I have never thought very highly of Canada’s Charter of Rights and Freedoms which was added to our constitution in 1982. Note the wording there. The Charter is not itself our constitution but merely a part of it and a late addition at that. Those who make the mistake of calling the Charter itself our constitution have bought in to the American superstition that a constitution is a piece of paper that keeps a government from going bad through its magical powers. A constitution is a country’s system of law and government, the institutions that comprise it, and the traditions that inform their motions. The largest part of it is unwritten and this is true even in the American republic. Documents like our Charter of Rights and Freedoms and the one the Americans call their Constitution are merely parts of the Canadian and American constitutions respectively. They are the laws that define and set limits to the power of government institutions. They have no power to keep government within those limits apart from the loyalty of those who hold public office in obeying them, the willingness of the courts to uphold them, and the faithful vigilance of the public.
My low estimation of the Charter of Rights and Freedoms is not because I don’t like the rights and freedoms that are listed in that document. With a few exceptions, such as the “equality rights” written in Animal Farm style doublespeak in Section 15, these are rights and freedoms that I consider to be among the most valuable elements of our Common Law tradition. It is rather because the Charter has made these rights and freedoms less secure rather than more. In part this is due to flaws in the Charter itself such as the “notwithstanding clause” in Section 33 and the broad loophole in Section 1 which effectually nullify the Charter as far as the whole point of constitutionally protected rights and freedoms, that is to say that they are supposed to limit what the government can do so as to protect us from the abusive exercise of its powers, goes. The Charter’s loopholes and exceptions protect the government instead of us and for this reason former Prime Minister Brian Mulroney was right to say that it is not worth the paper it is written on. It is also, however, because the Charter has encouraged a way of thinking about our rights and freedoms in a way that is the fundamental opposite of that which has historically belonged to our Common Law and traditional institutions of constitutional monarchy and parliament. It encourages us to think of our rights and freedoms as privileges bestowed upon us by government to be limited or taken away by government freely as it sees fit, rather than our own property.
The consequences of this way of thinking having become pervasive have been most evident over the course of the last year. Section 2 of the Charter identifies four freedoms as being fundamental. The first of these is freedom of conscience and religion. The third is the freedom of peaceful assembly. The fourth is the freedom of association. The whole point, remember, of having the Charter designate these freedoms as essential is to place limits on government power, to tell the government that it must keep its hands off of these things. Yet ever since the World Health Organization declared the spread of the Wuhan bat flu to be a pandemic last March, our provincial governments have treated these freedoms as if they were completely non-existent, much less fundamental and protected by constitutional law and the Dominion government has constantly been urging the provincial governments to clamp down on us in violation of these freedoms in even more severe ways.
In 1986 the Supreme Court of Canada ruled in the case of R v Oakes. David Oakes had been arrested with drugs in his possession and under what was then Section 8 of the Narcotics Control Act was presumed to be guilty of trafficking. He challenged the constitutionality of Section 8 on the grounds that it violated the presumption of innocence, a civil right spelled out in Section 11 (d) of the Charter and which had been long established as part of the Common Law tradition. That the provision of the NCA being challenged did indeed violate the civil right in question was easily demonstrated, but the Court then had to decide whether the violation was justifiable under the “reasonable limits” loophole in Section 1 of the Charter. The Court’s ruling established what has ever since been the litmus test for this question. The Court ruled that for a law which violates a Charter right or freedom to be justifiable under the “reasonable limits” clause, it first had to have a “pressing and substantial” goal. Second, it had to meet the three qualifications of a) being “rationally connected” to the goal of the law, b) only impairing the rights and freedoms in question minimally, and c) not overwhelming the benefit hoped to be achieved with its negative effects.
It is quite obvious that the public health measures fail to meet the second of the three qualifications of the second part of the Supreme Court’s Oakes’ test. When the public health officer tells you that you cannot have any visitors to your home, even if you meet outside, as is currently the case in Manitoba, he is clearly not trying to only “minimally impair” your freedom of association. What he is doing is disregarding freedom of association entirely. The provincial legislature is not allowed to do this constitutionally, nor can it delegate to the public health officer the authority to do so. The legislature cannot delegate what it does not legitimately possess itself. When the public health officer orders churches, synagogues, and mosques not to meet for the largest part of a year, cancels the most important festivals of these religions, and only permits re-opening at a severely reduced capacity that requires churches to betray the tenets of their own faith and turn worshippers away, he is similarly disregarding freedom of conscience and religion rather than making sure that his orders only “minimally impair” this freedom. There is also plenty of evidence that the public health orders fail to meet the third qualification of the Oakes’ test as well. The costs of lockdowns, measured in the destruction of lives due to the breakdown of mental health and the rise in substance abuse and suicides, the erosion of community and social capital, and the devastation of businesses and livelihoods, has been tremendous and far exceeds any questionable benefits of these insane, unjust, evil and oppressive restrictions. Indeed, I believe the case could be made that the public health measures fail every single element of the Oakes’ test.
The provincial governments have gotten away with all this stercus tauri because they have until fairly recently met with only minimal resistance on the part of the Canadian public. This can be attributed to a number of causes. One of these, of course, is the hysterical and irrational fear generated by the mainstream corporate media that have been deceitfully and despicably portraying a virus that produces no to mild symptoms in most people who contract it, from which the vast majority of people who actually do get sick recover, and which in many if not most jurisdictions has an average age of fatality that is higher than the average expected lifespan of the general public, as if it were the second coming of the bubonic plague. Another cause is the new attitude which has been encouraged among Canadians, especially by the Liberals, since 1982, of regarding our rights and freedoms as privileges bestowed upon us by the government in the Charter rather than what they are, our lawful property as free subjects of the Crown which it is the government’s duty to respect.
The assault on our freedoms of religion, peaceful assembly, and association have come from the provincial governments. At the same time the second of the four freedoms designated as fundamental in the Charter has come under attack from the Liberals who are in power in the Dominion government. This is the freedom of “thought, belief, opinion and expression”. Whereas our freedoms of religion, peaceful assembly, and association have never been this besieged before in Canadian history, our freedom of thought, belief, opinion and expression has taken hits every time the Liberal Party led by a Trudeau has come to power in Ottawa. It has been less than ten years since we finally got rid of one of the vilest elements of Pierre Trudeau’s legacy, the notorious Section 13 of the Canadian Human Rights Act. While the entire Canadian Human Rights Act of 1977 is, in fact, an affront to freedom of thought because, despite its title, it has nothing to do with protecting our rights either as Canadians or human beings from government abuses, but is instead all about prohibiting the crimethink of discrimination on the part of individual Canadians, Section 13 was the Act’s worst provision by far. By defining any electronic communication of information “likely to” expose someone protected against discrimination “to hatred or contempt” as an act of discrimination it in effect forbade all negative criticism of groups protected against discrimination or individuals belonging to such groups, regardless of the truthfulness or justice of the criticism in question.
Section 13 was finally abolished during the premiership of Stephen Harper thanks to a private member’s bill repealing the foul section that received enough support from Conservative MPs and Liberal MPs of the pre-Trudeau variety – these had not yet been purged from the party – to pass Parliament. Neither Stephen Harper nor his Minister of Multiculturalism, Jason Kenney, who is currently overseeing the throwing of pastors in gaol and the barricading of churches in Alberta, had much to do with this for although they had spoken out against Human Rights Tribunals and their unjust infringement upon freedom of thought and speech on their road to power, in office they betrayed most of what they had once stood for, apparently having sold their souls to get there. The demise of Section 13 has long been lamented by Pierre Trudeau’s son, Captain Airhead, and when he became Prime Minister in 2015 he dropped a number of hints that he would be seeking to revive it. The appeal of Section 13 to Captain Airhead was based on more than just the fact that it had been originally introduced when his father was in power. More than any previous Liberal leader, Captain Airhead has been of the mindset that once a progressive goal has been attained, all debate about it ought to cease. This was evident even before he became Prime Minister when he purged the party of its pro-life members. More than any previous Liberal leader, he has enthusiastically endorsed fringe progressive causes that could not possibly achieve widespread popular support on their own merits without measures that intimidate and suppress dissenters. More than any previous Liberal leader he has been prone to tell Canadians who disagree with him that they are not welcome in their own country. He has used the expression “there is no place for X in Canada” far more liberally than any previous leader and with a much wider range of Xs. (1) In all of this he has demonstrated the sort of sick, censorious, mindset to which something like Section 13 appeals. In December of 2019, after he won re-election in the sense that he managed to squeak out a plurality despite falling majorly in the polls from where he had been four years previously, he instructed his Cabinet that fighting online “hate speech” would be one of their priorities in the new session of Parliament. Heritage Minister Steven Guilbeault was specifically charged with finding a way to force social media platforms to remove what the Liberals consider to be “hate speech” within twenty-four hours of being told by the government to do so. This would be Section 13 magnified to the nth degree.
In response to this directive, Guilbeault came up with a bill that pursued the same goal as Section 13 through a different avenue. Last November he introduced Bill C-10, or “An Act to Amend the Broadcasting Act” into Parliament. This bill if passed would place internet media under the same regulatory authority of the Canadian Radio-Television and Telecommunications Commission (CRTC) as older electronic media such as radio and television broadcasters. By going this route, Guilbeault could maintain that his goal was not to censor what individual Canadians post on the internet, but to ensure that the companies that make shows and movies available through online streaming follow the same Canadian content guidelines as other broadcasters, a goal consistent with his portfolio as Heritage Minister. That having been said, the Bill as originally drafted would have given the CRTC regulatory authority over individual Canadians’ user-generated content on social media. When objections to this were raised the Bill was amended to include an exception for individual user-generated content, but this exception was removed in committee late last month around the same time that the government moved to shut down debate on a motion that the Conservatives had introduced calling for a review of whether or not the bill violated the Charter. None of this inspires much confidence in the Heritage Minister’s claim that the aim of this bill is cultural protectionism and not censorship of thought. On Monday, faced with backlash over all of this, Guilbeault promised that they would make it “crystal clear” that the user-generated content will not be subjected to the same sort of regulatory control as television programming. Needless to say, he ought not to be taken at his word on this. Indeed, Michael Geist, the law professor at the University of Ottawa who has been one of the foremost critics of Bill C-10, has already said that the amendment the Heritage Committee proposed on Thursday evening fails to follow through on Guilbeault’s promises.
It is worth observing here that with Bill C-10, Captain Airhead and Steven Guilbeault have returned to the very first thing the original Trudeau Liberals did to control the minds of Canadians and limit their freedom of thought. At the very beginning of the first Trudeau premiership the Right Honourable John G. Diefenbaker pointed out how the Liberals were threatening freedom of thought through the powers of the CRTC. In a speech entitled “The Twilight of Liberty”, the second included in the collection Those Things We Treasure (Macmillan, 1972), Diefenbaker said:
The Trudeau Government seems to be dedicated to controlling the thinking of Canadians. Through the power being exerted by Pierre Juneau, as Chairman of the Canadian Radio and Television Commission, (2) private radio and T.V. station proprietors in Canada are frightened to speak, fearful of being subject to the cancellation of their licences. One such station was CKPM in Ottawa, which dared to have an open line program critical of the Government. Pierre Juneau did come before a Committee of the House and he uttered lachrymose words in reply to the criticism leveled at him that he wishes to determine what Canadians shall hear, and to deny them the right to listen to what they will. His attitude was different when he spoke to the Association of Private Broadcasting Companies and in effect stated: “When I ope my lips, let no dog bark.” Under him the broadcasting network owned by the people of Canada is allowed to broadcast what he permits.
Diefenbaker’s warning of decades ago has gone largely unheeded, perhaps because the CRTC’s official raison d’être is cultural protectionism which appeals to a much broader range of Canadians than its more covert purpose of limiting freedom of thought. Certainly right-of-centre Canadians of the more traditional variety, such as Diefenbaker himself or this writer, would have no objections to the idea that Canadian culture ought to remain Canadian. It needs to be pointed out, however, that the CRTC has been a total failure in this regards. Fifty-three years later, the Canada of 2021 is far more Americanized culturally than the Canada of 1968 was. Indeed, much of what Canadians regard as distinctly “Canadian” culture today, is merely Hollywood culture with a maple leaf stamped on it. Read the novels of Mazo de la Roche and Robertson Davies if you want a taste of the more authentic pre-CRTC Canadian culture. Since the CRTC failed in its official appointed task, probably because its real purpose was thought control all along, there is hardly grounds here for extending its reach over the new online media. Indeed, the scarcely disguised agenda of censorship and thought control behind the move to so extend its reach, is sufficient reason why this bill, amended or otherwise, must never be allowed to pass. It is also more than sufficient reason for voting the Trudeau Liberals who dreamed it up in the first place out of Parliament and never allowing them to resume power again. For as Rex Murphy pointed out earlier this week, “What is more galling and more threatening that the bill itself, however, is the set of mind behind it”, and that won’t go away even if the bill itself does.
(1) Disturbingly, the leaders of the other parties – including the present leader of the Conservatives – have taken to aping his example in this.
(2) The full name of this agency was changed into the awkward and absurd redundancy that it is now in 1976, but the acronym remains the same.
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