BOOK REVIEW – “Seven Absolute Rights – Rediscovering the Historical Foundations of Canada’s Rule of Law” by Elizabeth Marshall
“All the greatest things are simple, and many can be expressed in a single word: freedom; justice; honour; duty; mercy; hope.”[1] Winston Churchill.
These words, by Winston Churchill, are words that have been an inspiration of mine for many years. Finally, after over a decade, I can say I continue to have hope, as it seems the knowledge, I have garnered, is finding its way through to Canadians and the Courts. For this I am truly thankful. This statement of “hope” has been brought on by the Annapolis ruling,[2] by the Supreme Court of Canada, and a book I just finished.
The book is Professor Ryan Alford’s “Seven Absolute Rights – Rediscovering the Historical Foundations of Canada’s Rule of Law.”
In this book are statements that I have been reciting time and time again. The book even brings forward the confirmation, from my book (Property Rights 101: An Introduction), that law schools are failing, not only their students’ understanding of law, but, all Canadians.
Some lawyers and law professors seem to be attempting to change the lack of instruction, in these halls of higher knowledge, but it isn’t and won’t be easy.
Professor Alford beings forward the many older Constitutional documents that I refer to, as in the Bill of Rights 1689, the Abolition of the Court of Star Chamber, the Petition of Right, the Settlement Act, the Coronation Oath Act, etc., etc., etc. These, he/I say, flow through the Canadian Constitution by means of the Preamble of the Constitution Act, 1867 (British North America Act, 1867 [BNA]).
His book makes reference to what he distinguishes as “non-derogable” rights. To me said rights are referred to as “inviolable rights” meaning they can never be taken away, diminished or destroyed. His “seven” rights he speaks of, in his book, are:
- Not to be subject to extrajudicial killing
- Not to be subject to emergency measures that have no legal or constitutional jurisdiction
- Not to be tortured
- Not to be subject of arbitrary detention
- Not to be subjected to cruel and unusual punishment or excessive bail
- Not to be punished for what is said in the course of parliamentary proceedings
- And to have the right to be tried by an impartial judiciary.[3]
According to Blackstone, of which Prof. Alford makes reference, “the principal [of] absolute rights” are found in our Constitution and those documents living in the Preamble of the BNA (Constitution Act, 1867), as is Canadian’s rights to the unwritten laws which also protect our rights. This includes fundamental justice.
Blackstone[4] lays out our rights as:
- The right of personal security including his right to move freely
- The right of protection of his life, limbs, his body, his health and his reputation
- The right of property including the free use, enjoyment, disposal, control, selling and buying, and not to be divested or disseised of his freehold or liberties/free customs, nor be disinherited
When reading Blackstone, though, one must also read the extensions of these rights and that these rights can only be interfered with by the judgement of one’s peers and the constitutional law of the land. Based on Prof. Alford’s book, and I will quote:
“If a reader is familiar with Blackstone’s Commentaries, the significance of this sentence will be clear; the judgment reaffirms that the features of the rule of law are not abstract ideals that take shape in the justices’ hands. If the judiciary understands these principles to be the result of a historical process in which a crisis led to a particular constitutional settlement that established a legal order that depends upon those principles, then it will recognize that the historical context and motivation of what the rights they created protect today. These judgments demonstrate that the substantive principles of Canadian rule of law first took form in this set of readily identifiable texts because of particular abuses that were then proscribed in order to establish and maintain the supremacy of the laws, the history of the attempts to subvert those principles will also be of great value when considering the scope of their contemporary application, especially in cases where governments engage in the similar types of abuses.”[5]
And as most of my research has consisted of constitutional, as well as property rights (included in constitutional research), from Prof. Alford’s book:
“The king, … only has freedom to act in a manner that is defined by the laws: his “absolute power” to act directly without legal process, is confined to a carefully circumscribed set of customary areas, but these may only be exercised when they are not “contrary to law.” The king of England rules under the country’s laws, which “are made by their [the peoples’] consent and approbation [so that they] enjoy their properties securely, and without the hazard of being deprived of them, either by the king or any other…St Thomas … wishes…that the king might not be at liberty to tyrannize over his people, which only comes to pass in the present case, that is, when the sovereign power is restrained by political laws.”[6]
Some, in the legal community and in parliament, feel that in the name of the “common good,” or “public good” other’s rights should be removed. What has been lacking is the knowledge that to advocate for other’s rights to be removed; rights protected by our constitution, is to tell government, those who are advocating for other right’s to be removed, that they also want their constitutional rights to be removed. As Blackstone states: “Besides, the public good is in nothing more essentially interested, than in the protection of every individual’s private rights…”
All in all, I give Prof. Ryan Alford’s book a 5 star review and it is hoped that Canadians – all Canadians, will obtain a copy of it to support their own, as well as all other Canadian’s rights.
“All the greatest things are simple, and many can be expressed in a single word: freedom; justice; honour; duty; mercy; hope.”[7] Winston Churchill
[1] https://www.historic-uk.com/Blog/Winston-Churchill-Top-12-Quotes/#:~:text=%E2%80%9CAll%20the%20greatest%20things%20are,duty%3B%20mercy%3B%20hope.%E2%80%9D
[2] Annapolis Group Inc. v. Halifax Regional Municipality, 2022 SCC 36 (CanLII)
[3] “Seven Absolute Rights – Rediscovering the Historical Foundations of Canada’s Rule of Law,” p. xv Preface.
[4] https://ia800207.us.archive.org/31/items/commentariesonla01blacuoft/commentariesonla01blacuoft.pdf
[5] “Seven Absolute Rights – Rediscovering the Historical Foundations of Canada’s Rule of Law,” p. 63.
[6] “Seven Absolute Rights – Rediscovering the Historical Foundations of Canada’s Rule of Law,” p. 97.
[7] https://www.historic-uk.com/Blog/Winston-Churchill-Top-12-Quotes/#:~:text=%E2%80%9CAll%20the%20greatest%20things%20are,duty%3B%20mercy%3B%20hope.%E2%80%9D
