Ted McWhinney

[Committees Of The House, April 13th, 1994]

Mr. Speaker, I have the honour to move that the first Report of the Standing Joint Committee on the Library of Parliament, which was tabled March 22, 1994, be concurred in.

(Motion agreed to.)

[Electoral Boundaries Readjustment Suspension Act, March 24th, 1994]

Madam Speaker, this debate has been prefaced by individual hon. members referring to their own situations. I should perhaps indicate that I won my own riding with what was the largest majority for a Liberal candidate in British Columbia and, second, we have examined the basis of the proposed electoral changes and our inquiries confirm that while my constituency seat is divided in two I would have a comfortable majority in one part and a very large majority in the other.

This having been said, I would say that having knocked on 10,000 doors in the process of seeking a nomination and then winning an election, I have formed a tie of intimacy with my fellow Canadians in the riding and I would be very sorry to lose it.

However, let me get on to the substance of this debate. I speak with experience as a former electoral commissioner for British Columbia. The then Speaker of the House, Madam Sauvé, telephoned me and said that Parliament was very anxious to put the commissions on a non-partisan basis and would I serve for what was by the way a very nominal remuneration and I served.

I do have some comments from my experience there. The first very obvious thing for these electoral commissions is an absence of continuity and therefore of shared experience which is the basis of any law-making in the commissions. It is the habit to replace each commission with a change of government. I would say that when there was a change of government my own commission was summarily replaced and the successor commission made no attempt to contact us or to find out if we had any shared experience we would want to pass on.

The second thing that struck me was an absence of co-ordination between one commission and another. That is to say, in British Columbia we were unaware of what the commission in Alberta was doing or what its philosophy was if it had a philosophy. I think this goes back to one of the interesting aspects of the present system.

Everybody fulfils their mandate honestly and with all due skills that they bring to the task, but there is an absence of overall direction partly because the federal electoral commissioner, as a civil servant, under the act in which he is established construes his role narrowly so as not to get into policy issues

and I think he is correct in that, but partly also, in comparison with other countries because our Constitution supplies almost nothing in the way of motor principles to guide the electoral commission.

If we look at the United States constitution there are detailed and specific provisions as to elections, as to the electoral processes, supplemented by those great amendments 13, 14 and 15, the post-civil war ones which give very clear directives that were not in the first years fully observed and a succession of amendments right up to the present day.

The third factor of course is that the United States supreme court in relationship to congress, to the legislature, and to the state legislatures which under the American constitution actually make the allocations, has developed some 100 or so cases establishing the limiting parameters of electoral distribution.

We have virtually no jurisprudence at all from our Supreme Court for two reasons. The court has viewed these as political questions beyond its technical competence and, second, we have not had that litigation orientation that is present in the United States and which explains the fact that the Americans much more than Canada have taken note of changes in electoral sociology.

Electoral laws no more than other laws are not graven on stone tablets fixed once and for all for all time. They have to change as a society evolves. If we look at the Canada of 1964, not simply in its population distribution but in terms of effective participation in the political processes by interest groups, ethnic groups and other communities it is a quite different Canada. Yet the electoral law unlike the law of the United States does not reflect this. I think this is a pity. There has been a certain vacuum or lagging in our development not merely in comparison to the United States but in relation to countries like Germany, Japan and India which to a considerable extent have tried to follow American jurisprudence.

I made a study for the Canadian Institute for the Administration of Justice which as members know is a professional group bringing together the chief justices and judges of Canada. I made an address in 1989 which is available in which I compared American, German, Japanese, Indian and other modern democratic countries and Canada. The conclusion was we badly needed updating constitutional electoral principles. We needed to restructure. I think it should have come 10 years ago. In a sense we are approaching it today.

My own feeling as an electoral commissioner was that we were guided by the past. I think one very obvious principle is that a commissioner is not a philosopher king. He or she is not God. One has to respect the expectations of the people to whom the member is addressing his report.

We have 205 new members in this House. I would have thought that it goes beyond the prudent bounds of an electoral commission as it is presently constituted under the present law to change the ridings in a dramatic revolutionary fashion.

We assumed in 1980 to 1984 when I served that change should be incremental land and that revolutionary changes should be suggested for the future for an incremental process. I worry when my Newfoundland colleagues tell me that although Newfoundland has hardly changed demographically since the last election all the seats have been redistributed. Why? What is the rationale for it?

If we look across the electoral commissions we will find that some of them have a clear philosophy.

It is very evident in the way the distributions occurred. Some are moved by concepts of affirmative action that one finds in United States Supreme Court jurisprudence. Others are more traditional. These are both legitimate considerations but it is a matter on which civil servants, as such, and casually appointed commissioners with the best of intentions and the best of qualifications, should not be making decisions. These are issues of constituent power that is superior even to the Constitution itself. It is time that Parliament expressed itself and established the principles.

In my seat of Vancouver Quadra, by accident or by deliberate design over 30 years we have a constituency that represents 22 different ethnic communities. It is one of the rich experiences of my life to make the acquaintance of all such groups and to build an electoral consensus, which means building an intellectual and philosophical consensus among the groups.

Under the proposed redistribution, that multiplicity of representation of communities disappears. The philosophy seems to be to produce integral constituencies. That again is an approach that can be justified philosophically, but I do not think it should be made by commissioners in the interstices of what purports to be a simple administrative inquiry and distribution according to statistics.

It needs debate in Parliament. I would like to see the structured system that I have spoken of in terms of the United States where constitutional law is not made by any one actor alone, but as Jeremy Bentham said, it is made by the constitutional company.

The greatness of the American system is that Congress, the legislature, the administrators and the courts work together and that is the objective we should be aiming at.

[Petitions, March 24th, 1994]

Madam Speaker, on the anniversary of Greek independence, I have the honour to present a petition signed by 1,200 Canadian citizens of Greek ancestry from the Vancouver region.

They ask that the government refrain from recognizing the republic of Skopje within the former communist federal state of Yugoslavia until such time as it guarantees to respect the sovereignty and territorial integrity of existing states as established in the treaty of Bucharest of 1913 and the World War I and World War II peace treaties.

[Erik John Spicer, March 23rd, 1994]

Mr. Speaker, I echo the remarks of the hon. member for Saint-Hubert and the hon. member for Beaver River in the gracious tribute they have paid to our parliamentary Librarian Emeritus. Erik Spicer served for 33 years at the rank of deputy minister. That must be a record of achievement for Ottawa. He has presided over the transition of the Library from the classic library formation to the electronic age, at the same time conserving the immense richness of the past of the accumulated collections.

A librarian sometimes does not have the time to read his books he is so busy. However, this is a gentleman who has read books, a cultivated, witty, articulate gentleman. He has recognized, as Solon did, that wise law making rests upon wise study of the past of the accumulated wisdom in books. One cannot separate a library from the business of making laws. They go together.

It is in this sense that the Library of Parliament represents a treasure house. It is the jewel in the crown in a real sense in this large parliamentary edifice over which you preside, Mr. Speaker.

What Erik Spicer has done, the co-operation he has given, the great impartiality, the openness with which he has presided over the researchers-and never forget we have a magnificent research staff freely available to all parties, to people of all opinions within the House-has brought this together, concentrated in his own very unique personality. We shall all miss him.

We wish him, his wife and his family a pleasant and I am sure an intellectually active retirement. Thank you very much for accepting the treasure of Parliament when you were appointed Librarian, for conserving it, for adding to it, for augmenting it and making it one of the great institutions of the Commonwealth, of the world which has inherited its parliamentary traditions ultimately from the Greeks and Romans and the Britons and the French and all the new cultures that our country represents.

Thank you, sir, and a pleasant and honourable retirement which you have so richly earned.

[Erik John Spicer, March 23rd, 1994]

Mr. Speaker, by announced consent and in my capacity as co-chair of the joint committee on the Library of Parliament, I move the following motion, seconded by the hon. member for Saint-Hubert:

That in recognition for his long and distinguished service as the Chief Executive Officer of the Library of Parliament, Erik John Spicer, Esquire, is hereby appointed as Honorary Officer of the House of Commons as Parliamentary Librarian Emeritus.

[Committees Of The House, March 22nd, 1994]

Mr. Speaker, I have the honour to present the first report of the Standing Joint Committee on the Library of Parliament. In this report, our committee recommends that it be authorized to act as advisor to the speakers of the Senate and of the House of Commons when they exercise their authority over the Library. We are also asking permission to meet with a reduced quorum as well as during sitting of the Senate. This is the first report of the Standing Joint Committee on the Library of Parliament since March 5, 1970.

[Fisheries, March 21st, 1994]

Mr. Speaker, my question is for the minister of fisheries.

Pending conclusion of his proposed new high seas fisheries convention prohibiting overfishing by foreign vessels operating just outside Canada's 200-mile fishing zone, will the minister of fisheries remind states that Canada has the legal right under already existing international law to apply stringent fisheries conservation measures and penal sanctions where necessary against delinquent foreign vessels and their crews?

[Bosnia-Hercegovina, February 10th, 1994]

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

Given the sustained failure of United Nations and western European diplomatic efforts to end the armed conflict in Bosnia-Hercegovina, will the minister consider utilizing the provisions of the Treaty of St. Germain-en-Laye, which created Yugoslavia in 1919 and of which Canada is a full legal party, to ensure a peaceful solution to state secession problems in Yugoslavia, including in addition to Bosnia-Hercegovina, the Skopje region?

[House Of Commons Standing Orders, February 7th, 1994]

Mr. Speaker, the intervention by the government House leader reminds us again of Jeremy Bentham's point that constitutional laws are not made by any one actor alone. It is made by the constitutional company. In the case of the reforms proposed for this institution, Parliament, the reforms or the changes will be made by government initiatives and by the contributions from the opposition and the other parties in the House.

The debates have been constructive on issues where we have had open debates as in peacekeeping and the cruise missile testing. I think it signals good opportunities for the House to get the constitutional structures of Parliament moving again.

We do so in the light of two great principles of constitutionalism of our time, the alternance which is very apparent from government by executive to government by assembly. My colleagues in the Official Opposition will know that this has been true of French constitutional history since the French revolution. The alternance between the strong executive power and strong assembly power is I think one of the phenomena of our times, a check against an executive deemed to be too strong, a reinventing, a recreation or a creation anew as in the present Russia of power by assembly.

The other is the principle of participatory democracy. One of the implications for that is a requestioning of old truths such as those uttered by Edmund Burke and often quoted in the House. It is perhaps important to remember that Edmund Burke was not the product of a democratic system of election. His career in Parliament was facilitated, made possible, by being named to pocket boroughs or rotten boroughs and so the comments on responsibilities to his electors was meant for a handful of people and not the great mass of people that we are facing today.

The constitutional company here very clearly includes the Speaker. This unprecedented process of election saw some of the candidates for the Speakership by invitation address the Official Opposition, the Reform Party and then the Liberal Party in which advances were made in the comprehension of the Speaker's role, that the Speaker has the opportunity not merely

by conduct but by judicious coaxing to speed Parliament on its way to renewal.

I looked at the role of the committee on management which is now the Standing Committee on Procedure and House Affairs. I looked at the description of its agenda, its mandate, and I see not a committee. I see a supercommittee, a committee on committees. I would have to say I congratulate the Official Opposition and the Reform Party for sending along very strong and thoughtful representatives to that committee, but I can see a capacity to change the whole system if they fulfil their mandate: initiative, right of recall, binding referenda, free votes, fixed election dates. That is a challenge and as a member of that committee I find it very exciting.

I know the Official Opposition will pardon me if I quote from Danton's address to the French revolutionary convention avoir de l'audacité, toujours l'audacité, encore une fois l'audacité. Constitutional boldness. Let us get the message and get working upon it.

Finally the House leader, because the initiatives are the government's and this was a very thoughtful address, if I may say so, steeped in parliamentary traditions, had never regarded himself as a prisoner of old rules, the dead hand control of old history. We use precedents to shape the future. We use them creatively.

I was reminded of this when there was discussion of the prerogative powers, the issue of the dissolution power, the issue of what happens if Parliament is defeated in the House. I was consulted in 1968 when in a surprise vote, a snap vote in the House, launched by an ingenious New Democratic Party leader, the government was defeated and the issue was must they resign. Much the same issue came up when Mr. Clark was defeated in the House in 1979 and seemingly assumed that he must resign immediately.

In fact, there was some suggestion the Governor General of the day might have tried to persuade Mr. Clark to take a bit more time before he rushed to what turned out to be his self-destruction.

It is a fact that the British House of Commons, from the 1920s onward, never regarded a House defeat as automatically compelling the resignation of a government or a dissolution. The precedents have to be examined creatively and in some senses we should perhaps recognize in Canada that we apply British precedents much less imaginatively and creatively than the British. Beware in imitating that we become more conservative than the people from whom we are borrowing.

Let me in that spirit come back to the issue of constitutional change, Parliament as a dynamic institution. We saw this in the debate over peacekeeping and cruise missiles. I would suggest that one of the issues that it brings up, particularly in relation to cruise missiles, is that prime ministers should be protected when somebody phones them up at five o'clock in the morning and says: "The fate of civilization hangs on your decision, you must join me in my adventure".

It is quite possible the fate of civilization does not hang on that decision. The man calling may have indigestion. In a situation like that it may be helpful to say that on issues involving foreign affairs one would like to consult Parliament. One could simply say: "George, go back to sleep again and call me at some other time".

I would like see a repetition of these debates on foreign policy, perhaps also a tabling of agreements, treaties and even executive agreements, as we saw on the cruise missile which now seem to be entered into without parliamentary consultation, unless as with FTA and NAFTA we follow the American procedure of submitting them as Congress did with special reasons to both Houses of Parliament, the fast track procedure.

One of the ideas might be to have all foreign policy acts tabled in the House before the formal act of ratification by Order in Council. I offer this simply as a suggestion that the range of possibilities is very great.

I listened with great interest to the comments of the Official Opposition on the tabling of Order in Council appointments. I would suggest, though, the issue is not tabula rasa. In an earlier capacity I gave frequent testimony, simply because the parliamentary committees were frequent, on issues of changes to Parliament. One of the things suggested was that a reformed elected Senate might be given a power of review and if necessary a power of rejection of these appointments.

There is a lot of good learning there. I am sure the suggestion made by the opposition that these matters be submitted to Parliament will come up for consideration. Let us have the consideration on a basis of the very valuable work that has been done and it may have a better chance of being adopted in Parliament.

The thing that is most impressive is the expansion of the role of committees, the giving to third parties, which means in this case the Reform Party, the possibility of initiating amendments in committees, the giving of the possibility to private members.

The work of this Parliament is so much done in the committees. Never forget that under the parliamentary system the committees have the power to compel testimony. They have the power to punish recalcitrant witnesses. The only thing really immune is the confidential advice within cabinet and possibly advice by officials to cabinet ministers. Everything else is within the parliamentary domain.

I hope there will be an end to these travelling circuses that we saw on the constitution. It is not participatory democracy when we get selected invited witnesses to appear. Parliament should be doing that. The real strength of this Parliament is in its committees. They are all party committees. I draw great hope from the comments by the House leader on this particular issue.

He believes in reviving the committee structure. It will mean more participation, a recognition that legislation is a dialectical process. Government and opposition contribute to it. It is better done in the informal give and take and compromise in committees than in the House in which our formalized debate tends to ratify decisions already arrived at.

[Social Security System, February 2nd, 1994]

Mr. Speaker, I appreciated the speech by the hon. member of the Opposition. As you will undoubtedly remember, I was a special constitutional advisor to a few premiers of Quebec, Ontario and other provinces. I have always advocated a pluralistic federalism based on co-operation and consensus.

I never suggested that standards should be imposed by a federal government or authority. I only said that, in setting scientific standards, we are often behind other countries with a strong national consensus. These are scientific matters. It is not an ideological or constitutional issue in my opinion.

I never insisted on the application of a consensus by a sovereign and higher authority. Consensus means something else. I am not too happy with the National Research Council, which is overly centralized in Ottawa and does not fully meet the needs of British Columbia, for instance.

My position is much more pluralistic in this respect. I call for the co-operation of the hon. members from Quebec and the other provinces. Nothing in current government policy seems to reflect this. If I may give a further explanation, nothing in my speech implies a constitutional theory, much less an overly centralized federalist policy. I am a constitutional pluralist.