You’re listening to Awake in Relationship, a podcast about intimacy, community and culture in a time of great change with Silas Rose.
Silas Rose 0:40
Hello, welcome, my name is Silas Rose. And this is Awake In Relationship. So I’m starting the new year off with a bang, in general Ive tried to avoid conversations around the pandemic or pandemic response. Mostly because it’s in the news every day, I think we’re all kind of a little bit weary at this point, and it has become a really kind of polarizing, and emotional topic, for many people, especially the longer this pandemic drags on. In the past couple of years, we’ve all lost something, for some of it might be a loss of a loved one, or perhaps a job or a business, for others and loss is much more personal and maybe less visible to others.This might be a loss of purpose or community connection, or even hope. This is rarely discussed in the public square, in general the media is really only kind of focused on the economy, or collapsing healthcare system. This episode is unique because in focus on some of the more foundational, which is the tension between our individual rights and freedoms and the social contract, it seems almost transgressive at this point to talk about our inalienable rights and freedoms in the COVID era. But my sense is, with Omicron, we’re kind of entering a new phase of the pandemic response, we’re going to have to learn how to live with the virus and any future variants in a way that’s not consistent with science, but also the norms of a free and open society, these norms are enshrined in the Constitution, and the Canadian Charter of Rights and Freedoms. My guest in this episode is well positioned to speak on the importance in those rights and norms as we enter the third year of the pandemic. The honourable Brian Peckford was former Premier of Newfoundland Labrador, between 1979 and 1989, he is also the sole living architect of the Canadian Charter of Rights and Freedoms. This conversation really is a intimate look into the long history behind the Charter, from the perspective of someone that was actually at the table back in 1982, when the constitutional act was signed. So if you’re a history nerd, like me, I think you are gonna enjoy this episode.
Silas Rose 3:05
Brian Peckford. Welcome to the show.
Brian Peckford 3:09
Thank you for having me.
Silas Rose 3:12
So I have to say, You’re the first Premier I have interviewed on the show, hopefully not the last.
Brian Peckford 3:19
Yes, hopefully not. They’re not as approachable today as they used to be.
Silas Rose 3:26
Yeah. Why is that?
Brian Peckford 3:28
Because there’s been the concentration of power away from the parliaments of Canada, away from the cabinet of Canada and concentrated in the First Minister’s offices, either the Premier’s offices or the Prime Minister’s office. And so they’re acting more like monarchs and presidents.
Silas Rose 3:46
We will go deep into that later on. It might be helpful just for the listener to kind of get into your origin story, where you grew up. You were born in Newfoundland back before Confederation. I think at that time, it was known as a dominion. So not quite a sovereign country, but, you know, a very unique perspective.
Brian Peckford 4:19
It was as much a Dominions as Canada was
Silas Rose 4:22
Right, right. How do you think those early life experiences shaped our understanding of freedom and public service and politics?
Brian Peckford 4:32
Well, I was born in 1942, in August 1942. So I was seven years old when we became a Province of Canada. In other words, when we relinquished our own sovereignty for that are becoming part of a larger country called Canada. So I was really too small to really remember very much about it. I just remember that there was a momentous event occurring. But as I grew up there, being a province and being so brand new, you could not help but recognize in the joining that was happening was that the government became a more dominant feature in the life of people, because suddenly, the Government of Canada was introducing social programs and stuff that have obviously applied to you as much as they did to other Canadians. So perhaps the thing that most stood out as I grew up, and as I then went to university was that whole issue of government becoming more and more influential in the lives and decisions of individuals. Perhaps that would be the greatest thing. The other thing, of course, was, so with all that extra money coming into the province that we didn’t have before, we were a province, people were very quickly persuaded that this was a wonderful idea, because I’ve got extra money. And sadly, I think that has become sort of the mantra for a lot of the Western world today, not just Newfoundland, but all over the western world where, over time governance, dominance of the economy and dominance of society generally has increased.
Silas Rose 6:42
What got you on the road to becoming a politician?
Silas Rose 6:46
I think it was noticing the unfairness that was happening around me. Mr. Smallwood was the first Premier of Newfoundland. And as he stayed in power, he gained more and more of it, power. And it became a really a one man show, it wasn’t a cabinet government, there wasn’t a parliamentary democracy, it was a province that was being run like Quebec as a sort of a one man show and sort of an autocratic kind of circumstance. And I could see both when I was going to university, and when I was in the summertime working as a social worker to get money to go back to university in rural parts of Newfoundland, the unfairness of what was happening, very little fairness applied in the, in the application of programs and things that were happening around the province. Many people, for example, if they disclose that they were not a liberal, had great difficulty getting a taxi license, for example, one really personal example of it. And so after I graduated from university and became a teacher that’s sort of became a greater and greater presence in my life, And so I ended up running in that riding, as a conservative, and got elected as the first conservative ever elected to that riding..
Silas Rose 8:33
You’re pretty young then?
Brian Peckford 8:36
was. I was 28, going on 29 When I became a member of the legislature of Newfoundland, and then I quickly became a executive assistant to the Premier, the parliamentary system to the Premier and the legislature from 72 to 74, that I became a minister in 74. So I was only then like 30 or 31, when I became a minister. And then, in 1979, at the age of 36, I became the Premier of the province, the youngest Premier, ever. And the second youngest First Minister ever.
Silas Rose 9:44
Yeah. It really seems like you came of age in a really kind of critical time in our country as well. There was a lot of visionary leadership at that time. You know, between Tommy Douglas, John Diefenbaker, Lester B. Pearson. And of course the senior Pierre Elliott Trudeau.
Brian Peckford 10:08
Yeah, well, I I do agree with most of the names you mentioned as being visionaries. I do have a problem with Trudeau senior, because I was intimately involved with him as relates to the Constitution Act of 1982, and the Charter rights and freedoms, which was part of that Constitution Act. But you’re correct that people like Tommy Douglas, and John Diefenbaker, in particular, by the way, because it was John Diefenbaker, was the first one in the history of Canada, to actually acknowledge individual rights and freedoms as being important. Because when we formed as a country in 1867, through the BNA act of 1867, there was no provision in that act concerning individual rights and freedoms. Individual Rights and Freedoms then existed in common British common law, and conventions and customs as they grew up over time. There was no written Charter of Rights and Freedoms or a Bill of Rights, the United States achieved a Bill of Rights in writing in 1791, we had to wait until 1981, before we had a written Charter of Rights in the Constitution. In 1960, John Diefenbaker, was the first to acknowledge the idea of individual rights and freedoms and that it was important. And so he introduced him to the Federal Parliament, the Bill of Rights, and the Bill of Rights, identify rights of expression and rights of religion, and freedom of religion, and so on. And right, you know, freedom of the press, and the various other freedoms that we later identified in 1981. The big problem with the Bill of Rights, of course, was that it was only a federal act, and therefore only applied to federal legislation. And Canada being a federal state. A lot of things happen in the country, which had nothing to do with the federal government. Because the powers were shared between the federal government and provincial governments. And so while the Bill of Rights was important, in the sense of acknowledging the idea of individual rights and freedoms, it didn’t cover all Canadians, that only covered some Canadians. That’s why the charter was necessary in 1981. Because we all saw that we still didn’t have a something that covered all Canadians as relates to individual rights and freedoms. And we also understood that you couldn’t have it as a piece of legislation because it will only cover whatever that legislation and jurisdictional so a provincial piece of legislation would be no good. A federal piece of legislation would be no more what was necessary, as we found out from the Americans, is that you needed to put it in the Constitution because the Constitution is national. This is one of the concepts that Canadians have a very hard time understand that there’s a difference between national and federal, federal and national don’t mean the same thing. Federal only refers to things that come under the federal government, national refers to things that are under all Canadians, regardless of province, or federal government. So that’s why there was this push for a Charter of Rights and Freedoms in 1980. There had been many, many talks over the years about doing this. And so it became opportune in 1980. And so we began to negotiate. Really a number of things, which became the Constitution Act of Canada, is primarily known for two things, or even though there are many, many other things in it. It’s primarily known as the Patriation act, which meant that once we passed this new act, we wouldn’t have to refer to England anymore. When we changed our Constitution, we could do it all in Canada. And so it was not really until 1982 that we became completely sovereign as a nation.
Brian Peckford 14:56
However, it was not an easy ride. It was a very difficult ride. We all met the 11 First Ministers to Premier’s and the Prime Minister. But halfway through the thing, the Prime Minister, Pierre Trudeau decided that we were too difficult to get along with as Premier’s, and he abruptly left the table and said, I’ll take my marbles and go home. And he did. A lot of thought he would come back to the table again because he was quite used to having little temper tantrums. And we just thought this was a more a larger temper tantrum. We were wrong. What he did was he not only never came back to the table, he decided that what we were trying to do at the table he would do alone, unilaterally, that he would pass a bill in the House of Commons, a federal act, not a national Act, the Federal act, whereby the Government of Canada would unilaterally patriate the Constitution, and at the same time add onto his version of the Charter of Rights and Freedoms. Well, that caused quite a kerfuffle. And it ended up splitting the Premier’s, eight Premier’s oppose what the Prime Minister was doing, the two that supported him were Ontario and New Brunswick. All the other provinces opposed what he was doing, and said it was unconstitutional. And we brought him to court. And three court actions were held one in Newfoundland, one in Quebec and one of Manitoba to challenge his constitutionality to do this unilateral act. And on September the 28th 1981, Supreme Court of Canada ruled, Mr. Trudeau, you cannot do this, this is unconstitutional, you need to have the provinces onside in order to do this, all of the conventions and customs of our nation since it was founded, where the provinces are involved, and were added, an act was being brought in which would affect not only the federal government, the provinces would have to involve the provinces in any change. And so he failed. This, I am today, writing essays and responding to interviews today, where people have written that Prime Minister Trudeau rammed the Charter of Rights and Freedoms down the throats of the provinces. It was in the Epoch Times newspaper a couple of days ago. And so I’m fighting a rearguard action almost every day where people are totally misinterpreting, or don’t understand our history. Mr. Trudeau, his version of the constitution and, and the charter was turned down by his own court. As a matter of fact, that was a proposal that I presented on behalf of Newfoundland, and on behalf of the provinces that broke the deadlock that led to the Constitution that led to the Charter we have today. So really, on that Charter of Rights document, there should be how many signatures there should be 10 signatures, the only one that shouldn’t be on there, as Quebec because they didn’t go along with the deal that we signed in 1981. Having just one signature under misrepresents the history of our country, Trudeau passed nothing. The Government of Canada passed everything. So he lost. So he had to come back to the table and came back for one last negotiation period, November 3, fourth and fifth 1981, and it was on the fifth of November, the last day that I presented on behalf of the provinces what we had worked on the night before, based on our original proposal which broke the deadlock and made possible later that day, the Patriation Act, which became the Constitution Act of 1982.
Silas Rose 19:25
And that’s that’s the kitchen table accord?.
Brian Peckford 19:29
No, nobody knows anything about the kitchen table accord, only a few authors of books that apparently got started from one Senator Mike Duffy, who was a reporter at the time and interviewed Chretien and McMurtry and Romano, the three Attorney Generals one for Canada one for Ontario one for Saskatchewan, who gave him this story about that meeting and scribbled down on a couple of pieces of paper ideas that they said then became the Constitution Act of 1982. Nobody else knows anything about this. It’s not recorded anywhere. No documents are presented. I was meeting that night, the night of the fourth in the Saskatchewan suite with my proposal, seeing whether what I was suggesting would break the deadlock that we had on the third and all day fourth. And it was that proposal that found favor with most of the provinces that night, which was presented to the group of eight at breakfast the next morning, which became the proposal. There is no document called the kitchen table accord. It only exists in the imaginations of certain writers, and certain attorneys general who when I challenge them, go silent.
Silas Rose 21:17
Canada is really a large country. And it’s a diverse country. We have, you know, at that time when you were coming together this agreement, 10 provinces. it sounds like it wasn’t a cakewalk, but there was really at least among the Premier’s a certain baseline of commitment to debate and consensus building, is this true?
Brian Peckford 21:41
Yes, especially among the Premier’s and especially among the group of eight, we were not willing to give up on this. People like Bill Bennett from British Columbia, Peter Lougheed from Alberta, Alan Blakeney from Saskatchewan, Sterling Lyon, from Manitoba, for example, even René Lévesque was interested in individual rights and freedoms. And then you had the Premier of Prince Edward Island, and Premier of Nova Scotia and yours truly a Newfoundland. And there was a fairly strong consensus amongst us that this project that we were had now been involved in for 16 or 17 months up until November 1981, was a worthwhile project, and that we weren’t prepared to let it go. We wanted it done, but done in a way which was constitutional, which took which we challenge and won in the in the court, and then we’re able to forge the deal in November. So yes, there’s no question that in those days, and thankfully, I’m alive to talk about, unfortunately, only one, that there were people who were involved in nation building, and who were not just looking at Alberta, or Newfoundland, or PEI, then, we’re looking at the nation, Canada. That’s very untrue. Today, we have a very splintered country. And the leadership that’s now provided at the provincial level is lamentable, in this it is sad and unfortunate that we have produced a crop of so called leaders that no longer stand up for principle, and are easily swayed by another 30 pieces of silver.
Silas Rose 23:34
I don’t think Canada is unique that way. I think it’s a it’s a global phenomenon right now.
Brian Peckford 23:39
It is, but I thought we were supposed to stand out. I was always told, repeated over and over again, that we were so much better than the Americans that it wasn’t even funny. We had this unbelievable healthcare system, which is falling apart as we speak. And we were just wiser people than the Americans and even the Europeans. Of course, this was all mythology. It really didn’t exist. But a lot of us went about creating that kind of mythology. And for a number of moments in time, like when Diefenbaker did his bill of rights and when statue of Westminister was done in 31, and so on, there were moments when the nation did rise above its pettiness and look more national. But in the last 40 years, one would have to say that we have been moving very much in the wrong direction as a relates to that.
Silas Rose 24:45
What are the essential differences between our charter and the American Bill of Rights and what does that say about our national identity?
Brian Peckford 24:56
Very little difference, really. It has a tool the the bill of rights in the United States seems like it has more power within the jurisprudence of the United States and to try to write tasks within the jurisprudence of Canada. And that’s really sad, given that their Bill of Rights is a lot older. And you think it would have been, you know, eroded in its power a lot more than Canada’s? Well, that’s just the opposite. One of the distinguishing features between the two countries is that they had a bill of rights a lot earlier than us. And they have, therefore a culture of individual freedom that we did not have. Okay. And that has stood them in good stead and our 40 year experiment. I mean, look, what’s happening in United States as quite a few courts already ruled against Biden as relates to so called mandates that he thinks he can, he can muscle into existence, and it’s quite likely now, the Supreme Court of the United States is going to rule against Biden’s mandates, these circuit courts, these federal circuit courts are very powerful. And a lot of them have spoken very eloquently against these mandates be applying to read across the United States. So there’s very little difference in the concepts of freedom of speech, freedom of expression, and freedom of assembly and so on. And you know, the individual being important, but in its manifestation on the ground over time, it has meant and seems now, to culminate in the next several months, if we’re not able to change the way the courts are now starting to rule, we’re not able to change that, that our democracy will be diminished if not destroy, whereas the American system still has a chance to survive. And I say that with a great deal of sadness. Because I thought when what we did in the 81, constitution, realizing freedoms, making permanent individual freedoms would not be able to be destroyed they the way they have in the last two years.
Silas Rose 27:14
So if I can summarize what you just said, it sounds like there isn’t much difference between the American Bill of Rights and our Charter, the difference really is just the we’ve only had ours for 40 years. But I also think there’s something in the Canadian identity, I think we have a strong adherence to this notion of social contract. And that’s certainly represented in our health care system, at least the one that Tommy Douglas conceived. Do you think that makes us more prone to giving up our rights for the supposed benefit of the collective?
Brian Peckford 27:54
Yeah, it seems to me that it does. One has to be very careful about making judgments about a society. For example, the Americans give more than we do to charities, you know, so when you start talking about social contracts, the way they’ve devised their system is different than ours. I think that’s the most one can say, putting value judgments on on various aspects of it is very difficult to do. But remember, our healthcare system only began in the 60s, really, and it wasn’t with us in 1867. And so it has lasted all that long. And now its in order disrepair.
Silas Rose 28:35
Let’s talk more about what the Charter includes. And I’m also wondering which rights are most kind of impacted right now?
Brian Peckford 28:44
Well, there are four, there are four areas of the Charter that are most impacted right now, and which I am very vociferous about in my interviews. And in my speeches. And in my blog, section two of the Charter, deals with freedoms, and those are freedom of conscience, freedom of religion, freedoms of expression, freedoms of the press, these are freedoms identified in those words that I just use in section two of the charter. also identified in section two, freedoms of association and freedoms of assembly. They’re all in that one. Section two, and as we know today, are mandates from St. John’s to Victoria from to Niagara would violate our freedom of assembling, our freedom of association. Right, our freedoms of expression, because right now, you are not allowed to say certain things that normally would be ordinary speech, you get censored as a result of it. Section two, which deals with freedoms, Section six, deals with rights of individuals. Now, by the way of individuals, every single individual in Canada has these freedoms. And then section six deals with mobility, mobility, the right of a Canadian to travel anywhere in this land, or leave this land. Section six, says you have the right as an individual Canadian, to pursue a livelihood, anywhere in this nation. Meanwhile, governments are taking jobs away from people violating that right to pursue a livelihood in Section six, then you have this beautiful section seven, which talks about rights of individuals, the right of life, the right of liberty, and the right of security of the person. In other words, you’re autonomous as an individual. And this business of coercion for you to get a medical procedure is completely an anathema, to security of the person the right to security of the person. And then the top it all off, we have section 15, which talks about equality before the law, every Canadian has the right to equality before the law, as we speak. I do not have equality before the law, there are certain places in my little city of Parksville on Vancouver Island, where I’m not allowed to go where other people are allowed to go. And so I’m being discriminated against, and my rights to equality under Section 15 are being violated as we speak. Those are the four sections of the Charter of Rights and Freedoms, which most talks specifically about our freedoms and rights. Now, even before the first section of the Charter it is mentioned, there is something that needs to be said, the Charter begins with the following: Whereas we are under the principles of the supremacy of God and the rule of law. So the charter is introduced by two special principles, the supremacy of God, and the rule of law. And it’s only after they are particularly in the chapter that section one begins, which I want to deal with now. But the other point before I go there, I just want to mention not only are those principles there at the beginning, that sentence finishes with a colon, a very important grammatical notation. Why is it a colon? That is because what we were saying when we created that, everything that follows comes after. So any judge worth his salt, in considering any matter, that comes before him that deals with the Charter must first have to accommodate into his rulings that he finally makes the acknowledgement of the supremacy of God and the acknowledgement of the rule of law, that there’s permanence here, this permanence relates to God, there’s permanence here, as relates to the rule of law. Then I want to quickly go to section 52 of the Constitution Act in which the charter is located and pointed out that section 52 says, The Constitution of Canada is the supreme law of Canada, as it relates to all these individual rights and freedoms. Right, that relates to anything that governments do. It’s a supreme law. In other words, when you hear people talking about Dr Bonnie Henry, or this public health officer, or that public health officer, or this provincial Act, or that Human Rights Code or this Human Rights Code, they’re all subservient to the Charter. They don’t come above the Charter. They come below the Charter, you have to meet the Charter in order to bring these in.
Silas Rose 34:30
Prime Minister Justin Trudeau keeps siting some nonspecific loophole that he and different Premiers are invoking to suspend those rights, do you have any idea what he’s talking about?
Brian Peckford 34:46
Yes, I do, I think his latest one was a complete diversion, which has to do with the notwithstanding act, another part of the Charter, which is not being even used right now. Okay, in the pandemic, so it’s completely irrelevant that notwithstanding clause, which could be used in certain circumstances, but by the way, takes an act of the legislature or an Act of Parliament to do which they haven’t done. So they haven’t activated the not withstanding clause. So that’s a complete red herring. What the provinces and the federal government are talking about in trying to manipulate the Charter or using section one. Section one says, yes, you can override these freedoms, the law, under certain circumstance. And those circumstances are, you can prove it is demonstrably justified, what you’re doing, not just justified, but demonstrably justified, Most of the stuff that we see being done is done by edict of an order in council or an existing law, not a new law. Number three, it has to have reasonable limits about it. Most of these things that they’ve done, have no reasonable limits about, there are new edicts that just come out every month or two. No known acknowledged with reasonable limits, no acknowledgement of a new law. No, by the way, when when we say when government say demonstrably justify, that usually means a cost benefit analysis of some kind, to demonstrate that what you are proposing to do has more benefit than harm. As we know today, most of what the government’s have done has more harm than good. Douglas Allen at Simon Fraser University right in British Columbia here, has demonstrated back in April, that the 80 studies that he looked at around the world, there was more harm from the lockdowns and all of the other things that were brought in. And so those four tests the government have not met. But here’s my argument. When we designed the biases, that section one doesn’t even apply. The section one was meant to apply when there was a dire situation in the country. Remember, this is put in the Constitution, there’s not a federal act. This is not something that’s temporary. This is a permanent kind of stuff. We knew what we were doing when we put section one in. And it was meant to apply when there was an act of war, an insurrection or other circumstance that affected the existence of the nation, not a virus from which 99% of the population recover. And this is one area where I’m going to hopefully be doing a number of affidavits for law firms across the country, or taking action against the governments. And I’m going to say that in an affidavit before the court, that this was not intended for why the way that governments have manipulated today.
Silas Rose 38:00
Has this been tested?
Brian Peckford 38:01
No, it’s only gone to the lower courts is lower court and British Columbia, which has completely ignored the supremacy of God concept in the charters completely ignored the rule of law, and completely ignored any idea as to what the intent of that section one was in the beginning. Besides which none of them either deal with that even if it did apply, they never pass the four tests that were necessary to pass. And so there’s the court in Manitoba, and British Columbia, but it is not the highest court in those provinces. And so where the real action now lies is with a small, small group of people, the courts of appeal of the provinces, and the Supreme Court of Canada. And what I’m going to start to do now, in the next days and weeks is identify the names of these people in British Columbia, Alberta, all the way across the country, the names of these judges who have yet to hear any appeal from the lower courts, on these Charter challenges. And I’m going to loudly proclaim their names and say you have the fate of democracy of Canada, in your hands. And then the judges that are on the Supreme Court in total, let’s say there are six active Courts of Appeal judges in the provinces averaging out so 10 times six will give you 60 Nine on the Supreme Court. So we’ve got 69 people in this country, and all of those that may not go to every single Court of Appeal in the province. So it’s likely to be less than 60 in the provinces that are going to have a say over this, and then the 9 Supreme Court of Canada justices. So we’ve got less than 100 people in the country right now who are gonna decide the fate of our democracy. Now it’s up Canadians, look, democracy is only as good as the active participation of the civil society. A civil society reduces active participation. So goes democracy.
Silas Rose 40:14
Itsd obvious to you an me, but for the listener who may be tuning in from outside of Canada, why should we care? Why should we care about the Charter?
Brian Peckford 40:25
Well, we should care if we believe in democracy, we shouldn’t care. If we don’t believe in democracy, we can just go on and, you know, merrily live our own lives as we think we want to live. But if we’re interested in having individual rights and freedoms, acknowledged in our Constitution, and not being able to be swept aside, in any little emergency that comes along, which was meant for a federal act, not another constitutional act, if we’re really interested in the joy, freedoms and having a parliamentary democracy, then I guess this is why we should care, it is because we believe in democracy. But if we don’t believe in democracy, and that’s fine, then you can just go on your merry way. I think there are still a majority of Canadians who wants the information is presented to them, like I am presenting them, who will agree with me that we must save a piece of our Constitution, which only cam e into existence 40 years ago, and which protects every individual in this country from the devices of a future capricious majority government, which comes along from time to time. And that’s not the way surely we want to live.
Silas Rose 41:37
Your passion is infectious. And I hope it catches some attention. How can people find out more about your work,
Brian Peckford 41:47
You can go to my blog, which is peckford42.wordpress.com. I’m very active on there every single day. And there is a new organization that I’m chairman of, taking back our freedoms, which has just been formed. And it’s got a website now. So just wwwtakingbackourfreedoms.ca. And that organization is going to spread across the country, in every province and trying to persuade people along the lines that just talked about today, in other words, that our Charter rights are being threatened and violated and that we must re establish those principles as being part of a democracy called Canada.
Silas Rose 42:37
Wonderful. Thank you again.
Brian Peckford 42:39
Thank you very much for having me.