current hot topic, the Supreme Court of Canada was entirely in the wrong when it said as part of its ruling in R v Hasselwander in 1993, that Canadians have no constitutional right to own guns. The passing of the Charter, by its own admission in Section 26, did not cancel our right, as subjects of Her Majesty, to have arms for our defence, such as are allowed by law. This is a Common Law right, the fifth right that Sir William Blackstone in the first volume of his Commentary on the Laws of England (1765) identified as a necessary auxiliary to the basic and absolute rights of life, liberty, and property, and which had been put into statute in the Bill of Rights of 1689. This does not mean that the Supreme Court of Canada was necessarily wrong in its ruling on this case which involved the confiscation of a Mini-Uzi sub-machine gun. It does mean, however, that it erred in saying that Canadians had no constitutional gun rights. This was in response to the defence’s own mistake of trying to argue based upon American law, but what they should have said was that Canadians’ Common Law right to own guns is not absolute, but is subject to the qualification “as are allowed by law.”

The significance of Section Twenty-Six is much larger than this however. It means that we should stop listening to all the lies of the Liberals and their supporters in the schools and media, and insist upon all of our traditional rights and freedoms as Her Majesty’s free subjects.
Posted by Gerry T. Neal at 7:41 AM Labels: Brian Mulroney, Charter of Rights and Freedoms, Common Law, Eugene Forsey, gun control, Kenneth McDonald, Liberal Party, Pierre Trudeau, Sir William Blackstone, William D. Gairdner

I Supported & Probably Still Do Support Tanya Granic Allen for PC Leader of Ontario

I Supported & Probably Still Do Support Tanya Granic Allen for PC Leader of Ontario
 
On Friday, February 23, I received this invitation from Tanya Granic Allen, a Grey County-based social conservative who has denounced the Red Tory policies of ex-leader Patrick Brown: specifically, his support for an offensive sex-ed curriculum at least partially designed by a man since convicted of possessing kiddie porn (and once a close advisor to then-Education Minister Kathleen Wynn); his support for a punishing carbon tax based on junk science; his support for  the police state anti-free speech bubble zones around abortion clinics and abortion practitioners., She was aggressive and articulate and did well on the February 15, TVOntario debate.
 
So, when I received this request, I tweeted my endorsement and mailed her off a cheque for $100!

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Frederick                                                                                                 UNSUBSCRIBE

 

 

“PC” stands for “politically correct” and is suggestive of a sort of censorship that currently afflicts the western world.

 

By coincidence, P.C. are also the initials for Progressive Conservative, the name of the largest “conservative” political party in Ontario.

 

One of my main reasons for running to be the PC Party leader is my opposition to “PC” as political correctness. And my inspiration for the fight against “PC” politically correct censorship is Ontario’s very own Jordan Peterson.

 

Although he is a tenured professor at the University of Toronto, Jordan Peterson knows about grassroots Canadians. He grew up in a farming community. And he hasn’t abandoned his commitments to common sense and plain-speaking.

 

Thank goodness.

 

And thank goodness for Lindsay Shepherd, a 24-year-old Wilfrid Laurier University grad student. Lindsay Shepherd was taken to task by the university administration for playing a recording of Jordan Peterson’s talking good, common sense about culture, families and human nature.

 

But on our university campuses and too often in the broader culture, good common sense about culture, families, and human nature is all too UNCOMMON.

 

Our universities – once bastions of free speech in Western society – have become dens of political correctness. Dens in which anyone who speaks principled, common sense is thrown to the lions!

 

Jordan Peterson and Lindsay Shepherd are bona fide, Ontario free speech heroes. They inspire me to speak plainly on behalf of families, children, and seniors, against the flood of warped cultural madness.

 

That is why in the TVO debate I spoke very plainly without dancing around the truth.

 

That is why as PC Leader I will tell you the unvarnished truth, and hold to common sense commitments about human nature, families and culture.

 

I want to be the PC Party leader who will oppose “PC” (politically correct) censorship.

 

That is why as a PC Party Premier I will bring implement policies in support of these commitments.

 

And that is why I need your support and your vote in this leadership election.

 

Conservative. For a Change,

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Tanya Granic Allen

Candidate for Ontario PC Leader

 

To SUPPORT Tanya, click HERE

To DONATE, click HERE

Then, this misleading blast appeared and the Toronto Star (February 25, 2018) did a story and got no comment from the Granic Allen campaign. That was the right approach. Candidates aer in the business of trying to win over support and voters. It hardly makes sense to turn away a supporter. As to campaign policy, that’s for Mrs. Granic-Allen to speak to. I never pretended to suggest I spoke for her campaign.

Just to set the record straight, the Klan hasn’t existed in Canada for over a decade. In its ups and downs in the late 70’s, 80s, and 90s, I never joined the Klan, was asked to join the Klan or wanted to join the Klan in Canada. As for Representative Dr. David Duke, who is a dear and longtime friend of mine, he hasn’t been in the Klan since he was 23 — well over 40 years ago!

Not surprisingly, that reddest of Red Tories, establishment parachute candidate Caroline Mulroney weighed in:

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So, White nationalism — putting the European founding/settler people of Canada first — is racist and wrong. What does that make Zionism — putting Israel first? Anti-racist actually means putting OTHERS first. Her father Brian Mulroney was a big Zionist. He played a big role in continuing the massive Third World demography-changing immigration policies followed by his Liberal predecessor Pierre Trudeau. I’m not surprised she opposes White nationalism. What a constipated view! Mulroney doesn’t even want me to vote or be a member of the party.
 
Here one might have hoped for some of the leadership Tanya had promised — standing up against political correctness and censorship.
 
But, no! On Sunday, her campaign veered into full panic mode. She did not call me to inquire if the smear from a rabid anti-free speech, far leftist group which would NEVER support her was correct. Instead, she tweeted out a near hysterical denunciation:
 


 
Actually, as already explained. I’m not a “KKK guy” and she was panicked into denouncing someone her campaign had approached for support and who had never been given a chance to refute the lies of the anti-White left. Her behaviour was disturbingly “politically correct”.
 
Well, I still have a soft spot for her and hope she can learn from Donald Trump who never succuumbed during the campaign to the mugs game of denouncing his own supporters.