[Spinnaker_]

Former Newfoundland Premier Brian Peckford, one of the men who helped draft our Charter of Rights and Freedoms, is suing the government, claiming that these travel restrictions on Canadian citizens are unconstitutional.

It's a pretty remarkable situation to have someone who wrote our constitution pointing out that the government is in error.

[BeefWellington]

The case was doomed before it was filed because the pretense and premise is a bit absurd. Air Travel is not a right on its own and the federal government is freely able to place limits on who is allowed onto an airplane already, for a lot of arbitrary reasons (Canadians or otherwise). Setting that aside, provinces also have a say in how that works and could easily also force isolation on returning travelers and invoke the notwithstanding clause to enforce it. Either way, by the time it is argued we will hopefully be past COVID restrictions.

It will also be interesting to see the moment of Peckford's lawyers arguing the intent of the constitution and the crown having to argue against it, given Peckford was there at its drafting. However, it would be foolish to believe the man to be automatically correct and infallible on this point in the court's eyes.

However, I do believe the discussion is worth having because if nothing else it will force the Canadian government to rethink its policies that were clearly developed on the fly without due consideration. Right now, with the benefit of hindsight, 14-day enforced quarantines and 3-5-day enforced stays at government designated hotels don't seem to have done much of anything other than throw the hospitality industry a bone. Personally, I would have preferred to see more aggressive testing done at points of entry, with quarantine notices essentially handed out to individuals who need it. Unfortunately successive governments undermined Canadian biotech industries and left the country without the needed capacity.

There need to be better policies and plans in place for the next time this happens and it is important to have the discussion of just how much you're able to dictate to a given individual.

[jcadam]

Next time this happens, public health agencies will be dealing with large swaths of their populations who have zero (actually, negative) trust in them and refuse to comply with any and all measures from day one.

[pessimizer]

They're having to deal with that this time. Some people can't be told, it seems to have little to do with any earned mistrust.

[mcguire]

How would that differ from the last two years?

[kbelder]

It will be much worse.

[FpUser]

>"notwithstanding clause"

This thing makes a mockery of Canadian Bill of Rights

[notafraudster]

Peckford didn't really contribute to drafting the charter in its relevant portions here, though he had peripheral involvement in its contours as a premier of a province during the period it was negotiated and as part of the basis for the Kitchen Accord that led to s.33. His major position on the constitutional negotiations as a whole was mostly a losing position. So it's a little like arguing the anti-federalists had unique constitutional insight in the U.S. Especially given that the constitution was shortly relitigated vis-a-vis Meech Lake and Charlottetown and the heirs to Peckford's position... lost again!

After losing election in Newfoundland (thanks partially to betting the province's economic future on hydroponic cucumbers -- a little surprising that didn't work!) he left the province, and he's had no real involvement in politics since except to endorse the far-right political party in the last election and become a professional anti-vaxxer, as you note.

I think the appeal to authority here is odd. Whether Peckford has a legal point on the travel restrictions or not, it's not because he was ostensibly in the room when the finer points of the constitution were hammered out. The whole point of the Court Challenges Program and other measures was because everyone -- the legal profession, the provinces, the federal government, and interest groups -- believed that the charter required extensive jurisprudence to understand.

I doubt Peckford wins as the case works its way through; the dominant policy view on the Charter and the court is basically dialogue theory, that the court exists primarily to work affirmatively with the government and that even when the court strikes government policies it typically does so in a cooperative way. The court is largely deferent to state interests. This deference is built right into s.1, which is why charter rights are subject to s.1.

But even beyond that, the court has already circumscribed s.6(1) rights e.g. in Divito v. Canada (which held that, for example, citizens are not entitled to prison transfers to serve international sentences domestically; both because the state has an s.1 interest in limiting such rights and because s.6(1) isn't that expansive to begin with). The court has never held, e.g., that s.6(1) grants an affirmative right to fly, or an affirmative right to fly without ID, or even an affirmative right to get a passport without following instructions. The alternative argument is some kind of nonsense s.7 argument which would clearly crumble when applying s.1.

I suspect they would decline to rule in Peckford's favour here, they aren't in the business of whole cloth concocting these kinds of affirmative rights. The most likely vote would be 8-1 or 9-0, with maybe Brown dissenting?

Of course Peckford being legally incorrect doesn't mean he has no point from a moral or policy standpoint. Totally reasonable to say "I think Peckford's point is well taken." Just think the bizarre invocation of him as a legal authority doesn't hold up at all.

[tagoregrtst]

The last man alive who sat with PET and the other premiers to discuss how Trudeau’s unacceptable constitution (to the premiers who had to be on board) was going to pass muster.

[notafraudster]

Note to readers: Peckford is nowhere near the last man alive who sat with PET and the premiers.