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The Canadian Jewish News, Thursday, October 22, 1992-Page 5
Canada
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It over
By PAUL LUNGEN
TORONTO -
Is the Charlotietown accord a document forged in the finest tradition of Canadian compromise — accommodating diverse interests while respecting hurnan rights — or does it represent a serious erosion of the fundamental principles enshrined in the Charter of Rights and Freedoms?
Just as Canadians at large are =at odds over that question, so too are a number of lawyers, law professors and others close to the constitutional discussions who were canvassed by Tfw UN.
For proponents of the accord, the deal is the best that can be managed given the many competing constituencies involved in the negotiations. Opponents of the agreement point to the "Canada clause" Uiat recounts at the accord's outset "fundamental Canadian values" and argue that the rights achieved under the Charter are so seriously eroded by the clause dial the entire accord should be voted down.
Lawyer Eric Maldoff is a strong supporter of the Charlottetown accord who is prepared to tackle critics of the agreement head on.
"I think the agreement represents a renewed commitment to a united Canada while providing all Canadians with the reassurance that the diversity of this country, which has been the source of so much of Canada's strength, is also acknowledged," he said.
Maldoff, founding president of Alliance Quebec and one of five co-chairman of the Committee of English Speaking Quebecers for Yes. called the accord "a negbuated agreement resiilting from [consultations with] an enormous number of Canadians" as well as being based on the input of political leaders representing diverse regions from across the country.
Bringing together so many elements and finding a workable compromise is one of Canada's strengths. Maldoff asserted. He served as legal counsel to the Liberal members of the Dobbie^Beaudoin Commission.
Referring to the contention that individual rights are weakened in the accord, Maldoff said "that argument is wrong. It displays a fundamental misconception. The constitution establishes the primacy of individual rights" as set out in the Charter.
"The Canada clause," he continued, "is merely an interpretive clause. It does not create rights. It says that when we interpret rights, we should take into account eight fundamental elements of Canada. . . It does not reduce through judicial interpretation what makes Canada unique."
The Canada clause must be read in conjunction vyith other subsections that reflect a conmiitment to human rights, racial, ethnic and gender equality, he said.
The recognition of Quebec as a distinct society merely affirms its existing powers to preserve its culture — it does not create new powers, he argued.
Referring to critiques that the Canada clause establishes a hierarchy of Canadians whose rights depend on their backgrounds, Maldoff said the rights of Canadians remain set out in the Charter. The Canada clause ' 'describes the diverse characteristics of Canada that make it unique.
"This is not creating classes of citizens,'* he argued, 'it is rnerely recognizing characteristics of Canadian society that Canadians hold dear to Uiem."
Minority communities like the Jews should understand Quebec's preoccupation with its survival, Maldoff said. "That assurance of survival and support is fundamental to Canadian unity." If Quebec feels that rest of the country is iiidifferent to its fate, Que-- becois may ask whether they'd be better off outside Confederation, he
added.
Critics of provisions allowing aboriginal self government should realize that natives are currenUy governed by the Indian Act. which is no less racially based than what Uie accord provides. The accord, on the other hand, moves away from colonialism and paternalism and recognizes that natives will take responsibility for themselves, he said.
Ann Bayefsky
Ann Bayefsky is one of the opponents of die accord who bases her opposition in part on its provisions
dealing with aboriginal self government.
Bayefsky, a professor of law at the University of Toronto, said "the Canada clause creates a hierarchy of rights. The government of Quebec and the governments of aboriginal peoples are given the power to undermine individual rights and freedoms in thd name: of collective needs. Weaker protections are given to linguistic minorities in comparison to the powiers of a distinct society and aboriginal peoples."
Furthermore, "very weak protection is given to the equality of rights of racial and ethnic minorities and for gender equality," she said. "These clauses contain no reference to a commitment by government to promote or achieve racial, ethnic or gender equality."
Jews in particular should be concerned that the Canada clause does not even mention religious minorities when it sets oiit the fundamental characteristics of Canada, she said. Apparently, "freedom from discrimination on the basis of religion is hot a goal considered fundamental to Canadian society and this ought to be of critical importance to Canada's Jewish population," Bayefsky said.
"I am surprised and dismayed that die Canadian Jewish conmiunity has chosen to ignore the threat posed by the Canada clause to the struggle to combat religious discrimination." she said. "After all, freedom of religion and freedom of discrimination on the basis of religion are parts of the Charter. But the Charter is quite deliberately hot set out as a fundamental characteristic of Canada," she pointed out.
Bayefsky suggested tiiat the Charter was deliberately downgraded in die Canada clause while Quebec and aboriginal leaders soughttoentrench collective rights in the constitution. The odier premiers and Uie federal
government have never supported the Charter, she said..
Referring to the argument that the Canada clause does not create substantive law but has merely an interpretive aspect, Bayefsky said "interpretation or application, as any lawyer knows, is nine-tenUis of the law."
Hershell Ezrin, who was principal secretary to Ontario premier David Peterson during the Meech Lake discussions, said constitutions need not be perfect instruments. They are documents that change and evolve. "We must measure a deal by a basic standard: is it an effective and creative document that helps us move forward," he said.
Ezrin, a member of Congress' community relations committee, believes the Charlottetown agreement fits the bill. It was developed in a situation where competing interests had to be balanced, he said.
Canada is a unique confederation in which collective and individual rights are balanced. The accord offers an appropriate solution to Uiat balancing act, he. suggested.
Referring to criticism that the accord enshrines undemocratic elements by guaranteeing Quebec 25 ^rcent of representation in the Com-inons, Ezrin said "Canadian democracy is safeguarded in the system we have. I can understand the con-. cems." but in the current system, there are examples where something less than pure democracy reigns.
Ezrin said it is important to examine the consequences of a No vote. "If we find die country becomes unstable, does the Jewish community benefit from that or from a government focusing on die constitution as opposed to odier issues," he asked.
Hershell Ezrin
Prof Lorraine Weinrib remain;* highly critical of the deal. Fundamental questions of how Canadians will govern Uiemselves have been left inadequately answered, the University of Toronto law professor said.
Based on a reading of die accord, Weinrib said she has "deep concerns about the relationship of the individu-, al to the government."
The Canada clause, which sets out the ftindamental characteristics of die country and which "form die prism through which Charter rights are interpreted," especially concerns her.
She feels diat the clause gives the court legal bases to interpret legislation in a manner diat could lead to die weakening of individual rights.
In addition, die existing override provision (which allows legislatures-to expressly remove die operation of the Charter from legislation for a period of five years) willbe applicable to aboriginal self-government.
These native governments may not be democratic — some may be \qA by hereditary chiefs, she said.
Furthermore, the Canada clause does not mention a commitment to re-
ligious equality or equal treatment of the aged and disabled, she said.
The Jewish community should be concerned by the accords since they are "a marked departure from the Charter."
Jews* historical experience should teach them that "there are no collective rights, only collective powers to impose (the majority] culture and priorities on everybody in society," Weinrib said.
McGill University law professor Irwin Cotler believes the majority of Quebec Jews will support the Yes side in the Oct. 26 vote, primarily because it represents a vote for the federalist agenda.
On the other hand, he said, many of them are uncomfortable with some of the agreement's particulars.
Coder said some may share the view that the accord creates a .hierarchy of rights and undercuts the principle of equality in the Charter — which diey may perceive as being bad for the Jews.,
And while he believes the Jewish community will .support die accord because of its federalist "subtext," Jews remain uneasy at the unusual alignment of political forces in Quebec which sees former Prime Minister Pierre Trudeau on the same side of the issue as Parti Quebecois
leader Jacques Parizeau.
Coder described the outcome of the vote as likely creating a lose-lose situation. A narrow Yes vote in which the province's non-francophones support the deal but in which the majority of the fan-cophone community voted No, may not have legitimacy in the eyes of nationalist forces, he said.
An outright majority No vote could lead to a political unravelling and political uncertainty has never been a comfortable situation for Jews, he said.
Whatever the vote, emotions have been raised by the ongoing debate and that could require a period after Oct. 26 to heal wounds, said Victor Goldbloom, Canada's commissioner of official languages.
Goldbloom said he has circulated a letter to religious leaders asking them to be prepared to mend die polarization and bitterness engendered by the debate.
He said that while he was remaining neutral in the constitutional di.scussions. he had asked Christian. Jewish and Islamic clergymen to base their post-vote sermons or church publications on the biblical precept to love your neighbor as yourself
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In the Nov. 12th "" issue of The Canadian lewisnnews