by The Honourable Brian Peckford
July 13, 2022
It is a real honour to be asked to speak to you on this very important occasion for freedom. Especially to honour someone I have met and with whom I participated at the Trucker Convoy in Ottawa. And most particularly our participation at the impromptu press conference to foreshadow a dark day in our Constitutional history when our elected representatives invoked the unconstitutional Emergencies Act. Equally momentous was meeting Tamara’s Board of Directors: honest, hard working Canadians fighting for our rights and freedoms on the precincts of our Federal Parliament.
Those days and hours will not be forgotten — by me or by many Canadians. It reminds us of just how fragile democracy really is.
Individual Freedom is a hard fought idea but one that has remained active in human governance for millennium. Socrates, appearing before the Athenian Jury over 2500 years ago, is a historic moment that captures us all when considering this idea, fighting for his right to free speech. The great Cicero, in the first century BC, fighting for the taxpayers of Sicily before the Roman Senate and the English Magna Carta in 1215, individuals fighting for rights of redress, less power for the Monarch.
Then there is the American Declaration of Independence, its Constitution and Bill Of Rights and the Federalist Papers, and the early French Revolution of 1789 and The Declaration of Rights and Freedoms and the Citizen.
And then there are the great western thinkers like Montesquieu, Locke, Voltaire, Mill, Paine, and Burke. And Americans like Jefferson, Jay, Hamilton and Madison. Later important political thinkers include Hayek, Popper, Hoffer, Arendt, Kirk and Sowell.
With the exponential growth of the administrative state in the later part of the twentieth century and the first decades of the twenty first, the individual rights in America’s Bill of Rights and the more recent individual rights and freedoms in the Charter of Rights and Freedoms in Canada, have come under attack, culminating in the attempted wholesale slaughter of these rights during the past almost two and one half years of the so called pandemic. Judicial activism was unleashed —and the intent, spirit and even plain meaning of a Constitution was undermined. As American Judge Robert Bork exclaimed in his 2002 book ‘Coercing Virtue’ —
‘Increasingly, the power of the people to govern themselves is diluted, and their ability to choose the moral environment in which they live is steadily diminished.’
Bork quotes American James Madison’s famous statement:
“There are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”
In Canada, books like the ‘Charter Revolution andThe Court Party’ by Professors F.L. Morton and Ranier Knopff highlighted the new judicial activism in our country where the authors state the courts ‘no longer just tell policymakers what they may not do but also what they must do.’
Canada’s Charter is a relatively new creature, just 40 years old this year. The American Bill of Rights was enacted in 1791.
I was a First Minister barely 15 months, June 1980, when the national political conversation centred around the question of Patriation and a first Charter of Rights and Freedoms document involving a meeting of the Prime Minister and the Premiers. Earlier attempts had been made at Patriation but ultimately failed with The Federal Government and the Provincial Governments unable to agree. Older members of this audience might remember the failed attempts like the Victoria Charter and the Pepin Robarts Report in the 1970’s.
As a result of this June 1980 meeting, a process was put in place to try again at Patriation and to include a Charter of Rights and Freedoms.
Of course, any potential opening of the Constitution would entail more than just these two items since there were numerous issues that required attention. Only two months later in August 1980, my administration issued a document under my signature as Premier and Minister of Intergovernmental Affairs entitled ‘Towards The Twenty First Century —Together.’
It said among other things:
‘The entrenchment of democratic rights and fundamental freedoms is a means of giving explicit constitutional recognition to values that have served Canada well. Newfoundland, therefore, supports a Charter of of Rights which will entrench the democratic rights and fundamental freedoms of Canadians.’
But, in what can now be described as most prescient, it went on to say:
‘ While explicit constitutional reference will have a significant normative value, the ultimate guarantee of liberty rests with the vigilance of the citizen, the accountability of government, the independence of the judiciary and the rule of law.’
This rather good start was abruptly halted by the Prime Minister of the time, Pierre Eliot Trudeau, indicating that the Premiers were too difficult, and that he and his administration could and would go it alone. He then had a bill passed in the Parliament to unilaterally Patriate the Constitution with his version of a Charter of Rights and Freedoms. It was as a result of this provocation that eight of the Provinces indicated that they opposed this Federal move with two of the Provinces, Ontario and New Brunsick, supporting the move. The eight Provinces went to court saying that the federal action was unconstitutional.
In a ground breaking ruling on September 28, 1981 the Supreme Court of Canada, many of its members friends of the then Prime Minister, ruled that indeed the Federal move by the Prime Minister was unconstitutional, and that a substantial number of Provinces was needed to agree for any such action. The Supreme Court members, then, were friends of the law first —
As a result of this Court decision, a substantial number of First Ministers would have to be involved in any constitutional change, not just the Prime Minister.
Following this decision, it was agreed by all the First Ministers that one final attempt would be made —a make or break session of three days on November 3rd, 4th, and 5th.
The November meeting was tense, and all knew the stakes. It was the night of the 4th, as a result of a written proposal by Newfoundland, that a consensus was developing which resulted in seven of the group of eight First Ministers (Quebec objected) forging a deal on the morning of the 5th that was then presented by me, as agreed to by the seven Provinces, to all First Ministers at a final meeting later that day. With some additional amendments, The Partition Agreement was born, the next year to be known as the Constitution Act 1982.
What is of great interest and is part of the historical record is that the ink was hardly dry when this historic achievement was undermined in two important ways:
A. The process by which the deal came together was dismissed and other unsubstantiated theories were advanced and remain to this day what some scholars think is the factual record.
Authors like Robert Sheppard and Michael Valpy who wrote the book ‘The National Deal in January, 1982 proceeded to describe the process with blatant inaccuracies.
Later, Ron Graham wrote another book on the topic ‘The Last Act: Pierre Elliot Trudeau, The Gang Of Eight And The Fight For Canada’ which should have qualified as the best fiction book for that year.
And then there was the article in the National Post newspaper by University of Calgary Professors, Morton and Cooper, ‘The Night of The Long Knives, Who Dunnit’ describing fanciful theories based on nothing.
It is interesting that none of these authors or professors were at the Patriation meetings, or produced any documents or credible evidence. And I was there. And their non factual statements are often given as much credence as statements by someone who was there. And I produced the evidence in my book of 2012 entitled ‘Some Day The Sun Will Shine and Have Not Will Be No More.’
To this day, almost a decade later, no one has questioned the statements and documents produced in that book.
Of course, these early false descriptions should have warned us all that this was a foreshadowing of what was happening in the judicial field.
Hence, my second point is:
B. Creeping into the legal, constitutional environment was this notion of a National Constitution to be something more or less than what was actually written. And this to be determined by unelected judges ruling on matters constitutional. This ‘living tree’ theory has taken over most of the law schools of the country. Judges gave themselves license through the Charter to create all manner of new powers —
Note the words of Law Professor Lorraine Weinrib as quoted in the book ‘The Charter Revolution and the Court Party —‘ the Court’s policy making is mandated by the Charter itself —. ‘ And former Chief Justice Beverley McLachlin, now with the Communist Chinese Hong Kong justice system, said in 1999 in a speech that ‘when politicians duck serious issues, courts ‘move in to fill the vacuum.’
The court would decide what issues politicians actually ducked, and then it would determine what a new policy would be.
Where, in the Charter or in the overall constitution generally, is there such provisions that provide this power to the Judges? Nowhere! These powers were created by these unelected people out of thin air!
In 2002 on the 20th anniversary of the Charter I gave a speech to the Continuing Legal Education Society of BC and the Federal Department of Justice. I asked the question — is what has happened what you expected re the Charter? My answer was No.
Here is what I said in that speech:
‘I did not think that the Supreme Court of Canada would go as far as it has in many of the judgements. Being the guardian of individual rights and freedoms is one thing, but actively entering the field of lawmaking and/or policy making through the adjudication of provisions in the Charter is quite another.’
I quoted the Prime Minister’s advisor Eddie Goldenburg as saying ‘I think it had a more profound impact than people expected.’
Most tellingly, the former Deputy Minister of Justice Roger Tasse’s reported comments on the decision in the British Columbia Motor Vehicles Act 1985 makes the point — ‘I don’t know if it was a mistake, but they certainly went beyond what was contemplated by the drafters.’
Then there is the late Premier of Saskatchewan, Alan Blakeney, a fellow First Minister who was involved in The Charter and the Patriation process, and lawyer to boot, who said this after 20 years of watching the courts mangle the Charter:
‘The fact that the Charter gave paramountcy to basic individual fundamental rights does not mean the judiciary was empowered to make incursions into the policy domain to the extent that has happened in the last twenty years.’
Mr Blakeney went on to refer to the most egregious case where the Supreme Court took onto itself the power of the purse overturning the legitimate authority of an elected legislature.
Judge William Marshall on the Newfoundland Court of Appeal, in a dissenting opinion, had this to say about this same case:
‘However, it is safe to say without fear of contradiction, that there is no place under the democratically oriented separation of powers doctrine, whatever the system of government, for the judiciary to be invested with ultimate power over any aspect of the public expenditure.’
And Then The So-Called Pandemic Hit
The soil was sure fertile when the so-called pandemic came along almost two and one-half years ago for the Canadian administrative state to cultivate this ground—
a Government false narrative made more so by the questionable federal health officials’ connection to the Chinese influenced WHO,
perpetrated by a lame and publicly subsidized press, an out of control tech industry dominated by a few ego driven billionaire internationalists,
a pharmaceutical industry that had already been found guilty of deceit around the world, but that had built up enough power to capture science and to control the public regulatory agencies,
and finally, a judicial activism that has become a law maker, not just a law keeper, a supposedly independent agency of democracy appointed by a corrupt political system, producing opinions at the Provincial Supreme Court level that ignore provisions of the the very Charter on which they are rendering life altering, momentous decisions,
and in my case, a Federal Court that delays a hearing already agreed to by the parties. The interests of the Court participants apparently come before those of the rights and freedoms of the millions of Canadians still affected by the federal travel mandates.
And this was all aided and abetted by a failed parliamentary system:
that obstructed justice, closed down parliamentary committees,
was silent on the law breaking of the Prime Minister,
instituted an unconstitutional Emergencies Act, ignored the unsubstantiated, irresponsible, inappropriate opinions of our top Judge,
ignored the accusation of misogynists and racists levelled by the Prime Minister at some of his own citizens,
and rendered the Members of Parliament mere instruments of abuse by the Party whip————making a mockery of the democratic principle of accountability.
This is best reflected in the 2019 book by our own scholar on political governance, Donald J Savoie, in his seminal book ‘Democracy In Canada — The Disintegration Of Our Institutions.’ In his introduction he makes the point:
‘Canadian representative democracy needs to be on guard against mediocrity, complacency, poor journalism, low regard for politicians, a debased public service, a sense that citizens have no control over their Government, and that the country’s national political institutions are unable to reflect Canadian society and its regions. People instinctively sense a problem with the state of Canadian democracy.’
Mr Savoie’s polite scholarly language of 2019 might be a little sharper now after two plus years of unconstitutional, unscientific mandates by all 14 Governments and Legislatures of this nation. It is a plague upon our time that independent reports and scientific analysis outside of the Government, were deliberately ignored — take for example our fellow Canadian Professor, Douglas Allen of Simon Fraser University, right here in the city where we are now gathered, who published a report in April 2021 entitled ‘Covid Lockdown Cost/Benefits:
A Critical Assessment of the Literature’ reviewing 80 studies examining Government mandates.
On page 30 of that report the following is said:
——-‘and we know that jurisdictions with limited to no lockdowns did not systematically have death rates that exceeded hard lockdown jurisdictions. Not only did they not exceed, but often they had equal or better performance.’
On page 43 the professor states from the data—
‘If lockdown only had a marginal effect on deaths, then by cost/benefit standards, lockdown has been a public policy disaster.’
What is most shocking (and no doubt why the report was not carried by the mainstream media) is that information was available very early about the negative effects of the lockdowns:
‘One could argue that the Covid-19 lockdown policy was only wrong ex post. Hindsight is 20/20, and looking back is unfair. In March of 2020, faced with an unknown virus and expert advice that millions of people would die without lockdown and isolation, politicians and public health officials made the correct decision at the time.
Such an argument is reasonable for March of 2020, and even possibly for April 2020. However, as noted in the literature review, by late April it was already known that i) the empirical predictions of the SIRS based models were wrong, ii) that the models made a number of questionable assumptions, iii) that the deaths were highly skewed to the elderly, and iv) that the costs were large.
The progression of understanding about the virus has improved over time, but it has not fundamentally changed. By August 2020, there was enough information available to show that any reasonable cost/benefit analysis would show that lockdowns was creating more harm than good.
It is unreasonable to suggest that a proper decision could not have been made in the fall when the second wave of infections hit.’
And then there was The Great Barrington Declaration prepared by three of the leading researchers in the world and signed by tens of thousands of health professionals calling for a targeted approach, focusing on the most vulnerable and let the rest of society remain open. One of those three authors (Dr. Sunetra Gupta) was maligned by the establishment, and she was forced to disclose the nature of the attack against her. As we all know, the principles in this declaration have been proven to be valid.
And what of the work of Dr. Peter McCullough, Dr. Pierre Cory, the late Dr. Zelenko, the Doctors for Ethics Organization, the World Council of Health and the scores of other national and international organizations that have done legitimate research?
As if to rub salt in the wound, along comes ‘The Trusted News Initiative,’ a devious action to rid the public of an open and free press around the world. Of course, our 1.2 billion dollar publicly subsidized CBC was an eager participant. I am reminded of the statement by the modern day philosopher Hannah Arendt: ‘Only the mob and the elite can be attracted by the momentum of totalitarianism itself. The masses have to be won by propaganda.’
In British Columbia, the brave and highly qualified Dr. Charles Hoffe was harassed by his professional college of physicians and surgeons, denied hospital privileges, and maligned by the establishment for being a ‘vaccine skeptic.’
But then think of the ongoing harassment of Dr. Stephen Malthouse of BC, Dr. Francis Christian of Saskatchewan, Dr. Eric Payne of Alberta, and Dr. Byram Bridle of Ontario, all highly credentialed medical professionals.
And then the blatant avoidance of the valuable work of Lt. Colonel David Redman in highlighting the Emergency Measures Organizations already in place in all Provinces that could have been used in the very beginning to combat the so-called Pandemic.
Future—A Magna Carta For Canada
What are we to do about the carnage that has been wrought?
Fortunately, we have the Justice Centre and courageous people like Tamara and her trucker heroes. We must protect and support the work of such organizations and individuals. Anyone who has the privilege to be involved with the Justice Centre knows of the qualified professionals who work tirelessly to defend the rights and freedoms of Canadians.
But we must do more if we are to re-establish our democracy.
We must recognize and understand that bandaids won’t do, just like changing leaders of Existing Mainstream Political Parties. We have done that, and it’s this framework that has created where we are now. The Parties must change, not necessarily the leaders.
We must get past this type of thinking — that tinkering will do.
The damage is immense. Major reform, now, is essential.
And It is not only the existing Governments that are guilty, but our existing mainstream political parties, the press, big pharma, big tech and many of the institutions of civil society including our educational establishment.
Therefore, I have proposed what I call A Magna Carta for Canada—A First Step At Real Change.
Some of the major points are:
A Citizens led National Inquiry into the actions of all the Fourteen Governments of Canada to determine the necessity and constitutionality of their various mandates and lockdowns. Those found guilty of wrong doing to be prosecuted to the full extent of the law. Accountability must be the hallmark of all reform moving forward.
All registered Political Parties in Canada must produce publicly annual audited financial statements. None presently in the Parliament of Canada do so. If we don’t know how they manage their party funds, how can we trust them with taxpayers funds?
Legislation must be introduced to make it unlawful for an elected member of a Parliament in Canada to serve if they have broken a Canadian law as determined by a court or the relevant Conflict of Interest Commissioner.
Education from grade 8 to 12 must include in its curriculum a mandatory civics subject. We must know and understand how our country works in order to fully participate in it.
Parliament’s power must be re-established, the power of the Prime Minister’s Office must be reduced. Therefore, a law restricting the workforce of the Privy Council Office and the Prime Minister’s Office — combined, it must not exceed 500 people.
A law must be passed prohibiting the Federal Government from signing any International Agreement that in any way reduces the country’s sovereignty.
A law must be introduced ensuring that Parliamentary Committees cannot refuse to hear testimony that witnesses want to present. For example, the SNC-Lavalin affair and Jody Wilson-Raybould.
The appointment process for Supreme Court Judges Federally and Provincially must have to go through Parliament and Parliaments’ decisions are final.
A private members’ motion presented to a Federal, Provincial or Territorial Parliament must be heard and voted upon within 6 months (sitting days) of its introduction.
An Annual Federal, Provincial, and Territorial First Ministers Conference must be held where First Ministers outline in writing what they consider are the national concerns for that year.
Balanced Budgets must be legislated in all the Parliaments of the country, and can only be breached in times of war or insurrection.
The two principles that introduce the Charter of Right and Freedoms, the supremacy of God and the rule of law, must be considered in the written judgement of any case involving the Charter.
Integrity and Parliamentary Supremacy and The People, must be the guiding principles if we are to restore our democracy. Nothing less is acceptable.
I leave you with a quote from American Physicist Freemen Dyson as quoted by Thomas Sowell in his impotant book, ’ Wealth , Poverty and Politics ; An International Perspective’ ;
‘The worst political blunder in the history of civilization was probably the decision by the Emperor of China in the year 1433 to stop exploring the oceans and to destroy the ships capable of exploration and the written records of their voyages —The decision was the result of powerful people pursing partisan squabbles and neglecting the long range interests of the empire. This is a disease to which governments of all kinds, including democracies are fatally susceptible.‘
This year is the 50th anniversary of my being elected to a Canadian Parliament.
May I hope, with you, that it is also the year, that with heroes like Tamara, we can eradicate this real disease — and restore our rights and freedoms — before it is too late.