Reflections on Reflections: The Relevance of the Writings of Edmund Burke to the Passage, Interpretation and Implementation of Section 35 of the Constitution Act, 1982
Reflections on Reflections: The Relevance of the Writings of Edmund Burke to the Passage, Interpretation and Implementation of Section 35 of the Constitution Act, 1982
Someone once said that being Canadian means always having to say, "I am sorry". It is a reflection of our moral fiber and our values of diversity, inclusivity and multiculturalism that characterize what we call, "Canadian Exceptionalism". Certainly tolerance is an admirable quality but it is not difficult to see, as journalist and author Richard Gwyn has pointed out, that, "tolerance has replaced loyalty as the touch stone of Canadian identity". We should all heed the wisdom of the expression, "nice guys finish last", for if we keep heading in the current direction, that is where we will end up.
An excellent and informative article Peter, thanks for sharing.
Tell really old Germans (if any of them are left) who fought with Canadians in Holland, whether they think that Canadians are "nice guys who finish last". Of course those guys were either tough farm boys or tough city boys, who'd heard what the Waffen SS had done to captured D-Day Canadian paratroopers [summary executions/murders]. Canadians never surrendered again. Every fight, thereafter, was a fight to the death. No prisoners --- either side. Our modern politicians, lawyers and judges/justices are just as nasty --- only a lot more cowardly and a lot more stupid than the second world war generation.
I note that the subject of the Practice Directive Jody Wilson-Raybould unilaterally imposed on Canada in her last days as Justice Minister (I would argue by methods similar to blackmail) further exacerbates the rather desperate and hopeless status quo Mr. Best so capably describes. An essay by Mr. Best on that subject would be greatly appreciated. This is an almost invisible, but hugely important, topic that most Canadians are not even aware of. Mr. Best is one of the very few lawyers who have the understanding to write on the subject. And perhaps the only one of those few willing to write on such topics.
Since BC signed UNDRIP into legislation (something Horgan thinks of as his finest achievement as premier), the same directive is now in effect in BC, a place with very few treaties. It's turning into the wild legal west out here. Law firms are lining up at the trough. If the average person knew the amount of taxpayer dollars that have and will flow into indigenous coffers there might be some more pushback. One small band in northern BC was recently successful in shutting down all natural resource works in their "traditional" territory on the basis of impingement of their rights to hunt, fish and trap. In addition there was a massive monetary settlement paid by the Province, and then the band turned around and started negotiating with the NR companies that wanted to operate on their land. So it wasn't about the hunting, fishing and trapping at all. It's about money. A decade from now taxpayer funded water plant will still be derelict and nonoperational, the complaints will still be about the dearth of moose, and the money will have done no good to most band members. How long is this going to go on? Wilson-Raybould's poison pill is her gotcha moment before she left.
"Who could flatter himself that these men, suddenly, and, as it were, by enchantment, snatched from the humblest rank of subordination, would not be intoxicated with their unprepared greatness? …Who could doubt but that, at any expense to the state, of which they understood nothing, they must pursue their private interests, which they understood but too well?" -- Burke. Aye, there's the rub.
Thank you Peter Best for the primer on Edmund Burke.
At some point, the people living on the reserves might experience some unjust distribution of the billions that have moved in the direction of the reserves and wonder who benefitted and is continuing to benefit from that money. It does not seem to show up
there and improve their quality of life. I can’t help but feel that they are pawns in someone’s game.
This is a great post and typical of any average lawyer. However Best is a better thinker than most lawyers. And his quotations of Edmund Burke were warmly appreciated as well as wonderfully relevant. However he is wrong on 2 basic counts, to wit:- 1. The Supremacy of Parliament and 2. We're stuck with Sect. 35. of the Charter, or with any of the rest of The Charter.
As a work-a-day obvious problem with our "Supreme/not-so-supreme" parliament:- Everyone of the idiots agreed that Residential Schools were a genocide --- which means that all of them are too stupid to be able to distinguish a fraud on tax payers, including some First Nation Canadians, from a genocide of "less-tax" payers (i.e. First Nations Canadians). With that kind of mob mentality and stupidity, Thank Heaven, that this particular group of clown-parliamentarians is not "supreme".
More logically, however, no one branch of government has ever been "supreme" in Canada. The human mind has 3 functions, to wit: Making things [called art or techne], Doing things [called practice or praxis] and understanding things [called Judgment]. Those 3 mental functions are reflected in the 3 distinct branches of Canadian Government. Legislators MAKE and presumably obey just laws. Executives ENFORCE [or PRACTICE law enforcement] and presumably obey just laws. Finally, Judges or Justices use just laws as JUDGMENT standards between equals in controversy and presumably obey those just laws. That way, no necessarily independent Branch of Government [Legislative, Executive, Judicial or Administrative] is "supreme". They are all equal, but equally different, in function/s.
That's the logical dogma (in the sense of correct opinion). But nobody, these days, cares about dogma and most politicians are so ignorant of the law they can barely avoid becoming criminals by ignoring very simple requests in light of incontrovertible evidence. When many of the British, Americans and Canadians, along with any other university graduate in or of the British Empire (or its eventual commonwealth of nations) actually took and understood so-called "Aristotelian" Logic, such individuals implicitly understood the distinctions between and the separation of powers of the 3 essential branches of government. Of course, that is no longer the case. Fallacies multiply. But it is not impossible to teach most people the logic of both governments and "Courts".
As to being stuck with Section 35 of The Charter, or any of the rest of The Charter, Canadians are not stuck with any of it/them. That is because "consent of the governed" is the essential principle of Constitutional Government --- and normal Canadians did not give consent to The Charter. It is true that Trudeau The Elder's Liberal majority Parliament consented and agreed to the so-called "repatriation" of the Canadian Constitution and the 1982 promulgation of it. But neither at Meech Lake, nor at the Charlottetown so-called "accord", did normal Canadians approve of or consent to The Charter, while most representatives did. But when both so-called "accords" were put to a public referendum, as a consequence of Charlottetown, 7 out of 10 Provinces with 54% of Canada's population refused consent to the question: [Q. Do you agree that the Constitution of Canada should be renewed on the basis of the agreement reached on August 28, 1992? A. 7 Provinces 54% said NO!]
It is true that lawyers and judges are stuck with the 1982 allegedly "repatriated" Constitution as the so-called "Supreme" Law of Canada. But we Canadian citizens are not stuck with it. We pay for our lawyers to speak in Court and they have to say what we pay them to say or we can have them fired from the legal profession for "misrepresenting" our cases. And our Judges/Justices are nothing more or less than overpaid civil servants who are required by law to provide fair hearings to both sides of a case and then use the law to fairly judge OUR cases in accordance with that rule of law.
What the above means is that if Hymie Rubenstein (intelligent academic), Peter Best (above average- intelligence lawyer) and Brian Giesbrecht (retired Judge who seems intelligent) put their 3 Canadian "pointy heads" together and actually read Scott Hamilton's report, of 2015, to the 3 Truth and Reconciliation Commissioners, especially page 15 of the Report entitled "Where are the Children Buried?", then all 3 of them could walk into any Court in Manitoba and and bring a CASE OF LAW against Murray Sinclair for a Section 137. C.C.C. offence [Type E; maximum sentence 14 years in prison]; short titled "fabricating evidence"; in order to aid and abet a further fraud on the Canadian people, contrary to Section 380. of the Criminal Code and in "disorder" to criminally libel Canada, contrary to Section 300. or 301. of the Criminal Code and to promote hatred against identifiable groups (various Churches which administered residential schools), contrary to Section 319.(1) of the criminal code of Canada. Everybody knows that the bogus "discoveries" at Kamloops (May 17, 2021), Cowessess (June 24, 2021) and St. Eugene's at Cranbrook B.C. (June 30, 2021) led to multiple breaches of the peace [Church burnings and vandalizations] in accordance with Sect. 319.(1) C.C.C.
And when any litigant asserts the "magic" word, COLLUSION, then the onus is on all Officers of The Court to be satisfied of no collusion in any Judicial Proceeding, including Judicial Proceedings "d.", according to the definitions of Judicial Proceedings in Sect. 118. of Canada's Criminal Code --- especially when such Judicial Proceedings result in government lawyers "taking dives" and not defending the public interest in subsequent Judicial Proceedings under the authority of "Courts", as per the Residential School "day scholar" suits, led by the Kamloops Secwepemc First Nation.
However, as I've said before; probably on this list:- Lawyers are habitual defenders of criminals and both Peter Best and Brian Giesbrecht are lawyers. Snowballs in Hell and lawyers indicting fellow lawyers --- let alone Judges indicting other judges. The Canadian Judicial Council has never even once recommended that Parliament and Senate fire a sitting Judge/Justice for misconduct let alone an indictable offence --- not once since around 1974 when that Council was established. All Canadian Judges or Justices must be as pure as the driven snow --- Yes! Snow in Hell!!!
Great read Thanks so much. Found this on Twitter Minister Miller. "Yesterday, I met with leadership, elders and members of the 9 Dakota and Lakota communities in Canada to acknowledge their rights under Section 35 of the Constitution and work with them to develop an apology to their people on behalf of Canada" https://twitter.com/MarcMillerVM/status/1646852687445540868?t=0d3uut4ixQAKsIFBRB2rGA&s=19
what "historical wrong" is he referring to? This guy is the parliamentary version of Sean settler Carleton. An election cannot come soon enough. In all the years I've held a Twitter account I've never made a post. I just did in response to Miller's. For all the good it will do.
Miller gets plenty of scorn on that Twitter thread, but perhaps the most to the point (in keeping with Peter Best's concerns in his excellent article), is the one from "Global Unionist", who comments,
"@MarcMillerVM you advocate for 100% of crown land being given to people designated “indigenous”. That is basically all of Canada. So, you owe it to Canadians to answer this question; how do you foresee your proposal playing in terms of the future of Canada? We deserve clarity."
Someone once said that being Canadian means always having to say, "I am sorry". It is a reflection of our moral fiber and our values of diversity, inclusivity and multiculturalism that characterize what we call, "Canadian Exceptionalism". Certainly tolerance is an admirable quality but it is not difficult to see, as journalist and author Richard Gwyn has pointed out, that, "tolerance has replaced loyalty as the touch stone of Canadian identity". We should all heed the wisdom of the expression, "nice guys finish last", for if we keep heading in the current direction, that is where we will end up.
An excellent and informative article Peter, thanks for sharing.
Tell really old Germans (if any of them are left) who fought with Canadians in Holland, whether they think that Canadians are "nice guys who finish last". Of course those guys were either tough farm boys or tough city boys, who'd heard what the Waffen SS had done to captured D-Day Canadian paratroopers [summary executions/murders]. Canadians never surrendered again. Every fight, thereafter, was a fight to the death. No prisoners --- either side. Our modern politicians, lawyers and judges/justices are just as nasty --- only a lot more cowardly and a lot more stupid than the second world war generation.
-Kevin
I note that the subject of the Practice Directive Jody Wilson-Raybould unilaterally imposed on Canada in her last days as Justice Minister (I would argue by methods similar to blackmail) further exacerbates the rather desperate and hopeless status quo Mr. Best so capably describes. An essay by Mr. Best on that subject would be greatly appreciated. This is an almost invisible, but hugely important, topic that most Canadians are not even aware of. Mr. Best is one of the very few lawyers who have the understanding to write on the subject. And perhaps the only one of those few willing to write on such topics.
Since BC signed UNDRIP into legislation (something Horgan thinks of as his finest achievement as premier), the same directive is now in effect in BC, a place with very few treaties. It's turning into the wild legal west out here. Law firms are lining up at the trough. If the average person knew the amount of taxpayer dollars that have and will flow into indigenous coffers there might be some more pushback. One small band in northern BC was recently successful in shutting down all natural resource works in their "traditional" territory on the basis of impingement of their rights to hunt, fish and trap. In addition there was a massive monetary settlement paid by the Province, and then the band turned around and started negotiating with the NR companies that wanted to operate on their land. So it wasn't about the hunting, fishing and trapping at all. It's about money. A decade from now taxpayer funded water plant will still be derelict and nonoperational, the complaints will still be about the dearth of moose, and the money will have done no good to most band members. How long is this going to go on? Wilson-Raybould's poison pill is her gotcha moment before she left.
"Who could flatter himself that these men, suddenly, and, as it were, by enchantment, snatched from the humblest rank of subordination, would not be intoxicated with their unprepared greatness? …Who could doubt but that, at any expense to the state, of which they understood nothing, they must pursue their private interests, which they understood but too well?" -- Burke. Aye, there's the rub.
Thank you Peter Best for the primer on Edmund Burke.
I read it and weep.
At some point, the people living on the reserves might experience some unjust distribution of the billions that have moved in the direction of the reserves and wonder who benefitted and is continuing to benefit from that money. It does not seem to show up
there and improve their quality of life. I can’t help but feel that they are pawns in someone’s game.
This is a great post and typical of any average lawyer. However Best is a better thinker than most lawyers. And his quotations of Edmund Burke were warmly appreciated as well as wonderfully relevant. However he is wrong on 2 basic counts, to wit:- 1. The Supremacy of Parliament and 2. We're stuck with Sect. 35. of the Charter, or with any of the rest of The Charter.
As a work-a-day obvious problem with our "Supreme/not-so-supreme" parliament:- Everyone of the idiots agreed that Residential Schools were a genocide --- which means that all of them are too stupid to be able to distinguish a fraud on tax payers, including some First Nation Canadians, from a genocide of "less-tax" payers (i.e. First Nations Canadians). With that kind of mob mentality and stupidity, Thank Heaven, that this particular group of clown-parliamentarians is not "supreme".
More logically, however, no one branch of government has ever been "supreme" in Canada. The human mind has 3 functions, to wit: Making things [called art or techne], Doing things [called practice or praxis] and understanding things [called Judgment]. Those 3 mental functions are reflected in the 3 distinct branches of Canadian Government. Legislators MAKE and presumably obey just laws. Executives ENFORCE [or PRACTICE law enforcement] and presumably obey just laws. Finally, Judges or Justices use just laws as JUDGMENT standards between equals in controversy and presumably obey those just laws. That way, no necessarily independent Branch of Government [Legislative, Executive, Judicial or Administrative] is "supreme". They are all equal, but equally different, in function/s.
That's the logical dogma (in the sense of correct opinion). But nobody, these days, cares about dogma and most politicians are so ignorant of the law they can barely avoid becoming criminals by ignoring very simple requests in light of incontrovertible evidence. When many of the British, Americans and Canadians, along with any other university graduate in or of the British Empire (or its eventual commonwealth of nations) actually took and understood so-called "Aristotelian" Logic, such individuals implicitly understood the distinctions between and the separation of powers of the 3 essential branches of government. Of course, that is no longer the case. Fallacies multiply. But it is not impossible to teach most people the logic of both governments and "Courts".
As to being stuck with Section 35 of The Charter, or any of the rest of The Charter, Canadians are not stuck with any of it/them. That is because "consent of the governed" is the essential principle of Constitutional Government --- and normal Canadians did not give consent to The Charter. It is true that Trudeau The Elder's Liberal majority Parliament consented and agreed to the so-called "repatriation" of the Canadian Constitution and the 1982 promulgation of it. But neither at Meech Lake, nor at the Charlottetown so-called "accord", did normal Canadians approve of or consent to The Charter, while most representatives did. But when both so-called "accords" were put to a public referendum, as a consequence of Charlottetown, 7 out of 10 Provinces with 54% of Canada's population refused consent to the question: [Q. Do you agree that the Constitution of Canada should be renewed on the basis of the agreement reached on August 28, 1992? A. 7 Provinces 54% said NO!]
It is true that lawyers and judges are stuck with the 1982 allegedly "repatriated" Constitution as the so-called "Supreme" Law of Canada. But we Canadian citizens are not stuck with it. We pay for our lawyers to speak in Court and they have to say what we pay them to say or we can have them fired from the legal profession for "misrepresenting" our cases. And our Judges/Justices are nothing more or less than overpaid civil servants who are required by law to provide fair hearings to both sides of a case and then use the law to fairly judge OUR cases in accordance with that rule of law.
What the above means is that if Hymie Rubenstein (intelligent academic), Peter Best (above average- intelligence lawyer) and Brian Giesbrecht (retired Judge who seems intelligent) put their 3 Canadian "pointy heads" together and actually read Scott Hamilton's report, of 2015, to the 3 Truth and Reconciliation Commissioners, especially page 15 of the Report entitled "Where are the Children Buried?", then all 3 of them could walk into any Court in Manitoba and and bring a CASE OF LAW against Murray Sinclair for a Section 137. C.C.C. offence [Type E; maximum sentence 14 years in prison]; short titled "fabricating evidence"; in order to aid and abet a further fraud on the Canadian people, contrary to Section 380. of the Criminal Code and in "disorder" to criminally libel Canada, contrary to Section 300. or 301. of the Criminal Code and to promote hatred against identifiable groups (various Churches which administered residential schools), contrary to Section 319.(1) of the criminal code of Canada. Everybody knows that the bogus "discoveries" at Kamloops (May 17, 2021), Cowessess (June 24, 2021) and St. Eugene's at Cranbrook B.C. (June 30, 2021) led to multiple breaches of the peace [Church burnings and vandalizations] in accordance with Sect. 319.(1) C.C.C.
And when any litigant asserts the "magic" word, COLLUSION, then the onus is on all Officers of The Court to be satisfied of no collusion in any Judicial Proceeding, including Judicial Proceedings "d.", according to the definitions of Judicial Proceedings in Sect. 118. of Canada's Criminal Code --- especially when such Judicial Proceedings result in government lawyers "taking dives" and not defending the public interest in subsequent Judicial Proceedings under the authority of "Courts", as per the Residential School "day scholar" suits, led by the Kamloops Secwepemc First Nation.
However, as I've said before; probably on this list:- Lawyers are habitual defenders of criminals and both Peter Best and Brian Giesbrecht are lawyers. Snowballs in Hell and lawyers indicting fellow lawyers --- let alone Judges indicting other judges. The Canadian Judicial Council has never even once recommended that Parliament and Senate fire a sitting Judge/Justice for misconduct let alone an indictable offence --- not once since around 1974 when that Council was established. All Canadian Judges or Justices must be as pure as the driven snow --- Yes! Snow in Hell!!!
well, that's depressing
Loved that comment. At least you are not Alison Malice. Good on you!
Great read Thanks so much. Found this on Twitter Minister Miller. "Yesterday, I met with leadership, elders and members of the 9 Dakota and Lakota communities in Canada to acknowledge their rights under Section 35 of the Constitution and work with them to develop an apology to their people on behalf of Canada" https://twitter.com/MarcMillerVM/status/1646852687445540868?t=0d3uut4ixQAKsIFBRB2rGA&s=19
what "historical wrong" is he referring to? This guy is the parliamentary version of Sean settler Carleton. An election cannot come soon enough. In all the years I've held a Twitter account I've never made a post. I just did in response to Miller's. For all the good it will do.
Miller gets plenty of scorn on that Twitter thread, but perhaps the most to the point (in keeping with Peter Best's concerns in his excellent article), is the one from "Global Unionist", who comments,
"@MarcMillerVM you advocate for 100% of crown land being given to people designated “indigenous”. That is basically all of Canada. So, you owe it to Canadians to answer this question; how do you foresee your proposal playing in terms of the future of Canada? We deserve clarity."