Ted McWhinney

[Greece, May 15th, 1995]

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

Thessaloniki is Greece's second city, capital of Macedonia and the contemporary gateway to the Balkans. It is designated the European heritage city for 1997.

Considering the size of our Greek-Canadian community and the increasing trade links between Greece and Canada, will the minister consider appointing an honorary consul in Thessaloniki with responsibility for representing Canadian interests in northern Greece and the southeast Balkans?

[Supply, May 11th, 1995]

Mr. Speaker, I did not use the phrase off base with the hon. member. I have a great respect for the hon. member. It seemed to me that her question neglected to include the notion that lawmaking is not limited to legislators alone, that in modern society the judiciary, the executive and others partake in it.

Second, judicial lawmaking is particularly attuned to certain types of social problems because of the case by case development.

The decision the hon. member mentioned this morning is subject to appeal. In the normal process a good justice minister would consider that possibility.

[Supply, May 11th, 1995]

Mr. Speaker, I agree that Vancouver Quadra is far removed from the centre of Canada, but I myself am certainly not far removed from this debate.

I acted as a special constitutional adviser to various premiers of Quebec, Ontario and other players in the constitutional game, but I repeat that in those years, the debate concentrated on certain details, while a broader constitutional vision was lacking. Canada probably needed a de Gaulle instead of officials discussing the finer points of a constitutional proposal.

As for what the future holds in store, once the referendum is behind us, and we are very optimistic that everything will be over with before the end of this year, we can then resume constitutional talks without the limitations of pursuing something that was clearly rejected by the Canadian people, including Quebec, in the referendum on the Charlottetown accord in 1993.

[Supply, May 11th, 1995]

Mr. Speaker, it is a pleasure to follow my thoughtful colleague, the member for Guelph-Wellington, and to take part in the debate on the proposition of the member for Kindersley-Lloydminster, with whom I have had the pleasure of serving in committee. He is a thoughtful member and he usually brings forward in committee very helpful and reasoned propositions.

He did not acknowledge the source of his motion. Openness goes back to Mr. Gorbachev and glasnost, which he thought was a precondition of perestroika, the open debate. Behind that was also the larger global concept of novie mishlenie, the new thinking, which says that you can offer hope for constitutional or other propositions for change, but unless you have some unifying philosophical principles, some sort of larger vision of the sort of constitutional society you want to establish, you are not likely to take these things very far. That was one interesting thing in the constitutional revolution on Russia with perestroika, that there was a larger vision.

It is interesting to note that in looking for foreign models they looked extensively at France, Germany, the United States and other countries but did not borrow from Canada. The largest contributions were made through borrowing of German institutions, which then the supreme court based essentially on American constitutions but updated to post-war conditions.

What I think is rather sad in terms of our constitutional development in Canada in the last 30 years has been the

pre-emptiveness of the Quebec presence to the exclusion of debate on larger constitutional ideas. If we look back to the golden period of the quiet revolution, in a certain sense its main ideas were achieved very early, by the 1970s, in the languages laws, Mr. Bourassa's on the provincial side and the federal official language law on the federal side. In essence a large social economic revolution was achieved under the guise of a language reform, with very profound consequences.

Beyond that the constitutional ideas seem to lapse into the pursuit of constitutional particularity. If you do not have a larger pluralistic conception of a constitutional development, those ideas are not likely to go very far. Through successive failures they have not managed to go very far.

One problem therefore is the absence of motor ideas. I find the same problem with the Reform Party approach to constitutional change, even though there are some reputable right wing think tanks in the country and there has been a considerable amount of debate in some of these institutions.

One basic flaw in the Reform approach is the failure to analyse the contradictions in the proposals and to produce some sort of operational synthesis. The notion of establishing the independence of members of Parliament, of loosening the party ranks, and of encouraging free votes goes a certain way. When you link it to the concept of consultation and a notion that the results of the consultation are to be binding on members, you are riding horses running in different directions.

This is not tabula rasa. It occurs in terms of constitutional development in the history of many countries. In that cradle of so many of the contemporary liberal democratic ideas, the French revolution and the post-revolutionary settlement, you do find the antonyms-government by assembly, highlighted by the convention, where everything was debated at great length and where the convention made all the decisions, and the plebiscitarian idea, which is ultimately consummated by Napoleon and others, of submitting it to the people and getting a legitimate nation by direct popular vote and the legislative chambers become mere ratifying organs.

In this debate on questions of openness some of the contradictions have needed to be resolved, and that has not been done. I think that is a pity.

There has been a failure also to realize the complexities of governmental decision making today and the constitutional law making processes. The hon. member for Beaver River, for whom I have a very great respect, asked a question today that was very critical of the judiciary and the judiciary's role in law making. The essence of law making today is the recognition that there are many roads to Rome in terms of making laws, that there are many players, and no one of these has an exclusive role. They are in a very real sense complementary. There are some aspects of social policy making that are ripe for judicial law making, because judicial law making, in essence, is empirically based and problem oriented. It is a step by step process that proceeds in the particular fact context of particular cases, solves a particular problem in that specific context, and then moves on to the next case. After several of those decisions you begin to get what is called jurisprudence constante, an evolution of principles on an empirical basis.

Some other matters clearly are ripe for full popular consultation. I think one of the things that is very clear today is that no substantive constitutional change can be achieved in the future in Canada without submission to the constituent processes, without submission to popular vote. I think this is the irrevocable lesson of Charlottetown. However, it would be a mistake to believe that every aspect of social policy and every fine piece of legislation should go that way. There is a parliamentary role.

I think it would have been helpful in terms of the opposition motion today, of the second opposition party, to have had some recognition of the manifold nature of the law making process. There are some aspects that are ripe for judicial action, some for legislative action in the pure sense, and still others that might be left to popular consultation. Perhaps there should be some offering of criteria for deciding which of these fronts to move on.

In general I felt that the hon. member for Beaver River was on the wrong track today in her particular criticism. That probably was the sort of area where we could have the trial and error judicial process. Every judicial decision is subject to appeal. There is a discretionary issue for attorneys general and justice ministers, and one can expect, with the proper exercise of the executive process and recognizing that it does not conflict with the legislative process, that judge and company operate together, legislature and executive, and that decisions of this sort, if they are regarded as retrograde by some elements of the community, can be appealed. There are interest groups, more developed in the United States, but some of them in Canada, that have taken this a considerable way in terms of the investigation and bringing cases before the courts.

I think this has been a helpful debate. I thought that one of the questions relating to political parties, whether they should be constitutionalized, was a timely question. I hope there will be occasions in the present Parliament to consider that in some detail. I thank the hon. member opposite who raised the question.

[Lobbyists Registration Act, April 25th, 1995]

I am proposing that we adopt the law as it stands. It is a good law. Let us see how it works. We can always try one year later to do something more.

However, do not attempt to make a law that has a precise role and mission into an omnibus bill to cover just about everything else. Stick with the integrity of the law. Rest with the fact that in definitional terms of describing and identifying categories of conduct that must be registered this does represent an advance. The search for the a priori definition, cute as it may seem in the privacy of a member's own office, is not realistic in terms of the dialectical and empirical process that will operate as courts, parliamentarians and parliamentary committees react to this.

Again, I congratulate the committee on an excellent piece of work, the subcommittee in particular. It is a good law. In terms of comparative legislation it is an advance compared with similar legislation in other parts of the world.

[Lobbyists Registration Act, April 25th, 1995]

Mr. Speaker, it is a pleasure to intervene in this debate. It gives me the opportunity, not having been a member of the committee or the subcommittee charged with the matters before the House today, to look back on earlier professional work in another capacity.

Clearly this has been an excellent committee and a really outstanding subcommittee. This is a thoughtful, well-reasoned report. It reflects great credit on members from all parties who did the necessary research which led up to the conclusions. It says a great deal for the capacity of Parliament to evolve as a living institution and about the sort of new responsibilities that committees are being encouraged to take on. My compliments to the committee, to the subcommittee, its chair and its members for the work they have done.

I believe the debate to date has been helpful, constructive and useful. Members of the opposition will pardon me if I make some suggestions on the preliminary definitional question.

The life of the law, as Mr. Justice Oliver Wendell Holmes reminded us, has not been logic, it has been experience. It is an error and perhaps the labours of Sisyphus, an eternal task that never reaches a conclusion, to attempt an a priori definition of lobbying.

I think it is best, as the bill provides, to try to reach an operational definition, a definition in logical extensity, and to say what types of activities are to be subject to disclosure or registration, rather than to attempt an abstract definition in advance. It will be, in the end, up to the courts-the courts in the regular sense, the judicial sense, and the court in the original constitutional sense, the high court of Parliament-to decide what is permissible and impermissible lobbying activity. Again, the effort to define in an abstract way is perhaps better redirected to spelling out in more detail the sort of activities one wants to cover.

When I was first a student of constitutional law, lobbying was viewed as evil per se, a reprehensible, nefarious activity. The attitudes changed, however, with increasing sophistication as to what the legislative processes are about and what parliamentary decisions in contemporary democratic societies amount to. That is to say that one is balancing competing social interests.

To do that job effectively one must identify those competing social interests. One must attempt some sort of quantification of the social value of those interests and that requires a detailed empirical record. One must then attempt to establish some sort of hierarchy of importance of the interests before leading to an intelligent, rational decision. The philosopher would tell you this is William James' conception of pragmatism, the pragmatic conception of truth. In constitutional law terms it is simply Roscoe Pound's sociological jurisprudence, the balancing of interests which is at the core of any rational judicial decision making today but not less of decisions within Parliament itself.

The United States pioneered legislation on lobbying many years ago. Its emphasis is on disclosure: the bringing out into the open of particular interest groups involved in any piece of legislation and trying to assess what the interest groups represent. Are the interests they represent substantial as distinct from merely vocal? Does the vocality or the degree of force with which they are expressed balance their representativeness in social terms and their claim to validity in the economic or other terms in which they are being debated? Therefore the emphasis on disclosure is the key element.

Every member of Parliament who does his or her job is subject to lobbying by various interest groups in the constituency or in the general region. Nothing is wrong with that. It really depends on the degree of control of the office and the degree of energy the member brings to putting the interest groups in proper perspective.

When companies or trade unions wish to meet with me I welcome them. If it is a company I want to read the balance sheet, the annual report. I want to meet with the officers. If it is important enough I want to visit the plant. I want to see potential competitors. All of us do this. We recognize the value involved and the good faith and integrity with which people approach this.

The only thing objectionable is covert lobbying, the covert exercise of pressure. I do not think for most of us this is what is involved.

Reference was made to the Pearson airport issue. I would have thought that was less an example of lobbying than an example of the public contracting process and how not to operate it. Very clearly one thing is that in the lame duck period of any government, as the concept has emerged in the United States, public contracting of a high level of community involvement should be avoided at all costs or exercised with extreme discretion.

I do not think it is an example of lobbying gone wrong. It is rather an example of the need to exercise extra control over public contracting when a government effectively has lost its mandate.

Putting it in proper perspective, the bill recognizes the reality that interest groups will bring forward their particular cause to parliamentarians; two, that they are entitled to do so; and three, provided they bring forward proper information, properly researched, and that members themselves exercise the necessary care of reading those reports, trying to make assessments, seeking further information from other independent sources before making any decision, it is a valid and necessary part of the gathering of information in aid of legislation.

Intelligent legislation demands that interest groups bring forward their claims and their causes. In that sense the committee has met the challenge and brought forward a thoughtful law that takes us a good deal along the way to solution of any problems that in the public domain might have been thought to exist.

As I have said, I have no problem with professional interest groups, with companies, with trade unions, with other groups that come to me. I have more problems with umbrella organizations that claim to represent whole segments of society. These are the hardest ones to catch in the scope of legislation such as this because their operation in the political processes comes not through this reasoned process of bringing information in aid of legislation but more in terms of social context. Maybe there is room for covering this. I do not see how we could do it in the present law without destroying the very careful work, the very precise set of ground rules the legislation has established.

[Electoral Boundaries Readjustment Act, 1995, April 24th, 1995]

Mr. Speaker, I thank the member for Calgary West for the very thoughtful question. He will know that we discussed this matter in committee and on some of these points our views were closer than the report of the committee might indicate.

The United States constitution, in its evolution, is assisted by the fact of equality of representation in the Senate, so that Americans do not have to justify to the extent other countries do disproportionately large electorates for some states and disproportionately small electorates for others.

The United States Supreme Court has said, at least Mr. Justice Douglas has said, that equal things are to be treated equally, according to the doctrine of equality before the law, but unequal things do not have to be treated with the same canon of legal equality. Putting it this way, I can see the case, as a city member, made for country constituencies, that a lesser number of voters should be tolerated. I can see the case for going to 15 per cent. I had some problems with the 25 but I recognize that in committee, a consensus emerges and one accepts it.

We are not yet in the same situation as Japan where the supreme court had to rule on a situation where the electoral districts in Tokyo had five times the number of electors as the districts in the neighbouring country regions. Obviously that is a disproportion that cannot be tolerated.

Where do we draw the line? The committee, with some accommodation from urban members like myself and the hon. member opposite, tried to recognize the special quality of life of country constituencies and that perhaps a lesser number of electors was required. The 25 per cent has to be seen in that light. However, it would be simpler if we had a Senate with equal representation or something of that sort. The reform of the Senate is a subject on which the hon. member and I have many views, but it is, again, not a matter for this discussion.

[Electoral Boundaries Readjustment Act, 1995, April 24th, 1995]

Mr. Speaker, I would like to thank the hon. member for his remarks. I am quite familiar with the history of the Austro-Hungarian empire and its particular constitutional theory. I make reference to it in a number of my books and am very often quoted by learned Quebecers in the debate on the development of the quiet revolution.

Nevertheless, all of the facts must be examined. The Austro-Hungarian empire was not a developed democracy as we know it today. We must also recognize that the dual monarchy was, in a way, intolerant of the rights of other minorities. The claims of the slavic minority were not recognized, which gives us cause to look at the failure of the Austro-Hungarian empire, in view of its defeat in the first World War.

Comparisons may be made between Canada and the Austro-Hungarian empire of the 19th century, and in particular the Ausgleich agreement, as it is known in German, of 1867. However, very very few of them may be made. As to whether the Canadian constitution can accommodate a situation similar to that of the Austro-Hungarian empire of the time, I would like to point out that the federal system is very flexible and capable of accommodating many different constitutional arrangements.

The prerequisite today, however, is that these claims be approved by popular vote. This is the fundamental reason for the failure of the Charlottetown accord. Under these circumstances, should the question arise in the future, yes, our federal system can accommodate any constitutional variation, provided it has been submitted to and approved by a popular vote.

[Electoral Boundaries Readjustment Act, 1995, April 24th, 1995]

Mr. Speaker, the debate concerns Bill C-69, which is comprehensive in its scope but nevertheless has a precisely defined mandate, and that is concerned with electoral boundary redistribution. It is not a place to re-examine or to start again debates that were conducted in other arenas in which I and other hon. members had the privilege of taking part. It is not a reprise of the Charlottetown accord debate or of other debates relating to what was called the statut constitionnel particulier for the province of Quebec or any other special arrangements. There may be a case for these special arrangements, but it is not a matter germane to the discussion today.

What we are concerned with here is a change, a reform, if you wish, a modernization of the process of establishing electoral boundaries in Canada. It is correct to say that we are somewhat undeveloped in constitutional terms in our attitude toward the electoral processes and in the timid way in which we move up to the necessary and inevitable constitutionalizing of the electoral processes. In some other constitutional democracies, some more ancient than our own, others much more recent, the process is fully constitutionalized and there is a role for Parliament that in some senses we seem to be abdicating here. There is no particular problem in Parliament itself establishing electoral boundaries, provided it is governed by a code of constitutional principles, ideally in the constitution itself, and provided there is a full and effective power of judicial review. The progress toward full equality and participatory democracy in the United States has been achieved in just that way.

More recently, in the post-World War II German constitution, the constitutionalization of the electoral processes is achieved in the constitution, in electoral laws and in a substantial series of decisions by the courts.

I do believe that this will come to pass in Canada, that the courts will recognize that the electoral processes go to constituent power, which is a pre-constitutional power but it is the basis on which constitutional government operates: fair, open, and honest elections, open to public scrutiny in all aspects of the processes.

I think the best way is to draft it into the Constitution itself and certainly have an active, vigilant constitutional court that has the sophistication not to be afraid of electoral issues, as for many years our own courts were. They are not difficult to examine. The issue of basic fairness and the probity of the issues have been discussed and examined by supreme courts as diverse as those of Germany, the United States, Japan and India. The process works.

What has been done is that a very strong committee of the House-I call it that in the language that the courts use but it is a strong committee-which happened to have excellent representation from the main opposition party, the second opposition party and government members, made a long examination of this issue and has brought forward a bill.

It does not touch the issue of whether one province should have 25 per cent representation in the House. It would not have been germane to its mandate. In any case, I would have thought that with the evolution of constitutional democracy in Canada such an issue now could only be decided by full participatory democracy with the assent of the Canadian people expressed in a popular referendum vote. The Charlottetown process at least established that principle and I think all parties wish to work with it.

I listened with great sympathy and admiration to the arguments advanced by members of the second opposition party. However, I feel this was not the arena in which to discuss limitations or increases to the size of the House other than those that followed logically and inevitably from the census figures, which is one of the vines that we have in terms of the electoral process as it now stands.

What has been done here is that an attempt has been made to open up the process of the establishment of electoral boundaries by looking to the issue of who makes the decisions. If it is constituent power it goes to the power of Parliament itself and it is probably a power more awesome than that of the judges. Yet to date, it has been exercised by commissioners who were appointed on the discretion of the government of the day and answerable to nobody other than their own conscience in so far as the courts have not, as I have mentioned, exercised a review control in Canada.

What has been done in this bill is a compliment to the collegial atmosphere in the committee on this particular point. A system has been set up where while the executive retains the power of appointment-at least Parliament does-there is a process of public advertising and consultation. There is the obligation to consult with the leaders of all the parties. Does it go far enough? We shall see. However, it is certainly an advance on the present system.

I say that having served as an electoral commissioner myself. I was asked by the then Speaker of the House, Madam Sauvé, if I would serve as the electoral boundary commissioner because she wanted to get it out of politics. It is not a job that gets any particular awards but it is something to do in the spirit of public service. This is fine but it is still a system without controls. That is why the present proposals are an advance.

If we look again at the reports of recent boundaries commissions, the justifications are at best skeletal, a few lines. They do not really explain the why or how and on what basis and what criteria the decisions were arrived at.

In this particular bill which the committee has brought forward, the boundaries commissions are now required by law to provide three alternative maps for every constituency in which they report. They are required to provide a justification for their choice of opting for one rather than the other two.

Again I think it is a significant advance. It may be that one could have gone further, but in the nature of the committee as it was operating and the desire to build a consensus, the chairman of the committee felt this was the way to go. I think it is a good choice. Therefore, I am optimistic about the progress that will be made when this bill is adopted. We do need an open process. We also need as much public participation as possible and a high degree of scrutiny.

I think there is still a role for the courts. I would like to see this in the same way the justice ministry has financed litigation involving the Official Languages Act. Maybe test cases could be taken up when issues of electoral boundaries come up that raise constitutional principles: Is the principle of equality of representation adequately recognized in what the commissions have done? There are constitutional principles that can control this. Courts in Japan, India and other countries have little difficulty in applying them and the road would be open here.

This bill is an example of a committee interpreting its mandate in a full respect for criteria of relevance. It has not tried to go beyond the mandate as defined. It recognizes that other

problems, cognate as they may be, are to be handled in other bills. Therefore, I think it is a significant advance.

It does not, I repeat, replay Charlottetown. The Charlottetown accord was quite decisively voted on by the people of Canada and is now in the dustbin of history. Parts of it were interesting and valid and may be worth bringing back but that is a matter for debate elsewhere and on another occasion, not here.

While I appreciate the eloquence of the hon. member for Mercier and the contributions he made to the debate, I do not think it really bears too much on the mandate of the committee.

I appreciated the remarks of the hon. member for Calgary West. On many of the matters he has raised a great deal of research has been done by him and by others. There are points that I might share with him but again, I do not feel that for this particular bill this is the occasion to get into these matters.

I take pride as a member of the committee concerned. It worked very well. It is an attempt to replace a system that was somewhat arbitrary in the sense that the commissioners were selected by a process in which there was no real review. They were not required to provide criteria for their decisions. In essence we had situations where decisions could be, as was said of Lord Eldon's chancellorship "an inequity as long as the chancellor's foot". That is not good constitutionalism.

This is a good step forward. It is on that basis I commend it to the House.

[Law Of The Sea, March 30th, 1995]

Mr. Speaker, to those who confuse the European Union, for the most part non-elected officials and bureaucrats, with Europe, the British House of Lords has now spoken out.

The Lords have rebuked the British government for supporting a country, Spain, that has been shown to be a fish pirate nation which has depredated stocks everywhere in the world, including the North Sea.

The Lords have praised Canada for an appropriate action to enforce the principles of the Law of the Sea laid down years ago. They have asked Canada to lend them our minister of fisheries so that they would have somebody in Brussels who would stand up for British fishermen.

To the European Union fisheries commissioner who seems rather light in the knowledge of fisheries and of contemporary international law, the Lords invoke the words of Queen Elizabeth I:

I have the heart and stomach of a King-and pour foul scorn (on you)-or (all the princes of the Commission who) dare to invade the borders of my realm.

Thank you to the British House of Lords for having a sense of humour and for reminding us that the International Law of the Sea no longer licenses predatory overfishing and spoliation of the earth's dwindling fish stocks.