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Crucial Fact

  • His favourite word was constitutional.

Last in Parliament October 2000, as Liberal MP for Vancouver Quadra (B.C.)

Won his last election, in 1997, with 42% of the vote.

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Statements in the House

Main Estimates, 1999-2000 June 8th, 1999

Mr. Speaker, one understands the lateness of the hour produces that mixture of melancholy and euphoria that we have seen at various stages of the debate this evening.

It is a pity perhaps that such an interesting subject has been consigned to a late evening session. There has been an absence of concern or attention in this parliament and perhaps the one before it with fundamental questions, the large principles of government. Yet in a way I think we are seeing the creaking and groaning of parliamentary institutions that are already out of date and, in some ways in this country, lag behind the creative changes that have been made in other countries with similar systems. In a sense, it is all a consequence of the too exclusive preoccupation for the last 30 years with the Quebec question narrowly defined. The narrow definition is not the fault of all the opposite side of the House. I think the blame lies equally. One could suggest that the larger solutions for the Quebec problem would better be obtained in a larger solution of general constitutional problems, but here we come back again to this basic principle that it is very difficult, since the Constitution Act, 1982, to change the Canadian constitution, but it is not impossible.

The other day I encountered a very distinguished senator and former member of this House who had to retire because he had reached the term of years, 75 years. He was complaining that he was forced to retire at that age. I told him that it was possible that it was not constitutional to compel retirement for age. I asked him if he had ever considered invoking the charter of rights and freedoms.

It would certainly be possible, without going to the provinces, for the federal parliament to establish within the federal parliament, with parliamentary power alone, a term of years for the Senate. It would be possible for this House and the Senate to make a constitutional amendment limiting future senators to four years, or eight years or two renewable terms of four years. This is solely within federal power.

It would be possible to extend the age issue. The only reason I think the age issue arose is simply because people had enough sense, 100 years after 1867, to realize a life term was just unacceptable in the conditions of North America.

The biggest problem in electing a Senate is that it would be a Senate elected on a basis of regional representation that reflected the social realities of 1867, the demographic realities that are totally inequitable today. There is no way in which British Columbians for example, would vote for Charlottetown or any other agreement that perpetuated an inequitable division of the Senate, even an elected Senate.

If we want to change these things we have to go the long route unless we take the surprising step, but not so surprising in other countries, of getting a court ruling on the constitutionality of these provisions of the constitution viewed in contemporary terms. Why not? Unless we go the ultimate route of a constituent assembly.

We are, in a certain sense in our parliament at this time, engaged in a form of low level problem solving largely because people, in reaction to the failure of the Meech Lake accord and the failure of Charlottetown, have said they do not want to discuss fundamental change. There is no particular evidence of that.

Earlier in the debate, I remember one of the members citing the example of a Gallup poll that he had consulted, or the equivalent, and finding that 43% of the people wanted to abolish the Senate. I wonder if he had asked how many people wanted to abolish the House of Commons as it is presently constituted. He might well have found that there was a similar large public disillusionment with the legislative process.

I think we badly need, on the evidence of this parliament, to reform our committee structure. We badly need to re-examine the relationship of executive and legislative power. These are areas that could be changed without the necessity of going to the provinces and going through that seven out of ten or ten out of ten formula. They have largely been left to one side.

I think one of the problems we have with the proposals put forward today on Senate reform is that they do not recognize the interdependence of constitutional institutions. If we abolish the Senate, we will dramatically change the House of Commons as it is now, and it is presently staggering under its current burden of office. Something obviously is needed: a little more comprehensive thinking.

The 1960s, 1970s and 1980s were golden periods in terms of producing a consensus on constitutional change. Let me read the sort of consensus that emerged: That an elected Senate, if it were to be achieved, should have the power to ratify all international treaties; that it should have the power to confirm nominations or reject nominations to the Supreme Court of Canada; and that it have the power to confirm ambassadorial appointments and appointments as deputy ministers. Why not? It is common in other systems of government. It might have the power, if the governor general were to be a wholly Canadian appointment, to conduct the election of the governor general. An elected Senate could perform the function that we give at enormous public expense and with a term of years seemingly without limit to royal commissions of inquiry. Should a legislative body not be doing that? It is quite obvious that the House of Commons cannot do it. If we look at the overburdening and the number of committees and the mandates of the committees today, I do not think we are able to discharge the functions that are given to us now.

The cause of Senate reform is I think an interesting one. It offers the most promise in terms of changes in our federal institutions, if we can get over this dilemma of constitutional change.

I noted the comments by the member for Brandon—Souris. He said that he had help with a wheat bill. I would simply say that I faced a situation in which a House committee, for some reason, produced a unanimous report last December. Then, after the unanimous report had gone to the House, some members decided to change their minds. Having accepted that a committee obviously would be well informed on the subject, I read the project and decided it was not as well informed as it could have been. Looking for an arena for change, I also went to the Senate and spoke to senators. I was able at the Senate level, because the Senate has co-ordinate constitutional powers with the House, to produce changes which I think are more in line with contemporary legal thinking.

There is a role for a second chamber, certainly if the House continues to be overburdened in the way it is with the present committee structure, which I do not think is very satisfactory unless we have this unique combination of an experienced and pragmatic committee chairperson and a good parliamentary secretary working as a team, and sufficient co-operation or acceptance of the rules of the game by government and opposition members. It does occur in some committees, but not in all, and we have noticed the difficulty in achieving a quorum in committees in the last few weeks. That is one of the realities.

I welcome the suggestions that have been made. I think the suggestions for the abolition of the Senate are simplistic. They ignore the fact that taking the Senate out will dramatically change the House too. I am not sure that we have yet learned to assume the new types of burdens that would be placed upon us.

Tackling the issue of how to make reform, as I say, electing the Senate with the present totally inequitable and unacceptable basis of regional allocation of the seats, would be a step backward in time and I do not think we can go that way. But why not?

One of the suggestions made, which was an interesting suggestion from outside, was why do we not attempt a mini-Senate reform. One of the most popular steps the present Prime Minister has taken has been to appoint senators who, in essence, will serve for a short term of years only. I think they are among the best quality senators we have had in a long time. These people, usually with two or three years to go, were never expecting an appointment to the Senate, but bring a surprising degree of expertise and knowledge and a very large degree of pragmatism.

One of the suggestions made, and I know it is taboo to speak of anything the former Prime Minister in the previous government introduced, was with respect to the so-called GST senators. It is a section of the constitution that was forgotten, which had been raised with me by a thoughtful correspondent. Could we not in some way correct, partly at least, the regional inequities of Senate representation by region by using that section and appointing more senators for those underrepresented areas of the country, in particular if it was done on a term of years basis, four years or something else?

I offer these simply because we are not completely in a straitjacket. To get movement in the upper House in that way might encourage the larger type of reform that so many people in all parties favour.

I look at the expert committees, the Lamontagne-MacGuigan committee, the Goldenberg commission, the father of the gentleman who is on the Prime Minister's staff, Pepin-Robarts that I have referred to, much the best constitutional report that has been made in Canada in the post-war period.

If we directed our attention to these matters we would see a time when parliamentarians thought in an ambitious way, looked at larger ideas, and a great deal of it came across. Except for certain egregious errors in tactics, the Pepin-Robarts report, as reflected in Meech Lake, would have gone through. It is one of those interesting things, the overconfidence of the political leaders who were directing the situation at that time.

Will we get around to these larger questions? I have raised this issue. I think the next generation of Canadians will have a rendezvous with the constitution. I am sure the imbalances, the inefficiencies that have accumulated in this inherited British system that we have not kept up to date in the way the British and other British derived systems have, will become large enough, and in a very short time from now we might get a movement toward general constitutional renewal.

If we go the constituency assembly route and we go the usual way in which constituent assemblies are adopted, we get out of the straitjacket of the chapter 5 amending sections of the constitution.

I could say more, but the hon. member opposite has pointed out to me the problem of one of his colleagues who has been waiting for four hours to speak and time is running away, so I think I will cut short my remarks.

Main Estimates, 1999-2000 June 8th, 1999

Mr. Speaker, would the hon. member accept the conclusions of the Pepin-Robarts commission on an elected Senate, dividing the number of its members among the five regions of Canada, but with a veto for Quebec on matters concerning linguistic rights, culture and similar elements?

Main Estimates, 1999-2000 June 8th, 1999

Mr. Speaker, I rise because I was fascinated by the remarks of the hon. member for Brandon—Souris.

I am looking for the right adjective. I thought it was perhaps a cathartic address, but I will settle for the notion that his remarks were fertilizing in an atmosphere where one badly demanded ideas.

May I ask if he, as a partisan of the Senate, will join the movement to give British Columbia, rightly recognized as the fifth region of Canada, 20% of the seats in a reformed, elected Senate? Would he join us in that? We would be prepared to allow Manitoba to share a third of another 20%.

Futuristic Science Project June 7th, 1999

Mr. Speaker, we congratulate Robyn Massel, Katie Mogan, Olivia Maginley and Patricia Lau, four grade nine students from Point Grey Mini-school in my riding of Vancouver Quadra. They have been awarded first prize in the prestigious Toshiba/NSTA Explora Vision Awards program. Their science project is intended to combat osteoporosis. Last week they travelled to Washington, D.C. with each one to receive $10,000 U.S. for post-secondary studies.

The federal government's commitment for funding research in the basic sciences will ensure that imaginative cures for debilitating diseases like osteoporosis will one day become a reality for all Canadians.

Kosovo June 3rd, 1999

Mr. Speaker, we welcome the decision of the Yugoslav parliament to accept in full the peace plan presented by Finnish President Ahtisaari and Russian Special Envoy Chernomyrdin.

This peace plan is based on the G-8 principles reached yesterday and is in full accord with the United Nations charter. We welcome progress toward a peaceful resolution of the conflict in Yugoslavia.

Supply June 3rd, 1999

Mr. Speaker, once again we are using coloured language, coloured words. We should stick to the text of the treaty and the basic assumption, which is not questioned, by the way, by the Nisga'a, the provincial government or the federal government, that it operates within the constitution and subject to the constitution. On the only thing remaining in relation to the Quebec government, we can consider on the merits what is being proposed, but if Quebec takes us out of the constitution, then we recognize that a fundamental change has occurred. The difference is as between night and day in the two situations.

Supply June 3rd, 1999

Mr. Speaker, to repeat again, the Nisga'a treaty and all subsequent treaties are within the constitution and the rule of law the constitution represents. Any definition made of citizenship is subject to judicial review and subject to the constitution, as well as other constitutional provisions.

What Quebec may or may not propose is another matter. However, if proposals are made that involve a conflict with the Constitution of Canada as it exists, then our position is very clear, we would approach that as a request to depart from the constitution and we would treat it accordingly. The Prime Minister has made his views very clear on that.

Supply June 3rd, 1999

Mr. Speaker, the hon. asks a leading question that certainly goes beyond the legislation or the treaty. The province of Quebec is in its own process through its present government of asking for certain measures which the government considers not in accordance with the constitution. I know of no parallelism between what is now being proposed under the Nisga'a treaty and what, as I understand from the record, the province of Quebec is asking for.

I have said before that the Nisga'a treaty and all subsequent treaties are subject to the constitution and to the rule of law. It was our belief in relation to Quebec proposals that they were beyond the constitution. That caused us to say that if there is any further referendum on this issue we would insist on drafting a question and on having the language corrected to show that fact, so people can determine it. If and when an affirmative referendum arises, it will be political judgment whether to respond to it.

Supply June 3rd, 1999

Mr. Speaker, may I make several prefatory comments to correct the record as it has emerged to date.

The Nisga'a treaty is not a template for the remaining 50 treaties in British Columbia. This point was politically made by the premier of the province and later withdrawn. We recognize the Nisga'a treaty rests on its own special historical facts. All the other treaties will have a similar factual record.

As far as the Nisga'a treaty is concerned one of the key factors in its rapid negotiation in these last few years—it had been 100 years in the making—was an essentially highly pragmatic leadership on the part of the Nisga'a people and a spirit of give and take and the absence at the time the negotiations were in full play, and I stress this, of countervailing interests concretely expressed. However it was always envisaged that this and other treaties would operate within the constitution and the rule of law and that the ordinary legal remedies apply.

I would also like to say on behalf of the very great former member for Westmount that there was nothing in Prime Minister Trudeau's approach that was incompatible with aboriginal rights. Quite the opposite. He rejected the pathological nationalism that there was in Europe between the two world wars. He was a strong believer in minority rights and in fact sections 25 and 35 of his celebrated charter of rights are as a result of his accepting that they must be there. They are provisions that preserve aboriginal rights such as they are. He envisaged also that it would left to subsequent constitutional testing to determine their precise ambit and limit in concrete cases.

Let me make some comments on judicial review. The member for Sydney—Victoria earlier in the debate made the comment that there are ironies and contradictions here. I have heard, I think, several semesters of debate on the evils of judicial review and judicial activism. I wrote my first book on judicial review and judicial activism. It is always interesting to find people converted on the road to Damascus, and I welcome that. I would not reproach that to anyone.

Let me simply say that judicial review and judicial activism do not exist in isolation. There are not very many cases in Canadian law establishing the parameters, but it is well established in the jurisprudence of the World Court. In one recent case in which I gave free advice the court quite properly said even on an advisory opinion jurisdiction that it must consider standing to sue. It rejected an intervention by the World Health Organization, although accepting one by the UN General Assembly on the issue of the legality of nuclear weapons.

More specifically and in this context even in a specific case controversy there are limits to what courts with the proper respect that they do exercise to co-ordinate arms of government, like the executive and the legislature, may do and how they may do it. In the recent ruling, admittedly by a single judge of the Supreme Court of British Columbia, the court has rightly established that the issue raised on the Nisga'a treaty was premature in legal terms, that it was not ripe for adjudication, that the issue was moot, that it should at least wait on the adoption of the relevant federal and provincial legislation.

I have not any doubt that would be the position of the Supreme Court of Canada. In fact when I looked at the motion here as it is given, with a certain degree I guess of poetic enthusiasm, I would wonder myself about any court ruling on usurping, diminishing, subrogating or other Latinisms of that sort, in the absence of a concrete factual record.

We have reached the situation of how and when native rights are defined. It is not expected that the treaties are the last word. They are the beginning of an empirical case by case development in concrete situations. What is good and sensible for the Nisga'a may need to be re-examined in the context of highly urbanized settled areas such as exist in Vancouver, Kamloops and Victoria. This will be done in the treaty making process.

Turning to the compatibility or the reconciliation of the treaties with sections 25 and 35 in which I have a special interest, Senator Perrault and I gave advice to Prime Minister Trudeau on sections 25 and 35 and suggested their inclusion in the charter. It is always envisaged that there will be in the spirit of the common law an empirical case by case development in the concrete factual record of specific problem situations.

The law is not frozen once and for all, for all time. We have gone beyond provincial-federal constitutional compartment theories. We recognize, in the spirit in which Lord Sankey established through the privy council 65 years ago, that the constitution is a living tree. It has constantly to be adjusted to changing circumstances.

However we do not do that in abstract. We do it in concrete cases. The case controversy is crucial.

A number of us were involved in a negotiation within parliament, making parliament work. New problems arose in connection with Bill C-49 that were brought to my attention after the all party committee had made its unanimous report. We have laboured with the Senate and others. The Senate has come up with a suggestion for the amendment of Bill C-49, which will be coming back to the House, that certainly renders it more compatible with common law principles and the charter of rights.

Some things were left out, for example the status of native women. It is not a concrete issue in the case of the Nisga'a but it will undoubtedly arise in the case of some treaties within the Vancouver area. I anticipate those will go to the court when particular persons and interest groups say that they are concerned about this and we will get a ruling.

The whole process of treaty making rests on Jeremy Bentham's principle that the law is not made by judge alone but that it is made by judge and company. The treaty making process involves the executive arms of government, parliament and the provincial legislature legislating to implement and the courts ruling on it when necessary.

There is nothing in the record of the negotiation of treaty rights to date that is incompatible with the constitution. It is all subject to the constitution and the charter of rights. There are sections 25 and 35. See the accommodation made by all members of parliament and in the Senate in relation to Bill C-49 after hearing representations from a very wide section of the Vancouver community. These accommodations helped to bring the general principles in a pragmatic orientation, in line with the large constitutional principles and the rule of law.

I would suggest to the members of the opposition that the motion is premature. In my view it would interrupt the principle of comity which courts and others owe to co-ordinate arms of government to the executive that is charged with the negotiation of a treaty. Let it do its work. Parliament is charged with the business of implementing the treaty in concrete legislation.

If and when in the concrete legislation it is demonstrated that there is a concrete clash of interest between persons or groups within the community, then take it to the courts. I have always argued that the justice ministry should help finance such cases that raise general constitutional issues. It was done and was dropped in budget austerity measures earlier in the term of this government and it could be revived. It is a constant, dynamic process of making law compatibly with the constitution and the charter of rights.

I invite all members of the House to co-operate in that process. I thank those who have intervened in the debate, sometimes with asperity, but I take notice of the fact that it was said on both the opposition and government side that feelings were strong. We tolerate asperity when it is in pursuit of good cause.

Foreign Affairs June 2nd, 1999

Mr. Speaker, my question is for the Minister of Foreign Affairs. It concerns NATO actions against Yugoslavia.

Could the minister please advise the House as to the rulings announced today by the International Court of Justice on the legal suits brought by Yugoslavia against Canada and other NATO states?