The Most Important Section in the Charter

Throne, Altar, Liberty

The Canadian Red Ensign

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

Criminal Offence of Knowingly Spreading Misinformation about the Coronavirus – A Video With Paul Fromm

A Criminal Offence of Knowingly Spreading Misinformation about the Coronavirus –  A Video With Paul Fromm



https://www.bitchute.com/video/uzU8an1sbdJH/

Paul Fromm warns us about the Canadian Liberal Party considering making it a Criminal Offence to Knowingly Spread Misinformation about just the coronavirus or what?
Paul has been the  Director of the Canadian Association for Free Expression since 1983. CAFE is dedicated to Free Speech, Immigration Reform, and Restoring Political Sanity. The website can be found at http://cafe.nfshost.com

Paul is also the Director of the Canada First Immigration Reform Committee at: http://canadafirst.nfshost.com/

Paul lives in Hamilton, Ontario, Canada and you can contact him at
paul@paulfromm.com .

He has been an active leader on the Canadian right for 50 years and has a steel trap memory so he is a treasure and resource of information and history.

Captain Airhead Strikes Again!

THE CANADIAN RED ENSIGN

The Canadian Red Ensign

SATURDAY, JUNE 24, 2017

 

Captain Airhead Strikes Again!

It has been almost two years since a gullible Canadian electorate was duped into giving the Liberal Party a majority government in the last Dominion election. This means that that government, headed by Captain Airhead, is approaching the half-way point in its four year mandate. It has recently been reported that the Grits have passed less than half the legislation in that time than the previous Conservative government had. This is not surprising. The Prime Minister has been far too busy flying around the world, handing out money, and looking for photo-ops, all at the taxpayers’ expense, to actually do the job of governing the country. John Ibbitson, writing in the Globe and Mailmade the observation that “the amount of legislation a Parliament creates matters less than the quality of that legislation.” As true as that is, the quality of the bills the Trudeau Grits have passed is enough to make one wish that they had, the moment they were sworn in, called a term-length recess of Parliament and sent every member on a four-year paid Caribbean vacation.

One example of this is Bill C-16, which passed its third-reading in the Senate on Thursday, June 15th and which was signed into law by the Governor-General on Monday, June 19th. Bill C-16 is a bill which amends both the Canadian Human Rights Act and the Criminal Code. To the former it adds “gender identity or expression” to the list of grounds of discrimination prohibited by the Act. To the latter it adds the same to Section 318, the “hate propaganda” clause of the Code. The Canadian Human Rights Act and Section 318 of the Criminal Code were both inflicted upon us by the present premier’s father in his long reign of terror and it would have been better had the present Parliament passed legislation striking both out of existence rather than amending them to increase the number of ways in which they can be used to persecute Canadians. When, a century and a half ago, the Fathers of Confederation put together the British North America Act which, coming into effect on July 1, 1867, established the Dominion of Canada as a new nation within what would soon develop into the British Commonwealth of Nations, their intention was to create a free country, whose citizens, English and French, as subjects of the Crown, would possess all the freedoms and the protection of all the rights that had accumulated to such in over a thousand years of legal evolution. The CHRA and Section 318 do not belong in such a country – they are more appropriate to totalitarian regimes like the former Soviet Union, Maoist China, and the Third Reich.

The CHRA, which Parliament passed in 1977 during the premiership of Pierre Trudeau, prohibits discrimination on a variety of grounds including race, religion, sex, and country of origin. It applies in a number of different areas with the provision of goods and services, facilities and accommodations, and employment being chief among them. Those charged with enforcing this legislation have generally operated according to an unwritten rule that it is only discrimination when whites, Christians, and males are the perpetrators rather than the victims, but even if that were not the case, the very idea of a law of this sort runs contrary to the basic principles of our traditional freedoms and system of justice. It dictates to employers, landlords, and several other people, what they can and cannot be thinking when conducting the everyday affairs of their business. It establishes a special police force and court – the Canadian Human Rights Commission and Tribunal respectively – to investigate and sit in judgement upon those private thoughts and prejudices. Those charged do not have the protection of the presumption of innocence because the CHRA is classified as civil rather than criminal law.

There are more protections for defendants under Section 318 because it is part of the Criminal Code but it is still a bad law. Incitement of criminal violence was already against the law long before Section 318 was added. It is not, therefore, the incitement of criminal violence per se that Section 318 was introduced to combat, for the existing laws were sufficient, but the thinking and verbal expression of thoughts that the Liberal Party has decided Canadians ought not to think and speak.

Bill C-16 takes these bad laws and makes them even worse. By adding “gender identity and expression” to the prohibited grounds of discrimination the Liberals are adding people who think and say that they belong to a gender that does not match up with their biological birth sex to the groups protected from discrimination. Now, ordinarily when people think they are something they are not, like, for example, the man who thinks he is Julius Caesar, we, if we are decent people, would say that this is grounds for pity and compassion, but we would not think of compelling others to go along with the delusion. Imagine a law that says that we have to regard a man who thinks he is Julius Caesar as actually being the Roman general! Such a law would be crazier than the man himself!

Bill C-16 is exactly that kind of law. Don’t be fooled by those who claim otherwise. The discrimination that trans activists, the Trudeau Liberals and their noise machine, i.e., the Canadian media, and everyone else who supports this bill, all want to see banned, is not just the refusing of jobs or apartments to transgender people but the refusal to accept as real a “gender identity” that does not match up with biological sex. Dr. Jordan Peterson, a professor at the University of Toronto who has been fighting this sort of nonsense at the provincial level for years, and who testified against the Bill before the Senate committee that reviewed it, has warned that it could lead to someone being charged with a “hate crime” for using the pronoun – “he” or “she” – that lines up with a person’s birth sex, rather than some alternative pronoun made-up to designate that person’s “gender identity.” Supporters of the bill have mocked this assertion but we have seen this sort of thing before – progressives propose some sort of measure, someone points out that the measure will have this or that negative consequence, the progressives ridicule that person, and then, when the measure is passed and has precisely the negative consequences predicted, say that those negatively affected deserved it in the first place.

Indeed, progressive assurances that Peterson’s fears are unwarranted ring incredibly hollow when we consider that the Ontario Human Rights Commission has said that “refusing to refer to a trans person by their chosen name and a personal pronoun that matches their gender identity” would be considered discrimination under a similar clause in Ontario’s provincial Human Rights Code, if it were to take place in a context where discrimination in general is prohibited, such as the workplace. Bruce Pardy, Professor of Law at Queen’s University, writing in the National Post, explains that this new expansion of human rights legislation goes way beyond previous “hate speech” laws in its infringement upon freedom of speech. “When speech is merely restricted, you can at least keep your thoughts to yourself,” Pardy writes, but “Compelled speech makes people say things with which they disagree.”

It is too much, perhaps, to expect Captain Airhead to understand or care about this. Like his father before him – and indeed, every Liberal Prime Minister going back to and including Mackenzie King – he has little to no appreciation of either the traditional freedoms that are part of Canada’s British heritage or the safeguards of those freedoms bequeathed us by the Fathers of Confederation in our parliamentary government under the Crown. For a century, Liberal governments have whittled away at every parliamentary obstacle to the absolute power of a Prime Minister backed by a House majority. The powers of the Crown, Senate, and the Opposition in the House to hold the Prime Minister and his Cabinet accountable have all been dangerously eroded in this manner. Last year the present government attempted to strip Her Majesty’s Loyal Opposition of what few means it has left of delaying government legislation. The motion in question was withdrawn after the Prime Minister came under strong criticism for behaving like a spoiled, bullying, petty thug in the House but it revealed his character. These Opposition powers are a necessary safeguard against Prime Ministerial dictatorship but Captain Airhead, the son of an admirer of Stalin and Mao, regards them, like the freedoms they protect, as an unacceptable hindrance to his getting his way as fast as he possibly can. Years ago, George Grant wrote that the justices of the American Supreme Court in Roe v Wade had “used the language of North American liberalism to say yes to the very core of fascist thought – the triumph of the will.” This is also the modus operandi of Captain Airhead and the Liberal Party of Canada.