The Candice Malcolm Show - How has the Charter of Rights and Freedoms changed Canada？ (Ft. The Hon. Brian Peckford)

00:00:00.000 The Canadian Charter of Rights and Freedoms is 40 years old this year. How has this document

00:00:05.600 changed our country? How has it changed Canada? Well, joining me today is one of the original

00:00:10.320 signers of the Charter, the Honourable Brian Peckford. I'm Candice Malcolm, and this is

00:00:14.820 the Candice Malcolm Show. Hi, everyone. Thank you so much for tuning into the program. So as we've

00:00:31.220 been talking about all over the news, everybody celebrating the Charter, looking back at the past

00:00:35.480 40 years, looking back at the history of the signing of the Charter, we thought, what better

00:00:39.420 way to talk about that momentous occasion in Canadian history than inviting the only living 1.00

00:00:45.200 signer of that document to join the podcast to walk us through what happened, tell us the story,

00:00:50.960 and help us understand why this document was so needed. So joining me today is the Honourable

00:00:56.560 Brian Peckford. Mr. Peckford served as the Progressive Conservative Premier of Newfoundland,

00:01:01.920 Labrador from 1979 to 1989. He's the last living signatory of the Charter. Also as Premier,

00:01:08.180 his government established the Atlantic Accord, which brought offshore oil and gas revenues to

00:01:13.020 the province that ultimately shifted the province's fortunes, economic fortunes, from being a perpetual

00:01:18.060 have-not province, which takes money from the federal government, to it shifted that, transformed

00:01:23.520 it into a strong performing province that is a have-province, which means that they contribute

00:01:28.220 more than they take out. Mr. Peckford is the author of the book, Someday the Sun Will Shine

00:01:33.600 and Have Not Will Become No More, beautifully titled memoir about his time as Premier and the

00:01:39.600 triumph to have control over the province's natural resources. Brian currently serves as the chair of

00:01:45.600 both the Board of Directors and the Advisory Board of Taking Back Your Freedoms, an organization formed

00:01:50.460 last year to equip and mobilize citizens towards taking back their constitutional and God-given

00:01:56.400 freedoms. Over the past year, Mr. Peckford has become a symbol of Canada's opposition to government

00:02:01.900 overreach in response to COVID-19. Mr. Peckford is a very popular speaker. He has spoken to thousands

00:02:07.720 of people at freedom rallies in his home province, his now home province, of British Columbia and was

00:02:13.060 a supporter of the Freedom Convoy protests in Ottawa. Peckford is also suing the federal government

00:02:18.540 and hopefully we will talk to him a little bit about this. This is over the federal government's

00:02:23.040 vaccine mandate with regards to air travel and he's working with our friends over at the Justice

00:02:27.740 Centre for Constitutional Freedoms on that. So all that is to just say, Brian, it's a tremendous

00:02:32.800 honour to have you on the program and thank you so much for joining us. Thank you for having me too.

00:02:37.900 I think it's important for us all to speak up whenever we can as it relates to the freedoms that

00:02:44.520 the Canadians are supposed to enjoy. Well, that's the theme of the show. So many of the sort of

00:02:51.560 stories that I've seen talking about the Charter and looking back at its 40-year history and what

00:02:56.660 happened 40 years ago. Unfortunately, they don't take a critical enough look at the ways that our

00:03:02.380 freedoms have been in some ways, many ways eroded and neglected over the past few years. So hopefully

00:03:07.860 we can get into that conversation today. First off the bat though, I just want to ask you, so take us

00:03:13.100 back 40 years ago to the signing of the Constitution. What was the process? I know it was a long, I think,

00:03:19.340 17-month ordeal negotiating many, many things, not just the Charter of Rights and Freedoms. So

00:03:24.060 take us back 40 years. Why did Canada need a Charter of Rights and Freedoms and why did this

00:03:29.080 constitutional negotiation begin and get underway? Yes, well, thank you very much. Yeah.

00:03:36.260 Canada was formed as a country in 1867 with the BNA Act, the British North America Act, which defined

00:03:42.400 Canada and the nature of our government. In other words, that it would be a federal government, not a

00:03:47.640 unitary government. That means that powers would be shared between the federal government and the

00:03:52.380 provinces. There were only four provinces at the time that formed Canada, Upper and Lower Canada,

00:03:58.260 New Brunswick and Nova Scotia. So Canada started with four provinces, not 10 provinces that it has

00:04:03.660 today. And we grew into 10 provinces over time. Missing from that document which formed Canada was

00:04:10.780 anything to do with individual rights and freedoms. They were not described in the BNA Act, which created

00:04:17.060 Canada. We relied upon, because we came out of the British system, the British common law, the unwritten

00:04:24.600 British common law. And so from the 1867 until really 1960, that's how Canadians defended their

00:04:32.780 individual rights and freedoms. There was nothing written in the constitution. If you look to the south

00:04:38.180 of us in the United States of America, their country was formed in 1776 and they had a written Charter of

00:04:44.900 Rights and Freedom, but Bill of Rights in 1791, only 15 years after they became a country. In our case,

00:04:54.680 we formed a country in 1867 and didn't get a written Charter until 1982, actually formalized in 1982.

00:05:03.260 So there was through the early part of the 20th century after we became a country,

00:05:09.360 various moves underfoot to indicate that why don't we have a written Charter of Rights and

00:05:14.860 freedoms like the Americans? Why do we depend upon unwritten British common law and the precedents 0.95

00:05:22.660 that have been set over the years in the courts? And that debate, you know, rose and fall over time.

00:05:30.640 But up into the 1960s, it became more pronounced in saying that something should be written as related

00:05:38.280 to our individual rights and freedoms. And that's when John Diefenbaker, who was the prime minister

00:05:42.940 in 1960, introduced what we know as the Bill of Rights. But there was two failings with that Bill

00:05:50.500 of Rights. One was that it was just a federal act and therefore only applied to federal jurisdiction

00:05:55.420 and not to provincial jurisdiction. So therefore, it never covered all Canadians, it only covered some

00:06:01.180 Canadians. And after that 1960 Bill of Rights, there was a movement underfoot stronger than ever

00:06:08.800 to try to put something in writing in a constitution, not just a federal act or a provincial act. So it

00:06:16.000 would cover everybody in the country and put it in writing and have something firm, identifiable,

00:06:24.360 and easily to reference. And so through the six from the 60s on, there were the various talks,

00:06:31.800 but it always got stymied and delayed and canceled by a debate over an amending formula. In other words,

00:06:43.700 if we amended the constitution and brought in a charter rights and freedoms and became totally independent

00:06:50.020 and not having to go back to England for any more amendments, how would we amend our own constitution

00:06:55.840 into the future? And there was great debate over that and nothing could be decided. But by 1980,

00:07:02.320 there was a strong, strong movement from the 1960s to do that. And so in 1980, the first ministers of

00:07:12.060 Canada, all the premiers and the prime minister agreed to get together to see whether we could do two

00:07:17.900 things really, patriate the constitution and also add a charter of rights and freedoms once we

00:07:26.100 patriated it, as well as a number of other items. And so we began to negotiate in 1980. And that

00:07:36.220 culminated in 1981 with an agreement called the Patriation Agreement, which became the Constitution Act of

00:07:43.920 1982. That was a long, tortuous negotiation of 17 months because it was interrupted by the prime

00:07:52.140 minister of Canada at the time, who was Justin Trudeau's father, Pierre Elliott Trudeau, who found

00:07:58.460 that he discovered or he thought that provinces were being too difficult. And so he left the table

00:08:05.020 and tried to patriate the constitution and bring in a charter of rights and freedoms and other changes

00:08:10.740 on his own. And so he passed the law in the House of Commons to do just that and passed by the Senate

00:08:18.060 and became a law of Canada that the government of Canada would go ahead unilaterally, bring the

00:08:24.000 constitution home from England for good and attach a charter of rights and freedoms to it, as well as

00:08:30.460 other changes. Well, the provinces objected to this because we're a federal state and not a

00:08:36.860 unitarian state. And so eight provinces opposed what he was doing. Two provinces stayed with the

00:08:42.700 federal government. And so we took him to court over this action. And we won that action in the

00:08:49.240 Supreme Court of Canada in September 1981. And the Supreme Court said that the prime minister of Canada

00:08:55.060 and the government of Canada could not unilaterally patriate the constitution and attach a charter of

00:09:01.140 rights to it on their own. They couldn't do it unilaterally. They could only do it through the

00:09:06.080 provinces and with the provinces. And so the prime minister lost and he was forced then to come back

00:09:13.420 to the table that he had left. If in fact, we were going to get a charter of rights and freedoms,

00:09:18.640 if we're going to get patriation, if we're going to get other things. And we succeeded after three days

00:09:26.340 of final negotiations on November 3rd, 4th and 5th, as a result of a proposal that I, on behalf of

00:09:33.040 Newfoundland put forward to the rest of the provinces, it was this proposal that was accepted

00:09:37.580 on November the 5th by all the first ministers except Quebec. And the Supreme Court of Canada

00:09:44.420 decision did not say that you had to have unanimity in order to get a change. It said you had to have

00:09:50.560 a lot of the provinces on side. And of course, we had nine out of 10. And so therefore, that met the

00:09:56.600 constitutional test of the Supreme Court of Canada. And therefore, we got the Patriation Agreement

00:10:02.700 of 1981, which contained, among other things, the Charter of Rights and Freedoms, which became the

00:10:09.180 Constitution Act of 1982, which means that this year is the 40th anniversary of the charter and the other

00:10:16.840 changes becoming law. What is not understood by most Canadians is because now under the pandemic

00:10:23.260 situation which has occurred and the violations of the charter is that people forget that the

00:10:30.460 Charter of Rights and Freedoms came into being as a result of a package, not just the Charter of Rights

00:10:36.220 was negotiated. It was the Charter of Rights and Freedoms, patriation, bringing the Constitution home,

00:10:42.540 indigenous rights, native First Nations rights in Section 35, and the mending formula, regional economic

00:10:50.540 expansion and equalization and minority language rights. So when people say to me, why didn't you

00:10:58.620 put this in the Charter or put that in the Charter or take that out? They don't seem to understand we

00:11:02.940 just weren't negotiating the Charter. The Charter was part of a bargaining chip with other things that I

00:11:09.900 just outlined in it. But we did get freedoms for individuals and we did get rights for individuals

00:11:17.340 in sections 2, 6, 7 and 15 of the Charter, which now are being highlighted because the governments of

00:11:24.940 this nation through the pandemic measures have seen fit to violate those sacred rights that were in

00:11:31.900 that Charter of Rights and Freedoms. Okay, well thank you so much for that background and that history.

00:11:37.020 It's really helpful to sort of put it all together. I have an interesting anecdote because I went to study

00:11:41.260 in Australia and one of the first things that we were told during this sort of orientation was,

00:11:45.820 you know, unlike in the US, unlike in Canada, we don't have a Bill of Rights. So you don't have the

00:11:51.980 same, you know, amendments to the Constitution that you have in the United States. You don't have the

00:11:55.660 same Charter of Rights and Freedoms as you do in Canada and that might mean that you could, you know,

00:12:00.860 get yourself into trouble. That was sort of the context of the discussion we were having. But I

00:12:04.940 remember talking to a friend of mine who's in law school and her perspective was that you don't need

00:12:09.900 to have your rights codified. That in fact, when you codify your rights and have them listed,

00:12:16.300 not only does it list what your rights are, but it limits what's not there. And so I'm wondering if

00:12:21.260 you can sort of comment on whether you think Canada is better off having a codified list of what our

00:12:28.060 rights are, like a piece of paper that you can uphold and you can take to court and you can use to

00:12:32.220 justify. Or whether the ancient sort of, you know, common law tradition that Australia still uses,

00:12:37.740 that the British use is a better approach. What do you think?

00:12:41.580 I think Australia has, since your time, now have some Bill of Rights in their Constitution.

00:12:50.220 I just noted that the other day, a decision out of Australia referred to it. And by the way,

00:12:57.260 the wording is very much similar to the Charter of Rights and Freedoms. But to come to your main

00:13:01.660 point of British common law and why a codified charter is better than a uncodified list of rights,

00:13:10.700 that's the problem you have with unwritten rights and freedoms is that they are unwritten and therefore

00:13:19.260 the interpretation can vary over time with various precedents set by various judges. If you have

00:13:25.820 something which is in writing and it is a sentence, freedom of expression, freedom of speech, if you

00:13:32.700 want, or freedom of religion or freedom of conscience, that's it. And it's quite clear. If in fact you rely

00:13:40.620 upon uncodified rights and freedoms, then you're subject to the whims of a judiciary over centuries,

00:13:51.260 where one judge or one lawyer could bring up, well, in this case, it said yes. In this other case,

00:13:56.780 I'm not too sure who said yes. And so therefore, this can evolve over time and change over time. When

00:14:05.580 many people believe that we need to have fixed charter rights or Bill of Rights or fixed freedom rights in a

00:14:16.780 constitution so that it's not up to the whims of anybody, whether it be parliament or judges to

00:14:23.820 change according to their own biases at the time in their own history at the time. That's one of the

00:14:30.940 problems you have. It is a riskier proposition to maintain a given right, given that it can change over

00:14:37.500 time with various individuals, various judges. So I think that's one of the most important factors

00:14:45.100 which most of us at the time in 1980, 81 and 82 considered that it was necessary to have

00:14:53.420 something that individual citizens could look to as saying, we do have something that we can refer

00:15:00.220 to immediately and understand. It's not just for the lawyers and for the judges. It's for individual

00:15:05.900 citizens to understand that they have certain constitutional rights guaranteed in law,

00:15:12.060 in the constitution, written down, and is not subject to the whims of history or individuals over time.

00:15:21.100 Interesting. That's a great point. I had Mr. John Carpe on the program a couple of days ago talking about

00:15:27.180 the charter. He runs the Justice Center, which I know you've done some work with. And one of the sort of

00:15:31.980 limits he said when he was talking about the charter, why it doesn't always uphold our rights and freedoms the

00:15:37.500 way that we want, is he talked about section one of the charter, which says that the charter rights

00:15:42.940 can be limited by law so long as those limits can be shown to be reasonable in a free and democratic

00:15:47.980 society. So that verbiage, that line at the beginning, sort of pretexts the constitution saying,

00:15:54.780 if a government can prove it is reasonable in a free and democratic society, that's justification,

00:15:59.900 and that can convince a court and a judge. Go ahead, if you want to respond to that.

00:16:05.900 Well, I think you left out the most important part of section one. And that is, I'm an old English

00:16:12.700 teacher. And if you read the section one, and they read it out, the verb in that sentence is

00:16:17.820 demonstrably justified within reasonable limits by law in a free and democratic society. And a lot of

00:16:25.260 lawyers, since this came into being, have tried to twist that meaning and always just talk about

00:16:32.540 reasonable limits. In that sentence, there is demonstrably justified. Now, I make two arguments

00:16:40.380 as it relates to section one. Unfortunately, I'm the old first minister still alive who was there when

00:16:45.740 this was written. The intent of section one was to apply if the state was in peril, war, insurrection,

00:16:54.620 or some other extreme event, or some other extreme event which threatened the existence of the state.

00:17:00.540 That does not exist today, does not exist during the pandemic circumstance of the last two years.

00:17:06.780 And therefore, section one, in my view, does not even apply in this circumstance. And intent is very

00:17:14.060 important in jurisprudence. The courts very often look behind the piece of legislation or the piece of

00:17:22.780 law from the Constitution. And look behind it to say, what was the intent of the founders? What was

00:17:28.060 the intent of the creators of that section? Well, I can tell the judge, and I can tell the lawyers,

00:17:34.540 and I can tell Canada that as one of the people who was there, that was the intent of section one. It was

00:17:40.620 to be used only. That's why we wanted it in the Constitution. The Constitution is more permanent

00:17:47.340 than a piece of federal legislation or a piece of provincial legislation. It was put there to be

00:17:53.340 permanent and only to be changed in the most extreme circumstances. We're not into that extreme

00:17:59.020 circumstance. However, I go on to argue in order to give, what shall I say, courtesy more than anything

00:18:08.060 else. And to be fair, I say to people, okay, for argument's sake, let's say that section one does

00:18:15.580 apply in this pandemic circumstance. And therefore, the governments could go ahead and use section one.

00:18:21.660 There are four tests in section one, even if it does apply. And the most important test, contrary to

00:18:28.700 what a lot of the lawyers and others have been saying over the last two years, is the test of

00:18:33.820 demonstrably justify. That's the verb in that sentence. That's the predominant operative phrase

00:18:39.980 in that larger sentence, demonstrably justify within reasonable limits by law in a free and democratic

00:18:46.220 society. Well, no government, 14 governments of Canada, 10 provinces, federal government, or the

00:18:52.380 three territories have demonstrably justified what they are doing under their mandates. They have not

00:18:59.660 met the test of demonstrably justify. Everybody in Canada who knows anything about public policy

00:19:05.980 knows that when you use the words demonstrably justify, and I remember when we put demonstrably

00:19:12.060 in there to make it stronger, not just justify. Most public policymakers know that means cost-benefit

00:19:18.940 analysis or some other approach. How do you demonstrably justify what you're doing? You are government,

00:19:25.340 that is. Well, you try to find out whether what you're doing has more benefits than costs. And as we now

00:19:33.420 know and have known for a long time, only about 90 or 100 days into this pandemic, that the cure was

00:19:40.780 worse than the disease, that all these pandemic measures that were brought in where people died

00:19:46.940 because they never got to see a doctor, delayed surgeries, suicide, you know, many families broken

00:19:54.060 up and the like. Dr. Douglas Allen of Simon Fraser University did a study in which he reviewed 80 other

00:20:01.180 studies from around the world as to whether there was the cost, whether the benefit was greater than

00:20:08.220 the cost on these measures. And he found out of 80 studies that no, it wasn't justified what they

00:20:15.420 were doing. And this was published in April 2021, that study out of our own university in Canada,

00:20:22.220 by Douglas, Douglas Allen. You're very seldom here telling the report. I wonder why. It's because

00:20:27.740 his definitive, nobody's ever questioned the validity of the report. Nobody's ever questioned

00:20:34.140 his methodology. The report is there out public for anybody to read. And that's what it concluded. And

00:20:40.460 he also said in that document that 90 to 100 days after the pandemic was declared in like March 2020,

00:20:51.180 it was clear to policymakers and others that we have real problems here by implementing these mandates.

00:20:57.900 It's very, very negative. And so the test of Section 1 has not been met, even if Section 1 does apply.

00:21:06.380 And if you want to take it further, another test there was free and democratic society.

00:21:10.780 Well, a free and democratic society means that therefore parliamentary democracy. That's what Canada

00:21:16.700 means when you say free and democratic society. We have parliaments all over Canada. We have 14 of

00:21:22.060 them. And therefore, the parliaments should have been called and kept open, not called just to give

00:21:28.540 the government more power, but call and stayed open and a parliamentary committee of that parliament

00:21:34.220 established to review what the government was doing to see whether in fact it was beneficial. And then

00:21:40.700 they would have called in other people to the committee, other than just a government scientist,

00:21:45.900 to get a broader view of this situation to see whether in fact it was a valid thing to do at

00:21:52.220 that time. They didn't do that. So my argument is that number one, Section 1 does not apply because

00:21:58.460 it doesn't meet the intent. And I was there and I know what the intent was. And that's why it was put

00:22:04.140 in the Constitution. And by the way, if you go down to Section 4 in the Charter, which talks about

00:22:10.700 extending the life of a parliament if we're, if we have to. Under what conditions could you extend

00:22:17.020 the parliament? War, insurrection, if the state was in peril. So that was what was on our minds.

00:22:23.260 It was clear in Section 4 what was on our minds. It was a very extreme event for Section 1 to be

00:22:29.580 triggered. And that extreme event does not exist today. But I go on to say, as I said in summary,

00:22:35.500 that even if Section 1 does apply, the governments of this nation did not meet the two very important

00:22:41.420 tests of the four, one demonstrably justified or within the context of a free and democratic society.

00:22:49.020 Well, thank you for making that important clarification. I must have just been misreading

00:22:53.580 the Section 1 there. But I think I think you really robustly answered that question. But it does beg

00:22:59.980 the next question, which is, why the why? You know, if the Section 1 test wasn't met,

00:23:07.100 how is it that the governments were able to steamroll so many of the other rights that were

00:23:12.460 written down in the Charter? How did this play? How did it play out? Why did it play out? How was it

00:23:17.100 able to be the case in Canada? You know, as well as I do, they just went ahead and did it. And nobody

00:23:23.100 and well, what really happened, I guess, is that early on, the Imperial College of London

00:23:30.540 in England issued a report, which the White House in the United States, with the Parliament in Canada

00:23:38.060 and all the world brought into this fear mongering that the Imperial College of London said, where

00:23:44.700 millions were going to die, some die in the streets. They even talked about deaths in the streets of

00:23:50.300 China at the time in Wuhan because of this virus and so on. So a climate affair was created very early

00:23:59.020 on into this pandemic, which just about everybody bought into, except myself and a few others. But

00:24:07.740 a lot of people bought into this. And this gave the government's license, they thought, to go ahead

00:24:15.340 and violate the freedoms and rights enshrined in the Constitution of Canada. And unfortunately,

00:24:22.700 so that's what happened really, is that a mass psychosis overtook the society, and people were

00:24:30.140 very subservient once fear set in to going along with the government narrative. So it goes to show,

00:24:38.140 as we know from history, that very often leaders have reached their own limits, the normal limits that

00:24:49.100 apply to a government or apply to a leader. And this is what happened in this sense. And I've been

00:24:54.300 fighting ever since to get this back to get it. Now, we must say that the fight is not over. And this is

00:25:02.220 the other thing that people say, well, the Charter has been thrown out the window, and that's the end

00:25:06.860 of it. Well, if that was so, then the courts of appeal of the provinces have not heard yet,

00:25:13.260 nor has the Supreme Court of Canada. It's the lower courts that have heard the cases so far

00:25:18.060 and have ruled against us and ruled for the governments. But the other point I must make is

00:25:24.060 that the first words of the Constitution of the Charter are not Section 1, are not in Section 1.

00:25:30.620 The first words of the Charter, which therefore comes before Section 1,

00:25:35.740 and under which Section 1 is to be considered, are, this country was founded on the principles

00:25:42.380 of the supremacy of God and the rule of law. Now, if you put Section 1 into that context,

00:25:49.660 what does the supremacy of God mean? Doesn't that mean inalienable rights, that the rights that we

00:25:55.100 possess as individuals don't even come from this faith in the first instance, they come from the Creator.

00:26:00.300 And it's in that context that you must consider this Charter. Then what has happened in the lower

00:26:07.340 courts, they've even ignored even mentioning the supreme supremacy of God and the rule of law in one

00:26:13.580 case in so far. And so, and I'm sure you have not heard in a lot of the debates and a lot of the

00:26:20.540 articles that you've read very much attention to supremacy of God and the rule of law. But it is the

00:26:26.300 beginning of the Charter and comes even before Section 1. And once again, as a former English

00:26:32.460 teacher, at the end of that sentence, it's not a period, it's a colon. A colon has a meaning,

00:26:39.500 a semicolon has a meaning, a period has a meaning, a comma has a meaning, and they're all different.

00:26:44.540 Well, colon means what follows, right? What comes after, right? That's what a colon means. I am going to list

00:26:52.060 the number of animals there is in the world, colon. I am going to tell you who are the

00:26:58.780 National Hockey League players in Canada, colon, right? What follows, what comes after. Well,

00:27:04.620 that's what this was delivered by us when we wrote that sentence, is that all the other things that

00:27:12.220 come after that sentence have to be considered in the light of supremacy of God in the context of

00:27:19.340 rule of law. This has been missing so far. And so it's my intention, and many others with me,

00:27:26.620 to point this out. So that by the time the appeals get to the courts of appeal of the provinces,

00:27:33.340 quite likely three or four provinces for sure. And then ultimately to the Supreme Court of Canada,

00:27:39.900 that the justices will recognize that what their fellow comrades did in the lower courts was not

00:27:46.940 complete. They did not consider seriously enough section one, nor did they consider seriously enough

00:27:54.620 the preamble to the charter supremacy of God and the rule of law. So the hockey game isn't over.

00:28:01.020 We're in the latter part of the second period. We've got the full third period to go,

00:28:05.340 and that is the courts of appeal and the Supreme Court of Canada. So I'm not giving up the

00:28:09.900 on the courts yet. I know a lot of people have, but I still insist that if Canadians from coast to

00:28:17.100 coast to coast kept arguing with me that the higher courts now have a solemn responsibility

00:28:25.660 to correct what has happened in the lower courts. They've done it before. It's been done in Supreme

00:28:30.140 Courts all over the world. That's why you have a Supreme Court of Canada, because there may be a bit of

00:28:34.780 a mistake in the lower courts. Otherwise, why have it? If they're all omnipotent at the lower level,

00:28:39.660 well, then why have an appeal court? Why have a Supreme Court of Canada? The mere fact that we do

00:28:44.460 means that there's a possibility that the lower courts got it wrong. And in this case, they got it

00:28:50.540 very much wrong, both in interpreting section one and interpreting or ignoring the principles of the

00:28:57.420 supremacy of God and the rule of law. So I'm still in there fighting that the courts have an opportunity

00:29:04.300 now to correct what has been done wrong so far. Well, I really appreciate you adding in that

00:29:10.380 mention of the preamble because it's so important. And you're right. We don't hear very often the fact

00:29:14.300 that our country, our constitution and our charter is based on the principles of the supremacy of God

00:29:20.300 and the rule of law. I wish our prime minister would contemplate it. I mean, we have a prime minister,

00:29:24.540 uh, Brian, who routinely breaks the law. I mean, he's had multiple ethics violations. He acts

00:29:30.620 oftentimes like he's above the law. He doesn't seem like a person who really does respect the rule of

00:29:35.260 law. And all the other parties, sadly, that are in the House of Commons are in the same boat.

00:29:42.060 And by the way, he never only broke ethics rules. He broke the law. He broke the conflict of interest

00:29:52.940 law, which was a law that was passed by the House of Commons, by these very MPs. And he broke it five

00:30:00.460 times, according to the independent conflict of interest ethics commissioner.

00:30:05.740 Are you talking about the Aga Khan, the Aga Khan vacation? Is that what you're referring to?

00:30:11.820 I know there's just been a, okay. That's one. And you can go into the website of the ethics

00:30:18.860 commissioner and find all five of these. Another one was obstruction of justice. When the minister

00:30:25.660 attorney general, Judy Wilson-Raybo was trying to be forced to change her mind and get her department 1.00

00:30:33.420 to change their decision, that SNC-Lavalin company had to go to court. They were trying

00:30:39.660 to get a deal outside of court. Then the prime minister was trying to force his minister of

00:30:45.100 justice through his office and through a couple of his ministers and his staff to get the minister

00:30:50.860 who had already made up her mind that this should go to a full court hearing. There was the evidence

00:30:56.300 was quite overwhelming that they had committed wrong and that it should go all the way. The prime

00:31:01.980 minister tried to obstruct the normal course of justice by interfering with the attorney general

00:31:09.340 and the minister of justice. If anybody learns anything when they become a leader of a political

00:31:15.100 party, which has the majority of seats in the House of Commons or in the parliament, is this.

00:31:20.060 And my first day in office, I was advised by senior people in the government. One thing you must know

00:31:29.660 from the start, Mr. Premier, and I'm sure you've heard of this when you were a minister, that the

00:31:35.340 course of justice, course of justice that is being preceded in your ministry of justice is not to be

00:31:42.860 interfered with by your office or by you. It's one of the principles of British parliamentary democracy.

00:31:49.820 It is a very, very important part of this. You act untouchable. You don't interfere with what the

00:31:57.900 minister of justice department is bringing forward as various allegations or prosecutions against

00:32:05.900 a person, against the company or whatever. I learned it very early on, 24 hours in,

00:32:10.780 I was advised, you know, you'll be well served to leave that alone. That's one, that's sacrosanct.

00:32:17.020 And so the prime minister broke those laws. But my bigger point is this, and there's where we have a

00:32:22.380 problem in Canada today. We have no moral compass anymore. And a really good example is that none

00:32:28.700 of the MPs in any of the parties have tried to amend the conflict of interest legislation

00:32:35.260 so that if an MP breaks the law, they cannot serve in parliament. Right now, the prime minister is still

00:32:41.580 serving in parliament, even though he broke the law, because there is no penalties, like $100 fine,

00:32:48.140 $500 fine for breaking the law, you can still serve in the parliament of Canada. I wrote on my blog a

00:32:54.860 few days ago on this, and I have been talking about this for a while. So the problem we have in our

00:33:02.780 nation is the prime minister, but it's also all the other leaders of parties in the House of Commons

00:33:08.300 who have not insisted that this conflict of interest law, we don't need to change the constitution.

00:33:13.740 All we need is to go to the House of Commons like they do every day when it's open,

00:33:18.460 and make a proposal, or make a resolution, or propose a change to the conflict of interest act.

00:33:23.580 Any party, any MP can propose that. And none of the parties have done it. And so therefore,

00:33:29.260 they're all guilty by association, by not taking it upon themselves to insist that this,

00:33:36.860 our parliament and our parliamentarians must be honest. And right now they're not.

00:33:43.820 Well, it's so true. Sometimes you just shake your head reading the news and hearing about senators

00:33:47.660 and MPs being charged with crimes and breaking the laws. And it's like, what kind of country is this?

00:33:52.460 What kind of culture do we have where we don't have the basic respect for the rule of law? We allow

00:33:56.620 politicians to get away with this. I would likewise echo that. I would love to see laws put into place

00:34:02.300 to be stricter against the people who are elected to represent us. I wanted to pivot a little bit and

00:34:07.580 ask you about the Emergencies Act. Because when you were talking about the charter having the

00:34:12.060 demonstrably justifiable clause in Section 1, and the idea was that it was during like a war time

00:34:18.300 or an extreme event, it seemed very similar to the Emergencies Act. This thing used to be called

00:34:24.300 martial law. It used to be reserved for the War Measures Act at a time when our country was being

00:34:30.300 invaded or there was an insurrection. It seems to me that the prime minister just used it because he

00:34:34.060 didn't like the truckers and he didn't agree with them. I'm wondering if you can comment on what you

00:34:38.540 saw transpire during the trucker convoy and the government's heavy-handed use of force against

00:34:43.580 those protesters. Yes, I was there for a number of days during when the truckers convoy situation

00:34:52.620 was at its peak. And I walked the streets of Ottawa and I didn't see anything that the prime minister

00:34:58.860 and some of his associates saw. They were very civil. The streets were left passable and the trucks were

00:35:07.340 on the side. And they were negotiating every day with the city of Ottawa to ensure that this convoy

00:35:16.300 could continue and meanwhile people could get around. And very few Canadians know that, that the convoy was

00:35:24.380 in touch and negotiating almost every day with the city of Ottawa and the mayor and the police of

00:35:31.020 Ottawa. So what the prime minister and the government did with the support of the NDP and his own and the

00:35:39.180 Liberal MPs was bring in this extreme measure, which by the way, at the beginning of that piece of

00:35:46.060 legislation, it must be consistent and conform to the Charter Rights and Freedoms. Well, it did not because

00:35:51.980 they never demonstrated at all. And since then, the hearings that have been held have shown that there

00:35:58.300 were no outside forces. There's been no prosecution brought about anybody, about firearms or about

00:36:07.500 violence. The very things that the prime minister used to justify bringing in the Emergency Act has not

00:36:14.140 materialized when it's been looked at. So he did this without the evidence to show, to demonstrably

00:36:22.380 justify that he could override the rights and freedoms of the truckers. He did this without the evidence,

00:36:28.380 the firm evidence, to justify what he did. So that was unconstitutional as well, very unconstitutional,

00:36:35.020 because it violated the Charter. Now what's happened, to show you how much rot we have in our system,

00:36:40.780 and very few people talking about it. It was revealed this morning by Congress Signal, a news

00:36:47.660 organization, that the prime minister appointed yesterday a judge under the Act who's supposed to

00:36:54.940 review what happened in the Emergency, when introducing the Emergency Measures Act, whether it was necessary

00:37:00.460 and so on. But who did he appoint? A judge who was a donor to the Liberal Party.

00:37:06.540 So where is the independence? Where is the transparency? Where is the accountability? If

00:37:14.620 the prime minister would appoint a judge, surely there's judges around at the higher levels in the

00:37:21.660 provinces who are not contributors to any political party that he could appoint to show how independent

00:37:29.420 this inquiry is going to be. So this inquiry is tainted right from the start. So we have a government

00:37:35.900 and MPs who are violating the Charter with their mandates. Then we have a government in Ottawa which

00:37:43.100 is violating the Charter by bringing in the Emergency Measures Act. And now we have a prime minister who's

00:37:48.700 appointed a judge to review the bringing in of the Emergency Act, who's a Liberal donor to the Liberal

00:37:55.580 Party of which the Prime Minister is a leader. So that's conflict of interest all over the place.

00:38:00.940 So all the way, the Conservative Party of Canada, the NDP Party of Canada, the Green Party, all of the

00:38:06.700 parties that are now in the House of Commons should be crying blue murder over this. This is ridiculous 0.97

00:38:13.500 for a country that calls itself a democracy to have an inquiry about something that the government has done 0.80

00:38:20.300 headed up by a judge that is a party sympathizer. I know, I agree. And we saw that earlier when

00:38:27.580 one of the trucker convoy organizers, Tamara Lynch, was also denied bail from a judge who had also been

00:38:32.540 a Liberal donor. I just want to point out because I saw that story, the judge. So the prime minister

00:38:37.100 called a national inquiry into the Emergency Act. When I first saw that news, I thought that was a great

00:38:41.500 story. Okay, great. We're going to get to the bottom of this. We're going to figure out why it was

00:38:44.620 called what happened. And then I sort of read a little bit more. He didn't do it because he was

00:38:49.980 doing something. Oh, I should call inquiry to let people know whether, in fact, I did this right or

00:38:55.340 not. He had to do it because it's in the act. Right. Okay. Okay. There you go. But then I read the

00:39:00.620 subtext. First of all, the judge that was named was Paul Relew. Now, I spoke to a journalist that

00:39:04.860 refuted that point and said that it was a different Paul Relew. So I'm not sure that that has been verified

00:39:10.300 that he is a Liberal donor or not. But he was certainly a Liberal appointee who was

00:39:14.460 named the judge that's going to lead this independent public order emergency commission.

00:39:19.580 But I will just say that when you read the fine print of what the commission is supposed to be

00:39:24.380 examining, I mean, you can tell right off the bat, this thing is going to be incredibly biased.

00:39:28.220 They're looking and examining the evolution and goals of the protests, the organizers,

00:39:32.220 the participants, the role of foreign and domestic funding, including crowdsourcing,

00:39:37.180 the use of social media, and the impact of misinformation and disinformation, which are the popular

00:39:42.700 buzzwords around justifying censorship online, the economic and international impact of the blockades,

00:39:50.780 and then the use of force. Well, we know that the international blockades had already been removed

00:39:54.780 by the time the Emergencies Act was brought in. So the whole thing just seems like it's a cooked up

00:39:59.740 exercise in PR on behalf of the Trudeau government.

00:40:05.580 Yeah, listen, the counter-signal produced the documents. They just didn't allege that this

00:40:12.540 judge is a Liberal donor. They produced the documents that showed the amount of money that

00:40:17.340 this judge contributed every year from government documents, okay? Because they have to reveal

00:40:24.380 where their money comes from under law. And his name, that judge's name, appears all through

00:40:33.100 the late 1990s and into the year 2000, where he contributed so much each year to the Liberal

00:40:39.100 Party of Canada. These are not the counter-signals documents. These are the documents of the

00:40:44.700 government of Canada, right, of the law of Canada. And so I think it's pretty clear that this judge was

00:40:51.580 a Liberal donor. Number two, it's already been revealed through House of Commons committee meetings

00:40:57.820 that there was no outside interference. Fintech, one of the big organizations around the world

00:41:03.180 which examines the flow of money, has already testified that there was no outside money involved

00:41:08.460 here. That it was all ordinary citizens contributing to a legitimate act of civil disobedience,

00:41:15.340 which is allowed in this country. We're allowed to freely express. We're allowed to freely assemble.

00:41:21.180 And that's what these people were doing. And so to even put that in the terms of reference

00:41:26.060 shows a complete insult of what has already been testified by Fintech and other independent

00:41:32.940 observers. And so once again, like you say, this is a very tainted inquiry before it gets off. But make

00:41:39.580 no mistake about it. The Prime Minister didn't do anything to demonstrate that he wanted to get to the

00:41:44.460 bottom of this. He was forced to do it under law. That's why the inquiry is established,

00:41:49.980 because there's a provision in the act saying you must establish an inquiry. But the other part of

00:41:56.460 all of this is, who does it report to? Who does this inquiry report to? Where does the inquiry go?

00:42:02.380 Where does the results of the inquiry go? Back to the same MPs who supported the emergency act in the

00:42:07.820 beginning. So therefore, it goes nowhere. It goes nowhere. It's totally ineffectual,

00:42:12.940 because it's in a conflict of interest from day one.

00:42:16.940 Well, it's absolutely correct. I'll take a look at the countersignal report. I hadn't looked closely

00:42:22.380 at it. I will just say that I spoke to a journalist friend and a conservative MP before recording,

00:42:26.700 and they told me that it wasn't the same Paul Rouleau. But I will do some due diligence personally,

00:42:32.060 and get back to you and get back to the audience about that. But certainly, either way,

00:42:37.500 it doesn't seem like a very healthy exercise in getting to the bottom of something that really,

00:42:42.140 truly does deserve, Canadians deserve to know what really happened, and the abuses of government need

00:42:46.780 to be highlighted. Well, Brian, I really appreciate your time. I had one final question for you, and I

00:42:53.180 know we've gone over a little bit, but I do appreciate your time. And I want to just say,

00:42:57.260 you know, looking back at 40 years of the charter, do you think the charter has lived up to your

00:43:02.460 expectations back then from 1982? Are there any areas where you think the charter has fallen short,

00:43:07.660 anything that you wish you had done differently in drafting and putting together the charter?

00:43:11.580 Yeah. Man is a fallen being, if you believe in Christianity or some form of spirituality,

00:43:17.420 and none of us are perfect. I think the person who was alleged to be perfect was crucified.

00:43:23.420 So, you know, we don't have to take a chance here of doing something that's always perfect.

00:43:28.300 So obviously, it can always be improved upon any kind. But I would just remind people that this

00:43:33.660 charter, as I said earlier at the opening, was not negotiated in and of itself. It was a bargaining

00:43:39.260 ship with other things, Aboriginal rights, equalization, amending formula, and minority

00:43:47.500 language rights, and so on. They were all part of the mix, and we were negotiating back and forth.

00:43:52.860 So if you had to do just a charter over again, that's one thing. But anytime you open the constitution,

00:44:00.060 the parties to the constitution are going to want other changes, and just not the charter changes.

00:44:04.540 That's part of living in a democracy, right? And the participants are going to be

00:44:10.540 looking for various things, including Quebec will be looking for other things, because they're not

00:44:14.460 even part of the constitution right now. So one has to say, be careful what you wish for,

00:44:21.420 because you might lose the supremacy of God, and pick up something else on the other end,

00:44:26.220 whether that's a bargain or not. And so yeah, you can always do better. But I would just say that

00:44:31.980 having those sections 2, 6, 7, and 15 clearly identified, I mean, how can there be any dispute

00:44:39.900 over life, liberty, and the security of the person? Remember, constitutions are principles.

00:44:46.140 Legislation gets into real detail, but these are principles that then have to be interpreted

00:44:50.940 by the courts. To make them any more definitive, you'll lose something, or you'll gain something.

00:44:57.020 But remember, it's all compromise. You're not, you're not into this alone. There are other

00:45:03.500 players, and there are other factors at play. I would just do that. But of course, if you could

00:45:08.860 go back and do anything over again, you can usually make improvements. And we could no doubt in the

00:45:13.660 charter. But remember, you'll never get a situation where you're going to be negotiating the charter

00:45:18.300 by itself. It will always be, when you open the charter, you're opening the constitution. Remember,

00:45:23.660 the charter is in the Constitution Act 1982. It's not the Charter of Rights Constitution Act.

00:45:32.860 It's a charter, it's the Constitution Act of 1982, of which the charter is one of seven items.

00:45:42.220 I think it's 30, 60, 60 parts to the Constitution Act, 34 for the charter.

00:45:53.580 All the rest are of the other matters that I've mentioned. So yes, you can always do better. But in

00:45:59.020 the context of Constitution, not legislation, it is far, far more difficult to get exactly what you want

00:46:08.060 from all the players. We all compromise. This is a compromise document, as all of these things are.

00:46:14.700 Well, thank you for joining the show and providing so much more context and nuance to the circumstances

00:46:23.260 around the charter, the purpose, some of the more forgotten lines from the charter that we wish

00:46:27.980 were more emphasized. And thank you as well for your courage, your advocacy, your voice throughout the

00:46:34.460 last two years. I know you've been a tremendous beacon of hope for so many Canadians who feel discouraged

00:46:39.660 by the overreaches of our government and the state of things. So we really appreciate you being out

00:46:44.380 there, Brian, on the front lines fighting against government overreach and continuing to do the

00:46:49.500 important work of upholding and championing the rights and freedoms of all Canadians. So thank you for

00:46:54.540 that. Thank you very much for having me. I really appreciate it. Have a great day.

00:47:00.300 All right. Thank you so much. That is Brian Peckford, the former Premier of Newfoundland and Labrador,

00:47:05.260 original signature to the Charter of Rights and Freedoms. I'm Candace Malcolm, and this is the

00:47:09.180 Candace Malcolm Show. Hey, everyone. Thank you so much for tuning into that interview. I thought it

00:47:15.580 was great. Great conversation with the former Premier of Newfoundland and original signatory to

00:47:19.740 the Charter of Rights and Freedoms. I appreciate his time. I wanted to revisit one thing that happened

00:47:23.900 in the interview, though, because as you saw, we had a little bit of a dispute over the judge that is

00:47:28.620 presiding over the national inquiry into the Emergencies Act, the use of the Emergencies Act. Trudeau

00:47:33.980 appointed them. So Mr. Peckford made the point that Kian Bextie had reported in the counter signal

00:47:39.900 that this individual was a liberal donor. And now, right before I recorded the interview,

00:47:44.380 I had read a message from someone who was refuting that fact. I talked to a journalist and I spoke to

00:47:49.020 a conservative MP. So I just didn't want to put out information that wasn't accurate. I said that I

00:47:54.060 would do a little bit of due diligence and get back to the audience about it. So I'm doing that

00:47:58.780 right now. So what I am referring to is a report that was put out by Brian Lilly. Brian Lilly is a

00:48:04.940 journalist over at the Toronto Sun. And he put this on Twitter. He said, I had a nice chat with Paul

00:48:09.740 Rouleau from Port Colborne, Ontario. He is not a judge and has not been named head of the inquiry.

00:48:14.940 So the claim by many that the judge is a recent donor is false. Okay, then he links to his Toronto

00:48:20.060 Sun piece that he has profiling Paul Rouleau, who is the individual who Trudeau named. And let me just

00:48:25.500 read from that report. He says, it fits with Trudeau's style that he waited until the last

00:48:29.980 possible day to call the inquiry and then appointed a former top liberal political staffer to head the

00:48:35.420 inquiry. So Paul Rouleau was appointed to the bench by Paul Martin's Liberal government in 2002. He isn't

00:48:41.020 simply someone who made a few small donations to the Liberal Party or someone who went to some cocktail

00:48:45.500 fundraisers. He actually worked for the Liberal Party in the past. So this is more from Brian Lilly's

00:48:51.180 report. In 1983, he was part of John Turner's leadership campaign to dig over when Pierre

00:48:56.620 Trudeau announced his retirement. Rouleau then had a hand in helping pick Turner's cabinet. Once he won

00:49:01.820 leadership, various media reports described him as an executive assistant or an appointment secretary.

00:49:07.340 So we're not just talking about an independent judge here. We're talking about someone who can

00:49:11.820 fairly and accurately be described as a Liberal insider, a partisan Liberal, a Liberal staffer,

00:49:17.100 someone who is a big L Liberal, just like Justin Trudeau. Think about it. Justin Trudeau just

00:49:21.900 appointed a party loyalist to head up an inquiry into his use of the Emergencies Act. Either way,

00:49:28.060 it's unprecedented whether you take Kean Bexley's word that this guy is a donor or whether you look

00:49:33.020 to Brian Lilly saying, no, he's not a donor. It's not the same guy. However, even worse, this guy was a

00:49:37.420 political staffer for the Liberals. Either way, not good for our country, not good for the state of the

00:49:42.460 rule of law when the person who could be holding Justin Trudeau to account is part of Trudeau's

00:49:48.060 circle, part of the old boys club with the Liberal Party, not a good sign for Canada. Anyway, I wanted

00:49:53.180 to put that out there so that it was clear. I appreciate Mr. Peckford's time. Thank you so much

00:49:57.900 for tuning into the interview and for following True North.

The Candice Malcolm Show - April 27, 2022

How has the Charter of Rights and Freedoms changed Canada？ (Ft. The Hon. Brian Peckford)

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