{"id":4061,"date":"2020-05-31T09:54:04","date_gmt":"2020-05-31T13:54:04","guid":{"rendered":"http:\/\/cafe.nfshost.com\/?p=4061"},"modified":"2020-05-31T09:54:04","modified_gmt":"2020-05-31T13:54:04","slug":"the-most-important-section-in-the-charter","status":"publish","type":"post","link":"https:\/\/cafe.nfshost.com\/?p=4061","title":{"rendered":"The Most Important Section in the Charter"},"content":{"rendered":"\n

Throne, Altar, Liberty\n<\/a>\n<\/h1>\n\n\n\n
The Canadian Red Ensign<\/h2>\n\n\n\n
$\"The$ <\/figure>\n\n\n\n
Friday, May 8, 2020<\/h2>\n\n\n\n
\nThe Most Important Section in the Charter\n<\/h3>\n\n\n\n
\n\n\n\n\nAs I have said many times in the past, I am not an admirer of the \nCharter of Rights and Freedoms. This is not because I disagree with \nthe \u201cfundamental freedoms\u201d listed in Section 2 or the basic legal and \ncivil rights listed in Sections 7 to 13. All of these rights and \nfreedoms, which are by far the most important rights and freedoms in the\n entire document, Canadians already possessed as subjects of Her Majesty\n under Common Law before 1982. The reason I dislike the Charter is \nbecause the Charter, rather than making these rights and freedoms more \nsecure, as the Liberals who drafted it want you to believe, made them \nless secure. It includes two extremely broad loopholes.

\nThe clause \u201csubject only to such reasonable limits prescribed by law as \ncan be demonstrably justified in a free and democratic society\u201d found in\n Section 1 is the first of these. Who says what limits are \u201creasonable\u201d\n and who decides whether they are \u201cdemonstrably justified in a free and \ndemocratic society?\u201d The government that seeks to place limits on \nthese rights and freedoms cannot be trusted to make this decision \nitself.

\nThe second loophole is Section 33, the Exception Section with its \nnotorious \u201cnotwithstanding clause\u201d. This section allows the Dominion \nand provincial governments to pass Acts which will operate \n\u201cnotwithstanding a provision included in section 2 or sections 7 to 15 \nof this Charter\u201d, i.e., the sections about our fundamental freedoms and \nbasic legal rights. Although such Acts are required to sunset in five \nyears (subsection 3) they can be renewed (subsection 4). This second \nloophole is the reason former Prime Minister Brian Mulroney said, and he\n was right to say it, that the \u201cCharter is not worth the paper it\u2019s \nwritten on.\u201d

\nThis is not the only problem with the Charter.

\nSection 7 reads \u201cEveryone has the right to life, liberty and security of\n the person and the right not to be deprived thereof except in \naccordance with the principles of fundamental justice\u201d, substituting \n\u201csecurity of the person\u201d for \u201cproperty\u201d which is the third of the basic \nrights under Common Law, in which the security of person and property is\n the concise way of stating all three basic rights. Property is \nnowhere mentioned in the Charter. This has long been criticized as one\n of the chief failings of this document and has been thought to reflect \nthe Marxist inclinations of those who have led the Liberal Party, \narguably since Lester Pearson became leader in 1958, but especially \nsince Pierre Trudeau took over in 1968.

\nSubsection 2 of Section 4 allows a Dominion or provincial government \nwith a large enough backing in the House of Commons or the provincial \nlegislature \u2013 a supermajority of two-thirds \u2013 to suspend elections \nindefinitely in a time of \u201creal or apprehended, war, invasion or \ninsurrection.\u201d Note the words \u201cor apprehended.\u201d The threat of war, \ninvasion or insurrection does not have to be real. Pray that neither \nthe Liberals nor any other party, ever obtain enough seats in Parliament\n to put this subsection into effect.

\nSubsection 2 of Section 15 nullifies what subsection 1 says about how \nevery individual is \u201cequal before and under the law and has the right to\n the equal protection and equal benefit of the law without \ndiscrimination and, in particular, without discrimination based on race,\n national or ethnic origin, colour, religion, sex, age or mental or \nphysical disability.\u201d

\nI am not particularly keen on the wording of subsection 1 either. \nSaying that everyone has a right to \u201cequal protection and equal benefit \nof the law without discrimination\u201d can be interpreted in two ways. It \ncan be interpreted as binding the State, preventing it from practicing \nsaid discrimination in its administration of the law and justice. I \nwould not have a problem with that interpretation. It can also be \ninterpreted as empowering the State to interfere in our everyday \ninteractions to make sure we aren\u2019t discriminating against each other. \n I have a huge problem with that \u2013 it is a form of totalitarian thought \ncontrol.

\nConsider the Canadian Human Rights Act which was passed five years prior\n to the Charter. Although the expression \u201chuman rights\u201d is thought by \nmost people to mean rights which all human beings possess by virtue of \ntheir humanity and which only bad governments violate, and the phrase \n\u201chuman rights violation\u201d is ordinarily understood to refer to \ngovernments incarcerating people for indefinite periods without a trial,\n torturing them, murdering them, and the like, this Act places limits on\n individuals not the State, which it empowers to police the thoughts and\n motivations of Canadians in their private interactions with each other.\n

\nThe second subsection of Section 15 states that the first subsection \n\u201cdoes not preclude any law, program or activity that has as its object \nthe amelioration of conditions of disadvantaged individuals or groups \nincluding those that are disadvantaged because of race, national or \nethnic origin, colour, religion, sex, age or mental or physical \ndisability.\u201d In other words, the State is allowed to practice \ndiscrimination on the basis of race, rational or ethnic origin, colour, \nreligion, etc., if that discrimination is the type sometimes called \nreverse discrimination, that is to say, discrimination against white \npeople, especially those of British and French stock, Christians, males,\n etc.

\nSection 15 as a whole, then, appears to authorize the State to interfere\n in our private affairs to prevent us from discriminating against each \nother, while allowing the State to practice a form of discrimination \nitself.

\nOther flaws in the Charter itself could be pointed out but those that I \nhave mentioned here are by far the worst. Worse, in my view, than any \nactual flaw in the Charter, however, is the attitude towards the Charter\n and the set of false notions about it that the Liberal Party has \nencouraged us to hold ever since 1982. There are many, for example, \nwho refer to the Charter as if it were our constitution and claim that \nPierre Trudeau gave us our constitution. This is not a claim the \nCharter makes for itself and it is no such thing. The Charter has been\n a part<\/em> of our constitution since 1982, but it is not the \nconstitution itself. Indeed, even the British North America Act of \n1867, which was renamed the Constitution Act, 1867 during the \nrepatriation process which gave us the Charter but remains in effect, is\n not the whole of our constitution. Most of our constitution is in \nfact, unwritten, or, to put it another way, written in prescription and \ntradition rather than paper and ink. As our greatest constitution \nexpert, the late Eugene Forsey used to say to those who made the absurd \nclaim that Pierre Trudeau had given us our constitution, we still have \nthe constitution we had in 1867, albeit with a new name, and bells and \nwhistles added.

\nEven more common is the strange notion that the Charter itself gave us \nour rights and freedoms. Admirers of the Charter tend to view it this\n way. Some critics, such as William Gairdner (The Trouble With Canada<\/em>, 1990) and Kenneth McDonald (The Monstrous Trick<\/em>, 1998, Alexis in Charterland<\/em>,\n 2004) have argued that the Charter is an example of continental-style \ncharter law, like the Napoleonic Code, intended to replace our Common \nLaw system of rights and freedoms. The reality is more nuanced than \nthat. Before explaining the nuance and what really happened, we need \nto understand the difference between the two systems and why this would \nindeed be a \u201cmonstrous trick\u201d if it were in fact true.

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

\nUnder Common Law, the law is not imposed from the top down, except in \nthe sense of the underlying natural law being laid down by God, and even\n then this raises the much-debated theological question of whether God\u2019s\n law and justice are expressions of His character or of His will. \nDon\u2019t worry. I will not attempt to answer that question here as it is \nquite extraneous to this discussion. The Common Law is not imposed by \nthe State. Although the Sovereign authority, the Queen-in-Parliament, \nhas the power to add to, subtract from, and otherwise alter the Law, the\n Law is not the creation of the Sovereign authority. The law arises \nout of natural law and justice, through a process of discovery in the \ncourts, where disputes are brought to be arbitrated on the basis of \nfairly hearing all the evidence on both sides. Rights and freedoms, \nunder Common Law, are not limited to those that are spelled out in black\n and white. The question, under this system of law, is whether or not I\n am prohibited to do something. If not, I am free to do it.

\nThe Charter of Freedoms does not actually replace Common Law with \ncontinental-style charter law. It merely creates the impression of \nhaving done so. The Charter does not identify itself as the source of\n our rights and freedoms, nor does it say that we have only those rights\n and freedoms it spells out. Indeed, it states the very opposite of \nthis. Remember that the addition of the Charter was part of a \nconstitutional repatriation process that required adopting an amendment \nformula and which required the participation of the provincial \ngovernments. Nine out of ten of the provinces are fully Common Law, \nand it is the exception, which under the provisions of the Quebec Act of\n 1774 has a hybrid of Common Law criminal law and French civil law, \nwhich dissented from the final product. The Liberals would never have \nbeen able to get away with substituting continental law for Common Law \nin this context in 1982. They, quite in keeping with their modus \noperandi of never telling the truth when a lie will suffice, settled for\n creating the impression that they had done so. Their totalitarian ends\n would be met, as long as Canadians started to think in terms of \u201cam I \npermitted\u201d rather than \u201cis it prohibited.\u201d

\nThis 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 \nnot be construed as denying the existence of any other rights or \nfreedoms that exist in Canada.<\/em>

\nThis is the Charter\u2019s acknowledgement, tucked away in the miscellaneous \ncategory towards the end rather than being placed in the very first \nsection as it ought to have been, that the Charter did not take us out \nfrom under Common Law and cause all of our Common Law rights and \nfreedoms to disappear.

\nTo illustrate what this means in application to a current hot topic, the\n Supreme Court of Canada was entirely in the wrong when it said as part \nof its ruling in R v Hasselwander<\/a><\/em>\n in 1993, that Canadians have no constitutional right to own guns. The\n passing of the Charter, by its own admission in Section 26, did not \ncancel our right, as subjects of Her Majesty, to have arms for our \ndefence, such as are allowed by law. This is a Common Law right, the \nfifth right that Sir William Blackstone in the first volume of his Commentary on the Laws of England<\/em>\n (1765) identified as a necessary auxiliary to the basic and absolute \nrights of life, liberty, and property, and which had been put into \nstatute in the Bill of Rights<\/em> of 1689. This does not mean that \nthe Supreme Court of Canada was necessarily wrong in its ruling on this \ncase which involved the confiscation of a Mini-Uzi sub-machine gun. It\n does mean, however, that it erred in saying that Canadians had no \nconstitutional gun rights. This was in response to the defence\u2019s own \nmistake of trying to argue based upon American law, but what they should\n have said was that Canadians\u2019 Common Law right to own guns is not \nabsolute, but is subject to the qualification \u201cas are allowed by law.\u201d

\nThe significance of Section Twenty-Six is much larger than this however.\n It means that we should stop listening to all the lies of the \nLiberals and their supporters in the schools and media, and insist upon \nall of our traditional rights and freedoms as Her Majesty\u2019s free \nsubjects.
\n\n\n\n\n\nPosted by\n\n\n\nGerry T. Neal\n<\/a>\n\n\n\nat\n\n 7:41 AM<\/abbr><\/a>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\nLabels:\n Brian Mulroney<\/a>,\n Charter of Rights and Freedoms<\/a>,\n Common Law<\/a>,\n Eugene Forsey<\/a>,\n gun control<\/a>,\n Kenneth McDonald<\/a>,\n Liberal Party<\/a>,\n Pierre Trudeau<\/a>,\n Sir William Blackstone<\/a>,\n William D. Gairdner<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"
Throne, Altar, Liberty 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 … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[1272,169,2225,1381,1665,2226,1003,2227,2224,2228],"_links":{"self":[{"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=\/wp\/v2\/posts\/4061"}],"collection":[{"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=4061"}],"version-history":[{"count":1,"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=\/wp\/v2\/posts\/4061\/revisions"}],"predecessor-version":[{"id":4062,"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=\/wp\/v2\/posts\/4061\/revisions\/4062"}],"wp:attachment":[{"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=4061"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=4061"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=4061"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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