Ted McWhinney

[Young Offenders Act, February 20th, 1995]

Mr. Speaker, in rising to speak on Bill C-37, which amends the Young Offenders Act and the Criminal Code, I am taken back to earlier stages in my professional career as a sometime crown prosecutor and a defence lawyer. At a later stage I specialized in the teaching of Soviet law and the aspects of Soviet criminal law. I speak now of non-political crimes where that country had moved in the sentencing phase into much more of a sociological approach than a conventional criminological approach.

The bill is interesting because it comes at a time of historical transition in our society and in the world community as a whole, with the social tensions that are always present in a period of very rapid change which outstrip the ability of the social processes to accommodate to the changes.

As one who has to deal a lot with statistics, I have reservations, but it is a fact that the statistics show no substantial increase in the numbers of crimes being perpetrated in our society. It is also a fact, I think beyond doubt, that the intensity of the crimes and the violence of them are greatly augmented. This is what explains the public demand, it is certainly reflected in one of the opposition parties, for a toughening up of the criminal law, if one can use those terms.

The criminal law, not less than any other branch of public law, represents an attempt to balance the larger public interests against individual interests. Sometimes the metaphor of the pendulum has been used, but the pendulum which has swung much more in the immediate past years in favour of the rights of accused persons has swung, in the last several years certainly, much more strongly in favour of the protection of societal interests. We all reflect that.

It is reflected in the petitions presented in this House today. I note with interest that members of several different parties present petitions on this general question. All of us as members of Parliament receive letters from our constituents.

One of the very sad things in all this is that since Jeremy Bentham first formulated his plans on penal reform, on curing of the offenders, one has the terrible feeling that not as much progress has been made in that as a scientific discipline as should have been made. Therefore we come back to the issue with this bill: How has the balance been struck by the minister in approaching the demands for amendment of the existing Young Offenders Act and the Criminal Code? How has he responded to the conflicting social interests?

Listening to the debate, one was struck by the difference in the attitude of the two opposition parties. The official opposition, and I take the criticisms of the hon. member for Rosemont as reflecting this, felt that the measure was too severe, that it did not adequately reflect the social interests in protecting young offenders. With the other opposition party, I think the criticism was made that it did not go far enough.

If the minister manages to build in both those criticisms of his work, it may strike many that maybe he has found the middle way. Let us have a look and see exactly what has been done.

There is the increase in the maximum sentences for teenagers to ten years for first degree murder or a maximum of seven years in the case of second degree murder. This reflects quite clearly the public concern that young offenders can commit murder and walk away from them.

I thought that the hon. member for Rosemont suggested that this was a simplistic approach and it did not take enough account of the element of recidivism which he feels is still severe in relation to young offenders who have been imprisoned. Perhaps we can take a look at that a little later when we examine other parts of the proposed bill.

The second part of the bill is significant and concerns young offenders, 16 or 17 year olds, charged with serious personal injury offences which are defined in the revised act as murder, attempted murder, manslaughter, aggravated sexual assault, and aggravated assault. These persons will be tried in adult court unless they can show a judge that public protection and rehabilitation can be achieved through the youth court. It changes the burden of carriage of the suit significantly from the preceding act which it now proposes to amend.

The bill does reflect the public interest in the public right to know the facts of offences. Parameters must be established in this regard.

In this House in recent days we have heard a certain cry of anguish from many members about what many feel are indecent attempts of some public media to open the books on recent sex offences and murders involving young people. Members know the cases without my citing the names.

The public interest, the public right to know demands increasingly that the courts be opened up. This process is reflected architecturally in the grand design of the Supreme Court of British Columbia, Arthur Erickson's design, which is literally intended to allow people to walk in from the streets and through the courts.

Courts used to be shut up. When I was a young lawyer, they were closed. It was very hard to find your way and was panelled in dark wood. The court officials seemed to do their best to keep people out. Therefore this particular aspect is certainly there. In so far as court proceedings are a part of the general public educational process in criminal law, I think this is a step forward without any apparent disadvantages to it.

The time that 16 and 17 year old young offenders convicted of murder in adult court must serve before they can be considered for parole is extended. This is a reaction generally to a public feeling that the parole system today is not functioning as it should. It is being addressed in a more general way by other sections of the justice ministry.

Suffice it to say, for the most serious offence of all, the extension of the time to be served in the case of young offenders responds to very clear public interest. This was expressed to all members of Parliament through petition and through direct correspondence to us.

The provision for information sharing among professional people, school officials, police, and certain public groups when public safety is at risk has been criticized by some as exposing young people to public obloquy. It has been criticized by one of the opposition parties in this debate as not going far enough. There are two things to remember.

We have moved a long way from the 18th century notion that people were exposed in the docks, in the public stocks in the village square, and made to wear a letter on their chest if they were convicted of certain offences. It reflects a reaction to this but it also recognizes awareness of the relevance of the charter of rights. The charter of rights, as interpreted in the jurisprudence in our courts, is very strict in its definition of the limits of the public right to know and the protection of the privacy of individuals.

In this particular sense, it seems to me the minister has gone as far as he sensibly can go. He is a law reformer who wants his law to prevail. He does not want it to be challenged endlessly before the courts and perhaps thrown out on the basis of the rational interpretation of the court jurisprudence that all of us as professionals in the field know how to make.

Similarly, with the provisions for rehabilitation and treatment of young offenders, I was struck by the comments of the member for Rosemont, the official opposition. I think we are all ready and willing to learn from the experience of other countries and certainly from provinces within our federal system. I was struck by the thoughtful question posed by a member of my own party to the member for Rosemont.

This exchange of information is important. As far as the federal law is concerned, it represents a significant advance on provisions as they now exist.

One very interesting area is the provision the minister makes for the private law responsibility of offenders, here specifically young offenders, where property crimes or less serious offences are what is involved. The concept seems to be the restorative one that the criminal offender, the delinquent, should not merely purge an offence in terms of suffering punishment but should also assume the burden of correcting the social situation that he or she has so rudely disturbed.

If young people wantonly destroy property, we can take the Singapore approach and you can cane them in well publicized ways. Or we can ask the young people to repair the property as part of their sentence. We can ask them to accept the responsibility for what they have done which I think is an excellent approach. I hope it will be extended more widely within our criminal law.

Contrary to public impression and also public impression of some public officials, the way always exists under our law for private law actions to compel just that, the restoration of the situation to as it existed before. Actions are quite common in continental European law against the parents of young offenders or against the young offenders themselves for that matter, for whom their parents would stand in responsibility.

In any case, this is innovative. It shows the attempt the minister is making to produce a coherent law that balances the old with the new social imperatives in a period of rapid change. In making compromises, it strikes a balance that takes us beyond the social problem as it has been thought to exist.

On this basis this is a valuable step forward. We have to be especially careful when dealing with young offenders in facing the reality that long incarceration with young people encourages recidivism and may be the least effective social control of all.

Nevertheless the minister, in relation to the supreme offences, first and second degree murder, has taken the step of increasing the punishment. In other areas he has recognized the public wish to be involved but within the limitation that we will not encourage prurience by publishing televised tapes that people recorded of their victims. We will go so far as to say the public has a right to know.

We will bring in the social services people to encourage rehabilitation of young people. We will accept the notion that in the protection of the public responsible public officials in schools and elsewhere need to be given information. However that information must be done in conformity with the Charter of Rights and Freedoms as interpreted by the courts and as predictably applying in cases such as the present.

On this basis, I am happy to commend Bill C-37 for adoption by this House.

[Endangered Species, February 20th, 1995]

Mr. Speaker, my question is for the Minister of the Environment.

Around the world, 48,000 wildlife species and subspecies are in danger of extinction. The illegal trade in endangered wildlife species jeopardizes global biodiversity.

Could the minister tell the House what the government is doing both in Canada and also internationally to curb the illegal trade in endangered wildlife species?

[Canadian Federalism, February 17th, 1995]

Mr. Speaker, Monday's three by-elections confirmed Canadians' continued faith in our federal system of government and in its ability to adjust to new problems in Canadian society, problems hardly dreamed of or imagined by those who established Canada's constitution.

Canadian federalism has never been an abstract and inflexible charter carved in stone in 1867. It is a dynamic process of constitutional creation. It involves balancing differing social interests in a spirit of pragmatism and cooperation. It is a new federalism, a living, highly efficient and cooperative one.

[Committees Of The House, February 9th, 1995]

Mr. Speaker, I thank the hon. member for a very thoughtful question. I have never accepted the concept that equality requires an absolute equality of rule application under all circumstances. As the United Supreme Court and Justice Douglas have said, you treat equal things equally but there is an element of discretion.

I recognize as part of the principle of equality of representation that we are entitled to and in all decency must make variations that take into account extreme geographic conditions such as we find in the north and the interior of British Columbia.

In exercising discretion as an electoral boundary commissioner in the past in British Columbia we did take that into account and gave it weight against the clamant demands in the city for mathematical equality of representation of all constituencies. I would think a commissioner, within the parameters established by the act, would properly exercise similar discretion.

I wonder, and I believe this is the private view of the hon. member opposite, whether the 25 per cent offset is not too high and whether 15 per cent might not be more realistic under present conditions.

[Committees Of The House, February 9th, 1995]

Madam Speaker, in opening my own intervention I would like to record my own appreciation and those of my colleagues of the collegiality in the committee whose report is being studied here today. I value the exchange of views with the Bloc members and the Reform Party members in the committee. It was a good dialectical process and an excellent interchange of ideas. It is in that spirit that I now speak in the debate.

I was impressed by the comments by the member for Kindersley-Lloydminster and the member for Calgary West and their suggestions that the bill had failed to address what they considered the key problem, the size of the House. You will find many on this side of the House in agreement that this whole principle needs radical re-examination and change.

However we must consider the amount of constitutional amendment that may be necessary to restructure the size of the House to correspond to present sociological realities in Canada. When you consider the amount of effort involved in that and the fact that some years would be exhausted in the process, I would question whether it is right to consider this as an omnibus bill that must solve every problem of the contemporary legislature in one fell swoop. I view it rather as a single problem oriented bill addressed with a very specific purpose. In the light of present realities it has to go to another House for approval before it can be adopted.

I think it is in this sense correct to say that the matter of the size of the House is better left for another day and perhaps another committee. I see no reason why this could not be addressed within the lifetime of the present Parliament. But on this particular issue, it seems to me we have a full house of problems in terms of electoral representation.

I noticed in particular in the member for Kindersley-Lloydminster's address not merely reference to the size of the House but also to other principles, the issue of population variance between ridings and also what he referred to as the necessity for establishing priority of criteria in riding boundaries.

He used a term that I will return to a little later. He spoke of social engineering and this is an interesting concept. It is a Pandora's box of problems but I will return to it in a moment because it is the key of the present problem that many of us have had with the existing reports of the electoral boundaries commissions.

What troubled me when I read this latest series of 11 reports was a certain element of intellectual anarchy in those reports. There were in essence 11 different reports but there were no common criteria available.

In fact we discussed this matter with the chief electoral commissioner, an extraordinarily capable man who paid us the tribute of being very direct and forthright in his response to our questions. It was established that the commissions had not consulted with the chief electoral commissioner in terms of guidance as to past practice or as to criteria that should govern the exercise of the discretionary role conferred upon them by the existing law.

This is, in a certain sense, rather strange. It illustrates the wide variance, if not dissidence, in what we might call the operational philosophy governing the members of these individual commissions. When I look at the commissions I see a certain limited functional efficacy in the members of the commissions in terms of their training.

I would hate to say this in terms of a profession that I have also shared in, but there are too many people from one profession. There are far too many professors. It may be argued that the professors already have an honourable role in our society. They are the source of the ideas, but should they be making the choices? Would it not have been better to have had the professors retained as advisors on technical points but the actual decision making role conferred on commissions representing a broader spectrum of society?

This is one of the issues discussed in the present bill reported by the committee. The present bill attempts to address this problem by establishing a new process of appointment that should ensure wider representation of the larger community, a wider spread if you wish of experience among them.

The second thing that troubled me when I looked at these 11 reports was the lack of reasons. Here we have officials not elected in any way, non-elected officials appointed by prerogative power but exercising enormous discretionary powers.

That, as very well known to students of administrative law, is the real problem in modern government. It is the use or abuse of discretionary power by non-elected officials. There are ways of tethering discretion and making it operationally useful.

One of these is to require bodies when they exercise a power to spell out the reasons for doing it. When I look at these reports I find absence of reasons. Why did they do this? Why did they do that? One has to guess and that is where one comes back to the point that the member for Kindersley-Lloydminster made, social engineering.

It is very easy to go on an ego trip of one's own in exercising discretionary power of this sort. It is also very easy for the wrong reasons to attribute illicit motives and to say that is a politically colourable choice that has been made.

The correction of this is to state the reasons. The extra advantage in that is where the criteria are spelled out in the individual reports. They are then subject very easily to judicial review and judicial correction.

One of the problems in Canada is that we do not entrust to our Constitution the spelling out of the basic principles of what is constituent power. Constituent power is prior to constitutional power. It is the fundamental starting point of a democratic society; constituent power, how the government is created, how its members are elected.

Modern constitutions, ours is a 19th century constitution, write these elements directly into the constitutional charter. More than that, they spell out the principles and more than that they have actively functioning courts, constitutional courts of a specialized nature or general supreme courts with a massive jurisprudence in which these principles are ensured not only in their respect in the letter but also in their creative adaptation to problems of modern society.

The transformation of the United States from a privileged society in which the franchise was severely restricted, not simply on racial grounds but on social grounds, has been massively assisted by the role of the United States Supreme Court and judicial interpretation. This is something basically absent in Canadian society. It is something that we must have established in the future.

Therefore, I think it is a legitimate objection. One of the things that concerned me most in reading these reports was that there were discretionary powers but no clear criteria spelled out as to how the discretion was exercised. There was obviously an enormous variation when one studied the empirical material from one provincial commission to another. It recalls what was said of Lord Chancellor Eldon in another context, that equity, which he was charged with administering, was as long as the chancellor's foot. It is this element that the present bill, as reported by the committee to the House, aims to correct.

I could be more specific in terms of referring particularly to the report of the commission as it affects my home province of British Columbia. It troubles me, with the obvious population increases in the Fraser River Valley, that there is no extra seat there. It is obtained by rearranging crowded inner city boundaries where there is very little population change. They are simply accumulating them and producing an extra seat. What is the reason for this?

This is what leads to interesting speculation. I think the answer is that it is probably somebody's particular concept of social engineering which they have not spelled out, which I could guess at, but which I think properly in the constitutional processes courts should be able to examine and to correct.

I come back to some of these issues because the hon. member for Kindersley-Lloydminster very correctly in his address to the House this morning spoke of the need to establish priority of criteria. We would have to say that the criteria themselves have to be spelled out. It is difficult to establish them in any hierarchical order. Most countries with statutes or constitutional principles touching this area recognize that there is a certain element of antinomy or contradiction between some of the principles. There is a creative choice that commissioners or a judge exercising judicial review must make. The key element we demand of the person exercising the discretion is to say which criteria they prefer to others and why that criteria. Is it a rational choice or is it something, as I have said, as long as the chancellor's foot?

We have not gone as far as the United States Supreme Court. One would wonder if we have reached the stage where Mr. Justice Brennan referred with approval to a concept of benign discrimination when asked if the notion of benign discrimination permissible because it is cast in a remedial context with respect to a disadvantaged class rather than in a setting that aims to demean or insult any racial group.

It is an interesting concept. It is certainly part of American social history and in the context of the United States Supreme Court no doubt a justifiable decision.

In terms of what we are doing one of the things we would have to stress in a country that stresses the parliamentary system as distinct from the American congressional system and the division of powers is the special relationship of a member of Parliament to his or her constituents.

There is a relationship of confidence that is built up in going door to door in an election campaign, a very moving experience, but a relationship of continuing trust in handling the problems of constituents as they arise over a period of time. What struck me again in the reports of these commissions was a certain cavalier disregard for the principle of continuity of representation. It is a constitutional value. It is closest of all to that philosopher whom the opposition parties are fond of quoting, Edmund Burke. I do not want to go into Edmund Burke's special features but at least the notion of the closeness, the responsibility of a member to the electorate.

The starting point of any electoral commission in Canada under the parliamentary system must be respect for the principle of continuity. Where we displace that it must be for reasons that we are prepared to spell out, population shifts to be sure. The criteria that the committee has offered in its report give us guidelines that were not there before in any adequate measure. I would have wished them to go further and I will note simply that I have made suggestions in the committee for further tightening up this area, rendering the criteria more precise.

I was supported I believe by the Reform Party and the Bloc but I was not able to persuade a majority. I go along happily with a majority decision. In this area the criteria must be spelled out.

One of the things we have tried to do is recognize this concept of community of interest. Canada is the society of the 21st century, as somebody said quite recently. I think it is true. We have established a special notion of Canadian culture, a community of communities in a phrase which a former Prime Minister of another political party used without citing its original source. This happens quite a good deal. The phrase was used by Martin Buber, an Austro-Hungarian by birth but who became a philosopher in the new state of Israel and developed the theory to explain and put forward a special relationship between the

Jewish majority and Arab citizens, the concept of the community of communities.

What strikes me in the urban seats in this country when I look at them across the electoral map is that we have historically come to it perhaps by accident in many cases, but the history is there. We have recognized this notion of community of communities. I embrace with pleasure the fact that my own constituency has 22 different communities within it and that to win a nomination and to win a majority in an election one must put together a platform, an approach consistent with one's party position that can build a consensus that extends to all groups or a sufficiency of groups.

One of the things that troubles me in the reports of the 11 boundary commissions I am referring to is that they again in a somewhat cavalier position have tended to put this aside. They seem to be looking back more to a 19th century concept of constituencies based on single communities.

I think this is interesting but it is back to the future and not a good way. I cite this simply to say that we were dealing with as a committee highly contentious and arguable reports made by boundary commissions. To give the ladies and gentlemen on these commissions full credit and honour they were the victims of the laws that did not adequately spell out what they should do.

The chief electoral commissioner correctly, because he is a man of high intelligence and high integrity and respect for the constitutional proprieties, concluded that it was not his function to spell out criteria that Parliament had not spelled out.

This is the reason we have attempted in a comprehensive law limited to this one problem getting the electoral boundaries issue dealt with adequately and to concentrate on that problem.

I would have liked to address also the issue of capping the size of the House. It seems to me that is for another statute. I would simply add as a member from British Columbia that the bill guarantees a point very dear to my province, our constitutional right to two extra seats in the House of Commons with the next federal election. There is an iron clad guarantee there.

[Fresh Water, February 8th, 1995]

Mr. Speaker, I am very appreciative of the intervention by the member for Comox-Alberni. I share his concern and the government shares his concern for the maintenance of Canada's riches, Canada's natural resources.

I also have some particular interest in this subject because it touches an area in which professionally I have given it some attention. It is of course true that sovereignty is the basic constituent element of a state and sovereignty extends to its territory, its land, the resources of that land both under and above it, fixtures, to the air space above, and to the territorial sea. It is elementary that sovereignty cannot be derogated from except by the sovereign personality himself.

So to this extent Canada retains full sovereign rights unless we ourselves choose freely to contract out of those and that would be an obligation entered into under international law. It is a fact that we have led in the international law related to protection of natural resources, our own and also those of other countries. We have been interested in clean air. We have pioneered the treaties and the protection of the atmosphere. We have led the way in the proper utilization of the law of the sea, and its protection from pollution.

Also, I may say in pursuance of this, because not all states have accepted our high standards, we have not merely negotiated and led the way to international treaties and multilateral treaties extending protection of the law of the sea, but we have negotiated bilateral treaties with numbers of other countries when the international or multilateral action was slow in coming. For example, we have extended zones of 200 miles from our coast, the better to exercise these international law norms.

I mention this simply to say that Canadians have led in this area. It was something very much in our minds when we negotiated specific agreements with the United States in relation to the Great Lakes, in relation to international waters, international rivers. It was also very much in our minds when we negotiated the North American Free Trade Agreement, the trilateral agreement with Mexico and the United States.

It happens that during the election campaign in October 1993 this issue was raised in the public debates: Is there any derogation from Canada's control over its natural resources, over its water in particular by virtue of the NAFTA agreement. This was something to which all candidates, certainly in my part of the country, addressed themselves. The answer is very clear: There is nothing in the NAFTA agreement itself derogating in any way from our sovereign powers over our water resources.

However there is a point in international diplomacy and international law in which for greater security one acts inaccord with the Latin phrase, Mr. Speaker, and you and I both deplore, as Lord Justice Denning called the attempt to fetter law by recourse to Latinisms. I will quote the Latin phrase ex abundanti cautela but I will repeat it in its essential, for greater assurance. I said to those who asked me then: I will seek a clarifying statement that makes assurance doubly sure. Immediately after the election and in fact during the campaign, I asked the Prime Minister if we could address ourselves to this and this is what has been done.

A trilateral agreement was signed by the Prime Minister of Canada, the President of the United States and the President of Mexico. It is what is called a joint declaration. Annexed to the NAFTA agreement is the joint declaration of December 2, 1993. It says it very clearly and recites what is in any case I think as a matter of interpretation clear in the NAFTA agreement itself.

The statement annexed to NAFTA establishes that NAFTA creates no rights to the natural water resources of any party to the agreement. Unless water in any form is entered into commerce and becomes a good or a product it is not covered by the provisions of any trade agreement including the NAFTA. I could read the balance of this but I think therein is the essential.

What is the legal status of a joint declaration of this sort, a statement annexed to the NAFTA agreement? I do not want to bore you with technicalities but the fact is that what are called by various names, joint declarations, agreed interpretations, joint statements, provided they are signed by the parties to the agreement become part of the agreement.

The best known example of this is of course the SALT I treaty, the strategic arms limitation treaty of 1972 between the United States and the Soviet Union. It has many, perhaps 30 such declarations and agreed interpretations annexed to it, and they are binding in terms of interpretation of the treaty.

I would simply say this to the hon. member for Comox-Alberni. We are sensitive to his concern, which we share, for the preservation of our great natural resources, for the preservation of our water. There is nothing in NAFTA, nothing in any international agreement to which Canada is party derogating from our retention of full sovereign rights over water within Canada, whether it be in lakes or whether it be in the water supplies on mountain slopes unless and until it enters into a commercial form, which means in this context, bottled. In this situation it will not be subject to NAFTA arrangements. There is no recourse to any one of the NAFTA arbitral or dispute settlement procedures.

I do not see any reason to go beyond this at this stage. However, the government may at some future stage wish to make declarations for purposes of Canadian internal needs of this sort. However in international law we are fully protected. Our sovereign rights are fully preserved.

On that basis I would simply say again that I welcome the expression of sentiment by the member for Comox-Alberni. I share his views. I believe all members of the government do. I do not believe though that there is any need for any further action to be taken at this stage. I thank him again for his thoughtful intervention.

[Science And Technology, February 7th, 1995]

Mr. Speaker, in recognizing the principle of no new taxes, we should also recognize that continued investment in advanced scientific and technological research, oriented toward industrial production and export abroad, particularly in information science and biotechnology in which Canada is a world leader today, is one of the keys to improving Canada's revenues and trade balance, thus increasing employment and reducing the deficit.

[Petitions, December 15th, 1994]

Madam Speaker, I have the honour to present a petition signed by 31 residents of Vancouver and the greater Vancouver region requesting that the Canadian Human Rights Act be not amended so as to provide for same sex relationships.

[Former Yugoslav Republic, December 14th, 1994]

Mr. Speaker, the former Yugoslav republic, FYROM, in Skopje seeks international recognition as the republic of Macedonia.

Only thirteen states, seven from the former Soviet Union and east Europe and three Asian communist states have recognized the Skopje republic as that. Twenty-six other states have recognized Skopje only as FYROM and another twenty-two have recognized Skopje as FYROM but without diplomatic relations. The remaining 124 members of the United Nations including Canada have not recognized Skopje in any form or opened diplomatic relations.

Canada's position is in full accord with the international law on recognition.

[Nuclear Weapons, December 13th, 1994]

Mr. Speaker, my question is for the Minister of Foreign Affairs.

The United Nations World Health Organization has asked the World Court for an advisory opinion whether the use of nuclear weapons is against international law. Will the government consider informing the court of those areas in which Canada considers the use of nuclear weapons to be against international law?