Good Day,

I am starting this series to put my research/findings into laymen’s terms for everyone to use as they see fit. It can be overwhelming to process all of the information on various topics, so I will try to summarize important helpful facts to help you fight for our freedoms!

The Crime of the Century:

Section 1 & 33 of the Canadian Charter of Rights & Freedoms

A lot of people are stating the Government has invoked Section 1 of the Canadian Charter of Rights and Freedoms, and that is how they are legally allowed to do everything they have been doing for the past year.

“Section 1 – Reasonable limits

Provision

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.

First of all, “Section 1 is engaged only after a finding has been made that a right or freedom has been limited. The onus of proof under section 1 is on the person seeking to justify the limit, which is generally the government (Oakes, supra). The standard of proof is the civil standard or balance of probabilities (Oakes, supra)”.

Once YOU have established that on the surface a charter right has been infringed upon, the onus then shifts to the government to justify the infringement under section 1 of the charter.

However, in order for the government to justify the infringement of other charter rights, under section 1 of the Canadian Charter of Rights and Freedoms they have to pass a 2 part test.

“The Oakes test

The Court in R v Oakes created a two-step balancing test to determine whether a government can justify a law which limits a Charter right.

1.    The government must establish that the law under review has a goal that is both “pressing and substantial.” The law must be both important and necessary. Governments are usually successful in this first step.

2.  The court then conducts a proportionality analysis using three sub-tests.

a. The government must first establish that the provision of the law which limits a Charter right is rationally connected to the law’s purpose. If it is arbitrary or serves no logical purpose, then it will not meet this standard.

b. Secondly, a provision must minimally impair the violated Charter right. A provision that limits a Charter right will be constitutional only if it impairs the Charter right as little as possible or is “within a range of reasonably supportable alternatives.”[4]

c. Finally, the court examines the law’s proportionate effects. Even if the government can satisfy the above steps, the effect of the provision on Charter rights may be too high a price to pay for the advantage the provision would provide in advancing the law’s purpose”.

To pass branch 1 the government would have to establish to the courts satisfaction that the emergency was justified on a scientific and medical basis, which they would most likely not be able to do. However even if they were able to, they would have to satisfy branch 2 of the test as well. In Rocco Galati’s opinion the mandates put in place for the last year are like taking a “sledge hammer to kill a fly, on a glass table”, they grossly over step both rationality and proportionality. Then as per branch 2.c. even if they can meet all of the above measures, the effects of the measures can not out weigh the threat.

What if they just pass legislation to override the charter rights with section 33?

Section 33 allows them to override the rights contained in sections 2, 7-15.

“Section 33 – Notwithstanding clause

Provision

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

(3) A declaration made under section (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

(4) Parliament or the legislature of a province may re-enact a declaration made under section (1).

(5) Section (3) applies in respect of a re-enactment made under section (4)”.

Using Section 33 to override Sections 2, 7-15, would first require full debate in the legislature. More so some of the rights in sections 2-15 existed before our patriation in 1982, in the THE CONSTITUTION ACTS 1867 to 1982. They then have been duplicated in the 1982 Canada Charter of Rights & Freedoms. The pre-existing rights have different contexts and analysis. For example;

Section 2 has been recognized & protected since the 1950’s by the Supreme Court of Canada in the Quebec vs Jehovah’s Witness cases.

“Section 2(a) – Freedom of religion

Provision

2. Everyone has the following fundamental freedoms:

1. freedom of conscience and religion.

Section 2(b) – Freedom of expression

Provision

2. Everyone has the following fundamental freedoms:

2. freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.

Section 2(c) – Freedom of peaceful assembly

Provision

2. Everyone has the following fundamental freedoms:

3. freedom of peaceful assembly;

Section 2(d) – Freedom of association

Provision

2. Everyone has the following fundamental freedoms:

4. freedom of association”.

These constitution rights that were recognized prior to the Charter of Rights 1982 are not subject to Section 1 or 33. This is driven home by Section 26 of the Charter of Rights and Freedoms.

“Section 26 – Existing rights and freedoms in Canada continue

Provision

26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada”.

Which says you can not interpret the charter rights so as to diminish pre-existing constitutional rights that existed before the charter was enacted, it would be counter intuitive. With all of this being said, all of the Emergency Acts/measures put in place over the past 20 months would more than likely not hold up to proper legislative debate or a Supreme Court ruling. Now you can see why our government has been operating behind closed doors, not allowing members of parliament to participate in the “normal” law making processes. Freedom Fighters please buckle down, because this is going to be a long fight to recover our freedoms taken from us, but with Rocco on our side we just might succeed!

Information sourced from @ 23:40 of Your Rights to Decline Mandatory Covid Measures by Rocco Galati

Feds For Freedom

-S