Juno News - January 28, 2022He helped write the Charter. Now he says the government is violating it.
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Summary
Brian Peckford is the last living member of the original drafters of the Charter of Rights and Freedoms. He s now taking the federal government to court over a vaccine mandate that prevents Canadians from leaving Canada unless they ve been vaccinated.
Transcript
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Welcome back. Well, obviously, some of the people who wanted to go to Ottawa for the big rally have
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not been able to if they had to fly to get there. Not everyone has a big rig or can take the time
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to drive across the country. And that's because there still is in effect right now a vaccine
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mandate for air travel. No end in sight to this, no willingness from Justin Trudeau to ease up on
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this, even as we've moved to the Omicron era, in which whether you're vaccinated or unvaccinated
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doesn't seem to have too much of an effect and whether you're going to catch or spread Omicron.
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So what's happening now is people are fed up with this air travel vaccine mandate that like anything
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else is looking like it's going to be this indefinite measure that we never really get
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rid of much like the vaccine passport, much like a lot of the other restrictions. There's a big
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challenge that was launched this week in federal court by Brian Peckford and other applicants as
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well. But Brian Peckford is notable because he is the former premier of Newfoundland. He's also the
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last surviving of the crafters of the Charter of Rights and Freedoms of the Constitution Act of 1982.
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He's the last living of those premiers that were negotiating and adopting in the 1980s and ultimately
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in 1982. The document that now forms the backbone of Canadian rights and freedoms and or is supposed
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to anyway. We'll get to that in a little bit. But why this is important is because Brian Peckford is
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filing a charter challenge. He's saying that the government is ignoring the charter that is the
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linchpin in his legacy as a premier. I'll let him explain exactly why that is. Brian Peckford joins me
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now. The Honourable Brian Peckford. It's good to speak to you, sir. Thanks very much for your time
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today. Yeah. Thank you for having me. Now, we talked last time. It's nearly 40 years since the
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Canadian Charter of Rights and Freedoms was adopted, since the Constitution was brought home, as they
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say. And you're now taking the government to court for violating the very charter in which you were
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instrumental in passing. Why? Yeah, I think this is rather historic. I don't know of any other first
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minister in the history of Canada who's taken the federal government to court over something that
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that first minister had a hand in creating and writing. And why I'm doing it, Andrew, is because
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over the series of months since I talked to you and before even that, you know, I've been watching as
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many Canadians have with great alarm as the governments have moved more and more in the
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field of restricting individual rights and freedoms. And of course, the Charter of Rights and Freedoms is
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very dear to my heart, being one of those who was involved in creating it. And I've issued many
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statements. I've done very many interviews, 50 or 60 interviews across the country. And I've done a lot
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of public meetings and so on. And I've heard from an awful lot of people. And a lot of them agree with
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me that if we don't win and the Constitution and the Charter is honored this time round, this will
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establish a precedent which will dilute the power of the Charter next time round. And therefore,
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it's going to be this erosion of our individual rights and freedoms. And I guess a lot of people
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would say the violation of our individual rights is not justified, even under Section 1 of the Charter.
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My argument, of course, is that Section 1 doesn't even apply because I remember well that Section 1
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was supposed to apply when the state was in peril. The state is not in peril. And we had alternatives,
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as Lieutenant Colonel Redmond has pointed out, as early treatment doctors have pointed out. We've had
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alternatives to doing this, the Great Barrington Declaration. So it's not like we didn't have
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alternatives. So my point is, my individual right as a Canadian to travel freely in this country has
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been severely curtailed without justification and is necessary for me as one Canadian and as one person
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who's been involved in the Charter rights and freedoms to stand up for the individual Canadian.
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Before we get to the bigger picture and also to Section 1, which I'm glad you've raised there,
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let's talk about what your complaint is, because specifically you're taking issue with the vaccine
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mandate that Justin Trudeau put in place in October that says you cannot board a plane at any
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commercial airport in Canada unless you are fully vaccinated, which also means you can't fly from
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Vancouver to Halifax, say. But more importantly, it means you can't fly from Toronto to England,
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or Toronto to somewhere else in the world that perhaps doesn't have a vaccine mandate,
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which effectively landlocks Canadians, especially now that the United States has put in a vaccine
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mandate for its land border here. So your complaint, I'm assuming, is that the mobility rights,
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that every Canadian has the right to enter, remain in or leave Canada are being just completely
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obliterated by this mandate, correct? No question. It's Section 6 of the of the Charter in which it
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says every Canadian has the right to travel anywhere in Canada or leave Canada. That's a fundamental right
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that every Canadian has as a result of the Charter. And so there's no question. Listen, Canada is a nation of
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motion. You know, from the Mackenzie River to the St. Lawrence River, to our explorers, to our later
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bush pilots, to the CN and CP moving across the nation. These movements were all part of creating
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Canada as we know it today. Without that rail line coming west, you know, who knows what kind of a
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country we would have today. And so movement and travel are integral to who we are as Canadians and in
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creating the country. And that history is very important. That was solidified in the Charter of
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Rights and Freedoms. And so therefore, it's extremely important. And as you say, it also to leave Canada
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as well. That's part of that mobility right. And so it has severely restricted. I have law firms calling
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me from all over Canada about and industry, by the way, industry lawyers who are saying they want to go to
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court. And they want to challenge the federal government as it relates to this business of the
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mobility, because it's now hurting our industry. It's hurting industries in Canada in their ability
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to do business. So it's extremely important. And there's been no cost benefit analysis done to show
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that getting aboard a plane is any more dangerous than going to Walmart, you know. So this whole business
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of this restriction has been done without justification, even if section one of the
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constitution apply. One of the interesting things about it is that no one, even at the height of the
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pandemic, when the border was closed, no Canadian could be denied entry to their own country. This is
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the fundamental right of citizenship. The government could make it difficult for you, like demanding
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pre-arrival tests and quarantine, but no Canadian could be prevented from entering. And when they put the
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flight vaccine mandate in place, one thing I noted was that they didn't put the mandate in place for
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getting on a plane to Canada. So in a way, the government was acknowledging that this charter right
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exists, acknowledging that you can't prevent Canadians from entering their country, but they're not as
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concerned with it on the other side of it, traveling within the country or exiting the country.
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Well, I think both those points are extremely important. And perhaps most important of those two
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is traveling within your own country. I mean, your family, business and so on, from one province to
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another, making it more difficult. For example, the truckers convoy right now, they wanted me to
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come to Ottawa to speak. Well, how am I going to get to Ottawa to speak? You know, you'd have to rent a big
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rig. Yeah. And so it would be very, very difficult for me to be able to do that, given my other
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business activities right now, my other personal activities in having interviews like this. I'm
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busy all day long. From eight to 11, I'm doing interviews and doing public meetings and the
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like and doing speeches online. So it completely inhibits my ability as a Canadian. And I know there's
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hundreds and thousands like me. And then, of course, exactly the discriminatory nature of it. In yes,
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out. No, I mean, that does not make sense. It's not consistent with any kind of law or reason that
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one can think about. But I come I woke up this morning thinking about our history. And that was
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the phrase sort of that came up with a nation in motion. We are have been ever since First Peoples,
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right, a nation in motion. They've lived off the rivers, they lived off the coastline, they lived in
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moving in canoes and other sea craft, right? We're a nation in motion. The Mackenzie River,
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you know, is an operating river every day, right? The Yukon River, right? The same
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confederation itself, Brian, you've relocated to British Columbia, BC only joined confederation
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because of the promise by John A. Macdonald of that transcontinental railway. That was the only reason
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they joined the country. So because there was an importance of moving people from and goods from one
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side to the other. And now you couldn't board that train. John A. Macdonald could not board that
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intercontinental train to go to BC if he weren't vaccinated. Absolutely. And this is a complete
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abdication of government's responsibility in our view. That's the argument we'll be making before
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the court. Of course, we have to argue that before the court and persuade them to sustain our right of
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travel over the other concerns that the government may have, which have not been completely articulated.
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And I think this is where our argument has a lot of merit. It's because on the other side,
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on the travel ban, when it was instituted, there was no argument made as to why they were bringing it
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in, except that they had to bring it in because it was going to affect the transmission of the virus.
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At the same time as they were knowingly been informed, they've just been informed in the last
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few months that vaccinated people receive the virus and transmit the virus just the same
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as unvaccinated people do. So their whole health argument seems to be crumbling and therefore to
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continue to insist upon this kind of restriction on our freedoms does not seem to us to be justified.
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Let me ask you then about the internal mobility here, Brian, because one of the responses that
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people would give is, well, there's nothing stopping you from driving. Your right to go from
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BC to Ontario hasn't been harmed because you could get in a car and go. It might take more time, but
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your ability to do it still exists. And what is the response to that?
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There's a number of responses to that. Not the least of which is that the whole concept of
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a progression of becoming modern. So you want to select what is no longer modern in our society
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and constrict that by some medical condition, right? It sort of flies in the face of our natural
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thought of moving ahead as a country and progressing as a country, right? I find that very offensive.
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The other thing is, of course, it makes it more difficult. They're constricting the manner in which
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I can travel, right? And the whole idea of the mobility right is your right to travel in Canada,
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full stop. It doesn't say by car, by plane, by train or by boat, right? It is a general right of every
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Canadian. And so by restricting which way I can travel, that interferes with that freedom.
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Yeah. And I guess the extension to that, even leaving the country, there's nothing legally stopping
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you from, you know, getting a canoe and taking the Mackenzie River all the way to the Pacific and
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then perhaps canoeing your way to Tuvalu or something. But in reality, the practical means of
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travel is something that takes place by air. And when the government takes that off the table,
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they do effectively tell Canadians they aren't allowed to travel. To say nothing of people that
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live on islands, Newfoundland, for example, where some ferries have put vaccine mandates in place,
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depending on where in the country they are. So there are significant restrictions here
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that for all that Canadian leaders love to vaunt the vastness of Canada, they're now saying
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that Canadians only some Canadians can enjoy that vastness. Absolutely. No, no, no question about it.
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And I find that, you know, an argument that cannot be sustained, as you say, when a government goes
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about it deliberately goes about the business of restricting your right as a Canadian, we know
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there's something, you know, fundamentally wrong. And this is what's happening right now. I think of
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the Bush pilots, you know, why did we get into air travel at all in that case, you know,
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if you're going to start discriminating against some Canadians and how they can travel based on
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their medical condition, you can still go this way, you can still go that way. Well, that defies the
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whole nature and progression of our nation. And to begin to enter into a world of discrimination,
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it seems to me, is a very, very slippery slope that we should never go down or even enter,
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unless it is unbelievably justified in a very extreme circumstance. And this is not an extreme
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circumstance. On a lighter note, I have to correct myself, if you take the Mackenzie River, it's not
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going to get you anywhere near the Pacific. So I don't recommend following my directions if you are
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trying to canoe your way to Tuvalu. But on a more serious point, yeah, you have to go around Alaska, but
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I don't recommend it at this time of year. But let me ask you, Brian, go ahead.
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You can go up from Hay River and go all the way to the Oktok.
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There you go. Then you can just go across to Siberia. It might be quicker.
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You can't do it. And it will take you weeks and weeks to do it.
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Let me ask you on a more serious point here about the way that governments are viewing this. Because
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Section 1, which you mentioned earlier, this is, I'd say, one of the more dangerous sections we've
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seen in the last 40 years of the charter, because it's the section that says all of the rights you're
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about to read are subject to reasonable limits. And the court has, of course, developed a test for
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that. I know you're going to finish the line, and I want you to do that. But I'm talking about how
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it's been perceived, because governments have used this as sort of a trump card that they can just say,
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well, you know, this other thing's more important. And you are right. And I knew where you were going
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with this. So tell me, why does that not capture the entirety of those Section 1 powers?
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Well, number one, Section 1 doesn't apply, in my view. As one of the writers of Section 1,
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it was meant to be when the country's in a state of peril, insurrection or war. This is not a state
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of peril, insurrection or war. So number one, my number one argument is it doesn't apply. And
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therefore, the unconstitutionality exists. Number two, my argument is, even if you wanted to apply
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for argument's sake, and that's what you want me to do, engage in an argument on Section 1, you just
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mentioned, and this is one of the things people perceive it, because it talks about reasonable
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limits. There are four tests. The first one is demonstrably justify what you're doing within
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reasonable limits, by law, all in the context of a free and democratic society. You tell me that the
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government of Canada, or any of the governments of Canada, have met any or all of those four tests.
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In the case of the travel ban, they have not demonstrably justified that it's necessary.
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Where is the report? Where is the cost-benefit analysis? And then free and democratic society
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means a parliamentary society. That's what Canada stands for. Where are the parliamentary committees?
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We have 14 parliaments in this country, and none of them have been engaged in any meaningful way in
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discussing and debating these mandates. And therefore, two major conditions of Section 1 have not been
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met. And therefore, what is happening is unconstitutional. So I think on both counts, one,
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it doesn't apply. But if for argument's sake, it does, on both counts, the government, in my view,
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is acting unconstitutional. And that's what we will be arguing before the federal court.
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I take what you're saying about the intent of Section 1. And you know, you're the last surviving
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of the architects and first ministers. So I think your words on this should carry a lot of weight.
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And I think do, certainly, in my estimation. But we look at the jurisprudence on this. And courts have,
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at times, especially in the last two years, taken very broad interpretations of those limits. And we've
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seen, not that they've gone to the Supreme Court, but at lower courts, we've seen government side,
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or courts side with government on this. Looking back on this, is that a section that you would,
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if you were to go back to 1982, with the knowledge you have now, is this a section that you would
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support in the way it's worded? And I guess what I mean by that is, do you feel that Section 1 itself
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was a mistake in the way it was crafted? Or do you just feel that governments and courts have wronged?
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No, not at all. Absolutely. It wouldn't change a word. I wouldn't change. I'll tell you why.
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Section 1 was not negotiated as Section 1. Section 1 was negotiated in the context of all the other
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sections of the Charter. And the Charter was negotiated in the context of all the other
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sections of the Constitution Act 9882. That's what everybody forgets. That was the deal. If we go back
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and try to reopen that, other provisions of the Constitution will get changed. There will be more
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negotiations, more to and fro, right? That's the danger that you face when you start to reopen
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things, because you're not reopening just Section 1. You're reopening the Charter. You're not just
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reopening the Charter. You're reopening the Constitution of 1982 and the Aboriginal Rights of 35,
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the Equalization Rights, right, that are in there, the Natural Resource Rights that are in there, the
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Minority Language Rights Center. This was a negotiation on all these matters, okay? So all these would come back
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and play. And Quebec would be there with other demands. So what we have in any reasonable person's
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mind, right, to me, especially with those four conditions weren't in there, we didn't say
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demonstrably justified, if we didn't say by law, if we didn't say in reasonable limits, if we didn't say
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free and democratic society. Now, yes, lower courts have ruled with the governments, but no high courts
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have ruled on this yet. And unfortunately, those two lower courts even forgot their own superior court.
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The Supreme Court of Canada ruled in 1986 about Section 1. The Oates Test is called. And in the
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Oates Test, they made it very clear that the onus was on the government to prove what they were doing
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was necessary. That's not even mentioned in the Manitoba case that went with the government's way,
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nor in the BC case. That will be taken up, don't you worry, in all of the appeals that are going
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forward in the Court of Appeal, because the courts themselves never even adhered to their own rules
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that had been established earlier by the Supreme Court of Canada. Talking about your case specifically
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here, as you've noted, there have been two years of legal challenges. None of them have made their way
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up to the Supreme Court yet. There's a huge backlog in courts as people take lockdown fines that they've
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had and bigger matters like this to court. So this could take years. And in that time, the government
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could say that we're rescinding the mandate. The government could at this time, on using its
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government powers, take it away. There's a bigger point here, I think, which is that even if it takes
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five years to get to the Supreme Court, and the mandate is long gone, the pandemic is declared over,
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there needs to be something on the record so that this never happens again. You're in it for the long
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haul, aren't you? I'm in it for the long haul, no question. I want to see the Charter of Rights
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and Freedoms, the Constitution Act in 1982, restored in all its simple and plain meaning.
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That's what I want to see. Because like I said earlier, if it's not, then it sets a precedent for
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another time and makes it far more difficult for our freedoms to be protected and safeguarded. So we're
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in it for the long haul. But remember, this action goes to the Federal Court of Canada.
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It's not in the province. It goes to the Federal Court of Canada. And then either side has the
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right to appeal, depending on who wins and who loses to the Supreme Court of Canada.
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We are asking in our application for an expedited hearing on this, because we think this is extremely
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important for individuals who are unable to travel right now, and for business who are unable to travel.
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That's why- It's not just you, I should say. There are other applicants here who are being denied the
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right to see their family, not just to go on some vacation, but to see their family, to do their
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Yeah, yes. I'm just characterized because of my former involvement as First Minister in the
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Constitution. I'm characterized as the lead sort of applicant, but there are other applicants a part of
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this legal action that we're taking. For the same reasons that we gave, that obviously there are
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many Canadians who are being affected personally and business-wise as a result of these actions,
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The Honorable Brian Peckford, former Premier of Newfoundland, before it was Newfoundland and Labrador,
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former Premier of Newfoundland, Brian Peckford. Thank you so much for your time. Good luck with the case,
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sir. Thank you very much. Thanks for listening to The Andrew Lawton Show.
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