The last living premier who took part in the 1982 Constitution negotiations says Canadian governments have “violated” the country’s supreme law and governing legal framework during the pandemic.
Brian Peckford, who served as Newfoundland’s third premier from 1979 to 1989 and has been a Vancouver Island resident since the 1990s, says “governments from Saint John’s to Victoria” have defied the freedom of assembly outlined in Section 2 of the Charter of Rights and Freedoms—the most recognized part of the Constitution—and also turned their backs on three other sections.
“Then there’s Section 6 of the charter, which talks about mobility and the right of Canadians to travel anywhere in Canada or leave Canada, and that’s being violated all over the place. And then there is within that Section 6 as well the right of a person for gainful employment,” Peckford explained in an interview.
“When people take jobs away from them for discriminatory reasons, obviously you’re violating that section.”
Section 7 of the charter guarantees “life, liberty, and security of the person,” which Peckford believes is compromised by coerced vaccinations. And although Section 15 guarantees “Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination,” Peckford says the unvaccinated are getting shut out.
“There are people in my community who can go places where I can’t go, so that means that I’ve been discriminated against. That means I don’t have equality before the law.”
Proponents of such limitations point to Section 1 of the charter, which says the document’s rights and freedoms are guaranteed “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” But to Peckford, COVID-19 is not exceptional enough to warrant this exception.
“Governments … try to put a round peg in a square hole, and they try to excuse and say they have immunity where they can override all of these wonderful rights and freedoms because of Section 1,” he said.
“I’m the only one that’s still alive, a First Minister who was at that conference and helped craft that Constitution. That Section 1 applied to war, insurrection, and threats to the existence of the state. This present circumstance hardly fits that definition because you have a 99 percent recovery rate from this virus.”
The Department of Justice’s “Charterpedia” webpage on Section 1 lacks details on what circumstances it may be properly applied, except that a clear case for doing so must be made.
“The onus of proof under Section 1 is on the person seeking to justify the limit, which is generally the government. The standard of proof is the civil standard or balance of probabilities,” it states.
“‘Demonstrably justified’ connotes a strong evidentiary foundation. Cogent and persuasive evidence is generally required. Where scientific or social science evidence is available, it will be required.”
Peckford says governments have failed the democratic and procedural requirements to justify a denial of charter rights.
“That’s not being done right now at all. No government in Canada has done a cost-benefit analysis. There’s been independent cost-benefit analyses that show that the cure is worse than the disease.”
‘Peacetime Policy Failure’
Peckford points to an analysis by Simon Fraser University economics professor Douglas Allen published in the International Journal of the Economics of Business in September.
“An examination of over 100 Covid-19 studies reveals that many relied on false assumptions that over-estimated the benefits and underestimated the costs of lockdown,” Allen wrote in the abstract of his paper.
Allen calculated a number of cost-benefit ratios of lockdowns in terms of life-years saved and estimated that lockdowns cost 141 life-years for every year that was saved, leading him to conclude: “It is possible that lockdown will go down as one of the greatest peacetime policy failures in modern history.”
The Justice Centre for Constitutional Freedoms presented 2,000 pages of peer-reviewed evidence, consisting of science and government data, when it challenged the constitutionality of lockdowns in Manitoba. In a decision released in October, Chief Justice Glenn Joyal declined to rule lockdowns unconstitutional.
Instead, Joyal said that “those making decisions quickly and in real time for the benefit of the public good and safety” were owed “a margin of appreciation.” He added that rather than overrule them he should keep “a requisite judicial humility that comes from acknowledging that courts do not have the specialized expertise to casually second-guess the decisions of public health officials.”
Peckford, a former teacher who now opines on his blog Peckford42, says Joyal failed, not the Constitution.
“I am completely angry with that judge because the judge every day is making decisions based on subject matter that he is not an expert in. If he’s only going to make decisions based upon what he’s an expert in, he’d better quit now,” he said.
“[Judges] are supposed to make a decision based on the law with the available information that’s before them … and [Joyal] didn’t do that. And so he erred in law, he erred in practice, he erred in procedure. … So I completely reject that judge’s decision as being completely irrelevant.”
Justice Centre lawyer Allison Pejovic said that she was disappointed in Joyal’s “unwavering deference accorded to public health officials” and that an appeal was being considered.
Seeking Constitutional Clarity
Peckford said three groups launching legal challenges have asked him to sign an affidavit regarding the intent of Section 1 of the charter, and he is ready.
“I’ve gotten back to them and said, yes, I will. As a matter of fact, I’d love to appear in court. I want to appear in court and look the judge in the eye and say, ‘Your Honour, this Section 1 does not apply. I remember well what happened.’”
Constitutional clarity might have come faster if premiers had launched a court case themselves, Peckford said.
“Every premier, every First Minister, has that right to refer any matter to their highest court for a constitutional opinion,” he said.
He added that he had even written to them and asked them to do so, noting that it would speed up the court process, shortening the time frame to about a year or a year and a half from three-and-a-half to four years.
“Everybody in Canada would like to see that happen,” he said. “[But] some of them never even answered me, and those that answered me, it was an electronic response. These premiers live in a world of their own. They don’t even respond to a former premier.”
Peckford spent five years as a cabinet minister before winning the Progressive Conservative leadership and premiership at 36 years of age. He believes governance has failed in recent decades.
“There’s been very little leadership in this country for quite a long time, and now it’s manifested itself in this pandemic—no question about that,” said Peckford, who lives with his wife in Parksville, B.C. A suggestion to run for office again makes him chuckle.
“I’m into my 80th year, so I think I will leave that to somebody else. Hopefully, somebody with some backbone will come along and carry on and do something proper for our country.”