Mark Steyn responds to former blogger Jason Cherniak about the free speech rights of Canadians:
You claim that the legal right to free speech “did not exist as a legal right before 1982”. This is bollocks de facto and de jure. When you say with all the blithe insouciance of a Dalhousie Law School alumnus that any right to free speech was “only respected by convention”, my response is what do you think the entire Canadian legal inheritance is, genius? It’s “convention”. That’s what the definition of Common Law is: a body of precedent, understandings of inherent authority — ie, “convention”. When Julian Porter, QC filed a motion objecting to the Canadian “Human Rights” Tribunal’s “secret trial”, he cited CBC vs New Brunswick, Ambard vs Attorney-General of Trinidad and Tobago – in other words, the accumulation of precedent, or, in your words, a respect for convention.
England, the mother of Common Law, has no written consititution, and thus no “constitutional rights” at all, but only “conventions”. Those “conventions” were the underpinning of the 1867 British North America Act and, more broadly, the third of a millennium of Canadian legal history before the Charter of Worthless Crap. As Blackstone put it, for lands “planted by English subjects”, “all the English laws then in being, which are the birthright of every subject, are immediately there in force”. In other words, long before 1982, free speech was a Canadian’s “birthright” — through convention. It’s all convention. In the English legal tradition, take away convention, and what’s left?
That’s why more countries have lived in liberty longer under Common Law than any other legal inheritance. Because what you dismiss as mere “convention” is, in fact, an understanding that “law” and laws are not the same thing. It’s not about the government writing down on a piece of paper everything that it will permit you, Jason the Barrister, to do. “Rights” are not those things granted by the sovereign and enumerated in statute, but the precise opposite: They’re restraints upon the sovereign. They’re not about what the state allows you to do, but about what the state is not allowed to do to you. The English legal tradition is imperfect (as all systems are) but it has been a better protector of this principle than any other. What part of that don’t you understand?
All of it, apparently. Because along comes that puffed up poseur Trudeau with all his modish contempt for the Canadian inheritance and he decides that, like you, he’s not big on convention and precedent and he’d rather have everything written down, all nice and “codified”. So now we have your 1982 Charter that, for the first time since Magna Carta, gives citizens what you call a “legal right” to free speech. And whaddaya know? Ever since we got a Trudeaupian “legal right” to it, there’s been less and less free speech than back in the bad old days when (according to you) we had no “legal right” to it at all. Ask yourself this, “Barrister and Solicitor”: Had Guy Earle delivered his lesbophobic putdowns at a Canadian comedy club in 1981, would he have had more or less “legal right” to free speech than he enjoys today?
I said in my post that, for you and yours, Trudeau is Year Zero. Your response confirms it. That a Canadian lawyer is willing to argue that a long, established, settled legal inheritance means nothing unless Father Pierre writes it down in his Napeoleonic Complex Code is bleak confirmation of how thoroughly he vacuumed Canada’s past — and, in doing so, perverted the very idea of what “rights” are. If yours is a typical Canadian lawyer’s view of the law, it certainly explains a lot. God help us all.
