Response To: Motion To Strike Challenge To UN Parliament


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Below is a “cut-and-paste” of what was sent to the Federal Court of Canada (Case: T-476-19). Pardon any formatting issues that may arise in converting this.

TABLE OF CONTENTS

Cover Page
Table of Contents
Written Representations
Part I:
Part II: Facts
Part III: Law and Cases
Part IV: Order Sought
Part V: Authorities Cited
Draft Order

Part I: Issues

(1) Four issues for the Federal Court to consider:
(a) Does the Applicant have a legitimate ground to bring application?
(b) Does the Federal Court have jurisdiction to hear the matter?
(c) Would the proposed UN Parliament, if it ever became a reality, violate constitutional rights? With its “legally binding decisions”?
(d) Does the Respondent have a legitimate right to sign on to such an agreement without the consent of the public?

(2) Applicant submits the answers as follows: (1) YES; (2) YES; (3) YES; (4) NO.

Part II: Facts

(3)The Applicant is a Canadian citizen. She is seeking an injunction against Canada participating in such a UN Parliament/World Government (UNPA) if ever being enacted.

(4) Although such a World Government/UN Parliament is not yet a reality, dozens of current Members of Parliament and Senators have endorsed the idea in writing. This includes the Prime Minister. This has been formally discussed since 2007, and informally
for long before that. The UNPA explicitly states it want to make “legally binding decisions”.

(5) The Respondent makes a “straw-man argument” claiming that endorsements are not violations of a person’s rights. While this is true, they should be seen as intent and interest to do so. No one ever claimed endorsements alone were violations.

(6) In the motion, the Government raised a “justification” defense, (prerogative power). As such, it is reasonable to also ask for a writ of quo warranto, to demand a full and complete defense be raised as to the legality and constitutionality of such an action

(7) It is submitted that she has public-interest standing, aka “the Standing trilogy”: Thorson v. Attorney General of Canada, Nova Scotia Board of Censors v. McNeil, and Minister of Justice v. Borowski. The trilogy was summarized as follows in Canadian Council of
Churches v. Canada (Minister of Employment and Immigration):

(8) Public-interest standing is also available in non-constitutional cases, as the Court found in Finlay v. Canada (Minister of Finance)

(9) The Federal Court has jurisdiction under 18(1) of the Federal Courts Act to issue an injunction or writ of quo warranto. Furthermore, the Federal Court (under Rule 25) has original jurisdiction if no other court is designated as such. Since no person can be named (under 302 of Federal Court Rules), the Attorney General of Canada shall be named.

(10) The Federal Court also has jurisdiction (under Rule 18.4(2)), to treat the application as an action.

(11) The Federal Court has the powers (under 47(1) and 53(1) and (2) of Federal Courts Rules), to ask with a wide degree of discretion and to make orders it views as just.

(12) The Applicant raises several sections of the Constitution and Charter (2, 3, 32, 35, 38, 52, 91 and 92) as grounds for an injunction, or alternatively, a writ of quo warranto. Quite simply, these provisions are protection for myself and all Canadians.

(13) Our fundamental freedoms (section 2), and right to participate in our democracy (section 3), are rights Canadians take for granted. They must be protected. However, if Canada were to become part of a UN Parliament/World Government, how would we
ensure the protection of those rights? Could they not be watered down under a “global consensus”?

(14) Section 35 refers to protection of Aboriginal rights. Yes, “Canada” has ensured to protect them. But how would we do so if Canada ceases to be a nation, and became a province of the UN?

(15) Sections 91 and 92 lay out Federal v.s. Provincial jurisdictions. This is important as it holds our governments accountable. If governments do things which are in violation (Ultra vires), or against Canadians’ wishes, we can vote them out. We can hold our politicians accountable as a nation. How would we as part of the UN Parliament/World Government?

(16) Section 52 (paramountcy) gives Canadians protection as it ensures that the Canadian Constitution is supreme law. We will not be subjected to just any laws. And Section 38 (amending), ensures stability by requiring substantial consent in order to amend. This is
another safeguard for Canadians. Would these safeguards still exist under a UN Parliament/World Government?

(17) The Government claims that no argument was ever raised to support or justify the claims. This is disingenuous, since only the Notice of Application had been sent.

(18) The Government raises “prerogative power” as a justification to implement such a policy, calling it a “treaty”. It dismisses the need for the safeguards and protections listed above. Furthermore, the Government says that since such a UN Parliament/World
Government is not here yet, there is no need for the Court to entertain the matter.

(19) The Applicant submits that prerogative power does not apply here, and that there is a public interest concern in hearing the matter well in advance of any signing. This is especially true, with the “legally-binding decisions” format of it.

(20) As an analogous case, the Applicant suggests that the European Union (EU) and the British Exit from it (Brexit) should be considered.

Part III: Law and Cases

(21) The Applicant has standing to make just an application under the “Public-Interest Standing” doctrine.

Public interest standing
The Supreme Court of Canada developed the concept of public interest standing in three constitutional cases commonly called “the Standing trilogy”: Thorson v. Attorney General of Canada, Nova Scotia Board of Censors v. McNeil, and Minister of Justice v. Borowski. The trilogy was summarized as follows in Canadian Council of Churches v. Canada (Minister of Employment and Immigration):

It has been seen that when public interest standing is sought, consideration must be given to three aspects. First, is there a serious issue raised as to the invalidity of legislation in question? Second, has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity? Third, is there another reasonable and effective way to bring the issue before the court?
Public-interest standing is also available in non-constitutional cases, as the Court found in
Finlay v. Canada (Minister of Finance)

First, yes, there are serious issues raised as the invalidity (see below)
Second, yes, as a Canadian citizen, my rights would directly be influenced by the UNPA,
and certainly I have a genuine interest.
Third, no, there doesn’t seem to be another effective or reasonable way to bring the issue
before the court.

Substantial Consent required (section 38)
(22) This was decided regarding the issue of changing the Senate rules (Reference re Senate Reform, [2014] 1 SCR 704, 2014 SCC 32 (CanLII) (S38). The Court cited the amending procedure.

(a) The General Amending Procedure Section 38 of the Constitution Act, 1982 provides: 38. (1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by (a) resolutions of the Senate and House of Commons; and (b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces. (2) An amendment made under subsection (1) that derogates from the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a province shall require a resolution supported by a majority of the members of each of the Senate, the House of Commons and the legislative assemblies required under subsection (1). (3) An amendment referred to in subsection (2) shall not have effect in a province the legislative assembly of which has expressed its dissent thereto by resolution supported by a majority of its members prior to the issue of the proclamation to which the amendment relates unless that legislative assembly, subsequently, by resolution supported by a majority of its members, revokes its dissent and authorizes the amendment. (4) A resolution of dissent made for the purposes of subsection (3) may be revoked at any time before or after the issue of the proclamation to which it relates.

[34] The process set out in s. 38 is the general rule for amendments to the Constitution of Canada. It reflects the principle that substantial provincial consent must be obtained for constitutional change that engages provincial interests. Section 38 codifies what is colloquially referred to as the “7/50” procedure — amendments to the Constitution of Canada must be authorized by resolutions of the Senate, the House of Commons, and legislative assemblies of at least seven provinces whose population represents, in the aggregate, at least half of the current population of all the provinces. Additionally, it grants to the provinces the right to “opt out” of constitutional amendments that derogate from “the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a province”.

(23) What this means is that to make a huge decision and alter the constitution, there must be substantial consent. This means at least 7 of 10 provinces, whose combined populations make up at least 50% of the population.

(24) While this is relevant to Senate reform (ie. Term limits and direct elections), it would certainly be more so in creating an extra layer of government, which would be able – in theory at least – to override Federal rulings.

The Constitution is Canada’s Supreme Law (Section 52)
(25) From (Sibbeston v. Canada (Attorney-General), 1988 CanLII 5673 (NWT CA))

They include the political reality that it is the people of Canada, expressing their political will through the joint constitutional authority of the Parliament of Canada and the elected legislative assemblies of the provinces, who are sovereign in the delineation of federal-provincial power-sharing under the Constitution of Canada. Beyond that no segment of the Constitution of Canada, including the Canadian Charter of Rights and Freedoms, is paramount to other segments, or indeed the balance, of the Constitution. The Constitution “as a whole” is Canada’s supreme law.

[7] Section 52 of the Constitution Act, 1982, provides: 52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. (2) The Constitution of Canada includes (a) the Canada Act, 1982, including this Act; (b) the Acts and orders referred to in the schedule; and (c) any amendment to any Act or order referred to in paragraph (a) or (b). (3) Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada.

[8] Section 52 espouses the equality of its components including amendments. Charter scrutiny could not have been reserved by its drafters: Reference re an Act to Amend the Education Act (Ontario) (1987), 1987 CanLII 65 (SCC), 40 D.L.R. (4th) 18, [1987] 1 S.C.R. 1148, 77 N.R. 241.

[9] The Constitution Act, 1982, also provides: Application of Charter 32(1) This Charter applies (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

(26) Section 52 of the Constitution enshrines the Constitution as the Supreme law of Canada. Section 38 does have an “amending” process, though it is a high burden to meet. These protection are important, as they ensure that we, as Canadians will actually be
protected by the Constitution.

(27) If we became part of a UN Parliament, then how (or will) the Constitution be able to protect the rights of Canadians?

Restricting Fundamental Freedoms (Section 2)
(28) From Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927, 1989 CanLII 87 (SCC)

C.The Second Step: Was the Purpose or Effect of the Government Action to Restrict Freedom of Expression? Having found that the plaintiff’s activity does fall within the scope of guaranteed free expression, it must next be determined whether the purpose or effect of the impugned governmental action was to control attempts to convey meaning through that activity. The importance of focussing at this stage on the purpose and effect of the legislation is nowhere more clearly stated than in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at pp. 331-32 where Dickson J. (as he then was), speaking for the majority, observed:

In my view, both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realized through the impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation’s object and its ultimate impact, are clearly linked, if not indivisible. Intended and actual effects have often been looked to for guidance in assessing the legislation’s object and thus, its validity.

Moreover, consideration of the object of legislation is vital if rights are to be fully protected. The assessment by the courts of legislative purpose focuses scrutiny upon the aims and objectives of the legislature and ensures they are consonant with the guarantees enshrined in the Charter. The declaration that certain objects lie outside the legislature’s power checks governmental action at the first stage of unconstitutional conduct. Further, it will provide more ready and more vigorous protection of constitutional rights by obviating the individual litigant’s need to prove effects violative of Charter rights. It will also allow courts to dispose of cases where the object is clearly improper, without inquiring into the legislation’s actual impact.

(29) How can we ensure that Canadians’ fundamental freedoms are protected? Canada ensures its citizens some of the most expansive civil rights of any nation. But if Canada becomes just 1 of 193 member states, how can we guarantee those rights will be protected?
What safeguards will be put in place?

(30) Rather than shrugging it off as “covered by prerogative power”, the Government should be answering these vitally important questions.

Ensuring the Right to Participate in Democracy (Section 3)
(31) (Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912), this principle was affirmed conclusively.

27 An understanding of s. 3 that emphasizes the right of each citizen to play a meaningful role in the electoral process also is sensitive to the full range of reasons that individual participation in the electoral process is of such importance in a free and democratic society. As Dickson C.J. wrote in R. v. Oakes, [1986] 1 S.C.R. 103, at p. 136: The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.

(32) The Court held that being able to participate in democratic process was worth protecting. How can we maintain this protection if Canada signed on to the proposed UN Parliament/World Government? If ensuring democratic involvement and meaningful participation is tricky now, how would this help things?

UN Parliament Would Trample on Indigenous Rights (Section 35)
(33) From the case: Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR
511, 2004 SCC 73 (CanLII), the issue of duty to consult to brought up.

26 Honourable negotiation implies a duty to consult with Aboriginal claimants and conclude an honourable agreement reflecting the claimants’ inherent rights. But proving rights may take time, sometimes a very long time. In the meantime, how are the interests under discussion to be treated? Underlying this question is the need to reconcile prior Aboriginal occupation of the land with the reality of Crown sovereignty. Is the Crown, under the aegis of its asserted sovereignty, entitled to use the resources at issue as it chooses, pending proof and resolution of the Aboriginal claim? Or must it adjust its conduct to reflect the as yet unresolved rights claimed by the Aboriginal claimants?

27 The answer, once again, lies in the honour of the Crown. The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. It must respect these potential, but yet unproven, interests.

(34) This case referred to land use and resource development. However, the Court should not conclude that adding a level of government would be LESS important.

(35) The case of Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 SCR 550, 2004 SCC 74 (CanLII), should also be considered, and for much the same principle.

25 As discussed in Haida, what the honour of the Crown requires varies with the circumstances. It may require the Crown to consult with and accommodate Aboriginal peoples prior to taking decisions: R. v. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 S.C.R. 1075, at p. 1119; R. v. Nikal, 1996 CanLII 245 (SCC), [1996] 1 S.C.R. 1013; R. v. Gladstone, 1996 CanLII 160 (SCC), [1996] 2 S.C.R. 723; Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 S.C.R. 1010, at para. 168. The obligation to consult does not arise only upon proof of an Aboriginal claim, in order to justify infringement. That understanding of consultation would deny the significance of the historical roots of the honour of the Crown, and deprive it of its role in the reconciliation process. Although determining the required extent of consultation and accommodation before a final settlement is challenging, it is essential to the process mandated by s. 35(1). The duty to consult arises when a Crown actor has knowledge, real or constructive, of the potential existence of Aboriginal rights or title and contemplates conduct that might adversely affect them. This in turn may lead to a duty to change government plans or policy to accommodate Aboriginal concerns. Responsiveness is a key requirement of both consultation and accommodation.

(36) Managing these rights is tricky enough just within Canada. However, no Indigenous group ever signed onto the proposed UN Parliament/World-Government. So how could the Federal Government claim with any sincerity that there would no violations of the “duty to consult”?

(37) To repeat, although the UN Parliament is still just a proposal at this point, there are many serious and legitmate questions that need answering. Simply saying “prerogative power let’s us do it” shirks the Feds’ responsibilities.

(38) Also, the claim is made that the Executive Branch is allowed to sign treaties. However this would conflict with another treaty, the UN Declaration on the Rights of Indigenous Peoples (UN DRIP).

Consider the 2000 Clarity Act and Reference Question
(39) The Applicant submits that the reference questions regarding Quebec separation would also apply to Canada being taken over by the United Nations Parliament/World Government

( Reference re Secession of Quebec, [1998] 2 SCR 217, 1998 CanLII 793 (SCC))
The Court in this Reference is required to consider whether Quebec has a right to unilateral secession. Arguments in support of the existence of such a right were primarily based on the principle of democracy. Democracy, however, means more than simple majority rule. Constitutional jurisprudence shows that democracy exists in the larger context of other constitutional values. Since Confederation, the people of the provinces and territories have created close ties of interdependence (economic, social, political and cultural) based on shared values that include federalism, democracy, constitutionalism and the rule of law, and respect for minorities. A democratic decision of Quebecers in favour of secession would put those relationships at risk. The Constitution vouchsafes order and stability, and accordingly secession of a province “under the Constitution” could not be achieved unilaterally, that is, without principled negotiation with other participants in Confederation within the existing constitutional framework. Our democratic institutions necessarily accommodate a continuous process of discussion and evolution, which is reflected in the constitutional right of each participant in the federation to initiate constitutional change. This right implies a reciprocal duty on the other participants to engage in discussions to address any legitimate initiative to change the constitutional order. A clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize.

(40) Yes these discussions do need to be had. However, to repeat, the Government of Canada says it is its right to unilaterally sign Canada over to the UN Parliament if it ever became operational. Surely there has to be something more than just that.

Consider Brexit as a Warning
(41) The European Union started in 1973 as a free trade zone between 6 countries (France, West Germany, Italy, Belgium, Luxembourg, Netherlands).

(42) Today it is 28 members are controls nations: trade, immigration, budgeting, commerce, farm subsidies, borders and many other categories. It can also (in the cases of Hungary and Poland), strip member’s voting rights for not towing the line. All of this was accomplished with no democratic referendum. Today, the hierarchy of the EU are unelected bureaucrats accountable to no nations’ voters.

(43) In fact the only democratic referendum was in 2016, where the UK voted to leave, (Brexit). However, the EU acting in bad faith, and the UK Government’s complicity has led to delay after delay.

(44) It is not unreasonable for Canada to find itself in such a situation, where even if the majority voted to leave the UN Parliament, we would be prevented from doing so.

Summary
(45) The Applicant has public interest standing to raise such an application.

(46) In the event there are irregularities, the Court has wide discretion to order amendments to rectify them. Fixable errors should not be grounds for denying justice to self-represented litigants (Pintea v. Johns, SCC 2017).

(47) There is a legitmate public interest in preventing Canada from joining such a world government (injunction), or at least deciding on a minimum standard, or forcing the Government to explain itself (writ of quo warranto).

(48) Furthermore, there is a public interest in bringing the issue to the Court well ahead of any such signing.

(49) If Canada ever joined such a World Government, there are very legitimate questions and concerns about how the Constitutional protections listed above would be enforced.

(50) The Government of Canada cannot simply run roughshod over Canadians by calling this a “treaty” and signing away their Constitutional rights. There has to be some checks and balances. Additionally, it would conflict with other treaties signed with the NATION of Canada as a party.

(51) Endorsements are not violations of rights (nice strawman), but evidence of intent.

(52) Even if joining the UN Parliament/World Government were a treaty, would we not be violating “other” treaties, which were formed as the NATION of Canada?

(Mental Gymnastics At Play….. )

(53) If the Supreme Court (Harper Re: Senate Reform) stated that unanimous consent of all Provinces was needed to abolish the Senate, then how could the Government justifying effectively eliminating the Legislature altogether, via UN Parliament with 1 signature?

(54) If the Supreme Court (Re: Seccessation of Quebec) stated that a clear majority of the population needed to vote for it, via referendum, why wouldn’t the people of Canada be called on to make an even bigger decision, to dismantle Canada?

Part IV: Remedies/Order

(a) Dismiss the motion

Alternatively,
(b) Allow the matter to proceed as a Claim, or as the Court deems appropriate

Alternatively,
(c) Grant an injunction, or writ of quo warranto against the Government

Alternatively,
(d) Establish a standard necessary for Canada to join such a World Government with
the following requirements:
(I) Approval from the Federal House of Commons
(II) Approval from the Canadian Senate
(III) Signature of the Prime Minister
(IV) Endorsement from the Governor General
(V) Consent from 7 of 10 Provinces with 50%+ of population
(VI) A national referendum, with 75%+ approval

And in all cases, the Applicant encourages guidance on the matter from the court
Sincerely,


(E-Signature of Party)
(Applicant/Respondent in Motion)
May 2, 2019

Part V: Authorities

(1) Reference re Senate Reform, [2014] 1 SCR 704, 2014 SCC 32 (CanLII) (S38)

(2) Reference re Secession of Quebec, [1998] 2 SCR 217, 1998 CanLII 793 (SCC)

(3) Sibbeston v. Canada (Attorney-General), 1988 CanLII 5673 (NWT CA) (S52)

(4) Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927, 1989 CanLII 87 (SCC) (S2)

(5) Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912 (S3)

(6) Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR 511, 2004 SCC 73 (CanLII) (S35)

(7) Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 SCR 550, 2004 SCC 74 (CanLII) (S35)

(8) Canadian Council of Churches v. Canada (Minister of Employment and Immigration),
[1992] 1 SCR 236, 1992 CanLII 116 (SCC)

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