From: bross@spartan.ac.BrockU.CA (Brian J Ross)
Subject: Re: A few of Trudeau's points
Organization: Dept of Computer Science, Brock University
X-Newsreader: Tin 1.1 PL4
Date: Sun, 4 Oct 1992 20:41:22 GMT

golchowy@alchemy.chem.utoronto.ca (Gerald Olchowy) writes:
: [...] 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.

You are interpreting the different grammatical subjects of these 
clauses as directly implying a hierarchical power structure.
I don't see how this follows at all.
The preamble of the Canada clause states that the entire constitution
is to be interpreted in consideration with the 8 characteristics.
If these characteristics are not taken as being mutually exclusive,
then there is no hierarchical interpretation of them.


: >
: >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.

But characteristic 1, that "Canada is a democracy committed [...] to the
rule of law". Aboriginal peoples are Canadians. Their right to self-government
is to be interpreted with Canada's democratic principles in consideration.
The Canada Clause characteristics hold for the interpretation of the entire
document.

: 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.

The most important criteria in testing a constitution is that it is
interpreted in accordance with its intended functional purpose.
Trudeau's and others criticisms are attacking textual nuances of the
document which were not intended by its creators (unless of course all
the parties involved are lying through their teeth).

Using your analogy, say we find parts of a program that are erroneous.
One course of action is to correct the errors. Are they syntax errors
(ie textual nuances of the constitution text)?  Or is the program's 
specification wrong (the proposed model  of consitution and country?)
Most of the No side is suggesting that we delete the whole program because 
it is simply *wrong*, rather than point out the corrections which would make 
them happy.  I suspect that, in Trudeau's case, he hates the model which is
implied by the proposal -- the devolution of federal powers.  However, he is
criticising this model by dwelling on syntax.

Remember: any constitution, no matter how immaculately worded it is,
can be interpreted in almost any manner you want.  The constitution
of the ex-Soviet Union had little effect on promoting human rights
or legislative democracy under Stalin. The American constitution's 
declaration of equality among peoples did nothing to prohibit a century
of slavery.  We should therefore be arguing about what the accord is
intending to accomplish, rather than speculate about what it might rightly
or wrongly imply.

: 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...

The real problem in the past few months is that you cannot competently
draft a consitution under a ridiculous deadline.

As far as moral and philosophical repugnance goes, well, I disagree. 
Granting aboriginal self-determination is one of Canada's proudest
moral victories. (Although I'm sure many a Euro-Canadian cringes at
the thought of those savages trying to rule themselves.)  Trudeau's
indifference whether Quebec accepts the constitution is my definition
of moral repugnance.

: 
: 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.  

Please explain why you believe this is the case.

-- 
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