Ted McWhinney

[Supply, February 4th, 1999]

Mr. Speaker, the policy of our government is to ensure each Canadian has equal access to the health care system. If necessary, our government will act alone.

However, we prefer to have a system of which all provinces are part, a system based on equal involvement by both levels of government. This is what co-operative federalism is all about. This is the guiding principle the Prime Minister is discussing this very day with provincial premiers.

[Supply, February 4th, 1999]

Mr. Speaker, I will be sharing my time with the hon. member for Waterloo—Wellington.

I thank the orators who have already spoken in the debate. It has been fruitful. It does occur of course at a time when some of the issues here may be resolved consensually by a meeting several blocks away of the Prime Minister and the first ministers I have benefited by the discussion by the members of the Bloc. It is good to remind ourselves that the Constitution is more than a discussion of sovereignty in the abstract, that there are larger issues of reform and modernization which can be addressed and to which members of the Bloc opposite can contribute usefully.

I take this opportunity as a diversion for paying compliment to the statement made on behalf of the Bloc two days ago in the debate on the notwithstanding clause by the hon. member for Beauharnois—Salaberry.

When I heard the statement I thought that is a statement I could have written myself. It was a very sensible statement. It was wise. The illogic of it of course was that it pointed not to two negative votes, but somehow in the mysterious ways a vote for one, a vote against the other, I do not think Decartes would have approved of this display of logic. Nevertheless the reasoning is good and it takes us back to the position that federalism is not some frozen system of rules and regulations developed in a bygone century and to be applied immutably to changed social conditions today. Federalism is essentially a very flexible system. It is sometimes forgotten by Canadians, English speaking Canadians perhaps more than others, that the Westminster model which was developed by the British imperial power, which was not noticeably federal at the time it developed it, the theory in practice was developed for its overseas colonies. Look at the problems the English have in encompassing decentralization for Scotland and Wales.

However, the Westminster model is not the only model of federalism. I refer again to the Pepin-Roberts commission, perhaps the most imaginative of the expert commissions of study on our Constitution in the last 50 years. It essentially proclaimed the truth that there are many roads to Rome and there are many different models of federalism. It introduced an interesting notion which did not need an obscure terminology to render it, asymmetrical federalism, simply saying that in any mature federal system the sociological conditions are crucial. We treat equal things equally but unequal things may have a differentiation of constitutional treatment. Why not? It is ordinary common sense.

One of applications of the new approach, a flexible approach of the Pepin-Roberts style to federalism, is the concept of the social union which is being discussed, as least the practical implementation of an abstract concept, by the Prime Minister and the first ministers at this moment. As a term of art it is post-war German federalism. There is nothing wrong with that. The post-war German federal system is what the Americans might have if they had lost the war and had to rebuild their constitution from the ground up. It is very modern federalism but in its very intelligent, pragmatic allocation and transfer of powers between three levels of government it does necessitate, if it is to be applied to Canada, a constitutional amendment.

One of our problems with the patriation package in 1982 was whatever it did in other areas it put the Constitution in a straight-jacket in terms of amendments. It is very hard to amend the Constitution by the front door. This is an admirable feature I think Canadians have developed. This is one part of their English heritage but it is also part of the French heritage because it is also occurred in France, the development by constitutional glosses, custom convention, changes made by practice which last because they are common sense. They are sensible. They respond to new problems and nobody is going to say nay to that.

When we look at the social union in terms of medical payments, partnership and financing medicare, there is so much that can be done by accommodations between governments.

Special arrangements can be made for different regions corresponding to demonstrated special societal facts or special needs. Uniformity is not a sine qua non, and this is where Pepin-Robarts in reminding us of the opting in and opting out facilities and raising the compensation in opting out provided the opportunity if there is a spirit of goodwill and of pragmatic compromise for working out arrangements to accommodate the increasing pluralism in our federal society.

If these arrangements being discussed today do not work out we can assure the House that we will as a national government and uphold our principle that there are national norms in medicare, in medical treatment and in medical research that we will in fulfilment of our mandate and our duty to the country seek to effectuate within our power. But there is nothing to prevent administrative devolution in the spirit of co-operative federalism. The message from the Prime Minister is that we would like to work with you.

Co-operative federalism, Lester Pearson style social union and the new trendy word of today, borrowed as I say somewhat inexactly from West German federalism, these are all ways of achieving socially useful results within an accommodatingly flexible federal system. The principle of subsidiarity, the notion from the European Union that each level of government should be allowed to do what it does best in terms of a functional reallocation of powers on a basis of co-operative federalism and customary adjustment of the constitution, it is all there.

We wish the Prime Minister and the first ministers every success in their efforts. If they do not succeed we will do our duty as the federal government to the Canadian people to deliver on a 21st century medical insurance system properly financed. We want the co-operation of the provincial governments. We welcome the element of pragmatism I saw in the Bloc motion, the Bloc attitude two days ago on the notwithstanding clause. I wish its logic could have been more in the Cartesian sense and the two votes would have been identical in terms of its party, but the progress is there.

This has been a good debate. It has been intelligent. There is the going backwards and forwards in terms of the give and take that is the essential of any mature federal system.

[Finance, February 2nd, 1999]

Mr. Speaker, I will be sharing my time with my colleague, the member for Winnipeg North—St. Paul.

The preceding two speakers have conducted a dialogue which was interesting and amusing in some ways. I do not say that in any derogatory sense, but it seemed to be a philosophical discussion. I heard references to a moral imperative. I heard echoes of Max Weber and Tawney, but it reminded me of earlier views of economics and finance that they followed God given laws, a sort of theocratic conception.

I would suggest that the rules of economics are man made rules, or let us say person made rules in the age of political correctness, and they are developed and confirmed experientially. As William James or Dewey would say, truth is something that happens to an idea. It is confirmed operationally. That is the pragmatic definition of truth.

To get us further into this philosophical discussion I would have thought we were dealing with a paradigm shift, to use the trendy words of current commentators. We are moving from one era of economic thinking to another. Somebody said the end of history; I would have said the end of Keynesian economics.

The great charm of our finance minister is that he has presided over the ending at least for the time being, the death blow, of Keynesian economics, the concept that governments would throw away money, deficit spend and somehow the economy would come into healthy being. This may have been true in the 1930s and 1940s when Keynes was at his height but it is an error to take any thinker out of its particular space time dimension.

To his credit, the Minister of Finance has refused to become a prisoner of the past. It is not the end of history. It is the end in our time era of the concept that governments spend. We have leaner and trimmer governments. It is shown in the fact that when this government came to power in 1993 it inherited a $42.8 billion annual deficit budget. We set as an objective to achieve budget integrity, a balanced budget by the year 2000. As we all know, the 1998 budget was balanced. What about 1999?

Our Prime Minister is fond of repeating a conversation he had with the prime minister of Norway at one of these economic meetings. He said to the prime minister of Norway, “We are going to be balancing our budget”, and the prime minister of Norway said, “Good Heavens, I am sorry for you. Your problems will begin. The moment you have a surplus, everybody wants to spend it and you make a lot of enemies who find it difficult to resist”.

I think the key note of our present budgetary policy, what I would call the present conception of economic truth, is that fiscal integrity is the requisite of a sane society. We have gotten down our budget deficits to zero, we have a surplus and we must continue with responsible economics.

The recommendation that my constituents have made and which has been echoed by many of my colleagues is that the surplus in being used responsibly should be earmarked 50% for reducing taxation and amortizing the accumulated national debt, the suggestion is a 50:50 balance, and 50% for creative social programs. Putting money back into taxpayers' hands is a way of getting taxpayers to invest in the future, to invest in new industries.

In British Columbia I think the dramatic impact on the economy has been the creation of the new industries, space technology, informatics, these areas. They are interesting because they reflect the contribution of science and technology and pure research.

I used the metaphor in earlier discussions in caucus in previous years of the economic miracle in Germany and Japan, the countries whose economies were shattered by defeat. Their industries were bombed out but they invested their first moneys in research on the basis that fundamental research does not yield rewards tomorrow but the day after tomorrow it may. Five or ten years down the road is when we become the leaders in the areas in which we have invested in pure research. The correlation between pure research and practical application in industry is there.

I think this is the explanation of the German and Japanese miracles. It is one of the things we have been able to sell to the finance minister: invest in research because that is where the jobs will come in the future and that is how to keep our best talent.

All of us I think are alarmed by the brain drain. We are losing our best and our brightest to the United States, to Germany and to other countries because taxes are too high. We have not spent enough on research facilities. We do not offer the stimulating research environment which for many people is better than take home pay.

Let us look at the problem of repaying student loans of $50,000 or $60,000. For a graduate student in one of the professional disciplines it may take a number of years to repay that in Canada but in the United States that sort of thing is repaid in a year or two with the salaries the graduates are getting.

I mentioned the correlation between fiscal integrity, balancing the budget, reducing taxation and spending money on research. I will utter another connection here, another link which takes us back to the earlier concept of economics as political economy. We cannot separate economics from government. We have tended to forget it. We do not need a leaner, more modern system of government.

The pre-emptive concern with Quebec, which I do not criticize as a concern because it is all with us, but at the expense of other issues has prevented us from examining the rationalization of parliamentary and governmental processes. Too much antiquity is present in this chamber. One can worship tradition as an end in itself but tradition is simply a way of recording customs useful and productive in the particular time era. The dynamic of a tradition is adjusting it, upgrading it to new, changed social conditions.

Some of the more interesting developments that are occurring now are in a way a repeat of Prime Minister Pearson's co-operative federalism. The new term social union comes from another more dynamic federal system which is very modern.

It sometimes helps to have lost a war. You have to start from scratch. You build a new governmental system. The German federal system is much more modern than ours. The social union is basically an attempt to readjust federal, provincial and municipal relations, new approaches to tax power and its allocation. But here you get the issues. If you followed the European Union principle of principe de subsidiarité you would allocate to governments the things they do best.

I think in the new approach to the new post-Keynesian budget we will be concerned with modernizing the system of government, getting the provinces to co-operate. If they do, not though, the commitment is there. The federal government must spend money on research, must invest in our young people. It goes hand in hand with this business of lowering taxes, getting money back into the hands of productive and useful people so they will invest in creating the jobs and the infrastructure necessary to carry our economy safely into the new century.

[The Late Frank Low-Beer, February 2nd, 1999]

Mr. Speaker, Frank Low-Beer, who died last month, was educated at Stanford University and Oxford University and called to the bar of British Columbia in 1957. He practised law in a wide range of fields, including taxation, international transactions and resource law. He also published extensively on such issues as the Canadian Constitution and the role of judges in formulating policy in law and legislation.

Frank maintained a keen interest in politics and was a candidate in my riding of Vancouver Quadra in the 1974 federal general election. He will be missed by associates and by scholars of law and government.

[Supply, February 2nd, 1999]

Mr. Speaker, I thank the hon. member for his interesting and useful comments. I have done a good deal of pre-parliamentary work on the special institution of the constitutional court which most countries of the world now have. The judges are elected under specific processes that vary by country. The legislative bodies in many countries are using proportional systems. To institute a change of that sort here would require a constitutional amendment which would also require all 10 provinces and the federal government. Forget it.

When I was parliamentary secretary to the Minister of Foreign Affairs we introduced a system of having departmental appointments to ambassadorial rank brought before the committee. A number of very distinguished people appeared and answered questions at considerable length, and not always with considerable politeness on the part of the questioners as to their qualifications. That can be done by simple parliamentary custom. It may be the sort of thing that the justice committee could usefully consider. Would it be the sort of thing that might be advanced?

Some judges would object. When the charter of rights was being adopted I mentioned a system of the parliamentary election of judges for a constitutional court. One distinguished gentleman said that he would never agree to serve on this basis. I told him that he would be surprised by the thunder of feet of people rushing by him, people who would be prepared to go before an electoral system.

I offer this for the hon. member's consideration. It might be a point worth raising. There are already precedents, for example in the foreign affairs committee.

[Supply, February 2nd, 1999]

Mr. Speaker, I appreciate the member for Simcoe North sharing his time with me.

To begin, I would like to review the history of the charter of rights. It was not part of the original constitutional patriation package. It was introduced because very many scholars around the country reminded the then prime minister that we were one of only two major countries that did not have a charter of rights, the rights and freedoms of citizens. The other was Switzerland. We were both mid-19th century constitutional systems. And it was introduced.

What about the notwithstanding clause? The problem was really a conflict of different modes of legal thinking and, in particular, the then NDP premier of Saskatchewan, Premier Blakeney, who had been educated in the English system where there is no charter of rights. There is now, by the way, with the European court of human rights and the European charter and most of the decisions seem to affect Great Britain. In any event, Mr. Blakeney opposed the idea of a charter, but he agreed on the basis of the present notwithstanding clause.

It is a very awkward clause in its drafting. It had to be.

In the United States unpopular decisions have been overturned by constitutional amendments. One can cite here, for example, the income tax amendment which reversed supreme court decisions.

Mr. Trudeau, when he was approached on this issue and asked why he inserted the notwithstanding clause, said “It was the price of getting the charter. Without it I would not have had the charter”. He then said “I am very sad about it, but I do not believe any federal government will dare to use it”. That has been the fact of life. No federal government has used it.

The major use of this of course has been by one provincial legislature. Four hundred and fifty measures of that legislature were submitted to the notwithstanding clause. Who was it? Premier Levesque, the premier of Quebec, between 1982 and 1985. When he left office the new premier removed the notwithstanding clause from any consideration for any further Quebec bills, so that it remains what many scholars have called a constitutional aberration.

What are the alternatives? One is very obviously the appeal route. People can differ, and I should not as a lawyer express an opinion on a decision by a judge. He deserves respect. But I would simply suggest that honest men and women in the judiciary are entitled to other points of view and might very readily come to a different point of view.

The section of the charter that is involved is one of the most clear sections of the charter. It calls out for a species of judicial legislation. It really embodies, almost word for word, the provisions of the American bill of rights. Our charter, by the way, is much too long, much too pedantic. It is often hard to understand, but on that it is crystal clear. I would suggest that it is reasonable to expect that other people on appeal might come to a different answer.

What we are doing is to ask the justice minister to expedite the appeal process. We do not have the American system of certiorari where the highest court can pick up immediately from a lower court a decision involving constitutional principles and render its own decision on the file. I think that is a gap in our legal system and it should be, frankly, filled at some future stage not too far in the distant future.

It is probably one of the problems of our charter that we do not have a constitutional court or even a constitutional tribunal of the sort that some of us recommended to Mr. Trudeau when he was going about the adoption of the charter of rights. But we do have the appeal system and it can work very quickly.

The major decision of our supreme court perhaps of recent years is the decision on the constitutionality of a secession by Quebec. Issues of this sort on reference have taken in the past three years or four years. Why not? They did it in six months.

I think we are asking, and I will ask the Minister of Justice, to make sure that the federal government presses for quick action. I would think this is a matter on which the court will respond.

I listened with interest to the comment by the member for Kootenay—Columbia because he has made some thoughtful comments on the issue of judicial power in the past. I would like to see the legal authority on which he relies. I think he should publish it, as the possibility of simultaneity of an appeal action, an action under the notwithstanding clause. I would have thought it was elementary that the issue becomes moot in the courts once the legislative action is proceeding. It is, in any case, for the court itself to decide on this issue. I do not think that it is a sound, juridical principle as advanced, but I would like to see the argument that he has brought forward.

Are there ways in which one can substitute for judges some other form of action? One can define, if one wishes to amend the charter of rights. One could define in much greater detail all the sorts of things one wants to control or prescribe.

One of the weaknesses of our charter is that it defines too much. But when we get into the clarion principles of the American bill of rights, as we do in the section now under contest in this particular case, it calls out for a creative interpretation by the judiciary.

I think the debates in the House are part of the travaux préparatoires, part of the sources the Supreme Court of Canada may go to. I do not exclude a situation, after decision of the Supreme Court of Canada, when we may wish to re-examine ways of changing the court decision. One can consider the notwithstanding clause then. But I would suggest to hon. members the message that should go to the justice minister is to use all speed to make sure that the appeal processes operate with the celerity that they did with the reference on the separation of Quebec.

If the notwithstanding provisions are invoked, by the way, do not expect overnight miracles. It will require fresh legislation by the House of Commons. It will require an approval by the Senate. It will go through all those procedures. It will be, I think, a long and drawn out process.

My message here is, I believe, the opposition's anger and the concerns that it has expressed, which are shared very clearly by very many on the government side, are reflected in the debate. It is part of the record that the Supreme Court of Canada will have available to it on appeal and may properly be referred to.

I do not believe that the notwithstanding procedure should be proceeded with while this matter is pending. I do have reservations about the notwithstanding procedures generally. I think there should be simpler processes for reversing court decisions on the line of the American system.

What I am really saying is that the inchoate debate that the member for Kootenay—Columbia launched last year on judicial activism failed because basically there was no comment on institutional possibilities.

We have gotten over the notion that everything in constitutional change is involved with the Quebec question. There are issues of institutional reform and I think the constructive comments that we heard on both sides of the House during the debate, and there have been a number, are ones better addressed in that context. So do not mess with the charter lightly.

It is an act to achieve a charter of rights. It should be changed, not in the reaction to a single case, but only with a regard to long range principles.

On that basis I recommend following the procedure outlined by the minister of justice for going ahead with the file. I and others will communicate in our own rights but I believe that it has come clearly from the debate in the House. With all Godspeed go ahead with the appeal process. This is a decision that I believe is eminently arguable with all respect by the judge of the Supreme Court of British Columbia. He is only one judge. In the American system it would go immediately to the top which is the sort of reform in terms of the better functioning of our charter of rights that we could seriously consider in the future.

[Supply, February 2nd, 1999]

Mr. Speaker, I respect the views of the hon. member for Kootenay—Columbia and I will have something to say later on the subject of judicial activism.

On the issue of simultaneity of action to appeal courts and by this parliament in relation to invocation of section 33(1) of the Constitution, would the member not accept that this would render moot in legal terms proceeding with the appeal process before the supreme court? I do not unfortunately think one can have both courses at once.

[Foreign Affairs, December 4th, 1998]

Mr. Speaker, my question is for the Minister of Foreign Affairs.

The International Court of Justice has ruled today that it does not have the jurisdiction to hear Spain's complaint on Canada's arrest of the Spanish fishing vessel Estai in 1994 just outside our 200 mile territorial zone.

What are the implications of that decision?

[Supply, December 1st, 1998]

Mr. Speaker, I thank the hon. member for the supplementary question. It is not simply that provincial players change. It is that attitudes within provinces change.

At this time, for example, we are getting strong representations from the third level of government on issues of this sort and they are obviously part of the general negotiation. If what is involved may eventually be a constitutional amendment, it is part of the process of incorporating those views, seeing whether they are accepted or rejected.

As I say again, the federal government could develop an ideal type of what we think should be the social union, but we want to be sure the consensus is there. This debate has made very clear that as between even the parties in opposition there is no consensus as to what they mean by the social union. I will not say it is a chameleon word, but it is a word, as Dewey said, whose truth is determined operationally. When they finally get together and say we agree on this, this is the give and take. Then we can move.

[Supply, December 1st, 1998]

Mr. Speaker, I thank the hon. member for a very thoughtful question. It should be remembered that the federal government is only one player in this process and in the spirit of pluralistic federalism we do not seek to impose our will on the other players. We seek consensus.

One of the realities we face when we look at the provinces is personnel change. Provincial elections change, governments change their own attitudes. On this issue we could say we will adopt the Pepin-Robarts report. We will apply this sort of formula.

We would like, however, the provinces to help us on this issue. For example opting out, is this something that all provinces would accept? If it is not, why not? Is it something that some would accept and not others?

As federal players we are not seeking to impose our will. We are part of a process and we recognize that the delays, which we would regret as much as anybody, occur from the necessary democratic point of obtaining a consensus.