Happy Charter Day! And the importance of an "s"

Today's the 30th anniversary of the formal adoption of the 1982 Constitution Act and the Charter of Rights and Freedoms. A lot of ink has been recently devoted to the Harper government's non-observance of this day. I could add to this, but instead I'd like to draw your attention to the text of the formal statement issued by Heritage Minister James Moore and Justice Minister Rob Nicholson which was originally posted here. I say "originally posted" lest the initial text be changed.

The full statement reads:

Statement by the Honourable James Moore, Minister of Canadian Heritage and Official Languages, and the Honourable Rob Nicholson, Minister of Justice and Attorney General of Canada, on the 30th Anniversary of the Proclamation of the Constitution Act of 1982

OTTAWA, April 17, 2012 - Today marks the 30th Anniversary of the Proclamation of the Constitution Act of 1982, which was formally signed by Her Majesty Queen Elizabeth II on April 17, 1982, in the presence of tens of thousands of Canadians on Parliament Hill in Ottawa.

This anniversary marks an important step in the development of Canada’s human rights policy. Building on Diefenbaker’s Canadian Bill of Rights of 1960, the Constitution Act of 1982 enshrined certain rights and freedoms that had historically been at the heart of Canadian society into a constitutional document known as the Charter of Rights and Freedoms.

The Constitution Act of 1982 empowered our government to amend every part of Canada’s constitution, for the very first time.

As we look ahead to Canada’s 150th Anniversary in 2017, we encourage all Canadians to commemorate the milestones that have built our nation and made us the great country we are today.

There are all sorts of things that can be critiqued about this statement, starting with the omission of the Prime Minister and architect of the deal, Pierre Trudeau. But because I'm in a peculiar mood, let me instead draw your attention to paragraph 3 of the statement. There's a rather important little "s" that is missing from the end of the word "government". Because as any constitutional expert worth their salt knows, most parts of Canada's constitution cannot be amended by any single government. In some cases, it takes at least two, in most it takes eight (seven provincial governments representing 50% of the population, plus the federal government), and in a few key areas it takes eleven governments to amend the constitution.

So unless there is a super-secret plan by the Harper government to start unilaterally amending the constitution, his ministers' staffers did a terrible job proofing that mediocre statement.

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French immersion in court will not succeed on Charter grounds - hopefully it will on procedural ones

New Brunswick parents, understandably upset with the province's incomprehensible decision to axe early French immersion programs, have decided to challenge this decision in court. According to the article in the Globe and Mail, they are claiming both that the province did not adequately consult with interested groups and that the decision violates their Charter rights to have their children educated in French. (Update: In stories on other news sites, the Charter issue does not appear.)

I can completely understand why the parents thought that legal action might help them win their case. Faced with recalcitrant legislatures, various interest groups, including French language minority communities, have found that Canadian courts are more willing to defend their rights. However, when it comes to French immersion, there is no right entrenched in the Charter that these parents can appeal to. In fact, in the 1980s, the New Brunswick courts explicitly ruled that Acadian parents have no right to send their children to French immersion schools - the section 23 right only applied to their right to send their children to French-language minority schools. Recent decisions in Quebec have also ruled that Quebec francophone parents did not have the right to educate their children in English, nor to send them to French immersion schools. The Charter protects the right to an education in one's mother tongue - not in one's second language. Second language education is, unfortunately, a privilege granted by the provincial legislatures.

Back in the early 1980s, Canadian Parents for French did lobby to have the Charter include the right of parents to educate their children in the official language of their choice, but this was rejected by the participants in the 1980-1982 constitutional talks.

I wish the parents well in their quest to have early immersion and core FSL reinstated in the province, and hope that they might succeed in having the courts rule in their favour on some other grounds. However, they should not pin their hopes on the Charter - Canadian jurisprudence is quite clear on this issue, and it is against the parents.

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