From: bross@spartan.ac.BrockU.CA (Brian J Ross)
Subject: A few of Trudeau's points
Organization: Dept of Computer Science, Brock University
X-Newsreader: Tin 1.1 PL4
Date: Sun, 4 Oct 1992 00:02:31 GMT

Just a few comments on Trudeau's points from his speech the other night,
excerpted in the October 3 Toronto Star.  Like everyone else on this
newsgroup,  I'm not a constitutional lawyer, and my comments on these
points are likewise that of an ordinary citizen with no background in
constitutional law.  I'm sure that constitutional experts would
pick apart my admittedly amateur attempt at an interpretation (I'm sure that
they'd disagree with each other also).

1.  Trudeau directs attention to the fact that the English text uses the 
    word "commitment" (eg. Canada Clause d,e,f,g), while the French
    text uses the word "attachment" -- an emotional movement towards something.
    This implies that, for example, the English text denotes a much stronger 
    responsibility of people and governments to promote their minorities 
    than the French text does.  By extension, Trudeau claims that the French
    government is not obliged to promote its minorities in the same sense
    as the rest of Canada.

Surely any competent lawyer such as Trudeau must realise that the French 
and English legal translations of the Constitution MUST have the same semantic
translations, as do the federal and provincial laws that have bilingual 
translations throughout the country.  Not having identical translations would 
be an indication of a grossly incompetent translation, in effect meaning that 
there would be two consitutions.  This is a trivial fact, and Trudeau knows
it.  He is obviously exagerrating a mistake in the current informal text of 
the agreement.  Yes, such mistakes are sloppy and unforgivable, and begs the 
necessity for a formal text.  But for Trudeau to use such hyperbole is 
nothing but dishonest. It's a straw man.

2.  Trudeau focuses most of his speech on identifying the class hierarchy
    which he claims the accord will introduce into Canadian society.  
    For example, Trudeau cites the text of the distinct society clause for
    Quebec.  He then states that judges will have to interpret any case that
    comes before them with this clause in mind.  He continues, 

        "It's not surprising that the cultural communities, apart from 
         deep-rooted Quebecers, are worried.  They aren't part of this
         unique culture.  They're quite a lot further down in the 
	 classification."

How does Trudeau derive a ranking between the Quebec as a distinct society
and minorities? I can only see three possibilities.  An obvious interpretation
is that the points in the Canada Clause are mutually exclusive.  But surely
they weren't intended to be so.  Two clauses relevant to Trudeau's point are:

	2c) Quebec constitutes within Canada a distinct society, which 
            includes a French-speaking majority, a unique culture and a 
            civil law tradition;

	2e) Canadians are committed to racial and ethnic equality in a
            society that includes citizens from many lands who have 
	    contributed, and continue to contribute, to the building of a
	    strong Canada that reflects its cultural and racial diversity;

There is no explicit hierarchy implied by them.  Another possibility is 
the semantic difference between "Quebec" and "Canadians", in that 
"Quebec" denotes the people and government, while "Canadians" denotes only 
people.  (This has also been a criticism comparing point d with other points, 
which states "Canadians and their governments", while other points state 
only "Canadians".)  I again feel that Trudeau is picking apart a textual 
weakness of the proposal.  I can't conceive that those involved in drafting 
the proposal would deliberately introduce semantic subtleties into the text 
which would enable such drastic hierarchical interpretations in a court of law.

A third possibility is the preamble:

	The Constitution of Canada, including the _Canadian Charter of Rights
	and Freedoms_, shall be interpreted in a manner consistent with the 
 	following characteristics:
	[ points follow ]

This is a seriously ambiguous statement.  The NAC is maintaining that this 
implies that the Charter can be overridden by the Canada clause 
("interpreted in a manner consistent with").  I feel that this is not the 
intent of the accord, and is another example of a lack of rigor in the text. 
In any case, this preamble doesn't imply that points 2c and 2e
have any precedential ordering between one another.

3. Trudeau states how point 2a), the commitment to a parliamentary
   government and rule of law, is irrelevant to aboriginals, since under
   article 41 they can make their own laws.

It appears Trudeau decided to ignore article 47:

	A constitutional provision should ensure that federal and provincial
	laws will continue to apply until they are displaced by laws
	passed by governments of Aboriginal peoples pursuant to their authority.

	A constitutional provision should ensure that a law passed by a 
	government of Aboriginal peoples, or an assertion of its authority
	based on the inherent right provision may not be inconsistent with
	those laws which are essential to the preservation of peace, order
	and good government in Canada. However, this provision would not
	extend the legislative authority of Parliament or of the legislatures
	of the provinces.

The apparent intension of article 47 is to avoid the legislative anarchy 
which Trudeau says is inevitable.

-----

I'm getting as weary of typing as you are of reading this, so I'll end.  
To those on the net who respect Trudeau's opinions on the accord:  this 
posting isn't intended as an inflammatory attack on Trudeau (as fun as 
those attacks are).  I've considered Trudeau's points, and I can't help
but think that he and other No proponents are articulating a very pessimistic
interpretation of the accord that ignores its intent. Rather than considering
the accord as being a legally arbitrative recognition of Canada's pluralistic 
nature, they would rather interpret its elements as being antagonistic
and irreconcilable.  Most telling is that he and others seem to be basing
their interpretation on subtle nuances of the document text ("Canadians" vs 
"Quebec" vs "Canadians and their governments"), and are ignoring the overall
intent of the Charlottetown negociation.  Trudeau's point about 
"commitment" vs "attachment" is dishonest and inconsequential.

I agree that a precise, unambiguous constitutional text is required.
The current text distributed to the public is sloppy and ambiguous, and
the No side is exploiting this sloppiness, albeit in bad faith.
If the final text takes the same form, then I will definitely consider
voting No (assuming we see the text before the referendum date). 
I especially want to see the Canada clause preamble clarified.

But if Trudeau and others are going to contrive criticisms based upon
textual ambiguities, and ignore the general philosophical intent of the 
accord, then I won't join their side.

( Is the Friendly Giant really voting Yes? )

-- 
Brian Ross                         "I fell into some ice and your scientists 
bross@sandcastle.cosc.brocku.ca     thawed me! Your modern world frightens and
                                    confuses me!" -- Unfrozen Caveman Lawyer
Newsgroups: can.politics