Ted McWhinney

[The Late Mr. Justice William Trainor, June 19th, 1995]

Mr. Speaker, Mr. Justice William Trainor of the Supreme Court of British Columbia, who died last Friday, was one of Canada's most distinguished jurists, senior adviser to several federal justice ministers and author of our law governing the legality of wiretaps.

As judge he had extensive and varied experience in the Yukon Territory and on the courts martial appeal court before going to the Supreme Court. He had a deep knowledge of legal history but recognized in his judicial opinions the need to up date old legal doctrines to meet new societal conditions and needs.

Our sympathy goes out to his wife of 50 years standing, Betty, and to his family.

[Chemical Weapons Convention Implementation Act, June 19th, 1995]

Mr. Speaker, it is a pleasure to rise in support of my colleague, the distinguished member for Notre-Dame-de-Grâce, in support of this bill.

It is a subject that has occupied the world community, as a general subject, since The Hague conventions of 1899 and 1907. In fact one of the most significant acts of international law making was the act referred to by my colleague, the member for Notre-Dame-de-Grâce, the Geneva protocol of 1925. The protocol prohibited the use in war of asphyxiating, poisonous or other gases and of bacteriological methods of warfare.

The Geneva protocol reflected the spirit of its time. You dealt in general prohibitions. You established the legal norms. There was not the same attention that, by bitter experience, we have given in recent years to the machinery for concrete implementation of general principles. This is one of the significant features of Bill C-87. It is not merely the prohibition of chemical weapons, it is prohibition of the development, production and stockpiling as well as use and it includes measures for destruction.

It follows on the experiences that we derived most recently from the INF treaty of 1987, the Reagan-Gorbachev treaty on the destruction of intermediate and shorter range nuclear weapons, that general principles without supporting implementing machinery and sanctions are like tinkling cymbals. They are noble but they do not bring us down to concrete reality. I welcome this measure.

I also welcome it as another step in the process of development on a pragmatic, empirical, problem oriented, step by step basis of general universal disarmament. The Sermon on the Mount in the large, general treaties is too often ignored. It is the poetry of international law. It is not the material substance of it.

If you follow through the period when the cold war was giving way to detente and eventually ended, it was by this step by step progression: the banning of nuclear tests above the ground and in the atmosphere in the Moscow test ban treaty on through the non-proliferation treaty, on through various treaties on banning of placement of weapons on the seabed, eventually culminating in the INF treaty of 1987. It is a process and this particular treaty is a very distinctive and very happy part of that whole process. Congratulations to all the officers who have been involved.

My colleague, the hon. member for Notre-Dame-de-Grâce referred to the issue of ratification. This is one of the problems with international treaties. There is an attrition rate. Perhaps 100 countries sign a treaty but then when the officials go back home perhaps half of those only will proceed to ratify or ratify in a timely fashion. If the treaty is non-self-implementing, even fewer countries will introduce legislation to adopt it. We have signed, we have ratified and we are implementing. Thus attrition is avoided.

In terms of the treaty becoming general international law, some would argue as to what sanctions, what controls should there be. If I may, I will cite the general opinion of doctrinal authorities, of legal text writers. It is part of general international law as it now stands that the use of chemical weapons is against international law. This is the view expressed, as based on the evolution of customary international law through a number of international acts.

I have referred to The Hague conventions. I have referred also to the Geneva protocol. The view was advanced by the late President of the World Court, President Nagendra Singh and myself in a joint work on general disarmament we published in 1989 that the use of chemical weapons in warfare is against international law. In the gap between the signing of the treaty and ratification in good faith and implementation by individual countries like Canada, and the treaty finally becoming general law because of the necessary minimum number of state ratifications, that principle of international law applies.

Canada, in communicating its ratification of the treaty and implementation for other countries, might draw attention to the fact that it is not necessary to wait for the ratification by the minimum number of states joined by the treaty to have recognized the principle of the use of chemical weapons in warfare being banned.

The treaty itself goes well beyond that. It follows in the spirit of the INF treaty. It is part of this step by step progression toward a system of general international law and humanizing warfare-the oxymoron that is there-temperamenta belli is what it is called, reducing the agonies of war if it has to be conducted but moving toward a general system of interdiction of armaments.

The issue has been raised with this treaty, as with other treaties, of whether it is missing some of the major problems. One of the most serious problems today is the resumption of nuclear weapons tests. It may interest the House to know that in the same volume in which we suggested chemical warfare is already outlawed under international law, the same learned authors expressed the opinion that nuclear weapons tests, as such, are against international law today.

[Peacekeeping Act, June 19th, 1995]

Mr. Speaker, I am resuming remarks interrupted by other House business on another day and we now return to the motion of the hon. member for Fraser Valley East.

To recapitulate what I said earlier on this bill, one respects the intention and the purpose behind it. In the interim I have had the privilege of sitting as a substitute member on the all party committee on national defence. The experience reinforces the comment I made earlier. This is one of the very strong committees of the House. I was very impressed with the degree of knowledge of the members and the degree of co-operation across both sides of the table from all parties. In other words, there is a great deal of awareness in the committee of the gravity of the problem and the search for proper remedies.

That brings me back to the main point that the failure in Bosnia is a failure in foreign policy and not in the military sphere of the operation. The failure goes back to a basic criticism many contemporary historians have made that this is one of the low periods in foreign policy in the world community.

If we look at the confidence, the reaction to the events of the emerging cold war in the late forties and fifties, the very creative period in American foreign policy, in European foreign policy with Adenauer, Schuman and De Gasperi creating the European community, we are now in one of those periods in which foreign ministers simply seem unable to cope with the problems.

Returning to Bosnia, the failure was in lacking a vision of what to do with Yugoslavia once it broke up, as inevitably it was to break up. Everyone predicted this when Tito should die and Tito's regime should pass into history. We find there are alternative plans. Greater Serbia has been spoken of but there is a greater Bulgaria concept, a greater Greece concept, conflicting ambitions of Balkan powers restrained by the facts of life of the cold war and bipolarity but broke out with the breakdown of the cold war system of world public order and the new pluralism which dangerously at times comes close to anarchy.

In this area Canada has played a constructive and useful role. We were not in at the beginning on the decisions on Yugoslavia and post-communist Yugoslavia. We were not part of the contact group. To be frank, I see no point in our trying to join the contact group now. We would in effect be trying to correct errors made by European foreign ministers who should have known better.

We have to search for solutions using other arenas like CSCE, NATO, forum available to make our point. In terms of military operations, the Canadian forces have behaved with intelligence, good judgment and restraint. We have recognized that United Nations peacekeeping as devised by Prime Minister Pearson absolutely prohibits a political role. What is now talked about in contemporary international relations activities as crossing the Mogadishu line is something Canadian military men above all have always observed with proper self-restraint. We have to face the reality that our peacekeeping forces have not been developed with a view to imposing political solutions by military means. There is nothing in the training of our staff colleges that lends itself to this.

I have had the privilege of lecturing to our national defence college and the military college at various stages in my pre-parliamentary life. They are very well trained but they cannot cover the whole world. If we are to send them to Somalia to impose a political solution or to former Yugoslavia to impose a political solution the training is not there. We have behaved properly and correctly.

Counting this we have had three debates in the House on the future of peacekeeping. What emerges on the future of peacekeeping is a large interparty consensus which crosses the House that we wish to maintain the classical conception of peacekeeping. That is something we developed and which we do very well. If it is a matter of moving into peacemaking, imposing political

solutions, we have to recognize the limits of our special competence.

In countries that have connections with the former British empire, the Commonwealth and la francophonie there are special ties of culture and experience that give us perhaps the ability to make political judgments if that is what is called for. Elsewhere, it is entering unchartered seas. Therefore, the clear conclusion emerging from our debates is that we maintain peacekeeping as our function for the United Nations, that we do not get into peacemaking and that we do not cross the Mogadishu line.

In relation to the bill presented by the hon. member for Fraser Valley East, I respect the intention here but I wonder about the attempt to legislate what sensibly can be left to executive administrative judgment. In article 5(2) the Canadian forces shall not participate in any action designed to force the governor of state to leave office or to install a government other than by facilitating a democratic process in accordance with the laws of the state or a resolution of the United Nations general assembly or the United Nations security council.

We are bound by international law. Because it is one of the currently contested points before the International Court and elsewhere, it is arguable whether a United Nations general assembly or security council resolution can go beyond international law. Where it does go beyond that it is arguable it is unconstitutional in United Nations terms.

I wonder why one should try to legislate this. We are bound by common sense. The one thing emerging from the debates in the House and which any foreign minister would take note of is that Canadians do not want us to get into political ventures in the Balkans or areas where we have no special historical ties and no background of historical experience to aid our judgment. In other words, we have done very well with General MacKenzie and the people we have had there. The all party consensus is there and the defence committee reflects this. There is no need to legislate this. Good sense prevails.

This bill is taking us into an American style constitutional solution but it is unnecessary in our context. Even in the case of the United States, all the legislation in the world and the American constitution have not prevented the president of the United States making those errors of political judgment and getting involved in political military ventures overseas that go beyond the letter and, some would argue, the spirit of the constitution.

These debates on peacekeeping have been an educational experience. In many respects there have been inspiring contributions by members. The consensus is very clear that no foreign minister will take us on a creeping course into foreign military involvement. All reports of the summit meeting suggested we have exercised prudent self-restraint. Within the limits of our powers we have spoken to other foreign ministers, presidents and heads of states and have said as far as we are concerned we are peacekeepers, we cannot ourselves get involved in political-military ventures.

That is the spirit of the House. I do not think it is necessary to legislate it. However, I commend the member for Fraser Valley East for giving us yet another occasion to reaffirm a striking consensus.

[Peacekeeping Act, June 13th, 1995]

Mr. Speaker, the hon. member for Fraser Valley East has brought forward legislation in the area of what under our constitutional system is left to good judgment and good sense. It takes us a step toward the American constitution, constitutionalizing these areas of discretionary judgment. Yet of course the experience with the American constitution is that when it comes to issues like the Vietnam War it does not prevent the United States sliding into that, in spite of the constitutional provisions.

Reference has been made to eastern European experience. I was interested myself in the Russian constitution and the careful separation of powers now provided and the control by parliament over the military. Of course in Russia the newly written constitution has not stopped it from being embroiled in the conflict in the Caucasus.

It is a mistake to imagine that legislation can cover these issues of prerogative power. In those constitutions that have done it, alternative glosses are simply developed.

I thought we had a valuable debate here in the last few months. I do remember the undertaking given on the government side to consult with Parliament. When I went to the committee on defence this afternoon I had the privilege of sitting in and speaking there. I was reminded of our extraordinary good sense and that we have profited by experience. The failure in Somalia was a failure of judgment by the previous government. It did not study the geography; it did not study the military logistical base for support, and it paid the error of that misjudgment.

These are matters about which I think we can say that we in Canada are better informed today. I think several successive debates in this House have brought an understanding on both sides that it is something to go into seriously, that we understand the limits of peacekeeping, that we will not creep into peacemaking type political actions under the guise that it is classical peacekeeping as Canada has conceived and that where we send our people in we will make sure their mission is adjusted to the realities of the military logistical support we can provide.

What I am saying is I basically believe the system as it now exists will involve a proper and full consultation with Parliament from now on. We are anxious for advice. We are all committed to no more Somalias but to continuing in the Pearson tradition where we can be useful. Somebody cited Cyprus. We can be proud of Cyprus. We have kept the peace there and that is the model we will all be following in the future.

I commend the member opposite for his initiative. However, I do believe it is covered under the powers of the constitutional customs which we have developed and which have been very much evident in the past few months by the experience of the debate and the lessons we have learned in Bosnia.

[Chemical Weapons Convention, June 9th, 1995]

Mr. Speaker, the chemical weapons convention opened for ratification in January 1993 and will become law when ratified by a minimum of 65 states. According to authoritative doctrine, it codifies the general principles of the international law of war already recognized in customary international law from at least the time of the Geneva protocol of 1925.

The treaty itself symbolically caps an historical process of lawmaking already in place on interdiction of chemical weapons, which applies legally whether or not and until the treaty itself should become law in its own right.

[Budget Implementation Act, 1995, June 6th, 1995]

Madam Speaker, it is a pleasure to respond to the learned hon. member. He has, in spite of his dour mien, a delightful sense of humour for those who know him very well.

I do recollect this debate conducted at a distance of 3,000 miles with bad telephone connections. I feel his telephone connection was not as perfect as mine on this. When he presented his shadow budget I did suggest to him that perhaps he had not paid enough attention to structural problems of government, that he had to spell it out.

By the way, I should never be as egotistical as to suggest in a public debate or elsewhere that I was an expert in this or in anything else. The hon. member will remember Lord Justice Denning's reply to somebody who quoted to him somebody and said "This is an expert". Lord Justice Denning replied "Is he dead?" The answer was "No, milord, he is among the living". Lord Justice Denning said "Well he is not an expert. The only expert accepted by the common law is somebody who has been dead for 20 years." This status will undoubtedly occur to the hon. member at a certain period in his career.

What I did try to suggest was that he needed more work on examining the unstructured approach to co-operative arrangements between the federal government and the provinces he was presenting. I think the hon. member will recognize that there are gaps in his armour. I know he is an expert on the South Seas, on skiing, and on very many things, and I respect his knowledge of economics. However, on this thing I did suggest that the Reform Party program was rather light.

To return again to his basic question, I think it is a matter of changes in attitude. The attitude of federal-provincial relations is different from what it was 20 or 30 years ago. One sees the arrangements in the province of Quebec, a province where the government is committed to a program of separation from Canada. But if we look at the structure of administrative arrangements developing between the two governments, there is a good deal of solid empiricism in that. I would predict that the Premier of Alberta will also recognize the advantages of co-operation.

We have no objection in this government to privatization. In fact if one examines the budget there is great emphasis on privatization. Getting rid of the CNR is something the hon. member himself has proposed in the past. If one in looks at it, we are very much into privatization too. However, in the examination of national standards, we will use friendly persuasion to ensure co-operative-

[Budget Implementation Act, 1995, June 6th, 1995]

Madam Speaker, I thank the hon. member for that very graceful reprieve, if I may call it that. It gives me an opportunity to continue the dialogue. I think I can pick up from the middle of the sentence if I can recall the beginning of the sentence. Here it is, in any case.

We have tried to emphasize a policy of fairness to all regions, which brings me into the area of federal-provincial powers. One of the great dilemmas in establishing the new system of transfers to provinces is you are recognizing that these are areas, constitutionally, of provincial responsibility. They are in essence moving back. One is in effect cutting through the gloss of custom that has been established over the last 20 or 30 years. In fact the general feeling in Canadian political circles is that if the federal government had not acted the provinces would not have either and this was the reason for the federal initiative. If the power returns effectively to the provinces, it will be done through the system of the block transfer, the new Canadian social transfer.

Some statistics are relevant and important. The average cut to the provinces in terms of transfers will be 4.4 per cent, which is less than the 7.3 per cent the federal government is imposing on its own programs, and there is a period of two years' notice built into that, which becomes very important in areas such as education, where planning far ahead is very important to individuals entering the structure, not merely to administrations.

One issue raised here is the ability to maintain national standards. Can it be done solely on a matter of reliance on the good faith of individual governments? Will there not be somebody out of step? I think this is a matter on which we are still waiting for the work the minister of intergovernmental affairs is doing, but let me say that I think there is no doubt that constitutionally in certain areas we still have the power to impose and enforce the national standards. Enforcement, as such, is an ineffective system of social control. "Friendly persuasion" and "example" are the bywords. I think in this particular area we will find a large and increasing degree of federal-provincial co-operation because of what are, after all, the common goals.

I was examining on the weekend, in the constituency of one of my colleagues, in Richmond, the area of intergovernmental co-operation, not merely federal-provincial but federal, provincial, and municipal. The process of co-operation can work. It is not our belief, in any case, in contrast to prognostication of gloom and doom, that in making the block transfers to the provinces the national standards will disappear and we will get an anarchic system of different standards such as Voltare described with the situation of the French civil laws. As he said when he left Paris, every time he changed his horse he would be under a different system. I do not think we are dealing with that.

Our message on this is that the status quo of the federal-provincial arrangements, the practice that had grown up over the last 30 years, was bound to come to an end as provinces accepted their own obligations of maintaining common standards throughout the country and not falling behind. Here the finances are related directly to the power and there is the two-year building in period in which federal and provincial governments can work out and eliminate any contradictions.

There in essence is the budget. It is best to finish on the general philosophical note that it does reflect the promise the Prime Minister made during the election and it would not be a negative, give it up approach to eliminating the deficit. We would expand the economy and would generate new revenue by creating new jobs. The budget cannot be divorced from our work in manpower. It cannot be divorced from other activity in other departments directed toward this goal, and it does rest on a large degree of faith in the ability to manage federal-provincial relations in a renewed spirit of co-operative federalism.

I think this is one of the keynotes of the present government, that it is reviving attitudes of co-operative federalism that for various reasons and for various attitudes of political parties have been dormant for some years.

On this basis, I am happy to commend Bill C-76 to the House for adoption.

[Budget Implementation Act, 1995, June 6th, 1995]

Madam Speaker, it is a pleasure to speak in the twilight moments of the debate on Bill C-76. If I may say, the House is in a mood of detente and relaxation which it is not always in. I have appreciated the comments made on both sides of the House in the last hour or so.

Bill C-76 represents a translation of the undertakings made by the government when it was elected and basically its program that it would conquer the deficit, reduce the national debt by a dynamic program of creating new jobs, generating new revenues. This is essentially the thrust of the budget.

Members will notice the attention to prudent economies, the cutting of government operations, new approaches to federalism and federal-provincial relations. At the same time there is a redefinition because it inevitably follows in the federal-provincial balance.

I think this was the basic promise made by the Prime Minister and it is reflected in the budget, that in approaching the economic crisis our emphasis would be on job creation.

We have also undertaken to maintain the integrity of the social services structure, in particular medicare; to maintain the Canada pension plan, the social security structure that distinguishes Canada from the United States and other countries committed to the free market economy; and interesting and new approaches to unemployment insurance. We are getting away from the static approach intended to present a situation of continuing dependency by a new emphasis on job training and a new emphasis on training people for a better future and giving them some confidence in their ability to achieve that.

Last, in the area of federalism the approach to federal-provincial transfers in some senses redresses a balance in federalism that had occurred by glosses on the system established by the federal government entering what we could say in retrospect, were areas of provincial constitutional responsibility. There the argument was and it was a necessary one, that if the federal government had not moved in these areas the provinces would not have moved either and there would have been a vacuum in terms of important areas of social policy.

I will have something more to say on each of these particular issues at a later moment.

I do note that Bill C-76 will implement a savings of $29 billion over the next three years: $5 billion in 1995-96; $10.6 billion in 1996-97; and $13.3 billion in 1998. We think this is a responsible, realistic way to go. It sets out a program. A budget not less than any other type of law is itself a system of law in the making. It is a dynamic system and we build upon the achievements of one year in the next year. We have set up those goals on the basis of a three year period.

I think this is a very important part of the government economic structure. We have honoured the undertaking of no increases in personal income tax rates. We are closing the tax loopholes and we look for continuing guidance from Parliament and members on that. We are trying to improve tax fairness. That is an objective. At the same time the incentive to get the economy moving again will be to avoid increases in personal income tax rates. I mention in social services the maintenance of the integrity of the pension system because this has been a very important part of retirement planning for senior citizens and

others approaching that condition. That is maintained and it is very important in terms of-

[Peacekeeping, June 6th, 1995]

Mr. Speaker, the diplomatic discussions between the governments of Ireland and Great Britain are apparently moving to a successful conclusion. There are new structures and processes to ensure full religious tolerance and co-operation within a new, plural Irish constitutional system.

In congratulating the political leaders involved, the Canadian government might help with our acquired historical experience in international peacekeeping in any transitional governmental arrangements.

[Vancouver Public Library, May 30th, 1995]

Mr. Speaker, on behalf of the Senate and the House of Commons Joint Standing Committee on the Library of Parliament, I congratulate Mayor Philip Owen of Vancouver and Kyle R. Mitchell, chair of the Vancouver Public Library Board, for the eight years of planning and community effort which have

culminated in architect Moshie Safdie's imaginative, post-modern Vancouver Public Library.

It is a true symbol of the intellectual vivacity and creativity of Vancouver today.