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Time to End the Charter's Shameful Treatment of Anglo-Quebecers

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"There is another clause," Warren Allmand declared in the House of Commons on December 1st, 1981, "which is so offensive to me and so unacceptable that I cannot vote for the resolution; that is, Section 59."

Liberal Party stalwart. Member of Parliament for more than 31 uninterrupted years. Holder of three cabinet positions in successive Liberal governments from 1972-9. Appointed president of the International Centre for Human Rights and Democratic Development from 1997 to 2002.

The resolution for which this devotee to human rights refused his assent was one introduced by his own party. It was, arguably, the most important ever introduced in the history of Canada's parliament: the Constitution Act, 1982.

The exercise that has come to be known as the patriation of Canada's constitution included, for the first time, an entrenched bill of rights, the so-called Canadian Charter of Rights and Freedoms. Finally, Canadians would have what they thought would be the equivalent to that which their American cousins prided themselves: constitutionally guaranteed individual rights and freedoms to take precedence over any other law passed by the federal parliament or the 10 provincial legislatures. Legislation henceforth enacted would have to adhere to the Charter or risk being ruled inconsistent with this "supreme law" and be determined to have "no force or effect" to the extent of the inconsistency.

How then could Allmand possibly find himself on the opposite side of his own party at this most historic juncture? It wasn't the Charter in and of itself that he found so offensive; it was a provision found outside the text of the Charter, hidden in the most obscure part of the document, buried near the end, under the heading "General." Most students of the Charter have to take magnifying glass in hand and examine the footnotes found in the fine print at the bottom to discover that to which Allmand objected.

Section 59 exempts Quebec -- and Quebec only -- from the first subsection of section 23 of the Charter. Titled "Minority Language Educational Rights," section 23 provides the right, where numbers warrant, for members of either the English or French language minority in any province to send their children to publicly funded schools in that language.

There are many problems associated with section 23, not the least of which is the enabling of segregation in Quebec through the test of descent, a topic to which I devoted an entire blog entry. However, subsection 23.1.a presents its own outrage because it provides for an additional asymmetry of rights.

Immigrants from French-speaking countries, such as France, whose first language learned and still understood is French, can come to any of the English-speaking provinces outside Quebec, become citizens, and have the constitutional right to send their children to French publicly-funded schools.

However, immigrants from English-speaking countries, such as the United States, whose first language learned and still understood is English, and who come to Quebec and become citizens, do not have the constitutional right to send their children to English publicly-funded schools.

Charters of rights are supposed to protect minorities but, as Mr. Allmand observed, "Section 59 is a discriminatory clause in a resolution which is supposed to do away with discrimination."

All it would take to eliminate this inequality is a proclamation by the legislature or government of Quebec. Yet the allegedly pro-Canadian party that is currently in power in the National Assembly, Jean Charest's Liberal Party of Quebec, won't even discuss the issue. In the never-ending battle to demonstrate to the electorate which party can best bash its English minority, Premier Charest can't show the slightest perceived weakness in the fight for the soft nationalist vote, the swing demographic that makes or breaks Quebec governments.

Another excuse is that the province never signed the 1982 Constitution Act and, therefore, refuses, as a matter of principle to partake in any constitutional amendments or enact provisions associated with it, such as section 59. However, this didn't stop the Parti Quebecois in 1997 under then Premier Lucien Bouchard from working with Ottawa to amend the constitution in order to create linguistic school boards.

On the federal side, no party broaches the issue as there is virtually no political hay that can be reaped by sticking up for a minority which makes up less than 10 per cent of the Quebec electorate. The excuse is always: this is provincial jurisdiction and we therefore have no say in the matter. Of course, this hasn't stopped the NDP from advocating for an expansion of Quebec's Bill 101, the Charter of the French Language, to extend to federal institutions in Quebec.

It is estimated that implementing s. 23.1.would mean approximately 10,000 students currently enrolled in French language schools in Quebec becoming eligible to attend English schools. From a high of 250,000 students in 1972, the English school system has seen its student population dwindle to some 100,000 today.

The English school system is an institution battered by Bill 101, which has contributed more than any other factor to the devastation of Quebec's English-speaking community. Conversely, the francophone system in Quebec today boasts approximately 900,000 students. Those 10,000 anglophones would represent a mere one per cent loss for the French school system -- assuming all would leave and go to English schools -- but a badly needed 10 per cent boost for the anglophone system.

A one per cent loss. In other words, a crumb.

Is Stephen Harper truly committed to human rights and equality? A strong and united Canada? Let him show us. Thirty years is more than enough time for this inequality to exist. The Conservative Government has an obligation to do everything in its power to pressure the Charest Government to implement s.23.1.a: withhold "goodies" for Quebec; put a stop to those sweetheart deals, arranged for Quebec's benefit at both the public and private levels; stop appeasing Quebec nationalism and what has, up to now, been an incredibly lucrative and successful formula to procure "booty" from Ottawa: the contrivance of blackmail, performed with gusto and fervor by PQ and Liberal government alike over the past 40 years.

Now its time for some badly needed quid pro quo to come from the Quebec side to show that they are the equal partner to Canada they claim to be. Let that alleged federalist, Charest, cease his pandering to the soft nationalists, a strategy which has characterized his nine year tenure as Premier of Quebec.

West of Montreal's St. Denis Street -- the imaginary demarcation that divides Quebec's two solitudes -- Charest speaks a bold, pro-federalist game; eastwards, he is hard-pressed to say anything positive about the country he once sought to lead as Prime Minister. Enough is enough, Charest; either you're committed to Canada and its values or you're not. Implementing section 23.1.a would be a good first step.

Warren Allmand stood up against the injustice of section 59 more than 30 years ago. To this day, few Canadians realize that section 59 even exists. No greater evidence demonstrates the aberration of human rights and equality that is section 59 than the provision itself. Its third subsection provides for its own self-destruction:

This section may be repealed on the day paragraph 23(1)(a ) comes into force in respect of Quebec and this Act amended and renumbered, consequentially up the repeal of this section...

A constitutional provision that is designed to be wiped clean from the sacred document itself, never to be seen again, as if it never existed in the first place? I can think of no greater justification for the offensive Allmand professed to take more than 30 years ago.