Ted McWhinney

[Supply, June 7th, 1994]

A nation is a group of people, there is no doubt about that. However the term "nation" is not a word-

[Supply, June 7th, 1994]

According to the international law, the right to self-determination is limited to peoples, not to nations. Consequently, as regards peoples, international law does not require any answer for a separation.

[Supply, June 7th, 1994]

Regarding the last question on sovereignty-

[Supply, June 7th, 1994]

Madam Speaker, I thank the hon. member for his question on the referendum question. My comments only applied to the question worded in 1980. There was then a calculated ambiguity which, in my opinion, would not be acceptable today.

On the issue of political party financing, I am in favour of a comprehensive reform of the system.

As regards self-determination, there are many opportunities to exercise that right. Such a right can be exercised within a federal system, as the Yukon natives chose to do.

[Supply, June 7th, 1994]

Madam Speaker, after the fire and brimstone of recent minutes, which reminded me of a Wagnerian opera performed by a travelling company in a provincial town, I would like to return to the subject of the debate, which is the motion moved by the leader of the Reform Party and the amendment moved by the leader of the government in the House. That concerns the issue of constitution making in our times and this issue of federalism.

I will come back to a point raised by the Reform Party which is a criticism of the government for a failure to define what the leader of the Reform Party has said, a constitutional program for the Quebec referendum.

There is a time when it is ripe for constitution making in any society but in the majority of times, it is just not simply right. The only successful ventures in constitution making occur in a period of national euphoria, a national consensus usually following on a great military victory or a great revolution. We have not had those in Canada and therefore changes have had to be made on a basis of pragmatic incremental adjustment on a step by step basis. It has worked rather well.

A problem that is basic to the Reform Party leader's program is that there are, as President Franklin Roosevelt used to say: "Too many ifs there": if a certain party should win a certain election in a province, if it should then go on to a referendum, if it should then win a referendum, if it should then decide the majority is enough to ask for negotiations and if, finally, the other party should itself decide the numbers are sufficient to give credibility to the vote and to warrant negotiations in return.

It is a counsel of folly to suggest defining constitutional conditions for an iffy situation of this sort. A Constitution is as Mr. Justice Owen Roberts of the United States Supreme Court once said: "A constitution is not a railway excursion ticket good for one particular journey at one particular time and one particular place". The ideas you put forward have to have a long range currency.

One has the feeling that constitution making is being put forward as it was in the Mulroney era as a substitute for serious substantive thinking on economic matters. We want no more of the travelling circuses of Meech and Charlottetown. They were a failure and not the answer to the problems of the time.

If I may venture the critique of the Reform Party constitutional agenda, it is that there is an absence of a coherent overall vision. It seems to be a collection of ad hoc responses to a particular problem in which the deemed political advantage seems to be very high.

I noted and agreed with some of the criticisms made by the Reform Party on Bill C-18 but I deplore the total absence of substantive ideas on electoral reform which go to the core of the constituent process and are more important than the constitutional processes themselves.

I also wonder if the emphasis on the constitutionally acute proposals; referendum, initiative and recall do not disguise the absence of more fundamental thinking and depth on more fundamental issues such as the relationship between executive and legislative power and the need for a strong countervailing power, whether legislative or judicial, to the imperial executive that one is tended to have in Westminster derived constitutional systems today.

Finally on native Indian self-government I find enormous ambiguity that needs resolution and perhaps disguises political divisions within a party.

Let us return to the issue. What is the approach of the Liberal government on the Quebec issue? At this stage we can say there are some limiting parameters and these need to be said. The federal government has a totality of constitutional power to

control and determine the holding of a referendum by a provincial government on a subject such as leaving the federal system.

For political reasons which were no doubt right and proper in 1980 the decision was made not to exercise those. The controlling parameters today would certainly include the ability to scrutinize a question and make sure that it is clear and unambiguous and not like the deliberately cloudy formula put forward in October 1980.

Second, there is a necessary control of the timing and I think it is clear that this will be the last referendum allowed. We cannot have the country on roller skates going from one referendum to another year after year; once more, no more after.

Third, there are to be no special deals, constitutional deals made in preparation for referendum for any one province within the country. Canada is not a supermarket offering a special one day deal for one occasion at any time.

To come back to the approach of the Liberal government, is there a Chrétien doctrine? The leader of the Reform Party has suggested that there is not. I think the difference and the subtlety of the approach are well rooted in common law constitutionalism and common law constitution making. The Chrétien doctrine is closer today to the pluralistic federalism of the Pearson era, sometimes called co-operative federalism, than it is to the neo-Keynesian imperatives of the Mulroney government and to some extent perhaps the Trudeau government at certain periods.

The approach is not the Sermon on the Mount, a set of abstract a priori rules conceived in an ivory tower in the political vacuum away from concrete problems. It is essentially a pragmatic, empirical, problem oriented, step by step approach. I think this is the only one proper and possible effectively in an era of fundamental change such as we have in Canada and in the world community as a whole.

Among the considerations, to examine that sovereignty is a 19th century concept is simply out of date in a era when supernational legal engagements like the free trade agreement, like NAFTA and NATO are entered into and, as we saw in our debate on cruise missiles, are regarded as binding even if governments may think in particular cases that they were wrong, as I think our government felt in relation to the Mulroney decision on cruise missiles. We accepted it as part of our supernational obligations.

There is the passing of sovereignty even in a period of which you notice the contradictions, the survival of the contradictions, and the revival of ethnic particularism in a pathological sense as we have had in Bosnia-Hercegovina and other areas of the world.

What we really need is an operational philosophy of federalism rigorously empirical and problem oriented. Among the areas in which I think action has already been taken I will commend the emergence of this operational pragmatism in the approach to the infrastructure program which is designed to produce the economic recovery. It involves continuing and close co-operation with the provinces and with municipalities in which abstract a priori structures of government that divide power between federal and provincial governments are sensibly modified by the parties. It also involves the removal of interprovincial trade barriers and that rests on negotiation and discussion.

In my own constituency my assistants are now arguing before the electoral boundaries commissions, presenting a case. It involves a commitment to plural ethnic constituencies and not the mono-ethnic constituencies of yesteryear which are very close to 19th century approaches to multiculturalism or multinational societies.

In the area of native Indians I commend the House to Bill C-33 and Bill C-34 whose debate was rudely stopped a week ago just as it was beginning.

There you do have a species of consensual pragmatism between the main parties, the native Indian leaders in the Yukon and the government in which a highly pragmatic, step by step approach to self-government within Canadian federalism and subject to the bill of rights has been worked out. I think this is a model of intelligent constitution making for the 21st century. We have arrived at it well before the 21st century.

The reform of Parliament is something to which the Prime Minister is personally committed. I think he realizes, because his approach is closer to the gentler pragmatism of Prime Minister Pearson, that Parliament has a function, that it is a necessary countervailing power to the executive. The changes that can be made here are wholly within federal power.

At the end of the day you do have a continuing, coherent constitutional process yielding precise, empirically based principles. They are problem oriented and therefore likely to stand the test of challenge of changing events.

The problem with the Sermon on the Mount is that it is an illusion created for people who want simple panaceas, divorce from concrete problem situations.

There, as I see it, is the Chrétien doctrine. It is a constitutional philosophy. As was said in Molière's Le bougeois gentilhomme , you can speak prose all your life, even though you do not recognize it. The essence of operational pragmatism is at the heart of the received common law constitutionalism we have had in Canada and which has been enriched by civil law components as well.

[Electoral Boundaries Readjustment Suspension Act, 1994, June 3rd, 1994]

Madam Speaker, our dilemma here relates to the federal system and the gelling of regionalism in terms of particular provinces. The reality is if the size of the House is kept at 295 and the population jumps by a million, let us say predominantly in British Columbia and Ontario, then either you deny the fast-growing provinces the benefits of their increased population or you take them away from Manitoba, Saskatchewan and probably Quebec.

Having sat as a commissioner but also being a member, I wonder if that is fair to the people in those provinces. I wonder if it is politically realizable, first of all. Would we ever get a measure of that sort through the House or through a constitutional amendment if it is needed, but I also wonder if it is fair. I do express grave reserves. It has been pointed out to me as a commissioner about changing boundaries arbitrarily. We have to recognize that members do build up a relationship of trust with the constituency; it is one of the worthwhile things in a democratic society.

I would say we can live with an increase in the size of the House for the next period of time. The countries that have gelled their membership, like Great Britain, have a huge House first of all, but also have a relatively static internal organization. There are no provinces and no regional subdivisions which have to be respected under the constitutional order, so there is much more flexibility.

I would hate to have to say to colleagues in Saskatchewan that they must give up two seats, or that Manitoba must give up four seats so British Columbia can have more. My resolution of the dilemma is simply to allow the increase to go for at least the next decade and let us see what happens. It is only going to be two, four, six, for the next 10 years. Otherwise I do foresee anguished political choices which involve my voting to deprive people in other provinces of seats and I do not want to do that.

[Electoral Boundaries Readjustment Suspension Act, 1994, June 3rd, 1994]

Madam Speaker, I speak of course only as a private member, I cannot engage the government. My own recommendation is conveyed in a series of writings over a period of time. I spoke most recently to the Institute for the Administration of Justice which is a sort of trade union of the Supreme Court judges of Canada.

My own suggestion would be that while the government might nominate the process should be approved by a parliamentary committee. It could be the committee on House management, but it should go to a committee. In that sort of situation there

should be an opportunity for examination of the nominees as to their qualifications. I would anticipate the sort of situation there is in other countries, a form of multi-party support for the eventual commissioners who would be nominated.

Once you get it into a system where Parliament itself speaks on the qualifications and makes a decision you would inevitably get a system where the government alone is not imposing its will, but you would get a consensus choice. It would narrow down to the people with recognized competence, but you should probably be aiming for a permanent standing electoral commission.

You can look at the errors the 1993 commission made. They are very similar to the ones I would have made 10 years ago as a commissioner if I had not had a wise person on the commission who had already served two or three times and was able to say that something was a foolish proposal or that something should be changed.

I envision a standing commission, but I also envisage ratification of the appointments by a parliamentary committee or some other parliamentary process.

[Electoral Boundaries Readjustment Suspension Act, 1994, June 3rd, 1994]

Madam Speaker, I welcome this opportunity to note to all members that the making of law in Parliament is a dialectical act, that there are many players, and what we have seen has been a constructive interaction as it should happen between the House and the Senate and in fact the public at large.

If we were looking at the players involved we would have to take note of the resolutions of the Liberal Party, federal and British Columbia branch, the resolutions passed there and adopted unanimously by the annual meeting of the Liberal Party, conversations between members of the House and senators and a process that results in a measure coming back from the Senate and being acted upon by the House. I will have more to say on the substance of that in a moment.

Let me address one of the problems that has worried me in connection with this whole process under way and that concerns some issues of the constitutionality of the very act upon which the electoral commissions have been operating, the Representation Act of 1985.

When that first appeared it seemed to me that in artificially capping the representation for British Columbia and other fast-growing provinces it raised basic issues of constitutionality that should be tested. Since the end result was to eliminate the seat of a New Democratic Party member from Vancouver, the mayor of Vancouver launched a legal action challenging the constitutionality of this measure.

I would have preferred to see the challenge based on the simple issue of the artificial capping. Instead, it raised the more fundamental question whether a measure changing the proportional representation of provinces in the House could be adopted by legislation of the federal Parliament alone and not by the more complicated and difficult procedures envisaged under the Constitution for that.

I would add that several of the Conservative senators, and there are contradictions here, who are now arguing very strongly, and I welcome their support, for extra seats for British Columbia participated as cabinet members in the decisions which in effect limit B.C. now to two seats instead of the five that it would otherwise have been entitled to in accordance with the 1991 census. But that is in the past and we look forward to the future.

I should say though that when the mayor of Vancouver launched his action the federal government did not support it. Nor did the government of British Columbia. I think this is worth comment because its chief legal officer at the time has suggested that perhaps Bill C-18 has a Quebec angle in it, designed artificially to preserve Quebec seats in the House. I think this is a rather far-fetched idea but if it were so then in relation to the Representation Act of 1985 why did the Attorney General of British Columbia not intervene in that litigation before the Supreme Court?

I simply commend to members the litigation, in particular the opinion of Justice Lambert which seems to me even more persuasive today than it was then.

Let us come on to this particular issue with the Senate itself. I welcome the discussions that we have had with individual senators. I welcome the response made by the Senate to what I think and hope will be an acceptance of the proposal made now by the House.

I see a similar contradiction in the position of the Reform Party opposite. I think if you capped the size of the House of Commons, the point about the Representation Act of 1985, then automatically either you gel permanently the size of the representation from fast-growing provinces like British Columbia and Ontario or you reduce those. You diminish the representation of provinces in which the Reform Party has of course members. Saskatchewan and Manitoba are the very obvious examples.

There are contradictions there. It is very important to remember this before taking absolutist positions on how many seats we should have. I think it is worthy of note that British Columbia delegates to the Liberal Party and British Columbia members have contented themselves with asking for two seats more and not the five that on census returns we would be entitled to.

Let me come back to the issue of what this is all about, Bill C-18, its substantive measures. It would have been a pity if discussion of this had been buried in discussion of other issues on size of provincial representation in the House.

We missed an opportunity in the 1980s to update our constitution in the areas of the electoral processes. The electoral processes are more important even than constitutional processes. They are pre-constitutional, they go to the root of constituent power. It is basic that they should be in the Constitution.

I think if the events had been different with the Trudeau government patriation project of 1980 to 1982, provisions on electoral representation would have been included in some detail. As it is, our constitution in comparison to virtually every other liberal democratic constitution of today is naked as to provisions as to electoral representation.

You look at the United States, France, Germany, Japan or India and you find detailed provisions in the constitution or else, and sometimes in supplement, detailed decisions of the Supreme Court, jurisprudence constante in the civil law sense. This makes for a body of opinions, a body of rules that guide in the case of the United States the state legislatures which are charged with the duty in effect of becoming electoral boundary commissions and the similar bodies in other countries.

We do not have this. I think the preoccupation in the 1980s and the early 1990s with the single issue in the Constitution prevented us from making changes that would bring us into the 21st century. This is very basic.

I think in terms of electoral commissions that the process of the appointment of commissioners is casual and ad hoc and not really very acceptable. I say this having served as an electoral boundary commissioner in a pre-political capacity. The Speaker of the House, Madam Sauvé, asked me if I would serve. She said she was anxious to get a non-partisan figure of recognized public integrity. It was an honour to serve. But I think the process in which simply the Speaker appoints is not good enough today. This is as serious a function as that performed by Supreme Court judges and other senior crown officials. Perhaps it should go to Parliament for some sort of confirmation which would inevitably insist upon multipartisan representation or participation in the choice of the commissioners.

One of the things that is very noticeable with the recent group of commissioners is the absence of continuity. When I sat we had a great advantage. A member of our commission, Olive Woodley from Vernon, had served on several different commissions. Therefore when I from my specialized professional viewpoint would advance a proposition she would counter by saying "this is how we did it in the past and this is why". Of course, I yielded to those arguments when they made sense.

It is a fact that none of the members of the 11 commissions, 33 in all, has had any previous experience. They are neophytes. References have been made to the judges as chairmen but the judges traditionally have been neutral and have not interfered. So the work is thrown upon the lay commissioners. Is this a good thing?

In the past the chief electoral commissioner was consulted by the Speakers in making appointments. This time the chief electoral commissioner was not. We have this in evidence to the committee on House Procedures, given on the evening that Bill C-18 was adopted by the House.

The chief electoral commissioner also throughout the regime of Mr. Castonguay constituted himself a member of each electoral commission. Mr. Kingsley interpreting his mandate narrowly and I think correctly abstained from doing this. So there are commissions in a sense sent out on to uncharted seas.

One of the problems also as I have said is that there is nothing in the Constitution on this. Mr. Trudeau would have liked to have got around to it but the facts were he was diverted by the gang of eight and other situations and this was left out. If you look at the electoral law passed conformably to the Constitution on this you will find that while it establishes some antinomies, things that may be considered, it gives no guidance as to how they are to be applied. I think this is wrong and that it is for Parliament to establish the norms guiding and governing electoral boundary commissioners.

Let us take one example, the principle of continuity. In that special relationship that Edmund Burke discussed between the member and constituents, the continuity is very, very important. It does not really make sense with 208 new members in the House to have this wholesale revision of boundaries even in a province like Newfoundland that I understand increased only 738 people between the 1981 and 1991 census. Why revise all five constituencies? Is it a make-work project?

I do not imply that the commissioners did not act with due care and consideration. When I acted as a commissioner we accepted that being a member of Parliament is a difficult role and that one should respect the relationship between member and constituent and that continuity was a factor to take into account.

I think this time the commissions have gone too far the other way. In an absence of instruction they are entitled to do that. I think it is time for Parliament to lay down rules.

Let me take some other examples of variations that a more experienced commission in terms of continuity would have established.

I was intrigued that my colleagues from the Kootenays made the point that the commission had taken a two-dimensional topographical approach to the constituency boundaries in the B.C. interior. A three-dimensional approach is needed because there are mountain ranges in the middle. What they have done in that area is to reinsert what was the rule until 1960 but was changed then because somebody had pointed out the mountain range in the middle of the constituency and that to get around it

involved a laborious 48-hour journey. Therefore there are areas where knowledge becomes very important.

More important, I would raise the issue of the absence of guiding constitutional principles here.

In the detailed jurisprudence of the United States Supreme Court, Mr. Justice Brennan elaborated on the principle of what he called benign discrimination in the formation of electoral boundaries. Mr. Justice White in the same case raised the issue of properly taking into account racial factors in making decisions.

What they were concerned with was whether-and again I use another term of art-you can indulge an electoral commission in positive gerrymandering artificially to create an electorate by geographical distortion to produce a majority for one minority group that otherwise would not be represented. Why it came to the Supreme Court of the United States was that another minority said: "You helped this one but not us".

I raise the issue of whether electoral boundary commissions in Canada should be operating on the basis of creating artificially single ethnic majority constituencies or not.

I simply cite the example in British Columbia of the five city seats held by the Liberal Party. It was not planned that way, but it does happen that the five members each represent different ethnic communities. There is representation from the Caribbean, from Italy, from the Punjab, from China via Hong Kong, and from what used to be called one of the two founding nations. There are five different people, but each running in a constituency that is multiethnic.

My own constituency has 22 different ethnic communities. To gain a nomination for an election you have to seek an interethnic consensus. That is closer to the Canada of the 21st century, but it seems to me in B.C. the commission is pushing us the other way, back to the 19th century configuration.

Again, there are perfectly legitimate reasons for doing that. The United States Supreme Court sanctioned just such a rule in the United States. But this is too serious and challenging a constitutional issue to be left to commissioners appointed ad hoc for one particular journey at one particular time. It should be decided by Parliament.

Those principles should be in the Constitution, whether it is an amendment to the charter, or the jurisprudence of the Supreme Court, or both, as it is in the United States and the other countries I have cited. In other words, the committee on House procedures has an obligation to establish some sort of motor principles, directive principles, that could be carried out by electoral boundary commissions in the future and indeed in the present case.

There is another big gap in our constitutionalism on electoral processes. There is no mention of political parties, although 25 years ago the German Supreme Court decided they are the key to the parliamentary processes and must be included and subject to the law.

What I am saying is we missed an opportunity in the 1980s to bring our Constitution up to date on what is basic to any free and democratic society: a system of fair, responsible electoral representation. We have to do it now. The time limit imposed by the Senate originally, in effect six months, was not enough. Two years would have been reasonable, but I think it can be done in one year.

I therefore welcome the amendment proposed by the government House leader to the bill as returned by the Senate. I welcome the indications being given that this may be agreeable to the Senate. I welcome the support of the Bloc and I do welcome the support, if somewhat tardy, of the Reform Party on this.

There is a heavy responsibility for the committee on House procedures. It can be done. It will give us a truly modern Constitution that responds to the need which is basic to a free and democratic society: a fair, open electoral system implemented by people responsible to Parliament and subject therefore to all-party control as to their operations. If possible, put the controlling principles into the Constitution, into the Charter of Rights and Freedoms so that every citizen of Canada can read them, study them and apply them.

[Witness Protection Act, May 26th, 1994]

Mr. Speaker, my question is for the Parliamentary Secretary to the Minister of Fisheries and Oceans.

On April 26, 1994 I asked the minister of fisheries a question regarding the failure to reach a successful conclusion during recent Pacific salmon treaty negotiations. This failure could result in serious consequences for the Canadian fishery industry.

Canadian fishing conservation measures have been undertaken for many years now. Unfortunately our American neighbours have not been as diligent in their past efforts to maintain a viable fishery stock. Presently they are being forced to close salmon runs due to the destruction of habitat and to place moratoria on fishing in the Strait of Juan de Fuca due to past fisheries mismanagement and the squandering of too many fish.

It is my understanding that negotiations have gone off track due to the intransigence of Alaskan negotiators and their refusal to co-operate in Canada's definition of fair and equitable goals. Surely the Americans must understand that if we have shared fish stocks and they have destroyed or drastically reduced the viability of the Oregon and Washington fish stocks in the Strait of Juan de Fuca, we as Canadians will want to work out a solution to this problem that will not penalize Canada for maintaining sound conservation measures in contrast to the lack of any of the same practices south of the border.

We already have a situation whereby last year we in effect subsidized the American fishery by the sum of approximately $65 million. This represents Canadian fish being caught by American fishermen. We are now being asked to close or seriously curtail our fishery in order to correct the poor management of the Canada-U.S. shared fisheries resource. This would mean a drastic reduction to our catch, tying up Canadian boats and putting Canadian fishermen out of work.

This situation I suggest is unacceptable for my province of British Columbia and for Canada as a whole. I ask the Parliamentary Secretary to the Minister of Fisheries and Oceans what further action we may take to get the negotiations back on track. If this is not possible, what further action may the Government of Canada take in its dealings in the Pacific salmon fisheries in order to prevent a full scale fish war?

[Cystic Fibrosis Month, May 26th, 1994]

Mr. Speaker, May is Cystic Fibrosis Month. This reminds us of the tremendous challenges experienced by those who have cystic fibrosis. It is an inherited disorder that affects primarily the respiratory system of small children, and it causes devastating and ultimately fatal damage to the lungs.

Since 1960 the volunteers of the Canadian Cystic Fibrosis Foundation have been working to improve the lives of those affected by cystic fibrosis and to find a cure. Through research and better forms of treatment, the life expectancy of those who suffer from the disease has increased from under four years to more than 30 years.

I urge all members of the House to support the work of the Canadian Cystic Fibrosis Foundation and the researchers who are dedicated to finding the cause of, and a cure for, this disease.