Juno News - He helped write the Charter. Now he says the government is violating it.

00:00:00.000 Welcome back. Well, obviously, some of the people who wanted to go to Ottawa for the big rally have

00:00:13.980 not been able to if they had to fly to get there. Not everyone has a big rig or can take the time

00:00:18.880 to drive across the country. And that's because there still is in effect right now a vaccine

00:00:23.740 mandate for air travel. No end in sight to this, no willingness from Justin Trudeau to ease up on

00:00:29.520 this, even as we've moved to the Omicron era, in which whether you're vaccinated or unvaccinated

00:00:34.900 doesn't seem to have too much of an effect and whether you're going to catch or spread Omicron.

00:00:39.780 So what's happening now is people are fed up with this air travel vaccine mandate that like anything

00:00:45.120 else is looking like it's going to be this indefinite measure that we never really get

00:00:50.100 rid of much like the vaccine passport, much like a lot of the other restrictions. There's a big

00:00:55.100 challenge that was launched this week in federal court by Brian Peckford and other applicants as

00:01:01.160 well. But Brian Peckford is notable because he is the former premier of Newfoundland. He's also the

00:01:07.360 last surviving of the crafters of the Charter of Rights and Freedoms of the Constitution Act of 1982.

00:01:14.560 He's the last living of those premiers that were negotiating and adopting in the 1980s and ultimately

00:01:20.600 in 1982. The document that now forms the backbone of Canadian rights and freedoms and or is supposed

00:01:27.560 to anyway. We'll get to that in a little bit. But why this is important is because Brian Peckford is

00:01:32.280 filing a charter challenge. He's saying that the government is ignoring the charter that is the

00:01:37.740 linchpin in his legacy as a premier. I'll let him explain exactly why that is. Brian Peckford joins me

00:01:44.020 now. The Honourable Brian Peckford. It's good to speak to you, sir. Thanks very much for your time

00:01:47.840 today. Yeah. Thank you for having me. Now, we talked last time. It's nearly 40 years since the

00:01:54.780 Canadian Charter of Rights and Freedoms was adopted, since the Constitution was brought home, as they

00:01:59.980 say. And you're now taking the government to court for violating the very charter in which you were

00:02:05.160 instrumental in passing. Why? Yeah, I think this is rather historic. I don't know of any other first

00:02:11.640 minister in the history of Canada who's taken the federal government to court over something that

00:02:16.540 that first minister had a hand in creating and writing. And why I'm doing it, Andrew, is because

00:02:22.620 over the series of months since I talked to you and before even that, you know, I've been watching as

00:02:29.140 many Canadians have with great alarm as the governments have moved more and more in the

00:02:35.420 field of restricting individual rights and freedoms. And of course, the Charter of Rights and Freedoms is

00:02:41.000 very dear to my heart, being one of those who was involved in creating it. And I've issued many

00:02:48.140 statements. I've done very many interviews, 50 or 60 interviews across the country. And I've done a lot

00:02:55.400 of public meetings and so on. And I've heard from an awful lot of people. And a lot of them agree with

00:03:00.500 me that if we don't win and the Constitution and the Charter is honored this time round, this will

00:03:09.060 establish a precedent which will dilute the power of the Charter next time round. And therefore,

00:03:16.580 it's going to be this erosion of our individual rights and freedoms. And I guess a lot of people

00:03:21.780 would say the violation of our individual rights is not justified, even under Section 1 of the Charter.

00:03:32.100 My argument, of course, is that Section 1 doesn't even apply because I remember well that Section 1

00:03:38.020 was supposed to apply when the state was in peril. The state is not in peril. And we had alternatives,

00:03:45.060 as Lieutenant Colonel Redmond has pointed out, as early treatment doctors have pointed out. We've had

00:03:53.220 alternatives to doing this, the Great Barrington Declaration. So it's not like we didn't have

00:03:57.940 alternatives. So my point is, my individual right as a Canadian to travel freely in this country has

00:04:07.060 been severely curtailed without justification and is necessary for me as one Canadian and as one person

00:04:13.780 who's been involved in the Charter rights and freedoms to stand up for the individual Canadian.

00:04:20.580 Before we get to the bigger picture and also to Section 1, which I'm glad you've raised there,

00:04:25.220 let's talk about what your complaint is, because specifically you're taking issue with the vaccine

00:04:30.100 mandate that Justin Trudeau put in place in October that says you cannot board a plane at any

00:04:35.780 commercial airport in Canada unless you are fully vaccinated, which also means you can't fly from

00:04:41.460 Vancouver to Halifax, say. But more importantly, it means you can't fly from Toronto to England,

00:04:48.260 or Toronto to somewhere else in the world that perhaps doesn't have a vaccine mandate,

00:04:53.380 which effectively landlocks Canadians, especially now that the United States has put in a vaccine

00:04:59.140 mandate for its land border here. So your complaint, I'm assuming, is that the mobility rights,

00:05:04.820 that every Canadian has the right to enter, remain in or leave Canada are being just completely

00:05:10.420 obliterated by this mandate, correct? No question. It's Section 6 of the of the Charter in which it

00:05:16.580 says every Canadian has the right to travel anywhere in Canada or leave Canada. That's a fundamental right

00:05:23.860 that every Canadian has as a result of the Charter. And so there's no question. Listen, Canada is a nation of

00:05:30.500 motion. You know, from the Mackenzie River to the St. Lawrence River, to our explorers, to our later

00:05:37.060 bush pilots, to the CN and CP moving across the nation. These movements were all part of creating 0.99

00:05:44.420 Canada as we know it today. Without that rail line coming west, you know, who knows what kind of a

00:05:50.980 country we would have today. And so movement and travel are integral to who we are as Canadians and in

00:05:58.820 creating the country. And that history is very important. That was solidified in the Charter of

00:06:04.820 Rights and Freedoms. And so therefore, it's extremely important. And as you say, it also to leave Canada

00:06:11.300 as well. That's part of that mobility right. And so it has severely restricted. I have law firms calling

00:06:17.540 me from all over Canada about and industry, by the way, industry lawyers who are saying they want to go to

00:06:24.500 court. And they want to challenge the federal government as it relates to this business of the

00:06:29.780 mobility, because it's now hurting our industry. It's hurting industries in Canada in their ability

00:06:35.380 to do business. So it's extremely important. And there's been no cost benefit analysis done to show

00:06:43.220 that getting aboard a plane is any more dangerous than going to Walmart, you know. So this whole business

00:06:49.540 of this restriction has been done without justification, even if section one of the

00:06:54.180 constitution apply. One of the interesting things about it is that no one, even at the height of the

00:07:00.660 pandemic, when the border was closed, no Canadian could be denied entry to their own country. This is

00:07:06.100 the fundamental right of citizenship. The government could make it difficult for you, like demanding

00:07:10.580 pre-arrival tests and quarantine, but no Canadian could be prevented from entering. And when they put the

00:07:16.180 flight vaccine mandate in place, one thing I noted was that they didn't put the mandate in place for

00:07:22.100 getting on a plane to Canada. So in a way, the government was acknowledging that this charter right

00:07:28.580 exists, acknowledging that you can't prevent Canadians from entering their country, but they're not as

00:07:33.300 concerned with it on the other side of it, traveling within the country or exiting the country.

00:07:38.100 Well, I think both those points are extremely important. And perhaps most important of those two

00:07:44.420 is traveling within your own country. I mean, your family, business and so on, from one province to

00:07:49.540 another, making it more difficult. For example, the truckers convoy right now, they wanted me to

00:07:56.900 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

00:08:02.740 rig. Yeah. And so it would be very, very difficult for me to be able to do that, given my other

00:08:08.340 business activities right now, my other personal activities in having interviews like this. I'm

00:08:14.980 busy all day long. From eight to 11, I'm doing interviews and doing public meetings and the

00:08:20.900 like and doing speeches online. So it completely inhibits my ability as a Canadian. And I know there's

00:08:27.060 hundreds and thousands like me. And then, of course, exactly the discriminatory nature of it. In yes,

00:08:33.460 out. No, I mean, that does not make sense. It's not consistent with any kind of law or reason that

00:08:39.540 one can think about. But I come I woke up this morning thinking about our history. And that was

00:08:45.380 the phrase sort of that came up with a nation in motion. We are have been ever since First Peoples,

00:08:52.420 right, a nation in motion. They've lived off the rivers, they lived off the coastline, they lived in

00:08:57.380 moving in canoes and other sea craft, right? We're a nation in motion. The Mackenzie River,

00:09:03.940 you know, is an operating river every day, right? The Yukon River, right? The same

00:09:08.580 confederation itself, Brian, you've relocated to British Columbia, BC only joined confederation

00:09:14.900 because of the promise by John A. Macdonald of that transcontinental railway. That was the only reason

00:09:20.100 they joined the country. So because there was an importance of moving people from and goods from one 0.97

00:09:25.700 side to the other. And now you couldn't board that train. John A. Macdonald could not board that

00:09:30.420 intercontinental train to go to BC if he weren't vaccinated. Absolutely. And this is a complete

00:09:36.900 abdication of government's responsibility in our view. That's the argument we'll be making before

00:09:41.460 the court. Of course, we have to argue that before the court and persuade them to sustain our right of

00:09:49.380 travel over the other concerns that the government may have, which have not been completely articulated.

00:09:56.180 And I think this is where our argument has a lot of merit. It's because on the other side,

00:10:01.860 on the travel ban, when it was instituted, there was no argument made as to why they were bringing it

00:10:07.860 in, except that they had to bring it in because it was going to affect the transmission of the virus.

00:10:13.460 At the same time as they were knowingly been informed, they've just been informed in the last

00:10:19.540 few months that vaccinated people receive the virus and transmit the virus just the same

00:10:26.260 as unvaccinated people do. So their whole health argument seems to be crumbling and therefore to 1.00

00:10:32.100 continue to insist upon this kind of restriction on our freedoms does not seem to us to be justified.

00:10:38.100 Let me ask you then about the internal mobility here, Brian, because one of the responses that

00:10:44.740 people would give is, well, there's nothing stopping you from driving. Your right to go from

00:10:49.300 BC to Ontario hasn't been harmed because you could get in a car and go. It might take more time, but

00:10:54.500 your ability to do it still exists. And what is the response to that?

00:10:59.060 There's a number of responses to that. Not the least of which is that the whole concept of

00:11:04.580 a progression of becoming modern. So you want to select what is no longer modern in our society

00:11:13.620 and constrict that by some medical condition, right? It sort of flies in the face of our natural

00:11:22.820 thought of moving ahead as a country and progressing as a country, right? I find that very offensive.

00:11:30.260 The other thing is, of course, it makes it more difficult. They're constricting the manner in which

00:11:35.940 I can travel, right? And the whole idea of the mobility right is your right to travel in Canada,

00:11:44.420 full stop. It doesn't say by car, by plane, by train or by boat, right? It is a general right of every

00:11:52.580 Canadian. And so by restricting which way I can travel, that interferes with that freedom.

00:12:00.820 Yeah. And I guess the extension to that, even leaving the country, there's nothing legally stopping

00:12:05.140 you from, you know, getting a canoe and taking the Mackenzie River all the way to the Pacific and

00:12:10.020 then perhaps canoeing your way to Tuvalu or something. But in reality, the practical means of

00:12:15.140 travel is something that takes place by air. And when the government takes that off the table,

00:12:20.820 they do effectively tell Canadians they aren't allowed to travel. To say nothing of people that

00:12:25.220 live on islands, Newfoundland, for example, where some ferries have put vaccine mandates in place,

00:12:31.620 depending on where in the country they are. So there are significant restrictions here

00:12:35.860 that for all that Canadian leaders love to vaunt the vastness of Canada, they're now saying

00:12:42.020 that Canadians only some Canadians can enjoy that vastness. Absolutely. No, no, no question about it.

00:12:48.100 And I find that, you know, an argument that cannot be sustained, as you say, when a government goes

00:12:55.300 about it deliberately goes about the business of restricting your right as a Canadian, we know

00:13:02.260 there's something, you know, fundamentally wrong. And this is what's happening right now. I think of

00:13:08.100 the Bush pilots, you know, why did we get into air travel at all in that case, you know,

00:13:12.580 if you're going to start discriminating against some Canadians and how they can travel based on

00:13:17.140 their medical condition, you can still go this way, you can still go that way. Well, that defies the

00:13:22.180 whole nature and progression of our nation. And to begin to enter into a world of discrimination,

00:13:29.620 it seems to me, is a very, very slippery slope that we should never go down or even enter,

00:13:35.460 unless it is unbelievably justified in a very extreme circumstance. And this is not an extreme

00:13:43.060 circumstance. On a lighter note, I have to correct myself, if you take the Mackenzie River, it's not

00:13:47.460 going to get you anywhere near the Pacific. So I don't recommend following my directions if you are

00:13:51.300 trying to canoe your way to Tuvalu. But on a more serious point, yeah, you have to go around Alaska, but

00:13:57.620 I don't recommend it at this time of year. But let me ask you, Brian, go ahead.

00:14:02.900 You can go up from Hay River and go all the way to the Oktok.

00:14:06.180 There you go. Take a boat.

00:14:07.940 There you go. Then you can just go across to Siberia. It might be quicker. 0.89

00:14:11.540 You can't do it. And it will take you weeks and weeks to do it.

00:14:14.420 Let me ask you on a more serious point here about the way that governments are viewing this. Because

00:14:19.940 Section 1, which you mentioned earlier, this is, I'd say, one of the more dangerous sections we've

00:14:24.420 seen in the last 40 years of the charter, because it's the section that says all of the rights you're

00:14:28.980 about to read are subject to reasonable limits. And the court has, of course, developed a test for

00:14:34.580 that. I know you're going to finish the line, and I want you to do that. But I'm talking about how

00:14:40.180 it's been perceived, because governments have used this as sort of a trump card that they can just say,

00:14:44.740 well, you know, this other thing's more important. And you are right. And I knew where you were going

00:14:49.620 with this. So tell me, why does that not capture the entirety of those Section 1 powers?

00:14:54.180 Well, number one, Section 1 doesn't apply, in my view. As one of the writers of Section 1,

00:14:59.380 it was meant to be when the country's in a state of peril, insurrection or war. This is not a state

00:15:04.340 of peril, insurrection or war. So number one, my number one argument is it doesn't apply. And

00:15:09.540 therefore, the unconstitutionality exists. Number two, my argument is, even if you wanted to apply

00:15:15.780 for argument's sake, and that's what you want me to do, engage in an argument on Section 1, you just

00:15:21.140 mentioned, and this is one of the things people perceive it, because it talks about reasonable

00:15:24.740 limits. There are four tests. The first one is demonstrably justify what you're doing within

00:15:32.260 reasonable limits, by law, all in the context of a free and democratic society. You tell me that the

00:15:40.020 government of Canada, or any of the governments of Canada, have met any or all of those four tests.

00:15:46.260 In the case of the travel ban, they have not demonstrably justified that it's necessary.

00:15:51.300 Where is the report? Where is the cost-benefit analysis? And then free and democratic society

00:15:57.220 means a parliamentary society. That's what Canada stands for. Where are the parliamentary committees?

00:16:03.700 We have 14 parliaments in this country, and none of them have been engaged in any meaningful way in

00:16:11.620 discussing and debating these mandates. And therefore, two major conditions of Section 1 have not been

00:16:19.460 met. And therefore, what is happening is unconstitutional. So I think on both counts, one,

00:16:24.980 it doesn't apply. But if for argument's sake, it does, on both counts, the government, in my view,

00:16:31.300 is acting unconstitutional. And that's what we will be arguing before the federal court.

00:16:35.780 I take what you're saying about the intent of Section 1. And you know, you're the last surviving

00:16:42.100 of the architects and first ministers. So I think your words on this should carry a lot of weight.

00:16:46.500 And I think do, certainly, in my estimation. But we look at the jurisprudence on this. And courts have,

00:16:52.340 at times, especially in the last two years, taken very broad interpretations of those limits. And we've

00:16:58.420 seen, not that they've gone to the Supreme Court, but at lower courts, we've seen government side,

00:17:03.140 or courts side with government on this. Looking back on this, is that a section that you would,

00:17:08.580 if you were to go back to 1982, with the knowledge you have now, is this a section that you would

00:17:13.620 support in the way it's worded? And I guess what I mean by that is, do you feel that Section 1 itself

00:17:19.380 was a mistake in the way it was crafted? Or do you just feel that governments and courts have wronged?

00:17:24.980 No, not at all. Absolutely. It wouldn't change a word. I wouldn't change. I'll tell you why.

00:17:29.460 Section 1 was not negotiated as Section 1. Section 1 was negotiated in the context of all the other

00:17:36.660 sections of the Charter. And the Charter was negotiated in the context of all the other

00:17:41.060 sections of the Constitution Act 9882. That's what everybody forgets. That was the deal. If we go back

00:17:48.100 and try to reopen that, other provisions of the Constitution will get changed. There will be more

00:17:53.460 negotiations, more to and fro, right? That's the danger that you face when you start to reopen

00:17:59.140 things, because you're not reopening just Section 1. You're reopening the Charter. You're not just

00:18:03.700 reopening the Charter. You're reopening the Constitution of 1982 and the Aboriginal Rights of 35,

00:18:10.340 the Equalization Rights, right, that are in there, the Natural Resource Rights that are in there, the

00:18:15.060 Minority Language Rights Center. This was a negotiation on all these matters, okay? So all these would come back

00:18:21.380 and play. And Quebec would be there with other demands. So what we have in any reasonable person's

00:18:28.180 mind, right, to me, especially with those four conditions weren't in there, we didn't say

00:18:34.580 demonstrably justified, if we didn't say by law, if we didn't say in reasonable limits, if we didn't say

00:18:40.180 free and democratic society. Now, yes, lower courts have ruled with the governments, but no high courts

00:18:45.940 have ruled on this yet. And unfortunately, those two lower courts even forgot their own superior court. 0.73

00:18:52.660 The Supreme Court of Canada ruled in 1986 about Section 1. The Oates Test is called. And in the

00:18:59.460 Oates Test, they made it very clear that the onus was on the government to prove what they were doing

00:19:07.140 was necessary. That's not even mentioned in the Manitoba case that went with the government's way,

00:19:13.700 nor in the BC case. That will be taken up, don't you worry, in all of the appeals that are going

00:19:19.140 forward in the Court of Appeal, because the courts themselves never even adhered to their own rules

00:19:25.300 that had been established earlier by the Supreme Court of Canada. Talking about your case specifically

00:19:30.580 here, as you've noted, there have been two years of legal challenges. None of them have made their way

00:19:35.300 up to the Supreme Court yet. There's a huge backlog in courts as people take lockdown fines that they've

00:19:41.300 had and bigger matters like this to court. So this could take years. And in that time, the government

00:19:47.620 could say that we're rescinding the mandate. The government could at this time, on using its

00:19:52.420 government powers, take it away. There's a bigger point here, I think, which is that even if it takes

00:19:57.380 five years to get to the Supreme Court, and the mandate is long gone, the pandemic is declared over,

00:20:03.460 there needs to be something on the record so that this never happens again. You're in it for the long

00:20:08.660 haul, aren't you? I'm in it for the long haul, no question. I want to see the Charter of Rights

00:20:14.260 and Freedoms, the Constitution Act in 1982, restored in all its simple and plain meaning.

00:20:20.580 That's what I want to see. Because like I said earlier, if it's not, then it sets a precedent for

00:20:25.140 another time and makes it far more difficult for our freedoms to be protected and safeguarded. So we're

00:20:30.260 in it for the long haul. But remember, this action goes to the Federal Court of Canada.

00:20:34.500 It's not in the province. It goes to the Federal Court of Canada. And then either side has the

00:20:39.540 right to appeal, depending on who wins and who loses to the Supreme Court of Canada.

00:20:43.700 We are asking in our application for an expedited hearing on this, because we think this is extremely

00:20:49.220 important for individuals who are unable to travel right now, and for business who are unable to travel.

00:20:54.900 That's why- It's not just you, I should say. There are other applicants here who are being denied the

00:20:59.540 right to see their family, not just to go on some vacation, but to see their family, to do their

00:21:04.820 work. There are a lot of things at play here.

00:21:06.580 Yeah, yes. I'm just characterized because of my former involvement as First Minister in the

00:21:12.980 Constitution. I'm characterized as the lead sort of applicant, but there are other applicants a part of

00:21:18.820 this legal action that we're taking. For the same reasons that we gave, that obviously there are

00:21:24.820 many Canadians who are being affected personally and business-wise as a result of these actions,

00:21:32.260 which have not been justified under Section 1.

00:21:36.420 The Honorable Brian Peckford, former Premier of Newfoundland, before it was Newfoundland and Labrador,

00:21:42.180 former Premier of Newfoundland, Brian Peckford. Thank you so much for your time. Good luck with the case,

00:21:46.180 sir. Thank you very much. Thanks for listening to The Andrew Lawton Show.

00:21:50.500 Support the program by donating to True North at www.tnc.news.

Juno News - January 28, 2022

He helped write the Charter. Now he says the government is violating it.

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