Former Newfoundland Premier Brian Peckford says Canadians shouldn’t give up on the Charter of Rights and Freedoms even though vaccine mandates remain for now..The last first minister alive when the constitution was negotiated says legal experts like Bruce Pardy should let legal processes take their course before saying the Constitution won’t protect the freedoms it espouses..“Where I find Bruce has some kind of a blind spot is that it’s not over yet. And he gives the impression that it’s over,” Peckford said in an interview with Western Standard..“In the pandemic era, there’s still a lot of adjudication that has to go on by the courts. We’ve got to exhaust that.”.Peckford admits that court processes have moved much faster in the United States. The Biden administration’s efforts to force federally funded teachers, health care workers, and federal employees to get a COVID-19 vaccine were blocked by judges on constitutional grounds, unlike in Canada where they remain..A constitutional challenge in British Columbia by the Justice Centre for Constitutional Freedoms struck down provincial health orders banning people for peaceful protest, but allowed a ban on religious gatherings to remain. The Justice Centre also lost a challenge on lockdown measures in Manitoba..Judges have ruled that the clear infringements of constitutional freedoms were justified under Section One of the Charter, which reads, “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” .Peckford says governments have not “demonstrably justified” their pandemic responses, nor shown “reasonable limits” in their execution..“To satisfy ‘free and democratic society,’ the parliaments of the provinces and the territories and the federal government would have to be used a lot more than they were used in this pandemic. They’re only used to pass additional legislation quickly and then close the parliament,” Peckford said..“Most cases, for something like this, a parliamentary committee would be formed to have hearings and listen to, not only the public health officer, but other alternatives, scientific reasons, and medical science about the pandemic, so that then you could make a reasoned decision…and then the parliamentary committee could oversee what the government was doing overtime.”.Besides this, Peckford said Section One was only meant for rare circumstances like those in Section 4, namely, “real or apprehended war, invasion or insurrection.”.“So one can glean from that, that that’s the way we were thinking when we were writing the Charter,” Peckford said..“[Section One] was only meant to be for when the state was imperiled… and so it’s been wrongly used. And this is the problem we’ve got, and it’s a real problem.”.Peckford hopes to explain this to a judge in coming months, having launched his own lawsuit against vaccine mandates for air travel with the help of the Justice Centre. He believes judges should take an “originalist” view of constitutional interpretation that considers what he and other authors meant when they wrote the document..“It’s supposed to articulate principles. Very often you don’t see too much detail because the principles have to be interpreted by an independent judiciary interpreting the language as it was written. The problem in in law right now, in jurisprudence, is that the lawyers and the law schools have gotten away from that original intent,” Peckford said..“Ever since the Charter came in, the living tree theory [former Chief Justice] Beverly McLaughlin and others have advocated, talks about the Constitution being one which they can change more or less. And I come from the school of thought which says, no, they cannot because they’re not elected. And the constitutions are created by the elected and must be changed by the elected, and all they can do is interpret. But their interpretations have gone all the way to creating new law. So it’s a grey area of dispute.”.Lee Harding is a Western Standard contributor living in Saskatchewan.
