Twilight of the Constitutional Gods
Constitutions no longer protect our rights, where Power is King.
The Canadian Bill of Rights was passed into law on August 10, 1960. It was the earliest explicit expression of human rights law in Canada at the federal level. It was preceded by the UN Charter — but also by the recognition by the courts of an “implied bill of rights” sewn into the fabric of the Canadian Constitution, modelled as it was on British representative government and parliamentarism.
The origins of the Canadian Bill of Rights are quaint, much like Canada before Woke. It was a time long before the patriation of the Canadian Constitution — a time when the then “dominion” of Canada operated under the wing of the British empire. The Canadian Constitution was a mere statute of the British Parliament. The law was called the British North America Act.
In 1936, four years before being elected to Parliament, a man from Saskatchewan named John Diefenbaker, arguably the last Canadian, according to the likes of a George Grant (Lament for a Nation), began drafting what he conceived of as a kind of US Bill of Rights. By these facts alone, we may conclude he was a man who believed in his country and was a romantic by temperament. On March 16, 1950, a decade before the Canadian Bill of Rights became law, Diefenbaker, then a Saskatchewan member of Parliament, told a public forum that such a law was needed to protect freedom of religion, the press, speech and association from encroachment by the state. In 1960, by now prime minister, Diefenbaker saw to the passing of the Canadian Bill of Rights into law. Interestingly enough, he is a Canadian PM who is so rarely mentioned anymore, that few Canadians today could even tell you who he is. Memory and nationalism are fraternal twins.
The Bill of Rights remains in force to this day, austensibly binding on the federal government of Canada. It is to be distinguished from the entrenched Charter of Rights and Freedoms, first, in that it is a mere federal statute, not binding on the provinces (our states) and which can therefore be repealed by the federal government at any time and, second, in that it expressly protects property rights. The socialist party of Canada, called the New Democratic Party (which should alone give cause to doubt the democratic system) and other progressives blocked the inclusion of a “right to property” in the Charter, fearing such a right could interfere with the rapidly expanding Canadian welfare state. As usual with such types, those to whom incoherence is a fact of life, they didn’t think to seek an amendment of the Bill of Rights to make it consistent with the Charter’s enumerated list of rights.
The Bill of Rights article 1 states:
It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the protection of the law;
(c) freedom of religion;
(d) freedom of speech;
(e) freedom of assembly and association; and
(f) freedom of the press.
The Bill further provides:
2 Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared …
In other words, fundamental freedoms such as the “right of the individual to life, liberty, security of the person and enjoyment of property” cannot be taken away by the federal government unless the federal government declares — in an Act of Parliament (not a simple regulation) — that it intends to do so. This was the precursor and inspiration for section 33 of the Charter which states:
33 (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
Although much flimsier that the US Bill of Rights, which does not contain an “opt out” clause, Article 2 of the Bill of Rights and section 33 of the Charter are clearly designed as shaming provisions. A tyranical government, intending to encroach on civil liberties, must declare itself publicly for what it is — a tyrant, and be prepare to persuade the people that it is a good tyrant. There is a charming honesty in this. The tyrant must declare that it intends to be a tyrant, and thus face the political consequences of its actions or be prepared to respond with an iron grip. It was assumed that in a civilized representative society, one remotely resembling a representative parliamentary system, or an austensible liberal demoracy, few governments could sustain such shame without a very good reason for acting as they did.
If there is an indelible characteristic of Western progressive Woke governments, it is this: they do not admit to anything and never to being wrong, ever. The esssence of the modern liberal technocratic state is that it IS good, caring and loving. It is the maternal. There is no government in the West, whatever lockdown it imposed upon its people, whatever mandates or no-fly lists it created, no matter what innocent speech it declared to be hate or violence, whatever activities it banned, words it censored, or what “unacceptable” ideas it declared anathema, that has ever acknowledged itself to be tyranical or to have committed a tyrannical act or to have had a tyranical intent. Admissions of guilt, of wrongdoing, have never and will never occur. The apparent rapid decline of Western liberalism into technocratic tyranny goes unacknowledged. The mother will never admit it hates its own child. If it harms or even destroys it — it was for the best.
Which brings us back to the declaratory provisions of the Bill of Rights and Charter. The Canadian government has declared a state of emergency four times,
World War I (1914-1920)
World War II (1940-1949)
The October Terrorist Crisis of 1970
Trucker protest in 2022
Only the latter two declarations were subject at law to the Bill of Rights (1960). Only the most recent restriction was in law subject to the Charter as well. But something had indeed changed since 1970, something intangible.
The War Measures Act as our emergency legislation was called in 1970, was enacted under an express declaration that the Bill of Rights, 1960, was suspended in its application for the duration (See War Measures Act). To the government’s credit, it acknowledged that it would in the national interest be suspending civil liberties in order to arrest and detain terrorists and sympathizers, as well as taking other unconstitutional measures, and would, accordingly, have to render the Bill of Rights temporarily inoperative. It acted like an adult, expressly and overtly, accepting the shame and the blame for its actions, which it deemed expedient and salutary — to Prime Minister Pierre Trudeau’s credit. This was of course Justin’s father. We may at this time be forgiven if our thoughts drift to images of Marcus Aurelius and Commodus.
Modern Woke does not accept blame. It is not an adult. It is an adolescent, perhaps even a toddler. It is always right. It is pure power. It does as de Jouvenel predicted (on Power), accumulate, expand and entrench its power. Look as you may, and you will not find a declaration that the Bill of Rights or even the Charter of Rights and Freedoms are suspended in their operation when an emergency is invoked in Canada. The new Emergency Act (replacing the War Measures Act) came into force in 1988. To make matters even more absurd, the Emergence Act — used at least in part to end the trucker protest, to throw protesters in jail and seize bank accounts, was in fact an act of caring, love, and compassion — the very incarnation of the Bill of Rights or the Charter Rights and Freedoms — in the bloodshot eyes of Woke. The Emergencies Act, R.S.C., 1985 c. 22 (4th Supp.) makes it so in its preamble:
WHEREAS the safety and security of the individual, the protection of the values of the body politic and the preservation of the sovereignty, security and territorial integrity of the state are fundamental obligations of government;
AND WHEREAS the fulfilment of those obligations in Canada may be seriously threatened by a national emergency and, in order to ensure safety and security during such an emergency, the Governor in Council should be authorized, subject to the supervision of Parliament, to take special temporary measures that may not be appropriate in normal times;
AND WHEREAS the Governor in Council, in taking such special temporary measures, would be subject to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights and must have regard to the International Covenant on Civil and Political Rights, particularly with respect to those fundamental rights that are not to be limited or abridged even in a national emergency …
…
See the full text here: Emergency Act.
When the Justin Trudeau government declared its emergency in 2022, the regulation putting the Act into effect also makes no mention or reference to the Charter or Bill of Rights as, of course, first, such a suspension must be in an Act of Parliament and, second, the enabling legislation makes clear these suspensions of freedom, including detention, seizure of property, conscription of tow truck companies and other acts of tyranny — are by the law itself consistent with the Bill of Rights and the Charter. They are measures enacted by a government that loves you and to keep good Canadians safe, as were the mandates the truckers were protesting. The preamble to the regulation should reassure us that the modern liberal, progressive state acts only out of love:
Whereas the Governor in Council has, by a proclamation made pursuant to subsection 17(1) of the Emergencies Act, declared that a public order emergency exists;
And whereas the Governor in Council believes on reasonable grounds, that the regulation or prohibition of public assemblies in the areas referred to in these Regulations are necessary;
Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, pursuant to subsection 19(1) of the Emergencies ActFootnotea, makes the annexed Emergency Measures Regulations.
I will come back to this notion of “reasonableness”, which is critical in the progressive acquisition and expantion of power. For present purposes, consider that among the provisions contained in these regulations, which of course couldn’t possibly be an enfringement on civil liberties, is the following:
2 (1) A person must not participate in a public assembly that may reasonably be expected to lead to a breach of the peace by:
(a) the serious disruption of the movement of persons or goods or the serious interference with trade;
(b) the interference with the functioning of critical infrastructure; or
(c) the support of the threat or use of acts of serious violence against persons or property.
Again, we see the majoritatian standard of what is “reasonable”. See link to full text of the Emergency Measures Regulations.
Understand that Western governments like the Canadian one are shameless. To fullfil their shamelessness, they are confident their utter lack of shame will be uphelp by the courts and the population that keeps them in power and has come to accept the messaging of care, love and compassion. The state can do no wrong and therefore has nothing to declare.
If this thesis is correct, there will need to be other examples. They are many. Take the Trudeau government’s recent announcement that it will prohibit the acquisition and transfer of handguns in Canada. As noted above, the Bill of Rights, unlike the Charter, does expressly protect the right to the enjoyment of property. “Enjoyment” at law since Roman times includes the right to use but also the right to transfer, or lend or dispose of your property by will it to others. This right of transfer is inherent in the nature of property. If I own something I cannot use or sell, I don’t really own it. What I have is at best a tentative permission at the discretion of the real owner, presumably the sovereign or one of its agents. The property in question has been effectively confiscated. The same would apply to your tentative digital property or money.
Accordingly, the Trudeau goverment’s handgun freeze is a clear enfringement of the enjoyment of property by Canada citizens. Property is always subject to restrictions and limitations and regulations: rules of conveyancing, mortgaging, the statute of frauds, regulation of realty and wills and estate. Regulation is not in itself confiscation. It is a matter of degree. The courts recognize the distinction. But the freeze described above crosses unquestionably the line from mere “regulation” to confiscation. Examples of mere regulation include requiring a licence for a modest fee or requiring an owner to first take a driving or a gun safety course, or removing motor vehicles or guns from an owner who has become suicidal or homicidal. We grant such latitude to the collective, to the state. But good people can comply without much difficulty and the property rights otherwise survive.
Assuming then we are dealing with confiscation, not regulation, such an Act is presumptively invalid or ultra vires any Parliament, without an Article 2 declaration. And yet you wont find one. It is as if the state and its team of Justice lawyers are for some reason indifferent. Fundamental rights are encroached upon, yet this is ignored with impunity. The handgun freeze legislation can be read here: Bill C-21. Look as hard as you may, you won’t find a declaration exempting it from the application of the Bill of Rights or the Charter.
Another area of inconvenient truth involves the structure of the Canadian Constitution, which from the days it existed solely as a Statute of Westminster, referentially incorporated features of the British Parliamentary system as it was in 1867. The effect of the language of our founding carta was to create what has been called an “implied bill of rights”. The concept is a colourful way of recognizing that a nation with a written constitution will have structural limitations and guide posts ;embedded into the language of the founding documents. For example, there is always language in a written constitution identifying basic features or basic principles meant by the drafters to underly the operation of the Constitution. One way this occurs is by what is called referential incorporation. The concept of an implied bill of rights first came to light in judicial decisions interpreting the division of powers between federal government and the states or provinces. In other words, the concept arises out of Canadian federalism.
When provincial legislation was found to intrude deeply into fundamental freedoms of speech, religion, association or assembly, the provincial legislature was said by our Supreme Court of Canada to be creating criminal legislation, which under the distribution of powers is reserved exclusively to the Parliament of Canada by section 91(27) of the then BNA Act, now Constitution Act, 1867 (in the US, criminal law is reserved to the states). If a province intruded in the “domain of criminal jurisprudence” reserved to the federal government, it was acting unconstitutionally.
The question then arose by implication, does then the federal government reserve for itself, as the residuary source of soveignty, the power to create a tyrannical govenment wholly different from anything that existed at the time of Confederation (the name given to our founding event)? Is there an implied bill of rights that also limits what the federal government can do, even within its unquestioned residuary powers, such as the criminal law. The Preamble to the Constitution Act, 1867 suggests there is:
Whereas the Provinces of Canada, Nova Scotia and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom ...[2]
The words "similar in principle" are words the founders must be presumed to have intended to have meaning, even as a tool of interpretation. Arguably, they present a structural limitation on what a federal government, even a progressive liberal government under the likes of a Justin Trudeau, or even the father, can do. Canadian governments presumably are only governing and legislating in a manner consistent with the Constitution if in so doing, they leave for their successors at the end of each parliament a system of government “similar” to the one the founders modelled, one that acts under the influence of public opinion, of a free press, with free speech. These are rights that precede the Charter of Rights and Freedoms and, best of all, are not subject the limiting provision of the Charter’s section 1, discussed further below.
Accordingly, legislation that in one blow or, over time, incrementally, destroyed the citizen's ability to debate, to assemble or to associate freely or that turned the House of Commons or Senate into mere rubber stamps with all power transfered to the executive or to a higher world government, would de facto or rather ipso facto, be contrary to Canada's representative and national parliamentary system of government, and would therefore be unconstitutional. As a bit of a spoiler alert, the progressive governments of the West are never likely to acknowledge such real or theoretical limits on their power.
In in the 1930s, in Reference Re Alberta Statutes, the Supreme Court of Canada struck down Alberta legislation it deemed ultra vires, or outside the jurisdiction of the province of Alberta. In so doing, it addressed the existence of an implied bill of rights. The province of Alberta, under the Social Credit government of William Aberhart had passed several laws as part of a series of reforms inspired by social credit economic theory. Alberta made a number of legislative attempts to implement the Social Credit agenda, but were hamstrung by the Canadian federalist structure that divided sovereignty. In a lengthy skirmish with the federal government, which I won’t get into here, Alberta ended up enacting a bill that may sound very familiar in 2022: Bill No. 9 Accurate News and Information Act (requiring newspapers to print "clarifications" of stories considered inaccurate by the Social Credit Board, and to reveal their sources on demand, and also authorizing the provincial government to prohibit the publication of any newspaper, any article by a given writer, or any article making use of a given source) This bill and a number of others that infringed federal jurisdiction in areas like currency, banking and bankrupcy law, were challenged by the feds and the issue ended up before the Supreme Court of Canada.
The opinion of Justice Cannon on press freedom and what we would call today “fake news” or censorship by the state, addresses this structural issue, the embeding of a tradition into the fabric of the nation:
Under the British system, which is ours, no political party can erect a prohibitory barrier to prevent the electors from getting information concerning the policy of the government. Freedom of discussion is essential to enlighten public opinion in a democratic State; it cannot be curtailed without affecting the right of the people to be informed through sources independent of the government concerning matters of public interest. There must be an untrammelled publication of the news and political opinions of the political parties contending for ascendancy. As stated in the preamble of The British North America Act, our constitution is and will remain, unless radically changed, " similar in principle to that of the United Kingdom." At the time of Confederation, the United Kingdom was a democracy. Democracy cannot be maintained without its foundation: free public opinion and free discussion throughout the nation of all matters affecting the State within the limits set by the criminal code and the common law. Every inhabitant in Alberta is also a citizen of the Dominion. The province may deal with his property and civil rights of a local and private nature within the province; but the province cannot interfere with his status as a Canadian citizen and his fundamental right to express freely his untrammelled opinion about government policies and discuss matters of public concern. The mandatory and prohibitory provisions of the Press Bill are, in my opinion, ultra vires of the provincial legislature. They interfere with the free working of the political organization of the Dominion. They have a tendency to nullify the political rights of the inhabitants of Alberta, as citizens of Canada, and cannot be considered as dealing with matters purely private and local in that province. The federal parliament is the sole authority to curtail, if deemed expedient and in the public interest, the freedom of the press in discussing public affairs and the equal rights in that respect of all citizens throughout the Dominion. These subjects were matters of criminal law before Confederation, have been recognized by Parliament as criminal matters and have been expressly dealt with by the criminal code. No province has the power to reduce in that province the political rights of its citizens as compared with those enjoyed by the citizens of other provinces of Canada. Moreover, citizens outside the province of Alberta have a vital interest in having full information and comment, favourable and unfavourable, regarding the policy of the Alberta government and concerning events in that province which would, in the ordinary course, be the subject of Alberta newspapers' news items and articles.
A structural feature of a written constitution is significant in that it cannot be overriden by the declaratory provisions of the Bill of Rights and the Charter of Rights, article 2 and section 33 respectively. Structural features are antithetical to progressivism and activism and not subject to the living tree theory of constitutional law, that original intent matters. To change the structure you need in effect to replace the old constitution with a new one, shaming of the highest order. This is a highly cumbersome way to proceed. The better way as the progressives have discovered is the way of power and propaganda.
The Charter of Rights and Freedoms (Charter), which mostly came into force in 1982, does not override the BNA Act, now the Constitution Act, 1987. There is no language in the Charter stating that it operates “notwithstanding” the BNA Act. It therefore operates along side it. Further, we have this provision:
Legislative powers not extende
31 Nothing in this Charter extends the legislative powers of any body or authority.
If the federal government is limited structurally in its power to turn Canada into a non-representative system, or suspend press liberties, nothing in the Charter would allow the government to override those limitations.
This brings us to the provision of the Charter that has been the unquestioned darling of progressivism and Woke and of the activist judiciary. Fundamental rights in the Charter are subject to the following limitations:
Rights and freedoms in Canada
1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
This is very different language from the “similar to” language of the BNA Act preamble. The language of “reasonable limits” and “free and democratic society” is highly indeterminate. Note that “democracy” is used and not representative government or even parliamentary system. Any dictionary definition of democracy produces results from Athenian direct democracy, to a system that protects human rights to one centred on equality and social justice. The fact liberalism and democracy are antithetical is not addressed. What is “reasonable” is also highly fluid and subjective. Section 1 is hardwired then to favour presentism (the current thing), is anti-traditionlist and ahistorical, favours a living tree analysis, and is by its nature majoritarian, as I have addressed in analyzing the Supreme Court of Canada’s previous Trinity West decision.
Section 1 doesn’t override rights; it defines them. There is no need for a progressive government to invoke section 1 — unlike the express override/shaming provisions of the Bill of Rights or Charter s.33. Woke can simply plow ahead with rights-limiting legislation with the expectation that a court of progressive judges, including those sitting on the Supreme Court of Canada today, will rule its suspension of civil liberties was in fact “reasonable” and consistent with our modern, progressively, social justice oriented “democracy”. Most recently, the courts (and most legal writers) have agreed with the government lawyers that a public health emergency declared and bootstrapped by the government, is a reasonable justification to suspend fundamental rights, apparently indefinitely. Safety is another of those indeterminate concepts.
The reasonable limits prescribed by section 1 become a catch-all skeleton key to transform society in any way and to whatever extent a utopian and tyranical government wishes. It has become a portal to pure power without limitations, reasonable or otherwise. The developing culture of tyranny in Canada is a reflection of years of living with the concept of reasonable limits and progressivism, whether it be transforming marriage laws, undermining parental authority, eliminating concepts like fault and moral responsibility, replaced with the therapeutic state. This transformational process is turning Canada into a nation most dis-similar to the representative parliamentary system envisaged in the preamble to the BNA Act.
The culture of reasonable limits, to deal with public health, and the virus of racism and hate, also leads to a culture of pure power, in which inconvenient truths, such as the property rights enshrined in the Bill of Rights, or the structural limits, recognized by an implied bill of rights, are addressed by ignoring them (the ultimate insult) and over time forgetting them altogether. It is proving to be a successful strategy and one in which such glitched in the new world order will eventually be excised quitely, and explicitly, in an ominibus bill without media coverage and with a sigh of relief. It will follow other erasures, of inconvenient history and of more recent liberal policy failures.
Understanding how power overrides constitutional rights is not limited to countries with written constitutions or ones similar to the Canadian model or its historical context. What we are learning here applies to all Western countries. The realization that we are at the twilight of written constitutions or any constitution is upon us. A written constitution may make the abuse of rights more difficult, but in the end it does little to prevent power from having its way — eventually, when power is king. We will have to look elsewhere for our salvation.