The Rule of Law and Concerning my Fundamental Rights and Freedoms
The constitution act of 1982 is very important to you and I as individuals. It is the expression of our fundamental human rights and freedoms. It is the mechanism that exists in Canada that allows us as individuals to exercise our rights despite what they are doing to us and our designations with their enactments and regulations.
Canada will apply the enactments and regulations against us only subject to the Charter
Meads [411] A claim that the relationship between an individual and the state is always one of contract is clearly incorrect. Aspects of that relationship may flow from mutual contract (for example a person or corporation may be hired by the government to perform a task such as road maintenance), but the state has the right to engage in unilateral action, subject to the Charter,
We as individual men and women are seeking to express and execute our common law rights, our natural fundamental rights and freedoms. Since the creation of the constitution act of 1982 the only way to express these rights, execute these rights are through the Charter
The Supreme Court has made it clear in cases in M. (A.) v. Ryan, 1997 (SCC), [1997] 1 S.C.R. 157, that the common law must develop in accordance with Charter values. A Trespass in common law equals an infringement or denial of a fundamental right or freedom (listed in the constitution act or the covenants themselves)
The Charter of rights and freedoms express international law which in turn respects and ensures our natural rights and freedoms. The executive/legislative powers that are in operation must respect the obligations flowing or coming from the Charter.
Constitution act 1982 article 32- This Charter applies to the Parliament and government of Canada in respect of all matter within the authority of Parliament and the charter applies to the legislator and government of each province
We hear that law is for the public good and that individuals must sacrifice their rights and freedoms for the greater good of society. Before the creation of the constitution act or 1982 men and women did not have much ability to exercise their rights and freedoms. If an enactment removed an individual of a right or freedom there was simply nothing much they could do about it.
R. v. Hynes, 1999 18979 (NL CA)
83) Prior to the Charter's advent, the individual really had no special means of protecting against incursions upon his or her basic fundamental rights by executive or legislative arm of the state, there were no means at the disposal of individuals to muster court challenges aimed at invalidating legislative, executive or administrative acts
(84) Respect for the rule of law, upon which, as W. Ivor Jennings in his text entitled The Law and the Constitution (University of London Press, 4th ed.) points out at p. 42, hinges the existence of public order, mandated compliance with directives and ordinances even if they infringed upon individual fundamental rights and freedoms
A primary purpose of the Charter was to change this relationship of the individual with the state and its laws by endowing individuals with an effective means of challenging acts of the state in courts on the ground of violation of their constitutionally protected rights and freedoms.
Constitution is the ground law the fundamental law of Canada. It is a very important document of law concerning our fundamental rights and freedoms. The constitution restricts and controls how the government must treat you. If the government fails to honor your fundamental rights and freedoms the constitution protects you. It gives you the power to stand up and say no I am not giving up my natural rights no I am not surrendering my fundamental rights and freedoms. The enactments that the legislative powers are creating our violating these rights and freedoms and the judiciary has declared that they cannot take such actions.
To force you to play a role of an incorporated person is a violation of your fundamental rights and freedoms. There is no justification for these actions. The simple fact that they force you into recognition of a class of person is a violation of article 16 of the ICCPR and article 7 of the Constitution act.
Article 16
Everyone has the right to recognition everywhere as a person before the law.
Article 16 of the ICCPR guarantees to all human beings the basic human right to be recognized as a person before the Pursuant to this provision, the individual is endowed with the ‘capacity to be a person before the law’, i.e. to be recognized as a potential bearer of legal rights and obligations. Legal personality is a crucial aspect of freedom, as [i]t distinguishes one man from others and permits him to assert his essential dignity erga omnes. It concentrates the attention of the legal order upon each human being. It gives to the essential dignity of the human being reality in law. Without it, man would not be truly free, for he would be subject to injustice and injury without legal remedy. The recognition of legal personality also represents a necessary pre-condition for the enjoyment and actual exercise of all other individual rights
Constitution Act of Canada 1982 Article 7
Everyone has the right to life, liberty and security of the person
Zingre v.The Queen et al., [1981] 2 SCR 392 (Supreme Court of Canada).
agencies and administrative tribunals would have to be able to justify their actions by pointing to specific legislative authority in the same way that any citizen would have to be prepared to show that his or her acts were lawful. It is a recognized principle of international customary law that a state may not invoke the provisions of its internal law as justification for its failure to perform its international obligations
To place you into servitude to the duties of an enactment by claiming that you are a class of person/officer of this corporation and thereby owe a duty is against your natural rights. This class of person who is incorporated into the corporation of Canada has lost its ability to execute fundamental rights and freedoms.
The recognition of officer/driver/hunter are juridical persons, classes of persons and this person is created by law the (enactments) and can execute or exercise only certain rights and freedoms.
A juridical personality is an artificial person. (17c) An entity, such as a corporation, created by law and given certain legal rights and duties of a human being; a being, real or imaginary, who for the purpose of legal reasoning is treated more or less as a human being
You and I are born men and woman (human beings) and we have inalienable rights and freedoms that are not to be limited or abridged. By forcing us into a class of person the state party is involved in limiting our rights.
Court Judgment Supreme Court of Canada SCC Thomson newspapers ltd. v. Canada
When the executive/legislative powers force us into recognition and demand that we owe the obligation to the enactments this is arbitrary interference with our natural rights. This interaction of the government body is not justifiable.
Court Judgement Supreme Court- Christie v. British Columbia, 2005 BCCA 631
The rule of law, a fundamental principle of our Constitution, must mean at least two things. First, that the law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power.
The rule of law says that as individual men and women our natural rights and freedoms are supreme over any government enactment or action. This rule of law comes out very clearly when we look at the law in operation.
International law places the obligations on the executive power to respect and ensure our rights and freedoms.
International Covenant on Civil and Political Rights
Article 2.2 Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant
Article 5
1. Nothing in the present Covenant may be interpreted as implying for any State, group or
person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.
These rights and freedoms are never to be limited or abridged. The power to execute and exercise these fundamental rights and freedoms remain a part of us everyday.
International Covenant on Civil and Political Rights
Article 4
In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
Canada enactment titled Emergencies Act Preamble
WHEREAS the safety and security of the individual, the protection of the values of the body politic and the preservation of the sovereignty, security and territorial integrity of the state are fundamental obligations of government;
AND WHEREAS the fulfillment of those obligations in Canada may be seriously threatened by a national emergency and, in order to ensure safety and security during such an emergency, the Governor in Council should be authorized, subject to the supervision of Parliament, to take special temporary measures that may not be appropriate in normal times;
AND WHEREAS the Governor in Council, in taking such special temporary measures, would be subject to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights and must have regard to the International Covenant on Civil and Political Rights, particularly with respect to those fundamental rights that are not to be limited or abridged even in a national emergency;
The rule of law is that you and I have natural rights and freedoms that are not to be limited or abridged never. This rule is the superior rule concerning law, everything else is subject to this rule. The only problem is that you were never told of this rule or this right that is in operation in Canada. You have been made aware of many rules but not this most important one.
You have inalienable rights and they are not to be limited. The government does it anyways because they do it based upon you not knowing the rules. The Constitution is the ground law the fundamental law of Canada.
Canada (Attorney General) v. Sam Lévy et Associés Inc., 2005 FC 171
First, and most importantly, the Constitution is, under s. 52(1) of the Constitution Act, 1982, "the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect
Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission
While individuals as a rule have full legal capacity by the operation of law alone, artificial persons are creatures of the state and enjoy civil rights and powers only upon the approval of statutory authorities.
The individual may stand upon his constitutional rights He owes no duty to the State, since he receives nothing there from, beyond the protection of his life and property. His rights are such as existed by the law of the land long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution. He owes nothing to the public so long as he does not trespass upon their rights.
Gosselin v. Québec (Attorney General), [2002] 4 SCR 429, 2002 SCC 84
It is clear that s. 7 surely protects the right not to be deprived of one’s life, liberty and security of the person when that is done in breach of the principles of fundamental justice. The outcome of this case is dependent upon the meaning to be given to that portion of the section which states “and the right not to be deprived thereof except in accordance with the principles of fundamental justice”
350 Clearly, positive rights are not at odds with the purpose of the Charter. Indeed, the Charter compels the state to act positively to ensure the protection of a significant number of rights, Positive rights are not an exception to the usual application of the Charter, but an inherent part of its structure. The Charter as a whole can be said to have a positive purpose in that at least some of its constituent parts do.
R. v. Peel Regional Police Service, Chief of Police, 2000 (ON SC)
[104] The courts too must conform to the rule of law: The rule of law is the very foundation of the Charter It stands to reason then that the courts are duty bound to apply the Charter
The rule of law, however, does more than demand compliance with the law. To validate this demand, the law must provide individuals with meaningful access to independent courts with the power to enforce the law by granting appropriate and effective remedies to those individuals whose rights have been violated
In defining and understanding the rights and freedoms that are guaranteed to us which we can execute and use the courts have declared the following. This is concerning the principles of justice, the nature of the right itself.
Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157:
22-Canada’s international obligations and relevant principles of international law are also instructive in defining the right:The content of Canada’s international human rights obligations is, in my view, an Important indicia of the meaning of “the full benefit of the Charter ’s protection”. I believe that the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified. [p. 349]
The courts will look to international law to help define the right, to help understand what obligation has been placed upon the state party.
Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157:
[23] More recently, in Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, McLachlin C.J. and LeBel J. confirmed that, “the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified” (para. 70).
If you can show the courts that your fundamental rights and freedoms have been limited or abridged through the enactments contrary to what the covenants allow the courts will produce a remedy for you. The rule of law has been broken and a remedy can be sought.
Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313
(iv) International Law
International law provides a fertile source of insight into the nature and scope of the freedom of association of workers. Since the close of the Second World War, the protection of the fundamental rights and freedoms of groups and individuals has become a matter of international concern. A body of treaties (or conventions) and customary norms now constitutes an international law of human rights under which the nations of the world have undertaken to adhere to the standards and principles necessary for ensuring freedom, dignity and social justice for their citizens.
The Charter conforms to the spirit of this contemporary international human rights movement, and it incorporates many of the policies and prescriptions of the various international documents pertaining to human rights. The various sources of international human rights law‑declarations covenants, conventions, judicial and quasi‑judicial decisions of international tribunals, customary norms‑must, in my opinion, be relevant and persuasive sources for interpretation of the Charter 's provisions.
Prior to accession the Federal Government obtained the agreement of the provinces, all of whom undertook to take measures for implementation of the Covenants in their respective jurisdictions.
Citation: Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281
340 I also accept, of course, that, where possible, statutes should be interpreted in a way which makes their provisions consistent with Canada’s international treaty obligations and principles of international law. It is presumed that the legislature acts in compliance with Canada’s obligations as a signatory of international treaties and as a member of the international community as well as in conformity with the values and principles of customary and conventional international law:
The courts believe or the courts position is all legislation conforms to international law and it is our responsibility to show them that this belief is unfounded. We are dealing with a court that presumes the executive powers are following international law when it comes to the rights and freedoms of an individual.
R vs HAPE
Since it is a well-established principle of statutory interpretation that legislation will be presumed to conform to international law, in interpreting the scope of application of the Charter, a court should seek to ensure compliance with Canada’s binding obligations under international law where the express words are capable of supporting such a construction.
(53) One final general principle bears on the resolution of the legal issues in this appeal. It is a well-established principle of statutory interpretation that legislation will be presumed to conform to international law. The presumption of conformity is based on the rule of judicial policy that, as a matter of law, courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations.
It is up to you to prove to the court that this is not the case. That in fact and reality the executive powers have denied and infringed upon your fundamental rights and freedoms.
Reference re ss. 193 and 195.1(1)(C) of the criminal code (Man.), [1990] 1 SCR 1123, 1990 (SCC)
On page 42 of the judgement- It is important to note that the onus is on the person bringing the challenge to demonstrate not only the restriction of the rights but also that the state has not abided by the principles of fundamental justice.
Constitution Act of Canada, 1982
Article 52 - The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
This constitution act which is the supreme law of Canada is a direct expression of the rights and freedoms found in the international covenants. This constitution was something that Canada was forced to create due to their obligations to the international covenants.
R. v. Wagner, 2015 ONCJ 66
The Rule of Law
The “rule of law” not only finds itself in the preamble to the Charter of Rights, its spirit is manifested throughout the document, from the restrictions on the state’s powers in relation to citizens, complete with enforcement mechanisms such as the exclusion of evidence or the invalidation of statutes to concepts such as the “principles of fundamental justice” and the requirement that any restrictions to Charter rights be, “demonstrably justified in a free and democratic society”. The idea that there are certain fundamental unwritten principles that govern all members of society including legislators and which judges are expected to enforce is not particularly new
The contemporary concept of unwritten constitutional principles can be seen as a modern reincarnation of the ancient doctrines of natural law. Like those conceptions of justice, the identification of these principles seems to presuppose the existence of some kind of natural order. Unlike them, however, it does not fasten on theology as the source of the unwritten principles that transcend the exercise of state power. It is derived from the history, values and culture of the nation, viewed in its constitutional context.[69]
Natural law- A physical law of nature. A philosophical system of legal and moral principles purportedly deriving from a universalized conception of human nature or divine justice rather than from legislative or judicial action;
Natural right. A right that is conceived as part of natural law and that is therefore thought to exist independently of rights created by government or society, such as the right to life, liberty, and property
Inalienable right- A right that cannot be transferred or surrendered, a natural right such as the right to own property.
Absolute right. 1. A right that belongs to every human being, such as the right of personal liberty; a natural right.
The Chief Justice goes on to note that these rules bind the legislative, executive and judicial branches. The debate is not so much about whether such norms exist, but what those norms are in relation to any given case where a litigant calls on such norms to his aid.
The Chief Justice goes on to develop the scope of these binding principles as follows:
This “rich intellectual tradition” of natural law seeks to give the law minimum moral content. It rests on the proposition that there is a distinction between rules and the law. Rules and rule systems can be good, but they can also be evil. Something more than the very existence of rules, it is argued, is required for them to demand respect:
The debate about unwritten constitutional principles can thus be seen as a debate about the nature of the law itself and what about it demands our allegiance.
Modern democratic theory, as espoused by most developed western democracies, combines two inherently contradictory doctrines. The first is what is often identified as the Diceyan doctrine that it is for Parliament and Parliament alone to establish the law, and, by implication, the fundamental norms upon which it rests. The second is the belief, widely accepted in developed modem democracies since World War II, that legal systems must adhere to certain basic norms
Beyond this minimum, there is a variance, although still a solid core of agreement. States, most hold, should not torture their citizens. States should not discriminate on the basis of gender, race or religion. Finally, at the developing fringes of the new natural law, which goes by the name human rights, are other assertions. Not only should states not directly kill their citizens, they should avoid killing them indirectly by famine, medical neglect, and degradation of the environment.[70] (emphasis added)
Thus, as important as these principles may be, and as essential as it may be that in difficult cases the judge must stand against the winds and rains to uphold them, it is equally important that these principles not be used to create an anarchic judicial oligarchy that blithely undermines the principle of democratic government.
It seems to me self-evident that the idea of unwritten constitutional principles effectively plays a lesser role in countries with mature, enshrined constitutions than it does in those without a written constitution that explicitly binds the institutions of the state. Those unwritten principles tend to be largely replicated in the text of the constitution, with s. 7 of Canada’s Charter of Rights striking me as a prime example. Our written constitution reflects many, many influences, including the drafters’ awareness of natural law, civil liberties and the democratic tradition, as well as the depths to which supposedly advanced, civilized and democratic societies might sink, as freshly manifested in the horrors of Nazi Germany and the struggles of the American civil rights movement
I agree with her that the “rule of law” is, quite apart from the terms of any written constitution, part of the constitutional DNA of this country and that its precepts must be abided by and must be applied by judges no matter how strong may be the prevailing winds or how challenging the social or political environment in which an issue arises
The constitution act of 1982 is very important to you and I as individuals. It is the expression of our fundamental human rights and freedoms. It is the mechanism that exists in Canada that allows us as individuals to exercise our rights despite what they are doing to us and our designations with their enactments and regulations.
Canada will apply the enactments and regulations against us only subject to the Charter
Meads [411] A claim that the relationship between an individual and the state is always one of contract is clearly incorrect. Aspects of that relationship may flow from mutual contract (for example a person or corporation may be hired by the government to perform a task such as road maintenance), but the state has the right to engage in unilateral action, subject to the Charter,
We as individual men and women are seeking to express and execute our common law rights, our natural fundamental rights and freedoms. Since the creation of the constitution act of 1982 the only way to express these rights, execute these rights are through the Charter
The Supreme Court has made it clear in cases in M. (A.) v. Ryan, 1997 (SCC), [1997] 1 S.C.R. 157, that the common law must develop in accordance with Charter values. A Trespass in common law equals an infringement or denial of a fundamental right or freedom (listed in the constitution act or the covenants themselves)
The Charter of rights and freedoms express international law which in turn respects and ensures our natural rights and freedoms. The executive/legislative powers that are in operation must respect the obligations flowing or coming from the Charter.
Constitution act 1982 article 32- This Charter applies to the Parliament and government of Canada in respect of all matter within the authority of Parliament and the charter applies to the legislator and government of each province
We hear that law is for the public good and that individuals must sacrifice their rights and freedoms for the greater good of society. Before the creation of the constitution act or 1982 men and women did not have much ability to exercise their rights and freedoms. If an enactment removed an individual of a right or freedom there was simply nothing much they could do about it.
R. v. Hynes, 1999 18979 (NL CA)
83) Prior to the Charter's advent, the individual really had no special means of protecting against incursions upon his or her basic fundamental rights by executive or legislative arm of the state, there were no means at the disposal of individuals to muster court challenges aimed at invalidating legislative, executive or administrative acts
(84) Respect for the rule of law, upon which, as W. Ivor Jennings in his text entitled The Law and the Constitution (University of London Press, 4th ed.) points out at p. 42, hinges the existence of public order, mandated compliance with directives and ordinances even if they infringed upon individual fundamental rights and freedoms
A primary purpose of the Charter was to change this relationship of the individual with the state and its laws by endowing individuals with an effective means of challenging acts of the state in courts on the ground of violation of their constitutionally protected rights and freedoms.
Constitution is the ground law the fundamental law of Canada. It is a very important document of law concerning our fundamental rights and freedoms. The constitution restricts and controls how the government must treat you. If the government fails to honor your fundamental rights and freedoms the constitution protects you. It gives you the power to stand up and say no I am not giving up my natural rights no I am not surrendering my fundamental rights and freedoms. The enactments that the legislative powers are creating our violating these rights and freedoms and the judiciary has declared that they cannot take such actions.
To force you to play a role of an incorporated person is a violation of your fundamental rights and freedoms. There is no justification for these actions. The simple fact that they force you into recognition of a class of person is a violation of article 16 of the ICCPR and article 7 of the Constitution act.
Article 16
Everyone has the right to recognition everywhere as a person before the law.
Article 16 of the ICCPR guarantees to all human beings the basic human right to be recognized as a person before the Pursuant to this provision, the individual is endowed with the ‘capacity to be a person before the law’, i.e. to be recognized as a potential bearer of legal rights and obligations. Legal personality is a crucial aspect of freedom, as [i]t distinguishes one man from others and permits him to assert his essential dignity erga omnes. It concentrates the attention of the legal order upon each human being. It gives to the essential dignity of the human being reality in law. Without it, man would not be truly free, for he would be subject to injustice and injury without legal remedy. The recognition of legal personality also represents a necessary pre-condition for the enjoyment and actual exercise of all other individual rights
Constitution Act of Canada 1982 Article 7
Everyone has the right to life, liberty and security of the person
Zingre v.The Queen et al., [1981] 2 SCR 392 (Supreme Court of Canada).
agencies and administrative tribunals would have to be able to justify their actions by pointing to specific legislative authority in the same way that any citizen would have to be prepared to show that his or her acts were lawful. It is a recognized principle of international customary law that a state may not invoke the provisions of its internal law as justification for its failure to perform its international obligations
To place you into servitude to the duties of an enactment by claiming that you are a class of person/officer of this corporation and thereby owe a duty is against your natural rights. This class of person who is incorporated into the corporation of Canada has lost its ability to execute fundamental rights and freedoms.
The recognition of officer/driver/hunter are juridical persons, classes of persons and this person is created by law the (enactments) and can execute or exercise only certain rights and freedoms.
A juridical personality is an artificial person. (17c) An entity, such as a corporation, created by law and given certain legal rights and duties of a human being; a being, real or imaginary, who for the purpose of legal reasoning is treated more or less as a human being
You and I are born men and woman (human beings) and we have inalienable rights and freedoms that are not to be limited or abridged. By forcing us into a class of person the state party is involved in limiting our rights.
Court Judgment Supreme Court of Canada SCC Thomson newspapers ltd. v. Canada
When the executive/legislative powers force us into recognition and demand that we owe the obligation to the enactments this is arbitrary interference with our natural rights. This interaction of the government body is not justifiable.
Court Judgement Supreme Court- Christie v. British Columbia, 2005 BCCA 631
The rule of law, a fundamental principle of our Constitution, must mean at least two things. First, that the law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power.
The rule of law says that as individual men and women our natural rights and freedoms are supreme over any government enactment or action. This rule of law comes out very clearly when we look at the law in operation.
International law places the obligations on the executive power to respect and ensure our rights and freedoms.
International Covenant on Civil and Political Rights
Article 2.2 Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant
Article 5
1. Nothing in the present Covenant may be interpreted as implying for any State, group or
person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.
These rights and freedoms are never to be limited or abridged. The power to execute and exercise these fundamental rights and freedoms remain a part of us everyday.
International Covenant on Civil and Political Rights
Article 4
In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
Canada enactment titled Emergencies Act Preamble
WHEREAS the safety and security of the individual, the protection of the values of the body politic and the preservation of the sovereignty, security and territorial integrity of the state are fundamental obligations of government;
AND WHEREAS the fulfillment of those obligations in Canada may be seriously threatened by a national emergency and, in order to ensure safety and security during such an emergency, the Governor in Council should be authorized, subject to the supervision of Parliament, to take special temporary measures that may not be appropriate in normal times;
AND WHEREAS the Governor in Council, in taking such special temporary measures, would be subject to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights and must have regard to the International Covenant on Civil and Political Rights, particularly with respect to those fundamental rights that are not to be limited or abridged even in a national emergency;
The rule of law is that you and I have natural rights and freedoms that are not to be limited or abridged never. This rule is the superior rule concerning law, everything else is subject to this rule. The only problem is that you were never told of this rule or this right that is in operation in Canada. You have been made aware of many rules but not this most important one.
You have inalienable rights and they are not to be limited. The government does it anyways because they do it based upon you not knowing the rules. The Constitution is the ground law the fundamental law of Canada.
Canada (Attorney General) v. Sam Lévy et Associés Inc., 2005 FC 171
First, and most importantly, the Constitution is, under s. 52(1) of the Constitution Act, 1982, "the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect
Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission
While individuals as a rule have full legal capacity by the operation of law alone, artificial persons are creatures of the state and enjoy civil rights and powers only upon the approval of statutory authorities.
The individual may stand upon his constitutional rights He owes no duty to the State, since he receives nothing there from, beyond the protection of his life and property. His rights are such as existed by the law of the land long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution. He owes nothing to the public so long as he does not trespass upon their rights.
Gosselin v. Québec (Attorney General), [2002] 4 SCR 429, 2002 SCC 84
It is clear that s. 7 surely protects the right not to be deprived of one’s life, liberty and security of the person when that is done in breach of the principles of fundamental justice. The outcome of this case is dependent upon the meaning to be given to that portion of the section which states “and the right not to be deprived thereof except in accordance with the principles of fundamental justice”
350 Clearly, positive rights are not at odds with the purpose of the Charter. Indeed, the Charter compels the state to act positively to ensure the protection of a significant number of rights, Positive rights are not an exception to the usual application of the Charter, but an inherent part of its structure. The Charter as a whole can be said to have a positive purpose in that at least some of its constituent parts do.
R. v. Peel Regional Police Service, Chief of Police, 2000 (ON SC)
[104] The courts too must conform to the rule of law: The rule of law is the very foundation of the Charter It stands to reason then that the courts are duty bound to apply the Charter
The rule of law, however, does more than demand compliance with the law. To validate this demand, the law must provide individuals with meaningful access to independent courts with the power to enforce the law by granting appropriate and effective remedies to those individuals whose rights have been violated
In defining and understanding the rights and freedoms that are guaranteed to us which we can execute and use the courts have declared the following. This is concerning the principles of justice, the nature of the right itself.
Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157:
22-Canada’s international obligations and relevant principles of international law are also instructive in defining the right:The content of Canada’s international human rights obligations is, in my view, an Important indicia of the meaning of “the full benefit of the Charter ’s protection”. I believe that the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified. [p. 349]
The courts will look to international law to help define the right, to help understand what obligation has been placed upon the state party.
Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157:
[23] More recently, in Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, McLachlin C.J. and LeBel J. confirmed that, “the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified” (para. 70).
If you can show the courts that your fundamental rights and freedoms have been limited or abridged through the enactments contrary to what the covenants allow the courts will produce a remedy for you. The rule of law has been broken and a remedy can be sought.
Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313
(iv) International Law
International law provides a fertile source of insight into the nature and scope of the freedom of association of workers. Since the close of the Second World War, the protection of the fundamental rights and freedoms of groups and individuals has become a matter of international concern. A body of treaties (or conventions) and customary norms now constitutes an international law of human rights under which the nations of the world have undertaken to adhere to the standards and principles necessary for ensuring freedom, dignity and social justice for their citizens.
The Charter conforms to the spirit of this contemporary international human rights movement, and it incorporates many of the policies and prescriptions of the various international documents pertaining to human rights. The various sources of international human rights law‑declarations covenants, conventions, judicial and quasi‑judicial decisions of international tribunals, customary norms‑must, in my opinion, be relevant and persuasive sources for interpretation of the Charter 's provisions.
Prior to accession the Federal Government obtained the agreement of the provinces, all of whom undertook to take measures for implementation of the Covenants in their respective jurisdictions.
Citation: Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281
340 I also accept, of course, that, where possible, statutes should be interpreted in a way which makes their provisions consistent with Canada’s international treaty obligations and principles of international law. It is presumed that the legislature acts in compliance with Canada’s obligations as a signatory of international treaties and as a member of the international community as well as in conformity with the values and principles of customary and conventional international law:
The courts believe or the courts position is all legislation conforms to international law and it is our responsibility to show them that this belief is unfounded. We are dealing with a court that presumes the executive powers are following international law when it comes to the rights and freedoms of an individual.
R vs HAPE
Since it is a well-established principle of statutory interpretation that legislation will be presumed to conform to international law, in interpreting the scope of application of the Charter, a court should seek to ensure compliance with Canada’s binding obligations under international law where the express words are capable of supporting such a construction.
(53) One final general principle bears on the resolution of the legal issues in this appeal. It is a well-established principle of statutory interpretation that legislation will be presumed to conform to international law. The presumption of conformity is based on the rule of judicial policy that, as a matter of law, courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations.
It is up to you to prove to the court that this is not the case. That in fact and reality the executive powers have denied and infringed upon your fundamental rights and freedoms.
Reference re ss. 193 and 195.1(1)(C) of the criminal code (Man.), [1990] 1 SCR 1123, 1990 (SCC)
On page 42 of the judgement- It is important to note that the onus is on the person bringing the challenge to demonstrate not only the restriction of the rights but also that the state has not abided by the principles of fundamental justice.
Constitution Act of Canada, 1982
Article 52 - The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
This constitution act which is the supreme law of Canada is a direct expression of the rights and freedoms found in the international covenants. This constitution was something that Canada was forced to create due to their obligations to the international covenants.
R. v. Wagner, 2015 ONCJ 66
The Rule of Law
The “rule of law” not only finds itself in the preamble to the Charter of Rights, its spirit is manifested throughout the document, from the restrictions on the state’s powers in relation to citizens, complete with enforcement mechanisms such as the exclusion of evidence or the invalidation of statutes to concepts such as the “principles of fundamental justice” and the requirement that any restrictions to Charter rights be, “demonstrably justified in a free and democratic society”. The idea that there are certain fundamental unwritten principles that govern all members of society including legislators and which judges are expected to enforce is not particularly new
The contemporary concept of unwritten constitutional principles can be seen as a modern reincarnation of the ancient doctrines of natural law. Like those conceptions of justice, the identification of these principles seems to presuppose the existence of some kind of natural order. Unlike them, however, it does not fasten on theology as the source of the unwritten principles that transcend the exercise of state power. It is derived from the history, values and culture of the nation, viewed in its constitutional context.[69]
Natural law- A physical law of nature. A philosophical system of legal and moral principles purportedly deriving from a universalized conception of human nature or divine justice rather than from legislative or judicial action;
Natural right. A right that is conceived as part of natural law and that is therefore thought to exist independently of rights created by government or society, such as the right to life, liberty, and property
Inalienable right- A right that cannot be transferred or surrendered, a natural right such as the right to own property.
Absolute right. 1. A right that belongs to every human being, such as the right of personal liberty; a natural right.
The Chief Justice goes on to note that these rules bind the legislative, executive and judicial branches. The debate is not so much about whether such norms exist, but what those norms are in relation to any given case where a litigant calls on such norms to his aid.
The Chief Justice goes on to develop the scope of these binding principles as follows:
This “rich intellectual tradition” of natural law seeks to give the law minimum moral content. It rests on the proposition that there is a distinction between rules and the law. Rules and rule systems can be good, but they can also be evil. Something more than the very existence of rules, it is argued, is required for them to demand respect:
The debate about unwritten constitutional principles can thus be seen as a debate about the nature of the law itself and what about it demands our allegiance.
Modern democratic theory, as espoused by most developed western democracies, combines two inherently contradictory doctrines. The first is what is often identified as the Diceyan doctrine that it is for Parliament and Parliament alone to establish the law, and, by implication, the fundamental norms upon which it rests. The second is the belief, widely accepted in developed modem democracies since World War II, that legal systems must adhere to certain basic norms
Beyond this minimum, there is a variance, although still a solid core of agreement. States, most hold, should not torture their citizens. States should not discriminate on the basis of gender, race or religion. Finally, at the developing fringes of the new natural law, which goes by the name human rights, are other assertions. Not only should states not directly kill their citizens, they should avoid killing them indirectly by famine, medical neglect, and degradation of the environment.[70] (emphasis added)
Thus, as important as these principles may be, and as essential as it may be that in difficult cases the judge must stand against the winds and rains to uphold them, it is equally important that these principles not be used to create an anarchic judicial oligarchy that blithely undermines the principle of democratic government.
It seems to me self-evident that the idea of unwritten constitutional principles effectively plays a lesser role in countries with mature, enshrined constitutions than it does in those without a written constitution that explicitly binds the institutions of the state. Those unwritten principles tend to be largely replicated in the text of the constitution, with s. 7 of Canada’s Charter of Rights striking me as a prime example. Our written constitution reflects many, many influences, including the drafters’ awareness of natural law, civil liberties and the democratic tradition, as well as the depths to which supposedly advanced, civilized and democratic societies might sink, as freshly manifested in the horrors of Nazi Germany and the struggles of the American civil rights movement
I agree with her that the “rule of law” is, quite apart from the terms of any written constitution, part of the constitutional DNA of this country and that its precepts must be abided by and must be applied by judges no matter how strong may be the prevailing winds or how challenging the social or political environment in which an issue arises
Visit the Information Page HERE
When looking into the administration of justice and the enforcement of our fundamental rights and freedoms we need to look into the constitution act to see where the enforcement of our individual rights exists.
The constitution act of 1982 is not clear about what court an individual is to take action under in concerning a denial or infringement of their rights. In simply states that a individual can apply to a court of competent jurisdiction and mentions nothing further.
Constitution act 1982 article 24- Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
The constitution act in article 24 brings up the fact that there are times when we will find ourselves in a situation where our rights and freedoms are being denied and limited. We should not find it surprising or shocking that this would transpire just the fact that there is this provision present informs us that this will happen.
It is article 24 of the constitution that empowers us as individuals to challenge the executive powers concerning a limitation or denial of our natural rights and freedoms
R. v. Hynes, 1999 (NL CA)
(84)A primary purpose of the Charter was to change the relationship of the individual with the state and its laws by endowing individuals with an effective means of challenging acts of the state in courts on the ground of violation of their constitutionally protected rights and freedoms
We know and can understand from the following judgement that what is required of the judiciary is that the enforcement of our individual rights be implemented into the present structure of the court systems.
THE SUPREME COURT OF CANADAS. 24(2) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS
HON. GERARD MITCHELL
JANUARY 2014
Procedure
[8]The charter itself contains no procedural directions. This led McIntyre J. in Mills to declare:
The absence of jurisdictional provisions and directions in the charter confirms the view that the charter was not intended to turn the Canadian legal system upside down. What is required is that it be fitted into the existing scheme of Canadian legal procedures. There is no need for special procedures and rules to give it full and adequate effect.
Depending upon what right or freedom an individual is seeking to enforce this will decide what court will have the competent jurisdiction. We are left to our own intelligence our own ability to try and piece together what is the court of competent jurisdiction in our situation.
We have walked through domestic law and we have seen that the governor general is the Queens representative and this office appoints others to positions of power. We have seen that the attorney general of Canada is the legal advisor to the Queen. When we look into the enactment that controls and produces the duties for the office we find that the attorney general is charged with the superintending power connected with the administration of justice of Canada not within the jurisdiction of the provinces
Department of justice Canada Article 4. The Minister is the official legal adviser of the Governor General and the legal member of the Queen’s Privy Council for Canada and shall
b) have the superintendence of all matters connected with the administration of justice in Canada, not within the jurisdiction of the governments of the provinces
When we look into the enactment that governs the provincial attorney general we find that this office is charged with the duties and responsibilities to superintend all matters connected with the administration of justice in the province that are not within the jurisdiction of the Government of Canada.
Department of justice enactment Manitoba
Duties of minister
2 The minister
(a) is the official legal adviser of the Lieutenant Governor and the legal member of the Executive Council;
(b) shall see that the administration of public affairs is in accordance with law;
(c) shall superintend all matters connected with the administration of justice in the province that are not within the jurisdiction of the Government of Canada;
Both of these offices have the duty and responsibility have been charged with the obligation to superintend on ALL MATTERS concerning the administration of justice. What we do not find in this enactment is a description of what is under the jurisdiction of the provinces and what is under jurisdiction of the government of Canada. Again we are left to figure this out on our own.
To find out what matters are provincial and what matters are federal we need to look into the constitution act of 1867 to see what powers the government of Canada exercises and what powers the provinces exercise as it pertains to our fundamental rights and freedoms. By knowing and understanding this we will be able to approach the proper attorney general in order to superintend on the matter.
In the constitution act of 1867 in articles 91 and 92 this is where we find the powers to make laws being delegated either provincially or federally. There are many subjects and laws being dealt with in these two articles but for our journey we need only concern ourselves with those that impact or deal directly with a subject matter that affects our fundamental rights and freedoms.
Article 91- It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada
Article 2-The Regulation of Trade and Commerce
Article 15- Banking, Incorporation of Banks, and the Issue of Paper Money.
Article 16- Legal Tender
Article 18-Bills of Exchange and Promissory Notes
Article 27- The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.
Here we see the main subject matters that remain under the control and charge of the federal Government.
Therefore anyone who is seeking to enforce a fundamental right or freedom that was infringed or denied under these causes would have to contact and deal with the federal attorney general. These matters concerning, the Regulation of Trade and Commerce and bills of Exchange and Promissory Notes remain under the superintending power of the attorney general of Canada.
Article 2-The Regulation of Trade and Commerce
This is teaching me that if I have a problem with traveling (driving) then the attorney general of Canada is the one who has the responsibility to uphold and superintend upon the administration of justice when summoned to do so.
Remember we learnt about the fact that driving, obtaining a permit and licence is all being done under the disguise of regulating trade and commerce.
Canada Transportation Act
Declaration
5. It is declared that a competitive, economic and efficient national transportation system that meets the highest practicable safety and security standards and contributes to a sustainable environment and makes the best use of all modes of transportation at the lowest total cost is essential to serve the needs of its users, advance the well-being of Canadians and enable competitiveness and economic growth in both urban and rural areas throughout Canada. Those objectives are most likely to be achieved when
“carrier”
« transporteur »
“carrier” means a person who is engaged in the transport of goods or passengers by any means of transport under the legislative authority of Parliament
When it comes to dealing with being forced to obtain a permit to drive and so forth the court of competent jurisdiction in this matter would be the federal court of Canada. We see that it is the federal government that regulates traffic, trade and commerce (driving) and if an individual is to declare that there has been a breach of their fundamental rights and freedoms in this case it is the federal government that is accountable and a claim can be laid under section 48 or 171a.
Constitution act 1867 article 91-
Article 15- Banking, Incorporation of Banks, and the Issue of Paper Money.
Article 16- Legal Tender
Article 18-Bills of Exchange and Promissory Notes
We walked through how the banks have stripped us of many rights ( see banks money and you page) through their service terms and conditions. We saw more specifically where the right to use negotiable instruments has been removed from us through these terms and conditions. We further learnt that negotiable instruments are actually considered money (legal tender) here in Canada.
In this capacity we see that it is indeed the federal court that has jurisdiction over this matter. It is a federal matter and they must deal with the actions of the bank for it is their jurisdiction.
Let us continue to look at matters that affect us and that are of a provincial nature..
When we look into the constitution act 1867 article 92 we find the following matters under the control of the provinces.
Article 92- In each Province the Legislature may exclusively make Laws in relation to Matters coming within the
Classes of Subjects next hereinafter enumerated; that is to say
Article 2- Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes
Article 7- The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals
Article 8- Municipal Institutions in the Province
Article 9- Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes.
Article 13- Property and Civil Rights in the Province
Article 14- The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts
To walk through each and every right would take us too much time, which we do not have. So let us look into article 13 concerning property and civil rights. We have understood that our property is being held in association with the local municipalities. These municipalities are claiming to be administrators of our property. They claim to have the authority to administrate what we can and cannot do on our property. We know that as an individual we have the right to freedom of association and by taking actions which force us into association with this body they are breaching their obligations to our charter rights.
Since this matter is a matter that was delegated to the control of the province it is the provincial attorney general that has the superintending power and the Superior court that must hear the matter. It is to this office the attorney general of Manitoba that the claim for the administration of justice must be sent and started against. This is where the accountability lies.
We have seen that there are times when the matters that we are dealing with will be under the control of the attorney general of Canada and then with other matters the administration of justice is charged into the provincial attorney general.
You have just seen the mechanism that must be used to discern who is accountable to you to uphold your fundamental rights and freedoms depending on which one you are fighting for. If we contact the provincial attorney general for a matter that is under the control of the federal governments attorney general we will not find any success and visa versa.
When we look back into the constitution act of 1867 we find that it is the provinces, the provincial legislators who were given the duty to create the domestic laws as it pertains to healthcare.
Article 7- The Establishment, Maintenance, and Management of Hospitals,
We find that the legislators created these laws when we look into the enactments here in Manitoba under the health services enactment. This enactment deals with the amount of health services that will be provided for an individual. Since the right to establish health care was transferred to the province it is the province that has the obligation to respect our fundamental rights and freedoms as it pertains to medical care. If we find that our health care is being limited through the enactment then it is to the superior courts we must turn in order to invoke its inherent jurisdiction.
It is the attorney general of the province that must be contacted and made aware that we are seeking the administration of justice concerning our health.
Department of justice enactment Manitoba
Duties of minister
2 The minister
(a) is the official legal adviser of the Lieutenant Governor and the legal member of the Executive Council;
(c) shall superintend all matters connected with the administration of justice in the province that are not within the jurisdiction of the Government of Canada;
The last one that we will look into is the situation concerning permits.
We saw that in the federal enactment it is brought forth that anyone who is obtaining a permit for any action is actually paying for a right or privilege to be conferred upon their person by Her Majesty. Examples of these rights that must be paid for can be a municipal building permit, a fishing or hunting licence ect.
When we look at the article of law a little closer we see that the governor in council others the ministers
Financial administration act
Charges for rights and privileges
19.1 The Governor in Council may, on the recommendation of the Treasury Board,
(a) by regulation prescribe the fees or charges to be paid for a right or privilege conferred by or on behalf of Her Majesty in right of Canada, by means of a licence, permit or other authorization, by the persons or classes of persons on whom the right or privilege is conferred; or
(b) authorize the appropriate Minister to prescribe by order those fees or charges, subject to such terms and conditions as may be specified by the Governor in Council.
When we look at the article of law a little closer we see that the governor in council authorizes others, namely the ministers (federal and provincial) to charge these fees and charges for these permits.
It is this authorization that is transferring the obligation down off of the governor general directly and placing the obligation and responsibility upon the minister and the legislators.
When we look into the constitution act 1867 article 92 we find the following
Article 9- Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes.
The provincial legislators can create enactments that bring forth the duty and obligation to pay for a licence or permit, the municipality can also create by laws that bring forth the duty and obligation to pay for and obtain permits.
If someone is involved in a disagreement with a municipality or a provincial government concerning the obligation of lack thereof to obtain a permit the administration of justice concerning this matter lies with the superior court of the province.
I should not have to walk through why being forced to obtain a permit is something that is contrary to our fundamental rights and freedoms. The understanding that we have these natural rights and the subsequent obligation Canada has should be apparent and clear. Since the right exists not to be held in association, or even our right to liberty we know that it then becomes enforceable against the executive powers.
In Board v. Board
Viscount Haldane for the Privy Council in dealing with the question of the nature of jurisdiction of a superior Court said: If the right exists, the presumption is that there is a Court which can enforce it, for if no other mode of enforcing is prescribed, that alone is sufficient to give jurisdiction to the King's Courts of justice.
However since we know that this operation of law to obtain a building permit stems from a municipal bylaw and we have already learned that municipalities are provincial creations the remedy against this would be the Superior Court.
Vincent v. Ottawa (City), 2007 38129 (ON SC)
[25] Section 11(2) of the Courts of Justice Act reads as follows:
The Superior Court of Justice has all the jurisdiction, power and authority historically exercised by courts of common law and equity.
Common law now in Canada must be expressed as a violation of our charter rights our fundamental rights and freedoms.
Supreme Court has made it clear in cases in M. (A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157, that the common law must develop in accordance with Charter values. A Trespass in common law equals an infringement or denial of a fundamental right or freedom.
The superior court has the power to administrate justice in this matter.
[26] The case of 80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd., 1972 CanLII 535 (ON CA), [1972] 2 O.R. 280, 25 D.L.R. (3d) 386 (C.A.) stands for the proposition that the Superior Court is a court of general jurisdiction and has all the powers that are necessary to do justice between the parties. Except where provided specifically to the contrary, the court’s jurisdiction is unlimited and not restrictive in civil matters
The constitution act of 1982 is not clear about what court an individual is to take action under in concerning a denial or infringement of their rights. In simply states that a individual can apply to a court of competent jurisdiction and mentions nothing further.
Constitution act 1982 article 24- Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
The constitution act in article 24 brings up the fact that there are times when we will find ourselves in a situation where our rights and freedoms are being denied and limited. We should not find it surprising or shocking that this would transpire just the fact that there is this provision present informs us that this will happen.
It is article 24 of the constitution that empowers us as individuals to challenge the executive powers concerning a limitation or denial of our natural rights and freedoms
R. v. Hynes, 1999 (NL CA)
(84)A primary purpose of the Charter was to change the relationship of the individual with the state and its laws by endowing individuals with an effective means of challenging acts of the state in courts on the ground of violation of their constitutionally protected rights and freedoms
We know and can understand from the following judgement that what is required of the judiciary is that the enforcement of our individual rights be implemented into the present structure of the court systems.
THE SUPREME COURT OF CANADAS. 24(2) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS
HON. GERARD MITCHELL
JANUARY 2014
Procedure
[8]The charter itself contains no procedural directions. This led McIntyre J. in Mills to declare:
The absence of jurisdictional provisions and directions in the charter confirms the view that the charter was not intended to turn the Canadian legal system upside down. What is required is that it be fitted into the existing scheme of Canadian legal procedures. There is no need for special procedures and rules to give it full and adequate effect.
Depending upon what right or freedom an individual is seeking to enforce this will decide what court will have the competent jurisdiction. We are left to our own intelligence our own ability to try and piece together what is the court of competent jurisdiction in our situation.
We have walked through domestic law and we have seen that the governor general is the Queens representative and this office appoints others to positions of power. We have seen that the attorney general of Canada is the legal advisor to the Queen. When we look into the enactment that controls and produces the duties for the office we find that the attorney general is charged with the superintending power connected with the administration of justice of Canada not within the jurisdiction of the provinces
Department of justice Canada Article 4. The Minister is the official legal adviser of the Governor General and the legal member of the Queen’s Privy Council for Canada and shall
b) have the superintendence of all matters connected with the administration of justice in Canada, not within the jurisdiction of the governments of the provinces
When we look into the enactment that governs the provincial attorney general we find that this office is charged with the duties and responsibilities to superintend all matters connected with the administration of justice in the province that are not within the jurisdiction of the Government of Canada.
Department of justice enactment Manitoba
Duties of minister
2 The minister
(a) is the official legal adviser of the Lieutenant Governor and the legal member of the Executive Council;
(b) shall see that the administration of public affairs is in accordance with law;
(c) shall superintend all matters connected with the administration of justice in the province that are not within the jurisdiction of the Government of Canada;
Both of these offices have the duty and responsibility have been charged with the obligation to superintend on ALL MATTERS concerning the administration of justice. What we do not find in this enactment is a description of what is under the jurisdiction of the provinces and what is under jurisdiction of the government of Canada. Again we are left to figure this out on our own.
To find out what matters are provincial and what matters are federal we need to look into the constitution act of 1867 to see what powers the government of Canada exercises and what powers the provinces exercise as it pertains to our fundamental rights and freedoms. By knowing and understanding this we will be able to approach the proper attorney general in order to superintend on the matter.
In the constitution act of 1867 in articles 91 and 92 this is where we find the powers to make laws being delegated either provincially or federally. There are many subjects and laws being dealt with in these two articles but for our journey we need only concern ourselves with those that impact or deal directly with a subject matter that affects our fundamental rights and freedoms.
Article 91- It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada
Article 2-The Regulation of Trade and Commerce
Article 15- Banking, Incorporation of Banks, and the Issue of Paper Money.
Article 16- Legal Tender
Article 18-Bills of Exchange and Promissory Notes
Article 27- The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.
Here we see the main subject matters that remain under the control and charge of the federal Government.
Therefore anyone who is seeking to enforce a fundamental right or freedom that was infringed or denied under these causes would have to contact and deal with the federal attorney general. These matters concerning, the Regulation of Trade and Commerce and bills of Exchange and Promissory Notes remain under the superintending power of the attorney general of Canada.
Article 2-The Regulation of Trade and Commerce
This is teaching me that if I have a problem with traveling (driving) then the attorney general of Canada is the one who has the responsibility to uphold and superintend upon the administration of justice when summoned to do so.
Remember we learnt about the fact that driving, obtaining a permit and licence is all being done under the disguise of regulating trade and commerce.
Canada Transportation Act
Declaration
5. It is declared that a competitive, economic and efficient national transportation system that meets the highest practicable safety and security standards and contributes to a sustainable environment and makes the best use of all modes of transportation at the lowest total cost is essential to serve the needs of its users, advance the well-being of Canadians and enable competitiveness and economic growth in both urban and rural areas throughout Canada. Those objectives are most likely to be achieved when
“carrier”
« transporteur »
“carrier” means a person who is engaged in the transport of goods or passengers by any means of transport under the legislative authority of Parliament
When it comes to dealing with being forced to obtain a permit to drive and so forth the court of competent jurisdiction in this matter would be the federal court of Canada. We see that it is the federal government that regulates traffic, trade and commerce (driving) and if an individual is to declare that there has been a breach of their fundamental rights and freedoms in this case it is the federal government that is accountable and a claim can be laid under section 48 or 171a.
Constitution act 1867 article 91-
Article 15- Banking, Incorporation of Banks, and the Issue of Paper Money.
Article 16- Legal Tender
Article 18-Bills of Exchange and Promissory Notes
We walked through how the banks have stripped us of many rights ( see banks money and you page) through their service terms and conditions. We saw more specifically where the right to use negotiable instruments has been removed from us through these terms and conditions. We further learnt that negotiable instruments are actually considered money (legal tender) here in Canada.
In this capacity we see that it is indeed the federal court that has jurisdiction over this matter. It is a federal matter and they must deal with the actions of the bank for it is their jurisdiction.
Let us continue to look at matters that affect us and that are of a provincial nature..
When we look into the constitution act 1867 article 92 we find the following matters under the control of the provinces.
Article 92- In each Province the Legislature may exclusively make Laws in relation to Matters coming within the
Classes of Subjects next hereinafter enumerated; that is to say
Article 2- Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes
Article 7- The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals
Article 8- Municipal Institutions in the Province
Article 9- Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes.
Article 13- Property and Civil Rights in the Province
Article 14- The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts
To walk through each and every right would take us too much time, which we do not have. So let us look into article 13 concerning property and civil rights. We have understood that our property is being held in association with the local municipalities. These municipalities are claiming to be administrators of our property. They claim to have the authority to administrate what we can and cannot do on our property. We know that as an individual we have the right to freedom of association and by taking actions which force us into association with this body they are breaching their obligations to our charter rights.
Since this matter is a matter that was delegated to the control of the province it is the provincial attorney general that has the superintending power and the Superior court that must hear the matter. It is to this office the attorney general of Manitoba that the claim for the administration of justice must be sent and started against. This is where the accountability lies.
We have seen that there are times when the matters that we are dealing with will be under the control of the attorney general of Canada and then with other matters the administration of justice is charged into the provincial attorney general.
You have just seen the mechanism that must be used to discern who is accountable to you to uphold your fundamental rights and freedoms depending on which one you are fighting for. If we contact the provincial attorney general for a matter that is under the control of the federal governments attorney general we will not find any success and visa versa.
When we look back into the constitution act of 1867 we find that it is the provinces, the provincial legislators who were given the duty to create the domestic laws as it pertains to healthcare.
Article 7- The Establishment, Maintenance, and Management of Hospitals,
We find that the legislators created these laws when we look into the enactments here in Manitoba under the health services enactment. This enactment deals with the amount of health services that will be provided for an individual. Since the right to establish health care was transferred to the province it is the province that has the obligation to respect our fundamental rights and freedoms as it pertains to medical care. If we find that our health care is being limited through the enactment then it is to the superior courts we must turn in order to invoke its inherent jurisdiction.
It is the attorney general of the province that must be contacted and made aware that we are seeking the administration of justice concerning our health.
Department of justice enactment Manitoba
Duties of minister
2 The minister
(a) is the official legal adviser of the Lieutenant Governor and the legal member of the Executive Council;
(c) shall superintend all matters connected with the administration of justice in the province that are not within the jurisdiction of the Government of Canada;
The last one that we will look into is the situation concerning permits.
We saw that in the federal enactment it is brought forth that anyone who is obtaining a permit for any action is actually paying for a right or privilege to be conferred upon their person by Her Majesty. Examples of these rights that must be paid for can be a municipal building permit, a fishing or hunting licence ect.
When we look at the article of law a little closer we see that the governor in council others the ministers
Financial administration act
Charges for rights and privileges
19.1 The Governor in Council may, on the recommendation of the Treasury Board,
(a) by regulation prescribe the fees or charges to be paid for a right or privilege conferred by or on behalf of Her Majesty in right of Canada, by means of a licence, permit or other authorization, by the persons or classes of persons on whom the right or privilege is conferred; or
(b) authorize the appropriate Minister to prescribe by order those fees or charges, subject to such terms and conditions as may be specified by the Governor in Council.
When we look at the article of law a little closer we see that the governor in council authorizes others, namely the ministers (federal and provincial) to charge these fees and charges for these permits.
It is this authorization that is transferring the obligation down off of the governor general directly and placing the obligation and responsibility upon the minister and the legislators.
When we look into the constitution act 1867 article 92 we find the following
Article 9- Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes.
The provincial legislators can create enactments that bring forth the duty and obligation to pay for a licence or permit, the municipality can also create by laws that bring forth the duty and obligation to pay for and obtain permits.
If someone is involved in a disagreement with a municipality or a provincial government concerning the obligation of lack thereof to obtain a permit the administration of justice concerning this matter lies with the superior court of the province.
I should not have to walk through why being forced to obtain a permit is something that is contrary to our fundamental rights and freedoms. The understanding that we have these natural rights and the subsequent obligation Canada has should be apparent and clear. Since the right exists not to be held in association, or even our right to liberty we know that it then becomes enforceable against the executive powers.
In Board v. Board
Viscount Haldane for the Privy Council in dealing with the question of the nature of jurisdiction of a superior Court said: If the right exists, the presumption is that there is a Court which can enforce it, for if no other mode of enforcing is prescribed, that alone is sufficient to give jurisdiction to the King's Courts of justice.
However since we know that this operation of law to obtain a building permit stems from a municipal bylaw and we have already learned that municipalities are provincial creations the remedy against this would be the Superior Court.
Vincent v. Ottawa (City), 2007 38129 (ON SC)
[25] Section 11(2) of the Courts of Justice Act reads as follows:
The Superior Court of Justice has all the jurisdiction, power and authority historically exercised by courts of common law and equity.
Common law now in Canada must be expressed as a violation of our charter rights our fundamental rights and freedoms.
Supreme Court has made it clear in cases in M. (A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157, that the common law must develop in accordance with Charter values. A Trespass in common law equals an infringement or denial of a fundamental right or freedom.
The superior court has the power to administrate justice in this matter.
[26] The case of 80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd., 1972 CanLII 535 (ON CA), [1972] 2 O.R. 280, 25 D.L.R. (3d) 386 (C.A.) stands for the proposition that the Superior Court is a court of general jurisdiction and has all the powers that are necessary to do justice between the parties. Except where provided specifically to the contrary, the court’s jurisdiction is unlimited and not restrictive in civil matters
|
|
|
The administration of justice
The administration of justice means to uphold fundamental rights and freedoms, charter rights, common law rights, natural rights. When you use the term or designation *administration of Justice* you are speaking and bringing forth a particular operation of law, you are claiming that one of your fundamental rights and freedoms have been limited or denied contrary to the principles of justice.
By using the term administration of justice you are claiming that your full legal capacity has been removed form you contrary to your rights.
GERARD MITCHELL
JANUARY 2014
The Administration of Justice
[30] In Therens, Le Dain J. stated: “The central concern of 24 would appear to be the maintenance of respect and confidence in the administration of justice, as that may be affected by the violation of constitutional rights and freedoms.”[57] According to Grant, the term “administration of justice” in s24 concerns maintaining the rule of law and its processes, and includes upholding charter rights in the justice system as a whole
We as individuals are seeking to have our fundamental rights and freedoms here in Canada respected. We have come to realize that the executive powers are denying them and infringing upon them and we are seeking the administration of justice.
Many of us have contacted and will probably contact the office of the attorney general of Canada concerning our fundamental rights and freedoms. Some of us have sent this office our claim of recognition, others have sent a claim against the crown for the infringement of a fundamental right and freedom. This office has the superintendence over the administration of justice. This office is charged with the duty to uphold and attend to all matters as it pertains to the administration of justice.
Federal Department of justice act
POWERS, DUTIES AND FUNCTIONS OF THE MINISTER
Powers, duties and functions of Minister
4. Article 2 The Minister (Attorney General) is the official legal adviser of the Governor General and the legal member of the Queen’s Privy Council for Canada and shall
(a) see that the administration of public affairs is in accordance with law;
(b) have the superintendence of all matters connected with the administration of justice in Canada, not within the jurisdiction of the governments of the provinces;
The minister, who is also the attorney general is responsible for the superintendence of all matters connected with the administration of justice, these matters must not be under the provincial government’s responsibility.
This verse is declaring that when an individual is seeking the administration of justice that there are times that justice will be obtained through provincial means or provincial courts. Then there are other times when the office of the federal attorney general is the means to obtain the justice. Then at other times I will be the provincial attorney general that must be contacted concerning the administration of Justice.
Ontario Court of Justice act
71. The administration of the courts shall be carried on so as to,
(a) maintain the independence of the judiciary as a separate branch of government;
(b) recognize the respective roles and responsibilities of the Attorney General and the judiciary in the administration of justice;
Role of Attorney General
72. The Attorney General shall superintend all matters connected with the administration of the courts,
We know that Her Majesty has the obligation to respect and ensure our fundamental rights and freedoms as found in international and domestic law. We see that this obligation is imposed upon the office’s of the attorney generals by charging these office’s with the responsibility of the administration of justice.
We are seeing that the statutory creature designated the attorney general is given duties and responsibilities through the enactments and this office is controlled by the enactments. One of the duties that these statutory creatures have is concerning the administration of justice, upholding our charter rights and freedoms. This however is not the only duty that the attorney generals have. Looking back into the enactment we see the following duties and responsibilities coming out upon the office of the federal attorney general, minister of justice.
Federal Department of justice act
Minister and Attorney General
Article 2 (2) The Minister is ex officio Her Majesty’s Attorney General of Canada, holds office during pleasure and has the management and direction of the Department
Article 4. The Minister is the official legal adviser of the Governor General and the legal member of the Queen’s Privy Council for Canada
This office through the enactment is playing multiple roles, while these duties if handled with honor and care compliment one another and allow the individual playing the role to accomplish the administration of justice, this office can also be used to hinder the expression of justice.
This office is under the obligation to ensure and protect fundamental rights through the administration of justice yet this office is also the legal advisor of the Queen and the crown. Further to this the office of the attorney general has regulation and conduct in all litigation against the crown or any department of the crown.
Federal Department of justice act
Article 5. The Attorney General of Canada
(d) shall have the regulation and conduct of all litigation for or against the Crown or any department, in respect of any subject within the authority or jurisdiction of Canada; and
Powers, duties and functions of Minister
Article 2 The Minister is the official legal adviser of the Governor General and the legal member of the Queen’s Privy Council for Canada and shall
( (b) have the superintendence of all matters connected with the administration of justice in Canada, not within the jurisdiction of the governments of the provinces;
The attorney general is to address the situation if your fundamental rights and freedoms have been infringed yet the office is also Her Majesty’s legal counsel and the crowns council. The office has the power to regulate this problem concerning the administration of justice but the office also has the power to try and protect the Queens and crowns interest in this matter.
When you lay a claim against the crown, you put the attorney general into a tough position. That office has a dual responsibility and it falls into automatic conflict of interest. The office cannot defend you and Her Majesty at the same time. Even though the enactment gives the office the power to do so this power creates conflict of interest.
The attorney general has provision through the enactment itself to produce a remedy on behalf of an individual when this remedy is connected to the administration of justice.
Court Justice of Ontario enactment
Superior Court of Justice
Article 72(2) The Attorney General and the Chief Justice of the Superior Court of Justice may enter into a memorandum of understanding governing any matter relating to the administration of that court
The administration of justice means to uphold fundamental rights and freedoms, charter rights, common law rights, natural rights. When you use the term or designation *administration of Justice* you are speaking and bringing forth a particular operation of law, you are claiming that one of your fundamental rights and freedoms have been limited or denied contrary to the principles of justice.
By using the term administration of justice you are claiming that your full legal capacity has been removed form you contrary to your rights.
GERARD MITCHELL
JANUARY 2014
The Administration of Justice
[30] In Therens, Le Dain J. stated: “The central concern of 24 would appear to be the maintenance of respect and confidence in the administration of justice, as that may be affected by the violation of constitutional rights and freedoms.”[57] According to Grant, the term “administration of justice” in s24 concerns maintaining the rule of law and its processes, and includes upholding charter rights in the justice system as a whole
We as individuals are seeking to have our fundamental rights and freedoms here in Canada respected. We have come to realize that the executive powers are denying them and infringing upon them and we are seeking the administration of justice.
Many of us have contacted and will probably contact the office of the attorney general of Canada concerning our fundamental rights and freedoms. Some of us have sent this office our claim of recognition, others have sent a claim against the crown for the infringement of a fundamental right and freedom. This office has the superintendence over the administration of justice. This office is charged with the duty to uphold and attend to all matters as it pertains to the administration of justice.
Federal Department of justice act
POWERS, DUTIES AND FUNCTIONS OF THE MINISTER
Powers, duties and functions of Minister
4. Article 2 The Minister (Attorney General) is the official legal adviser of the Governor General and the legal member of the Queen’s Privy Council for Canada and shall
(a) see that the administration of public affairs is in accordance with law;
(b) have the superintendence of all matters connected with the administration of justice in Canada, not within the jurisdiction of the governments of the provinces;
The minister, who is also the attorney general is responsible for the superintendence of all matters connected with the administration of justice, these matters must not be under the provincial government’s responsibility.
This verse is declaring that when an individual is seeking the administration of justice that there are times that justice will be obtained through provincial means or provincial courts. Then there are other times when the office of the federal attorney general is the means to obtain the justice. Then at other times I will be the provincial attorney general that must be contacted concerning the administration of Justice.
Ontario Court of Justice act
71. The administration of the courts shall be carried on so as to,
(a) maintain the independence of the judiciary as a separate branch of government;
(b) recognize the respective roles and responsibilities of the Attorney General and the judiciary in the administration of justice;
Role of Attorney General
72. The Attorney General shall superintend all matters connected with the administration of the courts,
We know that Her Majesty has the obligation to respect and ensure our fundamental rights and freedoms as found in international and domestic law. We see that this obligation is imposed upon the office’s of the attorney generals by charging these office’s with the responsibility of the administration of justice.
We are seeing that the statutory creature designated the attorney general is given duties and responsibilities through the enactments and this office is controlled by the enactments. One of the duties that these statutory creatures have is concerning the administration of justice, upholding our charter rights and freedoms. This however is not the only duty that the attorney generals have. Looking back into the enactment we see the following duties and responsibilities coming out upon the office of the federal attorney general, minister of justice.
Federal Department of justice act
Minister and Attorney General
Article 2 (2) The Minister is ex officio Her Majesty’s Attorney General of Canada, holds office during pleasure and has the management and direction of the Department
Article 4. The Minister is the official legal adviser of the Governor General and the legal member of the Queen’s Privy Council for Canada
This office through the enactment is playing multiple roles, while these duties if handled with honor and care compliment one another and allow the individual playing the role to accomplish the administration of justice, this office can also be used to hinder the expression of justice.
This office is under the obligation to ensure and protect fundamental rights through the administration of justice yet this office is also the legal advisor of the Queen and the crown. Further to this the office of the attorney general has regulation and conduct in all litigation against the crown or any department of the crown.
Federal Department of justice act
Article 5. The Attorney General of Canada
(d) shall have the regulation and conduct of all litigation for or against the Crown or any department, in respect of any subject within the authority or jurisdiction of Canada; and
Powers, duties and functions of Minister
Article 2 The Minister is the official legal adviser of the Governor General and the legal member of the Queen’s Privy Council for Canada and shall
( (b) have the superintendence of all matters connected with the administration of justice in Canada, not within the jurisdiction of the governments of the provinces;
The attorney general is to address the situation if your fundamental rights and freedoms have been infringed yet the office is also Her Majesty’s legal counsel and the crowns council. The office has the power to regulate this problem concerning the administration of justice but the office also has the power to try and protect the Queens and crowns interest in this matter.
When you lay a claim against the crown, you put the attorney general into a tough position. That office has a dual responsibility and it falls into automatic conflict of interest. The office cannot defend you and Her Majesty at the same time. Even though the enactment gives the office the power to do so this power creates conflict of interest.
The attorney general has provision through the enactment itself to produce a remedy on behalf of an individual when this remedy is connected to the administration of justice.
Court Justice of Ontario enactment
Superior Court of Justice
Article 72(2) The Attorney General and the Chief Justice of the Superior Court of Justice may enter into a memorandum of understanding governing any matter relating to the administration of that court