cross-posted from Alliance for the Defence of Canadian Sovereignty
With all the abuses of late, of the Harper government (Bills C-23, C-24, C-31 & C-51), it’s no small wonder Canadians are looking to the Charter of Rights and Freedoms as the only way to protect ourselves.
I came to Canada in January 1982, right when the Charter was being drafted. I had no idea really, what it meant; I couldn’t conceive of the idea that Canada up until that year, did not have a Constitution. But being new and caught up in trying to adjust and so on, I paid virtually no attention to what was going on. Little did I realize how important this Charter-thing would become in my own life some thirty-plus years later.
And at the time the Charter was being written, John Richardson was totally immersed in the whys and whats and how the Charter should be applied; this post is a testament to how much it has influenced his life, long before the IGA came to town.
Enjoy!
by John Richardson
"Protection of fundamental rights for minorities even in a democratic system is part and parcel of modern democracy." http://t.co/BuTk2wtCUf
— Citizenship Lawyer (@ExpatriationLaw) July 4, 2015
The above tweet references the following comment at the Isaac Brock Society site from Jefferson B. Tomas. He writes:
@Bubblebustin @Petros @US_Foreign My criticism of the Federal Council applies to every government that accepted an IGA and did not protect its bone fide residents and citizens. Protection of fundamental rights for minorities even in a majority-rule democratic system is part and parcel of modern democracy. These leaders shirked their responsibility, and that goes for all of the countries. And it goes for the entire government. For example, even if it was Widmer-Schlumpf who was in charge of the negotiations, it was up to the entire Council to ensure that what she did would not violate constitutional rights. We can sing “They don’t really care about us” referring to all the other governments as well. We’re too risky to stand up for, so they think, but if many of them had, it would have held.
Freedom and democracy are NOT the same thing
There are many who equate a democratic society with a free society. This is incorrect. “Democracy” is a mechanism to exercise the power of government. If unchecked a democratic form of government (based on voting and possible majority rule) can restrict the most basic and fundamental rights of a minority. A Charter of Rights exists to ensure that, with respect to certain fundamental values, the majority cannot use the political process to undermine certain rights of a minority group. The Harper Government used their majority in the political process to deny rights to one prevalent minority group – those with a U.S. place of birth. Those who doubt this should watch the videos of what took place in House Finance Committee hearings on FATCA.
The FATCA IGA and Bill C – 31 demonstrate the importance of a Charter of Rights
Remembering the Canada Finance Committee hearings on #FATCA – May 2014 https://t.co/sHlIwAJCKr
— Citizenship Lawyer (@ExpatriationLaw) July 4, 2015
The familiar video referenced in the above tweet is an example of the political process in a DEMOCRACY overriding the liberties/freedoms of a minority group. Most of you have seen this video. I suggest you watch it again.
This video demonstrates how the DEMOCRATICALLY elected Government of Canada simultaneously:
1. Stripped one specific group of people (based on he immutable characteristic of place of birth) of it’s constitutionally protected rights in a way that;
2. Then imposed mandatory discrimination on that specific group of Canadians, PURSUANT to DEMOCRATICALLY enacted laws.
3. Allowed the Charter rights of individual Canadians (AKA people) to be overridden by the desires of Canada’s banks (which do NOT have Charter protected rights); and
4. Surrendered the sovereignty of Canada to a foreign government.
(Although beyond the scope and intent of this post, this also raises issues of the “first past the post system” which in many cases leads to “majority governments” with a minority of the vote. But, I will leave that for another day.)
A “message in a bottle” turned up in my basement
I have been interested in the interaction between “freedom/liberty” and “democracy” for many years. I do not and never believed that democracies can be trusted to protect the rights of individuals. As a result, I was very interested in Canada’s 1982 Charter of Rights and watching how it developed. The entrenchment of a Charter of Rights in Canada’s constitution had a major impact on how Canada’s history, culture and society unfolded. I recall that many people did not understand what a Charter of Rights was adding to Canada. Didn’t people always have rights? Yes and no. Yes, to the extent that (in a relative way) Canada has a tradition of attempting to be a “just nation” (I said in a relative way). No, in the sense that those rights could always be taken away by a government. The purpose of the Charter of Rights was to create a “category of rights” that was so important that no government could simply “take those rights away”.
So, back to my basement. I came across an “old and tattered” copy of an article that I wrote in 1986. The purpose of the article was to differentiate among ideas like: freedom, democracy, minority interests, majority rule, etc. The specific context of the article was about a Toronto lawyer by the name of Harry Kopyto. It was a strange feeling to reread an article that I had written 30 years ago. The article explains why a Charter of Rights is so important to for the protection of the most “fundamental interests” of individuals. The article explains the justification for the FATCA Canada lawsuit.
The 1986 article “What Rights?”
Although primarily about Harry Kopyto and “freedom of speech” the article begins with a discussion about freedom and democracy.
The following excerpts from the article explain what is lost when a democratic government engages in actions that stifle freedom, liberties and equal rights for members in its community:
The Charter was thought to be necessary to prevent future governments from using a majority in the political process to tyrannize the minority and thereby deny freedom to that minority.
The above video demonstrates that the Harper government simply had no concern for Canadians who for one reason or another, were considered by a foreign government to be “U.S. Persons.” Clearly, this situation is exactly what the Charter of Rights and Freedoms was created for; to protect a minority group of citizens who, even with support from other political parties and the efforts of grassroots communities, could not defend themselves against a government determined to protect corporate interests.
Some democracies value “liberty” and some do not. Those that do recognize that though laws must be made by the majority, some individual interests are so important that, with respect to these interests, the majority should not impose it’s will on the minority.
These “individual interests” actually extend far beyond a particular group of Canadians. The IGA allows the U.S. government to dictate how our own Canadian citizens are to be treated by our own Canadian banks and government. If that is not a breach of sovereignty, what is? To brush this whole exercise off as merely the Americans applying American laws on Americans misses a very fundamental reality. While we often equate liberty with loftier ideals, mundane actions such as opening bank accounts, the protection of personal financial information and so on, the fact is that Canadians affected by the IGA will not have the same liberties as other Canadian citizens. Their choice of banks may be limited. It is clear that their choice of retirement vehicles are severely curtailed by U.S. law. Their families, many of whom have no connection to the U.S. whatsoever, will experience the same limitations. Once the U.S. has firmly entrenched itself in the financial affairs of these Canadians, the rest of the country will also be affected as Canadian capital is sucked away by our “most important trading partner” to the south.
Majorities don’t need a Charter of Rights – Minorities DO need a Charter of Rights
If you value your rights, thank a member of a minority group!
Throughout history, there have always been (almost always minorities) those who have understood and fought for citizens to have Charters of Rights, Bills of Rights, etc. They understood that when governments impose their will on particular groups of citizens, such actions invariably lead to situations where more freedoms, more rights and more liberties are automatically at risk. This is why, societies that value freedom, must always have “fundamental interests” that are protected from majority rule.
In addition to the violations the IGA creates against the rights of a minority group, the actions of the Harper Government are indicative of a disrespect of Canadian law.
Trish Moon and I discussed some of these ideas in the following discussion:
Back to the Charter: How democracy can stifle freedom in general and free speech in particular – The case of Toronto lawyer Harry Kopyto
The fact that freedom of expression furthers both freedom and democracy underscores its importance as a Charter right.
Freedom of speech, the Charter of Rights and a Toronto lawyer by the name of Harry Kopyto.
Why Harry Kopyto won’t quit http://t.co/RPMMiGxVZ7 via @torontostar – a live example of the conflict between democracy and basic rights
— Citizenship Lawyer (@ExpatriationLaw) July 4, 2015
I invite you to read the article referenced in the above tweet before reading my 1986 (article) thoughts on this issue.
Message in a bottle (or from my basement)
What is most interesting is that our FATCA lawsuit is an attempt to use the Charter of Rights to defend BOTH a minority group and Canada itself from a democratic government.
Message in a bottle 1986- Why a Charter of Rights in necessary to protect freedom in a democrary https://t.co/n0BjZoIG3H @ADCSovereignty
— Citizenship Lawyer (@ExpatriationLaw) July 4, 2015
Click on the link in the above tweet. Be prepared. It really does look like it came from 1986!
Tricia: Thank you for posting this very important piece by John Richardson. I am shocked by how little I have truly understood about some basic terms we use here on a daily basis: freedom, democracy, constitution, Charter, rights. I am so grateful for the education that this blog makes available to all of us. Thank you, John, for sharing the depth of your knowledge and experience.
Thank you for bringing this to our attention; I went over the ADCS website to see it there. It’s excellent! John Richardson has such a brilliant way of explaining things!
Here he explains the concept of why our gov’t fails us in a free society when it does not ensure rights and fair treatment for our minorities instead of forcing their majority rule to override those rights. I love the paragraph after the quote on “Some democracies value ‘liberty’ and some do not” because it explains succinctly WHY we are fighting against the IGA with the US.
Bill C-51, a greater threat to freedom of speech than seditious libel (which btw is still enforced in Canada):
C-51:
“A chill on freedom of expression
The ban on promoting terrorism also has freedom of expression advocates worried. A statement from Amnesty International on March 9 noted that a provision within C-51 could cast a chill on freedom of speech.
“It is not clear why a new offence is necessary when directly inciting, threatening, counseling, or conspiring to commit terrorist activities are already offences,” the statement reads. Amnesty adds that internationally-guaranteed human rights such as liberty, privacy and freedom of expression are not protected from the expanded CSIS powers afforded by the bill.”
https://ca.news.yahoo.com/blogs/canada-politics/bill-c-51-for-dummies-233750439.html
Seditious Libel:
“Sedition and seditious libel were[1] criminal offences under English common law, and are still criminal offences in Canada,[2]where common law tradition yet persists. Sedition is overt conduct, such as speech and organization, that is deemed by the legal authority to tend toward insurrection against the established order: if the statement is in writing or some other permanent form it is seditious libel. Libel denotes a printed form of communication such as writing or drawing.[3]”…
…”The American scholar, Leonard W. Levy, argues that seditious libel “has always been an accordion-like concept, expandable or contractible at the whim of judges.”[5]”
C-51: Judge? What judge?
“The current Criminal Code standard requires the police officer to show a judge that there are reasonable grounds to believe that a terrorist activity will be carried out and that the arrest is necessary to prevent it. The proposed amendments grant far too much latitude and discretion to law enforcement and are contrary to Charter values and the rule of law.”
http://www.huffingtonpost.ca/canadian-journalists-for-free-expression/bill-c51-charter-rights_b_7086948.html
Thanks Tricia and John
The bit about the IGA enabling a foreign power to dictate how Canadians are treated by Canadian banks and government is powerful. I would just add that Permanent Residents should always be included and not simply assumed. After all, they are a minority too, and a rather powerless one even though many have been paying taxes and contributing to society for decades. My greatest fear is that the courts may strike down the IGA legislation for Canadian citizens but not Permanent Residents. The PRs have big Yankee tattoos on their behinds, and FATCA will will expose them even IF we immediately swore allegiance to the Queen, God save her (and us).
@ Lake Superior Guy
You are absolutely right and I am remiss in not stating clearly that simple US citizenship does nit adequately address those who have permanent resident status in another country. Since FATCA does apply to US resident citizens who would have no claim with regard to the idea taxes don’t apply to them, US citizens w/ another tax residence is more along the lines of a “US Person.”
It may interest you to know that the Hon. Sinclair Stevens spoke directly to the fact that the CDN Charter was intended to apply to all residents of Canada and if memory serves, he indicated especially should apply to landed immigrants. Computer is shut down for the night so don’t have a link but you can hear it on the FATCA Forum YouTube page. His statement is just a bit more than 8 minutes. It is quite elegant and refined; he is quite the gentleman.
And thanks for your kind comments!
@Bubblebustin
Sedition and seditious libel. The favorite way of the British to jail Gandhi, Nehru, Patel, et al before Independence and Partition. I had never heard of such terms prior to reading about them.
I am with Muzzled.I am shocked at what I simply don’t know. I do not understand what common law is. I remember Peter talking about it a lot on some of the earlier internet shows and in posts. But I thought it meant such offences were not included in the Criminal Code ? And isn’t it mentioned with regard to Kopyto and this last-remaining charge of “scandalizing” the court? Will have to re-read.
I suppose like many Canadians who are not in tune with that guy Harper, it is somewhat a matter of concern that our ability to express disdain for the IGA and actively work toward its demise could be viewed as a threat to Canada’s economic viability. Does that amount to sedition and seditious libel?
Gwenny tweeted today from an article that said “Harper hates Canada.” Something about its socialistic outlook and how his intent (as we all can see) is to make it in the image of America. When I think of what things were like when I first came here, I certainly heard a lot about how and why Canada was NOT like the US and so on. Things have sure changed…
@ Tricia
My pleasure. Your tireless efforts have not gone unnoticed
by those of us who have hung out here for awhile! You are a gem!
With apologies to EmBee’s talents… Message in a Bottle
Sendin’ out an SOS,
We all must fund ADCS
It just upsets me over and over again. One feels so impotent against this horrendous injustice. But then I think of all the injustices through the centuries and it just seems to be part of human nature to exploit and rob and kill.
I`d like to see some positive results now. It`s time. No- it is long overdue.
@Trish
What does Harper need to charge someone with seditious libel for – he’s got C-51!
It seems to me that the application of common law allows the judge to use a lot of discretion, but must support his decision with past judgements that are relevant to the case. I guess in a way, if a judge is predisposed to one way of thinking about something, he could pick and choose cases that would support his POV.
@Bubblebustin
It is obvious to us that decisions have been made which contradict the Charter/Constitution. So somehow somewhere there have been “rationalisations” to support these decisions. That is what the legal challenges are about. ( And that is where it goes over my head….)
@Lake Superior Guy, I agree that permanent residents (p.r.) in Canada should not be singled out to have their bank data divulged to the CRA, etc.; the IGA should be struck down for everyone who lives in Canada.
At the same time, as long as a p.r.’s citizenship is strictly American, I don’t see how the p.r. can avoid the IRS and FATCA crackdown long-term until either the US revokes CBT or at the very least, SCOTUS overturns FATCA and the protections Rand Paul is fighting for are enacted in Congress. I don’t see how Canada (or any country) can protect every p.r. from US laws that explicitly affects its expats and residents of other countries when the p.r. only has U.S. citizenship. Maybe there is some way Canada can do it, but I can’t think of one.
Looking back, I am thankful that obtaining my Canadian (naturalized) citizenship roughly 10 years ago was a straight-forward, simple process. All my DH and I had to do was get our documents sent off, pay the $400 (if memory serves correctly) and wait a little over a year to write the EASY test and have a brief interview. Our Canadian-born kids were thrilled for us, and went to our ceremony, and by that time, we felt more Canadian than American anyway. Since then, my devotion to Canada over the US has only grown.
Here’s what I would LOVE for Canada to do, besides striking down the IGA. I would like Canada to create a path for single citizenship with Canada, especially in the light of the bills that put dual citizens at risk. It would probably entail an oath to Canada/the queen, a little paperwork, and a small fee (say $100). The result would be an official “single Canadian citizenship” document or ID card. This would give us duals a way to pure Canadian citizenship apart from the horrible US process of denouncing citizenship that had discouraged Boris Johnson whereby you first have to try to establish that you’re a US citizen (and obtain an SSN or whatever the other number is), then file years-worth of forms and possible taxes, with possible outrageous penalties, plus pay $3,000 Cdn. per person. The reality is that the US law DOES allow for other ways to denounce citizenship. So why can’t Canada establish one? This would make it easy for people who thought they’d renounced when they took Canadian citizenship to make it official. It would also make it easy for adult-age kids born in Canada of U.S. parentage to show they only want to retain Canadian citizenship.
My comment needs an insertion of the word “time” in the third paragraph, next-to-last sentence: . . . and by that time, we felt . . .
Last paragraph third sentence, remove the word “of”, It would probably entail an oath . . .
From this article, I find some correlation in Greece’s “NO” vote to all of the IGAs signed by countries of the world, implementing US FATCA law into their own countries. Greece actually stood up for its own people rather than the banks to whom they were increasingly indebted. The Greeks are now going their own way – whatever that might mean for them. Their country’s sovereignty seems to have meaning for the Greeks. http://www.paulcraigroberts.org/2015/07/01/greece-can-save-west-paul-craig-roberts/.
Also correlates with:
Remind you of anyone?
This is Greece’s IGA status (deadline extended for countries who had not signed a FATCA IGA):
@ Jan
I know I can’t expect Canadian protection for PRs ( from US law) if his or her sole citizenship is American, but dammit, every nickel I’ve earned since 1978 has been earned, deposited, invested or spent in Canada. As a legal resident, I expect banking privacy at least. What business is it of the bloody IRS to know about my income in Canada? Or FINCEN to know about bank balances of young children? And the US can keep its nose out of our RRSPs (Canadian mutual funds or not), and our TFSAs too if we choose to have them. If FATCA and FBAR fines prevail, that loud clinking sound will forever be our Loonies being Hoovered up by the Americans for no other reason than that they can. (I know I’m preaching to the choir here but I do feel better now. End of rant).
Prof Allison Christains says the Charter offers the same protections for PRs. In this regard you are being equally discriminated against by the Canadian government. Congratulations.
@LakeSuperior Guy
So now there are two who say the Charter offers protection for PRs. The Hon. Sinclair Stevens and Prof. Allison Christians. Whatcha wanna bet Rocco Galati would also say so?
@ Tricia Moon
I’d bet on Rocco Galati to say so too. Here’s how forthright he can be (replace colons):
https //www.youtube.com/watch?v=bR4a6Hl_72M
Full video here:
https //www.youtube.com/watch?v=ZhlCM7NcRxw&list=PLjAjReZfD-8n1Aekxg3tJmvwFDLivRpMU
The Charter sets out the rights of all persons, except where it specifically limits the coverage (eg., s. 3, “Every citizen of Canada has the right to vote …”). Most Charter rights apply to “everyone,” “any person,” “every individual,” etc.
RE: “Why a Charter of Rights is necessary to protect freedom from democracy.”
Thanks to Tricia and John for this. It certainly connects our FATCA struggle to the bigger picture. Today I took another look at my citizenship certificate from 2008. It states the following:
“On this, the occasion of becoming a Canadian citizen, I offer my congratulations and those of the Prime Minister and Government of Canada.
You are now entitled to all the rights and privileges of Canadian citizenship and are subject to all the obligations and responsibilities of your citizenship.
As a Canadian, you must uphold the principles of democracy, freedom and compassion which are the foundation of a strong and united Canada.
Welcome to the Canadian family.”
And there it is as clear as can be. Our responsibilities include upholding principles of freedom and compassion in addition to democracy. I would think this includes the Prime Minister’s and his Government’s responsibilities as well.
@Calgary
I dont profess to understand the greek situation thoroughly, however I wouldn’t call the EU “corrupt” because they want some sort of plan to get the huge amount of money they loaned back.
Who knows what will happen? Greece may have to hit bottom and come back, — whatever perhaps on their own terms, no longer under the spiral downwards — never to get off the EU IMF unsustainable, un-repayable debt train.
https://www.youtube.com/watch?v=aP1bvY7IqZY
***********
Another view from Business Insider: http://www.businessinsider.com/greece-referendum-result-and-the-meaning-of-debt-2015-7#ixzz3f7dwoM8V
Whatever, Greece listened to the voices of its own people in an almost no-win situation. I admire them for that!
Will other countries in similar circumstances follow?
@Calgary411…
Our cry out should be in solidarity with the Greek people.
To the USA we say……Oxi!!!!!
My wife and I swore out our Canadian citizenship a few weeks after the 9/11 attacks in a public ceremony at a local grade school here in the BC Interior. After being in Canada for the previous decade, this was a very proud and happy day for both of us.
The event was attended by several local politicians each of whom gave congratulatory public remarks to the new Canadians. While our local conservative MP was unable to attend, he sent his local constituent office staff person to stand in lieu. Her remarks, which were directed at the new Canadians and the grade school students, offered an entertaining and rather bizarre view into the Conservative Party mindset. The students and new Canadians were cautioned to look out for “terrorists.” If the grade school students saw something suspicious, they were advised to report them to their parents, teachers, or police. A bit of a non-sequitur but one that I still find entertaining– welcome to Canada from the Conservative Party of Canada!!!
That said, I am still very proud to be a Canadian. I look forward to casting my vote in our next election and helping democratically kicking the current government to the curb!
Democracy?
Gang rape is a democracy. Five persons say YES, one says NO and the majority rules. One vote is useless and so is campaigning. You can’t get anywhere trying to reason with crazy people.
In maryland, slavery was abolished using ballots. meanwhile, in Virginia, slavery was being abolished using bullets.
Whatever works.