- Canadian Constitution Foundation
name = Canadian Constitution Foundation
caption = The Canadian Constitution Foundation logo
motto = "Protecting the Constitutional Freedoms of Canadians through education and public interest litigation"
purpose = We envision a Canada where:
Every Canadian is equal before the law, and is treated equally by governments.
There is freedom from fear and oppression.
Canadians have the knowledge and motivation to recognize, protect and preserve their constitutional rights and liberties.
Individuals control their own destiny as free and responsible members of society.Governments are held accountable to our Constitution in making and applying laws, regulations and policies...cite web | title = About Us, Our Background| publisher = The Federalist Society| url = http://www.fed-soc.org/aboutus/id.28/default.asp| accessdate = 2008-08-20]
leader_title = Executive Director
leader_name = John Carpay
website = http://www.canadianconstitutionfoundation.ca/
The Canadian Constitution Foundation (CCF) is a registered charity, independent and non-partisan, with a unique charter which allows it to fund appropriate litigation. Through education and public interest litigation, the Foundation supports:Individual freedom - the "fundamental freedoms" in section 2 of the Charter of Rights and Freedoms:Freedom of association;Freedom of peaceful assembly;Freedom of conscience and religion;Freedom of thought, belief, opinion and expression.Economic liberty: the right to earn a living, and to own and enjoy property, as part of the Charter section 7 right to "life, liberty and security of the person."Equality before the law: the Charter section 15 should be interpreted to mean equal rights and equal opportunities for all Canadians, special privileges to none.
Recent CCF Litigation
Freedom of choice in Health Care
At a well-attended news conference in September 2007, the Canadian Constitution Foundation announced that plaintiffs Lindsay McCreith and Shona Holmes are suing the Ontario Government for the right to access essential health care services outside the government's monopoly system.
Shona Holmes was told she would lose her vision forever, unless surgeons immediately removed her growing brain tumour. But Ontario's government monopoly health care system told Shona whe would have to wait for months just to see specialists and obtain treatment. Not willing to risk permanent blindness, Shona obtained surgery at the Mayo Clinic in Arizona. Within ten days, her vision was completely restored.
Lindsay McCreith's experience with Canada's "wait-care" system is similar. Facing an eight month delay for surgery to remove a malignant brain tumour, he paid out of pocket for surgery in Buffalo, New York.
Canada is the only industrialized democracy in the world which outlaws private health insurance for medically necessary services. THe Canada Health Act - together with provincial laws - prevent Canadians from obtaining essential health care services outside of the government's monopoly. Like other Canadians, Shona and Lindsay are prohibited by law from buying private health insurance to access essential medical services like MIRs, and surgery to remove cancer. In Canada, it's legal to buy health insurance for your pets, but not for yourself or loved ones.
In their constitutional challenge to Ontario health care legislation, Shona Holmes nad Lindsay McCreith rely on the 2005 Supreme Court of Canada decision in Chaoulli v. Quebec.
CCF Executive Director John Carpay represented the Japanese Canadian Fishermens Association before the Supreme Court of Canada in R. v. Kapp on December 11, 2007.
The Kapp case concerns the federal government’s policy of racial segregation in the commercial fisheriesin British Columbia. In 1992, the federal government announced the creation of a separate commercialfishery for individuals with bloodline ties to the Musqueam and Tsawwassen Indians Bands. These sameindividuals are also permitted to fish a second time during the opening for all other Canadians.In 2003, B.C. Provincial Court Judge William Kitchen ruled that these race-based commercial fisheriesviolate the equality rights of the Canadian Charter of Rights and Freedoms. He dismissed the chargesagainst the 145 fishermen who were arrested in 1998 for having fished in protest. In 2004, this decisionwas overturned by the B.C. Supreme Court, and in 2006 the B.C. Court of Appeal affirmed the B.C. SupremeCourt decision.
CCF Executive Director John Carpay presented oral argument before the Supreme Court of Canadaon December 11, 2007. A decision is expected in 2008.
Promoting Racial Equality
The Canadian Constitution Foundation is supporting Doug Gould’s constitutional challenge to a racebasedbusiness licensing scheme imposed by Parks Canada.Doug Gould was born and raised on the Queen Charlotte Islands. He runs a tourism business, MoresbyExplorers, taking visitors through the Gwaii HaanasNational Park. Parks Canada requires applicants for business licenses to identify themselves as HaidaIndian or as non-Haida. Parks Canada has imposed a limit of 22,000 “user days” on tour operators forconservation purposes, of which 11,000 are available only to Haida Indians. Non-Haida Canadians arelimited to 11,000 and cannot expand their businesses, even if the quota for Haidas is not being used, as isnow the case.Doug objects to the government asking people to identify themselves by ancestry, ethnicity, race orbloodline tie, and then using the answer as a criterion in the issuing of business licenses. Dougbelieves that each Canadian citizen, Aboriginal or otherwise, must be treated as a member of the samehuman family. People should be free from government-imposed discrimination by reason of immutablepersonal considerations such as ethnicity and gender.This case, called Moresby Explorers Ltd. and Douglas Gould v. Attorney General of Canada, has profoundimplications across Canada, because many trades, occupations and livelihoods depend on governmentlicence. Doug is seeking a victory for the principle that government should not consider a person’srace or gender or other unchangeable personal characteristic in the issuing of licenses.In 2008, the Supreme Court of Canada will release its decision as to whether or not it will hear this case.
Chief Mountain: Nisga'a Challenge Revived
On October 9, 2007, the B.C. Court of Appeal released its decision to revive the constitutionalchallenge to the Nisga’a Agreement brought by Sga’nisim Sim’augit (also known as Chief Mountainand as James Robinson), and Nisga’a matriarch Nisibilada (also known as Mercy Thomas), andother Nisga’a people. Their action had been dismissed in October of 2005 by BC Supreme CourtJustice Pitfield on procedural grounds: the Nisga’a plaintiffs had failed to formally provide theDefendant governments with information that was already in the possession of the Defendantgovernments.Chief Mountain’s constitutional court action commenced in 2000. The action claims that the Nisga’aFinal Agreement violates Canada’s constitution by creating a semi-independent Nisga’a statewhose laws prevail over Canadian law. The Nisga’a government later applied, of its own choosing,to be added as a defendant. The three defendant governments (federal, BC and Nisga’a) havesucceeded for more than seven years in preventing this constitutional challenge from going to trial,using numerous procedural delay tactics.The Nisga’a Agreement has created a Nisga’a government in north-western B.C. with the power togrant or withhold Nisga'a citizenship -- even from individuals of Nisga’a descent. Only Nisga’acitizens are allowed to vote in elections, so that the Nisga’a government can effectively select thevoting population. The Nisga’a Agreement expressly states that Nisga’a law prevails over Canadianfederal and provincial law in fourteen areas of jurisdiction.Chief Mountain opposes this “third order” of government created by the Nisga’a Treaty, stating “Ithurts our people by taking away our ancestral lands and human rights. It hurts all Canadians byundermining the Canadian constitution. I vow to fight for my people’s rights to be Canadian citizensand to be protected by the Charter of Rights. Those rights have been taken away illegally, by theNisga’a treaty.”Prominent legal experts agree with Chief Mountain that the “third order” of government created by the Nisga’a Treatyviolates Canada’s constitution. Retired Supreme Court of Canada Justices William McIntyre and the late WillardEstey, retired B.C. Court of Appeal Justice D.M. Michael Goldie, former NDP Attorney-General Alex MacDonald, thelate Mel Smith, Q.C., and former B.C. Attorney-General Geoff Plant have all stated publicly that parts of the Nisga’aTreaty are unconstitutional and therefore illegal.
Projects & Publications
Judging the Judges
In an attempt to review the philosophies of Supreme Court Justices on a range of issues that impact on individual and economic freedom and equality, the CCF reviewed decisions of the Court from January 1, 2000 to December 31, 2006, that clearly implicate vital individual and economic freedoms and equality.
For the purposes of the analysis, a “pro-freedom” decision is one in which a majority of the court is supportive of one or more of the following: individual freedom, economic freedom, or equality before the law (equality of opportunity for individuals). A Justice who makes a pro-freedom decision 70 percent of the time or more is considered to be a stronger supporter of individual and economic freedom and/or equality before the law, whereas those Justices scoring below that percentage are considered to be weaker supporters of individual and economic freedom and/or equality before the law.After examining these cases, the Canadian Constitution Foundation reached the following conclusions about the Supreme Court of Canada and its Justices:The Court issued pro-freedom decisions 83% of the time and anti-freedom decisions 17% of the time.Retired Justice John Major was the strongest supporter of freedom. He supported freedom in 100% of his decisions. Retired Justice Claire L’Heureux-Dubé was the weakest supporter of freedom, supporting it only 50% of the time.Strong supporters of freedom include Chief Justice Beverley McLachlin (90%), followed closely by Justices Ian Binnie and Michel Bastarache at 83%, and retired Justice Charles Gonthier at 80%.Retired Justice Frank Iacobucci and Justice Morris Fish were slightly less strong supporters of freedom, defending freedom in 76% and 75% of their decisions respectively.Weak supporters of freedom include Justices Louise Arbour with a 59% track record of defending freedom, followed by Justice Louis Lebel at 60% and Justice Marie Deschamps at 64%.In the non-unanimous judgments studied, a slim majority of Justices reached a pro-freedom decision a majority of the time.In the judgments studied involving fundamental freedoms such as speech, the Justices are almost evenly divided, with 45% of Justices being stronger supporters of fundamental freedoms and 55% being weaker supporters of fundamental freedoms.In the cases studied that concerned economic freedom, the Justices are divided 60/40, with 60% of Justices being stronger supporters of economic freedom and 40% being weaker supporters of economic freedom.In the judgments studied involving issues of equality, the Justices are divided 70/30, with 70 percent of Justices deciding cases in a pro-equality fashion, as compared to 30 percent of Justices who reached anti-equality decisions.
With the announcement that Supreme Court Justice Bastarache will be retiring on June 30, 2008, the CCF has decided to release a study that will analyze and evaluate his record on cases involving both economic and fundamental freedoms. The study is co-authored by Christopher Schafer and James Armstrong McLean and will be released in June 2008.
LibertyinCanada.com is dedicated to documenting the decline of liberty in Canada. This aim will be achieved through summaries of liberticidal news, a weekly column, video clips, and readers’ posts.
The site hopes to raise people’s awareness about what Canada was and what it has become, and about the need to reclaim our traditional liberties. This site and its blog aim to create an on-line focal point where Canadians can express their concerns about our liberties and discuss related ideas. The site welcomes participation from its readers through blogs and/or submitted video. Except for the readers’ posts and the videos, the site is available in French and English.
The Liberty In Canada logo, which represents a French Canadian coureur des bois (wood runner), is borrowed from a drawing by Canadian artist C.W. Jefferys (1869-1951)."cite web
last = Jefferys
first = C.W.
title = The Picture Gallery of Canadian History, Vol. 1: Discovery to 1763
publisher = Ryerson Press
date = 1942 ]
Court Monitor Project
Activities & Events
The 2007 Future of Freedom law conference
"The Future of Freedom" Conference exposed law students and the general public to a wide range of perspectives on freedom, and provided a venue for debates about important current legal issues that are not often presented in law schools. This was accomplished through an array of 24 panellists speaking on six panels, from Friday night through Sunday morning. Each of the six panels presented diverse views, which made for lively and thought provoking debate which is often missing in law schools. Each panel was followed by a question and answer period, allowing participants to engage in the debate.
Some of the topics addressed at the conference were: The limits of government power in preserving a free and ordered socity; the role of government and the preservation of individual freedom in our post-9/11 world; the nature of private property rights and whether they should be enshrined in Canada's constitution.
Supreme Court of Canada Justice Marshall Rothstein spoke about the judicial nomination process, specificially about his experience in front of Parliamentary Committee.
Charles Fried, Harvard Law professor and former U.S. Solicitor General presented a riveting and energetic keynote speech on the Saturday evening. A prominent American jurist, Fried presented ideas in his most recent book, "Modern Liberty and the Limits of Government", while addressing the topic: "Is Liberty Possible?"
The 2008 Individual Freedom and the Common Good law conference
The Days Inn downtown Toronto has been booked for October 17-19, 2008, for the CCF’s secondannual law conference: “Individual Freedom and the Common Good – Defining Human Rights in aFree Society.”This October’s conference will have several panels, each featuring debate among speakers withdifferent views. Tentative plans for panels for this October 17-19 conference include:• Aboriginal Rights in the 21st Century: can equality and aboriginality be reconciled?• Protecting the environment through private property rights: is legislation the best solution?• Freedom of expression under attack: do human rights need to be redefined?• Equality of opportunity and equality of result: can Law resolve the conflict?
Fluent in English, French and Dutch, John Carpay earned his B.A. in Political Science from Laval University, Quebec City, and his LL.B. from the University of Calgary. He practiced law in Calgary before joining the Canadian Taxpayers Federation as Alberta Director in 2001. John served as co-counsel for the Canadian Taxpayers Federation when it intervened in Benoit v. Canada (Federal Court Trial Division, 2002; Federal Court of Appeal, 2003) to argue that race and ancestry should not be factors in taxation. In 2005, John became the Canadian Constitution Foundation’s first full-time Executive Director. In R. v. Kapp, he represented the intervener Japanese Canadian Fishermen’s Association before the Supreme Court of Canada. He is counsel for Chief Mountain and other Nisga’a plaintiffs who are challenging the Nisga’a Final Agreement legislation. John, his wife Barbra, and their three children reside in Calgary.
Board of Directors and Advisory Board
The Canadian Constitution Foundation is funded by public donations. The CCF is a registered charity with the Canada Revenue Agency.
* [http://www.canadianconstitutionfoundation.ca Canadian Constitution Foundation]
* [http://www.libertyincanada.com LibertyInCanada.com]
Constitution Act, 1867
Constitution Act, 1982
Supreme Court of Canada
Institute for Justice
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