I provoked some folks yesterday by suggesting that Canada's Charter of Rights and Freedoms is pretty weak, given the ability of Parliament and of provinces to opt out by using the Notwithstanding clause.
The comments indicated that there are norms not to over-use it, that it does not protect the language stuff I mentioned since Quebec has the right to do what it pleases in this area, and that protection of culture/language trumps individual rights.
My problem is not so much with what has happened but with what can happen. Norms are fragile reeds on which to base one's confidence in the political system. I tend to look to institutions and incentives. And that is where the problem lies/lays/resides. Institutions already privilege the state's rights to impose upon individuals, despite language in the rest of the Charter suggesting otherwise. Incentives exist that make recourse to notwithstanding clause a temptation to politicians and a threat to political minorities (those folks who cannot win majorities, whether it is due to ideology, language, race, or whatever).
Let me speak to incentives. Canada and Quebec have first-past-the-post electoral systems, where pluralities of votes are turned into majorities. This has not happened at the national level for a while, as the existence of a regional voting bloc (the Bloc Quebecois) upsets the math. This empowers Quebec in a variety of ways at the national level, particularly given that a party can only gain a majority in the Parliament (for now) if it is able to gain enough seats in Quebec at the expense of the BQ and the other parties. So, because of this and because of the ongoing tensions, Quebec can do pretty much what it wants. That is an exaggeration perhaps, and, again I am not a Canadianist or a constitutional scholar, but I am a scholar of ethnic conflict.
Anyhow, what is really important for me is that within Quebec, it is essentially once again a two party system where the two compete for 90% of the vote (the other 10% are Anglophones who have no place else go politically other than the Provincial Liberals)* and, by the way, the voting districts are designed to marginalize Montreal. So, whichever party gets enough francophone votes wins a majority of seats, and given the various institutions in play, this gives that majority party a great deal of power, including the ability to legislate against the interests and perhaps rights of minorities. This looks a whole lot like ethnic outbidding, and it reminds me a whole lot of Sri Lanka from the 1950's to the 1980's where the two parties competed to be the best at protecting the Sinhalese, resulting in the marginalization of the Tamils. I am not saying that the Anglophones in Quebec would face the same level of violence as in Sri Lanka (before that, more would leave as others have done so). Just that the institutions and proportions are very, very similar so that the political dynamics here combined with the lack of institutional protections (because of the existence of the NW clause and the possibility of its use) create a climate of fear and uncertainty: there are no barriers to tyranny of the majority.
I am very, very, very worried about reforms to Bill 104 since there are actors actively seeking to end my ability to send my child to private school because we are immigrants. The PQ and its allies are making such noises. Why would a political imperiled Jean Charest take the hard road and protect the folks whose votes do not matter, when he can play the nationalist card instead and curry favor with the hawks on the language issue? While I have not started looking for rental housing in Cornwall or Plattsburgh, I have google-mapped to see how far my commutes might become if I have to leave the province but still work at McGill. And why? Because I fear tyranny of the majority.
Of course, the irony is that much of the past in Quebec is driven by their own experience with tyranny of the majority--that Anglophone Canada oppressed Francophone Quebec. So,what is good for the goose ..... means that there are not institutions nor sentiment about protecting the minorities, but rather a willingness (as exemplified by the reasonable accommodation hysteria of the past few years) to stomp on the rights of some minorities to assure the majority that the imaginary threats have been squashed.
Tomorrow I will address where the threats are coming from and why Quebec cannot really do much about it.
* I find that the anglophones in Montreal are very much like African-Americans in the Democratic Party since they cannot really support the PQ. The ADQ ran against Montreal so that was not really an option either.