Dean Steacy was wrong: Freedom of Speech is a Fundamental Canadian Value

The right to freedom of expression in Canada was not created by the Charter. Canadians enjoyed a right to free speech and freedom of expression prior to 1982.

Before she became Chief Justice, Justice McLachlin said in Keegstra that “freedom of speech is a fundamental Canadian value”, and 

Freedom of speech and the press had acquired quasi-constitutional status well before the adoption of the Charter in 1982. 

She further said that, 

The enactment of s.2(b) of the Charter represented both a continuity of [this] tradition, and a new flourishing of the importance of freedom of expression in Canadian society. 

Quoting from A. W. MacKay, "Freedom of Expression: Is It All Just Talk?" (1989), 68 Can. Bar Rev. 713, Justice McLachlin went on to affirm that, 

Freedom of expression was not invented by the Charter of Rights and Freedoms... 

Justice McIntyre shared Justice McLachlin’s view. In the Supreme Court of Canada Dolphin Delivery decision of 1986, Justice McIntyre indicated the fundamental importance of freedom of expression for our democratic institutions. 

Freedom of expression is not, however, a creature of the Charter. It is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.

Now that you know all this, doesn't it make you wonder what Dean Steacy (the lead Canadian Human Rights Commission investigator in the Marc Lemire case) meant when he said,

Freedom of speech is an American concept, so I don't give it any value... It's not my job to give value to an American concept.

Actually, Mr. Steacy, freedom of speech is a fundamental Canadian value that the Supreme Court of the land has ruled responsible for the maintenance and protection of Canadian society.

No Separation of Church and State in Canada

The National Post reported on December 19, 2012 that a disgruntled Saskatoon resident is about to launch a human rights complaint against the city of Saskatoon for placing the words “Merry Christmas” on its buses.

The media coverage surrounding this issue has made me realize that many Canadians are confused about whether the Charter guarantees the separation of church and state. It does not. Further, our constitution lacks a clear equivalent to the most famous of such constitutional protections—the American establishment clause.

The establishment clause is a phrase in the 1st Amendment of the U.S. Bill of Rights that says "Congress shall make no law respecting an establishment of religion". Canada has no equivalent constitutional protection.

Although the linked National Post article above focuses on the up-coming human rights complaint, on the Charles Adler show on the afternoon of December 18, 2012, Mr. Solo implied that Canada has constitutional protection regarding the separation of church and state.

If I had to guess, I would say that Mr. Solo, and other Canadians like him, are confused because they have watched US legal dramas on TV and assume that, like the U.S., Canada has a similar separation of church and state. We do not. Consider this plain and simple fact: the Queen remains the Head of State in Canada even though she is the Supreme Governor of the Church of England.

On the other hand, section 2 of the Charter does guarantee "freedom of religion", and the courts have interpreted this to include a right to be free from religion.

But this right to be free from religion is subtly, yet significantly, different from a separation of church and state. Freedom of religion under the Charter means that Canadians are free to practice their religions in a non-harmful fashion (e.g. the Multani case), while freedom from religion means that Canadians cannot be forced to adopt a religious practice (e.g. the Big M Drug Mart case).

Bylaws Made in Secret, Good Government, and Economic Freedom

Last July 16, Calgary city council voted to enact a bylaw to ban the distribution and sale of shark fins in Calgary.

Ald. Brian Pincott brought the bylaw to council supported by a petition containing thousands of signatures. Ald. John Mar admonished Calgary’s Chinese-Canadians saying they may need to give up some of their traditions, such as shark fin soup. Coverage by some media outlets juxtaposed images of Chinese restaurants and mutilated sharks. As a result, few people outside of Calgary’s Chinese community have questioned the good intentions behind council’s decision. But more of us should.

Council justifies the proposed bylaw on two grounds. First, sharks are “apex predators” that accumulate toxins such as mercury in their bodies. Shark fins therefore contain dangerous levels of mercury. Second, some 70 million sharks are allegedly caught each year, stripped of their fins, and thrown back helpless into the ocean to die a painful death. So shark fins are therefore cruel and unethical.

These two justifications may seem innocuous, initially. Although Alberta’s Municipal Government Act is silent regarding sharks, it does give municipalities the authority to pass laws for human safety, health, and welfare.

So is the proposed bylaw about protecting humans from toxins like mercury? If sharks are contaminated with mercury, why would council ban only the fins and not the entire shark? Why is the practice of finning sharks and not fishing sharks the focus of the bylaw? Also, what about tuna? Tuna is an ocean dwelling apex predator that accumulates mercury, and it’s more regularly consumed by Calgarians than shark fins. If human health is truly council’s concern, the bylaw would be about the regulation or banning of mercury in foods, not just shark fins.

The human health justification appears to be a contrivance designed to divert attention from the fact that council has no authority to enact legislation protecting sharks.

Toronto had a similar ban until November 2012 when a judge ruled the bylaw was outside of Toronto’s authority. Even though Calgary is a different city, in a different province, and functioning under different legislation, the legal principles relied upon by the Ontario judge would similarly strike down Calgary’s proposed bylaw. Like Toronto’s, Calgary’s ban is simply not about protecting human health — it’s about the preservation of a marine animal over which council has no jurisdiction.

Of course, Calgary’s city council could not have known in July about the legal status of municipal shark fin bans before the judge struck down Toronto’s bylaw in November — or could they?

On July 16, hidden behind closed doors, council was given legal advice regarding the proposed bylaw. That advice is currently unavailable because council directed that it remain confidential under the Freedom of Information and Protection of Privacy Act. That seems odd.

Upon exiting their private meeting, council resolved to ask the provincial and federal governments to enact shark fin bans. Why? Perhaps the city’s legal department told council that the proposed ban is outside the city’s authority. If that’s the case, council knew their ban was potentially illegal prior to Toronto’s bylaw being stuck down.

What’s disturbing about this scenario is far more than shark finning. If city council was told that banning shark fins may be outside of their authority, and yet continued efforts to enact the ban while keeping that unfavourable legal advice hidden, what else are they capable of? And even if council was not initially aware that the ban may be outside their authority, they became aware after Toronto’s bylaw was struck down.

This should trouble every Calgarian, not just the Chinese community. Don’t be misled — this ban is about far more than shark fins. Calgarians should consider whether they can trust a council that keeps secrets while seeking to enact legislation it knows may exceed its authority.

The real issues are good government and the freedom to earn an honest living. A Calgary restaurant owner assured me that she purchases shark products not from China but only from Spain — a country that regulates its shark industry to prevent overfishing and cruelty. Throughout the EU, the whole shark is harvested. The media’s gory portrayal of floundering mutilated animals is simply inaccurate in her case. She is serving an ethical and sustainable food product to her customers. It would be unjust if council’s overly broad ban stripped this facet of her livelihood away.

This piece was originally published by the Calgary Herald on February 6, 2013 and Troy Media on February 7, 2013.

Economic Freedom helps Consumers

Ontario Progressive Conservative leader Tim Hudak’s plan to privatize retail liquor sales in Ontario—ending the near total monopolies of the LCBO and The Beer Store—is an ambitious step towards prioritizing consumer and retailer interests. And even if his plan relinquishes only part of the Ontario government’s control over liquor, it will result in greater economic freedom.

On this issue, Ontario could learn a lesson from Alberta. In 1993, Alberta privatized the retail portion of liquor distribution within the province. By all accounts, it has been successful. Since then, liquor sales have increased, resulting in higher government revenues while consumers enjoy greater product selection and lower prices. This has been the direct result of a more competitive and freer market—i.e. greater economic freedom. And there is no evidence that crime or alcohol related offences have increased as a result. 

Saskatchewan and Manitoba are both currently experimenting with the same idea. And who can blame them? What province doesn’t want to increase its revenues and cut costs all without causing any of the social ills that modern-day prohibitionists expect?

But, as Gerry Nichols points out in his Toronto Star article on Dec 4, it will be difficult for Hudak to relinquish government control over liquor sales because “well-funded special interest groups have a keen desire to keep the monopoly alive.” 


VESTED INTERESTS: Unions

Nichols’s point is borne out in Saskatchewan. On its website, the Saskatchewan Government Employees’ Union issued a press release decrying the opening of two private liquor stores in the province. SGEU president, Bob Bymoen says, "Alcohol is not just another consumer product. It is a drug that can and does cause serious problems for families and communities. Because of that, Saskatchewan citizens should have a say in how alcohol is sold in this province."

Chanting the same mantra, Manitoba’s government employees’ union opposes liquor sale privatization because it is dangerous. An MGEU press release says, "Alcohol is an intoxicant and it can be extremely harmful if misused or abused. The fact is that regulating alcohol sales is the responsible choice for Manitoba families and communities.”

As expected, these union outcries are shrill, at odds with the interests of the consuming public and small retailers, unsubstantiated by the empirical evidence collected over 20 years in Alberta, and contrary to economic freedom. But each does substantiate Nichols’s claim—the Ontario Public Service Employees’ Union (OPSEU) will likely oppose Hudak’s plan.

VESTED INTERESTS: Labatts, Molson, and Sleeman

But it’s not only the OPSEU that will resist a freer market and greater competition. Hudak will also have to stand up to Labatts, Molson, and Sleeman.

The LCBO is government owned and operated, but The Beer Store is a private organization owned by three major breweries: Labatt Brewing Company Ltd., Molson Coors Brewing Company Ltd., and Sleeman Brewery Ltd. Even though The Beer Store is meant to be a non-profit, the owner breweries are able to restrict competition to the detriment of both the non-owner breweries and the consuming public.

There are two obvious means by which The Beer Store can restrict competition: through fees and product placement.

Non-owner breweries are charged two fees to have their products sold in The Beer Store. The first is a listing fee of $2,650.14, plus $212.02 per retail location where the product will be available. And the second is a handling fee between $3.65 and $4.15 for every case of 24 beers. As ludicrous as it seems, under the current system, non-owner breweries must pay substantial fees to their competitors if they want their product to be available at Ontario’s biggest retail outlet for beer.

The Beer Store can also restrict competition by giving product placement priority to the owner-breweries’ products. And because of the Ontario government’s control over the liquor market, these other producers do not have the option to open their own retail outlets to compete with The Beer Store and its owner breweries.

This government mandated arrangement results in higher prices and a more limited selection for Ontarians while it inhibits the development of a retail industry that would be more responsive to market demands.

TAKE 'EM DOWN!

Hudak will need to take on both the OPSEU and the private owners of The Beer Store if he wants to give Ontarians the benefits of an Alberta-styled liquor retail industry. In the end, consumers, small producers, and small retailers will thank him because it will be a boon for economic freedom.

This piece was published by Troy Media on December 9, 2012

Put Students First by Permitting Competition in Education

Imagine a world where General Motors has to ask Ford’s permission to bring a new car to market. In such a scenario, GM spends its own resources in research and development, gauging consumer demand, and implementing new procedures for efficient manufacturing. GM’s competitor, Ford, does nothing.

Now imagine that Ford has the legal authority to hijack any of GM’s ideas and claim them for itself. Everyone knows there is something unfair about this. If this arrangement does not drive GM out of business, it will negatively impact upon consumer choice. There are few surer ways to stifle innovation and market-responsiveness.

But this is precisely what Alberta’s new Education Act does. The act continues to require that an application for a new charter school must be first presented to the local school board. The school board has two options if it thinks the charter proposal has merit: it can reject it—only to see students exit its own schools—or it can mimic (i.e. hijack) the application by starting an “alternative program”. Either way, the school board gets first dibs. This is a clear conflict of interests.

This problem is not hypothetical—it has happened at least once already. The All Boys Program in Calgary is based upon an application originally made for a charter school. The Calgary Board of Education (CBE) hijacked the proposal and claimed for itself the effort invested in the application. Adding insult to injury, the CBE implemented the proposal minus some key innovations—such as merit-based pay for teachers. This half-hearted implementation has reportedly undermined some of the program’s effectiveness.

University of British Columbia Dean of Education, Lynn Bosetti, says “local school boards have no incentive to support charter schools”, and that school boards—like the CBE—perceive charter schools as “undesirable competition”. Could this be true? Undesirable competition? Shouldn’t Alberta’s public school system prioritize student needs? Fostering market-based fair competition between charter and government schools would be an excellent vehicle to prioritize student needs. Instead, the act undermines competition to the detriment of student interests.

This anti-competitive arrangement is contrary to entire impetus behind the charter school movement.

In 1994, the Government of Alberta passed legislation creating charter schools by permitting non-profit organizations to operate public schools to increase school choice and parental involvement while adopting innovative instructional methods to improve educational outcomes. Charter schools are supposed to be the testing grounds for the delivery of public education. The problem is that the charter schools have become too successful.

Today, charters continue to operate tuition-free publicly funded schools that, along with private schools, consistently out-rank the majority of government public schools on the Fraser Institute’s annual School Report Card. True to their mandate, the charters have innovated. There are charters tailored to meet specific student needs, including one for English is a second language students, one for at-risk youth, and others that emphasize fine arts, music, and science. The students in these programs flourish.

If enrolment is an indication of meeting market demand, then charter schools are wildly successful. One Calgary charter has its enrolment capped by the government at just under 3,000 students and is annually filled to capacity while approximately 7,000 students wait to get in. For your child to attend this charter, you must apply nearly as soon as he or she is born.

But the strength and value of charter schools is not solely how they have innovated and produced superior results compared to government schools. Another significant success is in empowering parents. When parents have a choice of where to send their child to school, the decision becomes a matter of careful consideration. This creates a new relationship between the parent and the school freely chosen—one that’s markedly different than the complacency and compromise that characterizes having no choice but the local government school. As Sheldon Richman points out in his 1994 book “Separating School and State”, the single most important factor in a child’s educational success is an active, supportive family. By offering parents a choice of school outside of the government’s offerings, charter schools help to accomplish that.

Competition is always better than monopoly for consumers, and the delivery of educational services is no different than any other industry. The legislature has done Alberta’s students and parents a great disservice in the Education Act. By making charter schools beholden to school boards with vested interests, the government is sending a clear message: student needs and educational outcomes are not the government’s primary objectives.

This piece was originally published by Troy Media on December 3, 2012

The (Potentially) Unlimited Price of Outcomes

On Nov. 9, 2012, the Supreme Court of Canada (SCC) unanimously rejected equality of opportunity in favour of equality of outcome by finding that Jeffrey Moore was discriminated against when his North Vancouver school district failed to accommodate his learning disability.


In 1994, the cash-strapped school district de-funded an expensive and highly specialized program for dyslexic children in an effort to save money. Beginning two years later, the parents of nine-year-old Jeffrey chose to pay approximately $100,000 over nine years for a private education that included the same program previously available in the public system. Jeffrey's father then complained to the B.C. Human Rights Tribunal that his son's right to be free from discrimination entitles his family to be reimbursed for the cost of the private school.Justice Abella wrote the SCC's decision. In her reasons, she found that the program was the "means" by which Jeffrey could gain "access to the general education services available to all British Columbia's students." She also concluded that without public funding for the program, Jeffrey was incapable of achieving the same level of academic competency as other students in B.C.

This decision has the potential to burden B.C. taxpayers with an unlimited financial liability to fund special education programs. The SCC decided that B.C. students are guaranteed equality of outcome because the government has, as Justice Abella says, a "duty to ensure that no student is excluded from the benefit of the education system," and that "adequate special education, therefore, is not a dispensable luxury."

If you believe in equality of opportunity, you will agree that the B.C, government did not discriminate against Jeffrey. At all times, he had access to exactly the same educational services available to every other public school student in his region of B.C. Apparently, this does not matter since the SCC decided that the B.C. government has a duty to ensure that Jeffrey - and students like him - achieve the same academic outcomes as other students in B.C. But it's impossible for the B.C. government to ensure the equal educational outcomes of all B.C. students. It is only within the government's power to provide each student with an equal opportunity to achieve his or her academic potential.

Going forward, it's not clear from the decision whether the cost of delivering special education programs can be considered by school districts experiencing financial difficulties - even when those financial difficulties result in yearly deficits and budget cuts. As a result, this SCC decision has the potential to burden B.C. taxpayers with a nearly unlimited financial liability aimed at producing equal academic outcomes because this "duty to ensure no student is excluded" must ultimately be funded by their taxes.

Let's take a step back. The B.C. government never intended to bind itself through the Human Rights Code to provide highly specialized educational programs for disabled children without regard to cost. In particular, the provision that Jeffrey relied upon was not enacted by the legislature to be used in this fashion. Section 8 of the Human Rights Code is meant to prohibit restaurant-owners, shop-owners, and the like, from discriminating in the delivery of their services. For example, no taxi driver in B.C. may place a sign in his cab saying "no Hispanics."

This same provision is being constantly abused. In 2011, it was used by the B.C. Human Rights Tribunal to silence the free expression of comedian Guy Earle. In 2012, the tribunal used it to restrict the free expression of religious belief by bed-and-breakfast owners Les and Susan Molnar. In both of these instances, this provision was used to violate a fundamental freedom guaranteed by the Charter. The Jeffrey Moore decision represents a new stage in the continuing evolution of section 8 - the SCC has created the right to receive a highly specialized public education without regard to cost.

Jeffrey, now in his 20s, has experienced a lot of success - he is a journeyman plumber. In an April 21, 2009, interview with Katie Mercer in The Province, Jeffrey said that his chosen career "pays quite well and you can really get into it, and right off the bat. You're not paying off a student loan," and that, "it's a pretty quick way to start making money for someone who wants to have a useful skill and a good income." Perhaps it's Jeffrey, not the hard-working B.C. taxpayers, who should pay his father back.

Originally published in the Vancouver Sun, November 17, 2012

Confusing Compulsion for Freedom

The Toronto Sun reported yesterday that one of the reasons the Quebec student protests were so well-organized last spring is because the protesters were receiving financial help from unions across the country.

Canadian unions are well-known to give financial support to political causes—almost exclusively to those on the left side of the political spectrum. Many provinces in Canada, including Ontario, Manitoba, Saskatchewan, and British Columbia, have enacted legislation that forces even non-union members to pay union dues. And regardless of the wishes of the individuals forced to financially support them, unions are permitted to spend the money they collect to advance political causes that those same unwilling supporters oppose.

This issue was before the Supreme Court of Canada in the 1991 Lavigne v. Ontario Public Service Employees Union case. This case examined whether the Charter right to freedom of association prohibits the government from compelling individuals into associations against their will.

Lavigne was a teacher at a community college. His employment contract incorporated the so-called Rand Formula, which forced him to pay union fees regardless of whether he was a union member. The union then used Lavigne’s money to support the NDP and other political causes that he deeply opposed.

Once he became aware of this, Lavigne applied to get his money back so that it could not be used to further causes he considered unjust. His application was unsuccessful so he appealed all the way to the Supreme Court of Canada. The court’s decision was truly baffling.

Of the seven judges who heard the appeal, only three correctly held that freedom of association includes both a right to associate and a right to not associate. These three judges recognized that it’s just a matter of plain logic. If you are free to associate, you must also be free not to associate. That’s precisely what “free” means.

The remaining judges held that compulsory associations do not violate the Charter and that freedom of association “should not be expanded to protect the right not to associate.” Expanded? This implies that freedom from association is something other than a corollary of freedom of association. This view is incorrect. And it’s illogical.

In the end, the court had to bend the rules of good-reasoning to protect the Rand Formula. The word “freedom” necessarily implies choice. At a bare minimum, it must mean that individuals are free to choose to associate and free to choose not to associate. Yet the Lavigne decision protects the government’s constitutional authority to force individuals into involuntary associations. This is to confuse freedom with compulsion.

The real injustice in Quebec is not that tuition rates have been raised by a fraction. It’s that unions are supporting the protesting students using money involuntarily collected from unwilling Canadians.

Canada Should Repeal Its Blasphemy Law

It's time for Canada to repeal its prohibition on blasphemous libel.

Section 296 of the Criminal Code of Canada makes it an indictable offence to publish blasphemous libel.  Upon conviction, an accused is liable for up to two years of imprisonment.  Section 296 permits an accused the defence of “good faith” provided that “decent language” is used. 

296. (1) Every one who publishes a blasphemous libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

(2) It is a question of fact whether or not any matter that is published is a blasphemous libel.

(3) No person shall be convicted of an offence under this section for expressing in good faith and in decent language, or attempting to establish by argument used in good faith and conveyed in decent language, an opinion on a religious subject.

It’s probably a safe bet that most Canadians do not know what the term “blasphemy” means, let alone that blasphemous libel is a criminal offence.  According to the Merriam-Webster online dictionary, to blaspheme means to insult or show contempt or a lack of reverence for God or other things sacred.

Originally, blasphemous libel was specifically tied to publishing materials that brought the Christian religion into disrepute—presumably excluding other religions.  The courts held the prohibition to include any profane words vilifying God, Jesus Christ, the Holy Ghost, the Bible, or Christianity if it was done with the intent to shock or insult believers, or mislead the ignorant and unwary.

Arguably, the most recent decision on section 296 generalized the prohibition so that it may now be possible to blaspheme other religions as well.  But this has not been tested in court because the prohibition has fallen into disuse.

The first time I read this prohibition in the Criminal Code during law school, I found it surprising that Canada has any sort of law prohibiting blasphemy.  First, blasphemy is everywhere.  It is not difficult to find all sorts of published material that break this law—movies, music, books, magazines, video games, visual art, etc.  And second, any sort of prohibition on blasphemy strikes me as an unacceptable restriction on freedom of expression and one more potential foothold for tyranny.  Notice that the way that the prohibition is worded inevitably makes it function as a proxy for the personal and political views of the judiciary.  Perhaps "foothold for tyranny" is an understatement?

Fortunately, there have not been any blasphemous libel prosecutions in Canada since the 1930’s.  It is likely that section 296 is effectively dead even though it remains in the Criminal Code.

But being effectively dead is not truly dead.  The UK has had a similar prohibition with much the same story as Canada’s—it languished unused for a significant period of time.  Yet in the 1979 case of Whitehouse v. Lemon, Mary Whitehouse resurrected the UK’s blasphemous libel prohibition in a successful private prosecution.  The accused was convicted but did not have to serve the prison term.  By the way, the UK repealed its blasphemy law in 2008.

Aside from the important point that effectively dead laws are not guaranteed dead, there are other reasons to repeal section 296. 

First, the continued existence of a prohibition on blasphemy places Canada in an awkward and hypocritical position when it criticizes other countries of religious intolerance.  Remember the famous admonition to take the mote out of your own eye first?

And second, there is no certainty that the Charter’s guarantee of freedom of expression will offer any protection to an individual accused of blasphemous libel.  That’s an unanswered question that has never been tested in court.  Sadly, there are cases that refer to section 296 as a potentially justifiable violation of freedom of expression.  Also, there is no shortage of cases where the courts have deferred to the government and upheld restrictions on speech.  Trials are inherently uncertain and court decisions can often yield surprising results.

It’s probably best to repeal section 296 rather than assume that it will never be used in the future.

Provincial Liquor Monopolies may be Unconstitutional

Section 6 of the Charter guarantees that Canadians and permanent residents of Canada can move to and take up residence in any Canadian province. It also guarantees that the same people can pursue the gaining of a livelihood in any Canadian province. Like so many of the other freedoms we enjoy, we take our mobility rights for granted.

Canadian liquor producers do not enjoy the same luxury. Even though the producers themselves can freely cross between provinces, their products cannot.


THE BACK-STORY

It takes a short history lesson to explain why. In 1928, as Canada’s prohibition era was coming to an end, the provinces wanted to control the importation of liquor across their own borders. However, they recognized that they lacked the constitutional authority to enact such legislation, so they requested that the federal parliament delegate that power to them. The result was that, in the same year, the federal parliament enacted legislation titled the Importation of Intoxicating Liquors Act.

The act makes it illegal to import liquor into a province unless it has been purchased by or on behalf of the Queen. And you could be fined or jailed if you don’t comply. In practice, this means that all liquor imported into any province in Canada is the government’s liquor. Effectively, this 1928 law creates the monopoly over liquor enjoyed by each province. It prohibits producers from selling their products directly to consumers in other provinces. And, as is the case with any monopoly, this arrangement prevents innovative marketing, limits consumer choice, and drives up the price.

When liquor is imported into a province, the local provincial authority places a tax on it. This tax is hidden in the purchase price. In 2007/2008, the Alberta Gaming and Liquor Commission collected some $678 million in fees. In the same period, B.C. collected $857 million. But not to be outdone, in 2006/2007, Ontario collected an astounding $1.28 billion. These considerable sums of money increase the cost of liquor for consumers at the point of retail.

Today, because of the way these fees are collected, very few consumers are aware they are even being taxed.

What is difficult to understand about these provincial monopolies is that section 121 of our Constitution Act, 1867, states that all articles of “growth, produce, or manufacture” must be “admitted free” into each province. Early on, our courts decided this prohibited customs duties only, but subsequent court decisions seem to indicate that this constitutional provision means inter-provincial trade should be free of government imposed impediments, like hidden taxes, and the threat of fines and jail. Although constitutional law can be confounding at times, it is surpassingly odd that collecting $1.28 billion in hidden taxes could be considered “admitted free”.

Another interesting facet is that the provincial monopolies over liquor appear to be houses built on sand. In 1928, when the provinces requested that the federal parliament pass the Importation of Intoxicating Liquors Act, they effectively admitted that they did not have the constitutional authority to pass this legislation themselves. Parliament complied, relying on its authority to regulate trade and commerce.

SECTION 121 IGNORED

But it seems that no one at that time considered section 121 of the constitution. Or perhaps it was conveniently forgotten? While parliament has the constitutional authority to regulate trade and commerce, section 121 reads as though it must not interfere with inter-provincial free trade while doing so. Ultimately, if parliament does lack the authority to enact legislation that props up each province’s liquor monopoly, the constitutional legitimacy of those monopolies should be called into question.

A modern and fair-minded reading of section 121 of our constitution makes it seem like a guarantee of economic mobility. Just as Canadians and permanent residents can freely cross provincial borders, section 121 seems to mean that liquor producers should enjoy that same freedom for their products. Since 1928, that freedom has been denied them. And consumers are literally paying the price.

This piece first appeared in Troy Media in June 2011. 

Damned if you do, damned if you don't

Canadians have a common law right to defend themselves, their family, and their property. This includes using reasonable force to protect oneself from physical harm. But this right – surely a fundamental, natural right immune from government interference – is being eroded and is under attack.

Ian Thomson, a Port Colbourne, Ontario resident, defended his life with a handgun – only to be charged later with three Criminal Code offences. He goes on trial January 30th and 31st.


PREVENTED HIS OWN MURDER... THEN CHARGED

Thomson, a target shooter and former firearms instructor, was awakened to the sound of shouted profanity and breaking glass early one August morning. Three masked men had come onto his land with Molotov cocktails and were firebombing his home while he slept. The highly agitated and aggressive intruders ignited Thomson’s front porch and dog kennel. They appeared bent on murder.

Thomson responded by doing two things: he phoned emergency services, and he retrieved a legally registered and properly secured firearm. Thomson exited his burning home and discharged the firearm two or three times to drive off his attackers.

Twenty-two minutes after being contacted, the police arrived. In the interim, Thomson dowsed the fires that the masked intruders had ignited. He had clearly prevented his own murder, yet Crown attorneys charged him with careless use of a firearm, careless storage of a firearm, and pointing a firearm.

There are at least three reasons why these charges are morally indefensible.

First, Thomson had no other viable alternative courses of action. He could not have awaited police assistance inside a burning home. He could not have negotiated with the intruders. He could not have fled unarmed without exposing himself to a potentially lethal attack and permitting the continued destruction of his home. Thomson took the most reasonable course of action. And he conducted himself in a manner that injured no one and damaged nothing.

Second, the Criminal Code provisions under which Thomson was charged clearly state that no criminal act has been committed if someone uses, stores, or points a firearm with a “lawful excuse”. The Criminal Code does not define “lawful excuse”, leaving the courts to decide what qualifies on a case-by-case basis. Surely even the Crown Attorneys who charged Thomson recognize that “lawful excuse” must include preventing your own murder.

Third, there is no question or doubt that Canadians have the right to defend themselves from violent attack. Contrary to popular wisdom, the State does not andshould not have a monopoly on the use of force. When you have a reasonable apprehension that someone is about to cause physical harm to you, your family, or your property, you have legal authority to use as much physical force as reasonably required to repel the attacker.

What is considered reasonable can only be determined by the particular facts and circumstances you are facing. This includes the nature and seriousness of the attack, the relative size and strength of the attackers, the number of attackers, and when and where the attack is occurring. Further, a person undergoing an attack is not expected to measure with exactitude or nicety the power of his blows.


BLAMING THE VICTIM

Now apply this to Ian Thomson. He was asleep at home alone. He was violently attacked by three masked men intent on burning his house down with him in it. He could have shot to kill, yet he chose a reasonable and morally acceptable course of action. He chose to deter and defend, and to cause no harm.

The Crown has dropped the careless use and pointing charges, but the fact that the charges were laid at all indicates that something has gone seriously awry. The charges effectively victimize Thomson. They imply that he should have remained idle while his life was threatened. This turns both common sense and our moral inclinations on their heads. Thomson was a victim, not a perpetrator. He suffered a violent attack only to face criminal sanction for defending himself. This shifts the moral blame to a victim who should not be expected to have done otherwise.