Ted McWhinney

[Supply, May 28th, 1996]

Mr. Speaker, I must respond to the hon. member by pointing out that we owe the Senate the same respect we demand it show the House of Commons. That is the principle of reciprocity, parliamentary courtesy between the two Houses. The Senate, as it is at present, is an institution of our Parliament.

[Supply, May 28th, 1996]

Mr. Speaker, while the Senate exists one must respect its autonomy. The principle of parliamentary comity requires that. The issue of fundamental change in the Senate is another issue that should be addressed in its own proper context.

[Supply, May 28th, 1996]

Mr. Speaker, I think the hon. member is avoiding the response that I did give which was the key one. However, it seems the answer to this rifle shot question, as he calls it, was already given by my hon. colleague, the Secretary of State for Multiculturalism.

Granted that the anachronism of a non-elected Senate exists and that the existing law of Parliament gives autonomy to each House for its proper expenditures, it seems it is properly an issue for the Senate, much as one may regret it.

[Supply, May 28th, 1996]

Mr. Speaker, the hon. member is addressing issues of substantive constitutional change on which he has spoken most learnedly and thoughtfully under the rubric of a vote on estimates. While this is customary in American constitutional law and with the United States Congress, there are more direct arenas available.

For example, it has been indicated by the opposition party that the issue of institutional change and Senate reform will be introduced by it on its merits next week. I suggest a more direct route would be better for approaching the substantive constitutional changes he desires. I do not think we need the device which the Americans for want of a similar opportunity of a direct debate have done; that is to say, tacking substantive constitutional change issues on to a motion on estimates or the budget.

[Supply, May 28th, 1996]

Mr. Speaker, I compliment members opposite for the thoughtful contributions they have made in their several ways to the debate on this subject.

It is axiomatic today that the Constitutional legitimacy of a legislative chamber comes from election and only from election, although there may be argument whether the election in the case of the upper House should be by indirect or direct process.

Nevertheless, legitimacy comes from election. There is therefore a standing anachronism in a body that exercises legislative powers under the Constitution virtually equal to those of the House of Commons but which no longer can claim constitutional legitimacy.

Granted the evolution of thinking on democratic constitutionalism since the mid-19th century, our problem always is that since the reforms of 1982, we are in a much more rigid constitutional system than we were before. For all intents and purposes, it is impossible to change the Constitution.

We have seen this in the recent experiments in the late-1980s with Meech and Charlottetown irrespective of the substantive merits or the contestable merits, depending on one's point of view, of those proposals. The thing emerging is how difficult it is to change the Constitution.

I was impressed with the address by the hon. member for Bellechasse and the research he had done very thoughtfully on the origins of the modern House of Lords dating back to Mr. Asquith's Parliament Act, 1911, which replaced the complete veto of the House of Lords by a suspensive of veto of two years, knocked down in 1949 to virtually nothing.

One of the interesting things is the House of Lords has a high quality of debate that comes from the fact that its powers have been whittled away. It has accepted that. Members devote time when they debate to issues of substance that the lower House is too busy to be occupied with.

The problem I see in our country is that although we pride ourselves on receiving our institutions from Great Britain, we tend to apply them much more mechanically and with less sense of humour than the British themselves. One can become more British than the British. One of the interesting things we have not picked up from the Parliament in Westminster is the concepts of self-restraint of an unelected house which were at the core of the thrust of Prime Minister Asquith in 1911 and which really explain the Parliament Act of 1911 and the subsequent amendment of 1949.

There is a principle of conventional law of Parliament concerning an unelected upper House, granted there may be nothing it can do itself even if it wants to end its non-elected status. There is the principle of constitutional self-restraint in relation to measures currently voted by the lower House and passed on.

I regret the interminable delays we have seen in this Parliament the Senate apply to measures adopted by the lower House but I also agree with the hon. member for Bellechasse that it is a violation of the constitutional conventions that this has been so.

What I regret is that perhaps there has not been more attention in this House to exercising the machinery already in place for resolving conflicts between the two Houses and a conflict that comes from a really colourable studying of measures passed by the lower House on the pretence or the assertion that more time is needed to reflection.

This amounts in my view to a rejection effectively of measures passed by the lower House. I regret therefore that one did not pursue the machinery already available under our constitutional system to explore jointly between the Speaker of the Commons and the President of the Senate the issue of whether the privileges of the House of Commons as understood in a contemporary sense were being fully respected.

I say that with some regret and I put forward the suggestion that in the future this House should be more vigilant in assuring a prompt follow-up by the Senate to measures passed by the lower House where they have been fully debated. That is to say, either reject and take the political consequences of that as an unelected upper House or pass or send back to the House with suggestions for change that the House reserves primary powers to consider and in its own good judgment as an elected body to reject those measures.

I note the comments, again a very thoughtful case, by the member for Kootenay East. This generation of Canadians has a rendezvous with the Constitution Act. Eventually and perhaps not too far away we will have to do something about fundamental reform of institutions.

The five region conception of Canada, which is very dear to electors in my home province, was recognized by the Prime Minister in December by the grant of the regional veto to British Columbia and in measure the regional veto to the three prairie provinces. It is an important step forward.

The principle of an elected upper House is again, I think, very clear. It is also intimately related to other changes in institutional structures, the nature of the court, the nature of judicial legislation and the nature of the supreme court which now de facto and not necessarily with its own will is becoming a constitutional court very much like the European courts and the United States Supreme Court in the sort of responsibilities it has been asked to exercise.

We have before us in the House at this very time measures that in Europe would be decided by a constitutional court that are ending up with the House of Commons and Parliament. It may well be that the best approach to institutional change is to consider all the institutions together in the light of this larger optic, the evolution of democratic constitutionalism of which the respect of a non-elected upper House or an elected lower House is one of the core principles.

[Supply, May 28th, 1996]

Mr. Speaker, I must commend the hon. member for his in-depth study of our Senate's origins and the influence of the Mother of Parliaments, Great Britain, and especially its 1911 legislation, the Parliament Act.

I would like to ask the following question: Since our Senate has already caused endless delays in dealing with several bills passed

by this House, does the hon. member consider this a violation of customary constitutional law inherited from Great Britain? Is this an established fact, yes or no?

[Canadian Human Rights Act, May 8th, 1996]

Mr. Speaker, I thank the hon. member for his question. I should add in preface that the minister went to the west coast and had met with numbers of representatives of all segments of the fisheries industry before his departure and has been meeting since. He had several meetings today.

The parliamentary secretary for the past month has met with all three fisher groups, seiners, gill netters, trollers in Vancouver, members of the processing plant, the coastal communities and the union. The parliamentary secretary addressed the union at large

meeting and met with the executive and addressed the coastal communities. There has been an extensive contact with what are called the stakeholders in this very important national asset.

The government recognizes, and this is part of this extensive dialogue occurring and the reason for it, the Pacific salmon revitalization strategy is all about conserving the precious salmon resources and ensuring the sustainability and viability of the commercial salmon fishery in British Columbia.

The fishing capacity of the commercial fleet far exceeds what is required to harvest the available resource and this situation is putting the conservation of the stocks at risk. No one, including critics of the strategy, disputes the fleet is too large and needs to be reduced.

The revitalization plan is based on recommendations from a Pacific policy round table of some 70 salmon stakeholder representatives as well as the recommendations of the Fraser River Sockeye Public Review Board which identified various problems undermining salmon conservation efforts.

Overcapitalization of the commercial harvesting sector was one of the key problems identified by the review board. The round table strongly recommended the fleet be reduced and the action be taken before the 1996 fishing season.

The revitalization plan includes a federal government funded $80 million licence retirement program and licensing policy changes that are expected to contribute toward a 50 per cent reduction in the fleet over time.

The licence retirement program will expire at the end of June. It is a short term initiative to kick start the fleet reduction, but it is only a start. It is expected to remove no more than 20 per cent of the existing 4,400 licences. Other licensing measures are expected to remove a further 20 per cent to 25 per cent of the fleet over time.

Concerns have been expressed about the impact of the fleet reduction on coastal communities. It must be said that the future of those coastal communities that are highly dependent on the salmon fishery is not secure unless the salmon stocks are robust and the harvesting industry is viable, which has clearly not been the case in recent years. The revitalization strategy is necessary to give those communities a solid basis for future viability and prosperity.

In meetings last week in Vancouver and again this week in Ottawa with representatives of various stakeholder groups, the minister indicated that he was prepared to consider what he has phrased as fine tuning adjustments to the strategy, although the core elements of the strategy plan will remain intact. An announcement by the minister is expected shortly.

[Child Labour, May 7th, 1996]

Mr. Speaker, I am happy to respond to the hon. member for Davenport who has distinguished himself in national and international environmental protection action.

As part of the contribution of the Department of Fisheries and Oceans to the federal government's program to manage the deficit, the department's budget will be reduced by approximately 40 per cent over five years. To meet its budget reduction target, the department has reviewed all its programs using the following four strategies: reduction, elimination, privatization and cost recovery.

This program review has required some difficult decisions to be made regarding all departmental activities, including science programs. For example, the department will be divesting its responsibilities for over 800 recreational harbours. Research programs in parasitology and freshwater aquaculture will be eliminated and the department's major oceanographic research vessel MV Hudson will be decommissioned as part of its program review reductions.

There is no question that the department's Freshwater Institute in Winnipeg and the Great Lakes Laboratory for Fisheries and Aquatic Sciences in Burlington have made valuable contributions to the field of freshwater ecology. It has been impossible to insulate the budgets of these two centres in light of the substantial budget cuts facing the department.

Despite the reductions to its science programs across the country, the department is committed to maintaining a freshwater science program at both the Freshwater Institute and the Great Lakes Laboratory for Fisheries and Aquatic Sciences. Research priorities for the freshwater science program at the Freshwater Institute include focus on the experimental lakes area, ELA, fish health diagnostics and maintenance of expertise to support the department's fish habitat management responsibilities as well as expertise on growth and reproduction of fish.

In addition to the department's core funding for the ELA, the department is continuing to seek partnerships that will provide long term funding stability for the ELA program.

In the Great Lakes, the department will focus on habitat restoration in areas of concern in the lower lakes, research on accidentally introduced species and the measurement of toxic contaminants in fish.

Government-wide, it is important to note that there are a number of agencies, particularly Environment Canada, that have freshwater research programs. Environment Canada operates such major facilities as the National Water Research Institute and the National Hydrology Research Institute.

The budget for Environment Canada's programs in freshwater is much larger than that of the Department of Fisheries and Oceans. The reduction in the department cannot be downplayed, but the government is and will continue to be an active and major force in issues affecting the freshwater environment.

[Canadian Human Rights Act, May 7th, 1996]

Mr. Speaker, there will be a free vote on Bill C-33. It is my understanding that government practice requires members of the government, ministers, secretaries of state and even parliamentary secretaries, to support a government measure. That is almost axiomatic. However I would want members to know that in voting on this measure I am voting on the merits as I see them.

I have had the advantage of consulting with my constituency association over the last 18 months. We knew a bill might be introduced with a social policy forum. Only a week or 10 days ago I spoke with members of my constituency association who were delegates to the annual convention of the party a month ago. My

vote has been influenced very heavily by the opinions which have been expressed to me. However I believe I can contribute to the debate by addressing some unnecessary confusion in the discussion.

First, there is a false dichotomy between constitutional positions and ethical opinions. Every constitution is an expression of an ethical position, a value choice. It is sometimes forgotten that Jefferson and Madison who inspired so much of contemporary constitutionalism had a commitment to what we today call open society values, and that is a value choice. I believe we should have mutual respect for the positions on both sides of this debate so far as they have been articulated to date.

Part of the problem in our Canadian approach to the issue comes from one of the significant choices made in 1980-82 when we were patriating the Constitution. Many of us advised the government of the day and Mr. Trudeau that they should take as a model for a charter of rights either the American bill of rights, which by legend Madison wrote one Sunday morning, or the great French declaration of the rights of man and the citizen of 1789 and 1791, which is still in the constitution of the fifth republic and the most widely copied of all charters of rights throughout the world. The essence of those charters is that they reduce to a single page the basic principles of a free society.

There is a principle of equality, equality before the law, equal protection of the laws, but it is cast in broad terms without limitations. Perhaps it is regrettable that our charter is very long and the equality principle proceeds to list in extenso examples of equality or categories to which it is applied. It has the effect of cutting down the generality, the sweep and the opening to creative innovation. It may be one of the reasons our courts, including the Supreme Court, have been spasmodic and non-sequential in the development of principles under it.

I understand, therefore, the feeling of people not on a list that they are excluded. It is the old Latin maxim: expression unius est exclusio alterius. If a person is expressed they are in; if they are not expressed they are out. In some ways it distorts the dialectical notion of constitutional development that broad principles are capable of changing in their application according to new societal facts.

I have an interesting letter from the president of the bar association, Gordon Proudfoot, which rejects the step by step, pragmatic, problem oriented development which was the key to human rights development in the United States and in many European countries which were subsequently influenced by it, with the Supreme Court playing a creative role in lock-step with the justice ministry that puts up the test cases. What has occurred there is pragmatic incremental change, not wild experiments in judicial legislation as some might have feared. This would have been a better development for us in Canada, but it is water under the bridge.

We have a lengthy charter that is really a lawyer's charter, not a people's charter. It is hard for lay people to understand. The Canadian Human Rights Act replicates the charter of rights in that sense.

I also had a thoughtful letter from Archbishop Exner of Vancouver. It was quoted by the hon. member opposite. It is thoughtful and helpful. One problem here I think relates to the way the amendment to the human rights act was drafted. The human rights has a wide range, covering some agencies which might be considered private for the purpose of the charter of rights. Beyond that it covers bodies subject to federal regulation such as airlines.

Contrary to general impression, the human rights act is not a general code of human conduct. The amendment makes very clear what is inherent in the Canadian Human Rights Act, unlike the charter, is it is really limited to removing discrimination in employment and the provision of goods and services. That is in the act. It may be enough to make that purpose explicit and make it clear as a matter of legal interpretation.

I would have suggested to the Minister of Justice that rather than put it in the preamble it be put in the substantive part of the act, perhaps section 1. It would make clear as a matter of law that the act applies to prevent discrimination in employment and the provision of goods and services. That as its scope would remove a good deal of the unnecessary fears or questions raised by people of integrity and good faith that somehow this is a licence for a fishing expedition into many other areas of social policy.

It may be that the community will decide in its wisdom that it wishes to move into other areas, but if the purpose of the law is as I have said, and I think that is very clear, it would be better in the language and drafting if it said so.

I do not believe the fears that have been expressed that this may be too widely and too loosely interpreted by unelected judges. I do not think they are warranted on the language as it stands. I simply suggest that to make certainty doubly clear, and there is a Latin maxim for that but I will not quote it, the justice minister might consider at the committee stage of the bill making the change I have suggested.

The open society values implicit in the charter of rights are implicit in this measure too that the Canadian people as whole accept the notion that discrimination in employment based on all the factors mentioned in the amended bill is unacceptable in social terms. That is a good and worthy motive. It is on that basis that I have given my support to the bill.

[Fisheries, May 3rd, 1996]

Mr. Speaker, we are not in a game of playing with words. If we were, we would look at the words more closely.

The minister and the government are engaged in preserving an industry that was on the point of disaster in 1996. We are making emergency planning for 1996. The committee of which the hon. member is a member is hearing from key experts in the field this coming week. We are looking to long range planning as well.

The plan is not a failure. The plan is being considered in the light of the thoughtful recommendations made by everybody, the three categories of fishers, the union, the food processors, the wildlife people and the habitat people. It will be a comprehensive approach to solution of something in the best interests of the west coast.