“Protecting the constitutional freedoms of Canadians through education, communication and litigation.” 2006 Annual Report 2 Table of Contents A voice for freedom in Canada’s courtrooms . 4 Activists should turn to courts to protect individual freedoms . 6 Issues, activities and events . 7 Chaoulli comes to Alberta . 8 Freedom of choice in health care . 9 Dissident Nisga’a clears hurdle . 10 The Nisga’a Agreement is unconstitutional . 11 Provinces fight to keep illegal tax . 12 Summary of media interviews in 2006 . 13 A welcome break for taxpayers . 14 Justice for all . 15 John Carpay, Executive Director of the Canadian Constitution Foundation, addresses the House of Commons Standing Committee on Canadian Heritage, December 11, 2006, regarding taxpayer funding of the Court Challenges Program. 3 A Voice for Freedom in Canada’s Courtrooms The Canadian Constitution Foundation is a registered charity, independent and non-partisan, with a unique charter which allows it to fund appropriate litigation. We rely on donations to carry out our educational and charitable work, and issue tax receipts for donations received. Our registered charitable number with the Canada Revenue Agency is 86617 6654 RR0001. Our Mission We protect the constitutional freedoms of Canadians through education, communication and litigation. Our Vision 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. Our litigation priorities Through communication, education, and litigation, the Foundation supports: • Individual freedom – the “fundamental freedoms” in section 2 of the Charter: 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 for none. 4 Our guiding principles for carrying out our mission • Frugality: We expend donors’ funds in the most effective manner. • Political neutrality: We are non-partisan. • Honesty: We subscribe to the highest level of probity and sincerity in our words and actions. • Optimism: We strive to maintain a positive outlook. • Competence: We strive to carry out our work at the highest professional standard Our Board of Directors and Advisory Board The Directors on our governing Board are West Vancouver businessman Claus Jensen (Chairman), Simon Fraser University criminology professor Ehor Boyanowsky, Vancouver law- yer Daniel Burns, Vancouver family physician Will Johnston, Vancouver businessman Mark Mitchell, National Post editorial board member Marni Soupcoff, Calgary community volunteer Monique Beaumont, and Ottawa lawyer Christopher Schafer. Our Advisory Board members are Toronto lawyer Avril Allen, Western Standard publisher Ezra Levant in Calgary, and Eugene Meehan, Q.C., head of the Supreme Court Advocacy Group at Lang Michener, Ottawa. Special thanks to all of our Donors The Canadian Constitution Foundation is grateful for all donations received, regardless of the amount. We respect the privacy of donors, and provide public recognition only with their con- sent. The following individuals, foundations and businesses each donated $1,000 or more in the past year: Paul Einarsson Mark Mitchell Dr. Kenneth Hilborn Sarah Mitchell Richard Holbrook Gwyn Morgan Dr. Will Johnston Roger Phillips Gerald McKay Marni Soupcoff Jane McKay Dr. Michael Walker Atlas Economic Research Foundation Aurea Foundation Our special thanks to Barbara McIsaac and Donner Canadian Foundation Howard Fohr of the Ottawa office of John & Lotte Hecht Memorial Foundation McCarthy Tetrault, which represented the Ca- nadian Constitution Foundation pro bono as Lansdowne Equity Ventures Ltd. we intervened on behalf of taxpayers before Pirie Foundation the Supreme Court of Canada in Kingstreet Investments v. New Brunswick, an important W. Garfield Weston Foundation constitutional case involving illegal taxation. 5 Activists should turn to courts to protect individual freedoms By John Carpay rights, economic liberty, freedom of speech, commercial Montreal Gazette, Monday March 6, 2006 freedom, racial equality, and the right of parents to raise their children free from state interference. Advancing this libertar- In view of how powerful the nine lawyers on Canada’s high- ian philosophy, the Institute recently won a victory for est court are, the recent appointment of Marshall Rothstein Lillian Anderson to earn a living by braiding hair. The Min- should have earned far more media coverage than it did. nesota Cosmetology Board had shut down Ms. Anderson’s And the questions put to Mr. Rothstein by M.P.s, prior to his clean, professional hair-braiding salon because she had not elevation to the Supreme Court, should have been far more taken 1,550 hours of cosmetology training. Ironically, this probing. cosmetology training teaches nothing about hair braiding, while costing up to $14,500 in tuition. The Institute sued the Most Canadians don’t yet appreciate the full impact of the Cosmetology Board, which then agreed to change its rules Canadian Charter of Rights and Freedoms that was added to and policies. our constitution in 1982. Canada abandoned its Parliamen- tary democracy for an American model of “constitutional In Canada, judicial advocacy has been dominated by tax- democracy,” in which non-elected judges exercise substan- payer-funded left-wing groups like the radical feminist Legal tial legislative power. Before 1982, Canada’s Parliament and and Education Action Fund (LEAF). The Secretary of State provincial legislatures were sovereign; activism in the de- and the Court Challenges Program have given millions of tax mocratic political arena was the only way to bring about pol- dollars to special interest groups to advance their political icy change. But now Canadian judges -- like their U.S. agendas through Canada’s courts. LEAF and other groups counterparts -- play a very active role in shaping public pol- have argued that the Charter’s section 15 equality rights do icy on complex issues like abortion, the rights of criminals, not mean that the law must be applied equally to all people the definition of marriage, and the scope of health care and regardless of race, age, gender and other factors. Courts have other government programs. gradually adopted the view that section 15 equality rights should mean equality of condition, or equal outcomes, to the The Americans have had their constitutional democracy for detriment of individual freedom and true equality before the over 200 years, so they know that court decisions are inher- law. ently, necessarily and unavoidably political. For example, in the 1857 Dred Scott decision the U.S. Supreme Court upheld However, last year’s Chaoulli decision by the Supreme Court slavery, ruling that the abolition of slavery violates the prop- of Canada on health care is a welcome sign that litigation on erty rights of white men. Those who think that judges are matters of public policy need not always favour a philosophy more enlightened than elected representatives should con- of larger government at the expense of individual freedom. sider the words of Chief Justice Taney, who described blacks In striking down Quebec’s law which prohibited the purchase as “beings of an inferior order, and altogether unfit to associ- of private medical insurance, the court noted that access to a ate with the white race, either in social or political relations; waiting list is not access to health care, and that waiting lists and so far inferior that they have no rights which the white cause irreparable physical harm and even death. While not man is bound to respect.” expressly affirming property rights or other economic liber- ties, the court provided a positive outcome by ruling that a It is because Americans recognize that their judges do, in rigid government monopoly violates the Charter’s section 7 fact, exert vast political power that the President’s nominee right to life, liberty and security of the person. is subjected to questioning by Senators, who have the power to reject that nominee. In Canada, the very political process Looking to the Institute for Justice as a model, the Canadian of appointing judges still takes place behind the closed doors Constitution Foundation plans to build on the Chaoulli deci- of the Prime Minister’s office, without transparency or ac- sion by challenging repressive health care laws in other prov- countability. inces, as well as other laws which run counter to individual freedom, property rights, and economic liberty. In a constitu- In recognizing the courts’ power to shape public policy, tional democracy, where judges wield real power over public Americans have also created numerous legal foundations, policy, those who cherish individual freedom cannot afford which advocate philosophies from across the political spec- to remain silent in court. trum. For example, the Institute for Justice in Washington,