I provoked some folks yesterday by suggesting that Canada's Charter of Rights and Freedoms is pretty weak, given the ability of Parliament and of provinces to opt out by using the Notwithstanding clause.
The comments indicated that there are norms not to over-use it, that it does not protect the language stuff I mentioned since Quebec has the right to do what it pleases in this area, and that protection of culture/language trumps individual rights.
My problem is not so much with what has happened but with what can happen. Norms are fragile reeds on which to base one's confidence in the political system. I tend to look to institutions and incentives. And that is where the problem lies/lays/resides. Institutions already privilege the state's rights to impose upon individuals, despite language in the rest of the Charter suggesting otherwise. Incentives exist that make recourse to notwithstanding clause a temptation to politicians and a threat to political minorities (those folks who cannot win majorities, whether it is due to ideology, language, race, or whatever).
Let me speak to incentives. Canada and Quebec have first-past-the-post electoral systems, where pluralities of votes are turned into majorities. This has not happened at the national level for a while, as the existence of a regional voting bloc (the Bloc Quebecois) upsets the math. This empowers Quebec in a variety of ways at the national level, particularly given that a party can only gain a majority in the Parliament (for now) if it is able to gain enough seats in Quebec at the expense of the BQ and the other parties. So, because of this and because of the ongoing tensions, Quebec can do pretty much what it wants. That is an exaggeration perhaps, and, again I am not a Canadianist or a constitutional scholar, but I am a scholar of ethnic conflict.
Anyhow, what is really important for me is that within Quebec, it is essentially once again a two party system where the two compete for 90% of the vote (the other 10% are Anglophones who have no place else go politically other than the Provincial Liberals)* and, by the way, the voting districts are designed to marginalize Montreal. So, whichever party gets enough francophone votes wins a majority of seats, and given the various institutions in play, this gives that majority party a great deal of power, including the ability to legislate against the interests and perhaps rights of minorities. This looks a whole lot like ethnic outbidding, and it reminds me a whole lot of Sri Lanka from the 1950's to the 1980's where the two parties competed to be the best at protecting the Sinhalese, resulting in the marginalization of the Tamils. I am not saying that the Anglophones in Quebec would face the same level of violence as in Sri Lanka (before that, more would leave as others have done so). Just that the institutions and proportions are very, very similar so that the political dynamics here combined with the lack of institutional protections (because of the existence of the NW clause and the possibility of its use) create a climate of fear and uncertainty: there are no barriers to tyranny of the majority.
I am very, very, very worried about reforms to Bill 104 since there are actors actively seeking to end my ability to send my child to private school because we are immigrants. The PQ and its allies are making such noises. Why would a political imperiled Jean Charest take the hard road and protect the folks whose votes do not matter, when he can play the nationalist card instead and curry favor with the hawks on the language issue? While I have not started looking for rental housing in Cornwall or Plattsburgh, I have google-mapped to see how far my commutes might become if I have to leave the province but still work at McGill. And why? Because I fear tyranny of the majority.
Of course, the irony is that much of the past in Quebec is driven by their own experience with tyranny of the majority--that Anglophone Canada oppressed Francophone Quebec. So,what is good for the goose ..... means that there are not institutions nor sentiment about protecting the minorities, but rather a willingness (as exemplified by the reasonable accommodation hysteria of the past few years) to stomp on the rights of some minorities to assure the majority that the imaginary threats have been squashed.
Tomorrow I will address where the threats are coming from and why Quebec cannot really do much about it.
* I find that the anglophones in Montreal are very much like African-Americans in the Democratic Party since they cannot really support the PQ. The ADQ ran against Montreal so that was not really an option either.
I see norms as playing a rather similar role to formal institions, particularly in shaping incentives. If norms didn't shape actors' incentives, then the Governor-General (or, God forbid, the Queen) could dissolve Parliament at will or veto legislation. But the norms that govern what those positions can do are extremely strong. No one would stand for that kind of anti-democratic behaviour. The notwithstanding clause norms aren't that strong - but they are strong enough that most actors will avoid using the clause without extremely broad popular support, effectively making the barrier far higher than 50%(+1). In practice, it's more likely tyranny of the supermajority rather than tyranny of the majority. (That's entirely possible in Quebec due to francophone concerns about whether immigrants will learn French - which are somewhat legitimate rather than "imaginary," given the pre-language laws realities in Quebec. Of course, the niqab is nothing worth fearing.) The idea that it's tyranny of the supermajority rather than the majority is probably cold comfort, though, given the risks your family faces. And I agree that better institutions - a better Charter and a better electoral system - would at least partially address the problems you've pointed out. I just wouldn't underestimate the power of norms.
ReplyDeleteI am concerned about what will happen in this case; we can pretty much forget Bill 104 in itself; instead, what has been recommended is to extend Bill 101 to unsubsidized English private schools (restricting eligibility to the same conditions as English public schools.) I'm curious as to exactly what the case will be, as this again might require the notwithstanding clause, but it would be called upon to waive Section 2 of the Charter (fundamental freedoms.) It might resemble the 1988-89 use of the clause against 2b (freedom of expression) but it is sure to be a heated debate.
ReplyDeleteThat being said, what you say about tyranny of the majority is interesting. What about the idea that the Constitution Act itself was imposed by the majority (the rest of Canada) on a minority (Quebec)? You could say that the institutions at play allowed this to occur and that it is wrong that Quebec is subject to a constitution it never supported.
The important question for me is whether legislation is the only thing we are discussing. It is wrong for Quebec to legislate to protect French (which is another way to refer to what many Montreal Anglos would call "legislating to destroy English"), but Quebec should not seek to protect its language and culture? What other means are available?
What can happen? Quebec can become independent, at which point the Canadian constitution will no longer matter. The issue is that support for the protection of French far exceeds support for Quebec independence.
I understand why you are bitter about this -- you sit in an uncomfortable space. Essentially, the calculation has been that losing immigrants to Cornwall (!) or Plattsburgh is the smallest price to pay to maintain some form of the status quo.
Thus, it's no coincidence that you would suggest that these threats are "imaginary." I find it a bit insulting on behalf of my fellow Quebecers that they are wrong in their belief that French should be protected, and that an American immigrant knows the truth. I am looking forward to reading your assessment of those threats.
I am not personally in favour of such strong measures and think that the people affected by Bill 104 are a relatively small drop in the bucket, but I cannot deny that French is vulnerable in Quebec. Perhaps you disagree, and you might be right -- but some things are not that easily understood. It's hard for the rest of the industrialized world to understand why universal health care still has only limited support in the US, too.
Thanks for the good and thoughtful comments. I will chew them over and continue the conversation tomorrow.
ReplyDeleteQuinn, your point about norms is important; to be sure, there is a norm against using the NW clause, but there is another consideration here that I had not thought of earlier. In this case, the Liberals have mentioned the NW clause and the PQ has gone on to suggest either its use or a modification to Bill 101 extending it to "bridging schools" (which might even include the NW clause, I'm not sure about the details). In either case PQ pressure might be partially intended to highlight the purported "anti-Quebec" character of the Charter and the Constitution Act. The irony is that this type of discourse would be ill-advised for an opposition party that faces the government with the lowest approval rating in recorded history and still can't get very far ahead in the polls.
ReplyDelete