I appreciate Professor Salim Mansur’s essay concerning Constitutional Change . Unlike may academics today he is at least trying to be constructive.
Unfortunately , the academic world is often a world of theory ; one where ideas are debated and tested. Often realism takes a back seat, although such debate is a necessary part of that world. But it is not the real world of the cut and thrust of Constitutional Change and negotiation .
Such is the case with the Professor’s essay on Canadian Constitutional Change. 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.
Of course, anyone familiar with such matters realizes we are talking about very complicated and protracted processes. In the Canadian context Canada was formed in 1867 through the enactment of the BNA Act and it took until 1982 before amendments were made and issues added leading to The Constitution Act 1982. And that after at least 10 attempts over that period of 115 years. And when it did happen it was a 17 month negotiation that even involved a major Supreme Court of Canada Decision in September 1981.
Constitutions by their very nature are to be documents of permanence bonding nations together.
Three Major Flaws With The Professor’s Essay :
First, as I indicated , changing the Constitution is no easy matter and in Canada’s case that has been made more difficult in recent decades.
The general amending formula agreed to in the Constitution Act of 1982 means it takes the agreement of seven Provinces representing 50% of the population and the two branches of the Federal Parliament for Constitutional Change . And right now there is no appetite for Constitutional Change and the likelihood for that to change any time soon is dismal. And making significant change institutionally is even more difficult, it means unanimity —all Provinces and the two branches of the Federal Parliament.
Why little appetite?
This is 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 , whereby Federal Financial Transfers in Health, Education, Social Service and Equalization sanctions the status quo . What have not Province ( one that receives special equalization payments) will jeopardize changes to the Constitution provision on equalization that could threaten the transfer of billions of dollars annually from the Federal Government? And even those Provinces who do not receive equalization payments have become more and more dependent on Federal Transfers , especially Federal Health Transfers , ironically an exclusive area of Provincial jurisdiction . Provinces like Alberta that cry foul when there is any indication of Federal intrusion in exclusive provincial jurisdiction on natural resources but sign on to a health transfer agreement whereby Federal monies intrude into this area of Provincial exclusive jurisdiction have a big problem —-
Second , the suggestion that the insertion of seven words to the charter will somehow have a different fate than the the hundreds , thousands of words now a part 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.
The Judiciary of Canada have wrongly decided that the ‘ living tree’ doctrine should be the one that guides interpretation of our constitution. That is , if the unelected judges , for example, believe that the country is not interested in the traditional understanding of a present Charter wording of ‘supremacy of God ‘ then that can be ignored or diluted . The plain meaning of what is written becomes irrelevant. Using the amending formula where elected people decide on constitutional change is replaced . We have numerous examples of Court decisions in recent months of the intent of Section 1 of the Charter being ignored and where rulings have completely misinterpreted any plain understanding of the phrases ‘demonstrably justify ‘ and ‘free and democratic society’ crucial conditions for any waver of individual rights.
This world wide judicial activism has been eloquently described by Robert Bork in his book ‘Coercing Virtue and Canadian judicial activism in the book ‘The Charter Revolution and The Court Party ‘ by F. L. Morton and Rainier Knopff.
Witness the words of a Alberta appeal court judge being approvingly quoted in 1985 Supreme Court Judgement in the case of R v Big M Drug Mart —-the Charter introduction ‘ does not recognize a Christian God.’
Of course the Charter does not recognize a Christian God because it was self evident given all those who signed the Patriation Document were Christians ! We knew no other God!!
As Robert Bork says in his book just quoted:
‘Courts possess very potent powers , both coercive and moral. Although that power is asserted over an entire culture , it is not always dramatic , because it proceeds incrementally , but , the increments accumulate . It is all the more potent for that. What judges have wrought is a coup d’etat —slow moving and genteel —but a coup d’etat nonetheless.’
A third wrinkle in this simplistic essay is that any re-opening of the Constitution will involve many issues as was the case in 1981 , not just the professor’s suggestion . The professor’s suggestion may not even make the cut of the first list of agenda items to be discussed. And if it does what likely concessions will be sought for its inclusion if it is to survive subsequent agenda cuts? Will it be ‘the supremacy of God ‘ provision? Not unlikely given how the courts have been ruling —and where is natural law and inalienable rights then?
Many forget that the Constitution Act 1982 was not just the Charter . It was a package involving even at the final analysis, aboriginal rights, Section 35, Equalization, Minority Language Rights , Section 36, and Section 33 , the contentious Notwithstanding Clause without which there would have been no deal , no Charter at all. Then there is the Amending Formula , and issues dealing with natural resource rights, and subsequent conferences.
So the words ‘ by the will of the people ‘ sound good in theory , until the people are informed that in practice such action will trigger complex and protracted negotiations that will just not involve these seven words but many other contentious important issues where trade off and compromise will be necessary and involve many players , directly and indirectly spanning many months.
There are many other points in the essay with which I take issue especially concerning political theory and actual English constitutional evolution and its jurisprudence and the description of the American Constitution . But they are for another day . Except to say that , for example, the definition of our Constitution is incorrect and shows a shocking lack of understanding. The Professor says:
‘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.”
This is blatantly untrue as The Supreme Court of Canada decision of September 1981 makes clear where it rules the Government of Canada ‘s unilateral move to patriate the constitution is unconstitutional because it does not conform with —-not the written BNA Act —-but the unwritten convention where Provinces are to be involved in any such Constitutional change that affects the Provinces.
Our constitution is both written and unwritten —on page 72 of the SCOC 1981 decision :
‘This constitution depends then on statutes and common law rules which declare the law and have the force of law, and upon customs, usages and conventions developed in political science which, while not having the force of law in the sense that there is a legal enforcement process or sanction available for their breach, form a vital part of the constitution without which it would be incomplete and unable to serve its purpose.’
And the actual wording by the court of that decision :
‘We have reached the conclusion that the agreement of the provinces of Canada, no views being expressed as to its quantification, is constitutionally required for the passing of the “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” and that the passing of this Resolution without such agreement would be unconstitutional in the conventional sense.
Canadians must realize that notions of significant constitutional change are unlikely , nigh impossible in the next few decades using the constitutional means at our disposal. If one is talking outside of the present constitutional framework for change then that is a nwhole different ball game where everything is new ; rules, new entities and creating a new Constitution.
But there is a realistic way forward for reform through the present structure until such time as Constitutional change is more amenable and hopefully a more originalist approach to Constitutional interpretation is appreciated.
If we can achieve these goals then we may have changed the political environment sufficiently for real constitution reform to begin.
Our country is not only broken Constitutionally, but ethically and lacking integrity .
That’s why I have recommended My Magna Carta —A Proposal To Reclaim Canada first proposed last year:
Magna Carta For Canada —My Speech On The Steps Of The BC Legislature Today( May 28) —Reclaim Canada Conference —A Proposal To Reclaim Canada
‘ Canada’s Magna Carta—We, The Citizens of Canada Stand For—
A. An Independent Public National Inquiry to Examine whether Government (Federal, Provincial and Territorial) mandates and lockdowns were necessary and constitutional. People in Government and their agencies who are found guilty of breaking the law after due process MUST be brought to Justice.
Such an Inquiry CANNOT be led by any of the Governments of Canada who are the major subjects of the Inquiry. Instead, a Citizens Group MUST be formed for that purpose. And these Governments and their agencies MUST open their books and release to the inquiry and the public all necessary relevant information concerning their actions during the pandemic. ( Note : Sadly this has already failed the ethics test , exhibit A of our malaise, and hence all the more reason for pushing ahead with the other proposed reforms .)
B. ALL Registered Political Parties In Canada Must Be Obligated By Law To Publish Audited Financial StatementsANNUALLY. Right now, NONE of the Federal Parties who are in the House of Commons publish any audited financial statements on their Party websites .
C. No Member of The Federal Parliament or members of Provincial Legislatures or Territorial Assemblies can sit in these chambers if they have BROKEN a Canadian law as determined by a court or an Ethics and Conflict of Interest Commissioner.
D. EVERY private members bill/resolution presented before a parliament in Canada must be debated and voted upon within six months of parliamentary sitting days from its introduction.
E. All Judges of the Supreme Courts of the Provinces and Courts of Appeal, the Federal Courts and the Supreme Court of Canada MUST, BY LAW, have criteria established as to their qualifications to serve. And all Government nominated candidates for those positions MUST be subject to a hearing by a parliamentary committee who would present to FULL Parliament their recommendations to approve or reject any nominated judge. Parliament’s decision is FINAL.
F. ALL Parliamentary Committees of all Canadian Parliaments MUST have safeguards whereby the majority on the Committee cannot close down those committees when the business of the Committee has not been completed—when there are citizens with relevant valuable information to be presented.
G. All Governments of Canada MUST have balanced budget legislation enacted with no exceptions except in times of pending war or insurrection or the country’s existence is at stake.
H. All Authorities responsible for primary, elementary and high school education MUST enact curriculum measures to ensure Civics is a mandatory subject in each grade at Grade Eight and above.
l. The power of the Prime Minister MUST be reduced. The Prime Minister’s office and the Privy Council today has a workforce of over 1500 persons. This MUST be reduced to not more than 500. The more than 206 Departments and Agencies and the 320,000 Public Services, that work for them, can then get back to doing the work they were hired to do.
J. There MUST be a three day Public First Ministers Conference ANNUALLY to discuss the pressing national issues of the day. All Governments MUST publicly issue written statements at the Conference highlighting what they think are the national priorities.
K. Canadian Courts hearing a Constitutional Case related to the Charter of Rights and Freedoms MUST BE obligated to consider in their written rulings the two introductory concepts to the Charter —The Supremacy Of God and the Rule of Law. NO DECISION rendered without a written consideration in the decision of these principles will be valid.
L. Canada must remain a sovereign nation. Therefore no treaty or international regulations, of any kind, can be agreed to by Canada that in any way erode our nation’s sovereignty.
M. Membership in any international organization MUST BE CONDITIONAL upon Canada remaining a completely sovereign nation.
David Bell, a scholar with Brownstone Institute , doctor, public health official, formerly worked for WHO , said this in an article this past week :
‘Pressure to conform is strong and maintaining integrity carries risks. We all have families, jobs and lifestyles to protect. The belief of many that the ‘humanitarian’ sector was somehow different should by now be shattered. That is a good thing, as illusions do not help us and we need to recognize the historical reality that preserving personal comfort has often entailed throwing others under the bus.
When the tide turns, the easiest approach is to turn with it. As a staff member of an international agency said to me recently – ‘the money is going into pandemic preparedness, you have to accept and go with it.
As an insight into humanity, this response is a disappointing one. We are always poorly served by cowardice.
But recognizing how things are, and that help is not coming from those paid to do so, will strengthen the resolve of the rest of humanity to move forward without them, taking the future into their own hands. As, according to orthodox public health, they should.’
Unless we take matters in our own hands , and move forward with new paradigms , new structures , facing up to the brutal reality of our failed existing system we will be captured by corrupt mainstream political parties, a broken heath system where over 5 million Canadian are without a regular physician , an education system that promotes failed economic and political ideas , that denigrates our traditions and historical figures that helped create this nation, a press system that through coercion and money has become an arm of big Government , an economic system that depends on Government and where real free enterprise is stifled and fair , free trade is on its deathbed .
A system that sees our society being run by the four horseman —big government, big press, big pharma and big tech , an Orwellian construct that with the dominance of a world order that wants the nation state reduced , the individual subject to dictates of an international unelected bureaucrat .
This is our fate without a New Magna Carta For Canada .’
Honourable A. Brian Peckford P.C.
Only Living First Minister Who Is A Signatory To The Patriation Agreement 1981 —The Constitution Act 1982.
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