- His favourite word was constitutional.
Last in Parliament October 2000, as Liberal MP for Vancouver Quadra (B.C.)
Won his last election, in 1997, with 42.14% of the vote.
Statements in the House
Member For Vancouver Quadra October 19th, 2000
Mr. Speaker, I will not be a candidate for a third parliamentary mandate in the forthcoming general election. When the Prime Minister invited me to become a candidate in 1992, I said I would limit myself to two terms at most. I see no reason to depart from that today.
In leaving the House, I am not entering on early retirement. I am resuming my work in other national and international arenas like the Institut de Droit International, of which I am the current president.
Thank you to the electors of Vancouver Quadra for their kind support and warm encouragement through two successive terms.
I want to thank MPs of all political parties for their friendship, co-operation and goodwill.
The Late Dr. Michael Smith October 16th, 2000
Mr. Speaker, world renowned scientist Michael Smith died of leukemia on October 4, 2000 at the age of 68.
From England he came to the University of British Columbia in 1966 as a graduate researcher. His professional life was associated with UBC from that time onward.
In 1993 he was awarded the Nobel prize in chemistry for his research on DNA. A modest man, he gave away all of his Nobel prize moneys to scientific research and to the development of future scientific leaders.
His influence is apparent in several of the revolutionary ideas present in the last several federal budgets: the millennium scholarship fund, the 2000 chairs of research excellence and the Canadian Institutes of Health Research.
Canada's Olympic Basketball Team September 27th, 2000
Mr. Speaker, British Columbia's Steve Nash has led the Canadian basketball team to the top of their section heading into the quarter-finals at the Sydney 2000 Olympics. In their last game, Canada upset the defending world champions, Yugoslavia, 83 to 75. Nash once again was the catalyst in that game, scoring 26 points with 8 rebounds and 8 assists.
We congratulate Canada's Olympic basketball team on their inspired performance at the Sydney Olympics as they approach a first Olympic medal in basketball since the 1936 Berlin Olympics where we won the silver medal.
Petitions September 18th, 2000
Mr. Speaker, I am pleased to present a petition signed by 139 residents of Vancouver Island. It relates to divorce. Taking note of the divorce rate in Canada, the petitioners call on the Parliament of Canada to take immediate steps to amend the Divorce Act, taking into consideration the recommendations made by the parliamentary Special Joint Committee on Child Custody and Access.
The Late Mel Smith September 18th, 2000
Mr. Speaker, the late Mel Smith served as constitutional adviser to the government of British Columbia through a number of different premiers.
B.C. constitutional positions included the notion of the province as a distinct society, a constitutional idea accepted and confirmed by the present federal government in a joint resolution of both Houses of parliament recognizing B.C. as a fifth region within the federal constitution.
His book Our Home or Native Land? aroused lively debate as to the constitutional status of aboriginal land claims and the Nisga'a treaty in particular. The federal government expressly provided in the federal legislation enacting the Nisga'a treaty that it is legally subject to the constitution and the charter of rights.
Crimes Against Humanity And War Crimes Act June 13th, 2000
Mr. Speaker, I know the hon. member has fought a long time to get full respect for committees and the plenary powers they have in the elaboration and drafting of bills. I would simply repeat that on this particular section the amount of time given to this particular bill in the standing committee was extraordinary. It was an example to all other committees. It involved 10, 12, 14 and 16 hours of point by point elaboration. May I say that in my capacity as president for the next two years of the Institut de droit international, it was a superb performance and a great credit to the quality of our committees. We have four international lawyers in parliament and I am told that is 400% greater than the British parliament, the United States congress or others. I signal the contribution of others in the committee. The committee did a remarkable job. I do not think there is any rush. Some may even have said that we spent too much time.
Crimes Against Humanity And War Crimes Act June 13th, 2000
Mr. Speaker, the point I have been making is that with the progressive development of international law under the United Nations charter, it is a step in international law, initially sponsored by Judge Lachs and that very interesting dissenting opinion in 1968, that non-signatories to an international treaty can be legally bound by the treaty either, to use an analogy, because the treaty becomes, by virtue of the number of states signing it, part of customary international law, or because the sheer number indicates it is part of the general principles of law recognized by nations under article 38(1)(d) of the World Court statute.
What we are saying here is, beware. The mere fact that a country does not sign, does not mean that it can escape responsibility. I do expect that with the progressive development of international law, further steps may be taken to extend jurisdiction through the Security Council or elsewhere over non-signatory states where the gravity of the offence suggests it. However, at the moment we are working with friendly persuasion.
When we spoke several months ago to the French minister, Mr. Richard, a most interesting and thoughtful gentleman, we made the case for France signing and ratifying the treaty, and it has done it. We are hoping we can persuade other countries, the other four members of the Security Council, to feel the same. It makes good sense.
We asked United States senators in Washington several weeks ago why they did not sign, because they are the strong force behind the war crimes tribunal on Yugoslavia, but it really does not make much sense for them to say they are taking themselves out of jurisdiction.
Canada is very proud of its forces and has full confidence in them. We say that we will accept their subjection to the war crimes tribunal on the former Yugoslavia, That was an act of faith, but it has not gone wrong. I am satisfied that the Canadian forces acted in full conformity with international law in their part in the Kosovo action.
Crimes Against Humanity And War Crimes Act June 13th, 2000
Mr. Speaker, I will be sharing my time with my colleague and friend, who is a distinguished jurist in his own right, the hon. member for Mount Royal.
In speaking in the third reading debate to the crimes against humanity and war crimes act, I will take note of a fact, which I think is rather exceptional, that the debates in the Standing Committee on Foreign Affairs and International Trade were exhaustive and at a very high level of technical competence. It reminded me of what the late president of old World Court, Manley Hudson, called an academy of jurists. In that sense, although it is still possible to offer projects of amendments, I hope that some of the parties will accept what I am doing, simply make points of clarification in the debate which courts can take note of as part of the travaux préparatoires in their future interpretations.
My first point is that the bill is enacting into Canadian law the provisions of an international treaty. As a matter of law, of Canadian constitutional law, it suffices for Canada to be bound by an international convention that we sign and that we ratify by executive act. In fact we gave this opinion to the foreign minister when I was parliamentary secretary a little earlier on the land mines treaty, because we wanted to send the symbolic message of the treaty coming to legal conclusion within a year of opening for signature. We could ratify without the enacting legislation and be legally bound. The practice since the privy council decision in the labour convention case in 1937 has been to recognize that since a legislative power to implement may be split sometimes between provinces and the federal government, it makes good sense to await provincial action. I mention that, nevertheless, because that is the position in law.
In implementing the treaty the Canadian government creates new jurisdictional bases and also new substantive bases of criminal liability or delinquencies within Canadian law. I would like to add this point because it does relate to some of the amendments I think suggested by the Bloc and by the New Democratic Party. It does not per se displace customary international law. I would suggest that except to the extent that customary international law may be in direct conflict with Canadian constitutional law or legislation enacted thereunder, it is in force and is a supplement to the treaty. There may be jurisdictional and other difficulties in implementing, but it is there.
I would simply refer to your notice, the judgment of the World Court in Nicaragua v United States, rendered by 15 votes to 1, in which the court refused to accept that the adoption of the United Nations charter had pre-empted all of international law, that it was all under the charter and nothing else. It said that was not so. Customary international law still prevails and the court based its judgment in Nicaragua v United States on customary international law.
A third point arises after the Rome treaty becomes law. It comes into force in international law when it is ratified by the 60 states stipulated as necessary to enact it. I raise the question: Does it bind non-signatory, non-ratifying states? I would here suggest the five permanent members of the security council. I am delighted to learn that the French government has decided to ratify this treaty. That is a breach in the opposition of the five permanent members of the security council that we had in Rome.
Monsieur Richard, the French minister of defence who was here several months ago, discussed this very earnestly with some of us and I became convinced that France would come through and I hope it will be an example to other permanent members: Russia, Great Britain, China and the United States, not least. There was the then heretical opinion by the brilliant Polish judge, Manfred Lachs, the most interesting judge in the post-war world court, in the North Sea Continental Shelf case, a dissenting opinion, but he did say that treaties by the universality of their reach and perhaps also the number of countries adhering to them could become binding on non-signatory, non-ratifying states because they are part of general international law. That was an heretical opinion 30 years ago when that decision was given. It is no longer heretical. It has become a more or less general part of law opinio iuris. Not everybody accepts it, but I cite it simply as an indication to the other remaining hold-outs who are permanent members of the security council. In the Latin phrase quod licet Jovie, licet bovi; what is permitted to Jove on high should be permitted to the humble oxen below.
It does not make sense for countries to push the jurisdiction of the ad hoc tribunal for Yugoslavia if they are not themselves prepared to say “We will be bound by the Rome treaty”.
An issue has arisen here as to the applicability of ordinary Canadian criminal law in ordinary Canadian courts. It is the General Pinochet factor. It is the most interesting, exciting and unexpected development in international law in the last year or two. The House of Lords in its judicial committee, normally known as a very conservative tribunal, took two big steps forward in asserting jurisdiction over General Pinochet. The home secretary made the political decision and took one and a half steps backward, but it is still there.
Under Canadian law any Canadian judge, in theory, subject of course always to the possibility of appeal, could find jurisdiction over a citizen of a foreign state, including even friendly foreign states and allies, if he or she so wished and felt there was an adequate base in Canadian law. The General Pinochet factor remains a wild card in international law, but it is interesting how much it has involved ordinary citizens, ordinary people and non-governmental associations in the international lawmaking process.
I am simply saying that the Rome treaty is a comprehensive and well thought out approach to universalizing jurisdiction over the most severe sort of crimes, crimes against humanity. It follows in the principle that was established in the first aerial piracy conventions and the first moves to control terrorism, of the hue and cry. That there is no safe place.
I do not expect the General Pinochet factor to be paramount in Canadian practice or even perhaps to occur, but it might be worth reminding people who have crimes on their conscience that if they want to take a holiday abroad or consult for medical treatment abroad, it is not really “Do not go to Great Britain”, but perhaps also “Do not go to Canada”.
I will note a last and general point because it emerged during the debate in the standing committee on foreign affairs and was the subject of thoughtful evidence by members of our permanent foreign ministry staff. It is a matter of law, and I note it and will read it into the record. The testimony led before the standing committee was quite directly that Canadian military personnel did not participate in those aerial missions which have been the focus of much public attention and debate in connection with Kosovo. But, and these are the affirmative points, Canada accepted the jurisdiction of the UN international tribunal for the former Yugoslavia over Canadian forces throughout the conflict. Also, in regard to every Canadian mission flown, a Canadian forces legal officer examined the target assigned with a view to ensuring its lawfulness under Canadian law and also international law.
That is a good example of respect for international law and a recognition that in policy decisions it is good to have the international law adviser at one's side. We know that during the Cuban missile crisis President Kennedy had his legal adviser, the very great, recently deceased, Professor Abe Chayes of the Harvard Law School, at his side. The action taken, among many options, was to choose that action which was compatible with international law, and it was effective. It is a good principle to note: keep the legal adviser at hand. We can do what is politically the right thing, but we can also do it compatibly with international law.
Supply June 6th, 2000
Mr. Speaker, the hon. member, as a very thoughtful graduate of law and a practitioner with some experience, knows that I cannot comment on individual cases.
However, I think I could direct her attention, as I have tried to direct the attention of the House, to the need for a more comprehensive system of administrative law responsibility and the need therefore for an administrative procedure code. It is not difficult to draft. Many countries have it but it would involve our collection in comprehensive form of the rules and responsibilities.
I also believe we need, and this is one of the problems of the Anglo-Saxon common law world where we feel we do not need it, I do think we need a special administrative law tribunal. The Conseil d'État is the model around the world. I hope that the member, with her professional background, will endorse that sort of proposal.
Supply June 6th, 2000
Mr. Speaker, I readily accept the challenge of the hon. member, who has a lot of technical training in this area.
This is why I said that French thinking in administrative law is way ahead of Anglo-Saxon thinking. I regret, for these reasons, that Quebec's quiet revolution has not yet led to the development of a modern system of administrative law that would apply not only to Quebec, but to all of Canada.
We need a modern process for administrative law, for the monitoring of any government. This is why I pay attention to ideas in that area, to the concept of councils of state, patterned on the great model of Paris, created by Emperor Napoleon, a system in which public officials are accountable before the courts for their actions as members of the administration, for their wrongdoings and even for their negligence in administering the laws. We need Quebec's thinking—