Aboriginal Peoples of Canada – Contemporary Racism in the Criminal Justice System

Contemporary incarceration rates as a by-product of racism

            Addressing inequality within the Canadian criminal justice system, Bryce Goudreau’s inquest Racism in the Justice System regarding racism in the sentencing of adult Aboriginals introduces the most relevant issue currently at the forefront of the Correctional Services of Canada: Aboriginal over-representation in the Canadian criminal justice system. According to separate academic studies spanning from 1988 to 2006, Aboriginals have consistently represented 22% of the inmate population within the Canadian criminal justice system (Bracken, 2008). The discrimination and historical injustices Aboriginals faced in colonial Canada have affected contemporary Canadian society; contemporary Aboriginals are now suffering from the repercussions of exploitation and failed assimilation: “… [white culture] obscure[s] the ongoing material violence of colonization and exploitation faced by Aboriginal communities” (Murdocca, 2009, p. 25). Pursuing the basis of Aboriginal over-representation in the Canadian criminal justice system, historical injustices such as policies of discrimination, failed attempts at assimilation and economic marginalization (Bracken, 2008) have driven Aboriginal’s to the margins of society, leaving members of Aboriginal communities susceptible to mental health problems and alcohol and substance abuse problems (Tait, 2003).

The discrimination of Aboriginals has constructed issues which are no longer confined to colonial understandings of Canada: “Colonialist oppression and assimilation is linked to present day health and social problems found in Aboriginal communities… characterized by loss, suffering, trauma, and violence… ” (Tait, 2003: 187). Institutional racism within Canada has manufactured a succession of issues to the Aboriginal population; lower levels of education attainment, cultural disassociation, and FASD.

FASD and Aboriginal over-representation

            One of the most challenging issues preventing the decrease of Aboriginal over-representation in the Canadian criminal justice system is the prevalence of fetal alcohol spectrum disorder; commonly known as FASD, fetal alcohol spectrum disorder is a neuro-development and/or physical disorder covering “a range of conditions resulting from foetal exposure to alcohol” (Bracken, 2008: 22). Although not limited to the Aboriginal population, a disproportionate number of Aboriginals in the Canadian criminal justice system suffer from the effects of FASD, not to include individuals who have not been diagnosed (Bracken, 2008). Dr. Geoffrey Robinson, a renowned paediatrician practicing in the mid to late 20th century, called the prevalence of FAS a cultural injustice of colonial Canada:

Drinking in Canada is most common in the northern territories and western provinces and children with alcohol-related birth defects are more frequently seen in these regions… Tragically, the pattern is more common among the aboriginal peoples, a lingering reminder of the economic and cultural injustices of the colonial past (Robinson, 1988)

The Aboriginal youth referred to in Dr. Robinson’s remarks represent a microcosm of the contemporary Aboriginal adult population in Canada, with a disproportionate percentage of such people incarcerated and\or affected by disabilities associated with FASD (Bracken, 2008):

… persons with these conditions under FASD… indicated the following adverse life experiences… : trouble with the law (60%), interrupted school experiences (61%), confinement in prison/detention centre, psychiatric setting or residential alcohol/drug treatment (50%), repeated inappropriate sexual behaviours (49%) and alcohol/drug problems (35%) (Bracken, 2008)

Because the identification of FASD is ambiguous, it is often not diagnosed; Aboriginal offenders with FASD are often sentenced without being appropriately diagnosed (Bracken, 2008). Primary disabilities associated with FASD, such as neuro-developmental irregularities and secondary disabilities resulting from environmental factors such as mental health problems and alcohol and substance abuse problems, act as causative agents to criminal behaviour (Tait, 2003). With respect to the University of Manitoba’s Denis C. Bracken, fetal alcohol spectrum disorder is closely associated with Aboriginal incarceration and discrimination. Specifically, Bracken underscores the role racism in colonial Canada represents in respect to contemporary Aboriginal over-representation in the Canadian criminal justice system:

What is really the issue at hand is the relationship between FASD and incarceration of Aboriginal people, not as an indicator of the connection between alcoholism addiction and Aboriginals, but rather as a sign that incarceration of Aboriginal people is connected to discrimination (Bracken, 2008)

Albeit the product of loss, suffering, trauma, and violence dating back to colonial Canada, Aboriginal over-representation in the contemporary Canadian criminal justice system is a result of racism and the federal government’s reluctance to assume responsibility for discriminating practices (Bracken, 2008) which have led to mental health problems and alcohol and substance abuse problems, furthering the issue of over-representation (Tait, 2003).

Reconciliation and the development of support programs are imperative in the identification and research of individuals suffering from the effects of FAS within the Canadian criminal justice system, and in particular, Aboriginal communities (Bracken, 2008). Until adequate resources become available, the prevalence of FASD and over-representation will remain high amongst the Aboriginal peoples of Canada. While understanding significant gaps in research and knowledge, the Assembly of First Nations acknowledge the ambiguous ailment that is FASD and its prevalence amongst undiagnosed Aboriginal youth; “[sic] First Nations youth are at an increased risk of suffering from a physical, developmental or learning disability… Fetal Alcohol Syndrome (FAS) and Fetal Alcohol Effects (FAE) are responsible for nearly 75 percent of these cases… ” (Assembly of First Nations, 2008).

 

 

Reference

Assembly of First Nations. (2008, March). The Health of First Nations Children and the Environment. Retrieved from http://www.afn.ca/uploads/files/rp-discussion_paper_re_childrens_health_and_the_environment.pdf.

Bracken, Denis C. (2008). Canada’s Aboriginal People, Fetal Alcohol Syndrome and the Criminal Justice System. British Journal of Community Justice, 6(3), 21-33.

Murdocca, Carmela. (2009). From Incarceration to Restoration: National Responsibility, Gender, and the Production of Cultural Difference. Social & Legal Studies, 18(1), 23-45.

Robinson, G. C. (1988). Opening Remarks. Alcohol & Child/Family Health, Vancouver, B.C. FAS Resource Group. Retrieved from http://www.mcgill.ca/files/namhr/Tait-2003.pdf.

Statistics Canada, Aboriginal Peoples Survey, 2006. Retrieved from http://www12.statcan.ca/census-recensement/2006/dp-pd/89-635/P4.cfm?Lang=eng&age=3&ident_id=2&geocode1=001&geocode2=001.

Stenning, Philip and Roberts, Julian V. (2001). Empty Promises: Parliament, the Supreme Court, and the Sentencing of Aboriginal Offenders. SaskatchewanLaw Review 64, 137-68.

Tait, C. L. (2003). “The Tip Of The Iceberg”: The “Making” of Fetal Alcohol Syndrome in Canada. (Doctoral dissertation). Retrieved fromhttp://www.mcgill.ca/files/namhr/Tait-2003.pdf.

The War Art of Molly Lamb Bobak

The War Art of Molly Lamb Bobak

Molly Lamb Bobak – An Introduction

           Born in then remote British Colombia , Molly Lamb came from a family who were relatively well connected within Western Canadian society. Her father, Harold Mortimer Lamb was a past President of the Canadian Mining Association and gained some acclaim as an amateur artist. Her mother, Mary Williams, was a home maker and mother. Between the two parents, Molly was exposed to the privilege of a father who had strong artistic inclinations and abilities and whom was friends with Group of Seven artists A.Y. Jackson (1882-1974) and Frederick Horsman Varley (1881-1969) . The influence of her father’s interest in the fine arts and her mother’s interest in botany produced an environment conducive to a creative child.

Born in 1922, the air of WWI was still evident. Her father’s connection to A.Y. Jackson, a landscape painter and War Artist in addition to his knowing Varley, the pre-eminent portraitist of his day, highly influenced Molly’s interests in painting. Her mother’s inclination towards flora intrigued Molly but to a lesser degree.

With such a stimulating upbringing, Molly was destined to move towards studying the fine arts in particular drawing and painting. After 3 years of intense study under British-born Jack Shadbolt (1909-1998) at the then-Vancouver School of Art (now Emily Carr School of Art and Design), Molly honed her skills in drawing and painting as her minor and major disciplines.

What Molly did not know, other than the fact that she had a great interest in art, was the fortunate future that lay before her, in particular her significance in becoming Canada’s First Official Woman War Artist.

Molly Lamb Bobak – The War Years

           Canada was already at war in 1939 when Molly was attending the Vancouver School of Art. Her teacher Jack Shadbolt, also a Canadian War Artist, was to influence Molly both on a social and professional level. Shadbolt’s depictions of social scenes with busying streets depicting soldiers and citizens alike attracted Molly. With social propaganda asking “what can you do for your country?”, Molly was led to her ultimate decision in enlisting as a Canadian Women’s Army Corps (CWAC) in 1942 following her graduation from art school . The early days of Molly’s enlistment were riddled with uncomfortable conditions and a home-sick feeling rendering Molly with the question of why she took such a spontaneous leap. However soon she was to comfort herself with the social surroundings and the many visual impacts that were to change the course of her Army career.

An important movement which Molly was familiar with was the 1941 “The Kingston Conference”. This was a broad cross-section of Canadian artists and among them some of the most pre-eminent women artists of the day, to include Pegi Nicol MacLeod (1904 – 1949), Florence Wyle (1881 – 1968), Paraskeva Clark (1898 – 1986), Elizabeth Wyn Wood (1903 – 1966) among others. This conference was significant in that its delegates voted to pass a resolution urging the Canadian Government to “set up machinery for the creation of works of art according the various phases of the Dominion’s war effort” . The response to this request took approximately two years and by late spring 1943 the Canadian War Artist Program agreed to secure 25 artists who were enlisted and employed to paint full time. Other artists worked on a part-time contractual basis, however women became part of the Canadian War Artists Program slowly and the reluctant Col. A.F. Duguid, who was in charge of the program, hired artists such as Paraskeva Clark, Lilias Torrance Newton and Alma Duncan to create drawings and paintings depicting war production, factories, and ship building yards in Montreal. However, at this point Molly was not a member of the Canadian war Artist Program, however the thoughts of joining such an exciting program excited Molly and kept her practicing her art.

Molly’s early war art commenced in a unique and interesting way in the form of diaries and sketches. The majority of these drawings were small, loose depictions of figural subjects close to and in around Molly and the war life she was experiencing. These drawings, for the most, are simplified and caricature in nature. They often depict daily activities but they also express Molly’s emotional state where images of happy and humorous events are annotated with comical caption lines. This remains consistent from her war diaries from 1942 through to 1945.

Come 1943, Molly had been transferred from British Columbia to Montreal. It can be seen in some of her drawings of this period, including her diary entries that Molly’s comfortability with being in the CWAC and that she was more comfortable. By the summer of 1943 Molly’s drawings were starting to show a greater influence of the art of Cezanne. Her lines are more fluid, immediate and often including watercolour washes. The scenes that she was depicting were growing more and more towards social interaction within her circle of comrades. These would include canteen scenes, street scenes and often images of herself, Molly the artist at work. By this time Molly was allowed to create her art on a more regular basis and she was receiving recognition. Three of her pictures were bought by the Toronto Art Gallery.

An important series though low in number were Molly’s depictions of single subjects. These scenes were more personal in nature in and showed the influence of Varley’s work. For example, her portrait entitled CWAC Reading and her portrait of Alice are reminiscent of the work of Fred Varley. Her use of tonal values and strong expression focussing primarily ion the subjects face reflects Varley’s teachings. In 1944 Molly’s war art was gaining greater recognition. Still showing the influence of Cezanne with her strong use of black line and vibrantly coloured washes, Molly was exhibiting her work in Toronto. Clearly there was a greater appreciation for her war art and as well for the need for the public to see how she depicted women in the Army Corps. It’s important to note that Molly’s war art, both in the sketches and worked up drawings, carried the influence of her early art teacher Jack Shadbolt. Shadbolt’s influence in Molly can be seen in her use of dark tonal values, in particular the use of charcoal, as well as her depiction of street scenes and crowds of people for example (untitled) CWAC’s at Dinner (Gossage, 79).

However, In 1945 both Molly Lamb Bobak and Paraskeva Clark whom the director of the National Gallery of Canada McCurry considered “an outstanding artist” were offered full-time commissions with the Canadian War Artists Program. To whom was offered the position first is not known, however Paraskeva Clark declined the offer to become an official War Artist due to family commitments. Fortunate was Molly for she was then to become Canada’s First Official Woman War Artist . The year 1945 was to be a pivotal turning point for molly and her career as an artist. She was at this point still an emerging artist practicing her discipline on a daily basis through her diary illustrations, drawings and painting both in watercolour and oils. Molly was still receiving the much needed and considerable support of such individual such as long-time family friend A.Y. Jackson, who upon Molly’s appointment into the War Artist Program provided her with additional advice on being a war artist and even assisting her in meeting influential people such as the Rt. Hon. Vincent Massey.

With Molly’s new appointment as an Official War Artist, she chose to draw and paint the WREN’s and CWAC’s while in training in Quebec and Britain. Molly was however influenced by her subject matter by some degree in that just prior to the Canadian War Artist Program and its activity, Paraskeva Clark as well as Pegi Nicol MacLeod indicated that official commissions should include the human being the dominating subject matter and not the landscape as was the case during in many war artists depictions of WWI.

Her station in Britain can be seen today as a major turning point in Molly’s interest in the subject matter of larger groups and mass crowds of people; some with faces, many without. Her watercolour titled Baseball game in Hyde Park, London and her conte drawing Canadian Women’s Army Corps folding Sheets are two examples. Following her sojourn in Britain Molly travelled to Holland where she spent “six of the richest and most exciting weeks working alongside service-women . Her artwork was to remain consistent in depicting everyday army life for women in the corps and the important and much needed roles they played. By the time Molly was deployed to Germany her artwork was depicting greater calm and serenity, probably as a result of the armistice. Molly’s watercolour and ink painting Canadian Womens Army Corps Sleeping Quarters in the Administrative Building, Germany is a fine example as it depicts a CWAC sleeping in a comfortable room complete with proper bed, writing desk, side table and flowers.

For Molly Lamb Bobak, army life was to be more than she ever expected or dreamed of. Her career as a working war artist went from a diarist including fast and fun sketches of every day life of primarily women in the army to being offered a position as the first appointed woman war artist to draw and paint a historical record of life as an army officer during WWII. Molly was quoted as saying “I love the army”. She explained that army life was congenial to creating her art because “all the nuisances of living are done away with because you don’t have to cook, you don’t have to worry about being poor or sick or being without warm clothes… and everywhere you turn there is something terrific to paint”.

Today at the age of 89 and living in her adopted province of New Brunswick, Molly looks back to her career with fond memories however having lived it and attained such great success she is humble. Blind and no longer able to paint she rests now on a pyramid of awards and accolades that she worked very hard for. Molly doesn’t see the role of an artist as anything out of the extraordinary; she was recently asked “What is the greatest public misconception about visual art?” to which Molly replied “…one misconception is people think artists are so bloody special. Some of them are and some of them aren’t” . For those who are aware of the substantial contributions that Molly made to Canada and the world with her war art she is more than special; she is extraordinary. She has helped break down the barriers for women in the Canadian Forces and blazed a trail for Canadian women artists.

Reference

Baele, Nancy. War artist’s sketches reveal irreverent eye. The Ottawa Citizen. 5 Nov. 1992

Bobak, “I love the army” Canadian Art, Vol. 11, No. 4 (April to May 1945)

Gossage, Carolyn. Double Duty: Sketches and Diaries of Molly Lamb Bobak Canadian War Artist. Dundurn Press Limited. (Toronto & Oxford, 1992)

Mersereau, Bob. “Just to live here and be friends”. Atlantic Insight. March 1988

NAC, RG 24, 2173, Vol. 3, McCurry to Col. Duguid. 26 Dec. 1944

NGCA Molly Lamb Bobak papers, Lamb to McCurry. 5 Nov. 1945

Queens Universities Archives, Andre Bieler, Box 4, Andre Bieler and Elizabeth Harrison, EDS, “The Kingston Conference Proceedings” (Kingston, Ontario, 1941)

Smith, Colin. “Why Molly?”. New Brunswick Telegraph – Journal. 25 Sept. 2010

Tippett, Maria. By A Lady: Celebration Three centuries of Art by Canadian Women. Penguin Books Canada, Ltd. 1992. ISBN 0-14-016955-5

Waiting for “Superman”

Waiting for “Superman”

Identifying the failure of the American public education system –

The American Federation of Teachers:

            David Guggenheim’s 2010 documentary Waiting for “Superman” focusses on the failure of the American public education system. Specifically cited within the documentary as an impediment to the reformation of the American public education system is the American Federation of Teachers; the reluctance of the American Federation of Teachers to alter the terms on which it grants tenure to ‘bad’ teachers ultimately impedes reform in lower performing schools. The author of this report upholds the validity of the concerns of the commentariat in the documentary regarding the American public education system and the American Federation of Teachers. The documentary also follows former D.C. Chancellor Michelle Rhee as she challenges the American Federation of Teachers’ mindset, stating that “… the mentality is that they [teachers] have a right to that job… ”.

As a witness, educator, and critic to the current state of the American public education system, Geoffrey Canada asserts that “… the right accountability standards provide… results”, and that the presence of a ‘good’ teacher can help disadvantaged or low-income children thrive in an academic environment. In supporting Canada’s idea of accountability, the author of this report contends that ‘bad’ teachers who have not been held accountable and have been granted tenure have tarnished the American public education system, forcing a democratic injustice upon disadvantaged youth. The academic results of Canada’s school located in an underperforming area of the Bronx, New York, invalidates the myth that disadvantaged, low-income children can’t learn.

As specified, Guggenheim’s Waiting for “Superman” presents impediments within the American public education system that have, collectively, developed into a major concern to the current and future condition of the United States’ economy. The author of this report identifies the most prominent burden to the American public education system as the reluctance of the American Federation of Teachers to alter the terms on which it grants tenure. Disadvantaging children within the American public school system is a democratic injustice; the repercussions of such abuse and the reluctance to implement change are causing an economic pandemic to unfold within the United States.

Impeding factors? – The lottery system and the presentation of tenure to ‘bad’ teachers:

           Guggenheim’s documentary Waiting for “Superman” follows several young families and their feelings about the American public education system leading up to a lottery system designed to randomly select which children will be offered coveted spots in more reputable schools. The lottery system is regarded within the documentary as the deciding factor in determining the future successes and/or failures of a child’s academic career. While agreeing with documentary’s assertion that the outcome of the lottery system is a gateway to democratic injustice with respect to educational opportunities, the author of this report that the lottery system in-and-of-itself is democratically correct; every child entered into the lottery system is provided an equal chance of winning a higher level of education.

Albeit democratically correct, vouchers awarded via the lottery system do not address all students’ issues equally. Due to financial difficulties that are present within low-income families, a voucher to a more reputable school will only go a set distance before the costs become too exorbitant to sustain further. A second dilemma is presented to middle-class families; here, the families income is too high to allow qualification for a voucher, yet too low to afford spots in more reputable schools.

In continuation from the point at which a child’s educational path is assumed via the aforementioned lottery system, the author of this report contends that the democratic injustice that takes place within the American public education system is the designation of children to lower performing schools after receiving unfavourable lottery results. The difference between lower performing schools and the schools that present greater educational opportunities is the quality of teachers in each respective system. Public schools in less-affluent neighbourhoods across the United States are rife with underperforming teachers, but despite their consistent, albeit poor, performances, these ‘bad’ teachers are still responsible for harbouring the successes of children’s future academic careers. Moreover to the plethora of underperforming teachers and their continued presence within the American public education system are the legal bindings that prevent the appropriate removal of such ‘bad’ teachers. The American Federation of Teachers is responsible for the job protection of public school educators within the American public education system; the union accomplishes this by granting tenure to teachers after a short 2 year period, oftentimes without an accurate review of a teacher’s performance. The author of this report agrees with the assertion that the failures of the American public education system are embodied in the American Federation of Teachers’ reluctance to alter the terms on which it grants tenure; the act of providing job security to underperforming teachers is cited as impeding reform in lower performing schools.

The author of this report further contends that, through the examination of statistics pertaining to the relationship between the quality of Geoffrey Canada’s school in the Bronx and the academic results of his school’s students, the presence of quality teachers in public schools would assuredly improve academic results regardless of factors such as: location within less-affluent neighbourhoods, the presence of drug and gang-related activities, and the inclusion of children stemming from low-income families. The presence of underperforming teachers in the American public education system has led to a detrimental game of ‘wait-and-see’ where low-income families resort to a lottery system in attempting to prevent ‘bad’ teachers from failing their children.

The Federation strikes back –

Addressing the legitimacy of The Inconvenient Truth Behind Waiting for “Superman”:

           A retaliatory follow-up film The Inconvenient Truth Behind Waiting for “Superman” showcases the reaction of New York teachers, specifically ‘good’ teachers such as Julie Cavanagh and Darren Marelli, whose reputations have been damaged by the former documentary within the American public education system. The author of this report contends that the follow-up film to Guggenheim’s Waiting for “Superman” falls short of its message as the responding demographic were not ‘bad’ teachers, as targeted by the former documentary.

Guggenheim’s Waiting for “Superman” attacks the American Federation of Teachers for showing reluctance to alter the terms on which it grants tenure as well as the continued job protection of ‘bad’ teachers.  Despite praising the work of ‘good’ teachers such as Cavanagh and Marelli, Guggenheim’s documentary comes under attack for demoralizing teachers across the country. The ‘bad’ teachers targeted in the former documentary do not speak up against the findings of Waiting for “Superman” in the follow-up film. Ultimately, the wrong demographic of teachers within the American public education system took offence and reacted to Guggenheim’s documentary. The follow-up film goes on to criticize former D.C. Chancellor Michelle Rhee’s firing of underperforming teachers within the D.C. public school district, who is seen in the segment stating to an underperforming principal “… I’m terminating your principal-ship, now.” In relieving a large body of underperforming teachers of their duties, Rhee’s actions were carried out to maintain teaching standards within the American public education system, and in keeping the D.C. public school system’s best interests in mind.

The author of this report asserts that the American Federation of Teachers’ retaliation to Rhee’s actions underscore the microcosm of the American public education system; operating with an adult-first focus and prioritizing job security amongst teachers, ‘good’ or ‘bad’.

Closing:

           In closing, the author of this report contends that the American Federation of Teachers is ultimately responsible for the misappropriation of the American public education system. The consistency at which underperformance has been rewarded with long-term job security within the American public education system has minimalized the educational opportunities of mid to low-income families, and the repercussions are beginning to take its toll the economy as the upcoming workforce lack substantial education.

The issue of the American public education system has garnered a considerable amount of attention across the United States. According to Bill Gates, the founder of Microsoft, the question of “… how equitable the country is 20 years from now will be largely driven by this issue… ”. The author of this report retorts that the impeding factor in curbing the current state of the American public education system is altering or, preferably, negating the terms on which the American Federation of Teachers grant tenure. A strong statistical showing, coupled with Guggenheim’s Waiting for “Superman” and the pioneering-likes of former D.C Chancellor Michelle Rhee and Geoffrey Canada, sparks hope for the American public education system and the future of the United States.

Reference

Guggenheim, D., Kimball, B., Chilcott, L., Strickland, B., Canada, G., Rhee, M., Weingarten, R., … Paramount Home Entertainment (Firm). (2011). Waiting for “Superman”. Hollywood, Calif: Paramount Home Entertainment.

Fury for the Sound: The Women at Clayoquot

Fury for the Sound: The Women at Clayoquot

 

A lapse in judgement –

The judicial system’s failure at Clayoquot Sound:

 

The film Fury for the Sound: The Women at Clayoquot documents the grassroots movement that aimed to protect British Columbia’s Clayoquot Sound from deforestation. During the Clayoquot Blockade of 1993, formerly the largest civil disobedience action in Canadian history, several infractions of Canadian law took place resulting in the detention of peaceful protesters at the Nanaimo Correctional Centre. In accordance to the Canadian Charter of Rights and Freedoms, the Clayoquot Blockade of 1993 specifically resulted in the infringement of fundamental freedoms and legal rights to those protesting. In retrospect of the issues demonstrated throughout the film Fury for the Sound: The Women at Clayoquot, the author of this report contends that: the governmental handling of the confrontation was poorly orchestrated; the Royal Canadian Mounted Police infringed on the rights of those protesting, and the Court system failed those who were unlawfully put before them.

 

The violation of fundamental freedoms and legal rights at Clayoquot Sound:

 

During the late 1980’s, Premier of British Columbia Mike Harcourt gave approval to MacMillan Bloedel to commence logging operations in Clayoquot Sound, British Columbia.  Protesters, notably children and women of all generations, gathered and peacefully impeded the loggers’ access to the area. This confrontation, albeit peaceful, would lead to the involvement of the Royal Canadian Mounted Police and the infringement of several provisions within the Canadian Charter of Rights and Freedoms.

In accordance to the Canadian Charter of Rights and Freedoms, the fundamental freedoms and legal rights of protestors were abused. The aforementioned detention of peaceful protestors contradicted section 2 of the Charter which guarantees “(c) freedom of peaceful assembly…” (Canadian Charter of Rights and Freedoms, 1982). Those protesting the logging of Clayoquot Sound were a grassroots movement, peacefully impeding the work of MacMillan Bloedel employee’s in an attempt to persuade the provincial government to reverse their decision on the matter. Furthering the issue, in an effort to disperse the remaining protesters, unlawful arrests made where ‘aiding and abetting other protesters’ was cited as the rationale. Everyone, from protesters including making political statements from the sides of the road to the spectators cheering on the protesters as they were carried away, were aiding and abetting; despite this, only those impeding the roadways were singled out, arrested and detained. The unlawful detention of peaceful protesters leads to the second infringement of the Charter: legal rights.

In accordance to section 9 of the Charter, legal rights guarantee that “Everyone has the right not to be arbitrarily detained or imprisoned… ” (Canadian Charter of Rights and Freedoms, 1982). Legal rights further state that “10. Everyone has the right on arrest or detention… (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful… ” (Canadian Charter of Rights and Freedoms, 1982). As unlawful as their arrests and detention were, protestors were not released. Elderly women, such as Betty Krawczyk, were arrested and detained at the Nanaimo Correctional Centre for 45 days (costing the government $65,000 to do so per inmate), while others such as Sile Simpson were punished 6 months as a result of their presence in Clayoquot Sound. Furthering this issue, protesters who had been detained and arrested were subject to retroactive law. The initial charges against protesters were ‘civil disobedience’ and ‘civil contempt’, but halfway through the summer the Attorney General made the charges ‘criminal contempt’. According to section 11 of the Charter, it is stated that “Any persons charged with an offence has the right… (g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations… (i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment” (Canadian Charter of Rights and Freedoms, 1982). Prior to the events at Clayoquot Sound, individuals convicted of ‘civil disobedience. did not serve 45 days or any further jail time for a first offence. Although protestors were arrested under ‘civil disobedience’ and ‘civil contempt’, by the time they arrived in court the charges had changed to ‘criminal contempt’. Despite the former charges arrestees were sentenced in accordance to ‘criminal contempt’, undermining the Charter.

 

Reflecting on the events at Clayoquot Sound:

 

Upon review of the events surrounding the peaceful protests in Clayoquot Sound, the author of this report is appalled as the performance of the Royal Canadian Mounted Police and the lack of willingness for the Courts to address the Charter-related concerns is deplorable. Peaceful protesters, trying to send a message to their political representatives, were held accountable by the provincial government and by the Royal Canadian Mounted Police for crimes which they were not guilty of. Those arrested were faced with fines, detention, and criminal records. The peaceful effort of a grassroots movement to spare the environment from an industrial thrashing is not a crime. Clear-cutting, on the other hand, is a crime against nature; the devastation of huge sections of land in one of the last temperate rainforests is unjustifiable. The abuse of the Canadian Charter of Rights and Freedoms is not only unlawful, but an embarrassing measure taken by Canada’s national police force.

The author of this report deduces that protestors who were subject to arrest and detention were further victimized by the era in which the aforementioned protests took place. Legal infringements, such as the retroactive charges that occurred during the 1993 blockade in Clayoquot Sound, went unnoticed until the accused face the court. With the recent prominence of social networking in the 21st century and the accessibility of governmental documents, such as the Canadian Charter of Rights and Freedoms, the author of this report recognizes that environmental activists are better equipped to tackle the issues they face in the field. Specifically, the prominence of social networking has brought about a heightened sense of awareness to activists in light of the legal challenges they face; any potential infringement of rights to an activist can be addressed online, garnering support to the victim and expressing condemnation to the responsible parties. Furthering the Charter-related issues of the 1993 blockade was the detention of protesters at the Nanaimo Correctional Centre and the cumulative costs involved. Clayoquot Sound detainees were exemplary citizens; prior to the charges of ‘civil disobedience’ and ‘civil contempt’ being made retroactive to ‘criminal disobedience’, detainees had no criminal records. The unlawful detention of protesters not only deprived these Canadians of their rights, but by invoking the costs required in doing so, the tax-paying Canadian public also suffered. With the individual detention of protestors costing $65,000 for the standard 45-day sentence, millions of tax-paying dollars were wasted. Although this number is slightly offset from the payment of fines from those accused, the cumulative cost of detaining the protesters of Clayoquot Sound is exorbitant considering this cost would be further inflated given the Canadian dollar’s current value.

Increased accessibility to legal documents, such as the Canadian Charter or Rights and Freedoms, has led to a more rights-aware public. In the wake of the abuse of their fundamental and legal rights, arrestees and detainees of the 1993 blockade showed little legal retaliation. The author of this report contends that this further exemplifies the lack of knowledge surrounding the Canadian Charter of Rights and Freedoms. Canadian citizens were not well versed in their respective rights following the Charter’s enactment. As of 1993, there had been no real precedents regarding the violation of fundamental freedoms on the scale of the 1993 blockade; even so, accessibility to even a copy of the Charter in 1993 would have been problematic.

In summary, the author of this report contends that the provincial government’s handling of the confrontation at Clayoquot Sound was irrevocably unjust. Under pressure from the provincial government, the Royal Canadian Mounted Police placed persons before the courts; although select persons were guilty of ‘civil disobedience’ and ‘civil contempt’, the court system undermined the Charter by failing to acknowledge the infringements on legal rights that had occurred as per sections 9 and 11. Freedom of peaceful assembly, thought, and opinion are perhaps the strongest attributes a democracy can exhibit; during the arrests at the 1993 blockade in Clayoquot Sound and the mock trials that followed, the most important aspects of Canada’s democracy were disregarded.

References

Canadian Charter of Rights and Freedoms, Section 2, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

Notwithstanding the notwithstanding clause: Political regimes and constitutional politics in the United States and Canada

Notwithstanding the notwithstanding clause: Political regimes and constitutional politics in the United States and Canada

The US Supreme Court and Canada’s constitutional design –

The balance between rights and democracy:

            In the essay Notwithstanding the notwithstanding clause: Political regimes and constitutional politics in the United States and Canada, author Kevin J. McMahon considers how “US Supreme Court decisions that constitutionally discard statutes enacted by democratically elected legislatures” (p. 45) have affected the democratic value of Canada’s notwithstanding clause. McMahon weighs the effectiveness of the clause and its infrequent use, while offering a comparative look at the US Supreme Court and counter-majoritarianism; the judiciary’s ability to overrule laws that reflect the will of the majority. When relying on the Courts to address constitutional problems, McMahon suggests counter-majoritarian rulings are necessary in maintaining an appropriate balance between rights and democracy. The author of this report agrees with McMahon’s assertion, albeit remains skeptical of the prominence of counter-majoritarianism within the US Supreme Court.

In a general overview of the US Supreme Court, McMahon contends there are several predominant forms of Court-centered analysis: the attitudinalist approach, judicial independence, and political regimes analysis. The attitudinalist approach argues that the judicial review is a deviant institution, “that the justices act as unconstrained policymakers, insulated by the institutional features of the Court, in pursuit of their own policy preferences” (p. 45). It is maintained within this approach that US Supreme Court justices vote in accordance to their dedication to a respective particular political party. This is contrasted with judicial independence; legalistic explanations of the Court’s decisions emphasizing the Court’s independence, highlighting the justices’ commitment to legal principles such as stare decisis. The tertiary approach is political regimes analysis, which, under the control that presidents and congresses have over the judiciary, emphasizes the foundation of the Supreme Court’s decision-making on “factors such as electoral realignments, presidential authority, intra-party divisions, and divided government… ” (p.46). According to scholars, political regimes analysis advocates that judicial review is politically constructed.

McMahon suggests that he US Supreme Court operates under the cloud of counter-majoritarianism. The author of this report contends that the aforementioned approaches of Court-centered analysis are not reflective of counter-majoritarianism and that the political construction of the US Supreme Court does not favor a democracy, specifically citing the lack of a constitutional amendment such as Canada’s notwithstanding clause. In supporting the democratic value of Canada’s notwithstanding clause, the author of this report cites its presence in advocating democratic principles and reflecting the will of the people while subtlety acting within its constitutional framework.

The absence of counter-majoritarianism in the US Supreme Court –

Assessing the value of Canada’s notwithstanding clause:

            The absence of counter-majoritarianism, the judiciary’s ability to overrule laws that reflect the will of the majority, and its democratic weight is considered by McMahon in reflection of presidential appointments to the US Supreme Court from 1969-1993. During this time, Republicans occupied the White House exclusively with the exception of a 4-year term, with the respective presidents appointing 7 of the 9 justices during that span, suggesting that the US Supreme Court is “constrained by the political order of the time” (p. 46). McMahon suggests that a Court appointed by a dominant regime, such as the Republicans in the late-twentieth century, may stray from acting in a counter-majoritarian fashion and may instead operate with an attitudinalist approach, performing in pursuit of their own policy preferences and advancing Republican interests. With the political construction of the judiciary, the author of this report acknowledges McMahon’s notion that dominant political regimes are steadily supported. The practice of fostering such support within the judiciary is displayed during the presidency of Franklin D. Roosevelt where “through the traditional appointment process, [he] filled the bench with jurists sympathetic to his constitutional vision” (McMahon, 2005). McMahon further supports the attitudinalist approach frequented by representatives of democratic institutions, such as the judiciary in the US Supreme Court, in acknowledging that the aforementioned representative are “influenced by the same political and societal forces” (p. 47) as the governmental forces that put them in power. Despite the prevalence of the dominant political regimes referenced with respect to the Republicans of the late-twentieth century, McMahon summarily asserts that the US Supreme Court has operated under a cloud of counter-majoritarianism, albeit with criticism. While acknowledging this notion in part as accurate, the author of this report disagrees that the US Supreme Court operates in such a way; there is no constitutional factor to regulate the decision-making of the judiciary at the US Supreme Court. A recent source of debate with regard to the political construction of the judiciary is the ruling in Bush v. Gore (McMahon, 2005).

The Canadian Charter of Rights and Freedoms’ notwithstanding clause restrains political regimes without the necessity of a constitutional amendment (McMahon, 2005). In acknowledging Ran Hirschl’s contention that Canada has “surpassed the United States in terms of deference to the judiciary” (p. 48), McMahon asserts that Canada’s notwithstanding clause has been a non-factor. Expressing skepticism over its effectiveness, McMahon questions whether the notwithstanding clause “provide[s] a false sense of a democratic check… ” (p. 48), asserting that the clause does not restrain judicial power. In response to McMahon, the author of this report contends that the presence of the notwithstanding clause assures counter-majoritarianism and reflects the will of the majority. Canadian Parliament and the provincial legislatures have been cautious about invoking the clause due to the proverbial act of ‘political suicide’ that would be associated with such a challenge. In sum, the author of this report contends the infrequent use of Canada’s notwithstanding clause does not represent failure or judicial supremacy as openly suggested by McMahon, but instead demonstrates the government’s respect for the judiciary to enact democratic principles reflecting the will of the people.

Continuing to reflect on McMahon’s discussion:

            In reflecting on the aforementioned subject matter, the author of this report agrees with McMahon’s closing remarks that “the disuse of the notwithstanding clause is not a sign of its weakness, but rather the existence of a democratic connection between Canada’s governing regime and the judiciary’s decisions” (p. 50). Further supporting McMahon’s assertion that Canadians “would be wise to retain their ability to legislatively override their nation’s highest court” (p. 50), the author of this report contends the effectiveness of the notwithstanding clause lies with the political repercussions it wields. In assuring the enactment of democratic principles reflecting the will of the people through the Courts or through legislative action, the notwithstanding clause and its 5-year renewal provision allows Canadians to react in a democratic manner; dismissing elected representatives that have failed the constituency through abuse of the notwithstanding clause. The author of this report acknowledges McMahon’s notion that “the premise that all exercises of judicial review are counter-majoritarian is misleading” (p. 50), as well as echoing the sentiments shared as follows:

… during times of higher lawmaking, judicial action typically has some degree of democratic legitimacy by virtue of the Court’s link to the dominant national regime. However, during times of higher lawmaking, judicial action is more democratically suspect as holdovers from the previous governing alliance continue to staff the courts and may openly challenge the democratically elected institutions (McMahon, 2005).

Although the principles of the attitudinalist approach, judicial independence, and political regimes analysis may be prevalent when considering judiciary decision-making within the US Supreme Court, the author of this report contends that, when addressing issues of higher lawmaking, the Supreme Court of Canada has 2 forms of democratically sound principles: the will of the people, and the notwithstanding clause.

References:

Canadian Charter of Rights and Freedoms, Section 2, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

McMahon, Kevin J. (2005). Notwithstanding the notwithstanding clause: Political regimes and constitutional politics in the United States and Canada. Canadian Foreign Policy, 12(3), 45-52.

Challenges of the Correctional Services of Canada

Challenges of the Correctional Services of Canada

            Throughout the 20th century Canada has experienced changing demographics and an increase in crime rates that have presented challenges to the Correctional Services of Canada, the federal government agency responsible for the incarceration and rehabilitation of convicted criminal offenders (National Parole Board, 2009). With the changing demographics, such as Canada’s growing ethno-cultural diversity and heightened immigration levels, contemporary Canadian corrections continue to face unique challenges. The author of this report contends that dramatic demographic shifts, the expansion of diversity within Canada, and the growing involvement of Aboriginal peoples in the justice system have proven consequential; as such, these growing challenges position the Correctional Services of Canada in a state of uncertainty.

The author of this report surveys some of the pertinent issues at the forefront of the Correctional Services of Canada which, amongst others, include: the emergence of a more difficult offender population, specifically the prevalence of prison and youth gangs and the challenges presented by Aboriginal offenders; the latter of which complicated by what is expected to be an above-average growth in Aboriginal populations, alcohol and substance abuse and the repercussions of failed government attempts at assimilation dating back to the 19th century (National Parole Board, 2009).

Changing demographics: diversified gang affiliations in an ethno-cultured Canada

            Canada is defined by unique societal and cultural components that have intensified in recent decades; components such as an influx of allophones and observers of non-Christian religions are reflected in the culture and ethnicity of convicted criminal offenders. Changing demographics such as heightened levels of immigration and Canada’s growing ethno-cultural composition, respectively, have correlated with an increase in crime rates (National Parole Board, 2009).

As Canada continues to diversify, so do the backgrounds of convicted criminal offenders; the National Parole Board has identified the emergence of a more difficult offender population with lengthier criminal histories. A pertinent issue relevant to the backgrounds of offenders is the growing problem of more extensive gang affiliations; “… the impact on the community, justice system and health care system is also enormous” (Chatterjee, 2006, p. 3). The author of this report supports the contention that subsequent challenges of the Correctional Services of Canada, developing from more extensive gang affiliations in communities, are “…the growing prevalence of inmate gangs that are based on communities and import their affiliations and tactics into correctional institutions” (Griffiths, 2014, p. 140). With the aforementioned growth, the securities of correctional institutions in Canada have been affected by gang affiliations’ disruptive practices; practices, such as undermining rehabilitative programming, the distribution of contraband and supporting criminogenic values, have been associated with heightened levels of correctional violence (Winterdyk, 2009).

Additionally, the author of this report contends a forthcoming concern for the Correctional Services of Canada and many communities is the growing prevalence of youth gangs:

Scholars have identified a number of risk factors for the emergence and continuation of youth gangs. Research indicates that socio-economic (poverty and unemployment, actual or perceived disadvantage), family-related (dysfunctional, abusive or negligent family), school (poor academic performance and low attachment to schools) and community (disorganized, crime-prone and unsafe) factors that contribute to marginalization of youth, as well as negative individual/biological factors (anti-social attitudes, FASD) may contribute to the emergence and continued existence of youth gangs (Chatterjee, 2006, p. 3)

Albeit increasingly multiethnic, overrepresentation of Aboriginal involvement in youth gangs continues to persist despite representing a diminutive 6 percent of Canadian youth (Griffiths, 2014). In surveying the ethnic composition of youth gangs, the Canadian Police Survey reported in 2007 that an estimated 21 percent of youth gang members are Aboriginal (Linden, 2010); a statistic consistent with “exponential growth in Aboriginal gangs in urban and rural areas of the Prairie provinces” (Griffiths, 2014, p. 140).

Aboriginal Offenders, FASD, and overrepresentation in the criminal justice system

            Despite representing a diminutive 4 percent of the Canadian adult population, “there is a disproportionately high number of Natives in federal and provincial prisons and the rate of recidivism is high… ” (Yates, 2000). The legacy of colonization is essential in understanding the challenges that contemporary Aboriginal youths face. The heart of the assimilation strategy, the joint government and church residential school program of the 19th century, would prove to be a horrific failure; children of Aboriginal communities who were placed in an educational settings funded by Parliament suffered frequent physical, sexual and emotional abuse (Royal Commission on Aboriginal Peoples, 1996). The author of this report contends that repeated, failed government attempts at assimilation and Aboriginal displacement are reflected in fundamental issues that persist in Aboriginal communities (Royal Commission on Aboriginal Peoples, 1996). Griffiths (2014) asserts that the adverse effects of colonization are reflected in fundamental issues such as pervasive poverty, high rates of unemployment and low levels of formal education which plague Aboriginal youth and precede involvement in the criminal justice and corrections systems.

Ethnocentric and racist premises that developed during the 19th century, such as Natives being savage impediments to productive development, played a major role in precipitating alcohol and substance abuse problems within Aboriginal communities (Royal Commission on Aboriginal Peoples, 1996). The most pertinent form of alcohol and substance abuse that has plagued Aboriginal communities is Fetal Alcohol Spectrum Disorder (FASD); a term that canvasses “the full range of prenatal alcohol-induced impairments” (Aboriginal Corrections Policy Unit, 2010). First described in scientific literature in 1973, research studies have since secured a relationship between FASD and youth delinquency and adult crime (Griffiths, 2014). Persons suffering from FASD are subject to a heightened risk of alcohol and substance abuse and involvement in the criminal justice system.

The author of this report recognizes alcohol and substance abuse as a major concern to Aboriginal peoples and the Correctional Services of Canada. These ingrained disabilities that have resulted from alcohol damage to the brain, coupled with what is expected to be an above-average growth in Aboriginal populations, pose considerable challenges to the Correctional Services of Canada’s resources and personnel:

In contrast with the non-Aboriginal population, which is aging and experiencing a decline in the birth rate, Aboriginal communities are experiencing a baby boom, with increasing numbers of Aboriginal youth approaching what are perceived to be the most crime-prone years (National Parole Board, 2009, p. 13)

Conclusion: the response of the Correctional Services of Canada

            The growing prevalence of gang affiliations and Aboriginal overrepresentation in the criminal justice system, respectively, present unique challenges to the foundation of the Canadian corrections Correctional Services of Canada – the public, the police and the criminal courts (Griffiths, 2014). To adequately respond to the anticipated complications of gang affiliations and Aboriginal overrepresentation in the criminal justice system, the Correctional Services of Canada must prepare to employ evidence-based initiatives. The author of this report contends that, in addressing the growing prevalence of gang affiliations within communities and the criminal justice system, a multi-disciplinary effort is required, such as the implementation of comprehensive street gang reduction strategies encompassing prevention, intervention and suppression; “The National Crime Prevention Centre has funded several comprehensive street gang crime reduction programs… all are evidence-based and represent promising Canadian initiatives” (Linden, 2010, p. 22). In responding to Aboriginal overrepresentation in the criminal justice system, a more traditional approach is appropriate in re-engaging Aboriginal youth within their respective communities. The author of this report suggests a heightened level of community-based programs and continued reconciliation, returning responsibility to Aboriginal peoples; “First Nations… are designing and delivering correctional services in both communities and institutions… [which] include sentencing circles, community mediation, and sentencing advisory committees” (Griffiths, 2014, p. 307).

Reference

Aboriginal Corrections Policy Unit. (2010). Fetal Alcohol Spectrum Disorder and the Criminal Justice System. Ottawa: Public Safety Canada.

Chatterjee, Jharna. (2006). A Research Report on Youth Gangs: Problems, Perspective and Priorities. Ottawa: Royal Canadian Mounted Police.

Griffiths, Curt T. (2014). Canadian Corrections, Fourth Edition. United States: Nelson Education Ltd.

Linden, Rick. (2010). Comprehensive Approaches to Address Street Gangs in Canada. Ottawa: Public Safety Canada.

National Parole Board. (2009). Vision 2020 – Public Safety, Public Service. Ottawa: National Parole Board.

Royal Commission on Aboriginal Peoples. (1996). Report of the Royal Commission on Aboriginal Peoples: Volume 1 – Looking Forward, Looking Back. Ottawa: Indian and Northern Affairs Canada.

Winterdyk, John Fillipuzzi. (2009). Prison Gangs: A Review and Survey of Strategies. Ottawa: Correctional Service of Canada.

Yates, Richard. (2000). Introduction to Law in Canada. Scarborough: Prentice-Hall Canada Inc.

The Canadian Charter of Rights and Freedoms and the advancement of Quebec’s relationship within Canada

The Canadian Charter of Rights and Freedoms and the advancement of Quebec’s relationship within Canada

Analysing the necessity for the Canadian Charter of Rights and Freedoms:

The Charter came into effect in 1982, clarifying rights and freedoms in areas such as Legal Rights, Democratic Rights, and Fundamental Freedoms; albeit, the Constitution’s reassembly had a much stronger impetus: lessening the desire for Quebec to seek sovereignty from English Canada. The author of this report contends that since the enactment of the Canadian Charter of Rights and Freedoms the Quebec government’s battle for sovereignty has been suppressed. With this issue perpetually at the heart of political debate on all governmental fronts, the Charter has not only redefined the rights and freedoms of all French and English Canadians, but has also ensured the longevity of Quebec’s culture, language, and has successfully alleviated the pressure of the separatist movement. Had the task of drafting rights and freedoms, as refined in the Charter, been an uncomplicated undertaking, John Diefenbaker’s 1960 Canadian Bill of Rights would likely have confronted the issues that the Charter later addressed. Through the recognition of greater equality amongst the Francophone and Anglophone populations, the Charter has successfully alleviated the pressures of the separatist movement. The author of this report contends that the Charter’s perseverance through the Parti Québécois’ former and contemporary notions of separatism (Fraser, 2001), unison between French and English Canada has been better established and the linguistic tensions that exist within our country have, in part, eased.

The clarification of Language Rights –

English Canada yields to the Quebec government:

The discussion regarding Quebec’s sovereignty came to prominence during the 1960’s and peaked during the 1980’s with the Quebec referendum, cueing the Canadian Charter of Rights and Freedom’s enactment (Courchesne, 2004). Since the early 1970’s, the proportion of Francophone Canadians has continued in a downward trend. According to a 2006 census focussing on language demographics in Canada, Québec (80%) and New Brunswick (33%) were the only Canadian provinces which acknowledged French as their mother tongue above the national average of 22% (Lachapelle & Lepage, 2010). The beginning of this decline coincides with the beginning of the Parti Québécois and the Quebec separatist movement. The decline, as noted by Lachapelle and Lepage, gave appropriate reason for the Parti Québécois’ formation as they sought to protect their culture and language. To successfully moderate the separatist influence amongst Quebecers, the Charter focussed to ensure the longevity of Quebec’s culture and language – a shared focus of the Parti Québécois. According to Stickel in the recognition of languages in Europe, the use of terms such as “national language” and “official language” reflect the status of that particular language, as opposed to terms such as a “minority language” or “regional language” which are more imaginative, lacking awareness (p. 151). Furthermore, Stickel discusses xenophobia, the fear or hatred of foreigners, and its association with those who speak a lesser-used language within a particular country. Prior to the Canadian Charter of Rights and Freedoms, language rights in Canada were considerably vague. In order to ease the growing influence that the Parti Québécois possessed, the federal government needed to accommodate rights that would appeal to the Francophone population in Quebec. A heightened focus on language rights was evident throughout the Charter as there had been a noted absence of any such rights beforehand, and also due to the Quebec government’s desire to preserve the French language. The only notation of language and its use within the former Canadian Bill of Rights, for example, was a provision stating that no Canadian law may be drafted or applied so as to:

(g) deprive a person of the right to the assistance of an interpreter in any proceedings in which he is involved or in which he is a party or a witness, before a court, commission, board or other tribunal, if he does not understand or speak the language in which such proceedings are conducted (Canadian Bill of Rights, 1960).

In urging more equality among the Francophone and Anglophone populations of Canada, the Charter redefines the scope of language rights within sections 1622 and section 23, clarifying precedents and the Canadian Bill of Rights, as well as acknowledging the distinct society that is Quebec (Courchesne, 2004). Certain sections of the Charter and their respective provisions subtlety accommodate Francophone Canadians more so than Anglophone Canadian’s, primarily due to Canada’s ethno-linguistic situation the presence of the Parti Québécois and their ultimate goal of Quebec sovereignty. An example of this is section 23 – Minority Language Education Rights, which is documented within the Charter as follows:

… Citizens of Canada… 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… 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… Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language… (Canadian Charter of Rights and Freedoms, 1982).

Differing from its predecessor, the Canadian Bill of Rights, the Canadian Charter of Rights and Freedoms has carefully considered Francophone Canadians and the French language within the specifications of its provisions. Provided for Francophone Quebecers as per section 23, for example, whose families have remained solely in French-speaking Quebec for generations, is the inducement and opportunity to settle outside of Quebec, if they so desire. The lynchpin and inducing factor for this opportunity, of course, is for any potential offspring of such an individual to be guaranteed primary and secondary education in their respective first language. Prior to the enactment of the Charter, this would not have been provided by the government. Alternatively, this provision allows a potential influx of Anglophone Canadians to both Quebec and New Brunswick with the same opportunities for education. In sum, this provision works to eliminate the linguistic boundaries that English Canada imposes on Quebec, and fosters more accessibility between provinces.

Although the use of section 23 is equally applicable to both the Anglophone and Francophone populations, it is perhaps directed at lessening the sense of isolation that Francophone Quebecers must feel in a country that is predominately English-speaking in nature, as per section 16 (1) which states “English and French are the official languages of Canada and have equality of status and equal rights” (Canadian Charter of Rights and Freedoms, 1982). This leads to another set of provisions that adheres to the Francophone population with the objective of easing the growing influence of the Parti Québécois and to dull the discussion of Quebec sovereignty.

With the aforementioned decline in Francophone Canadians and the relationship that existed between the French and English populations, the author of this report argues that, despite only representing a fraction of the linguistic demographic in Canada comparable with that of a minority language, the distinction and reiteration of French as an official language throughout the Charter acts primarily as a liaison in balancing Canada’s ethno-linguistic situation. Overall, the Charter is more than accommodating to the linguistic needs of Francophone Quebecers and more clearly defines their identity as Canadians.

The aftermath of the Charter’s enactment –

Moving forward… synchronous relations:

Quebec has long proclaimed itself to be a “distinct society”, as noted by Courchesne (p. 4). It’s hard to argue that the Quebec government is anything but distinct given their strong opposition to the Canadian Charter of Rights and Freedoms. Between 1982 and 1985 the Quebec government used Section 33, the notwithstanding clause, in every piece of legislation (Johansen, 2012). Despite the Quebec government’s pronounced discontent with the Charter, the nullification of the challenges would later cease after their five-year life; this exposed a Quebec voice that was perhaps more content with remaining in Canada than the Quebec government was willing to admit. An example of this is noted by Johansen during 1993 when, after the expiration notwithstanding clause, “the Quebec National Assembly lifted the ban on English language sign and amended the law to require only that French be ‘markedly predominant’… ” (p. 7). Upon further examination of the failure of the Meech Lake Accord and the Charlottetown Accords, it is important to remember that the reigning political party in Quebec were the Parti Québécois during the respective discussions, held between 1987 and 1992. As such, the legitimacy of the Quebec government’s position in representing the Quebec population as a whole during the aforementioned accords is highly suspect; furthermore, the Quebec government’s former position regarding the Charter is questioned. Following the Meech Lake and Charlottetown discussions was the 1995 Referendum, which again failed the Quebec government’s ultimate goal for sovereignty, despite only losing by a slim margin (Gagliano v. Gomery, 2011).

Following the outcome of the 1995 Referendum, Reference re Secession of Quebec weighs the Quebec government’s power to unilaterally secede from Canada. Noted in the case Reference re Secession of Quebec is the Declaration on Friendly Relations, for which the right to self-determine secession originates. Following the notion to self-determine secession, the document states “that subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary to the Charter” (Reference re Secession of Quebec, 1998). It is concluded, however, that the Quebec people have not been victimized in terms of “physical existence or integrity, or of a massive violation of its fundamental rights” (Reference re Secession of Quebec, 1998), therefore Quebec has no right to unilaterally decide to secede from Canada. In the summary of conclusions to Reference re Secession of Quebec, it is stated that a clear referendum result would not be enough to allow Quebec`s succession from Canada, “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” (Reference re Secession of Quebec, 1998). The Court specifically cites the Constitution, which encompasses the Charter, as the preventing factor which denies Quebec the power to unilaterally secede from Canada. Furthering the point, the Court concluded as follows:

Although there is no right, under the Constitution or at international law, to unilateral secession, that is secession without negotiation on the basis just discussed, this does not rule out the possibility of an unconstitutional declaration of secession leading to a de facto secession (Reference re Secession of Quebec, 1998).

With this precedent the clarification of certain questions pertaining to the secession of Quebec from Canada, the ultimate goal of Quebec sovereignty has become more difficult for the Parti Québécois to acquire.

The other end of the spectrum –

The continued battle for sovereignty:

            The author of this report argues the role of the Canadian Charter of Rights and Freedoms in the suppression of Quebec’s separatist notions, not the complete elimination of such discussions. The discontent continually exhibited by the Quebec government following the Charter’s enactment resulted in the two aforementioned accords which had attempted to bring Quebec on-side with the values outlined in the document (Courchesne, 2004). Following the 1995 Referendum Quebec’s succeeding Premier, the Honourable Lucien Bouchard, “pledged to hold another referendum when ‘winning conditions’ were present” (Gagliano v. Gomery, 2011). This statement, coupled with the Parti Québécois resurgence, illustrates the continual presence of separatism within Quebec despite the Charter’s efforts to bridge the ethno-linguistic situation in Canada.

Conclusion –

Reflecting on the Charter-era and the progression of Quebec’s relationship within Canada:

            As long and the national number of Francophone Canadians continue to decline, there will almost assuredly be a political presence of the Parti Québécois and Francophone supporters in Quebec seeking sovereignty; given the recent minority government of Pauline Marois in Quebec, this much is certain. The Parti Québécois, however, have again forfeited influence as their recent move in defiance of the Canadian Charter of Rights and Freedoms, the proposed Quebec charter of values, has resulted in severe public backlash within Quebec and has resulted in a significant drop in Parti Québécois support (Edmiston, 2013). Despite political stubbornness and occasional regression in the relationship between French and English Canada in the years following the enactment of the Canadian Charter of Rights of Freedoms, the author of this report feels that the long-term impact of the Charter has achieved success, in part, in alleviating the influence of the Parti Québécois and Quebec sovereignty.

For decades, Francophone Quebecers searched for identity and a sense of nationalism (Fraser, 2001). With the rise of René Lévesque and the Parti Québécois, the hand of a predominantly English government in Canada was forced. The Government of Canada produced the Charter, which aimed at interpreting “in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians” (Canadian Charter of Rights and Freedoms, 1982); much to the chagrin of the Parti Québécois, it has been successful. In a reflection of the past 30 years there has been continuation of opposition to the acceptance of the Charter in full, albeit considerably lesser than opposition faced in the years following its immediate enactment. Through the Charter’s application of provisions, notably those in sections 1622 and section 23, the Canada outside of the Quebec government’s jurisdiction became less antagonistic to the culture and language of Francophone Canadians, collectively gaining more resemblance to La Belle Province in terms of: the recognition of language rights and providing education.

With the supporting documentation surrounding its reception and its use in the 30 years since its enactment, the author of this report can conclude that the Charter has successfully, in part, suppressed the Quebec government’s battle for sovereignty. Respectively, the Charter has advanced Quebec’s perceptive role and relationship within Canada.

References

Canadian Bill of Rights, SC 1960, c 44.

Canadian Charter of Rights and Freedoms, Section 2, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

Courchesne, Thomas J. (2004). The nature of Quebec-Canada relations: from the 1980 referendum to the summit of the Canadas. Montreal: Institute for Research on Public Policy.

Dunsmuir, Mollie. (1995). Constitutional activity from patriation to Charlottetown (1980-1992). Ottawa: Library of Parliament.

Edmiston, Jake. (2013, October 23). Quebec Liberals jump to 7% lead over PQ as backlash grows over values charter. The National Post. Retrieved from http://news.nationalpost.com/

Fraser, Graham. (2001). Réne Lévesque and the Parti Québécois in Power. Montreal: McGill-Queen’s University Press.

Gagliano v. Gomery, 2011 FCA 217 (June 29, 2011).

Johansen, David. (2012). The Notwithstanding Clause of the Charter. Ottawa: Parliamentary Information and Research Service.

Lachapelle, Réjean; Lepage, Jean-François. (2010). Languages in Canada 2006 Census. Ottawa: Canadian Heritage.

Peach, Ian. (2004). The Death of Deference: National Policy-Making in the Aftermath of the Meech Lake and Charlottetown Accords. Regina: Saskatchewan Institute of Public Policy.

Reference re Secession of Quebec, 1998 SCR 217 (August 20, 1998).

Stickel, Gerhard. (2010). National, regional and minority languages in Europe: contributions to the annual conference 2009 of EFNIL in Dublin. Frankfurt am Main: Peter Lang.