A Reply to Mr. Brian Peckford’s Response on reading my paper “Canada is constitutionally broken”

[Readers please note, Mr Brian Peckford’s response in full is linked below, if you wish to read him before, or after, reading my reply to him.]

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I was somewhat happily surprised that the Honourable Mr. Brian Peckford, former Premier of Newfoundland and Labrador, would go to the extent of writing over 2,600-word response to my essay – “Canada is constitutionally broken, and by the will of the people it can be fixed” – published in substack on March 14. Mr. Peckford published the response in his blog on March 23 under the heading “Unrealistic.”[1] My essay was not directed to Mr. Peckford, whose sign off under his name in blogposts is “Only Living First Minister Who Is A Signatory To The Patriation Agreement 1981–The Constitution Act 1982.” I could not have imagined when writing my essay that I would receive a public response from the last living member of the ten first ministers – (the eleventh first minister, premier of Quebec dissented) – from 1981-82 who were together responsible for bringing home the BNA Act of 1867 with an amending formula and the Charter of Rights and Freedoms.

I published the essay after Justice Paul Rouleau, head of the Public Order Emergency Commission, released the Report on the Emergencies Act invoked by Prime Minister Justin Trudeau on February 14, 2022, and offered my view on why I consider our country is constitutionally broken and how the people might take it upon themselves to fix it. I mentioned Mr. Peckford in the essay by quoting from remarks he made in Ottawa at the Freedom Convoy rally two days before the Emergencies Act was invoked in February 2022, and then quoting from his open letter of February 21, 2023 addressed to “Our Federal Parliamentary Leaders” published in his blog after Justice Rouleau released the POEC Report. Mr. Peckford’s remarks at the Freedom Convoy rally in Ottawa and his open letter seemed to me a passionate heartfelt expression from the former premier in defence of the Charter rights and freedoms of Canadians that had been violated by the government of Canada and found by the Commissioner, Justice Rouleau, not to have been improper. I felt that mentioning Mr. Peckford and quoting him was most fitting, since given his historic connection with the Charter he had taken a most admirable public stand in defending Canadians exercising their rights and freedoms against their governments, federal and provincial, for overriding them with restrictions of the COVID mandates and the courts upholding the authority of governments. And because of his admirable stand I took the time to read his memoir, Some Day the Sun Will Shine and Have Not Will Be No More, so that I may know his version of how the final constitutional package was agreed upon and ratified in November 1981.

I had no reason to believe that Mr. Peckford, if he got to read my paper, would embrace it in whole or in part. What astonished me however on reading his response was not merely his brusque dismissiveness of the paper, but the umbrage that accompanied it.

Right at the outset of his reply, Mr. Peckford’s dismissiveness is stated as follows,

Unfortunately, the academic world is often a world of theory… realism takes a back seat.

…One almost gets the impression from the Professor that this constitutional change thing is a very simple endeavour if the people have the will and just insert seven words (and by the will of the people) in the Charter of Rights and Freedoms all will be fine.

Mr. Peckford then points out that the paper suffers from “three major flaws”:

(i)   that “changing the Constitution is no easy matter” given the requirement for meeting the amending formula of 7 provinces representing 50 percent of the population plus the two branches of the federal parliament agreeing to any proposed change; in addition, there is little appetite – (presumably among the first ministers, since Mr. Peckford does not explicitly state among whom the “appetite” is lacking) – to engage in any constitutional negotiation “due in large part to the fact that the functioning of the country in the last several decades has seen the Federal Government, with the willing consent of the Provinces, morph into a condition of a disfigured Constitution,” and he then goes on to list a series of issues, such as federal transfer payments in the areas of health, social service, education, and equalization payments that “sanctions the status quo” none of the Provinces would venture jeopardizing;

(ii)  that my suggestion of adding seven words in the preamble of the Charter is “naive at best, pure fantasy at worst. Recent judicial decisions during the covid era have shown how the meaning of words in the Charter are changed or ignored as the Court sees fit” (emphasis added);   

and

(iii) that the Canadian Judiciary in adopting the ‘living tree’ doctrine as the basis of interpreting the constitution has led to the sort of judicial activism whereby “the plain meaning of what is written becomes irrelevant.”

My suggestion of adding seven words to the preamble of the Charter (viz., “derived from the will of the people”) comes at the end of the paper in which I discuss and analyze why the country is constitutionally broken. This “why” Mr. Peckford is unwilling to contend with and therefore he dismisses it as “theory” and lacking in realism. And in being brusquely dismissive, Mr. Peckford shows either his inadequacy in rebutting my argument, or defensiveness in protecting his legacy role of proposing in 1981 “to the provinces for a charter of rights and freedoms and a patriation act”, as he claimed in his speech at the Freedom Convoy rally in Ottawa in February 2022, that was ratified “to become the Constitution Act of 1982”[2], and now following the COVID restrictions and the use of the Emergencies Act we find the Charter proven useless.

No serious student of Canadian history, politics, and the constitution is naive, or given to fantasy, as Mr. Peckford describes me for thinking amending our constitution is a simple proposition. On the contrary, his dismissiveness of my proposal based upon a historical and theoretical reading of what another professor, Peter H. Russell, described as our “constitutional odyssey”, a phrase that I may assume Mr. Peckford having been an English teacher would appreciate for what it suggests, indicates the mind-set of log-rolling deal-making politicians not wanting to be distracted or derailed by confronting in our situation what might well be, if not undeniably is, the fundamental defect in our constitution.

The fundamental defect in our constitution, as Sir Alexander Galt wrote in his letter of October 25, 1858 to Sir Edward Bulwer-Lytton, the Colonial Secretary in London, and which I cited in my paper is that “It does not profess to be derived from the people but would be the constitution provided by the imperial parliament” (emphasis added).[3] And, as I discussed both the historical and theoretical meaning of Galt’s letter, a hundred and sixty-five years later what remains missing in the constitution is any reference to the people. This means, as Peter H. Russell indicated, “at Canada’s founding, its people were not sovereign, and there was not even a sense that a constituent sovereign people would have to be invented.”[4] From this fundamental defect – it obviously would not, and did not, register in the thinking of mid-19th century Empire Loyalists in British North America petitioning the Imperial Parliament to fashion out of the provinces a confederation to be known as the Dominion of Canada – follows the rest. This history, or constitutional odyssey, given Mr. Peckford’s response to my paper, has no relevance in his thinking, if at all, of why our country is constitutionally broken. His silence on this core issue, which is at the heart of our constitutional dilemma, speaks more loudly than all else he writes in response to my paper as “unrealistic.”

But Mr. Peckford is not alone in giving a shrug of indifference to the fact that the Constitution of Canada does not explicitly, nor implicitly, acknowledge the people. It is just about every politician across the country with his mind-set elected as members to the legislatures and parliament are there for themselves at the expense of the people, and they demonstrated this during the past few years of the COVID mandates.

For one hundred and fifteen years, 1867 to 1982, Canada was governed, as the BNA Act of 1867 stated, under a “Constitution similar in Principle to that of the United Kingdom.”

And what is this Principle?

It is the supremacy of parliament, as Sir William Blackstone famously explained in his Commentaries on the Laws of England, with its power and jurisdiction “so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds.” In other words, the Parliament in the English system of democracy is sovereign and the monarch,  following the execution of Charles I in 1649 that ended the dispute over sovereignty between the monarch and parliament, is the titular face of the Parliament. Once we undress the niceties of conventions that provide for the spectacle of politics as high drama to keep the public awestruck and distracted from paying attention to the brute facts of power, we find the parliament as institution is sovereign and the people are, therefore, subject. It was this constitutional system imported into the making of the Dominion of Canada. And this is not “theory”, as Mr. Peckford dismissively writes that “the academic world is often a world of theory; one where ideas are debated and tested.” Where sovereignty resides and how it is executed, is more than a matter of mere theory, it is about practical understanding and dissecting of power that is the fundamental issue in politics.

The American revolution of 1776 was paid in blood to redress this imbalance in power within the English constitutional system and to establish instead the people as sovereign within a federal republic, and in which the will of the people was translated into the making of rule of law in a free society. In contrast to the American experience, ours has been one of avoiding discussing the nature of Canada in constitutional terms, as I pointed out in my paper, “by occluding the history of the making of Canada before and after 1867.” But an opportunity arose for Canadians when Prime Minister Pierre Trudeau, following the May 1980 referendum held by Parti Quebecois to negotiate the place of Quebec within Canada in terms of sovereignty-association and which premier Rene Levesque lost to the federalist forces within the province, pushed for the patriation of the BNA Act including an amending formula and a charter of rights and freedoms with or without the consensus of the provinces.

The conferences that preceded the eventual patriation of the constitution in April 1982 provided that rare historic opportunity when the eleven first ministers could have peacefully redressed for Canada the imbalance in the English constitutional system that we inherited, which the Americans paid for in blood, by explicitly mentioning the people in the Charter’s preamble. Instead, what the people got from the eleven first ministers was the absence of statesmanship and another display in retail politics, or to quote Mr. Peckford “the cut and thrust of Constitutional Change and negotiation.”[5] In the process, the people were set aside and the inherited English constitutional system was repackaged by the addition of the charter wherein the supremacy of the parliament/legislatures remained unaltered. This package was sold to Canadians by high-lighting the merits of the Charter of Rights and Freedoms as part of the Constitutional Act 1982.

Four decades later and with two generations of Canadians who came of age during this period believing that their Charter rights and freedoms were constitutionally guaranteed and secured only to be rudely and brutally awakened by the Emergencies Act to the fact that their belief was hollow, that there was no such guarantee. At the Freedom Convoy rally in Ottawa in February 2022 Mr. Peckford spoke to the “Charter Canadians”.  He said,

[T]he governments of Canada are trying to say that they can override those rights through Section 1. I want to tell them that I was there: Section 1 was to be only used in war, insurrection, or the threat or peril to the state… Section 1 is being used illegally by the governments of Canada.[6]

But Mr. Peckford and the other six first ministers – the “gang of eight premiers” with the exception of the premier of Quebec – did not when they were writing and/or over-seeing the drafts of the Charter before ratification specifically add those words, “only to be used in war, insurrection, or the threat or peril to the state”, so that no other meaning might be read into Section 1 as “the limitation clause” to override the Charter rights and freedoms. They did not do what was needed to be done, if “Charter Canadians” are being persuaded as Mr. Peckford tells the story forty years too late that Section 1 “is being used illegally by the governments of Canada”, because given the mind-set of the premiers either they were preoccupied in getting agreements on the patriation act and the amending formula as their priority, or they wanted to sufficiently dilute the charter rights and freedoms that was an obsession of the prime minister in order to maintain the supremacy of parliament and legislatures as sovereign consistent with the English constitutional system to which they were attached.

Indeed, in his memoir Mr. Peckford makes no mention of the people and the Charter that he might have conceived as a “people’s package,” or of his inclination or support for the notion that the fundamental rights and freedoms of Canadians should be protected by high walls that cannot be breached by parliament and legislatures with merely simple-majority votes, just as amending the constitution requires super-majority votes in accordance with the amending formula. On the contrary, Mr. Peckford writes in his memoir that the provinces, such as his, were “concerned about, especially how such a charter over time would affect the division of powers, property rights, the ongoing powers of Parliament and legislatures versus the judiciary.”[7] It was again this mind-set that drove the premiers to draft Section 1 (“the limitation clause”) and Section 33 (“the notwithstanding clause”) to eviscerate the fundamental rights and freedoms sections of the Charter (Section 2 and Sections 7-15).

What Mr. Peckford and the premiers therefore did in November 1981 was preserve the sovereignty of the parliament and legislatures in accordance with the Laws of England, and dressed it up with the charter rights and freedoms as baubles in the form of grants and privileges to be given, limited, or withheld at the discretion, or whim and caprice, of the governments. The result is what I have called a “hybrid-constitution”, which masks the reality of the people unacknowledged in the Constitution of Canada being subjects of those holding the reins of power in Ottawa and the provincial capitals.

When the full story is read or told of the negotiations preceding the patriation in April 1982 of the BNA Act of 1867 with the amending formula and the charter and the passage of time since then, Mr.Peckford’s selective recall of Section 1 “used illegally” to override the Charter’s rights and freedoms during COVID restrictions and the invocation of the Emergencies Act begs the question, did he similarly protest the probable improper use of Section 1 by the Supreme Court of Canada to abridge or violate Charter rights on appeal by plaintiffs or the lower courts in cases when there was no threat of war, insurrection, or direct existential threat or peril to the state?

There have been a number of cases since 1982 in which the SCC used Section 1 of the Charter in delivering its majority decision. Here are just a few of such cases:

1. R. v. Oakes (1986) – this case established the framework for analyzing whether a limit on a Charter right can be established under Section 1.

2. R. v. Edwards Books and Art Ltd. (1986) – the SCC used Section 1 to uphold a municipal bylaw that restricted the location of adult bookstores.

3. R. v. Keegstra (1990) – in this case, the SCC upheld the constitutionality of hate speech provisions in the Criminal Code, finding that the limits on freedom of expression were justified under Section 1.

4. Chaoulli v. Quebec (AG) (2005) – in this case, the SCC considered the constitutionality of Quebec’s prohibition on private health insurance for medically necessary services. The Court used Section 1 to justify the limits on the right to life, liberty, and security of the person, finding that the objective of ensuring access to publicly funded health care was pressing and substantial.

The case most troubling for many “Charter Canadians” and people of faith is that surrounding Henry Morgentaler convicted for defying the abortion laws in the seventies, tried in court three times and on each occasion acquitted by jury. The province (Quebec) appealed and the Quebec Court of Appeal overturned the jury acquittal. Morgentaler appealed his conviction to the SCC and lost. Morgentaler went to jail. His case went back and forth, as Morgentaler unsuccessfully sought to overturn Canada’s abortion law. But once the Charter of Rights and Freedoms was enacted in 1982,  he found reprieve. Morgentaler’s appeal to the SCC was heard in 1988 and the original jury acquittal was upheld. Moreover, the SCC found the abortion law violated Section 7 (“Life, liberty and security of person”) of the Charter.

In the years since 1988 abortion on demand became a new normal; Morgentaler became a celebrity and named a Member of the Order of Canada; the safest place for an unborn in mother’s womb became the most perilous; any attempt to put together an abortion law protective of both pregnant woman and unborn infant became politically futile and abandoned; and Canada became the only G7 country without any abortion law, and abortion on demand at any stage of pregnancy became permissible. Those “Charter Canadians” and people of faith troubled by the immorality of the unrestricted “war” on unborn infants are left to wonder why Section 7 cannot also be used on behalf of the unborn, or Section 1 be used to set “reasonable limits” for abortion on demand.

We, the people, did not hear from Mr. Peckford during these past four decades since 1982 on the use, abuse, or non-use of Section 1 by the parliament, legislatures, and the courts until the use of Emergencies Act to override the Charter’s rights and freedoms. If I am correct, then Mr. Peckford’s decrying the illegal use of Section 1 for COVID mandates and the Emergencies Act is selective.

At the Freedom Convoy rally in Ottawa, Mr. Peckford said, “This is our first big test as a democracy. This is our first big test of the Charter of Rights and Freedoms.”[8] I disagree. The big test for Canadians since 1982 was and remains, as a democratic nation and, even more importantly, as a moral nation, to protect the most vulnerable among us, the unborn in mother’s womb. The failure to do so has been extended by governments in the health care system to promote euthanasia and medically assisted suicide as public policy, driven as much by budgetary constraints as by hollowing out over the past half-century or more the foundational ethics and morality of Canada as a Christian nation.

I have not proposed naively that adding the seven words, “derived from the will of the people” to the preamble of the Charter will come easy, nor expeditiously turn the country around from its moral and ethical decline. If these words get to be added, it will take an immense amount of fortitude and perseverance by Canadians to meet the requirement of the amending formula and overcome the resistance of the establishment politicians with their supporters in all of the major public institutions in the country funded by governments. And despite the odds, if this gets done due to the unbending resolve of Canadians it will mean that they will for the first time along with the original first nation as its core constituent become truly a sovereign people and nation, independent and responsible to take back their constitution and country from those, the log-rolling, deal-making, and unethical politicians who speak of Canada, as does the current prime minister, being a post-national state having no core identity. The taking back of the country by a sovereign people might then well begin with the repeal of Sections 1 and 33, and thereby secure their rights and freedoms from the easy overreach of governments.

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Notes:

[1]  Brian Peckford, “Unrealistic – My Response To Salim Mansur Essay on Constitutional Change entitled ‘Canada is constitutionally broken, and by the will of the people it can be fixed.”

Online: https://peckford42.wordpress.com/2023/03/23/unrealistic-salim-mansur-essay-on-constitutional-change-entitled-canada-is-constitutionally-broken-and-by-the-will-of-the-people-it-can-be-fixed/#comments

[2]  Brian Peckford, “Last Living Premier Who Signed Canada’s Charter in Speech to Freedom Convoy: Section 1 of Charter Being ‘Illegally’ Used by Governments,” The Epoch Times, February 13, 2022.

Online: https://www.theepochtimes.com/last-living-premier-to-sign-canadas-charter-in-speech-to-freedom-convoy-section-1-of-charter-being-illegally-used-by-governments_4274213.html

[3]  See my essay published in substack, “Canada is constitutionally broken, and by the will of the people it can be fixed.”

[4]  Peter H. Russell, Constitutional Odyssey, Third Edition, p. 33. Toronto: Universitiy of Toronto Press, 2004.  

[5]  See Peckford, note 1.

[6]  See Peckford, note 2.

[7]  Brian Peckford, Some Day the Sun Will Rise and Have Not Will Be No More (e-book), pp. 222-223. St. John’s: Flanker Press Limited, 2012.

[8]  See Peckford, note 2.