Monday, April 19, 2010

Is Canada Free?

A few weeks ago, there was much noise about the fact that in one dataset, the US was considered a bit less free economically than Canada.  I, of course, scoffed since I live in Quebec, where the heavy hand of the state is always on the wheel, much more so than anywhere in the US.  But that got me to thinking, especially as debates have flared up about niqabs and English private schools: does the notwithstanding clause mean that Canada is only mostly free or partly free?

Canada does have the Charter of Rights and Freedoms, which guarantees
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.

 This also includes legal rights to life, liberty, security, due process, equality under the law, and so forth.
It goes on to guarantee language rights:

Official languages of Canada
16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.
Language of instruction
23. (1) Citizens of Canada
(a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or
(b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province,
have the right to have their children receive primary and secondary school instruction in that language in that province. (footnote indicates not in force in Quebec). 
 At first, I noticed that it specifies citizens, but the restrictions on language education in Quebec apply even to immigrants who become citizens.  And there is the kicker--the footnote saying this does not apply in Quebec.

To be clear, I am not a Canadianist or a constitutional scholar, but it seems mighty strange that a charter of fundamental freedoms provides the national parliament or any provincial assembly to say: nope, not for us.  There are limits--that the notwithstanding invocation only lasts five years.  Then the assembly or parliament would have to vote again.  But these votes are simple majorities.  So, as long as a minority is permanently a minority, their rights exist to a large degree at the whim of the majority. 

This leads to me the conclusion that this Charter (unless I am confused, that the notwithstanding clause can only be applied to part of it?) is just a piece of paper.  If the government can pass restrictions on rights, such as the right to wear religious garb, with a simple majority, then does freedom of religion really exist?  If one cannot choose the language of instruction for one's children from one of the two official languages but is forced to educate the child in one, does this right exist?  Not in Quebec.  

I understand that the politics of past constitutional crises have produce compromises that perhaps have allowed Canada to remain united.  But the cost has been a certain amount of freedoms and rights.  So, I guess Canada is mostly free. 


quinn said...

There's one major facet to the notwithstanding clause that seems to be missing from your commentary: the norms against using it. Even though it's formally quite easy to use, only requiring a majority vote, provincial legislatures have generally avoided using it. Quebec is the major offender, largely because it didn't support the 1982 constitutional reforms and because of the massive popular support for the language laws. The Charter has a high enough degree of respect (particularly outside of Quebec) that appearing to use the notwithstanding clause to support a breach of what Canadians tend to perceive as fairly fundamental rights is extremely politically difficult. Indeed, when provinces do use it, it's often because the right involved isn't seen as fundamental (or sometimes even a right) - for example, English use in Quebec. I don't particularly like the notwithstanding clause, and I would be happy to see it gone, but in practice provinces generally don't use it.

You're right that the notwithstanding clause only applies to part of the Charter. "33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15."

(I'm a former POLI 244 student and a McGill honours political science student, by the way.)

Sam said...

Let's be careful here. It isn't the notwithstanding clause that makes 23(1)a not in force in Quebec. This specific section of the Charter is accompanied by Section 59 of the Constitution Act (1982) that specifies that 23(1)a will come into force when the Quebec national assembly authorizes it, basically.

The notwithstanding clause is historically associated with Quebec, but it has not been used since 1993. You could say that Section 59 is effectively an indefinite notwithstanding clause, but it is not the notwithstanding clause we commonly refer to. Broadly understood, the Canadian constitution protects the current status of education in Quebec by virtue of Section 59 of the Constitution Act. This reflects that to date, the current version of Bill 101 has not been ruled unconstitutional.

With regard to this specific context (language of education in Quebec), the issue of freedom is not related to the notwithstanding clause but to the relative "freedom" of having a constitution that explicitly allows sections of its bill of rights to be ignored in certain jurisdictions on the basis of cultural and linguistic differences.

Anonymous said...

I'd add to the above comments that although in the Canadian context minority education rights are certainly fundamental, they are not in any sense something that would be included in a universal definition of a "free society."

If they were, then it is hard to see why we should stop at English and French, and not also guarantee a right to a publicly-funded Italian-language education, for example.

As an English Quebecer, I would ultimately like to see Section 23(1)(a) of the Charter applied in Quebec. However, as long as the position of the French language remains vulnerable, I do not necessarily see it as an injustice that it is not applied.

French is a minority language in Canada, and is not directly comparable to English in other provinces for that reason. Certainly, French is not endangered in Quebec. But it is still somewhat vulnerable; it is still the case that Quebec francophones need to work in English unreasonably often given their numbers (over 80%). Which way that evolves will be determined in large part by the linguistic choices of immigrants and their descendants, and this is a legitimate concern for the Quebec legislature.

My contention that strong legislative measures in favour of French in Quebec are permissible even though francophones constitute a majority in the province is supported somewhat by a ruling of the UN Human Rights Committee (in Ballantyne, Davidson, McIntyre v. Canada) that, whereas francophones in Quebec are entitled to protection as a linguistic minority under Article 27 of the International Covenant on Civil and Political Rights, English-speaking Quebecers are not entitled to that protection, since they belong to the majority group within Canada.

There is a certain logic here, in that a federally-structured state is a sensible adaptation to allow a minority concentrated in one area of a country to promote its culture. It would be self-defeating to then remove the tools necessary to pursue that promotion from the the minority-controlled federal entity, simply by virtue of the fact that the (national) minority culture forms a majority within the entity's territory.

And the asymmetry between the situations of francophones outside Quebec and anglophones in Quebec bears this out.

Essentially, most of the rights of the anglophone minority in Quebec can't necessarily be characterized as human rights in a universal sense. Rather, they are the result of a specifically Canadian political process.