Madam Speaker, I welcome this opportunity to note to all members that the making of law in Parliament is a dialectical act, that there are many players, and what we have seen has been a constructive interaction as it should happen between the House and the Senate and in fact the public at large.
If we were looking at the players involved we would have to take note of the resolutions of the Liberal Party, federal and British Columbia branch, the resolutions passed there and adopted unanimously by the annual meeting of the Liberal Party, conversations between members of the House and senators and a process that results in a measure coming back from the Senate and being acted upon by the House. I will have more to say on the substance of that in a moment.
Let me address one of the problems that has worried me in connection with this whole process under way and that concerns some issues of the constitutionality of the very act upon which the electoral commissions have been operating, the Representation Act of 1985.
When that first appeared it seemed to me that in artificially capping the representation for British Columbia and other fast-growing provinces it raised basic issues of constitutionality that should be tested. Since the end result was to eliminate the seat of a New Democratic Party member from Vancouver, the mayor of Vancouver launched a legal action challenging the constitutionality of this measure.
I would have preferred to see the challenge based on the simple issue of the artificial capping. Instead, it raised the more fundamental question whether a measure changing the proportional representation of provinces in the House could be adopted by legislation of the federal Parliament alone and not by the more complicated and difficult procedures envisaged under the Constitution for that.
I would add that several of the Conservative senators, and there are contradictions here, who are now arguing very strongly, and I welcome their support, for extra seats for British Columbia participated as cabinet members in the decisions which in effect limit B.C. now to two seats instead of the five that it would otherwise have been entitled to in accordance with the 1991 census. But that is in the past and we look forward to the future.
I should say though that when the mayor of Vancouver launched his action the federal government did not support it. Nor did the government of British Columbia. I think this is worth comment because its chief legal officer at the time has suggested that perhaps Bill C-18 has a Quebec angle in it, designed artificially to preserve Quebec seats in the House. I think this is a rather far-fetched idea but if it were so then in relation to the Representation Act of 1985 why did the Attorney General of British Columbia not intervene in that litigation before the Supreme Court?
I simply commend to members the litigation, in particular the opinion of Justice Lambert which seems to me even more persuasive today than it was then.
Let us come on to this particular issue with the Senate itself. I welcome the discussions that we have had with individual senators. I welcome the response made by the Senate to what I think and hope will be an acceptance of the proposal made now by the House.
I see a similar contradiction in the position of the Reform Party opposite. I think if you capped the size of the House of Commons, the point about the Representation Act of 1985, then automatically either you gel permanently the size of the representation from fast-growing provinces like British Columbia and Ontario or you reduce those. You diminish the representation of provinces in which the Reform Party has of course members. Saskatchewan and Manitoba are the very obvious examples.
There are contradictions there. It is very important to remember this before taking absolutist positions on how many seats we should have. I think it is worthy of note that British Columbia delegates to the Liberal Party and British Columbia members have contented themselves with asking for two seats more and not the five that on census returns we would be entitled to.
Let me come back to the issue of what this is all about, Bill C-18, its substantive measures. It would have been a pity if discussion of this had been buried in discussion of other issues on size of provincial representation in the House.
We missed an opportunity in the 1980s to update our constitution in the areas of the electoral processes. The electoral processes are more important even than constitutional processes. They are pre-constitutional, they go to the root of constituent power. It is basic that they should be in the Constitution.
I think if the events had been different with the Trudeau government patriation project of 1980 to 1982, provisions on electoral representation would have been included in some detail. As it is, our constitution in comparison to virtually every other liberal democratic constitution of today is naked as to provisions as to electoral representation.
You look at the United States, France, Germany, Japan or India and you find detailed provisions in the constitution or else, and sometimes in supplement, detailed decisions of the Supreme Court, jurisprudence constante in the civil law sense. This makes for a body of opinions, a body of rules that guide in the case of the United States the state legislatures which are charged with the duty in effect of becoming electoral boundary commissions and the similar bodies in other countries.
We do not have this. I think the preoccupation in the 1980s and the early 1990s with the single issue in the Constitution prevented us from making changes that would bring us into the 21st century. This is very basic.
I think in terms of electoral commissions that the process of the appointment of commissioners is casual and ad hoc and not really very acceptable. I say this having served as an electoral boundary commissioner in a pre-political capacity. The Speaker of the House, Madam Sauvé, asked me if I would serve. She said she was anxious to get a non-partisan figure of recognized public integrity. It was an honour to serve. But I think the process in which simply the Speaker appoints is not good enough today. This is as serious a function as that performed by Supreme Court judges and other senior crown officials. Perhaps it should go to Parliament for some sort of confirmation which would inevitably insist upon multipartisan representation or participation in the choice of the commissioners.
One of the things that is very noticeable with the recent group of commissioners is the absence of continuity. When I sat we had a great advantage. A member of our commission, Olive Woodley from Vernon, had served on several different commissions. Therefore when I from my specialized professional viewpoint would advance a proposition she would counter by saying "this is how we did it in the past and this is why". Of course, I yielded to those arguments when they made sense.
It is a fact that none of the members of the 11 commissions, 33 in all, has had any previous experience. They are neophytes. References have been made to the judges as chairmen but the judges traditionally have been neutral and have not interfered. So the work is thrown upon the lay commissioners. Is this a good thing?
In the past the chief electoral commissioner was consulted by the Speakers in making appointments. This time the chief electoral commissioner was not. We have this in evidence to the committee on House Procedures, given on the evening that Bill C-18 was adopted by the House.
The chief electoral commissioner also throughout the regime of Mr. Castonguay constituted himself a member of each electoral commission. Mr. Kingsley interpreting his mandate narrowly and I think correctly abstained from doing this. So there are commissions in a sense sent out on to uncharted seas.
One of the problems also as I have said is that there is nothing in the Constitution on this. Mr. Trudeau would have liked to have got around to it but the facts were he was diverted by the gang of eight and other situations and this was left out. If you look at the electoral law passed conformably to the Constitution on this you will find that while it establishes some antinomies, things that may be considered, it gives no guidance as to how they are to be applied. I think this is wrong and that it is for Parliament to establish the norms guiding and governing electoral boundary commissioners.
Let us take one example, the principle of continuity. In that special relationship that Edmund Burke discussed between the member and constituents, the continuity is very, very important. It does not really make sense with 208 new members in the House to have this wholesale revision of boundaries even in a province like Newfoundland that I understand increased only 738 people between the 1981 and 1991 census. Why revise all five constituencies? Is it a make-work project?
I do not imply that the commissioners did not act with due care and consideration. When I acted as a commissioner we accepted that being a member of Parliament is a difficult role and that one should respect the relationship between member and constituent and that continuity was a factor to take into account.
I think this time the commissions have gone too far the other way. In an absence of instruction they are entitled to do that. I think it is time for Parliament to lay down rules.
Let me take some other examples of variations that a more experienced commission in terms of continuity would have established.
I was intrigued that my colleagues from the Kootenays made the point that the commission had taken a two-dimensional topographical approach to the constituency boundaries in the B.C. interior. A three-dimensional approach is needed because there are mountain ranges in the middle. What they have done in that area is to reinsert what was the rule until 1960 but was changed then because somebody had pointed out the mountain range in the middle of the constituency and that to get around it
involved a laborious 48-hour journey. Therefore there are areas where knowledge becomes very important.
More important, I would raise the issue of the absence of guiding constitutional principles here.
In the detailed jurisprudence of the United States Supreme Court, Mr. Justice Brennan elaborated on the principle of what he called benign discrimination in the formation of electoral boundaries. Mr. Justice White in the same case raised the issue of properly taking into account racial factors in making decisions.
What they were concerned with was whether-and again I use another term of art-you can indulge an electoral commission in positive gerrymandering artificially to create an electorate by geographical distortion to produce a majority for one minority group that otherwise would not be represented. Why it came to the Supreme Court of the United States was that another minority said: "You helped this one but not us".
I raise the issue of whether electoral boundary commissions in Canada should be operating on the basis of creating artificially single ethnic majority constituencies or not.
I simply cite the example in British Columbia of the five city seats held by the Liberal Party. It was not planned that way, but it does happen that the five members each represent different ethnic communities. There is representation from the Caribbean, from Italy, from the Punjab, from China via Hong Kong, and from what used to be called one of the two founding nations. There are five different people, but each running in a constituency that is multiethnic.
My own constituency has 22 different ethnic communities. To gain a nomination for an election you have to seek an interethnic consensus. That is closer to the Canada of the 21st century, but it seems to me in B.C. the commission is pushing us the other way, back to the 19th century configuration.
Again, there are perfectly legitimate reasons for doing that. The United States Supreme Court sanctioned just such a rule in the United States. But this is too serious and challenging a constitutional issue to be left to commissioners appointed ad hoc for one particular journey at one particular time. It should be decided by Parliament.
Those principles should be in the Constitution, whether it is an amendment to the charter, or the jurisprudence of the Supreme Court, or both, as it is in the United States and the other countries I have cited. In other words, the committee on House procedures has an obligation to establish some sort of motor principles, directive principles, that could be carried out by electoral boundary commissions in the future and indeed in the present case.
There is another big gap in our constitutionalism on electoral processes. There is no mention of political parties, although 25 years ago the German Supreme Court decided they are the key to the parliamentary processes and must be included and subject to the law.
What I am saying is we missed an opportunity in the 1980s to bring our Constitution up to date on what is basic to any free and democratic society: a system of fair, responsible electoral representation. We have to do it now. The time limit imposed by the Senate originally, in effect six months, was not enough. Two years would have been reasonable, but I think it can be done in one year.
I therefore welcome the amendment proposed by the government House leader to the bill as returned by the Senate. I welcome the indications being given that this may be agreeable to the Senate. I welcome the support of the Bloc and I do welcome the support, if somewhat tardy, of the Reform Party on this.
There is a heavy responsibility for the committee on House procedures. It can be done. It will give us a truly modern Constitution that responds to the need which is basic to a free and democratic society: a fair, open electoral system implemented by people responsible to Parliament and subject therefore to all-party control as to their operations. If possible, put the controlling principles into the Constitution, into the Charter of Rights and Freedoms so that every citizen of Canada can read them, study them and apply them.