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.