By Dick Field
Wednesday, March 21, 2007
A very disturbing debate took place several days ago. The occasion was a celebration of the 25th anniversary of the signing into force of our Charter of Rights and Freedoms in April 1982. The debate was shown on CPAC (the Canadian Public Affairs Channel) and attended by Charter enthusiasts, politicians, academics, lawyers and judges.
The debaters were Justice Antonin Scalia of the Supreme Court of the United States of America and Justice Ian Binnie of the Supreme Court of Canada. It was fascinating to see two intelligent men differ 180 degrees on a fundamental truth as to how democratic nations function. It was also nothing less than a damning illustration of why Canada is no longer a free and democratic nation.
An enthusiastic Justice Binnie extolled the virtues of Canada's Charter by saying in effect, that our marvelous "living tree" Charter mandated the Supreme Court of Canada to protect minorities from majority domination. (Our justices see the Charter as a live tree that they can shape and prune over time to reflect their views of social justice).
Justice Scalia on the other hand, bluntly responded by saying, "if you have a country where laws passed by the majority can be overridden by a minority, then you do not have a democracy." He also pointed out that it is not a Supreme Court's responsibility to have their nine or so unelected judges make laws that millions of citizens should decide upon through their elected representatives.
Canadians who grew up under the laws and principles of our pre Charter days know intuitively that Justice Scalia is absolutely correct. How could it be otherwise? In open democracies where free speech and inherent individual rights exist, no elected or unelected minority may legally force their will upon the majority. The minority however, always has the right to attempt to persuade the majority to revise their views or change their laws. That is the vital heart of any democracy of free people.
Let's get back to the basics folks! You don't have to be Justice Scalia to know something is terribly wrong in the state of Canada. Our brand new immigrants from non-free and non-democratic countries and perhaps some of our younger citizens can be excused from not understanding how a working democracy of free people works, but the rest of us have no excuse.
As children, most of us learned to accept the vote of the majority. For me, it began in grade one. I remember standing nervously outside the classroom door while the class voted to decide which of two of us would assume the "high honour" of being class monitor during those times when the teacher was out of the room. I lost, by one vote.
Over the years that followed, when votes took place in organizations such as the scouts, the football team, and the social club or in business, we all learned to win or lose with grace when the vote was in. We learned that the majority decides and that the majority makes the final decisions. We learned that we must accept the result of a fair vote. That is how a democratic government is elected. That is how we change governments peacefully. It is the genius of the democratic system. Anything else ultimately leads to a dictatorship.
Parliament follows the same rules when passing new laws. Whoever heard of a minority vote outweighing a majority in a democratic nation? The Justices of the Supreme Court follow the same procedure. A differing opinion of a minority of Justices may be expressed as a dissenting opinion, but the decision of the majority is the judgment that becomes the official decision of the Court.
A free vote however, does not of itself make a democracy. Another vital requirement necessary for a democracy to function with total fairness is that all laws passed by majority vote must be applicable to every citizen in the society and those laws must be exactly the same for all citizens. There cannot be different laws for different people and there cannot be laws that state that that certain individuals or groups are exempted from the law.
You undoubtedly have heard the foolish mantra pushed by minority spokespersons and so many of our "living tree" advocates; "A nation is defined by how it treats its minorities." Ask yourself, shouldn't that statement be; "A nation is defined by how it treats each and every one of its citizens?" Fairness is destroyed when one citizen is treated differently from another before and under the law of the land.
When the Framers* of our Charter of Rights and Freedoms carved our fundamental laws, rights and principles into our modern day tablet of stone, they entirely departed from our Canadian democratic traditions and instead inscribed a guarantee of a disaster in human relations, justice and freedom! What they did was introduce into the Charter the right of any of our governments, Federal, Provincial or Civic, to pass special laws for the benefit of different groups of people. Worse! These special groups, mostly minorities, were to be forever separated from the majority because of skin colour, race, nationality, ethnic background, ethnicity or sex, etc.
To top off this horror, the Supreme Court of Canada, in their divine wisdom of "living tree" pruning, ordered all courts in the land, henceforth, to include in this list of special groups of people, a group said to have a "sexual orientation." One may be excused for asking, "What in heaven's name does that mean?" Somewhere it surely needs to be defined in legal text. Come to think of it, maybe we need the same official text as to what constitutes an official minority group skin colour. The again, which of the dozens former nationalities qualify our minorities for separate identity status in the Charter?
Not only did the Framers deliberately introduce different laws for different groups of people into the Charter but they verified the legitimacy of a whole system of anti-majority behavioural tribunals. Deceptively known as Human Rights Tribunals, these kangaroo courts were set up some time before the Charter's introduction to bully and harass any individual or corporation that exercised any inherent right or freedom that a minority person or group might find offensive.
How could this dangerous and seriously flawed so-called Charter of Rights and Freedoms have been foisted upon our once-free Canadian society?
It happened because virtually the only people the Framers listened to when they wrote the Charter were minority groups and special interest groups. When the leaders of these groups demanded that laws should be written into the Charter to "protect" their special groups from the majority, the Premiers apparently forgot that they had a duty to uphold our fundamental inherent rights and freedoms. They focused on placating the minority activists and caved in. Some Premiers knew it was wrong, but too few and they were outvoted. The truth is that most knew it was wrong because they refused to approve the Charter unless Section 33 (the Notwithstanding Clause) ** was included in the document.
It is very sad to think that many of these same minorities' activists came to Canada to find safe haven from their former governments or the chaos of war and yet they did not hesitate, unwittingly, to destroy one of the greatest protections they had found in this country. They had argued to destroy their right to be protected by the same laws as every other citizen of Canada. Many hundreds of years of our forefather's struggle for the vital principle of 'equality before and under the law,' went down the drain in the unnecessary effort to placate some very foolish minority individuals and their group leaders.
Most minority group members, politicians, trained legal people and the public have yet to realize that they have created a very sharp "double-edged sword." In the name of rectifying past or existing supposed disadvantages, special interest minority activists have set in motion a never-ending trail of injustice for all. By isolating themselves from the majority they can no longer claim any moral entitlement to the ancient right of the equality before and under the law. Their rights henceforth depend upon the goodwill of the majority as to whether any particular right may or may not apply because in the end, it is the majority in our society and their representatives in our parliaments that will make the decisions. Double edged sword? You bet!
By way of illustration; some years ago, several of us were campaigning against the Employment Equity Law of Ontario. We were passing out flyers at local subway station. The flyer's bold headline stated "NO WHITES NEED APPLY" (a phrase notoriously first used by the Ontario civil service). A middle-aged Black person that had been handed one of the flyers said to my friend, "I don't think I like your flyer!" My quick-witted friend then took out a big black marker, scratched out the word WHITES and wrote over the top of it the word BLACKS. He then handed the flyer back to the Black gentleman who looked at it, and after a pause, smiled at my friend and said, "I see what you mean, you are right!" The sword, she cuts both ways! Our ancestors found that out centuries before. That is why we cannot tolerate different laws for different people.
In actuality the Charter of Rights and Freedoms is a mélange of the fundamental rights that had existed long before the Charter. These rights and freedoms were derived from our British legal heritage. Not only were these precious rights abrogated by the evil concept of minority rights but the Framers made matters even worse by introducing the promotion of language rights. This turned the Charter into a document of language sales propaganda, previously unheard of in the constitution of any English-speaking country.
Because the majority's laws no longer apply to all and we are no longer a democracy of free and equal citizens; we must seek a return of our fundamental rights and freedoms. Further, if justice is to be served, all the Framers still living, and probably all the signatories to the Charter, should be brought before a newly reinstituted High Court of Parliament (precedent: the Parliament of England and the trial of King Charles the 1st. 1649) and prosecuted for overriding, without public consent, the individual rights and freedoms of all Canadians.
This same accountability should also apply to those unelected Justices of the Supreme Court of Canada and all lesser Judges of the Provincial and Federal Courts that currently insist that they have a "divine right" to practice their "living tree" philosophy of moving society along in accordance to their unelected, egoistic, dictatorial views.
We must also make sure that the media, in all its modern forms, get on board. It is the media that bears a huge responsibility for what has happened because for the most part they have steadfastly played the politically correct game with a total lack of conscience. It is now their last opportunity to do their duty and help educate the public as to their individual rights and freedoms and the threat that this Charter represents to all of the citizens of Canada.
Finally, Canadians must hold our MPs, MPPs, MLA's feet to the fire and force the Government to withdraw and rewrite the Charter as it should have been written in the first place (If we decide we still want a written Charter of Rights and Freedoms). Too much harm has been done to our inherent rights and freedoms and much more harm will continue to occur unless we take action. Section 33 of the Charter is there for this very purpose. We must use it!
* The Framers of the Charter of Rights and Freedoms were principally the Premiers of the Provinces and the Prime Minister of Canada.
** The Notwithstanding Clause permits many of the essential Sections of the Charter to be suspended by Federal or Provincial Governments for periods of up to five years.
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