Thursday, March 31, 2005

The Charter will be our Epitaph

If anyone doubted that our Supreme Court acts in accordance with its own political and social sensibilities, they need doubt no more. Today's Supreme Court decision regarding whether French Quebecers can choose to be educated in English was so blatantly politicized so as to make our Supreme court judges virtually indistinguishable from our politicians.

As I understand it, the high court ruled that people who immigrate to Quebec – from both inside and outside Canada – can not be denied the right to have an English education. Nor can non-Francophone Quebecers. However, French people born in Quebec have no constitutional right to an English education.

Please note this point - the Supreme Court has ruled that the people asking for fair treatment have no constitutional right to do so. Oddly, the Court didn't comment on whether the Quebec government has the constitutional right to deny them fair treatment. Hmmmmmmm......

We should all be very concerned with this message from our Supreme Court. But we should also feel a certain measure of empathy for them. After all, as a group of political appointees and social activists posing as judges, they have a tough row to hoe. In this case, for example, they obviously had trouble balancing the need to make a fair, legally sensible decision with the need to appease Quebec’s nationalistic sensibilities and xenophobic language practices.

Call me silly, but I always thought the Charter was supposed to provide equal rights and freedoms to all Canadians, regardless of which province they were born in or which language they speak. Unfortunately, our Supreme court judges have thrown that principle to the wind. According to them, the Quebec government can deny certain educational rights to Francophones born in Quebec, while extending those same rights to Anglophones born in Quebec or anyone born outside Quebec.

However, as concerning as it may be for a government to deny rights to some while giving them to others, there’s something much more insidious going on here. In reality, this ruling makes a very loud and very troubling statement about whose rights the Charter actually protects. You see, I always believed that one function of the Charter is to protect individuals from being discriminated against by the state. I now know that this is a sad and sorry myth. According to this ruling, the Charter is really an instrument for protecting the state from the individuals it is discriminating against.

In other words, the state doesn’t need to prove it isn’t violating the charter by excluding you or discriminating against you. No. Rather, it is you who must prove that the Charter is being violated by your exclusion. Get it? You only have as many rights as the Charter explicitly gives you. The state, on the other hand, has all the rights except those explicitly taken away by the Charter. Talk about a stacked deck.

We have truly reached a sad and sorry period in the history of our Charter-driven, Court-run, faux-democracy when our Charter of Rights and Freedoms is usurped by the state to protect it from having to provide equal treatment to its citizens.


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