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Canada is constitutionally broken, and by the will of the people it can be fixed
The Public Order Emergency Commission headed by Justice Paul Rouleau released on February 17, 2023, in five volumes the Report of the Public Inquiry into the 2022 Public Order Emergency, as required within one year after the Emergencies Act had been invoked by Prime Minister Justin Trudeau to disperse from Ottawa the truckers-led Freedom Convoy 2022. In his remarks to the media, Justice Rouleau summed up the Report stating, “After careful reflection, I have concluded that the very high threshold required for the invocation of the Act was met.”
The POEC’s voluminous Report was prepared following a six-week of hearings of witnesses from officials of the city of Ottawa, police services, members of the federal government, private citizens, and members of the protest movement against the Covid-19 pandemic mandates. According to Justice Rouleau, “For over thirty days between October and December 2022, the Commission heard from 76 witnesses, and 50 experts. Many senior government officials were examined, both by Commission Counsel, and by counsel for the 22 parties to whom the Commission granted standing to participate in the proceedings. The witnesses who testified included organizers of the convoy, citizens affected by the protests, police, public servants, and elected officials at the municipal and federal levels. Even the Prime Minister testified, providing his own account of the events in question. There was also unprecedented access to documents produced by dozens of different entities, including the federal government… For only the fourth time in Canadian history, cabinet confidence was waived over records containing the ‘inputs’ that were before Cabinet when it deliberated over the use of Emergencies Act.”
Though Justice Rouleau in his Report sided with the federal government’s decision, he also told the public, “I have done so with reluctance.” The reluctance underscored the government’s failure to anticipate rising frustration of the people with pandemic restrictions spread over nearly two years that adversely affected their livelihood, their well-being as individuals and families, their “alienation, economic anxieties, and loss of faith in government.” Justice Rouleau explained, “People did not only lose family and friends to the disease. Some also lost jobs, businesses, homes, and savings. Many more, such as health care workers, laboured under extremely difficult circumstances. Truckers were another group that felt a heavy weight from the pandemic, sometimes made more difficult by health measures put in place by governments.”
The tipping point came, as Justice Rouleau stated, “When new rules that limited the ability of unvaccinated truckers to cross the Canada-US border were announced, this served as a rallying point for those who disagreed with government policy.” Those who organized the grassroot movement to become Freedom Convoy in the winter of 2022, he admitted, did not transgress any law. In Justice Rouleau’s words, “One of the most cherished rights enjoyed by Canadians is the right to engage in political protest. The ability of individuals and groups to publicly voice their dissent enriches and empowers our democracy.” Moreover, “The majority of those who participated in the protests were animated by a genuine desire to engage in peaceful demonstrations so that their voices would be heard by leaders in government. They wished to exercise their fundamental right to express their political views. They had a right to do so.”
The first few trucks in what became the country-wide Freedom Convoy arrived in Ottawa on January 28, 2022, and eventually the estimated number of trucks, along with other vehicles, exceeded fifteen hundred. Apart from the Freedom Convoy in Ottawa there were protesters gathered at Canada-US border crossings in Coutts, Alberta; in Emerson, Manitoba; and in Windsor, Ontario.
Canadians came from across the country to their capital with and in support of Freedom Convoy, and were driven by the motive their presence in Ottawa would elicit a response from the government demonstrating an openness to listen and speak with representatives of Freedom Convoy. Such a response would have been in keeping with the democratic values and sentiments of Canadians and would have demonstrated the sensitivity of the government and parliamentary leaders to engage with the organizers of Freedom Convoy, to hear their grievances and, at a minimum, to assure them that the government would be mindful of their concerns in ending the pandemic restrictions at an early advisedly suitable date.
Instead, Prime Minister Trudeau stepped forward as the leading hostile critic of the truckers’ movement even before the trucks drove into Ottawa. At a press conference on January 26, two days before any truck reached the capital, Trudeau dismissed the truckers as the “small, fringe minority of people who are on their way to Ottawa, who are holding unacceptable views that they’re expressing”. An attitude of confrontation, because of Trudeau’s insulting description of Canadians employed in the vitally important trucking industry for the economy as a “fringe minority”, took hold of the government. The two-week standoff between the protest movement and the government consequently headed for the ham-fisted blinkered response by Trudeau in invoking the Emergencies Act on Valentine’s Day, February 14.
In his remarks to the media, Justice Rouleau indicated, “My mandate is not about the pandemic or public health policy. Those are important topics, but not ones with which I have been tasked.” As the head of the POEC, Justice Rouleau viewed his task as one of “assessing Cabinet’s decision to invoke the Emergencies Act.” He went on to state that he was “faced with a statute that has never been used or judicially interpreted;” hence, its invocation being unprecedented serious questions “have been raised as to whether the legal thresholds to use the Act have been met.” He conceded, “Reasonable and informed people could reach a different conclusion than the one I have arrived at.” Moreover, he elaborated, “the Emergencies Act is not a tool of convenience but rather, a tool of last resort. The fact that circumstances evolved to the point where Cabinet reasonably considered it necessary to invoke the Act is regrettable because, in my view, the situation that led to its use could likely have been avoided.”
The “situation”, Justice Rouleau referred to that could have been avoided, was brought about by a combination of policing failure and a failure of federalism. He summed this up in concluding volume one of the Report, as follows:
As I have explained in this Report, the response to the Freedom Convoy involved a series of policing failures. Some of the missteps may have been small, but others were significant, and taken together, they contributed to the situation that spun out of control. Lawful protest descended into lawlessness, culminating in a national emergency.
The failures were not only in policing. The events of January and February 2022 can also be seen as a failure of federalism. In Canada, our federal system of government enriches democracy by striving to maintain national unity while supporting regional diversity. But fulfilling these promises depends on co-operation and collaboration. Responding to situations of threat and urgency in a federal system requires governments at all levels, and those who lead them, to rise above politics and collaborate for the common good. Unfortunately, in January and February 2022, this did not always happen.
The Freedom Convoy was a singular moment in history, in which simmering social, political, and economic grievances were exacerbated by the COVID-19 pandemic, shaped by a complex online landscape rife with misinformation and disinformation, and unleashed in a torrent of political protest and social unrest. Though extraordinary, it was not entirely unpredictable. Historically, it is common for pandemics to be accompanied by a decline in social cohesion and a surge in civil unrest. This one has been no exception.
It was the failure to anticipate such a moment and to properly manage the legitimate protests that emerged, especially the protest in Ottawa, that resulted in the 2022 Public Order Emergency. Had various police forces and levels of government prepared for and anticipated events of this type and acted differently in response to the situation, the emergency that Canada ultimately faced could likely have been avoided. Unfortunately, it was not.
Justice Rouleau’s public remarks and the conclusion provided in volume one of the Report taken together might well be viewed on balance, contrary to his judgment reluctantly reached that the government met the “very high threshold” requirements in invoking the Emergencies Act, that the government’s response was disproportionate to the situation at hand brought about by the protest movement wherein there were some people, though a small minority, who had come with “sinister goals, or who were willing to engage in dangerous conduct to achieve their desired ends.” Indeed, a government less confrontational and more flexible in handling what was an overwhelmingly peaceful non-violent protest movement, except for some inconvenience to the residents of the capital that could have been mitigated with effective policing, would have desisted in using the disproportionately heavy-handed Emergencies Act as a tool to break up the protest movement, to declare Emergency Economic Measures Order in freezing assets of Freedom Convoy organizers and the funds raised by them from public contributions to support the truckers, to arrest and imprison some of the organizers, and to use force in removing the protestors from the capital.
Justice Rouleau could not have been unaware that he carried a heavy responsibility. This was noted by the Honourable Brian Peckford, former premier of Newfoundland, in his open letter of February 21 to “Our Federal Parliamentary Leaders” that the Report required to be above reproach. Peckford recalled the oft-cited statement of Gordon Hewart, Lord Chief Justice of England and Wales, from a case in 1924, “It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” The Report disclosed, Peckford opined, that justice was not “manifestly and undoubtedly be seen to be done,” because the “principal of conflict of interest was breeched (sic)” when a government has “the powers to investigate itself.” Other public figures and opinion leaders, such as the former federal cabinet minister and leader of the People’s Party of Canada, Maxime Bernier, and the public intellectual, Professor Jordan Peterson, joined Peckford in questioning the fairness of the Report. Peterson tweeted, “So it appears very clear that the judiciary in Canada is now as compromised as the government itself.”
Canadians were divided over the Covid mandates and continued to be divided along party lines with the invocation of the Emergencies Act. An opinion poll of Canadians, done by the Angus Reid Institute before the release of Justice Rouleau’s Report, found:
Canadians divided about one of the core issues concerning the Emergencies Act – whether the protests which it was invoked to clear met the definition of a threat to the security of Canada.
Half (51%) say they believe that this threshold was met, including four-in-five past Liberal voters (81%) and two-thirds of past NDP voters (68%). Conversely, two-in-five (40%) disagree, led by three-quarters of those who supported the Conservative Party in 2021 (73%). Majorities in Alberta and Saskatchewan believe the threshold was not met, while majorities in every other region of the country disagree, and feel the protests presented a real national security threat.
That same division is noted on the government’s decision to invoke the Emergencies Act. Half feel that this was ultimately the right call to bring about a resolution to the protests and occupations. That said, one-quarter (27%) feel other means of resolution should have been pursued, and 15 per cent say nothing needed to be done at the time.
This division in the country shows that nearly half of the population does not hold in esteem nor trust their government, its institutions, and their political leaders. Their lack of trust in government could grow given the Report’s conclusion, while the more cynical among them will dismiss it as a whitewash. But more importantly, the precedent the Report has set in terms of threshold required to invoke the Emergencies Act by any future government is not “very high” in the view of some forty percent of Canadians and, therefore, their apprehension will not any time soon dissipate about a prime minister, such as Justin Trudeau, invoking the Act in coercing them abide by mandates they oppose as infringement of their Charter rights and freedoms.
Those who came to Ottawa with the Freedom Convoy and those across the country who cheered and supported with contributions the truckers, might be described as “Charter Canadians.” The journey to their nation’s capital protesting the Covid lockdowns was not merely for them a public demonstration of what they felt in their “winter of discontent” as loss of faith in politicians and all levels of governments; it was also a display of moral outrage over how their constitutionally guaranteed rights and freedoms had been shredded since the beginning of the pandemic without redress by the courts. They came to Ottawa on the eve of the fortieth anniversary in April 2022 of what had been the long-awaited patriation of their constitution in 1982, the BNA Act of 1867 from London, UK, with an amending formula and a new constitutional bill of rights adopted as the Charter of Rights and Freedoms.
Most of them, the “Charter Canadians” who made it to Ottawa with Freedom Convoy, were not born, or were children, or young adults, when the patriation act had occurred four decades earlier. In the intervening years they had come to learn of their individual rights and freedoms under the Charter were secure and protected, which had not been the case with the Canadian Bill of Rights that Prime Minister John Diefenbaker made the Parliament of Canada enact as a federal statute in August 1960. Whatever had been the heated controversies among the politicians, the first ministers, the experts and scholars on constitutional matters, and the public over the proposed Charter made part of the constitutional package patriated from London to Ottawa these belonged to the past, as a whole generation of “Charter Canadians” came of age under its wings and invested their sense of newfound identity in the idea and romance of the Charter.
The “Charter Canadians” arrived in Ottawa believing their presence in numbers would best convey their fundamental grievance that the government without due process and unlawfully had infringed on their Charter rights and freedoms, and expecting the parliament would positively be responsive in addressing their grievance. They believed their right to protest the unlawful acts of the government, and their right to demand redress by the courts in overruling Covid restrictions were guaranteed by the Charter. As “Charter Canadians”, they intuitively felt in having acquired a whole new meaning of being a Canadian which birthed in a uniquely spontaneous form and expression the protest movement of patriots in the Freedom Convoy 2022.
But the “Charter Canadians” across Canada were in for a rude and brutal awakening along with those gathered in Ottawa that their rights and freedoms, as they believed, were neither secure nor protected from the reach of governments, federal and provincial, to limit, abridge, infringe, and override them at their discretion when needed. Bruce Pardy, professor in the faculty of law at Queen’s University, Kingston, in an opinion column for Financial Post published November 3, 2021, had written what eventually came to mobilize truckers in the making of the Freedom Convoy 2022. He wrote,
Ten days ago the Manitoba Court of Queen’s Bench was the latest court to rebuff a constitutional challenge to Covid restrictions on civil liberties. Chief Justice Glenn Joyal ruled that provincial public health orders were constitutionally justifiable, joining courts from around the country in embracing the official Covid narrative and defending the authority of the pandemic state… during Covid, the charter has been useless.
The Charter had proven useless, as Pardy observed, when needed most against governments that seemingly relished the Covid mandates imposed on a public distraught by fear, and readily using force to bludgeon citizens protesting Covid restrictions as churches were closed, pastors fined and/or arrested, including the PPC leader Maxime Bernier arrested and handcuffed during a tour of Manitoba in June 2021 for allegedly not abiding by the public health order in the province.
During the two-weeks standoff in Ottawa the truckers and their supporters sensed the federal government was preparing to evict them from the capital by force. Brian Peckford was in Ottawa and he addressed the Freedom Convoy rally on February 12, two days before Prime Minister Justin Trudeau invoked the Emergencies Act. He said, “Let us declare to the world today that we have a right to be right here. Let us declare to the world and to the prime minister and all the premiers of Canada that we have rights and freedoms that they cannot take away from us.”
Brian Peckford was the third premier of Newfoundland and Labrador, and in office from 1979 to 1989. He is the last living member of the eleven first ministers – prime minister and ten premiers – who together, with the exception of the premier of Quebec, René Lévesque, signed the charter and patriation act in November 1981. From the speech he gave at the rally, here are a few relevant passages:
Just down the road here in Chateau Laurier, in 1981 I made a proposal to the provinces for a charter of rights and freedoms and a patriation act. It was the one that was ratified, ratified the next day, to become the Constitution Act of 1982, in which your rights as individual Canadians were protected…
Now, if you’ve got a moment, the 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 threat or peril to the state. It wasn’t to be used to try to combat a virus from which 99 percent recover and a less than 1 percent fatality rate. That’s not a threat to the state. Section 1 is being used illegally by the governments of Canada…
And ladies and gentlemen, Canadians, even if it did apply in a war insurrection situation, it would have to pass four tests before they can override it, and the four tests are these: demonstrably justify what you’re doing – not justify it, demonstrably justify it; it has to be done by law; it has to be done within reasonable limits; and it has to be done in the context of a free and democratic society. They have not met any of those four tests…
Remember, your Charter of Rights and Freedoms are not in the bill of the federal Parliament. It’s not in a bill of any provincial legislature. This is what you have to understand. It’s in the Constitution – the holy grail of any decent democracy. A constitution means permanent values, things that cannot be changed overnight to suit the whims of a politician. These are permanent values…
This is our first big test as a democracy. This is our big test of the Charter of Rights and Freedoms. Are we [going to] stand tall for the charter after 114 years? Are we [going to] relinquish our charter rights? We will stand tall.
A week after the Emergencies Act was invoked Beverley McLachlin, the former Chief Justice of the Supreme Court of Canada from 2000 to 2017, published her opinion in The Globe and Mail. She wrote,
During the truck convoy protests, we have watched banners demanding “freedom” waving over big rigs parked in front of Parliament. But what does this vaunted “freedom” mean?
The answer is, everything and nothing…
Freedom is not absolute. We live in a social matrix, where one person’s exercise of freedom may conflict with another person’s exercise of freedom. Section 1 of the Canadian Charter of Rights and Freedoms states this plainly. The Charter gives Canadians a bundle of rights and freedoms. But it prefaces them with this caution – these rights and freedoms, precious as they are, are not absolute. Governments, it proclaims, can limit freedoms, provided the limits are “reasonable” and can be “justified in a free and democratic society.”…
Who sets the limits on our freedoms?
In the first instance, it is our governments – our duly elected representatives in Parliament, and the executive branch that has the responsibility to maintain “peace, order and good government,” to quote the Constitution, for the good of all. Our governments must draw the difficult lines that mark the limits of freedom in a particular situation. When you must wear a mask. Whether you can cross a border without a vaccine certificate. How many people can attend a party and who gets to go to school…
Freedom is not absolute but subject to reasonable limits.
Chief Justice Richard Wagner of the Supreme Court, who succeeded Chief Justice McLachlin in 2017, followed in her footsteps in condemning the Freedom Convoy for “forced blows against the state, justice and democratic institutions like the one delivered by protestors,” according to Marco Bélair-Cirino reporting from Ottawa in Le Devoir of April 9, 2022. The two Chief Justices of Canada’s Supreme Court, McLachlin retired and Wagner at present sitting in court at the head of the Canadian judiciary, in expressing publicly their personal bias towards the truckers of Freedom Convoy and its supporters breached judicial probity as they should know, which explains why “Charter Canadians and their supporters see their governments as untrustworthy and the country broken.
It needs explaining why there is such a chasm between Brian Peckford together with the “Charter Canadians” and the Canadian judiciary in understanding and interpreting the Charter that has allowed governments as the executive branch of the parliament and legislatures to override the Charter rights and freedoms. The invocation of the Emergencies Act and the exoneration of its use by Justice Rouleau have divided Canadians by regions and along party lines. In the view of nearly half of the country, especially “Charter Canadians,” the Charter has been exposed as merely ornamental.
A constitution with a bill of rights with teeth is surrounded by a protective high wall – that is, a super-majority of votes needed to amend the bill of rights – which puts handcuffs on governments restricting them from an overreach into abridging protected rights and freedoms of citizens, as does the American constitution. Instead, the events of February 2022 and the subsequent release of the POEC Report by Justice Rouleau have strained the credibility of the Charter and what it stands for, or lacks, in a country with a history of racial, ethnic, and linguistic disunity.
The patriation of the BNA Act of 1867 – renamed the Constitution Act, 1867 – with the amending formula and the Charter of Rights and Freedoms, known as the Constitution Act, 1982, taken together is the Constitution of Canada. The two Acts, that of 1867 and of 1982 combined together have resulted in what might be termed a “hybrid-constitution.” And therein lies the problem reflecting the chasm between the views of Brian Peckford, as one of the signatories of the 1982 Charter, and the governments with their executive branch in the legislatures and the judiciary, as the referee of the Constitution.
A codified bill of rights in the 1789 revolutionary tradition of the French “Declaration of the Rights of Man and of the Citizen” was a Gallic obsession of the late Prime Minister Pierre Elliott Trudeau (1919-2000). William Gairdner, an eminent Canadian political philosopher and public intellectual, on the fortieth anniversary of the Canadian Charter wrote,
In October of 1980 on CBC Television Prime Minister Pierre Trudeau had already announced his lifelong intention “to constitutionalize a Bill of Rights,” and he was prepared to try this unilaterally. But the Supreme Court insisted on consent of the provinces, and after intense federal-provincial deal-making, the passage of The Canada Act 1982 made it very clear Trudeau had succeeded in muscling into existence a French-style Charter of Rights and Freedoms. Why? Because he despised and publicly mocked the English concept of government by a Parliament of changeable Representatives cobbling together laws from their debates, absent any higher guiding principles. And he was unsettled by the idea of ten provincial legislatures making their own sovereign laws which in one province might be in conflict with those of another.
So, it was the BNA Act of 1867 when constitutionalized with a Charter of rights and freedoms in 1982 became on the surface a hybrid-constitution, which melded the English common law tradition with the French revolutionary “natural rights” tradition. On a closer examination of this hybrid nature of the Constitution of Canada it remains, however, fundamentally unaltered from what was enacted in the Imperial Parliament at Westminster, London, as the BNA Act of 1867 in the making of the Dominion of Canada “under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom”.
The Dominion of Canada came about following an agreement reached by politicians in British North America governed out of London to make the colonies into a self-governing confederation under the British Crown. A lot of ironing out of differences in interests among the colonies – Upper and Lower Provinces of Canada, and the Maritime Provinces of New Brunswick and Nova Scotia – needed done before the birth of the Dominion in 1867. But the main feature of the proposed confederation was spelled out in a letter delivered to Sir Edward Bulwer-Lytton, Secretary for the Colonies in the Conservative administration of Edward Smith-Stanley, 14th Earl of Derby, dated 25th October, 1858 by Sir Alexander T. Galt in his capacity as Inspector-General from Lower Canada in the Cartier-Macdonald administration in the Provinces of Canada. The letter was drafted by Galt and co-signed by George-Étienne Cartier, Premier, and John Ross, President of the Council of the Provinces of Canada. The letter in part read as follows:
It will be observed that the basis of Confederation now proposed differs from that of the United States in several important particulars. It does not profess to be derived from the people but would be the constitution provided by the imperial parliament, thus affording the means of remedying any defect, which is now practically impossible under the American constitution (emphasis added).
The making of Canada from colonies into a Dominion was, therefore, distinctly different from how the thirteen colonies to the south attained its independence from Britain through a revolutionary war. The story of the United States was ever present in the minds of the Empire Loyalists and those, including the French-speaking Catholics in lower Canada, whose predecessors had declined to make common cause with the thirteen colonies in 1776. The ties that bound the settlers in British North America with their mother country were cherished, and the advancement into responsible self-government under the British Crown was sought by the Fathers of the Confederation through petitioning the Imperial Parliament at Westminster, London. “They were mid-Victorian British colonials who had grown up in a political system which they valued,” the historian Donald Creighton wrote of them, “and which they had not the slightest intention of trying to change by revolution.”
The BNA Act of 1867, since its patriation known as the Constitution Act, 1867, was the law passed by the Imperial Parliament that created Canada. It was said that Sir John A. Macdonald preferred the new country given birth in London be known as “Kingdom of Canada.” The Colonial Office declined so as not to offend the United States and, instead, the name “Dominion” was chosen recalling Psalms 72:8 (“He shall have dominion also from sea to sea, and from the river unto the ends of the earth”). Consequently, Canada’s constitutional arrangement as a parliamentary system of government was a copy of the prevalent system in the mother country and handed down as a result of the petition made and not arranged, or devised, by the will of a sovereign people. It was also understood by the Fathers of the Confederation that in providing responsible government any amendment to the BNA Act when needed would be executed in the form of a statute and proclaimed by the Imperial Parliament in Britain. There was no mention of an amending formula, or of the colonists as a people, in the Act of 1867; nor any mention of the people is found in the Charter of Rights and Freedoms, or the Constitution Act of 1982.
A hundred and sixty-five years have passed since Sir Alexander Galt in his letter to the Colonial Secretary gave the assurance that the proposed Confederation would not be “derived from the people”, and it has remained unaltered; nor during this period any reference to the people been duly added to make the Constitution of Canada, the fundamental law of the country, an instrument by which a free and sovereign people elects to govern itself. What this means, according to Peter H. Russell, university professor emeritus of Toronto in political science and constitutional history, is that “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.”
The absence of any reference to the people in the Constitution of Canada is that Canadians, unlike Americans, remain unacknowledged as being sovereign in their own independent country. The sovereignty, instead, resides in the supremacy of parliament in keeping with the key principle in the English system of constitutional government. The Fathers of the Confederation were tutored as lawyers, advocates, legal scholars, pamphleteers, and journalists, as were those of the United States, in the Commentaries on the Laws of England by Sir William Blackstone (1723-80) published in four volumes between 1765 and 1769. Blackstone’s Commentaries was the primary and required textbook in studying the unwritten constitution of England based on common law and statutes.
The supremacy of parliament, and its power and jurisdiction, according to Blackstone, “is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds.” He added, the parliament “can, in short, do every thing that is not naturally impossible; and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of the parliament.” In describing the parliament Blackstone wrote, “this supreme power is divided into two branches; the one legislative, to wit, the parliament, consisting of king, lords, and commons; the other executive, consisting of king alone.” The English civil war and the “glorious revolution” of the seventeenth century made the monarch a constitutional figure-head or, as Walter Bagehot described in The English Constitution published in 1867 the year Dominion of Canada was given birth, that within the parliament evolution took place of the monarchy becoming its dignified face and the cabinet becoming its efficient face by joining the legislative and executive branches. The monarchy “is commonly hidden like a mystery,” wrote Bagehot, “and sometimes paraded like a pageant, but in neither case it is contentious. The nation is divided into parties, but the crown is of no party.” Through the Act of Settlement of 1701, the Parliament at Westminster completed the transition of England into a constitutional monarchy in which the monarch, as Bagehot described, was the dignified face of parliamentary government while the effective exercise of power resided with the cabinet and its leader, the prime minister, as long as the party held a majority of seats in the parliament.
In a series of lectures given in Yale University in the midst of World War I on the nature and working of the Constitution of Canada, later published as a monograph, William Renwick Riddell, Justice of the Supreme Court of Ontario, drew directly from Blackstone’s Commentaries for his American audience. He said,
[T]he Dominion Parliament and the Local Legislatures have (within the ambit of their jurisdiction) the same full and ample power which the Imperial Parliament has.
The powers of the Legislature of the Province are the same in intension, though not in extension as those of the Imperial Parliament… The power and jurisdiction of Parliament is so transcendent and absolute that it cannot be confined either for causes or persons within any bounds… It is a fundamental principle with English lawyers that Parliament can do everything but make a woman a man and a man a woman… An Act of Parliament can do no wrong though it may do several things that look pretty odd.
This is the hardest saying for many Americans, whose legislative bodies have their powers cribb’d, cabined and confined by the letter of the Constitution of the United States or of the particular State—they are horrified to hear a Court say: “The Legislature within its jurisdiction can do everything which is not naturally impossible, and is restrained by no rule human or divine… The prohibition ‘Thou shalt not steal’ has no legal force upon the sovereign body, and there would be no necessity for compensation to be given.”
Blackstone had described in his Commentaries the nature and features of the unwritten constitution of Britain. Justice Riddell of Ontario restated Blackstone’s views more than a century later in instructing his Yale audience on the Constitution of Canada. At the heart of the working of English constitution is how sovereign power is exercised, and that this power is unbound and unlimited. The only check to this unconstrained power is the role of the people during an election when they may elect and unelect a government. Electoral results, however, do not alter the meaning of parliamentary supremacy and the exercise of power it delegates to the prime minister and his cabinet. The judiciary itself is a branch of the parliament and its constitutional authority is limited. According to Justice Riddell,
while we do not allow a Court to set aside legislation as unwise or unjust, opposed to
natural justice or what not, it is sometimes necessary for the Courts to enquire whether particular legislation of Dominion or Province comes within the ambit of the powers conferred by the British North America Act. We have seen that the Dominion does not now disallow Provincial Legislation unless in the opinion of the Dominion Government it is ultra vires the Province. But even if allowed by the Dominion to pass, it does not always follow that it is intra vires—it may be called in question by a private litigant and then the Court is bound to determine whether the Province had the right to deal with the subject-matter of the litigation. If so “arguments founded on alleged hardship or injustice can have no weight”; if not the legislation is void, however valuable and benevolent it may be.
The total effect of the English constitutional system is the unchecked nature of unlimited power exercised by the government as the sovereign sitting in Parliament. The English civil war was an interregnum in the dispute between the Monarch and the Parliament, which was settled in favour of the latter. G.M. Trevelyan, an English historian of the period, wrote,
The fundamental question at issue in 1688 had been this—Is the law above the King, or is the King above the law? The interest of Parliament was identified with that of the law, because, undoubtedly, Parliament could alter the law. It followed that, if law stood above the King’s will, yet remained alterable by Parliament, Parliament would be the supreme power in the State.
The English Bill of Rights of 1689 that followed the restoration of the Crown by Parliament established the principles of holding regular Parliamentary sessions, frequent elections, and free speech in Parliament. This Bill would also be referred to as Parliamentary Privilege, and other rights added – such as no taxation without agreement in Parliament, the right of petition by people and redress by courts, the right of people to remain free from government interference – were Parliamentary grants extended to the people and protected by Parliament. The Bill of Rights would become the model for American and French bill of rights respectively, and the UN’s Universal Declaration of Human Rights. But unlike its influence in later iterations, the English Bill of Rights was a list of privileges or grants handed down to the people by Parliament, and none of the grants listed were considered inalienable or, as in the American Declaration of Independence, “endowed by their Creator.” Consequently, in the English constitutional system, which became that of Canada through an Act of English Parliament, whatever privileges are granted to the people does not make them a sovereign people and they remain a subject of Parliament which is, as Trevelyan noted, “the supreme power in the State.”
The exercise of this supreme power belongs exclusively to the cabinet and its leader, the prime minister, where the legislative and executive branches of Parliament converge and is fused. Long before the rise of totalitarian regimes in the early decades of the twentieth century, the embryo of absolute power lay unhatched in the body politics of English constitutionalism. Beyond politics is the realm of morality, which stands on judgment whether heeded or not by those living. And of this and what it means Lord Acton (1834-1902), parliamentarian, statesman, Catholic philosopher-historian, and a close friend of the long-serving Liberal prime minister, William Gladstone (1809-98), in a letter to a friend wrote, “Power tends to corrupt, and absolute power corrupts absolutely.”
The invocation of the Emergencies Act in February 2022, and events that led up to it, was an awakening and clarifying moment for all Canadians regardless of which side of the divide they stood in support of or opposition to Freedom Convoy arriving in Ottawa. Brian Peckford spoke for all Canadians at that Freedom Convoy rally in the capital two days ahead of Prime Minister Justin Trudeau bringing down an Act that had not been used since the patriation of the Canadian Constitution in April 1982. He said,
I didn’t realize until recently that we’re always only—even in the best of times—a heartbeat away from tyranny, that democracy is one of the most fragile concepts in the world. That’s why most of the world doesn’t have democracy. It’s a tough, tough thing to sustain. You can create it, but sustaining it, it’s very, very difficult. We see that now today. We see that now today in spades. And we’re going to say, democracy may be fragile, but we shall defend it.
And then a year later, after Justice Rouleau released the POEC Report, in his public letter “To Our Federal Parliamentary Leaders” with the subtitle “The People Must Be In Charge”, Peckford wrote,
Some would argue that there are still Court proceedings ongoing concerning the Emergencies Act. I would argue that the Country has already witnessed the Emergencies Act failure in its blatant conflict of interest, heard the opinions without evidence from the Chief Justice of Canada and without there being a court appearance, and from various decisions of other Courts where the Charter and Science were ignored. This brings the whole system in disrepute and undermines our Parliamentary System of Government, especially responsible government where our Government leaders are accountable to Parliament.
Brian Peckford’s speech and letter, as with Freedom Convoy’s gathering in Ottawa, were a patriotic cri de couer in defence of the Charter rights and freedoms. But the irony cannot be overlooked that reference to the people as part of his awakening came forty years after, as he claimed, that his proposal to the provinces for a Charter and a patriation act in November 1981 was adopted and ratified to become the Constitution Act of 1982. It might also be said that Peckford acknowledged in coming out in public at the Freedom Convoy rally, irrespective of whether this was done implicitly or explicitly, that the glaring omission in the Constitution of Canada is the non-mention of the people.
As the last living member of the eleven first ministers from November 1981, Brian Peckord’s recollection of that historic meeting and the drama in which he was involved reveals the mindset of its leading actors. In his memoir, Some Day the Sun Will Shine and Have Not Will be No More, Peckford described at length the negotiations among the eleven first ministers and the eventual agreement reached by them minus the Quebec premier. The main difficulty, according to Peckford, “was agreeing on an Amending Formula that would guide additional constitutional reform in the future.” He continued,
But it was the Charter of Rights and Freedoms that many of the provinces 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. There were already many federal incursions into provincial areas of responsibility, and many premiers and their advisers were skeptical as to whether such charter changes could further erode provincial powers duly detailed in the British North America Act of 1867.
Peckford’s recollection tells us the prime minister and the ten premiers during those negotiations, and after, operated within the 17th-18th century framework of the English constitutional system described by Blackstone. The concern of premiers over a codified charter included in the constitutional package was with the extent to which the legislatures might become constrained by the judiciary. There was no discussion, as Peckford recalled, of mentioning the people in the charter as possessing or endowed with inalienable rights and freedoms. Hence, the charter and Peckford’s role in proposing it that he recalled at Freedom Convoy rally in Ottawa, once ratified by the ten first ministers became a grant of parliament in the Constitution Act of 1982, while the people unacknowledged have remained not sovereign, as they were not at the time of Canada’s birth. The Charter rights and freedoms adopted as legal privileges, or grants, were acceptable to the premiers with the prime minister in agreement, as this formula did not infringe upon the key principle in English law of the supremacy of parliament. This is why the governments can at their discretion override the Charter provisions, as they have done, and the courts have gone along with them, since the Charter does not belong to the people.
The fundamental defect in the Constitution of Canada – the Constitution Act of 1867 and the Constitution Act of 1982 taken together – is that it makes no mention of “we, the people” from whom legitimacy is derived in the drafting and ratification of the Constitution, its enactment, and in whose name and by whose consent the Government of Canada is empowered to administer the country within the framework of the Constitution and wherein the ultimate authority of the Government is derived from and rests upon the people. Instead we have, as I have discussed above, the rule of law based on the supremacy of parliament in keeping with the theory and practice of the English Constitution, as systematically described by Blackstone in his Commentaries. This being the case, the rights and freedoms enumerated in the Charter without reference to the people have provided merely a veneer or shine to the Constitution. The Gallic obsession of Pierre Trudeau for a codified bill of rights set within the constitution was only partly met without substantively altering the meaning of the supremacy of parliament, and by bracketing the Charter rights and freedoms spelled out in section 2 and sections 7 to 15 with the “limitation clause” of section 1 and the “notwithstanding clause” of section 33.
The understanding of Canadian constitutionalism, in my view, has been one of “masking” the nature of Canada in constitutional terms by occluding the history of the making of Canada before and after 1867. As I have observed, the Charter rights and freedoms are, or happen to be, “grants” of the parliament from which the people cannot be alienated. And since there is no constitutional recognition of the people possessing or endowed with inalienable rights and freedoms, the matter becomes moot and is thus not justiciable.
The Charter as it stands has turned out to be a sleight of hand by the ten first ministers who signed it into law as the Constitution Act of 1982, and the people bought it out of trust, ignorance, or whatever other reasoning that might be advanced for accepting a package that essentially was and remains fundamentally defective. The hybrid-Constitution of Canada lies broken and exposed by the events of the past few years as the Charter rights and freedoms were overridden by governments on the pretext of the Covid-19 pandemic, upheld by courts, and finally when the Freedom Convoy protestors gathered in Ottawa they were bludgeoned and dispersed by the Emergencies Act, which was found to have met the threshold requirement for its use by Justice Rouleau as the Commissioner of the POEC appointed by the prime minister.
The question, therefore, for Canadians is whether there is a credible remedy available in repairing this broken and defective Constitution Act of 1982, and in a manner that the Constitution of Canada gets to belong to the people and the people are finally recognized as sovereign?
In Ottawa at the Freedom Convoy rally Peckford told the “Charter Canadians” gathered together,
There are only two major written documents of your Constitution: the BNA Act of 1867, which created the country, and the…Constitution Act of 1982, which established the Charter of Rights and Freedoms. And in that charter, very few people today quote the following. The first words of the charter are, it’s not Section 1, it is we, as a country have two principles: the supremacy of God and the rule of law.
And then Peckford went on to say,
…the 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 (emphasis added).
We are fortunate that the former premier of Newfoundland and Labrador, who was one of the eleven first ministers in Ottawa in November 1981 when the final agreement on the amending formula and the charter was signed, is with us at this time to give his first hand understanding of the agreement and what Section 1 as the “limitation clause” meant when originally discussed and accepted, and how restrictively and under what condition it was to be used. But sadly, Peckford’s understanding was not written into Section 1 limiting the “limitation clause” as to its use in clear and unambiguous terms, and thus the terms “reasonable limits” are vague and left to the parliament and the judiciary to interpret freely and loosely, as illustrated by the use of the Emergencies Act by Prime Minister Justin Trudeau and its justification accepted in the POEC’s Report.
The first words of the Charter, or the Constitution Act of 1982, as Peckford reminded the people, are those of the preamble preceding the enumerated rights and freedoms. These words are “the supremacy of God and the rule of law.” In Peckford’s telling, one might rightly infer, the preamble is the “sovereignty clause” affirming the Sovereignty of God and His rule over Canada, as a country.
The principle of God as Sovereign was the foundational principle in religion, law, and politics in the West since the earliest pre-medieval years of Christendom. In politics during the middle ages (circa, AD 1500-1800) sovereignty meant the Creator God as the Absolute and Omnipotent Power; or with the French political philosopher and one of the originators of the doctrine of sovereignty, Jean Bodin (1530-96), it meant the idea of monarch as a supreme force in the manner in which God appears on earth and without whom there would be no commonwealth.
Over time the notion of sovereignty was tempered and humanized, and reference to God in politics, especially in the emergent democratic age, shifted from the monarch as an emanation of God and his divine right to rule to that of a constitutional figure-head, as in Bagehot’s description of monarch being the dignified face of the supremacy of parliament. This shift of meaning implied that the sovereign is not above the law. In Blackstone’s Commentaries the originator and enforcer of law was Parliament and, as such, was supreme, hence sovereign, in theory and practice in English law.
Sovereignty in terms of constitutionalism belongs to a “person”, as the king/queen in a monarchy; or to the “people”, as a body in a democracy; or to the “institution”, as a parliament in English law. It cannot belong to a country, which is a bounded territory wherein the rule of law is based upon the sovereign authority of a monarch, or of the people, or of the ruling institution. In the American constitution the word “sovereignty” is missing in the text, but the idea of sovereignty is explicitly stated in its preamble as belonging to a corporate body of “we, the people.”
In the Constitution Act of 1982 the preamble, as Peckford recalled in his speech, reads merely as a formality, a superficial gloss on the constitution, as are the enumerated rights and freedoms qualified and bracketed by sections 1 and 33 now exposed as merely ornamental. If the phrase “supremacy of God” was meant to be substantive, the phrase required substantively enunciated in its meaning; similarly, the phrase “rule of law” is imprecise and undefined without indicating its originating source. As the phrase “rule of law” presently reads, it cannot be understood as God’s law whether Mosaic or Canonical drawn from the Bible, since in practice the rule of law in Canada over time has deviated far from the Biblical foundation of what is meant as God’s law. So, the phrase can only mean either the rule of law is based on the corporate will of the people, hence people are sovereign; or, as in English law, it is based on the supremacy of parliament in which case people are not sovereign.
The remedy for the broken and defective Constitution Act of 1982 can be one proposed as practical, authoritative, legitimate, and not abstruse. Such a proposal, for example, can be the preamble is amended with seven words (in bold letters below) added to it, so as to read:
“Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law derived from the will of the people”.
And the “will of the people” being sovereign, as in “vox populi, vox Dei” (“the voice of the people is the voice of God”), is then exercised by repealing sections 1 and 33.
In adding the seven words to the preamble the Constitution of Canada, as the fundamental law of the country, will return to the true ownership of the people. And in repealing sections 1 and 33, the Charter of Rights and Freedoms will become genuine gem stones enriching the Constitution as the people’s document, instead of remaining as they presently are merely ornamental baubles sparingly granted by the parliament to a subject people.
In acknowledging the people constitutionally, the people will rightfully acquire sovereignty that did not belong to them in 1867, nor subsequently recognized and accordingly acknowledged as it could have been and was not by the eleven first ministers, among whom Peckford was one, in 1981.
The remedy is constitutionally simple, but politically it might seem difficult as in swimming across a river too wide, or climbing a mountain too high. But if the people of our great and resource rich country are sufficiently aroused, and they are driven with an urgency that their cause is righteous in remedying the broken Constitution that legitimately belongs to them, then there is no river too wide to swim across, nor no mountain too high to climb.
March 14, 2023.
1. All the quotes of Justice Rouleau are taken from, “The full text of Justice Paul Rouleau’s statement,” in National Post of February 17, 2023.
2. Cited in Andrew Lawton, The Freedom Convoy: The Inside Story of Three Weeks that Shook the World (Toronto: Sutherland House, 2022), p. 35.
3. Report of the Public Inquiry into the 2022 Public Order Emergency, p. 248.
4. Brian Peckford, “A New Emergencies Act For Canada: An Open Letter To Our Federal Parliamentary Leaders. The People Must Be In Charge.”
5. Cited in, ‘Canada is dead’: Prominent Canadians blast Emergencies Act ruling exonerating Trudeau.
6. Angus Reid Institute, “Emergencies Act: Ahead of report release, half say Freedom Convoy protests were a threat to national security,” February 2, 2023.
7. Burce Pardy, “During Covid, the charter has been useless,” Financial Post, November 3, 2021.
8. 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.
9. Beverley McLachlin, “The Ottawa truck convoy has revealed the ugly side of freedom,” The Globe and Mail, February 22, 2022.
10. Marco Bélair-Cirino, “Le juge en chef du Canada n’a pas oublié l’odeur d’anarchie,” Le Devoir, April 9, 2022.
11. William Gairdner, “The Charter at 40: How Canada Got Re-Colonized,” The Epoch Times, April 16, 2022.
12. See Oscar Douglas Skelton, Life and Times of Sir Alexander Tilloch Galt (abridged edition), p. 97. Toronto: McClelland and Stewart Limited, 1966.
13. Donald Creighton, The Road to Confederation: The Emergence of Canada, 1863-1867, p. 142. Toronto: Macmillan, 1964.
14. See, Adam Dodek, The Canadian Constitution, 2nd Edition, p. 37. Toronto: Dundurn, 2016.
15. Peter H. Russell, Constitutional Odyssey, Third Edition, p. 33. Toronto: Universitiy of Toronto Press, 2004.
16. See, Blackstone’s Commentaries on the Laws of England, volume 1, edited and with introduction by Wayne Morrison, LLB, LLM, PhD, pp. 119-120. London: Cavendish Publishing Limited, 2001.
17. Walter Bagehot, The English Constitution, p. 90. London, UK: Fontana Books, 1963.
18. William Renwick Riddell, LL.D., The Constitution of Canada in its History and Practical Working, pp. 98-99. New Haven: Yale University Press, 1917.
19. Ibid., p. 100.
20. G.M. Trevelyan, The English Revolution 1688-1689, p. 87. New York: Oxford University Press, 1965.
21. See note 8.
22. See note 4.
23. 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.
24. See note 8.
25. See Jean Bethke Elshtain, Sovereignty: God, State, and Self. New York: Basic Books, 2008. Elshtain’s book is an insightful study of the idea of sovereignty in history.