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 16 – 22 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 16 – 22 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.
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