Message in a bottle (or from my basement): Why a Charter of Rights is necessary to protect freedom from democracy

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

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.

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.

Click on the link in the above tweet. Be prepared. It does really look like it came from 1986.

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