WhatFinger


The tragedy of the 104 decision

Freedom is indivisible



Whenever freedom’s indivisibility is violated, we are obligated to register our protest. Particularly when that violation occurs in our own backyards. And precisely when what we are defending is the sovereignty of individual choice. For the freedom to choose is the heart of a free society. It is the object lesson in the difference between liberty and tyranny.

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Last Thursday the Supreme Court of Canada not only compromised that freedom – it compromised it’s own integrity. By ruling Quebec’s Bill 104 unconstitutional on the grounds that it breached minority language rights protected by Sec.23 of the Canadian Charter of Rights and Freedoms, but then delaying the executability of its own judgment for a year in order to give the Quebec government time to find a more palatable method of breaching those self-same rights, the Court politicized itself to the point of self-abnegation. A right is a right is a right. Neither the Charter, nor any document ever penned, can create a right. All the great documents of mankind reflecting our transcendent yearnings for redemptive change, either mirror the freedoms we are inalienably born with or strive to enshrine equitable arrangements for their expansion. The latter is what the Charter attempted in guaranteeing minority-language education rights everywhere in Canada. That, the Supremes recognized. But then they left the door open for the violation of those rights again. Nothing can make that conscionable. One wonders if an individual had violated some national criminal or civil statute, would the Court uphold the law but give the individual a year to get around it? Of course not. This decision was driven by political expediency. It sought to uphold principle and pander to power at the same time. That balancing act has never worked in the whole lamentable history of this world. It merely cheapens the public’s regard for justice. It is interesting to note that so many were shocked when the Mouvement souverainiste du Québec (MSQ) called for a demonstration outside the offices of lawyer Brent Tyler who won the 104 case. Among the reasons the MSQ gave for the demonstration was that Tyler should learn that “challenging Francophone rights has consequences.” People were stunned at the implicit threat linked to the word “rights.”. But why should they be. If the Supreme Court can prejudice a right through legal machinations, how much less legitimate is it for the MSQ to prejudice that right – as well as that of free expression - through physical menace? It is only a question of degree. It is the Court itself that has cheapened Canadian conscience and constitutional consequence and left the door open for thugs. The Supremes have not learned that appeasement never works. As Churchill said, “An appeaser is someone who feeds the crocodiles hoping they’ll eat them last. But eat them he will.” In the 104 reference the Court’s decision signaled that Quebec cannot dismiss through legislation all private English-language education. The court insisted that English-eligibility certificates be handed out on the basis of a nuanced “global qualitative assessment of a child’s educational pathway.” The Court made clear that Quebec cannot discriminate in limiting access to English education. Yet in giving Quebec a year to find a non-discriminatory method of closing the springboard into English education, it sustained the general Quebec objective of social and political marginalization of minorities and the language rights that adhere to them. In so doing it not only failed in its duty to uphold Charter protection for minorities, it also inherently narrowed the scope of opportunity for Francophones. The Court did not act justly. The standard of a just society cannot be carried lightly, and the burden of it has fallen from many hands throughout history. Each generation must be vigilant that it not slip from its grip. 
In trying to imbue political correctness and pandering into our laws , or judge laws through those prisms, all we do is encourage the perversion of our most sacred trusts by appeasing every special, regional and ethnic interest that seems to pose a threat. Rights and freedoms are indivisible. If we want to enjoy them we must be prepared to extend them to everyone to the greatest degree possible. That is the hope of this nation. That is what Sec.23 tries to do. Ironic is it not that this section was known as the “Canada Clause.” That’s who the Supremes really let down. This country!


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Beryl Wajsman -- Bio and Archives

Beryl Wajsman is President of the Institute for Public Affairs of Montreal editor-in-chief of The Suburban newspapers, and publisher of The Métropolitain.

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