Freedom Under Siege

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.

Crown, Parliament, and Common Law

I have argued several times in the past that it is Parliament the concrete institution that we should cherish and treasure and not "democracy" the abstract ideal. This is a point that is well worth repeating in this troubling moment. Liberals, progressives, and neo-conservatives such as those who write for the Postmedia/Sun newspapers nearly always speak in terms of the abstraction, democracy, when defending our form of government. The present crisis, however, demonstrates that it is the concrete institution that is most important.


Last week, Parliament was set to return from adjournment on April 20th. The Prime Minister told the press that it would be "irresponsible" for Parliament to resume in full session in the midst of the pandemic. Andrew Scheer, the Leader of Her Majesty's Loyal Opposition, came to the defence of Parliament's right and duty to hold the Prime Minister and Cabinet accountable. The Prime Minister dug in and insisted upon an arrangement that would make him and his ministers far less accountable to Parliament than what Scheer was pushing for. With the help of the far left minority parties, the Prime Minister ended up getting his way.


Writers from a broad spectrum of political opinion, from the centre-right commentator familiar from every major news medium, print, radio, and television, Rex Murphy, to the former leader of the socialist party Thomas Mulcair, rightly criticized the government over this, arguing correctly that in this crisis we need more accountability from the government rather than less. They did not comment on the dark symbolism of the fact that the Prime Minister's demanding and getting these arrangements that would reduce his own accountability to Parliament fell on the anniversary of the birth of the most notorious tyrant of the twentieth century. Perhaps they felt it would be unfair to draw attention to this coincidence. Earlier this year, however, when the Prime Minister tried to sneak provisions into an Emergency Spending Bill that would have given his Finance Minister unlimited tax and spend powers for which he would not be accountable in Parliament for two years, provisions that attacked the very foundation of Parliament itself, the Magna Carta and the "no taxation without representation" principle enshrined within it, he released the proposed bill on March 23rd. He hoped Parliament would rush it through in a unanimous one day vote on the next day. Mercifully the Opposition stood their ground, he was forced to back down that time and the Emergency Spending Bill, sans most of his power grab, was passed on Lady Day. The day when he sent out the first draft was the anniversary of the Enabling Act of 1933 - a bill which gave the new German Chancellor enhanced emergency powers to act independent of the Reichstag. That Chancellor was the same notorious tyrant born on April 20th. How many times does this sort of coincidence have to happen before it is no longer coincidence but the Prime Minister rubbing his dictatorial aspirations in our faces?


The abstract ideal of “democracy” can be easily reconciled with tyranny and dictatorship. The wisest of the ancients, Socrates, Plato and Aristotle, all knew and taught, that democracy was the mother of tyranny. The man who is often credited with being the father of Modern democracy, Jean-Jacques Rousseau, is also known as the father of totalitarianism. Adolf Hitler, the tyrant referred to in the previous paragraph, was not only elected into office, but governed with the enthusiastic support of a vast majority of his people which he did not lose until the tide of war turned against him.


It is much harder to reconcile the ancient institution of Parliament, which has stood the test of time and proven itself over and over again, with tyranny and dictatorship. Dictators hate parliaments. It is no wonder that the Liberal Party, which was working towards establishing Prime Ministerial dictatorship even before it was infiltrated and taken over by ideological Communists in the 1960s, prefers to speak in terms of democracy.


If more Canadians had a greater appreciation for our traditional institutions, such as Parliament, there would be far greater outrage over what the Prime Minister has been trying to do, and we would be in far less danger of losing these institutions and the heritage of rights and freedoms which stands and falls with them.


In the Dominion of Canada – if you check the opening preamble and Section three of the British North America Act you will see that, unlike my calling what was renamed the “Constitution Act, 1867” in 1982 by its original title, “Dominion of Canada” is not merely a deliberate anachronism but is and remains to this day the full self-chosen title and name of this Commonwealth realm – our government is a parliamentary monarchy, modelled after the mother Parliament in Westminster. This constitution, more than any other the world has ever seen, embodies the concept of a mixed constitution – the combination of monarchy, aristocracy, and democracy in a single constitution – which many in ancient Greece had come to think of as an ideal, superior to any of the simple constitution types, even before Aristotle discussed it as such in his Nicomachean Ethics and Politics.


Montesquieu, the eighteenth century French judge and political philosopher, is remembered primarily for articulating the distinction between the executive, legislative, and judicial powers of the state. Although the influence of this articulation was most noticeable in the development of the Constitution of the American Republic, whose Founding Fathers stressed the separation of the powers as checks and balances against each other, Montesquieu himself drew his inspiration from the ancient ideal of the mixed constitution as he found it in the writings of Aristotle and Polybius, and from its concrete manifestation in the Westminster Parliament. Montesquieu saw a correlation between the three elements of Parliament and the three powers, the Crown corresponding to the executive power, the Lords to the judicial power, and the Commons to the legislative. This correlation was not quite as precise as that between the elements of Parliament and those of Aristotle’s mixed constitution. Legislation, for example, requires an act of the entire Parliament and not just the House of Commons. A strength of the Westminster System is that while these powers are distinct, and separate to a degree sufficient enough for there to be balance, they are also united in the Crown. Thus, in the Westminster System the powers are spoken of as the Queen-in-Counsel, which is the Executive Power, the Queen-in-Parliament, which is the Legislative Power, and the Queen-on-the-Bench, which is the Judicial Power.


Although all three Powers are united in the office of the Crown, it is the Queen-in-Parliament that is traditionally understood as being the Sovereign Power. This is due to the nature of the Legislative Power. All of the Powers vested in the Crown are derived from the Law. When a new monarch accedes to the throne, the Coronation ceremony in which the King or Queen is vested with the powers and duties of the office of Sovereign, includes an oath to enact the Law with Justice and Mercy. The Legislative Power is the Sovereign Power because it is the Power to add to, subtract from, or otherwise alter, the Law itself.


Before looking more closely at the Legislative Power and the Law, let us observe here one more way in which the concrete, traditional institution of Parliament is preferable to the abstract ideal of democracy. Democracy can be either direct or representative. Direct democracy, which involves taking every government decision to the people in plebiscite, is obviously impractical except for the smallest of communities. The democracy that is an element of our Parliament, like the democracy that is an element of the American Republic, is representative democracy. Elected representatives in a representative democracy, whether parliamentary or republican, speak in the assembly on behalf of the constituency they represent – or, in countries foolish enough to abandon first-past-the post for proportional representation, the part of the population that agrees with them ideologically. Elected representatives each represent only a segment of the country, and taken collectively, only represent the country of the present moment. It is the role of the Head of State in any constitution to represent the polity in its entirety. An elected Head of State cannot do justice to this role. You can find all the necessary evidence of this assertion in the example of our republican neighbours. The election of every American President for the last thirty years, Democrat or Republican, has been followed by a “derangement syndrome” on the part of supporters of the losing party, or, in the case of the current President, supporters of the losing party plus a large segment of his own party. Nor is this exactly a new phenomenon. Following the election of the first Republican President in 1860, the states below the Mason-Dixon Line, all of which had opposed him, seceded and temporarily formed a new federal republic, which the United States had to invade and conquer in order to restore their “union.” Only a hereditary Head of State, who comes to the office by line of succession, can truly do justice to role of representing the whole of a country. This is especially true, when it comes to those who can only ever participate by representation because they have either passed on to the next world or have yet to enter ours. The Sovereign Power to alter the Law itself can only by right belong to the office of the person who can represent these as well as the interests of those living in the moment. Thus, the Queen is Sovereign, and Parliament, where the Sovereign as representative of the whole – past, present, and future – and the representatives of the moment meet and speak, is the place where her Sovereignty is exercised.


We often used the expression “law making” to speak of the exercise of this Sovereign Legislative Power of the Queen-in-Parliament. It is not an inaccurate expression, for passing a bill into law is indeed the making of a law, but it is important that we distinguish between the statutes passed in Parliament, which are specific laws, small-l, and what is meant by the Law, big-L. The big-L Law is spoken of in the singular, because it is a collective unity that includes all small-l laws. It is much more than the sum of all statutes ever passed in Parliament however, and, indeed, in our traditional system it has always been understood that the largest part of the Law is non-statutory in nature. By the non-statutory part of the Law I am not referring to the excessive amount of regulations that have been imposed by Cabinet ministers and their bureaucratic toadies in the last century as part of their unholy attempt to circumvent the constitution and the legislative process and subvert the Sovereignty of Queen-in-Parliament. I refer rather to the part of the Law that is not made by government, but discovered, being grounded in the underlying law that belongs to the larger, natural order of reality.


That underneath human laws, governments, and justice, there is an underlying law serving the end of an underlying justice, which belong to the larger order of reality is one of the foundational ideas of the Hellenistic civilization of the ancient world which, in one form or another, has remained foundational to the successors of Hellenistic civilization. The Christian civilization of Christendom, was built upon the Augustinian re-interpretation of the Hellenistic concept in which the true Law and justice were to be found in the City or Kingdom of God, of which the cities and kingdom's of men in this world are at best imperfect reflections. Even the liberalism of Modern Western Civilization, at least in its earliest stages, was founded upon concepts of a natural law and justice.


These concepts of a transcendent order of law and justice differ greatly between themselves, but they are variations on a common idea. The opposite of that idea - that law and justice are entirely man-made, being the mere expressions of the will of the strong -is just as old. In the first book of Plato's Politeia, the title of which is usually and misleadingly translated in English as The Republic, Thrasymachus of Chalcedon is the champion of the idea that justice is merely the strong imposing their will in the service of their own interests. The dialogue as a whole, of course, is Plato's articulation and defence, through the mouth of his teacher Socrates, of the transcendent order of law and justice. The transition into the Modern Age weakened the idea of this transcendent order. In the nineteenth century, German philosopher Friedrich Nietzsche attacked the Socratic/Platonic foundation of this concept in his The Birth of Tragedy, before turning his guns full blast on the Christian understanding of it in The Genealogy of Morals and Beyond Good and Evil, and resurrecting Thrasymachus with a vengeance in Thus Spake Zarathustra and The Will to Power. Nietzsche's influence over the last century was far greater than is often realized. Even more than Kierkegaard he paved the way for the existentialism of Martin Heidegger, Jean-Paul Sartre, Simone de Beauvoir and Albert Camus. While the novels of Ayn Rand and Terry Goodkind illustrate his neo-Thrasmachyian idea of a "master morality" defined by the creative assertion of strong-minded and strong-willed individuals as he himself understood it, in National Socialist ideology the totalitarian State became the expression of the will to power. Leo Strauss and George Grant were undoubtedly correct in saying that in Nietzsche we must grapple with the great Modern critic of Plato.


This idea, that there is a natural order of law and justice, with which temporal laws and justice must conform in order to be just themselves, has as we have just seen, been a fundamental concept of Western civilizations since ancient Greece. The relationship between our temporal laws and the underlying natural law has been understood differently in various Western societies. One approach is to say that it is the job of enlightened rulers to think about the natural law, determine what its precepts are, and translate those precepts into statutes in as close to their abstract form as the limitations of legislation permit and then inflexibly apply them. There are traces of this approach in Plato. It is the approach of many post-Enlightenment continental civil codes such as the Napoleonic, and can be found in much liberal thought. Our own system takes a different approach, however, and this is one of the major strengths of that system and the reason why there has traditionally been so much more personal freedom under our system than under its rivals, even within Western Civilization as a whole.


We have seen that in our system, the Sovereignty vested in the Queen-in-Parliament comes from the Legislative Power, because this power can change the Law itself. The exercise of this Power, however, is not the primary function of any of our State institutions. When the Magna Carta was enacted, the single most important event in the evolution of the King’s Great Council into Parliament as we know it today, the primary duty of the emerging Parliament was not to pass statutes but to hold the Executive accountable for the taxies it levied and how it spent the revenue so raised. Similarly, the primary duty of the monarch and the Crown ministers was never the creation of new laws but the maintenance of peace and order at home and abroad. This is where the Judicial Power – the Queen-on-the-Bench – comes to the forefront.


The maintenance of peace and order at home is not a matter of telling people what to do and forcing them to do it. It is a matter of providing an acceptable venue whereby disagreements can be arbitrated so as not to escalate into cycles of destructive vengeance. The courtroom is that venue. Aeschylus, the fifth century BC Athenian tragedian, borrowed from the mythology of his native land to illustrate this in the only surviving complete trilogy of plays from ancient Greece, his Oresteia. In the first play, Agamemnon, the Mycenaean king returns from Troy, having avenged his brother Menelaus, burned the city to the ground, and taken the princess and doomed prophetess Cassandra as his trophy, only to be murdered in his bathtub in his moment of triumph as the result of a conspiracy between his wife Clytemnestra and his cousin and mortal enemy Aegisthus, both of whom are seeking revenge for different reasons. In the second play, The Libation Bearers, Agamemnon’s son Orestes returns to Mycenae at the command of Apollo to avenge his father by murdering his mother, which he accomplishes with the encouragement of his sister Elektra and his friend Plyades, but then finds himself pursued by the trio of avenging goddesses, the Furies. In the final play, The Eumenides, Orestes, with the Furies still in hot pursuit, arrives in Athens where he pleads for mercy to the city’s patron goddess. In response, Athena summons twelve Athenian citizens to the Areopagus, to help her decide the case. The prosecuting Furies make the case that Orestes must be turned over to them for punishment for the crime of matricide. Apollo steps in as advocate for the defence. Six jurors are persuaded by the Furies, six by Apollo, resulting in a hung jury. Pallas herself, in her capacity as judge, casts the final vote, acquitting Orestes, after which she appeases the Furies and decrees that from here on out the procedure so established, will take the place of endless spirals of retribution.


All of this demonstrates the basic principle that if people are going to live together in a common society, there must be a peaceful and orderly means of arbitrating disagreements which requires a governing body that will hear both sides and decide based upon the evidence, which has the authority to ensure that both sides abide by the ruling, and into the hands of which, punishment if there is to be such, must be left. This process presupposes both that there is a natural order from which the questions of whether an action is right or wrong, who is right or wrong in a dispute, or, if it is not as black and white as that, the proportion of right and wrong on each side, can be determined, and that this can be discovered by hearing and fairly evaluating all the evidence. In other words, rather than starting with the abstract principles of natural law, and then applying these to actual persons and situations, the courts start with the concrete situations involving actual people, and from these determine in an Aristotelian manner what the abstract rules of right and wrong are. Mistakes can be made in the process, for which reason judges are required to give explanations of their rulings which can be appealed to higher courts. On the principle that the law must be the same for everyone, however, the accumulated rulings of past cases, become the precedents that guide the courts in their present deliberations. These accumulated precedents, in a system which is fallible but contains an internal mechanism for its own self-correction over time, and which recognizes the fact that fallible and flawed human beings cannot be expected to fully measure up to the standards of natural law when taken in their abstract nakedness and so allows for mitigating circumstances and requires only what can be reasonably expected in a casuistic fashion, themselves make up the bulk of the Common Law. The purpose of Parliamentary legislation is to tweak this Law, it is not the source of it.


The Common Law system has historically and traditionally allowed for much greater freedom than any of its rivals. Law that arises out of fair, honest, and in-depth inquiry into the right and wrong of particular situations, is far less likely to result in unnecessary limitations on actions that are not mala in se than either bureaucratic regulations or even legislative statutes. As the case precedents of Common Law have accumulated over the centuries, and corrections have been made over time through Parliamentary statute, certain basic rights and freedoms became firmly established as has the understanding that under Common Law, Her Majesty’s subjects are not supposed to have to ask themselves “is this permitted” every time they want to do something because they are free to do whatever they want provided it is not explicitly prohibited by Law, and have the right to expect that these prohibitions will be few, reasonable, understandable and necessary.


Among the basic freedoms that had already long been established in Common Law precedent by 1982 were the four listed as “fundamental” in section two of the Charter of Rights and Freedoms. All of the basic legal and civil protections against the arbitrary abuse of government power that are listed in sections seven through thirteen of the Charter, had also been long established Common Law rights. Habeas corpus, the right to have a court determine whether or not a detention is legal, was not given to us by the Charter, although it is listed in Section ten, but has been part of the Common Law for almost a millennium, predating the Magna Carta itself by a half century. The Charter neither gave us these rights and freedoms, nor made them more secure, but rather provided the government with loopholes by which to evade them. It was, indeed, an assault on the Common Law concept of rights and freedoms, which encouraged us to think of these as having been given to us by politicians, rather than arising out of natural law, through history and tradition.


It was also a further assault by the Liberal Party on the Westminster System which goes hand-in-glove with the Common Law, the two having evolved together over more than a thousand years of history. As we have seen, the Sovereignty of the Crown is its Legislative Power exercised in Parliament. The most basic Crown Power, however, is the Judicial Power which, as we have also seen, is the raison d'être of the State, and the institutional authority through which the Common Law develops out of natural law. For this reason the monarch’s office has been that of the highest magistrate since time immemorial, and the traditional final right of appeal under Common Law was directly to the Sovereign. By elevating the Supreme Court of Canada above Parliament, Pierre Trudeau’s Charter subverted both the Common Law and the Sovereignty of Queen-in-Parliament.


Today, our fundamental freedoms of assembly, association, and religion which although they are listed in section two of the Charter, have their foundations not in the Charter but are derived from natural law through Common Law, have been severely restricted to the point of being negated almost entirely, by the restrictions put in place to combat a strain of bat flu that has jumped to humans, perhaps with the assistance of the Communist government in China, and spread rapidly around the globe, producing nothing worse than the regular flu in most people, and killing so far a couple of hundred thousand, making it one of the least lethal plagues in history. We have been told to meet in groups of no more than ten – in some jurisdictions as low as five – at a time, to stay six feet apart from each other at all times, and churches have been ordered closed. These freedoms have not been taken away from us by legislation in either Parliament or the provincial assemblies. The restrictions are regulations imposed upon us by bureaucrats, specifically, the public health authorities. While it has been the provincial public health authorities that have done this, they have been following guidelines that the Dominion public health authority has passed on to them from the incurably corrupt and Communist-controlled World Health Organization. The fact that civil servants at any level of government have the power to restrict these freedoms to this extent and for so long – keep in mind they have been extremely reluctant until recently to even discuss an end to the restrictions and have spoken of these measures as having to be in place for a time frame that is totally unrealistic to anyone who takes into consideration anything other than the effort to combat this specific virus – is totally unacceptable and a great cause for concern. This is not the way our system of government is supposed to work. The reason civil servants, even provincial civil servants, have this much power in Canada today, is due to the Liberal Party’s assault, especially during the period from 1926 to 1982, on the Sovereignty of the Crown, Parliamentary authority, the accountability of the Prime Minister and his Cabinet, and the rule of Common Law.

Aftermath Reflections

The Canadian Dominion Election of 2019 is now over. Since disappointment consists of hopeful expectations being shattered I suppose my response to the results is one of disgust rather than disappointment. As I said in My Druthers prior to the election I did not expect it would turn out in the way in which I wanted.

The Grits, led by Captain Airhead, survived the election. They no longer have an absolute majority. They won 157 seats in the House of Commons, which is twenty less than they had when the last Parliament was dissolved and twenty seven less than they received in the last Dominion election. Most of the mainstream media are hailing this as a victory for Airhead. Andrew Coyne of the National Post, who is often more perceptive than the average MSM commentator, has argued to the contrary, that the Liberals “didn’t win the 2019 federal election, they just lost less than the Conservatives.” This is an interesting perspective, but I doubt that Captain Airhead himself sees it that way. Others have said that this reduction from majority to minority status will be a humbling experience for the Prime Minister. I think it is safe to say that it will be nothing of the sort. Trudeau has never shown the slightest capacity for learning from his mistakes. Having won the most seats, even after the Kokanee Grope, SNC-Lavalin, and blackface scandals, among his other huge embarrassments, he will be more insufferably smug and cocky than ever, and will treat his minority mandate as a blank cheque to do whatever he wants.

The ancient Greeks had a word that describes Trudeau’s attitude perfectly - ὕβρις. Hubris was an intense, overweening, pride, in defiance of the limitations of divine law, especially, at least as Aristotle describes it, by humiliating those one sees as his inferiors for his own pleasure. In Greek thought, hubris inevitably led to the destruction of those who practiced it. Nemesis, the dread daughter of Nyx, goddess of the night, was the figure whom their mythology assigned the task of wreaking divine vengeance upon the proud and arrogant. This concept was not limited to the pagan Greeks. In the Book of Proverbs it says “Pride goeth before destruction, and a haughty spirit before a fall” and the falls of both Satan and man illustrate the point. It may not have come this election, but eventually Trudeau’s arrogance will be his own undoing.

Of the three major parties, the biggest loss in this election was that of the New Democrats. They won only 24 seats, fifteen less than they had at dissolution and twenty less than they received four years ago. This is despite the fact that around the time of the blackface scandal the progressive media dumped Trudeau and threw all their resources into promoting the NDP and their leader Jagmeet Singh. Indeed, they even tried to make the blackface scandal all about Singh, as if Captain Airhead somehow owed Singh a personal apology for his clownish antics. There was, of course, no demand that he apologize to those whom he truly owed an apology, id est, all those whom he has himself labelled “racist” for disagreeing with his hyper-progressive, “woke” agenda. From this point on it was almost impossible to turn to any of the major news networks on television and not find Singh either giving an interview or speaking at some rally. Polling companies began reporting that Singh’s popularity was on the rise, and even the neo-conservative press got in on the action regurgitating the progressive talking point about how “likeable” Singh was, which, frankly, I never understood as I find the man to be quite unbearable. Despite all of this, the NDP ended up going down almost four percentage points in the popular vote which translated into a significant seat loss for them. I am not sorry to see this happen, even though it contributes to the Grits winning the plurality. It shows that the progressive media cartel’s ability to mold Canadian public opinion is not as infallible as is often assumed. It is also nice to see a man who has displayed contempt for the constitutional monarchy of the country he wants to lead and contempt for the customs and protocols of its Parliament fall flat on his face.

I have mentioned that the NDP went down almost four percentage points in the popular vote. The Grits went down almost six and a half percentage points. The Conservatives went up by two and a half points and, in fact, came out of the election with the largest percentage of the popular vote. Had Captain Airhead kept his 2015 election promise and brought in proportional representation the Conservatives, rather than the Liberals, would have won the plurality. This notwithstanding, I still support the traditional first-past-the-post, for the reasons I have given in the past. The principle of having Members of Parliament represent the actual realities of particular locations (first-past-the-post) rather than the fictional construct of partisan percentages (proportional representation) outweighs, for me, my preferences with regards to the outcome of elections.

Andrew Scheer and the leadership of the Conservative Party are undoubtedly now asking themselves how they failed to defeat an incumbent Prime Minister who seemed to be hell-bent on self-destruction. They will be hearing an awful lot of misguided, foolish, and downright wrong answers to this question from the mainstream media. For what it may be worth, the following is my answer to the same question.

First, in this election the Conservatives relied far too much on the hope that other parties – the NDP, Greens, and the Bloc – would draw votes and seats away from the Liberals instead of focusing on presenting a superior alternative to the Liberals and thus increasing their own percentage of the vote. This is a bad strategy, and in the end the “orange wave” did not materialize, the Greens gained only one seat, and the revival of the Bloc was not large enough.

Second, the Conservatives attempted to sell their leader, Andrew Scheer, to the public as a fiscally responsible, average Canadian husband and father, who would be a more reliable alternative than the irresponsible, privileged and cosmopolitan Trudeau. Their efforts to do so were undermined because Scheer contradicted the image they were trying to present with his own evasiveness. Consider the way he answered questions about his views on abortion and same-sex marriage. I have seen several commentators suggest that Scheer’s answers hurt him because he failed to dispel the fears of those with liberal opinions on these subjects that he was secretly pining to turn Canada into the kind of theocratic caricature that can be found in the pages of a bad Margaret Atwood novel. This is nonsense. His answers hurt him, not because the electorate was afraid of someone whose opinions deviate from the politically correct party line of the Liberals but because they were evasive rather than straightforward. Evasiveness is not a quality that suggests trustworthiness but rather the opposite. This is why all of the scandals the progressive media raised over Scheer – his insurance broker career before politics, his dual citizenship, the bizarre last minute allegations that he hired Warren Kinsella to wage a smear campaign against Maxime Bernier’s People’s Party – hurt him more than the sexual harassment, corruption, and racism scandals hurt Trudeau. They struck at the very quality on which the Conservatives were trying to sell Scheer to the public. Worse, they did so in a way that turned the Canadian public’s conservative instincts, which the Conservatives needed in order to win, against Scheer. Trudeau may be the devil, but as the old adage and the Kylie Minogue song say “better the devil you know.” Scheer could not afford an image of anything less than 100% straightforward honesty.

Every time that the Conservative Party has lost an election in the past, it has been beset with counsellors offering the advice that their platform was too right-wing and that they needed to move to the centre. Their having listened to this bad advice so often in the past is one of the reasons that the centre has moved so far to the left. This time these advisors will be pointing to the People’s Party and saying “see, they ran on a platform considerably to the right, and failed to win a single seat, lost even the seat of their leader Maxime Bernier, and won a mere 1.6% of the popular vote.” The exact opposite of this is true. The Conservative Party cannot win elections by moving further to the centre and helping move the centre further to the left. The only message this sends is that the Conservatives have nothing to offer that is different from the Liberals and the other progressive parties. Canadians have no good reason to vote for a Conservative party that offers only centrist, progressive, liberal, and leftist policies. The fact that Maxime Bernier was unable to sell the public on a more right-of-centre set of policies does not mean that the Conservatives would similarly fail. They will never be able to sell right-of-centre policies to the Canadian public, however, if they do not try, and certainly not if they continue to undermine themselves by wasting their resources in the sponsorship of progressive, anti-racist, attacks on those further to the right.

One thing that the outcome of this election shows is the foolishness of the proposal that the CBC seemed to be seriously pondering last Friday, namely the lowering of the voting age to 16. What we ought to be considering is the opposite of this – raising the voting age. Wisdom is the most desirable quality in an electorate, enthusiasm and idealism are the least desirable qualities. As a general rule, the former increases with greater maturity while the latter decreases. This same point can also be demonstrated by noting the most obvious example of foreign interference in the election, the way the wealthy foreigners, probably mostly American, who wish to sabotage Western Canada’s energy industry, brought an ignorant teenage twit over from Sweden and sent her and her crowds of adulating youthful fans, even more clueless than her, on a celebrity tour that not-coincidentally coincided with the election.

Things are looking extremely grim for the Western energy industry now as Rex Murphy has superbly explained in his post-election remarks in the National Post. The talk of Alberta or even Western separatism – “Wexit” – began pretty much the moment the outcome was declared. This talk of separation disgusts me as much as the election results that provoked it and reminds me of nothing so much as the way Hollywood liberals respond every time the Democrats lose the White House. As much as I admired the late Doug Christie in his role as a crusader for freedom of thought and speech I never had any use for his Western Canada Concept and all of this talk of breaking up Confederation and forming a – ugh – republic, makes me want to puke. The blame for the revival of Western separatism, however, belongs entirely to that smug, arrogant, filius canis, who is willing to sacrifice the economy of an entire region of the Dominion in order to win the accolades of eco-socialists around the world.

God save the Queen – including from Her Prime Minister – and Heaven Bless the Maple Leaf forever!

Eugene Forsey: Patriot of the Old Canada

One hundred and fifty years ago today the British North America Act came into effect and a new nation was born. A nation in the political rather than the cultural sense, she was given the name Canada, which had previously belonged to the provinces that after Confederation would be known as Ontario and Quebec, and the majestic title of Dominion. She was a federation of provinces, four at first but whose number would eventually swell to ten, governed by her own parliament under the monarchy she shared with the rest of the British Empire and later Commonwealth of Nations. She was founded, in other words, as an experiment in nation-building that was the exact opposite of that which had been attempted a century earlier in the land to her south. The Americans built their republic on the foundation of a revolt against and severance from the British Empire. Canada was built upon the opposite principle of loyalty to the Crown and the maintenance of the family connection to the British Empire/Commonwealth. It is fitting, on this important anniversary, to commemorate her birth with a look at one of her patriots who maintained his faith in the vision of the Fathers of Confederation throughout the twentieth century – the century in which the Liberal Party was doing everything it possibly could to remove Canada from her foundation and roots.

Eugene Alfred Forsey was born in Grand Bank, Newfoundland in 1904. This was forty-five years before Newfoundland joined Confederation and so Forsey joked in his memoirs that “At the age of eight months I became an involuntary immigrant to Canada.” This was when his mother moved back to live with her family in Ottawa after his father, a Methodist preacher and school teacher, passed away due to weak health worsened by a bout of bronchitis contracted in Mexico . He grew up, therefore, in the nation’s capital city, listening to the speeches and debates in the House of Commons, where his maternal grandfather served as Chief Clerk of Votes and Proceedings.

“There are many good Tories in the Labour Party”, Enoch Powell once said, and in Canada, Eugene Forsey was the classic example of this. Forsey was raised Conservative and in McGill University, which he initially entered with the idea of following his father into the Methodist ministry, but where he ultimately studied Economics and Political Science in the Department headed by arch-Tory Stephen Leacock under professors such as John Farthing (the author of the Canadian Conservative classic Freedom Wears a Crown), he was the vice-president of the Conservative Club. When, however, in 1926, he went off to Balliol College in Oxford on a Rhodes Scholarship, he joined the Labour Club. When he returned to Canada he joined a socialist think tank, founded by F. R. Scott and Frank Underhill, entitled the League for Social Reconstruction and the Co-operative Commonwealth Federation for which he ran unsuccessfully as a candidate in several elections. After lecturing in Leacock’s department at McGill for twelve years, he went to Harvard on a Guggenheim Fellowship, and when he returned to Canada in 1942 accepted the position of Director of Research with the Canadian Congress of Labour. He nevertheless continued to call himself a “John A. MacDonald Conservative” and proved by many of the stands he took that this was not just rhetoric.

When he entered Balliol College as a socialist this was in part because he had been converted to this economic doctrine. In his memoirs, however, he wrote of Arthur Meighen “Had he remained Leader I do not think I could ever have left the Conservative Party.” Meighen resigned the leadership of the Conservative Party on September 24th, 1926. This was ten days after Mackenzie King’s Liberals had won a majority government in the election that ensued after the famous King-Byng affair. In this incident, Mackenzie King, whose government had less than a plurality in the House but was propped up by a third party, the Progressives, had asked for a dissolution when his government stood to censured by Parliament following a customs scandal. The Governor General refused the dissolution and asked Meighen, whose Conservatives held the plurality in the House, to form a government when Mackenzie King handed in his resignation. The Meighen government was shortly defeated in a confidence vote when Mackenzie King accused Byng and Meighen of acting improperly and unconstitutionally. Forsey, in his memoirs, wrote:

I was in the gallery of the House of Commons for almost every word of the debate on the Customs Scandal of 1926 and the subsequent constitutional crisis…I was also in the House when the King government was defeated in the small hours of June 26, and I was sitting behind Mrs Meighen when Meighen’s confidential messenger brought the news that Mr King had asked the Governor-General, Lord Byng, to dissolve Parliament that he had refused. King thereupon resigned and Meighen became Prime Minister. I had not, even then, the slightest doubt that Lord Byng’s refusal of Mr King’s request for a dissolution of Parliament was completely constitutional, and indeed essential to the preservation of parliamentary government. Nor had I the slightest doubt that Meighen’s temporary government of ministers without portfolio, acting ministers of departments, was constitutional. I watched with anguish from the gallery the fumblings of the Conservative front bench in reply to Mr King’s attacks on the constitutionality of the temporary government (attacks which, of course, were wholly and demonstrably without foundation).

The Liberal version of these events, in which Mackenzie King is the champion of Canadian domestic sovereignty against Lord Byng as representative of British imperialism quickly became a cornerstone of what Forsey’s friend and colleague, conservative historian Donald Creighton, mockingly called “The Authorized Version of Canadian History.” Fifteen years later, however, in his Ph.D. thesis entitled “The Royal Power of Dissolution of Parliament in the British Commonwealth”, Forsey examined the crisis in depth, comparing it with precedent in the UK, elsewhere in the Commonwealth, and here in Canada, demonstrating that Lord Byng was in the right, that the request for dissolution under such circumstances was disgraceful and that the Crown’s right to refuse the request was “an essential safeguard of constitutional liberty.” Trimmed to about half its length – the dissertation is 440 pages long – this was published as a book by Oxford University Press in 1943 to the outrage of Liberal apologists such as Mackenzie King’s biographer Robert MacGregor Dawson and Winnipeg Free Press editor John Wesley Dafoe. Throughout his entire life he never deviated from the Tory position he took in that book, that the monarchy is important not merely as a symbol and a connection to the past, but as a safeguard against Prime Ministerial tyranny essential to the preservation of responsible parliamentary government and liberty and that its reserve powers can and should be used, whenever necessary, to prevent a Prime Minister from acting as a dictator. He would reiterate these arguments in the Australian constitutional crisis of 1975 in defence of the actions of their Governor General Sir John Kerr.

His “John A. MacDonald Conservative” principles were also on display when he sent back his membership card in the New Democratic Party in 1961. The CCF, of which Forsey had been a member since it was founded, joined with the Canadian Labour Congress, the successor of the Canadian Congress of Labour for which he still worked as Research Director, to form the NDP that year. He turned in his membership card, which had come automatically, because in his words:

It stated that by accepting it I accepted the constitution of the NDP. I wrote the ‘federal’ (not national! perish the thought!) secretary that I could not accept a party constitution from which the word ‘national’ had been deleted seventy-six times on the grounds stated by Mr. Brockelbank.

J. H. Brockelbank had talked the NDP founding committee into eliminating the word “national” from the new party’s constitution on the grounds that referring to Canada as a nation would offend French Canadians. Forsey, present at the meeting where Brockelbank had made his case, considered it to be an insult to the intelligence of all present and said so. He quoted from the French-speaking Fathers of Confederation such as Cartier and Tache who spoke of their work in putting together the Dominion of Canada as the founding of a “great nation.” He would later sarcastically comment:

This is probably the only occasion in the history when some thousands of people met to form a new national political party and began by resolving that there was no nation to form it in.

The word nation has a double meaning. It can mean a group defined by its culture – a shared language, religion, and ancestry. It can also mean a state with sovereign control over its own territory. It has this double meaning in both English and French, but Quebec nationalists, Forsey argued, were dishonestly attempting to pull a switch-and-bait in which recognition of French Canadians as a “nation” in the cultural sense of the term would be used as a stepping stone to obtaining recognition of Quebec as a “nation” in the political sense of the term. Such recognition would mean the end of the Confederation project of building the Dominion of Canada into a strong and united nation.

Canada’s English-speaking politicians were far too willing to appease the Quebec nationalists on this matter, Forsey, believed. This included not only the NDP but the Progressive Conservatives as well. In 1967, in the leadership convention that Dalton Camp had forced upon the party in order to oust John Diefenbaker, who like Meighen had been a long-time friend of Forsey’s, the Progressive Conservatives also voted on a resolution, drawn up by a pre-convention meeting of the party’s intelligentsia at Montmorency Falls, embracing a “two nations” view that was indistinguishable from that of the NDP. At the conference the party voted to reject Diefenbaker’s leadership and to accept the two nations policy. Although this was internally consistent – Diefenbaker, who would title his three-volume memoirs One Canada, was adamantly opposed to the two nations policy and spoke against it at the leadership conference – it was a reversal of the position the Conservative Party – the party of Confederation – had taken ever since Sir John A. MacDonald. It would become an albatross around the PC Party’s neck, dooming Mulroney’s Meech Lake and Charlottetown Accords to failure, and leading to the party’s decimation in the polls in 1993.

This is why Forsey was able to write “When I was in the Senate I used to say that I sat as a Pierre Trudeau Liberal because I was a John A. MacDonald Conservative, and it was not just a witticism.” Forsey’s acquaintance with Trudeau had begun while they were both Quebec socialist intellectuals in the 1950s but his enthusiasm for Trudeau’s taking over the leadership of the Liberal Party and the premiership of Canada was built upon Trudeau’s strong support for Canadian national unity against Quebec separatism. “In my judgement”, he wrote, “Pierre Trudeau kept Quebec in Canada when nobody else could have done it.” I do not agree with Forsey’s judgement here, I must say, and consider it akin to the folly of those in the United States who credit Abraham Lincoln, whose election was the catalyst that split the American Republic into two warring factions, with keeping their country together.

At any rate Forsey accepted an appointment to the Senate from Trudeau in 1970 and upon doing so joined the Liberal Party in 1970. Rex Murphy, another Newfoundland-born Rhodes scholar, said that he was “one of the great ornaments of the Senate” by contrast with the “lickspittles and placeholders” who filled the Upper Chamber in more recent times. He remained in the Senate until he reached the upper age limit in 1979 and had to retire. During that time he spoke out and voted against the Trudeau government more often than in support of it. A particularly prominent clash occurred in 1978 when the Prime Minister tabled Bill C-60, the Constitutional Amendment Bill. Forsey, who saw that the bill would weaken both the monarchy and responsible government, campaigned vehemently against it. Charles Taylor, in his account of this conflict wrote:

During the battle, he was accosted at lunch in the Chateau Laurier Grill by Trudeau’s chief political aide, Jim Coutts. “Why are you doing this to us?” Coutts asked. Forsey looked at him scornfully: “Why are you doing this to the country?”

The Trudeau government lost this battle when the bill was referred to the Supreme Court of Canada but in 1982, three years after Forsey’s retirement from the Senate, Trudeau succeeded in having the constitution, repatriated to Canada. The process required the addition of a constitutional amendment formula, and Trudeau also tacked on the Charter of Rights and Freedoms and devolved a considerable amount of power to the provincial governments. Forsey, in his retirement, was not silent on the subject. Charles Taylor, who heard him lecture on the subject at Erindale College in Toronto, gave this account:

“Had I been in the Senate I would have voted against it,” Forsey declaimed. “I would have voted for the original version – before the provincial warlords got at it.” In particular, he ridiculed “that ghastly ‘notwithstanding’ clause” – the clause that gives the provinces the power of opting out. “If you’re going to have a charter of rights – on balance I’m for it, but not without reservations – it had better be entrenched.” In fact, said Forsey, the new document offered the average citizen only a dubious protection for his rights.” “The thing is badly drafted. Chances are it will take a very long time for the courts to determine what it means. The lawyers will have a field day. For them, it’s a license to print money.” Above all, putting the courts above parliament was creating a very dangerous situation: “Judges should not mix themselves up in matters which are essentially political.”

He did, however, find some good mixed in among the bad, namely that the Monarchy and its vice-regal representation, as well as the Senate, had survived the process intact and entrenched. He was particularly exuberant over the fact that “Dominion” had also survived as the country’s official designation. He had been fighting Liberal attempts to eliminate it since the premiership of Louis St. Laurent and always referred to what most Canadians would call a general or federal election as a “Dominion election.” He saw the attempt to eliminate “Dominion” as a particularly bad example of the Liberal Party’s “attempts to rob Canada of her history”, other examples of which included the elimination of “Royal Mail” as the name of the Post Office and the introduction of the new flag in 1965. He fought on the side of the old traditions in each of these battles but objected particularly to the attack on “Dominion” because it was conducted in an underhanded, sneaky, and dishonest manner and because it was based on an outright falsehood – the idea that the title indicated a subservient or colonial status when it had actually been chosen from the Bible by the Fathers of Confederation themselves. The Liberal lie about “Dominion” was very similar to other myths they had been propagating in their efforts to undermine the constitution. Forsey, talking about the fight over Bill C-60 in his memoirs, wrote:

I had to cope more than once with people who suffered from the delusion that the British North America Act of 1867 had been imposed on us by the British Government when in fact it was based almost wholly on resolutions adopted at Quebec in 1864 and in London in 1866-7, by delegates of the British North American provinces, with not a single representative of the British Government even present.

Forsey’s life-long stand for the monarchy and our parliamentary constitution, for the vision of Canada as one nation that had been held by the English and French Fathers of Confederation, and upheld by every Conservative leader from Sir John A. MacDonald to John G. Diefenbaker, and for our British history, traditions, and symbols, was not typical of the average member of the CCF and would be even harder to find in that party’s successor, the NDP, whose typical members are more Liberal than the Liberals in their rejection of the traditions and heritage of the old Canada. It shows him, however, to have been a great patriot of the Dominion of Canada, worthy to be remembered on our nation’s sesquicentennial.

So in memory of the Honourable Eugene A. Forsey, PC, I say to you all:

Happy Dominion Day!
God save the Queen!

Bibliography:

Forsey, Eugene A. A Life on the Fringe: The Memoirs of Eugene Forsey. Toronto. Oxford University Press. 1990.

Forsey, Eugene A. The Royal Power of Dissolution in the British Commonwealth. Ph.D. Dissertation. McGill University. 1941.

Murphy, Rex. “Eugene Forsey and the Senate.” The National. CBC. May 23, 2013. Television.


Taylor, Charles. Radical Tories: The Conservative Tradition in Canada. Toronto. House of Anansi. 1982.