“I am a Canadian, free to speak without fear, free to worship in my own way, free to stand for what I think right, free to oppose what I believe wrong, or free to choose those who shall govern my country. This heritage of freedom I pledge to uphold for myself and all mankind.” — John Diefenbaker, from the Canadian Bill of Rights, July 1, 1960.
“A tribunal handicapped by the fact that hearings are not in person, that evidence is not sworn, that there is no cross-examination, and that imposes no duty on the officer to provide all the relevant material (including recordings of the event), lacks most of the means by which courts or other tribunals ordinarily discern the truth.” — B.C. Supreme Court Justice Mark McEwan, Oct. 11, 2011.
We’ve come a long way in 51 years. From a free country, of free individuals afforded the rights and protections of the Canadian Bill of Rights, to a society where police attempt to summarily detain, search, charge and convict an individual without the trouble of actually going through the messy process of proving guilt. The police and the government would rather expedite the process than observe basic legal protections in place since the Magna Carta.
This erosion of freedoms is evident in many facets of our society. Provincial and federal human rights commissions, as illustrated by Section 13 in the Canadian Human Rights Act, allow a government-appointed tribunal to trample individual rights and freedoms, expressly put forth in the 1960 Bill of Rights. All that is required to bring the substantial legal resources of the government down on an individual is a single complaint brought by a “protected minority” member or group, or a bureaucrat. Once started, the star chambers that are the human rights commissions can put the accused through a para-legal nightmare without end.
In both examples of the roadside conviction for impaired driving and the human rights tribunals, individuals charged are not allowed to face their accuser, there are no standards for presentation of evidence and the accused is not provided access to legal counsel. In each instance, truth is not a valid defence. There is no presumption of innocence, rather the accused is presumed guilty and the burden of proof is on the defendant.
The chipping away of our individual rights in Canada is the direct result of Pierre Trudeau’s ill-conceived “repatriation” of the Constitution. In his fervour to create the legislative environment that would allow the federal government to out manoeuvre the Quebec separatists, Trudeau, whether by design or ignorance, wiped out 200 years of individual freedoms protected by the Crown and the British North America Act — the predecessor to the Constitution Act of 1982.
Trudeau’s Constitution provides the Supreme Court of Canada effectively legislates from the bench (as evidenced in the recent Insite shooting gallery ruling). Intended to block repeated attempts by Quebec to secede from Canada legislatively, the Constitution anticipated the matter would eventually wind up in the Supreme Court. By making it known that the courts would ultimately decide the issue, federal and provincial legislators could avoid taking any politically risky stances, deferring to the Supreme Court of Canada. Trudeau even provided mechanisms whereby minority French language groups would receive taxpayer funding to go to court to “preserve” rights.
This strategy was too clever. Minority groups of all stripes, climbed aboard the gravy train to get their federal money and argue the Supreme Court must “protect” their special rights under the Charter. The Supreme Court obliged, and Parliament needed only to ratify the Supreme Court’s rulings. This process has led to the notion of special classes of citizens, with special rights conferred by the Supreme Court — and discouraged our politicians from debating the merits of the “special classes” in a frank and objective manner. This has also led to governments at all levels relying on the courts to dictate policy.
This leads us inexorably to roadside convictions by police, and star chambers of bureaucrats. The result is that various ministries at the provincial and federal level will attempt to enact new regulations or amend existing laws administratively, paying only superficial attention to the legislative process. Onerous and freedom-limiting laws are passed or amended with regularity in the name of the public good. We live in a soft tyranny of our own making.
The B.C. Supreme Court, in a rare demonstration of judicial competence, slapped the wrists of the B.C. Liberals by ruling B.C.’s roadside convictions unconstitutional. It was correct to do so. As long as we choose governments that rely on the court to validate legislation, we will continue to cede more personal freedom to government. Perhaps we should start choosing politicians who will protect us from government — and leave the courts out of the process of crafting legislation.
Mark Walker is the publisher of the Penticton Western News.