Ted McWhinney

[Supply, October 20th, 1998]

Mr. Speaker, let us make some corrections. I was at the Whistler meeting. I spoke to Ron Basford. I spoke to the students. I discussed this operational problem solving strategy and they agreed. The member does not know. He was not there.

On the issue of funding, let us face it. Once one gives a press conference as the hon. member did yesterday, and says that the object of this resolution is to put government members on the spot, what is this being turned into? A political game? Do not play politics. Do not go after cheap newspaper headlines. I work on solving the problems. The hon. member does not.

I understand the limits of the opposition role and of the government role, but I wish we would take this seriously and go to the gut issue of getting the funding.

[Supply, October 20th, 1998]

Mr. Speaker, you know the respect that I hold for all members of the House, members of the opposition. It is one of the strong points in our parliamentary system that we live and work in an atmosphere of mutual respect.

Members will allow me then to celebrate the 30th anniversary of the glorious revolution of 1968 that brought Pierre Trudeau to power by citing one of his best aphorisms. He was referring to Lord Acton that power corrupts. He then said “but absence of power corrupts absolutely”. He was using this as a way of distinguishing the different roles of government and opposition MPs. It is the duty of the opposition to attack a government. It is the duty of the government to seek solutions. It sometimes means in the pursuit of the opposition role that we get some very strange combinations.

I am reminded of a reverse image of the biblical gathering at the cave of the Adullamites, a strange collection that brings together all four opposition parties in spite of the disparateness of their ideology, and one might even say their personalities and their conception of life. But there it is, an unholy alliance is there. I do not denigrate the motives or the contributions made by opposition members. I would simply say to three of the opposition parties, welcome aboard.

It is true the NDP raised this issue on November 25. I thought I was the first; I raised it on December 1, 1997, but I am happy to have the correction. It seems to me the other three opposition parties joined in only a few weeks ago, which is an interesting fact.

Mr. Speaker, I neglected to say that I am sharing my time with the hon. member for Mississauga West, a very honourable member.

To get on to this issue, the role of government MPs is basically an issue of problem solving and producing solutions. I have had certain experience in this area. Sometimes in Canadian politics the problem solving role appears to be more difficult and complex than it was in negotiating with the Russians during the cold war. But there it is. We have interesting and diverse personalities. Our role has always been to make sure that the issues involved which I saw on television in the APEC meeting at UBC are debated fully, that the constitutional issues and the possible collision of constitutional values are properly heard.

There is in fact a certain antinomy. The 1973 treaty on protection of visiting heads of government codifies customary international law. It is the fourth in a series of anti-terrorism treaties, in respect to two earlier ones of which I was the chairman rapporteur of an international commission that did the drafting. But there is also the matter of the charter of rights, the right to free speech, which includes the right even of objection to visiting foreign dignitaries. How to make the balance is what we have been referring to.

In my first communication with the solicitor general I urged the convening of this RCMP complaints commission not because it necessarily is the best of all commissions but it is the one available, it is there. That is the first point. When the issue of the commission being created was established, I raised the funding issue. I have a series of communications which I will deposit in the National Archives. Mr. Speaker, you will be around 30 years from now and will be able to read them with great pleasure and enjoyment. I have maintained that point.

Let me bring us to the events of the last several weeks when the solicitor general advised that in interpreting his office he could not make funds available for individuals appearing before the commission other than the RCMP officers. When the solicitor general raised that issue, I and others began exploring other alternatives.

One of the questions raised was could the commission itself in its discretion use its powers and its funds to fill gaps, lacunae in the legal argumentation. That has taken a good deal of time and a good deal of work and it is an ongoing process. I am able to assure the House that in communications with the government, it has been established that there is the extra supplementary budget, $650,000. It is in the commissioners' discretion to use those funds.

It has been suggested that there are legal objections or obstacles in the way of the commission. One of the issues raised is there is a legal opinion by a professor, there is a ruling by a government agency and there is an opinion by an unnamed government official in the justice ministry. These are not, I would say from my own experience as a royal commissioner, insuperable obstacles. In fact I do not think they are substantial.

I have had the advantage of talking at length with the gentleman referred to earlier in this debate, the hon. Ron Basford who was Minister of Justice and Attorney General of Canada. We believe those objections could be overcome.

Basically I think the ball is now in the commissioners' court. It is for them to make the judgment.

I was able to attend one day of the commission's hearings in Vancouver. I myself felt that the role of the commission was more muted than it should have been. Frankly I felt that the commissioners might have interrupted the examination or cross-examination. It seemed to me it got into the very issues I am talking about, the 1973 treaty and the balance with the charter of rights. That is the sort of issue in my judgment in which the commissioners could decide that they need supplemental legal argument and if I were they, I think I would do so.

In other words we are saying that funds are available. There is a discretion there. My own inquiries establish in my mind that there will be no blocking to their initiatives and there will be co-operation in removing legal articles.

In a communication to the government, I had originally suggested that a special supplementary grant be made. I suggested $50,000 to $100,000 which was in no way intended to be a cap. But I am also worried about fees for lawyers. In France at administrative tribunals no one is entitled to a lawyer. That makes it simpler and less expensive. I am assured again that there is not a cap, that in other words it is open to the commission to ask for more funds.

Two of the three commissioners are young and they struck me as decent, honourable people. If they seize the initiative, they can make sure that substantive justice is done to all people involved. This has involved a good deal of work for a number of people on the government side. It is quiet work that gets no headlines. It is not the sort of thing that can turn a phrase in a newspaper editorial but it is part of my responsibility as a government member to exhaust all possibilities.

I place more expectations in the civil litigation pending before the Supreme Court of British Columbia. Because of the backlog of court business, there are delays in when that will come to court. It has been the policy of the justice ministry to fund ordinary private litigation where substantive constitutional policy issues arise. Why should the taxpayer not fund private litigants when they carry the burden of making in effect constitutional law? It is constitutional law in motion. In the logic of events, the case for funding of the civil litigation is very clear.

It is often forgotten that the charter of rights rests on what Dicey called the common law rights of Englishmen. Today we would say of Englishmen and Englishwomen. It is also in the American bill of rights. These are decisions of individual courts in individual concrete cases. In Dicey's view the constitution is not the source of the rights but the consequence of the rights as defined in litigation. In civil litigation before the courts, I would have the expectation of a definitive ruling. The case for funding there is very strong. I would be very surprised if it does not occur.

In the meantime with the limited mandate of the commission, my advice to the commissioners is to exercise more control over counsel. They are entitled to. They should also exercise their discretion. If they feel they need more light on the legal issues, fund it and let others set up the legal objections.

[Kosovo, October 7th, 1998]

Madam Speaker, there exists a strong possibility after hearing the addresses already in the House that there will be a political consensus. It may be an all-party political consensus within the House. I wonder if he could help us over the next stage and comment on the suggestions by the member for Beauharnois—Salaberry.

There is a new concept of humanitarian intervention which is separate, its origins different, from classic intervention. It is still subject to some limitations. The OSCE is like NATO, a regional security organization and cannot exceed charter conditions and limitations.

Would the hon. member believe either through customary international law or through the general assembly that we might find an adequate base for Canadian armed intervention if that would arise and also take us over the aerial bombardment issue?

I believe in the war in the gulf he had some difficulties with the compatibility with some of the operations. Can he help us to this next step? Customary law can gallop at the present time. There has been the phrase used, instant customary law. A number of quick precedents can help make new norms.

Can the hon. member help us here? I think there is a good possibility of a political all-party consensus emerging.

[Kosovo, October 7th, 1998]

Mr. Speaker, I will take advantage of the legal expertise of the hon. member for Beauharnois—Salaberry.

The possibility was mentioned of a NATO-led intervention. The hon. member is well aware that NATO is a regional association governed by the UN charter, that it is limited by charter imposed conditions regarding the use of armed force.

He will certainly recall that, during the Korean War, the well-known resolution 377(V) passed by the General Assembly was used to compensate for the gaps in international public law.

Does the hon. member think that there is a new category of humanitarian intervention distinct from the charter, or are specific security council resolutions necessary before Canadian troops can be sent in?

He is well aware that the resolutions passed for Bosnia apply to a very specific area. What way is there around this legal impasse? Does he have any useful suggestions?

He is also certainly aware that the protocols, additional to the Geneva protocol of 1977, set very tight restrictions on the use of air strikes.

[Kosovo, October 7th, 1998]

Mr. Speaker, might I address the hon. member for Red Deer and ask him whether I am correct in assuming that his party would authorize the use of armed force involving Canadian forces.

If so, would he relate that to existing security council resolutions which are territorialized rather precisely, or would he base it on more general chapter 7, article 51 provisions? In particular, what is his feeling on the use of aerial power? How would he relate that to the protocols additional to the Geneva protocols of 1977?

[Land Mines, September 29th, 1998]

Mr. Speaker, the land mines treaty, opened for signature in Ottawa last December and quickly signed by more than 120 states, has now entered into legal force, the 40th ratification having occurred this month in record time.

It may be argued on doctrinal legal authority that the treaty because of the number of state adherents has now become part of the general principles of international law and binding as such even on non-adhering states.

Apart from this a challenge of Canadian diplomacy may be to persuade the holdout states to declare significant parts at least of the new treaty as fully binding upon them in the conduct of their foreign policy.

[Calgary Declaration, September 28th, 1998]

Mr. Speaker, I am happy to pick up the debate in response to the motion of the hon. member for Calgary West. He is one of the more interesting and promising of the new members of this House.

I hope he will allow me to say I had a feeling of disappointment that he offered a rather turgid complaint about a non-existent issue, access to documents. He should have been uttering a celebration, Beethoven's Ode to Joy that a distinguished western provincial premier had opened the doors to the west to understanding of Quebec's distinct role in the Canadian federal system and the merits of seeking constitutional recognition or accommodation to that fact.

Of course one of the great virtues of the Calgary declaration is that it offered the opportunity for Canadians to understand that we are one country, that we are tolerant people and that people in the west, so far from having fear of Quebec and what it represents, wish accommodation and wish for a plural Canada and a federal system that reflects that. We are all doing our best.

I sat as a member of the commission of the premier of British Columbia to implement the Calgary declaration. We went around the province. I can report that 80% of British Columbia voters saw nothing unusual, in fact everything to commend, in a comprehension that Quebec was indeed a distinct society within Canada and that the constitutional rules could and should recognize that fact. Why not?

There is a coming of age in Canada and the debate, sometimes angry but for the most part I think educational, has helped us on. Constitutional law is a dialectical process. New principles evolve. They are developed to meet new societal facts.

I wrote in 1979 that relatively minor constitutional adjustments on the part of English speaking Canada when the quiet revolution was still in its early phase would have enabled a containment and a utilization of Quebec's best constitutional drives in a new and renewed federal system. I think this is true.

One of the problems of comprehension is related to the constitutional principle of equality before the law. It rests, as the Greek philosophers themselves recognized centuries ago, on a notion that we treat equal things equally when there is a congruence of these societal facts underlying the positive law. Then the positive law must be applied in the same way. Where the societal facts are different they demand a differentiation of treatment and that is in itself a full recognition in the best spirit of the Greek philosophers of the principle of equality before the law.

This has been enunciated by the privy council in some of its better judgments on the Canadian Constitution. It has been reaffirmed by the United States Supreme Court, Justice Douglas in particular, in examining the meaning of the constitutional principle of equality before the law which we have replicated in our own 1982 charter of rights.

The Pepin Robarts commission to which I had the privilege of being chief adviser, along with Leon Dion, Dion Père, John Meisel, developed this rather complex phrase which I think was probably one of the reasons Prime Minister Trudeau buried it, asymmetrical federalism. If we get into phrases that are too technical people run away in fear, but all it was designed to show was where there are distinct societal facts, a good and subtle federal system will take account of those facts and make the changes accordingly.

I hope my friends in the Bloc will understand if I express a regret that the quiet revolution has not given birth to more bright, interesting ideas that transcend the issues of Quebec particularism. It is a privilege to have undergone a quiet revolution. But there is an absence of refreshing new ideas from Quebec, and this has been true for 40 years since the quiet revolution began, on the relations, for example, of executive and legislative power.

On the principles of the judiciary, the nature of the constitutional legitimacy in relation to bodies such as the Senate, bodies such as the supreme court and the constitution of judges, Quebec could have helped us here. It is our hope that it was not a quid pro quo in British Columbia in saying yes, we are not afraid of distinct society, we recognize and accept that. But we would have hoped, for example, that there might have been some movement on Quebec's side to say in return we like the five regions too, we will give you that concept.

There are things we could have done together and should have done together and can still do together. It is for this reason that I welcome the motion of the member for Calgary West and in its full spirit, the celebration of the fact that the west understands Quebec. The west wants to work with Quebec. It is a sign of the times that premiers such as the premier of Alberta, so far from being politically weakened by such a move, can gain a new and augmented national stature.

I think this is the good thing that has come out of the constitutional debate and it is in that spirit that we will all work to renewing the federal system. We can change a constitution by formal amendments. We can change it by practice. There are so many areas, particularly in this area of executive legislative relations, on which many members on this side of the House have strong views. Many of us would like to see the committees take on a new and dynamic role. Why have these expensive royal commissions when parliament can do the job and where historically it has done it?

The message would be come and work with us and we can build a new constitution. Constitutions are living treaties and they are intended to evolve.

[Foreign Affairs, June 12th, 1998]

Mr. Speaker, we are concerned about the level of violence and the plight of refugees in that region. At this moment the foreign minister is meeting with the G-8 foreign ministers and we are agreeing on collective measures. These include security enhancement in neighbouring countries and an immediate increase in humanitarian aid.

At the national level we have frozen all Serbian Yugoslav assets in Canada and we have banned all export of funds to Serbia Yugoslavia but we will act in concert. It is a grave problem for one of the most delicate areas of the world.

[Veterans, June 11th, 1998]

Mr. Speaker, the minister has asked for the full facts on events that occurred 40 years ago. When we get the facts, we will draw the legal consequences.

We have not got access to all the legal documents. The relations with Switzerland involve a country not at war with Japan. We are dealing with a peace treaty. The minister has been in touch with the chair of the veterans organizations and he has undertaken that we will look for a solution. I can assure the House of this.

[Military Missions Beyond Canadian Boundaries, June 10th, 1998]

Mr. Speaker, the hon. member for Red Deer has been a constructive and co-operative member of the foreign affairs committee. We sometimes disagree but not in terms of the general thrust of his positions. As I said yesterday in the committee, his ideas are listened to and we pick the best ideas out of them.

Let me say that there is a fundamental issue of constitutional law. The hero of the persons case was really not the five ladies, although they were magnificent, but the shy law lord, Lord Sankey, who actually decided, and it was a revolutionary decision, that women are persons. He also enunciated the concept of a constitution as a living tree, not a frozen cake of doctrine. One has to remember that with parliament. Parliament is evolving.

It was very surprising for the people who were elected and defeated before 1993 to come back to this parliament and realize how much has changed. In 1994, 1995 and 1996, and the hon. member for Red Deer was there, we changed parliament.

We instituted those debates on foreign policy and they went on to the early hours of the morning. There were 20 to 30 people staying until two or three in the morning to speak on these issues. This is something that was started by this government, continued by two foreign ministers, three defence ministers and it is not reversible. It is a change in parliamentary practice, the accessibility to ideas and the debate.

We have some problems with constitutionalizing in an American sense. The Americans put rigid amendments into the constitution and then spend their best time and best legal brains in evading that. We all know the provisions in the American constitution but we will remember that President Johnson with excellent legal advisers literally turned them around. If one looks at the Gulf of Tonkin resolution, one can see that it is a bypassing of the constitutional provisions.

What we would rather see is the evolution and continuance of the trends already established by this government and which have opened up the issue of peacekeeping to parliamentary opinion. There is a flexibility here that lends itself to problem solving in a very concrete sense. I will cite a perfect example.

When I became parliamentary secretary in the foreign ministry in July last year, there was an immediate issue of the extension, because it was raised by the American president and others in response to an emergency, of the mandate of our forces in Haiti. Parliament was out of session. Could we convoke it?

I took the step in consultation with the foreign minister, who I think was abroad at the time, of calling the porte-paroles of all the opposition parties and telling them what we proposed to do and asking them if they would agree while parliament was not in session. They all replied they would and I thanked them for it. I told them I thought we were making a precedent.

We have established in addition to the consultation of parliament when it is in session, the principle of consultation with the porte-paroles when it is not in session. If one gets a strong expression of opinion that it cannot or should not be done, then it goes back to the minister.

In a very real sense the Prime Minister and the foreign minister are constitutional activists.

I look at the foreign affairs committee and it is astonishing the changes in that very august body, somewhat conservative in its approach in recent years before the new wave, of which the hon. member for Red Deer is as much a part as I am, of new members elected in 1993, the 208 new members.

I look at what we have done and at the report made by the foreign affairs committee, its special subcommittee on international trade, on the MAI, multilateral agreement on investment. That is as good a report as one could get from an American committee which is endowed with the power and with the legal officers, minority and majority. It is an excellent report and synthesis and breaks new ground. In any other major problem of that sort coming within the ambit of the foreign affairs committee, I hope similar studies will be made.

We have instituted travelling committees. One went to Bosnia. The hon. member for Red Deer had been to Bosnia on a previous mission. Another, headed by a minister to conform to the exigencies imposed by the Algerian government, went to Algeria.

A third one has just been to Chiapas, Mexico. Three opposition parties. That was an all-party group. It functioned as a team I am assured by the chair and all those who took part in it. It has reported back. It follows up our direct negotiations or consultations with the Mexican government and we expect it to be a standing concern of ours. There is a Mexican-Canadian parliamentary committee formed now.

That is what I call law in the making in a very dynamic sense. As the hon. member quoted today, we have had visits reciprocally. An Algerian group is in Canada today and we hope there will be another Canadian group in Algeria and one further following.

The committee is in evolution. I would cite also the example of the special regional study group, the foreign minister's proposal, the outer Middle East, the area between the classical Middle East and the Indian subcontinent, the unknown area. The foreign intelligence services do not give enough information. We will study it and I am delighted to have the co-operation and support of the hon. member for Red Deer in that because if it is a go-ahead as a foreign affairs study, we want all parties in it.

There is the change, evolution of parliamentary committees. That is the example of the pragmatic, empirical, step by step, problem oriented approach to constitutional development. It is not the American way, but we think it is more effective. It has that built-in element of flexibility. We do not have to hire a lawyer to get around the constitutional provisions which I think too frequently the Americans do that builds distrust and distaste for the constitution.

I think we have picked up the substance of the hon. member's idea. I will assure him that with his support and others, the role of the foreign affairs committee will keep expanding. I am very proud to have been associated with this committee, vicariously in a sense as the connection between it and the minister. The work is impressive and it represents a revolution in the style of parliament of the sort that was unknown to those whose parliamentary term ended before 1993.

If I may make to the hon. member a valuable suggestion, we would prefer the flexibility that now exists, but I would say the essential spirit of what he wants is there. The defence minister and the foreign minister accept parliament's interest, all parties' interest in the engagement of our foreign troops. There is the very clear understanding that if parliament is in session, parliament will debate to allow, under circumstances, 20, 30 and if necessary 50 members to speak. It may exhaust the occupant of the Speaker's chair from time to time, but I am sure the Speaker would agree that is a small price to pay for the cause of enlightenment.

This is law in the making in the Canadian way. I think the substance of the hon. member's suggestion is incorporated. By the way, there is absolutely no inhibition to the parliamentary foreign affairs committee to study this and other issues of constitutional change. It has already been suggested we examine the issue of treaty-making power. I believe I had a discussion with the distinguished member opposite on the subcommittee on that. May I simply say that that is a somewhat inactive subcommittee. I wonder whose fault that is.

Nevertheless let us face it. We like the idea of consulting parliament. The Minister of Foreign Affairs has made the changes. They are not reversible now and I expect a continuing momentum.