Arjun Singh: Left wing values have invaded Canada’s legal system and diminished our charter rights

Arjun Singh: Left wing values have invaded Canada’s legal system and diminished our charter rights

[Social justice warriors now dominate our judiciary and are making the always limited guarantees of individual rights in Pierre Trudeau’s Charter a joke. Far from protecting free speech or freedom of movement, the Courts have endorsed massive state repression as long as it advances “equity” and other leftist goals. — Paul Fromm]

Why Canada should abolish Section 1 Author of the article: Arjun Singh, Special to National Post Publishing date: Sep 23, 2021  •  1 day ago  •  4 minute read  •  368 Comments

The Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms Photo by The Canadian Press

By all accounts, vaccine passports are here. Quebec, with the most provincial chutzpah, first introduced them, and B.C. followed suit. As have Ontario and Alberta, after Doug Ford’s U-turn from his “Hard no” earlier this year and Jason Kenney’s similar opposition. Outside government, scores of businesses are mandating vaccinations for employees, with proof being required — else, they be terminated.

One would think, in governments’ cases, that the law would safeguard citizens’ freedoms. Indeed, the Charter of Rights and Freedoms states that Canadians have the “freedom of conscience and religion” (Section 2a), freedom of movement within Canada (Section 6) and “equal protection … before the law” (Section 15). At the very least, this would prevent the imposition of vaccine passport requirements on citizens — vaccinated or otherwise — for travelling, let alone while accessing basic services: for most charter rights are fundamental. Quebec’s programme and the Trudeau Liberals’ recent federal vaccine mandate for flights and trains, thus, ought to be dismissed.

Arjun Singh: Left wing values have invaded Canada’s legal system and diminished our charter rights

But this is Canada: where, for years, left-wing Liberal values have slowly invaded our legal system. This was true for Trudeau’s father, Pierre Elliot, as it is now. Hence, in 1982, when the charter was introduced, its first section included the following proviso: “The Canadian Charter … guarantees the rights and freedoms set out subject only to reasonable limits … as can be justified in a free and democratic society.” In essence, the charter rights of anyone may be limited for what the state considers “reasonable.”

By itself, this clause is only partly dangerous. Absolute freedom, in any context — especially if causing physical harm — is undesirable; as the ever-pithy Oliver Wendell Holmes Jr. said, “the right to swing your fist ends at the tip of my nose.” But, as most would agree, allowing the government to judge whether its own acts are “reasonable” is, itself, an invitation for power to abuse such privilege. From Quebec’s strict curfews to Ontario’s police crackdowns, the pandemic and its oppressive responses in the name of “science” have laid that truth bare.

In response, one would expect the courts, upon petition, to step in and stop government overreach, being the constitution’s supposedly “non-partisan” referees. Until 1986, in Canada, that was true — until left-wing jurists, after rewriting the law, captured the judiciary that interpreted them. That year the Supreme Court, in a unanimous decision by Trudeau appointees, established the Oakes Test in R. v. Oakes to determine what restrictions on charter rights were “reasonable.” Among others, it allowed the curbing of charter freedoms in the name of “a commitment to social justice and equality” and “respect for cultural and group identity.”

With this decision, a faction of activist judges — seeing the constitution as a ‘living tree’ to be pruned without the people’s consent — reset the foundations of freedom overnight, bending them towards progressive politics. Instead of having minimal restraints for public order, all charter freedoms could now be legally impeded in the name of contested left-wing concepts like “social justice” and protecting “group identity.”

Worse, neither did the court define what these terms meant, enabling the left — via its dominance of social science academia — to influence their meanings, suiting the moment’s political objectives. As its late Chief Justice, Antonio Lamer, himself said, Section 1 empowered judges to “make essentially … a political call.” In effect, the constitutional “referees” changed the rules mid-game, to ensure their side would always win.

Thus, with Oakes, the dangers of Section 1 were fully unleashed, and have since beat a toll on Canadians’ civil liberties — capturing our constitution for the supremacy of “woke” social mores. “Whoever would overthrow a nation must begin by subduing the freedom of speech,” said Benjamin Franklin; and, true to form, it was one of the first casualties. In the Keegstra and Andrews decisions, the Supreme Court used Section 1 to allow the criminalization of speech “inciting hatred” — an ambiguous offence, at best, which effectively curbs free speech for the sake of hurt feelings. Once more, in the Little Sisters case, Section 1 rubber-stamped the Chretien Liberals’ banning of LGBTQ books’ import for their “obscenity.” This spate has continued, with governments and courts in concert over the years using Section 1 to curb the presumption of innocence until proven guilty (R. v. Stone), conservatives’ participation in elections (Harper v. Canada) and, most recently, to ban travel by citizens during COVID-19 (Taylor v. The Queen).

In defending such overreach on the charter, the progressive establishment has often asserted the notion of “collective rights” as the reason for restraining individuals, e.g., “safe spaces” precluding free speech to avoid public offence. There are few greater absurdities than this; “rights” exist to protect individuals and minorities from tyranny of the majority, which — with strength in numbers — needs no further safety in a democracy. By claiming a “collective right” of any kind, the Canadian left turns the very notion of rights on its head. It is legal fiction at best, and a neo-Marxist praxis at worst — a desperate attempt to stir up “class conflict” between the majority and minority where none ought to exist.

In the future, it’s highly likely that Section 1 will be used again to uphold encroachments upon citizens’ rights — from vaccine passports to online censorship (e.g., Bill C-10) and others. Canadians must, hence, stand on guard for thee and expunge this threat — regardless of the high bar for constitutional change. If Section 1 is the end of charter rights, we must end it, first.

Arjun Singh is a recent graduate of political science from the University of Toronto.

Rex Murphy: Liberals’ dangerous arrogance didn’t begin and won’t end with internet-regulation bill

Rex Murphy: Liberals’ dangerous arrogance didn’t begin and won’t end with internet-regulation bill

Only a PM and a bunch that carry the delusion they are all-wise and ever-right could have conceived Bill C-10 Author of the article: Rex Murphy Publishing date: May 03, 2021  •  2 days ago  •  4 minute read  •  714 Comments

Prime Minister Justin Trudeau listens to a question during a news conference in Ottawa on April 30, 2021. The attempt by the Liberal government to regulate the internet through Bill C-10 needs to be stopped, writes Rex Murphy.
Prime Minister Justin Trudeau listens to a question during a news conference in Ottawa on April 30, 2021. The attempt by the Liberal government to regulate the internet through Bill C-10 needs to be stopped, writes Rex Murphy. Photo by Adrian Wyld/The Canadian Press

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The all-knowing Liberals put up a tactical white flag when the national storm of who-the-hell-do-you-think-you-are swept over them concerning their attempt to regulate the internet.

Debate on a Conservative motion related to Bill C-10 was shut down, though the Liberals said Monday the bill will now be amended so social media posts are not regulated. What is more galling and more threatening than the bill itself however, is the set of mind behind it.

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The bill may die or be weakened. The thinking that spawned it will remain.

The thinking that spawned it will remain

C-10, an attempt to put a pillow over the free expression of all Canadians, didn’t pop up gopher-like out of the policy burrow of a second-tier Cabinet minister. Quite the contrary. This nefarious nugget was obviously the product of the top-rank philosophes of the Prime Minister’s Office, that sensorium of the whole Liberal party, from which emerges guidance and wisdom to elevate the lives and labours of ordinary Canadians, all set out with the confidence of a closed-minded pope.

And who are the great thinkers who birth such a creature? Why they are a band of intellects unmatched since the days of ancient Greece when Plato founded his academy, and young Socrates and his buddy Aristotle were offering home tutorials at the bargain rate of a drachma a syllogism. Their business card was terse: You learn; we earn. The wokemeisters in the PMO and the Wokemeister-in-Chief, Justin Trudeau, haven’t reached the business card stage, but post-power, you may be sure they will. There are Oprah shows to come, and star invitations to Davos and the IPCC yet to be forwarded in gilded envelopes with computer-generated handwriting.

Attend to this. This retrograde and democracy-denying bill emerged from the heights, out of the thin altitude where the prime minister dwells, and wherein the various wizards and shamans, the praetorian guard of top advisers, hatch their schemes, knit their plots, and advance the Leader’s dearest notions.

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Only a PM and a bunch that carry the delusion they are all-wise and ever-right, that they alone and only they, should have rule and command over the thoughts and opinions of a whole nation, could have conceived Bill C-10. Could have put their lawyers to work composing it, then waltzed into Parliament to put it on the Order paper in the first place.

What 21st-century government, aware of speech and thought control in the great and cruel totalitarian governments of the past century, and their cruel brethren of the 21st — Communist China, sinister North Korea, Iran — every tyranny or dictatorship on the globe — would wish to ape and mirror the central characteristic of all such regimes?

All of them ruled and rule today by censorship, monitoring citizens’ thoughts and writing, even private conversation. Speech controls breed a nation of spies.

Bill C-10 may be a kitten-mischief compared with the hideous savageries of full-blown tyrannies. But great oaks out of little acorns grow. Beware the seedlings of thought and speech control. Which is another way of saying do not let governments even toy with the fundamentals of democratic understanding and the absolutes of democratic practice.

Beware the seedlings of thought and speech control

Here’s another observation: a government that yearns to censor, to pry and oversee the speech and thought of its citizens, doesn’t trust its citizens. And believes therefore it has a right to herd them into holding opinions that their wiser, smarter and obviously more progressive government tells them they must have. It’s a marvellous instance of political conceit.

Their “reasoning” preceding the drawing up Bill C-10, may easily be imagined. It would go something like this:

“Well, they (meaning the citizenry) elected us (meaning the Liberal party). And we, therefore being superior beings, now have the right to bring them up to our standards of respectable thought and acceptable opinion. We will wipe clean the moral blackboard. And lay out for the voters what the voters are allowed to say, and what they must say. Call it Cuba in a cold climate.

“We will also then apologize for their forebears, for those morally-numb pioneers who built the house of iniquity we know as Canada. We will deplore every past prime minister who was sadly neither as tolerant nor as knowing as we, Deo gratias, are. Going ahead as progressives, let us insist on the right to declare the ideas Canadians should have, and put a block on those they cannot be allowed to have. And let us be grateful that this is the one administration, the first since 1867, with the wit and moral savvy to recognize what was deficient in all who went before us. All of course save one.”

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The mindset is more dangerous than the bill

There, in speculative and imagined dialogue, is the voice of the mindset behind C-10. And the mindset is more dangerous than the bill: an assertion that this government knows what’s best and has the right to impose its ideas of what is right on everyone else. This is the new religion of woke.

They may have suspended the charge up the hill to put C-10 into law. But they have not unroped themselves from the attitudes and intentions behind it. The mindset behind C-10 is more consequential than the bill which issued from it. That this band of woke virtuecrats understand themselves as better, more clever and ever how entitled to impose all the imperatives of their virtue commandments on you.

I’ll end with the words of one who was previously vice-chairman of the CRTC, Peter Menzies. C-10 “doesn’t just infringe on free expression, it constitutes a full-blown assault upon it and, through it, the foundations of democracy.” Well said, Mr. Menzies.

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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