Maybe this can be helpful? It was motivated by the interview of Brian Peckford by Andrew Lawton.
(The contributions of Brian Peckford, former premier of Newfoundland/Labrador to the Freedom Fighters. Conversation with journalist Andrew Lawton. https://sandrafinley.ca/blog/?p=26159)
Lawyers and clients have been bringing charges against governments and institutions for violating provisions of the Charter, including not ‘fulfilling’ Section 1 requirements.
The cases against forced injections and lock-downs prohibited by Charter Rights – – are the reverse of what my relationship was (defendant) in a Charter Rights case.
Nonetheless, maybe someone will benefit by knowing my particular experience, why/how Charter Rights are not upheld through the Canadian Court system.
There is a loophole that is exploited by Federal Prosecutors.
I don’t mean to be presumptuous; I am not a lawyer.
The erosion of Rights in Canada has reached the alarm stage. Many of us have been battling to apply the brakes and shift into reverse for decades, to protect the rights we have. There have been periodic gains, but soon pushed back. Covid has been accompanied by a precipitous decline, but one that has been in the making.
My practical experience with dispute over Constitutional Rights may be helpful to “freedom fighters”. I was in and out of Court for 5 years over the Charter Right to Privacy of Personal Information.
Bless Brian Peckford for the points he raises. It is difficult to fathom the thin voice, even silence, of others who are in positions to speak up with resonant voice. They barely squeak.
Section 1 of the Charter, Government Override of Rights
Brian Peckford describes that the Government can override a Charter Right if they can “demonstrably justify” the need.
In preparation for my trial, I looked into the “Oakes Test”, the criteria applied by the Courts to judge whether the Government has “demonstrably justified” the need for a Section 1 Override. The Oakes Test is not rocket science; it is not lengthy; it is not difficult to understand.
Peckford makes the point: the Section 1 override is being used in a way that is “ not a valid use”. Section 1 is “not a trump card”.
Take it a step further:
From my blog: a short posting that should be taught in Law Schools, but is not the last time I checked:
The Oakes Test to over-ride Charter Rights. How Prosecutors get around it.
Law schools have a duty to teach CRITICAL analysis. We otherwise remain forever mired in a stagnant status quo. Singing our self-congratulatory praises while the ship is sinking.
The Defence against Government prosecution in a case of Charter Rights, in my experience, must somehow get ahead of the Federal Prosecutors if the case is to be won:
the Defence has to find a way to themselves invoke the Oakes Test, force the Feds to argue the need (satisfy the criteria) for an override of Rights. In that way, the Court is forced to make a decision on the basis of the prescribed criteria (Oakes test) – – the Feds have to “demonstrably justify” the need.
OTHERWISE, HERE’S WHAT HAPPENS:
I stood with mouth open when it became apparent that my Charter Right was being thrown out, without ever being argued.
The simple explanation provided: In the real world, in practice, that’s how it works.
Only the prosecution (i.e. the Government itself) can initiate the process for a Section 1 Override. The Defence cannot. Tell me if I’m wrong. That’s what discourse in a democracy is about.
I have never found anyone or anything who could or would contradict that that is the process.
I think I understand WHY it is the case:
THE PROCESS FOR AN OVERRIDE IS BUILT UPON AN INVALID ASSUMPTION.
If you assume that the Government wants to uphold the Laws of the Land, and especially Constitutional laws, if they want to override a Charter Right, they would begin by making an application to the Courts, and present the arguments to satisfy the Court that an override should be granted. That is how the process was designed to work.
The problem: the assumption is wrong. Consequently that is not what happens.
The construction of the Charter Rights did not contemplate that the Government of Canada might not subscribe to the Rule of Law.
It does not. The Government routinely flaunts the Laws, with no holding to account.
Funding for Law Reform in Canada was gutted.
There is no longer financial assistance to defend yourself in cases of prosecution by the State when they are taking away your Constitutional Rights. You are on your own against the power and resources of the state, and their lawyers.
The outcomes and consequences for participants in the current Charter cases will be interesting to see.
Does anyone care about the abuse of Charter Rights, enough to correct the system? The legal industry is self-regulating.
The Federal Prosecution Services, Ottawa office, directed the case against me. They INSTRUCTED the local federal prosecutor in Saskatoon NOT to argue for a Section 1 Override of my Right. I did not understand how they could do that. They were definitely taking away my Charter Right by trying to force me to supply personal information to the state.
My Charter Right to Privacy of Personal Information exists, unless the Government successfully argues the Oakes test criteria in a Court of law.
Several times the Judge asked the Prosecutor if he was arguing for a Section 1 override. Each time he said “no”. It mystified me. . . . but then you realize: the Federal Prosecutors KNOW they can IN EFFECT get an override, without ever having to “demonstrably justify” the need.
All because the human beings in the system do not actually believe in and support the Rule of law.
I was blind-sided. I was confident of my Charter Right to Privacy of personal information, confident that the Feds could not meet the criteria for taking away the Right to the extent they were doing. I had nothing to worry about; I only needed to focus on being prepared. . . . But I was powerless even with the Charter Right because of how the system works – – the short explanation is in The Oakes Test to over-ride Charter Rights. How Prosecutors get around it.
As opportunities have presented through the years, I have explained the deficiency (loophole) to appropriate entities, and urged change/correction. I have approached law schools. There is no interest in changing or improving anything.
Law Reform used to exist; it is woefully under-funded today. There is also a problem: lawyers sign up for positions but in a hectic world have no time to offer. The positions become decorations on résumés or a “networking opportunity”. Nothing gets done.
I am not the only one to observe: the status quo among the influential in Canada is immune to overtures, an insulated elite, deaf, complacent, with no interest in reform or in the public interest. Corporate interests are a different matter; they DO have traction. There are systemic reasons for that.
Mr. Peckford said, “If there is any independence left in the Judiciary . . .” yes.
THANK-YOU MR. PECKFORD, FOR EXPLAINING THE AVAILABILITY OF A CONSTITUTIONAL REFERENCE
IT’S VERY IMPORTANT. AND UNCONSCIONABLE THAT IT IS NOT BEING USED.
WHERE IS THE LEGAL PROFESSION?
VIDEO BELOW – – journalist Lawton asks excellent questions. The former premier has a reputation for straight-shooting. He hits the mark with his call, in common language for a “Constitutional Reference“.
“There is a measure to expedite this through the Courts . . . nobody is talking about this . . .”.
The current cases lined up in Canadian courts will receive decision in 4 to 5 YEARS.
A “Constitutional Reference” lands in the Supreme Court of Canada (SCC) in 6 months to a year. A government asks the SCC:
- “Is what we are doing following the Constitution of this Country?”
- Is it following the Charter of Rights and Freedoms?”.
More:
https://en.wikipedia.org/wiki/Reference_question
In Canadian law, a reference question or reference case .. is a submission by the federal or a provincial government to the courts asking for an advisory opinion on a major legal issue. Typically the question concerns the constitutionality of legislation. . . .
In the interview:
“There is a measure to expedite this through the Courts . . . nobody is talking about this either”.
In a reference that lands in the Supreme Court of Canada in 6 months to a year,
instead of in 4 to 5 years under the process we are embarked upon – –
the asking of the question to the Appeal Courts, quoting you in the interview by Andrew, “Is what we are doing following the Constitution of this Country?”
(the questions asked and answered, expedited, through a “constitutional reference”). . Is it following the Charter of Rights and Freedoms”.
WHY is that not being done? We have such dysfunctional media. Why don’t people get mad? Thank God we at least have email to inform each other.
You speak to the “Failure of leadership” in the country. Absolutely.
I am of the view that Canadians must take to the streets. Over the course of 30 to 40 years we have only been slip slidin’ away. Non-violent resistance is called for. Without it, say adios to parliamentary democracy and the Rule of Law, which we don’t have, even now.
Thank-you very much, Brian Peckford, for your constancy in the interests of Canadians.
Surely we can prevail, together. Boot out the imposters.
THE OVER-RIDE OF MY AND OTHERS CHARTER RIGHT: supplementary if anyone has time and interest!
Is the CBC report true? . . . Is the heading true? Did I actually pronounce the words “I am pleased”? (by the Court decision)
I wondered the same thing when I read the news article!
Try this reply to your question. If it doesn’t answer, please get back to me:
I absolutely disagree with the decision that found me guilty. (I dealt with the shock of being found guilty the week before this CBC report.)
Simultaneously, I have some grasp of the dilemma for the Judge and did not condemn her. It’s a systems problem, also a problem of entrenched interests that are reactionary in the face of Charter Rights. (Stephen Harper got rid of the funding that citizens could access when they were fighting to uphold Charter Rights – – very difficult to do if you have all the resources of the Federal Govt lined up against you, an individual. Lawyers arriving from Ottawa for my trial, pulling cartloads of reference material alongside them. More than once. Are they crazy? All I want is to preserve my Charter Right to privacy of personal information.)
In my case, the problem existed prior to it landing in the Judge’s court. The Federal Justice Dept had to agree to proceed with the charges against me and others for political reasons – – coercion! Ha ha! Never mind the breaches of Law – – there is no doubt in my mind that is Selective Prosecution which is illegal.
That said, they have a stated duty to review cases in the light of Charter Rights. More than anyone in the country, the Federal Dept of Justice knows, or should know Charter Rights. They went full throttle ahead on my case and others, in spite of Charter Rights.
The Ottawa Feds worked closely with the Saskatoon Prosecutor, providing guidance, and then brought in a Prosecutor from Ottawa with a full buggy of volumes of legal documents at the two levels of appeals in Saskatchewan (Court of Queens Bench and Sask Court of Appeal).
There were obviously people less interested in the integrity of the Justice System than in unfettered ability to build detailed files on Canadians, through StatsCan.
This CBC report was pursuant to sentencing.
It can be interpreted that the Judge used sentencing as a way to acknowledge lack of guilt. I was pronounced “guilty” but given a conditional discharge. “Conditional” means “unless you re-offend in the next year, in which case you will be truly guilty and sentenced accordingly.
But censuses are once every 5 years – – no way I could re-offend in the next year! So, there was that element of success for me in the outcome, in spite of the “guilty”. But also, the level of awareness in Canada about what is going on was, for me, critical success.
I had told the Judge that I didn’t fill in the census form, I would not, and why. I presented the Court with William Hartung’s timely book “Prophets of War: Lockheed Martin and the Making of the Military-Industrial Complex”. (Nation Books, 2011)”.
I don’t know that she would have read it; it was outside the Rules of Evidence. I don’t care – – lots of people were thereby alerted to the existence of a book on the subject. I was representing myself at the time and I DID know (reminded the Court) that then-Chief Justice Beverley McLaughlin had, on a number of occasions, admonished the legal profession about how the justice system had to change to accommodate self-representation because of the impossible costs of hiring a lawyer – – and being conversant with all the Rules of Evidence.
RE: It’s a systems problem, also a problem of entrenched interests that are reactionary in the face of Charter Rights.
Narrowly defined I was guilty of not filling in my census form. And because of the way the system has been contorted, I was not allowed to make the Charter argument.
The Judge asked the Prosecutor 2 or 3 times if he was arguing for an override of the Charter Right (the system is set up such that the defence cannot argue for an override – – it has to be the Prosecution). The Prosecution knew they would lose the case if they had to argue for an override – – they could not meet the criteria.
So of course, the Prosecutor said “no” he was not seeking an override. (I believe that Ottawa had fully briefed him: stay away absolutely from a Section 1 Override.) It was clear to me that the only way I could be found guilty, was if the Charter Right was not invoked. Was not a factor. I could see things were going that way. (At that point I was really over my head. And had the good fortune to find a young lawyer who was passionate about Charter Law on Privacy.)
A short posting that should be taught in Law Schools, but is not the last time I checked: The Oakes Test to over-ride Charter Rights. How Prosecutors get around it.
I think the Judge was fairly limited because of the system. I think she thought about and worked hard on her written decision, was very anxious not to be overturned on appeal. She was prevented from addressing Charter Rights; the Rules of Evidence meant that Lockheed Martin did not enter the decision, even though it was the central issue.
My position: (just in case someone wants to know!) Canadians theoretically have a Charter Right to privacy of personal information. The Right is eloquently stated:
“In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state.”
What StatsCan does, and has been doing, clearly flies in the face of the Charter Right.
I was pleased that the media FINALLY started reporting on the role of Lockheed Martin Corporation at StatsCan, even though it was never taken up in critical discussion. And minimizing language was always used if it was brought up.
Eventually I think the media HAD to print the name Lockheed Martin because networks were spreading the information too far. Through coverage such as this CBC article, Canadians could at least be alerted to, and wonder about the name “Lockheed Martin”. Until then the media could not utter the name, for whatever reasons.
In Canada we got the name out into the open; the Americans were kept in the dark about Lockheed Martin’s role at the U.S. Census Bureau, and in international surveillance, war, torture, corrupting influence on democracy, ripping off tax-payers, infiltrating universities, highly subsidized by the public, purchasers of political favours. Profiteers, creators of hatred. In the U.S., and now equally in Canada.
I do not like to alienate people who are trying in what ways they can to break through the wall of silence, finding cracks and opportunities to let the sun shine in. I can tell a reporter my full story and receive full support. They write the story; sometimes they are appalled by the headline thrust on their article by the person whose job is to supply the headline. Editing happens – – sometimes they disagree with the editing. I take what I can get. No sense alienating media who are on your side by denouncing what becomes “their” coverage. Develop a relationship with them – – in time, together, you score.
/Sandra