Byline: HARRY J. GLASBEEK and MICHAEL MANDEL
BY HARRY J. GLASBEEK and MICHAEL MANDEL THINGS are getting pretty uncomfortable for those of us on the left wing of the No side. Preston Manning and Pierre Trudeau have offered such repulsive reasons for voting No that there is a danger that a strong No vote in English Canada would be interpreted in purely right-wing terms as yet another Anglo rejection of Quebec and aboriginal aspirations.
But there are good reasons for people on the left to vote No that have nothing to do with Mr. Manning's or Mr. Trudeau's arguments.
Preston Manning is wrong that the Charlottetown accord gives too much to the aboriginal peoples. There is nothing in it that would make a difference to the shameful social conditions native communities and individuals have been forced to endure in Canada.
The deal amounts to just two things: First is an unenforceable promise by federal and provincial governments to negotiate self-government agreements, without any promises on their content. Second is an undefined "inherent right to self-government" whose implications remain to be worked out, but only after a five-year waiting period, at the complete discretion of the Supreme Court of Canada - on which there has never been an aboriginal person.
It is just not possible to claim this is "too much." Is it better than nothing?
There is no point in stressing the importance of self-government agreements; they already have been negotiated and concluded without this accord. The most that can be said is that the accord is symbolic. But symbols can cut two ways; they can encourage action or encourage complacency. Time will tell whether the governments are sincere and whose side the courts are on (which can amount to the same thing, given who appoints the judges).
And what happens when the aboriginal peoples lose their political leverage, as they will if the Yes side wins? This accord depends too much on the good faith of governments with a proven record of a lack of it, and not enough on concrete protections to be of significant value to aboriginal peoples.
Pierre Trudeau is also wrong. The accord does not give too much to Quebec. It gives back none of the jurisdiction that he himself pilfered from Quebec while in office - in language and education, for example, which the 1982 Constitution transferred to Ottawa, via the Charter of Rights and Freedoms, over Quebec's perfectly justified objections.
The "distinct-society" clause sounds like a major concession, but its impact depends on the Supreme Court's interpretation. The court has already decided that Quebec is, constitutionally speaking, a distinct society. It did so in the French-only business-signs case of 1988, in the very act of striking down the Quebec law. This purely interpretive clause will not protect Quebec from anything.
There are also serious losses for Quebec. The Supreme Court's power can only be enhanced by the unprecedented complications of this deal, which leave all the fundamental questions to be resolved by the court. But Quebec will lose the absolute right it obtained in the Meech Lake accord to have three of the judges selected from lists submitted by Quebec governments. Ottawa will now have the power to reject Quebec nominees, in which case the chief justice - a federal appointee - will have the authority to appoint "interim judges" for terms as long as it takes for the Quebec government to come up with nominees acceptable to the federal government.
Worse yet is the new Senate, in which Quebec has only six of what will be at least 62 seats. In most instances, the new Senate can combine with the opposition in the Commons to help defeat government legislation. Quebec's protection is supposed to be the special powers of francophone senators over language and culture. But according to the agreement, francophone senators can come from anywhere in the country, not just from Quebec.
It is precisely because this accord and referendum set out, once again, to muzzle the genuine expression of Quebec aspirations - including the possibility that its people might, if asked, vote for sovereignty - that it should be defeated. You would need a terminal case of Trudeaumania to think it gives too much to Quebec.
And the reasons for voting No? Judy Rebick and the National Action Committee on the Status of Women argue that the accord is bad because it endangers the Charter of Rights. But this is the same charter that the Supreme Court used to strike down the "rape-shield law" that the NAC fought so hard for, to protect victims of sexual assault.
More recently, the court decided that the guarantee of freedom of expression protects neo-Nazis from being prosecuted for their deliberate lies about the slaughter of Jews during the Second World War. Charters of rights produce judgments like that, and the particular wording does not seem to make much difference. More often than not, we need protection from the charter, not for it.
On the other hand, Ms. Rebick is right about the dangers to Canadian social programs as a result of the decentralizing thrust of this accord. And Ontario Premier Bob Rae is wrong to argue that social programs have been protected by his "social charter." Does anyone think the Royal Bank would try to scare us into voting Yes with its outlandish claims if it thought Mr. Rae had got anything in the accord that was against business's interests? After the fuss kicked up over public auto insurance and the mild labour-law reforms the Ontario NDP has proposed?
Business has read the fine print, and it knows that the "social-union" clause, with its talk of the "the goal of full employment" and "protecting the rights of workers to organize and bargain collectively," is a bunch of unenforceable platitudes. Far from protecting social programs, it merely tries to cover up the various NDP governments' failure to do anything concrete to protect the public sector from the onslaught of global business aggression.
Business knows that the decentralizing thrust of the accord, and especially the enhancement of Senate powers, weakens the labour movement by transferring national power to the provinces where labour is most vulnerable. This means that, should there ever be a real labour-oriented government in Ottawa, it will have a much tougher time doing anything about the Free Trade Agreement, the GST or the tax system in general.
There is an even deeper reason to vote No. This accord takes people's heartfelt aspirations for equality, democracy, self-government, the preservation of one's culture, job security, decent health-care and education, and manipulates them for political ends. The promoters want us to believe they have protected these dreams in the Constitution, but with fine legal print they have made sure there is no protection at all, nothing that could put any brakes on the powerful forces - "market forces" - that the promoters have unleashed to destroy them.
The accord, indeed this whole business of constitutional politics, is an attempt by Canada's political class, from Brian Mulroney to Robert Bourassa to Bob Rae, to avoid their deep responsibility for the mess Canada is in, and to convince us there is nothing they can do about inequality, poverty, unemployment, insecurity and violence except put meaningless words in a constitution that we can argue about for decades while the country goes down the drain. The basic reason to vote No is to prevent them from getting away with it. Harry J. Glasbeek and Michael Mandel are professors at York University's Osgoode Hall Law School in Toronto.