From: golchowy@alchemy.chem.utoronto.ca (Gerald Olchowy)
Subject: Re: A few of Trudeau's points
Organization: University of Toronto Chemistry Department
Date: Sun, 4 Oct 1992 15:34:52 GMT

In article <1992Oct4.000231.7553@spartan.ac.BrockU.CA> bross@spartan.ac.BrockU.CA (Brian J Ross) writes:
>
>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.
>

It wasn't a mistake...it was an intentional mistranslation widely
reported by the media...basically because they couldn't agree...Bourassa
wanted the weaker Meech Lake clause, and Rae and McKenna wanted the
language of the Official Languages act...so they compromised...and put
the one Bourassa wanted in French, and the one Rae and McKenna wanted
in English...with the hope that most Quebec nationalists would read
the French version and be happen, and the Francophone minorities in
TROC would see the English version and pray that a future Supreme Court
will choose the English version rather than the French.

>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.
>

Your forgetting the one other significant clause...you've quoted from
section 1, which gives the legal text of the Canada Clause...but only
from the proposed 2.1 which gives the fundamental characteristics, and
not 2.2...which gives effect to the distinict society at the highest 
rung of the ladder.  The proposed (2.2) is "The role of the legislature
and Government of Quebec to preserve and promote the distinct society is
affirmed."

The aboriginals get the second rung...because of the proposed (2.1.b)
where it says of aboriginal governments that "their governments
constitute one of three orders of governments in Canada".

The linguistic minorities get the third rung because (2.1.d) gives
them "Canadians and their governments".

While the other collectivities mentioned get "Canadians only"...

And the collectivities not mentioned in the Canada Clause, but get
mentioned in Section 15 of the Charter of Rights come next.

Followed by the collectivities and individuals who are not mentioned
in the Canada Clause or Section 15 or because the Charter itself is
not mentioned in the Canada Clause as a fundamental characteristic.

Words matter in constitutions...the words clearly set up a hierarchy.

>
>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.
>

The aboriginal governments need not be democratic or parliamentary and
will have access to the notwithstanding clause...and hence the rule of
law as it applies to other citizens of Canada.

>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.
>

When you write a computer program...you test it considering worst-case
scenarios, and see if the algorithm is robust and will survive...this
is how constitutions should be tested...words have meaning...and the
worst-case scenarios must be considered.

>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.
>

The Canada Clause is already the legal text already...the fact that
it is confused and self-contradictory (and morally and philosophically
repugant to me)...makes one wonders about how the similarly confused
and muddled non-legal draft will emerge as legal text...Supreme Court
Justices are likely to be faced with many directly conflicting
philosophical principles.

>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.
>

The philosophical intent of the Accord is chaotic....the can with a 
straight face use the phrase "individual and collective rights" when
philosophically that is an either/or propostion.  The assert that
the government will be federal and parliamentary, and then entrench
executive federalism...which is about as non-parliamentary as you 
can get.

Gerald

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