Madam Speaker, it is a pleasure to rise in discussion of Bill C-69, an act to provide for the establishment of electoral boundaries commissions and the readjustment of electoral boundaries.
This bill comes back to us from the Senate and therefore my remarks will address essentially the amendments proposed by the Senate and our reactions to them.
One approaches this debate in a spirit of respect for a co-ordinate institution and for the care that the Senate has attempted to give for the fulfilment of its constitutional duty. I would also say, however, that we are in a special area of the constitutional law of Parliament where each Chamber, being co-ordinate, must recognize that the histories and traditions of the other are different.
The House of Commons and the model from which we borrowed, the Parliament of Great Britain, separated historically from the House of Lords. Therefore conventions as to the role, for example, of the Speaker in the internal conduct of Parliament are different for the two Houses.
That suggests as a principle of constitutional comity a certain amount of self-restraint in the attitudes of one House to another. For example, it would be improper for the Senate to offer suggestions as to the conduct of the Speaker of the House or vice versa, the House offering suggestions on the conduct of the Speaker of the Senate, other than in a spirit of study and a suggestion in the strict sense of the word. Comity enjoins a certain respect for differences in traditions and differences in historical evolution.
This having been said, I will note that some of the suggestions made by the Senate seem to be valuable and the product of reflection. Time always improves examination of a measure. I believe on these points the House is in a mood to respond positively.
The issue of the electoral quotient, the amount of permissible variation from constituency to constituency, was much discussed in the master committee of the House, the Standing Committee on Procedure and House Affairs which is really a de facto Constitution committee of the House. It was much discussed. On both sides there was considerable examination of the issue of whether the maximum permissible variation should be 15 or 25 per cent and with the Senate's suggestion the 15 per cent.
I have no particular quarrel. I gather the feeling of the House is very much positive in relation to this point. Similarly with the suggestion in appointing members of the electoral commissions that the members to be appointed or persons to be considered should be residents of the province concerned, that seems to be matter of ordinary common sense.
I see opposite an hon. member who made thoughtful contributions to the Standing Committee on Procedure and House Affairs. I suspect this is something we simply overlooked, and it is good to be reminded of it. It makes sense. It would not make sense to do it the other way.
Our suggestions in changing the procedure used over so many years were directed toward taking the current development in constitutional thinking, which is increasingly to constitutionalize large discretionary offices that exercise constitutional powers in a discretionary way, and to subject the incumbents of the office to some degree of prior scrutiny by Parliament of their qualifications. In an ideal sense this might mean that all executive council appointments would be subject to some sort of parliamentary examination.
It is not the function of the Standing Committee on Procedure and House Affairs to make a constitutional revolution all across the board. It does not have that mandate. Nevertheless we will notice a change here from a system where the appointment of the commissioners was solely at the discretion of the Speaker of the day and not subject to review.
There were attempts to establish a gloss on this practice made by a distinguished speaker, Madam Sauvé, to consult informally with people outside. In the early eighties the electoral commis-
sions that were formed by Madam Speaker were done after informal and private consultation with outside people. I believe she consulted a current member of the Senate, Senator Beaudoin, who was then a very distinguished constitutional authority.
What we have here is a proposal to further constitutionalize the process by establishing a duty of consultation with the House of Parliament. It is obviously not the same as submitting to Parliament the approval or ratification of that decision, but it opens up the process and it takes us a considerable way along in constitutional evolution. One of the good things in this committee was the general enthusiasm with which this change was recognized by the members of the committee. In responding to the Senate's suggestion again, I see no particular problems with it if they understand they are operating in the spirit of our original intention.
I have more difficulties when we arrive at the more substantive side of the Senate's suggestions. One problem is increasingly directed to what was one of the key thrusts of the recommendations of the procedure and House affairs committee. The problem essentially in this area is that the system of electoral boundaries, which purported to be private and non-political, was inevitably subject to political pressures which, because they were never out in the open, were not subject to public scrutiny and review.
An ideal system of constitutionalizing electoral boundaries commissions would recognize that it goes to constituent power, which is prior to constitutional power and the ultimate source of state authority. That is something, I think ideally, on which we would have a set of very clear, concrete principles to be applied by commissioners so that their discretion would not be, as was once said of Lord Eldon when he was Lord High Chancellor, as long as the chancellor's foot.
Outside people could refer to clear constitutional principles in deciding whether the commissioners' discretion was exercised rationally or was exercised merely arbitrarily and capriciously and of course subject to review by the courts. The biggest gap in the Canadian electoral system is that there is no developed system of court jurisprudence.
If we examine the evolution, the democratization of electoral law in the United States is essentially because they have clear constitutional principles set out in the constitutional charter and a perfected system of court challenge by test cases financed by competing interest groups and clear court rulings. This constitutionalization through clear enunciation of constitutional principles and judicial review was borrowed by the German constitutional system, the contemporary system, from the United States. It goes even more along that road than the United States does.
We have lagged behind in many respects perhaps because of the timidity-self-restraint might be the kinder word-of the Supreme Court and the absence of a disposition on the part of persons affected and even political parties to approach the court where boundaries are obviously gerrymandered or established arbitrarily and capriciously without proper regard to local conditions.
It can however be changed. The feeling of the committee was very clear that the criteria for establishment of electoral boundaries should be set out in the legislation, and that they should be criteria to which what was done by the boundaries commissions in the future would be referable and would obviously be subject to scrutiny by citizens, political parties and others affected, but subject to review by an ultimate authority. This is why we approached the statement of principles.
Coming back to what the Senate has done, I have some reservations in its striking out the provision intended to safeguard against unnecessary revision. I also have some difficulty with its touching the issue of community of interest. I felt that within the committee ourselves we did not go quite far enough in defining the criteria, but at least we made a beginning.
One thing we tried to establish was the respect for continuity, which is one of our constitutional values. Members of Parliament build up a special relationship with their constituencies. There is a relationship of trust which subsists during the mandate of the member. It should not idly be changed. Unless there is a pressing consideration of sociology, economics or something else set out in the criteria, there should be a presumption of continuity. One does not indulge in changes across the board just for the sake of making a professorial exercise.
In looking at the last electoral boundaries commission-and in an earlier pre-parliamentary capacity I served as an electoral boundary commissioner-Madam Sauvé as Speaker approached me and said that she wanted to depoliticize the process. She was looking for people a bit outside the political arenas for that. One of the principles we very clearly recognized was the principle of continuity, the relationship between members and their constituents. If we change a boundary dramatically halfway through a term, what is the relationship of trust between members and their existing constituents from whom the member will be separated by the next boundary change? Obviously one does one's best but it is not good for the relationship of trust which one tries to build up through the municipal, provincial and federal levels of government.
We stressed, however, in community of interest that it should be established in an evolutionary pattern. Constitutions are not static instruments, laws are not and obviously society is not. It is
a principle of the common law and I think of our constitutional jurisprudence that laws should evolve as society evolves.
One regret I had in looking at the work of the latest electoral boundaries commissions, the series of 11 reports that we had, was that in a certain sense in the philosophy, because everybody has a philosophy, we discovered that there had been no contact by the electoral boundaries commission the last time with the federal electoral commissioner who has a great deal of experience. There was no mutual contact between them so there were wide variations in approaches.
We discovered that essentially some of the commissions were looking back to the future. The unique feature of Canadian society today, which some have railed against, some have viewed with despair and others have viewed with joy as an opportunity for the future, is the fact that we have become a community of communities. It is interesting certainly in large cities that all the constituencies are plural in the sense of representing many communities. It is something in some sense that has been achieved accidentally over the years but is consolidated.
One of my deep regrets in looking at the latest exercise is that there is an attempt to turn the clock backward, seemingly, to create uni-communities, uni-ethnic constituencies. This is a false approach to building a Canadian society. It runs against all the trends. This is why in spelling out the criteria we have tried to stress two things: first, continuity unless there is a clear reason for doing differently and, second, a balance of characteristics, a balance of features in which sociology, geography and commonalty of ties all operate together.
We must never forget the prime lesson of Canadian society which will be the hallmark of our society as we enter the 21st century. There is unity in the diversity because of the necessity of co-operation and co-existence between the different communities.
My suggestion to the Senate, and I do so in the full spirit of respect for a co-ordinate institution, is that it should hew more closely to the position adopted by the House. In our committee we gave hours of work, hours of give and take, in discussion of the particular clause and it should not be changed lightly. I would suggest that the excision of our principle of continuity is a step backward, particularly where continuity now by the happy accidents of the evolution of our society adequately reflects the diversity and in a sense the unity through diversity of our society.
I am optimistic about the venture in the constitutionalism of electoral laws. So far in society we have left the political parties untouched. It is my view that constitutionally the political parties as organs of our constitutional system are subject to the same principles of constitutional review as the main governmental institutions.
I would view it as a healthy situation if issues of the internal processes of parties where they operate in such a way as to negate the principles of representation are subject to court challenges and court review as they are in Germany, France and in all the countries that have borrowed from American constitutionalism. We would not have the great constitutionalism of the United States without it. In some senses principles we have established only in terms of consideration of electoral boundaries carry over to the political parties as prime instruments of our constitutional system.
One thanks the Senate for the thoughtful suggestions among which we can very easily accept the reduction of electoral quotas from 25 to 15. "Thank you again for the suggestion of residency. Please, in a spirit of comity, take another look at what we have done with the substantive provisions. We would respect your accommodation to our suggestions here."