Tuesday, 24 April 2012

Quebec, Canada and the Scottish Question

The English language Canadian press is in a tizzy over comments former Liberal leader Michael Ignatieff made to BBC Scotland in a recent interview. Many are outraged by the statements - which Ignatieff via press release has decried as being taken out of context - as essentially giving comfort to the sovereigntist cause. No doubt the Parti Québécois will be delighted with the statements as proof of the inevitability of an independent Quebec. This would hardly be surprising as the PQ - and indeed it's federal cousin the BQ - will contort any statement to conform to their plans.

Monday, 16 April 2012

Harper, Quebec and the Constitution at Thirty

A Commonwealth is said to be instituted when a multitude of men do agree, and covenant, every one with every one, that to whatsoever man, or assembly of men, shall be given by the major part the right to present the person of them all, that is to say, to be their representative; every one, as well he that voted for it as he that voted against it, shall authorize all the actions and judgements of that man, or assembly of men, in the same manner as if they were his own, to the end to live peaceably amongst themselves, and be protected against other men Hobbes, Leviathan                                                                                                                 
While the initial burst of pettiness surrounding the general reluctance of the Conservative government to celebrate the thirtieth anniversary of the patriation of the Constitution, and by extension the Charter, is not surprising, statements made by the prime minister are particularly troubling. Harper seemed to evoke the ghost of former Quebec premier René Lévesque in his cited reasons for downplaying the event, particularly the discord surrounding Quebec's 'missing signature' on the document. While they seem slight, Harper is doing two very problematic things at once. First, he is unwisely reopening old separatist wounds at a time when support for sovereignty is on the wane. Second, Harper undermines the legitimacy of the Constitution itself and, by extension, the groundwork of this country's governance.

A few points need to be addressed here. First, the notion that Quebec's signature on the document somehow undermines the process is without grounds. It was entirely within the purview of the imperial parliament (Westminster) to amend the existing British North America Act. Indeed, while undesirable, unilateral action on the part of the central government would have been acceptable. In the Supreme Court's Patriation Reference, the court noted three important points. First, the court noted that a constitutional convention had taken affect whereby the central government should not act unilaterally but was expected to consult with the provinces. Second, and directly tempering the first point, the court found that unanimous consent was not required. Third, while the convention had developed, Ottawa was not legally bound and, as such, was free to seek terms for patriation. Ottawa fulfilled its duty to consult with the provinces, reaching a deal with all but Quebec. The process, constitutionally and legally speaking, was sound. Moreover, it could reasonably be argued that under the terms agreed to under the existing constitution, Quebec was bound the process.

That Quebec's signature is missing from the document is the product of personality - in the form of René Lévesque - and parochial provincial politics. It is likely nothing short of some form of sovereignty association  - a form of union violating the initial terms of the compact - would have sufficed. In the face of unreasonable demands to play to the ideological and political machination of the home audiences, Lévesque was unwavering. Quebec's demands would have fundamentally altered the terms of Confederation and, as such, entirely negated the point of such a union. More importantly, however, is the fact that, in subsequent actions, Quebec has tacitly endorsed the provisions of the Constitution Act, 1982 by making use of its terms and, more explicitly, by amending the document itself. Quebec cannot claim the document lacks its signature when that province has affixed its seal on more than one occasion. This, it would seem, gives consent to be governed by the document. Indeed, from a strictly Hobbesian vantage point, the initial agreement to form a polity could not be invalidated by Quebec alone, nor was renewed consent required.

After thirty years, the absence of Quebec's formal signature on the document should not be seen as a  barrier. While unfortunate, however, it does undermine the legitimacy of the document. Moreover, given that the public democratically rejected mega-constitutional reform in favour of the status quo, the decision of the Canadian people as a whole should take precedence. Beyond this, if the federal government was serious about bringing Quebec unquestionably into the constitutional firmament, it has the means to do so. As Cameron and Krikorian argue, the use of a bilateral amendment between Ottawa and Quebec City could provide one potential avenue. 

Harper's unfortunate comments combine an unending animus against Liberal Canada with a will to do whatever it takes, regardless of the dangers, to bury his enemies. His disdain for the Charter and the values it represents - equality and language rights in particular - are no secret. The widespread popularity of the Charter coupled with the fact of its authors makes it a difficult pill for Harper to swallow, particularly as the document - and the courts as its arbiters - are likely to slow  his agenda in the coming years. As a result, he has chosen to try and ignore it.

The decision to ignore the broader patriation, however, it problematic and entirely hypocritical, especially as the government is prepared to spend millions celebrating the War of 1812 and Queen Elizabeth's diamond jubilee. While the war is important - although vastly overplayed in significance as it was fought by British citizens, citizens who would not think of themselves as Canadians for over another century - it pales in comparison to the historic significance of 1982. This anniversary marks Canada's final steps toward becoming a fully sovereign and independent nation after decades of constitutional wrangling. It is this event - and particularly the entrenched Charter of Rights and Freedoms - which inform Canada's notion of itself, far more than a distant colonial war fought for king and empire.

That Harper would focus on a marginal event instead of the formative constitutional event binding the country speaks volumes to his pathology. (Freedom of thought and conscience guarantees the right to be petty.) Sadly and event that could be used to further unite Canadians is being squandered because of the ideological dictates of the government which see partisan divisions as more important than respect for governing institutions. Indeed, if the constitution doesn't warrant respect and administration - whatever its flaws may be - what does? While patriation at the time was met with indifference, it's centrality to the country is beyond question, even if there are those who would deny this fact. 1982 solidified Canada's independence and brought with it a greater, more secure set of freedoms for Canada. Try as hard as he might, Harper can't entirely ignore this reality. 

The Charter Legacy or: Why the Right Hates Freedom

Judging by the hyperbolic idiocy of the right wing media (and right wing trolls posting in the blogosphere), the Charter of Rights and Freedoms - entrenched in the patriated Constitution Act, 1982 - was the biggest mistake in Canadian history. Full stop. The Toronto Sun claims audaciously that the "Impact of the Charter polarizes us still". Certainly aspects of the Charter are polarizing, but his likely has less to do with the document itself than the effects of judicial review and unpopular Supreme Court decisions. On the issue of the Charter itself, however, there is no ambiguity.

Indeed, a poll conducted to ascertain public reaction on the twentieth anniversary of the Charter found overwhelming support. Only 4.5% of respondents considered Trudeau's bill of rights in the negative. Far from being 'polarizing', that Charter became intimately linked with Canadian identity. The eminent scholar of Canadian politics Alan Cairns has gone so far to label this phenomenon "Charter Canadians", identifying as the bearers of rights. For Cairns, the Charter represents a "citizens' constitution", fundamentally enhancing the notion of Canadian citizenship.

The British North America Act was a constitution of governments. It set out the relationship between institutions and levels of government, regulating the relationship between the central government and the provinces. As such, it mediated solely the rights via federalism, making little to no mention of the rights of individual citizens apart from a few collective rights (religious education, for instance). The introduction of the Charter fundamentally altered this calculus. From 1982, the relationship between government and citizens was codified and enshrined constitutionally. It recognized that, not only are Canadians entitled to certain rights, but that the state had reciprocal duties to individual citizens. Moreover, it expanded rights beyond basic political and legal rights to include social rights.

The Conservative government has done much to downplay the importance and centrality of the Charter of Rights and Freedoms to the Canadian polity. Harper has gone to great lengths to extol Diefenbaker's 1960 Canadian Bill of Rights. Indeed, this document is an important milestone - the first bill of rights in the Westminster world - yet it was limited by its lack of scope and purview. The bill was statutory only. It lacked constitutional status to set it above all other laws. Secondly, being a statute of the federal Parliament, it applied only to those institutions and areas over which the central government had control. Moreover, the Canadian Bill of Rights had little effect on the relationship between the government and citizens and essentially codified existing practice. It enumerated existing rights and failed to expand them. Secondly, the bill was part of a myopic view of Diefenbaker's 'One Canada' vision of the country which ignored fundamental differences between regions and individuals and, in essence, ignored the French fact in favour of a more white, British version of Canada. While recognition is due, Dief's bill had limited impact on the nature of Canadian citizenship or the behaviour of the judiciary.

While Harper is correct in one sense to laud this accomplishment, it is clear that he is doing so for less than forthright reasons. Indeed, given Harper's pathological aversion to any of the accomplishments of the Liberal Party - and especially Trudeau - his lack of interest is understandable. This is, however, a superficial explanation. The Conservative opposition of the Charter is much more deeply engrained and ideological. First, it runs counter to the narrative of Canadian identity propagated by the current government. Rather than emphasizes points of commonality around social rights and entitlements, Harper has actively sought to fix Canadian identity on a more militant footing, hence the focus on the War of 1812 - an imperial war fought not by Canadians but by staunchly British subjects and won, largely, by Native allies of the Crown - or the modern wars of Europe. Indeed, it ignores other nineteenth century developments in a collective Canadian identity - the rebellion of 1837 and the fight for responsible government - or the growth of social citizenship in the mid-twentieth century centred around social entitlements. 

Second, the staunchly neoliberal Harper views the expanded notion of rights beyond a few political (voting, standing for office) and legal (due process) rights to be anathema. They are an overreach of the state. Indeed, given the his legislative agenda, the expanse of political and legal rights included in the Charter itself are likely more generous than Harper would allow (since due-process hasn't been something particularly high on his agenda).

Third, one of the larger problems with the Charter goes beyond the provision of the rights. What the document has done is more profound. It has fundamentally altered the power balance in Canadian society by bringing those groups previously on the margins of society into the process, particularly by way of the courts. This has been one of the most longstanding complaints of the Charter: the so-called judicialization of politics. Right-wing critics like Morton and Knopff - authors of the awful yet influential The Charter of Rights and the Court Party - label those groups attempting to achieve public policy goals through the courts as 'special interests' intent on subverting the legitimate democratic process by utilizing the courts. This duo has host of acolytes, such as Ian Brodie - Friends of the Court - essentially replicating this stale, unthinking argument. Even more nuanced scholars, such as Janet Ajzenstat, decry the usurping of power away from Parliament by the courts and away from democratic institutions.

These scholars all miss the point entirely. What they ignore is the glaring fact that these groups were denied entry into the very 'legitimate democratic process' through which Charter critics claim they should be engaging. This includes a host of marginalized groups: women, Gays and Lesbians, Aboriginals and racialized groups. The courts offered a way, not to undemocratically direct public policy, but to claim rights as citizens that had been denied to them prior to 1982. Critics also ignore another glaring fact: the direct abdication by Parliament by its own accord. One need to look only at the abortion debate or marriage equality as examples. In both cases the courts were handed a loaded political question that the legislature was unprepared to tackle for want of courage. Indeed, Liberal and Conservative prime ministers - Martin and Harper - have both deferred to the courts in order to avoid opening contentious issues which could have hurt them politically. Finally, critics ignore the fact that - in both the pre- and post-Charter eras - dominant groups have regularly used the courts as a means to solidify and consolidate their power. The use of courts as a tool to affect public policy is nothing new. What is new is that the Charter provided a way for marginalized groups to use those same processes to claim the political, legal and social rights to which they are entitled as Canadians.

Finally, much of the criticism - particularly from lay persons commenting viciously about the Charter - has seized on official bilingualism. These critiques are as unthinking as they are racist. First, they speak to engrained intolerance of francophone Canadians. The language used has been vitriolic and hurtful. Second, they are entirely ignorant of the history of the country and the role of Quebec. Indeed, they ignore that it was the people of Quebec who first called themselves 'les Canadiens' and not the English. These complains attempt to deny the reality of francophone Canada, attempting to impose onto Canadian identity something that is linguistically and culturally English in origin and fact. It also ignores the attempt - albeit a failure as far as Quebec is concerned - by Trudeau to reinforce a pan-Canadian identity and to make Quebecers welcome in their own country. The Charter reflects the reality of Canada, one that does not simply replicate the notion of the country outside of Quebec. It acknowledges the central role of Quebec in Confederation. Anglophone Canadian critiques ignore the reciprocal nature of language guarantees in the Charter.

Those voices that are critical of the Charter carelessly take for granted that the rights that exist today were protected by the 1960 bill of rights or generally before 1982. They ignore the expanded legal protections, for instance, the enshrining of due process. They ignore the entrenchment of mobility rights, guaranteeing the right of any Canadian the right to work anywhere in the country, to move to seek new opportunities and the right to services - especially health care - regardless of where in Canada they happen to reside. They ignore the protection of fundamental rights: religion, conscience, assembly, association and freedom of the press, rights that were often precarious prior to 1982. 

The Charter, like all political documents, is imperfect. It represents the the good intentions and limitations of its drafters. It is incomplete - it consciously omitted rights based on sexual orientation and identity - and potentially limited - the notwithstanding clause, while rarely invoked, nevertheless constitutes a limit on rights as does the open-ended disclaimer of section 1. Yet it remains the most expansive bill or rights in the Westminster world and one of the most emulated globally. While it failed to convince French Canadians, it has nevertheless, as Kenneth McRoberts notes: "become for many English Canadians a central feature of their sense of a Canadian political identity" (1997: 185). Far from being 'polarizing', the Charter has been an unambiguously positive development. Beyond simply affirming rights and privileges, it has become the bedrock of Canadian citizenship and identity. Canadians, unlike their federal government, recognize this fact.

Further Reading:

Alan C. Cairns. Charter Versus Federalism: The Dilemmas of Constitutional Reform.
Kenneth McRoberts. Misconceiving Canada: The Struggle for National Unity.
Peter H. Russell. Constitutional Odyssey: Can Canadians Become a Sovereign People?

Friday, 13 April 2012

The Charter and the Idiocy of "Conscience Rights"

While I normally ignore Alberta politics, one issue in particular - the notion of 'conscience rights' - has emerged as an election theme with broader implication. This, combined with the upcoming thirtieth anniversary of the constitutional patriation, and thus the entrenchment of a bill of rights in the form of the Charter of Rights and Freedoms, makes for an interesting debate over the limits of various rights, particularly when they compete. Not surprisingly, the federal government - whose leader is averse to the Charter on a number of grounds - has decided not to mark this momentous occasion with anything more than a press release. Never mind that this document is somewhat of an anomaly in the Westminster parliamentary world and, indeed, one of the fundamental identifying features of the country. Indeed, Alan Cairns refers to "Charter Canadians", expressing the magnitude of the attachment between this document and Canadian identity. 

The reluctance of the federal government to acknowledge this is a product of a pathological reticence on two grounds. First, a refusal accept any remnants - even one as fixed and permanent as the Charter - of Liberal Canada. The fact that Harper chose to extol the virtues of Diefenbaker's 1960 bill or rights rather than Trudeau's charter speak volumes to this. The Charter is a product of the enemy and thus something to be ignored if it cannot be eliminated. Second, there is a qualitative dimension to this. For Harper and his ilk, the Charter is something to be hated because of its very nature. Unlike Dief's document, which was merely statutory and federal, the Charter is entrenched and largely unalterable. As such, it is difficult to get around. More importantly, the scope of the two is much different. While the bill of rights referred mostly to political and legal rights, the Charter is much more sweeping, including a host of equality provisions. It actively tries to ameliorate disparities based on a host of enumerated grounds - particularly sex - and thus fundamentally alters power balances. This is the reason why right-wing Charter critics - Morton and Knopff, Ian Brodie and the like - have attacked so vociferously the notion of judicial review. What they lament is not the process but the outcomes. Their arguments are largely hypocritical and off-base.

As the thirtieth anniversary of the Charter approaches, the right wing media has already begun to unleash a torrent of anti-Charter rhetoric. For instance, Brian Lilley writes an unthinking tirade accusing progressives of 'bending the Charter'. This is essentially what Lilley and those on the right are doing themselves. Contorting the document to suit their own political ends. Indeed, it is a very selection reading. Lilley triumphantly asserts that, since freedom of religion is listed first in the Charter, it must take precedence. He writes: "In fact, it is the first fundamental freedom that the government is supposed to protect".  It is certainly true that these are listed first, but this does not mean that subsequent rights become secondary when questions of 'conscience and religion' come into play. Certainly democratic rights, listed after fundamental freedoms, are no less central. This is a strange argument to make, that ordering in the document makes that much of a difference. Indeed, legal rights are listed after mobility rights, so by Lilley logic these rights take a backseat.

One of the problems the courts deal with often in Charter cases is weighing competing rights. This is a delicate operation and a thin line, particularly as cowardly legislatures refuse to broach contentious issues, leaving the courts in the precarious position of weighing public policy options. They are acutely aware of this problematic aspect of the law. What critics on the right, in touted the supremacy of Section 2(a), ignore is the reciprocal claims of others to these very same rights. In claiming section 2 for themselves, the right is attempting to deny this to others. Moreover, they mistakenly assume that religious thought is the paramount right (ignore that religion itself follows conscience in general). They cannot explain how their rights trump the claims of others and, indeed, why others should be relegated to silence. 

More troubling, however, is there complete and utter ignorance of other Charter provisions. Most notable here is the omission of section 1, which states that all rights are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". Instead, proponents cherry pick their favourite sections and read into them a more absolutist (and American) conceptualization of rights as immutable and absolutely inviolable. They ignore the sections of the Charter they disdain - particularly the equality provisions in section 15 - and latch on to those they approve of. More troublesomely, they attempt to deny rights to others by erecting an artificial hierarchy of rights which does not exist. In Canada rights are balanced, not ranked.

Beyond this, critics also misunderstand the purpose of the Charter. The document sets out the relationship between the government and its citizens, proscribing the limits of what is justifiable intrusion for the state. Importantly, however, the Charter was intended also to be a bulwark protecting minorities against the excesses of majority rule. The notion was that rights could be maintained regardless of majority opinion on the matter. As such, the Charter has been largely used to expand rights rather than limit them. This is an aspect that critics do not understand.

On the one hand, critics like Lilley extol their own rights to be treated justly by the state. On the other, however, they deny this to others. In the case of so-called 'conscience rights', they ignore the state's reciprocal responsibities under section 15 to treat all citizens equitably. 
15(1) Every individual is equal before and under the law and has the rights to equal protection and equal benefit without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical ability
In the provision of public goods, including marriage licenses, the state has a duty to treat all citizens equally. As such, public employees those same duties. To allow some individuals to neglect their duty based upon some so-called religious belief goes beyond the pale of reasonable accommodation.

Demands for accommodation based on 'conscience rights' is little more than a wrong-headed to sanction and justify homophobia. Indeed, homophobia remains the last publicly defensible forms of bigotry that is tolerated by society. It stretches credulity to cite religion as an excuse to justify inequitable treatment by the state. A simple thought experiment illustrates this. Take for instance an individual who refuses to execute her job fully by issuing a marriage license to a same-sex couple on that grounds that it runs contra to her beliefs as a Catholic. Now, replace that gay couple with any number of pairings: an interracial couple, individuals from another faith or two handicapped Canadians. Refusing to discharge one's duties on these grounds would be met with ridicule and would not be accommodated. When it comes to the rights of gay and lesbians, playing the religion card is still accepted by many as an excuse to recognize the rights of others. 

Take another scenario. Part of the logic of 'conscience rights' is that the public sphere should conform itself to suit the "section 2" rights of religious individuals (notice, they're predominantly Christians). This is part of the logic also of the argument against marriage equality: that the existence of someone contrary to one's beliefs in someway impedes the exercise of those rights. So, in the case of marriage equality, a lesbian couple's nuptials is an active detriment inhibiting the religious rights of a Catholic family. It's an asinine argument, yet it has a great deal of weight with many. Now take the argument to its extreme. Nothing runs contrary to the beliefs of Catholics like Islam. Following the anti-gay rationale, the state should ban the practice of Islam because it runs contrary to the teachings of the Vatican. Indeed, the Protestant church (those heretics!) would need to be silenced as well. Majority rule means the dominant religion in Canada - Catholicism - takes precedence. Again, the argument is asinine in every context except in relation to homosexuality. Something about homophobic bigotry has a strange effect on rational thought.

Claims to 'conscience rights' are little more than a demand that an individual's homophobia be recognized and respected by others and the state. It colonizes the public sphere in the name of religion and attempts to force sexuality back into the closet, into the private realm. Somehow there is a right to religious expression in public, yet when it comes to the expression of sexuality in public - itself an exercise of freedom of conscience that, by Lilley logic, supersedes religious freedom - section 2 need not apply. The whole argument demonstrates a profound ignorance about how the Charter operates or it's larger goals. Right wing (largely religious) arguments attempt to maximize their own claims to rights while denying them to others. They see their own rights as inalienable and immutable, yet the same claims by others as subject review. Moreover, they ignore the overriding imperative of the Charter to protect minority rights - of language, religion, gender and (thanks to the courts) sexuality - instead assuming that majority rule dictates the provision of rights. The religious right certainly has a claim to freedom of conscience and religion, of thought, belief, opinion and expression. What they don't have is a right to force their view of the world on the state or on others. Section 2, after all, comes after Section 1.