Ted McWhinney

[Milton Wong, May 13th, 1999]

Mr. Speaker, I am pleased to announce the election of Milton Wong as Chancellor of Simon Fraser University. He is the first Canadian of Asian origins to be elected to that post. He follows closely Bob Lee, who recently completed his mandate as Chancellor of the University of British Columbia.

Milton Wong's career as an investment counsellor, a founder of the Laurier Institute, Science World, the Vancouver Dragon Boat Festival and the World Chinese Entrepreneurs Convention has involved co-operative action with all of Vancouver's cultural communities.

His election as chancellor reflects the values of cultural diversity and the creative dynamism of the new pluralistic society that has emerged in British Columbia.

[Committees Of The House, May 13th, 1999]

Mr. Speaker, I have the honour to present, in both official languages, the eighth report of the Standing Committee on Canadian Heritage.

Pursuant to its order of reference of Friday, April 23, 1999, the committee has considered Bill C-64, an act to establish an indemnification program for travelling exhibitions, and has agreed to report it with amendments. The bill was passed unanimously.

[Criminal Code, May 12th, 1999]

Mr. Speaker, the government has no difficulty with a great deal of the hon. member for Wanuskewin's address. We do have difficulty with the introduction and the tail of his motion of a subsidiary proposal of constitutional change. That is something I will address a little later.

In relation to section 43 of the Criminal Code, it is very clear that Canadian criminal law does not condone or authorize the abuse of children. Section 43 in its context is merely a limited defence to a charge of assault. There are several key points which we should emphasize. It only applies to a parent, teacher or person acting in the place of a parent and only in respect to a pupil or child under that person's care. The person is only permitted to use this defence if force was used for the purpose of correction. A person who uses force in a fit of rage or in order to hurt a child cannot claim section 43 as a defence. Finally, on the issue of proportionality, the force used must be reasonable in the circumstances.

A court asked to consider applying section 43 in any given case would look at the nature of the child's behaviour or action calling for correction, as well as the age of the child, the severity of the punishment, including any injuries suffered by the child.

When determining whether the force used is reasonable the standard is the community standard of reasonableness. There is a warning that if one goes beyond these limits one may find oneself before a criminal court, and in appropriate cases criminal prosecution will be pursued.

It is on the more general issue that we felt we should add some comments to what the hon. member for Wanuskewin said. Lawmaking in Canada follows Jeremy Benthan's euphemism that law is not made by judge alone; it is made by judge and company. There is a continuum in the law making process. Judges, university law schools, law reviews and the legal profession have put in their criticisms. To a very considerable extent our courts have developed a highly nuanced relationship with the rest of the legal company. Courts very rarely say tout court, that is out, that is illegal. They offer suggestions for changes and modifications and the sensible response of a ministry of justice is to consider these, to take them into account and to come back afresh.

This is ordinary legislation. It is not constitutional law. It can be changed, as can any court decision on it, by subsequent legislation if parliament thinks so fit. This is in fact a fairly normal operation with criminal law today.

The legal company involved in monitoring the Criminal Code is very large and very well informed. It has contributed significantly to the progressive evolution of our criminal law.

On the notwithstanding clause I should express the reservations which I advanced in an earlier debate concerning the B.C. decision, the intermediate court decision in the child pornography case.

First, there seems to be a certain misunderstanding of the history and the nature of the notwithstanding clause. Perhaps this is understandable if we consider that the premiers who insisted on putting it into the charter of rights may again be said not to have been fully aware of the constitutional implications of what they were dealing with. There were not very many constitutional scholars among them.

As it stands, the notwithstanding clause is a prior issue. It is addressed to a government introducing new legislation. One can put it in there if one wishes, but Mr. Trudeau said that it would be a tragedy if any federal parliament decided to use the notwithstanding clause in that way.

As the House knows, the only significant use of it has been in a fit of haste, the reaction of the premier of Quebec toward what he felt was the way the gang of eight premiers behaved in relation to the adoption of Constitution Act, 1982, and the charter of rights. We would regard it as a regrettable step backward if the federal government were to use the notwithstanding clause. There are other ways.

This is not the United States Supreme Court where there is an unbridgable gap or barrier between the courts and Congress, and where one has to get a constitutional amendment, essentially, to overturn a judicial decision. Hon. members will be aware that when the United States court outlawed income taxation on constitutional grounds it took a constitutional amendment to override that.

Our situation is different and, in relation to the criminal law, if parliament should think that the court has misconstrued the careful balance, the pragmatic balance that it has made in relation to section 43, it is open to parliament to make amendment. It is open for the legal community as a whole to offer the amendments.

In that context we would reaffirm that the notwithstanding clause is, and I think this was the view of Mr. Trudeau, a constitutional aberration. I would reaffirm that it is wrong to use it, as has been suggested with very little care or thought, as a method of appeal from a judgment of an intermediate court as was proposed in relation to the British Columbia judgment. The appeal process must go its way.

This legislature, this parliament, which is a vestigial court in its own right by the way, is bound by doctrines of comity and mutual respect to co-ordinate institutions of government. It would be quite inappropriate for this court to attempt to meddle with a decision that is being appealed. It would be discourteous. It would be, in a very large sense, unconstitutional.

I would suggest to the hon. member, who is very thoughtful and informed in this area, that we should concentrate on the substance of the bill. We believe section 43 will withstand challenge. The government is committed to defending it in the courts. If there are judicial decisions cutting down its scope, we will study them with care and the proper respect due to the co-ordinate authority and we will bring our suggestions to the House.

I thank the hon. member again for his intervention. On the substance of his remarks on criminal law, the government finds it co-ordinates very much with what we have been suggesting in relation to this bill. On the larger question I would hope that on reflection he would agree. We understand the sentiments he is expressing, but the notwithstanding clause is not the way.

[Nisga'A Treaty, May 4th, 1999]

Mr. Speaker, this morning we signed an agreement designed to ensure equality and opportunity for the people of the Nisga'a Nation. The agreement is the result of the negotiations carried out in good faith over an extended period and testifies to Canadians' willingness to reconcile historical and cultural differences through negotiation and, where necessary, pragmatic compromise.

Congratulations to President Joe Gosnell of the Nisga'a Tribal Council and to all the Nisga'a people whose ancestors first paddled their canoes to the provincial capital, Victoria, a century ago.

Congratulations to the Nisga'a for their perseverance and patience in bringing their historic quest for an agreement to a successful conclusion.

[International Dance Day, April 29th, 1999]

Mr. Speaker, Thursday, April 29, is International Dance Day. This event invites us to understand the universality of this art form.

The language of dance knows no borders. It embraces all nationalities and is used for many purposes, including to express the artistic, the spiritual and the mundane.

To the first nations, dance is a vital component of their ancestral heritage. Canadian dance artists are our country's cultural ambassadors, applauded in all the cultural capitals of the world.

International Dance Day affords Canadians an opportunity to take part in activities focusing on various styles of dance and to honour our dance artists.

[Supply, April 27th, 1999]

Madam Speaker, I compliment the hon. member for Regina—Qu'Appelle on his intervention. I have two points.

Would he not agree that after the initial statements from NATO on a naval blockade, the commentaries made by the Minister of National Defence are very close to those used by President Kennedy in the Cuban missile crisis where a similar situation existed in the naval terms, which were fully compatible with international law? The Government of Canada is very clear on its commitment to international law and its commitment to the United Nations.

Would he not agree also that after fulfilling our obligations to NATO, we are bending our efforts in the last few days and the last few weeks to getting the issue back to the United Nations?

That is the explanation of the mission to Moscow of the foreign minister, the mission to Greece, the discussion of the Simitis plan for a more inclusive international force which must certainly be there when peace is restored.

[Supply, April 27th, 1999]

Madam Speaker, the hon. member is well aware that the Minister of Foreign Affairs will go on a special mission to Moscow toward the end of the week and that he will later meet with the Prime Minister of Greece. The government wants the circle of concerned parties to be widened. That circle must definitely go beyond NATO.

I wonder if the hon. member had an opportunity to look at the Simitis plan, proposed yesterday by the Prime Minister of Greece. That proposal has the benefit of emphasizing the role of Kosovo's neighbouring countries. We all remember the Greek and Italian mission to Albania, last year.

Will the hon. member give his support and the support of his party to the Simitis plan?

[Supply, April 27th, 1999]

Madam Speaker, I am receiving hundreds of well written and thoughtful letters from my constituents. There are deep, emotional wounds on all sides in this situation. People are writing and asking what to do.

If we go on to the positive side, I think all parties within parliament are trying to internationalize the effort, to revive the United Nations role and to make sure that the reconstruction which will follow, whether it is a completely diplomatic solution or something less than that, will be in a spirit of comprehension and understanding. I certainly think it is never a part of Canadian policy to devastate a defeated enemy, if it is a defeated enemy. There has to be a place for reconciliation. This will be done.

We also recognize that the refugee situation, which is what started it, was the prime argument for NATO's involvement and it remains as part of the solution.

[Supply, April 27th, 1999]

Madam Speaker, the motion launched today reminds us that, with the end of the cold war, peace based on the status quo, which lasted for almost half a century, has ended and we are having an historical step backward, an historical anachronism, the revival of ethnic conflicts of the sort we had at the end of the 19th century and up to the war of 1914. It is one of the paradoxes that the cold war ends and a new period of ethnic strife which simply revives quarrels that existed before begins.

Getting to the substance of the debate, we are a member of a military alliance, for better or for worse, which was designed to end the cold war and which worked very well, so much so that after the Korean war there were no direct clashes between the two superpowers or their rival blocs. The alliance is there. The alliance called for this particular action. As a member of the alliance, we accepted the obligations.

However, that does not mean that our continuing foreign policy has been put to one side. The emphasis of Canada has always been on quiet diplomacy rather than headline diplomacy. It remains our effort to operate through international authority, through the United Nations to which all regional security organizations are subjected and legally subordinate.

The efforts are continuing. They are continuing through quiet diplomacy. We must move in the first instance through the security council while the possibility remains of getting unanimous action there. These efforts are being pursued. The foreign minister is going to Moscow later this week.

If the security council should be blocked, then the opportunity remains on the uniting for peace precedent, referred to in the House by the hon. member for Halifax West and others, to proceed through the general assembly. It is worth going that extra mile and going to Moscow. That step is being taken. The foreign minister on his return from Moscow will call in on Athens.

In the last 25 years, and more particularly in the last several years, Canada has had a special interest in promoting peaceful solutions in the Balkans. We have been in continuing negotiations with sometimes a breakthrough or a window of opportunity seeming to emerge and then, no doubt for temporary reasons, disappearing.

We have been negotiating an end to the Cyprus conflict on a basis of one country and perhaps two regional parliaments or otherwise within it. Nevertheless, we have been negotiating for a solution. It is in that context that the foreign minister will be discussing with the Greek prime minister the ambitious plan that Mr. Simitis has launched.

There are merits in the Simitis plan that were not present in the German or other plans. It takes note of what perhaps only a member of the Balkan community can really be fully aware of, that there are very rarely absolute rights and wrongs, and that the capacity to demonize an opposition are not as readily present in the Balkans at the end of the 20th century as it may have been in the 19th century or in some other period.

In January, Mr. Pangalos, the Greek foreign minister at the time, referred to an initiative that had been taken by the Balkan neighbour countries to solve the then crisis in Albania, the near civil war situation. It was solved by two Balkan countries, Greece and Italy, Italy being a neighbour to the Balkan countries, but regional countries going into Albania at the invitation of the Albanian government and bringing peace and a consensus under which that country now operates.

It is a precedent that can be expanded. If one operates within the United Nations there is nothing to prevent the United Nations from designating NATO as a peacekeeping force in Kosovo if and when hostilities have ceased, but it would be under the authority of the United Nations. There is nothing to prevent a designation of a larger group which would include the addition to NATO of Russia or other countries, but it could also be an all-Balkan force and limited, conceivably—and this suggestion has been made—to non-combatant countries in the present situation. There are members of the NATO alliance that have not been engaged in combatant activity.

I know the hon. members for Halifax and Halifax West would join with me in saying that these are valuable initiatives, that each new proposal should be considered and that they can be pursued through the United Nations.

Reference has been made to international law. At certain periods I wondered whether the legal advisor had been fully consulted. In my professional career, I have often cited the example of President Kennedy and the Cuban missile crisis when law and power operated together. When the president, as commander in chief, consulted the legal advisor and said “Can we do it”, he had been advised to bomb the Russian missiles in Cuba. However, he rejected it on the advice of the legal advisor. The solution, as we know, was a masterpiece of peaceful diplomacy in resolving a dispute which eventually the adversaries on both sides accepted gracefully.

Reference has been made to the naval blockade. I would remind members that this is an example of policies in evolution. The advice under international law, which was given to President Kennedy in the Cuban missile crisis, is that a pacific blockade can only be used to interdict access of the country that is being blockaded. Third parties cannot be reached. President Kennedy accepted that advice.

If members have been following the statements of our Minister of National Defence which have been communicated to NATO, and the opinion that President Chirac has expressed, which is in line with the advice given to President Kennedy, in a pacific blockade we cannot exclude third countries by forceful means. This advice seems to have been taken.

This is an occasion in which a debate in the House has been presented constructively without the desire to make newspaper headlines. Let us solve this problem. Let us get on track and in line with Canadian initiatives through the United Nations. Let us go the extra mile, talk to the Russians and persuade our allies and associates that this is the right way to go. This process is in operation now. It has not been trumpeted in national headlines but it is going on.

I would like to assure the House that we are trying to work through the United Nations. We will explore all opportunities for peace. After a peaceful solution it should be international.

I will put to rest the fears of many Serbian Canadians. It is not part of Canadian foreign policy or internal policy to demonize any members of our community. It is very clear that reconstruction in the Balkans after the present operations must also include Yugoslavia. We do not want to create a power vacuum which was the situation in Germany after the hostilities ended in 1945. If we create a vacuum any sort of dangerous forces move in. Peace and stability demand an inclusive and co-operative effort through the United Nations.

[Supply, April 27th, 1999]

Madam Speaker, the hon. member for Halifax West, and indeed the hon. member for Halifax, referred to diplomatic efforts.

I wonder if the hon. member would be in a position to advise us if he has considered the latest peace plan, the Simitis peace plan launched by the Prime Minister of Greece and communicated yesterday.