Summary of Seven Absolute Rights by Ryan Alford.

So this lovely book came in the mail today, earlier than the release date on Amazon. It’s much thinner than I expected – no more than 2 cm thick. Below are my notes for Dr. Ryan Alford’s book . They’re not yet finished, but what I’ve read so far has been exciting. The biggest reason for why is that there are rights which are absolute. They can’t be limited by the government under any circumstances, and they’re older than the Charter of Rights and Freedoms. This is a book about Canadian law and jurisprudence, but I bet that other countries with a Common Law tradition will find its historical sections useful. Here’s a link to it on Amazon.

Preface:

  • Exegerunt monumenta aere perennius. This is Latin for “they have built monuments more lasting than bronze.” Refers to Justices Lamer and Bingham.
  • Unwritten constitutional rules rely on constitutional history.
  • The Charter’s s.1 says that rights can be limited. But he identifies seven rights which cannot be limited at all. They are absolute and are called “non-derogable.”
  • The first part of the Constitution Act says that Canada has a Constitution “similar in Principle to that of the United Kingdom.” Unfortunately, with every passing generation, scholars, jurists and lawyers lack the historical knowledge needed to understand and apply this key line.
  • They’ve also started to incorrectly think that the only rights we now have are those enumerated by the Charter. But the Absolute 7 are still in effect! For example, the Magna Carta (1215) is what forbids the extrajudicial killing of citizens.
  • Chief Justice Antonio Lamer and the British Lord Chief Justice Tom Bingham were steeped in this constitutional historical tradition, and they articulated many of these principals for a modern generation.

Introduction:

  • There’s a need for more literature on how the RoL is a substantial pillar of Canadian constitutional order. 
  • Constitutionalism: the RoL is desirable! It’s a practical pursuit which limits the government’s powers. It’s not just an aspiration or an abstract value. 
  • The Charter, Bill of Rights and Roncarelli v. Duplessis all cite “The RoL.” Without a historical understanding of the origins of the RoL in Canada, the principle will fade away. 
  • 6-7 The RoL is a sacred pursuit for lawyers and judges.  The supreme court cites the RoL too. But there’s little contemporary literature on the RoL. Judges still cite Dicey, for e.g. 
  • 8-9. Bingham recently wrote The RoL in 2010, and it has been cited often by the Canadian Supreme court. 
  • Here are the seven principles/rights (I, the note writer, will call these “The Absolute 7”)
    • No one can be executed, jailed, or fined without an opportunity to respond to the charge. 
    • The government can never do what it is not allowed statutorily to do, even if it cites an emergency as a reason to override statute. 
    • Torture can never be authorized. Never. 
    • Anyone detained by the government can obtain judicial review. 
    • The judiciary can’t punish or impose excessive bail without statutory authority. 
    • No one can be criminally prosecuted for what they say in the necessary proceedings of Parliament. 
    • Everyone in court is entitled to an impartial judge protected from state influence. 
  • You must have these seven rights for the executive to be subject to the law. They were hard fought and protect us from tyranny.
  • The Absolute 7 form Canada’s RoL.
  • You can source them in written texts – the Magna Carta, the Petition of Right, etc.
  • 10. These 7 are the bare minimum of the Canadian RoL.  

1. The Courts, the Academy, and the Future of the RoL in the 21st century. 

  • Our foray into the RoL in Canadian Jurisprudence will begin with Reference Re Remuneration of Judges of the Provincial Court of Prince Edward Island (1997). It was a case about Judicial Independence – can a province lower a judge’s pay? Is this influence?
  • 31. In his decision, Lamer first examines the Charter and concludes that s.11(d) does not protect provincial judges. He then explores Manitoba Language Rights (1985), which found that the RoL had to have judicial independence. He then moved further back to the UK. The Act of Settlement (1701) guaranteed judicial independence. As Canada’s constitution is similar in Principle to the UK’s, The Act guarantees Canadian judicial independence as well. 
  • 32-33. Many legal scholars criticized this articulation of unwritten assumptions, like Dr. Jamie Cameron. She thinks that moving away from our written constitution risks delegitimizing the judiciary’s power to check democratic instructions. 
  • Her fear is that court conservatives could (mis)use these principles to thwart progressive policy. 
  • However, she didn’t engage with the RoL, nor did she address the fact that governments try to elevate themselves above the constitution by changing it. There’s no awareness that 1) democratic institutions can be something that isn’t progressive, and that 2) they can seek to abuse their power. This is especially worrisome considering she wrote this in 2002. 
  • 34-35. Also, these unwritten constitutional conventions have been written down, in statutes like the Magna Carta and the Act of Settlement. 
  • Avoiding these unwritten principles, like Dr. Cameron suggests, and relying only on written constitutional text would lead someone to think that Canada were an absolute monarchy. This is obviously untrue because of that first line of the Constitution Act (“similar in Principle…”).
  • 36. She does raise an interesting point though – how can you distinguish between the elucidation of unwritten constitutional principles and mere judicial activism? I’ll go into detail later, but basically, a constitutional tradition tells us what these principles are. 
  • 36-38: As more rights become enumerated in statutes like The Charter and The Bill of Rights, we’ve started to assume that they are an exhaustive set of rights. But even the Charter and the Bill of Rights don’t agree with this statement – they both have provisions which indicate that they don’t replace or invalidate the rules which came before them. That’s s.26 of the Charter and 5 (1) of Part II of the Bill of rights. It’s unfortunate that many, like Peter Hogg, find these parts to be only historical curiosities.
  • The Absolute 7 are actually more protective than the Charter because the Charter is pliable. Savings clauses which make exceptions for rights tend to just let governments pursue compelling objectives. 
  • Non-derogable rights are a proud creature of English law, as Blackstone recognized, and it was by this that international human rights legislation was inspired. But if judges don’t acknowledge or know of these Absolute 7, they become useless. 
  • 39-42.  Back to Dr. Cameron’s point. The Charter’s s.33 was only added to appease the provinces. Another reason for why Streyer, the drafter of the Charter, added in s. 1 was to preserve legislative supremacy. But he didn’t foresee how these two provisions could be abused by governments. Bill C-51 is proof of how the government seems to be able to do away with the RoL and fundamental rights as long as it can limit these rights. 
  • 43-44. Two views of the RoL have emerged in the Canadian SC. One, penned by Lamer, argues that Canada’s RoL has a specific meaning which comes from the UK’s Absolute 7. Another, from J. Major in BC v. Imperial Tobacco, argues that the RoL is a vague term that allows any legislative practice go through. Major also assumed that expressio unius est exclusio alterius applied to the Charter, which means that the Absolute 7 only exist insofar as the Charter’s specific rights include them. 
  • 44-45. A future terrorist attack is a certainty. The government will use its powers against terrorists. If the Charter is the only document restraining the government, then they will have unlimited power unless the Big 7 are recognized. The Big 7 are the last wall protecting our rights. Therefore, we should study them.  

Introduction:

  • There’s a need for modern literature on how the Rule of Law (RoL) is a substantial pillar of Canadian constitutional order, ergo liber.
  • Constitutionalism: the rule of law is desirable! It’s a practical pursuit which limits the government’s powers. It’s not just an aspiration or an abstract value. 
  • The Charter, Bill of Rights and Roncarelli v. Duplessis all cite “The Rule of Law.” Without a historical understanding of the origins of the Rule of Law in Canada, the principle will fade away. 
  • 6-7 The RoL is a sacred pursuit for lawyers and judges.  The supreme court cites the rule of law too. But there’s little contemporary literature on the Rule of Law. Judges still cite Dicey, for e.g. 
  • 8-9. Bingham recently wrote The Rule of Law in 2010, and it has been cited often by the Canadian Supreme court. 
  • Here are the seven principles/rights (I, the note writer, will call these “The Absolute 7”)
    • No one can be executed, jailed, or fined without an opportunity to respond to the charge. 
    • The government can never do what it is not allowed statutorily to do, even if it cites an emergency as a reason to override statute. 
    • Torture can never be authorized. Never. 
    • Anyone detained by the government can obtain judicial review. 
    • The judiciary can’t punish or impose excessive bail without statutory authority. 
    • No one can be criminally prosecuted for what they say in the necessary proceedings of Parliament. 
    • Everyone in court is entitled to an impartial judge protected from state influence. 
  • You must have these seven rights for the executive to be subject to the law. They were hard fought and protect us from tyranny.
  • The Absolute 7 form Canada’s Rule of Law.
  • You can source them in written texts – the Magna Carta, the Petition of Right, etc.
  • 10. These 7 are the bare minimum of the Canadian rule of law.  

1. The Courts, the Academy, and the Future of the Rule of Law in the 21st century. 

  • Our foray into the Rule of Law in Canadian Jurisprudence will begin with Reference Re Remuneration of Judges of the Provincial Court of Prince Edward Island (1997). It was a case about Judicial Independence – can a province lower a judge’s pay? Is this influence? 
  • 31. In his decision, Lamer first examines the Charter and concludes that s.11(d) does not protect provincial judges. He then explores Manitoba Language Rights (1985), which found that the Rule of Law had to have judicial independence. He then moved further back to the UK. The Act of Settlement (1701) guaranteed judicial independence. As Canada’s constitution is similar in Principle to the UK’s, The Act guarantees Canadian judicial independence as well. 
  • 32-33. Many legal scholars criticized this articulation of unwritten assumptions, like Dr. Jamie Cameron. She thinks that moving away from our written constitution risks delegitimizing the judiciary’s power to check democratic instructions. 
  • Her fear is that court conservatives could (mis)use these principles to thwart progressive policy. 
  • However, she didn’t engage with the rule of law, nor did she address the fact that governments try to elevate themselves above the constitution by changing it. There’s no awareness that 1) democratic institutions can be something that isn’t progressive, and that 2) they can seek to abuse their power. This is especially worrisome considering she wrote this in 2002. 
  • 34-35. Also, these unwritten constitutional conventions have been written down, in statutes like the Magna Carta and the Act of Settlement. 
  • Avoiding these unwritten principles, like Dr. Cameron suggests, and relying only on written constitutional text would lead someone to think that Canada were an absolute monarchy. This is obviously untrue because of that first line of the Constitution Act (“similar in Principle…”).
  • 36. She does raise an interesting point though – how can you distinguish between the elucidation of unwritten constitutional principles and mere judicial activism? I’ll go into detail later, but basically, a constitutional tradition tells us what these principles are. 
  • 36-38: As more rights become enumerated in statutes like The Charter and The Bill of Rights, we’ve started to assume that they are an exhaustive set of rights. But even the Charter and the Bill of Rights don’t agree with this statement – they both have provisions which indicate that they don’t replace or invalidate the rules which came before them. That’s s.26 of the Charter and 5 (1) of Part II of the Bill of rights. It’s unfortunate that many, like Peter Hogg, find these parts to be only historical curiosities.
  • The Absolute 7 are actually more protective than the Charter because the Charter is pliable. Savings clauses which make exceptions for rights tend to just let governments pursue compelling objectives. 
  • Non-derogable rights are a proud creature of English law, as Blackstone recognized, and it was by this that international human rights legislation was inspired. But if judges don’t acknowledge or know of these Absolute 7, they become useless. 
  • 39-42.  Back to Dr. Cameron’s point. The Charter’s s.33 was only added to appease the provinces. Another reason for why Streyer, the drafter of the Charter, added in s. 1 was to preserve legislative supremacy. But he didn’t foresee how these two provisions could be abused by governments. Bill C-51 is proof of how the government seems to be able to do away with the Rule of Law and fundamental rights as long as it can limit these rights. 
  • 43-44. Two views of the Rule of Law have emerged in the Canadian SC. One, penned by Lamer, argues that Canada’s Rule of Law has a specific meaning which comes from the UK’s Absolute 7. Another, from J. Major in BC v. Imperial Tobacco, argues that the Rule of Law is a vague term that allows any legislative practice go through. Major also assumed that expressio unius est exclusio alterius applied to the Charter, which means that the Absolute 7 only exist insofar as the Charter’s specific rights include them. 
  • 44-45. A future terrorist attack is a certainty. The government will use its powers against terrorists. If the Charter is the only document restraining the government, then they will have unlimited power unless the Big 7 are recognized. The Big 7 are the last wall protecting our rights. Therefore, we should study them.  

Chapter 2: Contemporary British Approaches to the Rule of Law

  • This chapter was pretty boring and tedious. In stead of providing a summary, I’ll just provide a very quick set of terms.
  • Blackstone and the transition to Dicey regarding the Rule of Law. The Law of the Constitution, The Books of Authority, Coke, Commentaries on the laws of England, Bacon and The Elements of the Common Laws of England.
  • 59. The Common law has acts: Magna Carta, Petition of Right, etc.
  • 61. Canadian courts can look to recent British jurisprudence to see how to apply the rule of law and historical understandings of it.
  • 66. Bingham is good and a fountain of the rule of law.

Chapter 3: The Middle Ages:

  • The Magna Carta is unfortunately used by self-represented litigants arguing that they shouldn’t have to pay for things like court transcripts. This sucks because courts and lawyers will become suspicious of the Magna Carta as a result.
  • First the Magna Carta was just a thing brought about by an English King who was brokering peace. He had recently brought in all of these foreign trained lawyers who had read about the newly rediscovered Roman law and Greek Logic. Little did the king know that those scholars would take away his power and put the king under the power of the law rather than the other way around.
  • The Magna Carta was cancelled after a bit, but then restored once again when the Pope got the king’s son to swear on it. Then it was clarified in further statutes. Then it was reintroduced in perpetuum.

Published by efernandes

I blog now.

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