Manitoba Committee Hansard — 7 July 1980 (Legislative Affairs Committee, Sitting 6, 31st Legislature, 4th Session)

31-4-la6

Manitoba — Debates (Hansard)

ISSN 0542-5492 Fourth Session - Thirty-First Legislature of the Legislative Assembly of Manitoba STANDING COMMITTEE ON LAW AMENDMENTS 29 Elizabeth 11 Published under the authority of The Honourable Harry E. Graham Speaker MONDAY, 7 JULY, 1980,8:00 p.m. Printed by The Office of The Queen's Printer, Province of Manitoba

MANITOBA LEGIS LATIVE ASSEMBL V Thirty - First Legislature Members, Co nstituencies and Political Affiliation Name ADAM, A. R. (Pete) ANDERSON, Bob BANMAN, Hon. Robert (Bob) BARROW, Tom BLAKE, David BOSTROM, Harvey BOYCE, J. R. (Bud) BROWN, Arnold CHERNIACK, Q.C., Saul CORRIN, Brian COSENS, Hon. Keith A. COWAN, Jay CRAIK, Hon. Donald W. DESJARDINS, Laurent L. DOERN, Russell DOMINO, Len DOWNEY, Hon. Jim DRIEDGER, Albert EINARSON, Henry J. ENNS, Hon. Harry J. EVANS, Leonard S. FERGUSON, James R. FILMON, Gary FOX, Peter GALBRAITH, Jim GOURLAY, Hon. Doug GRAHAM, Hon. Harry E.

GREEN, Q.C., Sidney HANUSCHAK, Ben HYDE, Lloyd G. JENKINS, William JOHNSTON, Hon. J. Frank JORGENSON, Hon. Warner H. KOVNATS, Abe LYON, Hon. Sterling R. MacMASTER, Hon. Ken MALINOWSKI, Donald McBRYDE, Ronald McGILL, Hon. Edward McGREGOR, Morris McKENZIE, J. Wally MERCIER, Q.C., Hon. Gerald W. J. MILLER, Saul A. MINAKER, Hon. George ORCHARD, Hon. Donald PARASIUK, Wilson PAWLEY, Q.C., Howard PRICE, Hon. Norma RANSOM, Hon. Brian SCHROEDER, Vie SHERMAN, Hon. L. R. (Bud) STEEN, Warren URUSKI, Billie USKIW, Samuel WALDING, D. James WESTBURY, June WILSON, Robert G. Constituency Ste.

Rose Springfield La Verendrye Flin Flon Minnedosa Rupertsland Winnipeg Centre Rhineland St. Johns Wellington Gimli Churchill Riel St. Boniface Elmwood St. Matthews Arthur Emerson Rock Lake Lakeside Brandon East Gladstone River Heights Kildonan Dauphin Swan River Birtle-Russell lnkster Burrows Portage la Prairie Logan Sturgeon Creek Morris Radisson Charleswood Thompson Point Douglas The Pas Brandon West Vir den Roblin Os borne Seven Oaks St. James Pembina Transcona Selkirk Assiniboia Souris-Killarney Rossmere Fort Garry Crescentwood St. George Lac du Bonnet St.

Vital Fort Rouge Wolseley Party NDP PC PC NDP PC NDP NDP PC NDP NDP PC NDP PC NDP NDP PC PC PC PC PC NDP PC PC NDP PC PC PC lnd NDP PC NDP PC PC PC PC PC NDP NDP PC PC PC PC NDP PC PC NDP NDP PC PC NDP PC PC NDP NDP NDP Lib PC

THE LEGISLATIVE ASSEMBLY OF MANITOBA THE STANDING COMMI TTEE ON LAW AMENDMENTS Monday, 7 July, 1980 Ti me 8:00 p. m. CHAIRMAN Mr. J. Wally McKen zie (Ro blin). MR. CHAIRMAN: The committee will come to order. We have a quorum. I have before me Bills 12, 37, 38, 39, 51, 59, 85, and 94. I have Mr. Walsh wishing to speak to Bill No. 59, and Mr. Arnold and his group have asked if they could have their presentation deferred to a later date on Bill No. 85; they're not prepared to speak tonight.

Have I an agreement from the committee that they be prepared to come at the next meeting of Law Amendments and make their presentation. Agreed? Mr. Arnold, that's okay. Mr. Uskiw. MR. SAMUEL USKIW (Lac du Bonnet ): Mr. Chairman, you may want to see whether there is anyone else who wishes to make presentations . . . MR. CHAIRMAN: I have Mr. Walsh who indicated MR. USKIW: Or anybody else. MR. CHAIRMAN: Are there any other citizens here that wish to make presentations on any of these bills tonight? Then I'll call Mr. Walsh to deal with Bill No. 59. BILL NO. 59

AN ACT TO AMEND THE FATALITY INQU IRIES ACT MR. WALSH: Mr. Chairman, I'm here today on behalf of the Manitoba Association of Rights and Liberties, an organization that I understand should be setting up its own office in your building in order to keep pace with the representations it's making on various pieces of legislation. Be that as it may, the Civil Liberties group in Manitoba has grave concern about the changes that are being proposed to The Fatalities Enquiries Act. This Act has been debated pretty. thoroughly in the Legislature and many of the points that I am going to make today have been made before.

But what I would like to do, and I don't propose to be lengthy in my remarks, is to address certain comments as to the rationale, the reasons for the Act being in existence in the first place and the values that have to be considered when looking at amendme nts and then try and relate the amendments to those basic statements of principle.

Now it's my submission that the reason for the Act is because, in Canada, and in Manitoba, we have a view of life and a belief in the sanctity of life, and consequently, the state is justifiably concerned when any of its citizens meets death in a sudden or in a way that isn't natural, as it were. Secondly, to the sanctity of life, we want to have confidence in the state institutions that exist that have to do with people when they meet an untimely or inappr opriate death. And finally, we want law enforcement accountability when a person dies in the 75 hands of a law enforcement agency.

And possibly, and though I don't state this is a principle absolutely, we are concerned with produc t safety. And consequently, we are very much concerned when for any reason due to a malfunctioning product, someone meets an untimely death. So those are all the rationales for a Fatalities Enquiries Act. The other basic values that are to be considered when drafting

an Act, if we were to start from the beginning, is to make sure that interested parties are heard, so that when there is a hearing into a fatality, we are concerned that anybody who might be involved or affected by the outcome of the inqui ry, has an opportunity to play a role, call witnesses, cross-examine witnesses, in the course of the hearing. Also we're concerned that any party who has rights outside of the Act, such as the right to be silent if they're possibly an accused person, that those rights have to be protected as well.

So to sum up the platform that I'm putting before is that we have this notion of the sanctity of human life and the need to assure citizens when people meet an untimely death, particularly if the state is in any way involved, and we also want to be concerned that anybody who is involved as a result of the death has an opportunity to present his or her position and to cross-examine and call witnesses. Now, if you start from that point and you follow the logic, you say when should there be an inquest?

And the answer to that question, I suggest to you, is that there should be an inquest whenever the public may have cause to question the circumstances of a death; whenever you know, just in your day to day dealings, when your eyebrows would be raised, when your concern would be provoked, about a death, and that's when there should be an inquest. And you can't exhaustively cata logue those kinds of instances.

Suffice it to say that where there's a death within an institution, where there's a product liability problem, where there's a trade custom that's suspect or where the police power of the state is involved, there should, as a matter of course, be an inquest. However, where there's a traffic fatality or a crime, where the perpetrator of the death is known and particularly where the perpetrator of the death is charged with a criminal offence, then one can say, relatively confidently, that generally speaking there doesn't have to be an inquiry in those kind of cases.

Then we get down to the nub of the amendments, which I respectfully submit, with all deference to the presenter of the amend ments and to the consideration that's thus far gone on, are regressive and retrograde in their presentation. Because I ask you this question, and ask you to answer it. Is that, who should decide whether or not there should be an inquest? Whose decision should it be? From what forum should the decision be forthcoming? There are three possible forums:

a) a prosecutorial authority; or

b) a bureaucrat authority; or

c) a judicial authority. Now, it seems to me, as a lawyer, tha t the prosecutor's job is to investigate and lay charges. That the judge's job is to hear evidence and resolve

Monday, 7 July, 1980 issues of fact and determine blame and liability. And that the bureaucracy's job is to initiate the process. So, as between the three possible, and that's an exhaustive catalogue of persons who should be responsible for initiating an inquest, it seems to me that the government bureaucracy is obliged to do that, and that's the way the present system is set up. But that is not the way the present system works. I had occasion to be involved, as a retained counsel, for a family in Sid ney, Manitoba, that had a son die at the hands of a police officer.

An inquest was held and it was ruled that the officers acted properly and responsibly. I'm not here to retry that case, in any way, shape or form. What I am here to remind you of, is that day after day in the newspaper, headlines said 'Attorney-General decides not to hold inquest." 'Attorney-General will make up his mind later whether or not an inquest is to be held." And, day after day, the headlines read what Mr. Mercier had to say about whether or not an inquest should be held.

Yet, anyone who would take the time to read The Fatalities Inquir ies Act as it's presently constituted would find out that he had no business making those decisions at all. Because the present Act, which you don't propose to change at all, sets out the process for a decision and the process is to be made by an administrator. The Attorney-General can order an inquest where none has been ordered but nowhere do I read there being provision in the Act for him to stop an inquest.

So what we have now in the province of Manitoba, if the last instance is to be regarded as authoritative, is an Attorney-General who can arrogantly, who can arrogate onto himself the decisions as to whether an inquest is held or not. lt seems to me that that is not right. That the prosecutorial authority is not the source of this kind of decision making. Then we look at the present amendments and MARL has presented a brief so that it's set down in writing for you, but I have a great concern that the changes, that the two major changes, one doesn't go far enough and the other is regressive.

The one that doesn't go far enough has received much publicity and much discussion, and all I can say is that the Manitoba Association for Rights and Liberties falls on the side of those who would have an inquest occur automatically where a death results at the hand of a police officer. The public should know that where a police officer takes a life, that there has been a proper investigation and that the investigation is resolved judicially by a judge who assesses the facts and ther eafter says something about the circumstances which led up to the taking of that life.

I don't think that there would be any police officer in the province of Manitoba who wouldn't be prepared to stand before a proper tribuna l and justify his actions. And the fact that the government of the day seems reluctant to expand those instances where an inquest takes place baffles me. I don't understand it. Surely there's no opposition to it, and I don't know, if there is opposition to it, from which quarter that opposition is coming. But that's the point where we think the Act isn't going far enough.

Now let me get to what our major complaint is not that that should be a secondary or peripheral complaint, because it's not. The major complaint is, in this society one of the fundamental virtues which we hold dear is that judges make decisions which 76 affect our rights and liberties, not prosecutors. How can members of the Legislature take the position that whether an inquest perceives or not or whether it's adjourned once criminal charges are laid, is a matter of prosecutorial di scretion. One of the fundamental rights and liberties in Canada is the right to remain silent when you're charged with an offence.

So picture the proposition of the Attorney General's department, feeling that they have a reasonably good case against 'Jones" for murder. Well, in that case, they would adjourn the inquest and allow the charge to go through the courts and probably there would be no inquest. Jones would either be convicted and we would know how the death took place or he would be acquitted, in which case there would have been a full hearing and his culpability would have been decided by a jury.

But what in the case where the prosecutor says, I know that Jones did it, either on the basis of evidence that's not admissible or on the basis of tips that are hearsay, that can't get into court, do you know what we'll do? A judge can't halt the inquest now, we'll carry on with an inquest, we'll have an inquest and we'll Jones to, testify. Jones who's been interrogated by the police and either rested on his right to remain silent or retained counsel and not obliged the police by being accommodating, or whatever. In other words, rested on his rights.

And right now you give the authority to the prosecutor, the same person who decides whether to lay a criminal charge, to decide whether the inquest goes ahead or whether it doesn't go ahead, and I ask you, how can you in conscience do that?

How can you say that the Crown prosecutor who has to decide whether a murder charge will be laid and prosecuted can first, before he makes that decision, call his prime suspect to give evidence and if the fellow rests on his right to remain silent can be found in contempt and put into jail, time after time after time, until he either testifies and then goes on record, which no one can today oblige him to do or not. So what I am saying to you, is look very carefully at the discretion and where it rests. We look to the courts, to the judiciary to protect our basic liberties.

I, personally, would go so far as to say that where we have a person charged with a crimi nal offence resulting from a death, tha t automa ti cally, by operation of law not by operation of discretion, the inq uest should be immediately stopped until that person's criminal liability is determined. But if you won't go that far at least leave the Act as it is. Leave it up to a provincial judge who is holding the inquiry, to say, Jones is charged with the offence. We can't prejudice Jones' rights.

We have to allow the charge to go through the courts and be dealt with and then if Jones is acquitted or Jones is convicted and there is some compelling reason to carry on with an inquest at that point in time, then when Jones has nothing to win or lose as a result of his trial already having taken place and he can't in our system undergo double jeopardy or be tried again on the same charge then maybe we can go ahead with the inq uest. And tha t would be a jud icial determination made by a judge who has tenure and is not susceptible to influence and who has no vested interest in the outcome of the proceedings.

I've given you my view. I would like to see the proceedings stopped in their tracks as soon as

Monday, 7 July, 1980 Jones is charged or is suspected; but if you don't do that, if you won't go that far, I beseech you to leave it as it is, leave not so well enough alone because what you are replacing it with and I'm sure all you good men would not do anything but in a decade or in two decades henc e when this legislation remains on the books and it's decided by some Crown Attorney that it would be a damn good idea, rather than go to trial not knowing what the accused version is and not letting him remain silent, as is his major right, one of his major rights in our society, to remain silent and tell the prosecutor, if you think I'm guilty of an offence you prove it, I don't have to co operate with you and I don't have to testify.

I don't have to give my version of events under Oath except in my own defence, if I choose to do that after the prosecution has presented its evidence. That's one of our fundamental rights in society. We hear about it all the time. it's just a matter of common parlance, everybody knows that. You ask anybody on the street from a grade 6 education right through triple degrees at the university, they will tell you that one of the common law rights is the right to remain silent.

Right now a judge can take that right away by continuing with an inquest, but that's a judge, we can repose some confidence in a judge to act on the principles of the common law and say that if you're charged with an offence I would, as a judge, respond to those princi ples. But why? why? answer the question, why would you take that discretion away from a judge and put it in the hands of a Crown Attorney? And if you do that, for what reason?

And the only answer to me seems to be is that in some case, somewhere, for some reason, a Crown Attorney is going to want to take an accused person, without putting him through a trial and have him testify first at an inquest, and if he relies on his right to remain silent, throw him in jail. I ask you not to do that. Thank you. MR. CHAIRMAN: Thank you, Mr. Walsh, for your presentat ion. Are you prepared to answer any questions from the committee, Mr. Walsh? MR. WALSH: Well, if there are. I'll certainly be happy to answer. MR. CHAIRMAN: Mr. Corrin. MR. WALSH: think this is going to be a sweetheart question. MR.

BRIAN CORRIN: Mr. Walsh, well knows that I have, not so eloquently though, Mr. Walsh, but I have made essentially the same points in the Legislature now on several occasions this session. I believe, Mr. Walsh, that your group has had an opportunity also to see Bill No. 69, which is a bill that the Opposition introduced before the Legislature this session. MR. WALSH: I have that. MR. CHAIRMAN: We're just dealing with Bill 59 tonight, sir. MR. CORRIN: I know that, Mr.

Chairman, I want to know simply whether or not since he's had an n opportunity to peruse it, whether or not he feels that revisions similar to those proposed in Bill 69 would be adequate and sufficient . . . MR. CHAIRMAN: Mr. Corrin, I'll have to rule you out of order, sir. We're talking about ... MR. CORRIN: Well, Mr. Chairman, on the point of order, you can attempt to rule me out of order, but certainly it's always been the case that we're allowed to fall back on precedent and rely on other informational material, which is within the knowledge of the delegate, and he has indicated, Mr.

Chairman, he is fully familiar and aware of that supportive material. And, Mr. Chairman, you'd have a very low opinion of the delegate's intelligence and the groups' importance and significance within our society if you were to suggest that we couldn't ask these sorts of questions to the delegation. I challenge your ruling, Mr. Chairman, if you don't allow us to continue. MR. CHAIRMAN: Ruling is charged. Those in favour of the ruling of the Chair, please signify in the usual manner. Raise your hands. (Interjection) He challenged my ruling. I've already made the ruling. MR.CORRIN: Mr.

Chairman, you haven't made an adequate ... MR. CHAIRMAN: On a point of order, Mr. Corrin, I've already made the ruling. MR. CORRIN: What is the basis of the ruling, Mr. Chairman ... MR. CHAIRMAN: The ruling is that we're dealing with Bill 59 tonight, sir. MR. CORRIN: Well, what is the basis of that. I know what bill we're dealing with but what is the basis of your ruling as you have on the point of order? MR. CHAIRMAN: The contents of Bill 59, sir. Mr. Evans. MR. LEONARD S. EVANS: Mr.

Chairman, I'm sure my colleague the Member for Wellington, is leading up to a particular relevant question and I see nothing wrong with making some reference to some other material that is pertinent and relevant to this very important topic and I would just appeal to you, sir, just to allow the member to continue and make his case and then if it is truly irrelevant, then I would say that you should rule him out of order. But at this point, I think in due respect to everyone, that you allow the member to carry on for a moment. MR. CH AIRMAN: I thank you ki ndly for your comments, Mr. Evans, they're very worthy.

We're still dealing with Bill No. 59, that's the bill that's before the House. Bill 59. MR. CORRIN: On the point of order, Mr. Chairman, I would ind icate by way of precedent tha t in discussing bills such as the Social Allowances Act, just last week, that you allowed considerable latitude and durin g the course of those di scussions, we discussed a Court of Appeal ruling, we discussed the contents of other similar legislation, we ranged far

Monday, 7 July, 1980 and wide in the course of our analysis and assessment of that particular bill and its featured provisions, and I would wonder why in the case of this particular bill, we're being so restrictive and why we're not allowing any discussion relative to the principle of the bill? MR. CHAIRMAN: I would suspect, Mr. ·corrin, its quite possible the mood of the chairman. MR. CORRIN: The mood of the chairman, Mr.

Chairman, with respect, is a rather arbitr ary thing, we don't know whether the chairman's had an argument with his wife, we don't know whether the chairman's had a bad dinner, but certainly, Mr. Chairman, with respect to you, it seems that simply the subtle variations of your mood should not suffice to change the normal rules of order. MR. CHAIRMAN: Mr. Corrin, you know the rules of the committee. Are you opposing my ruling? MR. CORRIN: Well, Mr. Chairman, I would concur that I know the rules of the committee and I do opp ose them because it appears tha t you 've forgotten them. MR.

CHAIRMAN: You're challenging my position and you are ... MR. CORRIN: Quite so, quite so. MR. CHAIRMAN: Those in favour of the position of the Chair in this matter please raise your hands. MR. CLERK (Jack Reeves): Nine. MR. CHAIRMAN: Those opposed to the ruling of the Chair. MR. CLERK: Six. MR. CHAIRMAN: Proceed, Mr. Corrin. Bill 59, please. MR. CORRIN: Thank you, Mr. Chairman. Dealing with Bill 59, Mr. Walsh, we note that you indicated that your group would approve of legislation that made manda tory, inq uests into all police related fataliti es.

I am wondering whether your group perceives any limitation on that sort of omnibus power. Would you prefer to have a limitation, or would you prefer to have that all inclusive and comprehensive? MR. WALSH: I have a hard time knowing the moment of the question, given the generality in which it's asked, but I can respond in this way to say, that where a person dies, and he's died at the hand of a police officer, then the Ma nitoba Association for Rights and Libe rties feels that tha t should be sufficient information upon which medical examiners, through the administrator, should mandatorily call for an inquest.

Our feeling is that the public, no matter how cut and dry, and no matter how apparent and obvious the circumstances are, that would only mean that the inquiry could be short, it could be brief, it could be in half a day, but if the fatality occurs as a result of a lethal blow struck by a police officer 78 against the citizen, that ought to be the cause for a fatality inquiry to be held.

And I say that no matter whether it were done at the corner of Portage and Main, with 99 witnesses and everybody aware of the circumstances, some members of the public won't have been there, some will have heard of it through the various media, some will have heard distorted versions of it and best to have a judicial mind say, I've weighed the evidence, I've heard the witnesses, they've been cross-examined and I find that this is what happened. Even if it's obvious. The public would then be able to rest content in the knowledge that if it's a police officer, and there's a death, then there's an inquiry. MR.

CORRIN: Yes, I thank you, Mr. Walsh. With respect to the reporting mechanism, I was quite interested in reading your brief. You indicated at the end of the second page, in the second last paragraph that your group would recommend that there be some sort of reporting mechanism, that be made available by way of public information. MR. WALSH: The reason for that, Mr. Corrin, I'm glad of the invitation to comment on that because it certainly was in the brief and didn't receive deep explanat ion from me.

But sometimes a pi cture emerges from a number of a series of incidents, each of which by itself may not cause the public to be concerned, and each separate event may of itself have explanation and the public may be satisfied with the explanations that are given.

But sometimes pictures emerge as to certain areas having more deaths requiring fatalities enquiries or certain police forces, or certain institutions, and the only way that a person can know, or be tipped off, as it were, if some investigation in a broader sense is necessary, is by studying the statistics; if we start with the notion that the human life is sacrosanct, that we can't touch it, that it's sacred, and when it's taken, it's a matter of great public concern, not just a matter to be sloughed off or of no moment, then when we can see pictures emerge, patterns emerge, we should be very quick to want to investigate and determine the cause of the those patterns.

Are they a result of insufficient policing? Are they a result of institutions not doing their work? Are they a result of products not being sufficiently safe and servicing a certain area, so that only when you get a reporting picture and a total picture, can you make those kind of generalizations. We are concerned that not only do we have the proper mechanisms, but that people be able to draw conclusions about the pictures that emerge over time. The only way you can do that is to have some kind of annua l or bi-annual report, depending on the number of deaths that there are.

So that's the reason for that recommendation, Mr. Chairman. Thank you. MR. CHAIRMAN: Mr. Corrin. MR. CORRIN: Those are my questions. I thank the delegation. MR. CHAIRMAN: Mr. Evans. MR. EVANS: I wonder if Mr. Walsh could with regard to the third last paragraph where you urge

Monday, 7 July, 1980 public information be made available on those persons who die in a correctional institution, jail or prison, whether this particular recommendation is prompted by any examples or any incidences that the association had particular reason to be concerned about. Is there some evidence or some events that have occurred that have caused the association to press for this? MR. CHAIRMAN: Mr. Walsh. MR.

WALSH: I think that if we were to use a partic ular in cident as a springbo ard for tha t recommendation, it would be unfair to the citizens who are involved in that particular inquiry who might feel that we were second-guessing the outcome of the inquiry. I can think in my own mind as a lawyer knowing very particularly about deaths at the Public Safety Building or at certain institutions, it would be inappropriate to second-guess the judicial officer who made a finding, to say that this is the cause of our concern.

But I think that we can generalize and make our point with equal strength to say that the public, if you start with the notion that you want

an Act and that the Act has a purpose and the purpose is to tell the public that your institutions, that your agencies, that your government is running its institutions in a proper way and that the death in no way reflects the kind of treatment that's being delivered, or the kind of service that is emanating from the institution, then there should be no reason why anybody would respond negatively to the notion that is contained in that paragraph. MR. EVANS: Just one further question, Mr. Chairman. Has the association any knowledge of what goes on in other jurisdictions in Canada, other provinces?

Is it customar y that this type of information be made available that you're suggesting be made available by an amendment here? MR. WALSH: That is an excellent question. The information provisions vary from province to province. Our association yet hasn't catalogued that information, but if there were time, like a week before this item were to proceed, we'd surely be happy to be the vehicle to do that, although I might say parenthetically, it shouldn't be our job but we're happy to do it if know one else is.

But the notion that it's the Attorney-General who can stop and go the inquest, who can press the 'stop" button and press the 'go" button on the inquest even while the criminal charge is pending, that isn't extant in the other major common-law jurisdictions. We think that would be a very regressive step if that were to be the case in Manitoba. MR. EVANS: Thank you. MR. CHAIRMAN: Any further question? Mr. Walsh. MR. WALSH: Thank you, Mr. Chairman. I'm much obliged. MR. CHAIRMAN: Thank you for your presentation, Mr. Walsh.

Are there any further witnesses here who would like to make presentations on the bills that are before the committ ee tonight? If not, then we'll 79 proceed with Bill No. 37. Shall we take them in order, or have you any preference, members? A MEMBER: ... 12? MR. CHAIRMAN: No. 12. A MEMBER: Oh, the A.G. is not here. BILL NO. 12 THE LAW FEES ACT.

LOI SUR LES FRAIS JUDI CIAIRES MR. CHAIRMAN: The only thing is the Attorney General is away. Okay, Bill No. 12. Page by page, Page 1 Mr. Evans. MR. EVANS: Just on a point of order, could we have 10 seconds? We're just checking the bill. MR. CHAIRMAN: Okay, proceed? Page 1 pass; Page 2 pass Mr. Corrin. Oh, I'm sorry. MR. CORRIN: I believe this gentleman was first, Mr. Chairman. MR. CHAIRMAN: Yes. MR. HENR Y J. EI NARSON (Roc k La ke): Mr. Chairman, the proposed amendments to Bill 37. MR. CHAIRMAN: 12. MR. EINARSON: On 12, I'm sorry. Yes. MR. CHAIRMAN: Bill No. 12. MR. EINARSON: The first motion, Mr. Chairman, MR.

CHAIRMAN: 12. I apologize if I left then we reverted back to 12. I'm sorry. Mr. Corrin. MR. CORRIN: ... mislead your colleague. Yes, on Page No. 2, Mr. Chairman, subsection 2 of

Section 2, headed, Fees not payable by Crown, I just wanted to indicate that we had a question for the Attorney General which we told the Attorney-General about in the House during the course of second reading debate. There are several questions, as a matter of fact, for the Attorney-General relative to some of the provisions. We wanted to know why, in this case the Crown was exempting itself in the payment of fees.

You know, we obviously understood that there might well be several reasons, and we wanted to know which one it was, and then we wanted to know why other approaches weren't considered, whether they were and why they were discarded. Well, is there anyone here who is prepared to deal with the bill? MR. CHAIRMAN: Mr. Minaker. HON. GEORGE MINA KER (St. Jam es): Mr. Chairman, if I might, for Mr. Mercier who is away in Ottawa dealing with the Constitution, I do have the answer relating to this question, that it is not a change from the present Act. Sub

section 8(2) of the present Act permits the Crown to recover fees from an unsuccessful party notwit hstanding tha t the

Monday, 7 July, 1980 Crown is paid no fees. The Crown does not pay fees, because it doesn't make much sense for the Crown to pay itself for these services, never mind the bookkeeping requir ed. However, why should an unsuccessful party in a lawsuit involving the Crown not be required to pay the usual fees? Where the Crown is the unsuccessful party, the Crown would be taxed the fees paid by the other party. MR. CORRIN: From that response, Mr.

Chairman, for which I thank the Honourable Min ister, I would indicate that our concern is that the departments might be more accountable for the litigation which they precipitate and present to the courts, if in fact they were responsible for the money transfers entailed in paying fees. lt's not totally ridiculous to consider that from a bookkeeping and management point of view, Mr. Chairman, as I'm sure the Mi nister will appreciate.

Obviously, it's just a question of transferring money from one pocket to the other, but at the same time, it means that any department prior to initiating proceedings will presumably think twice knowing that they have to incur some costs. Our concern is that by relieving the departments from the responsibi lity of bearing and paying fees, one encourages what might possibly be in some circumstances frivolous litigation. Also, Mr.

Chairman, if I might move forward, because I think the response also dealt with the question of when the Crown might recover fees, it seemed from our point of view that if the Crown is going to be in a position to recover costs, then the same should hold true with respect to their onus to pay them. As I understand it under the other section, Mr. Chairman, which I think is sort of a companion section, they would get to keep disbursements that were paid to them as costs by unsuccessful parties.

So they can effectively keep money that they never actually disbursed when they are successful and, on the other hand, they don't have to pay the fees in the first place because of Subsection (2). So you seem to have a bit of an illogical situation with them being able to recover moneys they have never put out. MR. CHAIRMAN: Mr. Tallin. MR. TALLIN: Might I answer the member, Mr. Chairman. I realize that the question was asked of a Mi nister but perhaps some clarification would be . . . The fees are intended to cover part of the cost of operating the courts.

The parties in norma l circums tances pay those fees and, ther efore, contribute to the overall operation of the costs of the courts. The losing party usually pays the fees if costs are awarded against him. As Mr. Minaker said, it is senseless to go into bookkeeping transactions if the Crown is required to pay the fee in the first instance, merely requiring bookkeeping costs where the money is going from one pocket into another. Nevertheless, when the Crown is a party to an action, the courts time and personnel are used to the same extent as they are for other parties.

Therefore, it was assumed, and has been assumed for some 40-odd years that the Crown's cases should be dealt with, insofar as the collection of costs, in the same way to recoup the costs of operating the courts, as other parties. In order to do that, you have to presume that the 80 Crown is entitled to recover fees which it has not, in fact, paid. Insofar as one other point that you raised and that was the question of whether or not it might deter some departments from bringing actions, I don't think it would be much of a deterrent. The highest fee in the

schedule is 50 and that is for an appeal, except for jury cases whic h the Crown is not normally interested in. So a 50 fee maximum for an appeal is not going to deter very many departments from taking an action or taking an appeal. · MR. CORRIN: Yes, I can accept what Mr. Tallin says, Mr. Chairman, and I appreciate the significance of it, except that I think that there would still be a inconsistency insofar as the Crown has not made it a practice, for instance, to pay the law fees incurred by successful! appellants, for instance, in criminal cases. Example, Mr.

Chairman: If a person is accused of a crime and is found guilty at their trial; appeals to an Appeal Court, and of course in doing so has to pay for the transcript fees; which said transcripts are, in turn, registered before the Appeal Court as the record before the court, then if the accused appellant succeeds, Mr. Chairman, of course, the Crown would not, as I understand it under the provisions of this Act or any other legislation, ever be accountable to reimburse the appellant for his costs. So what I am saying, Mr.

Chairman, is why then, if we clearly have a disposition on the part of the Crown not to pay the costs of successful appellants, why then does the Crown want the same citizen to pay it, when it hasn't put out any money at all? So, you see, Mr. Chairman, a person would pay 400, 500, 600 for transcripts and not get a penny back, even though they were successful on the appeal and it was found that the prosecution was without foundation. But yet, it doesn't go the other way; when the Crown wins they come up to the citizen and they say: Well, come on, we didn't pay the money but you are going to pay us the fees now.

And that doesn't seem fair; it is just innately unfair to the citizen. MR. TALLIN: This doesn't apply in a general way to payment of fees on criminal matters because fees are not paid on the same basis in criminal matters anyway. But when the Crown is unsuccessful in an ordinary civil case, they pay costs the same as any other unsuccessful litigant in a civil case. MR. CORRIN: Also, Mr. Tallin pointed out, Mr. Chairman, that the Crown is simply indemnifying itself for its actual expenses. Well, Mr.

Chairman, in the course of debate on second reading we had extensive discussion on the subject of whether that was factually correct. We discussed, for instance, the fees in the Surroga te Court; and we di scussed particularly the fees tha t were charged Administrators of Estates on applying for Grants of Probate. And there was evidence, Mr. Chairman, that, for instance, the same document, when filed with respect to a 200,000 estate, could be as much as 800 more than that same document when the estate was only worth 10,000.00. And we wondered how that related, Mr. Chairman, through you to Mr.

Tallin, we wondered how that related to user fee; we

Monday, 7 July, 1980 wondered how that related to the cost of processing the docu mentation. Wha t relationship does that have? MR. T ALLIN: On the same basis as the Land Titles fees. Everybody who contributes to the cost of operating the courts doesn't pay their precise costs of operating that

section of the court system, just as the transferee of a transfer of land pays a higher fee towards the administrative operation of the Land Titles Office than a transferee who pays on a low transfer amount. lt is not all picked up because of the assurance fund. 1t is just that that's one of the ways th at, generally, people are expected to contribute to the costs of government. Those who are dealing with big amounts pay higher amounts, even although the work involved may not be any more; in fact, it may in many cases be less. MR. CORRIN: First of all, the land titles analogy, Mr.

Chairman, with respect, I don't think is precisely accurate simply because we are talking about, in the land titles case, an actual benefit conferred on somebody who is registering a document. If I want to buy a very expense house, I suppose, perhaps I should be called upon to pay a little bit more, although again, I think it is quite questionable, but perhaps, because I am going to get the benefit of the property, I should be called upon to pay a little bit more.

If, on the other hand, a person dies and their estate, of course, has to be probated in order that it can be distributed to the beneficiaries, what possible benefit can be conferred on tha t person? With respect, Mr. Chairman, I think, that the case of the Surrogate Court fee is much more in the line of indirect taxation, as opposed to a law fee for usage of the staff and operations of the office of the courts. MR. CHAIRMAN: Mr. Minaker. MR. MI NAKER: Mr.

Chairman, just further to indicate that I believe that the public has accepted fees of this type in Surrogate Court and Land Title fees in order to pay for the services that they receive, and when one considers the costs of the various courts, even when all the revenues are added in, it still falls very short of those services that are provided and we think that this method is a correct method and is not really being changed. MR. CORRIN: I just want to point out though that generally, Mr.

Chairman, it is fairly evident that it isn't always equitable and, I guess, I can give you the classic example that was always given with respect to estate tax, the farmstead. A lot of farmers in this province are land rich and money poor, and those fees keep appreciating and it puts an unfair burden on that sort of individual. There isn't that sort of material affluence that translates into a lot of cash for paying these sorts of fees. As I said, that's the difference between the fellow who goes out and decides to make an investment in some land and the estate.

A lot of what goes on by way of disbursements in the Land Titles fee

schedule is, of course, also passed on by way of tax benefits and write-offs to the person who is getting the benefit. A lot of those are commercial transactions involving mortgages and commercial properties. 81 But the estate situation, I don't know of anybody that's going to be able to write that off the estate. There's no tax benefit to that sort of fee. lt seems to me, as I say, that the government is sort of wearing two hats. On the one hand they want to say that they are just recouping the expenses relative to operative costs, and on the other hand they seem to be moving into the field of indirect taxation.

I just don't see it. MR. CHAIRMAN: Mr. Minaker. MR. MINAKER: Mr. Chairman, just to indicate that other provinces have similar Surrogate Court fees and when we compare to Saskatchewan, on a 10,000 estate, Manitoba's fee is 30,

whereas Saskatchewan is 66; and on a 200,000 estate Manitoba's court fee is 790,

whereas Saskatchewan is 1, 206.00 lt's a policy of the different provinces and we are obviously low in our fees as compared to Saskatchewan. MR. CORRIN: I'm just wondering if the Mini ster could indicate whether there's any disposition on the part of the government to, in the future, provide for repayment of successful appellants' costs in criminal matters. MR. MINAKER: I would think, Mr. Chairman, that question would be best put to Mr. Mercier when he returns. MR. CORRIN: Mr. Chairman, I'm wondering then whether there's a disposition to adjourn discussion on Bill 12 until Mr. Mercier returns. MR.

MINAKER: How pertinent is that question? MR. CHAIRMAN: lt's up to the committee. I'm at the mercy of the committee. I don't think that has anything to do with this bill that's before us, that's my observation. Mr. Corrin. MR. CORRIN: I have another qu estion, Mr. Chairman. I wanted to know, and this is of purely academic interest, but I wanted to know if somebody could tell us why this particular bill had been translated instantaneously as it were into French, when so many of the bills that have been presented this session have not. This one is in both official languages. MR. CHAIRMAN: Mr. Tallin. MR.

TALLIN: We had available to us a limited number of translators for a limited time and as a result we knew we would not be able to translate all bills that were complete entities on themselves. I think, Mr. Corrin, you will agree that it would be senseless to translate

An Act to amend the Hi ghway Traffic Act into French when the fact is that The High way Traffic Act itself is not in French. So we decided, rather arbitrarily I think, not with any consultation with members of the House, that what we would try to do is get as many bills translated as possible, but only bills which were entities onto themselves, that is, not amending other Acts. Within that group there were some which we thought should have priority over others. One of the

Monday, 7 July, 1980 ones which we thought should have priori ty, of course, was the bill that dealt with

Section 26 of The Manitoba Act, and another group where the bills dealing with the Department of Education and The Public Schools Act. Apart from that, because we didn't know how much time it would take them to do bills, we selected smaller bills which we thought they might be able to finish. We didn't want to start them on The Securities Act because it's a technical Act. They themselves said they didn't know whether they would be able to translate The Securities Act without going back to Quebec and talking with the Securities Commission people there. So that kind of bill was out of the question.

Also, the length of The Securities Act and bills of that kind would make it almost impossible for them to do The Public Schools Act and The Securities Act in the one session. So we selected a number of the smaller bills. One of the groups that we selected was some of the Supply Acts, because the Supply Acts are done every year almost identically and we thought that the translation that we did this year for the Supply Acts might help translators in the future do Supply Acts in subsequent years.

This Act was selected not because it was of great importance to bilingual people in Manitoba, but because it was short, it was available early on when the translators were here, and we thought it was the best use of their time at the time. lt was not particularly a government decision, it was sort of an internal operation with the Translation Bureau and ourselves. MR. CORRIN: Of course now, Mr. Chairman, I am probably about to embarrass myself, but in reading the and I don't read French well, Mr.

Chairman but in reading (Interjection) Well, if you could translate, you're going to notice that the two bills are not the same, Mr. Chairman. Why then don't we make exact translations? Just to use an example, when I read the French, I noticed that in

Section 1, the definition section, essentially it says that well, forget about what it says. If you look at 1(a), and then you look at 1(

a) in the English let's just go clause by clause you note that they're not saying the same thing; 1(

a) in the French is 1(

e) in the English, and I don't understand that if somebody was doing cross referencing and some in tensive research, Mr. Chairman, it occurs to me, maybe I'm wrong, but it seems to me that there have been some transfers of sections and subsections, and it could get a bit confusing when people are trying to compare the various sections. In court, if somebody stands up and argues that he's referring to

Section 1(a), the other fellow, if it's a bilingual court, looks at 1(

a) and says, what's this idiot talking about, it doesn't say court means the Court of Appeal, it says proper officer means and that goes on down the list. So you're going to have two different things being discussed in the court. I'm just wondering why they're not doing it exactly? Why is there not more precision in that regard? MR. TALLIN: I am afraid that this is the first time that I noticed that they had put the clauses in

Section 1 out of line with the French and English versions not in the same order. The practice I 82 think they adopted was the practice that they use in Quebec, which was that they put both definition lists in alphab etical order. They avoid problems in Quebec by not assigning

definitions clause letters. My preference would be that they would all be in alphabetical order in one language and that the other language follow the direct clause thing, but I must admit that this is the first time that this was brought to my attention. MR. CHAIRMAN: Mr. Mi naker. MR. MINAKER: Mr. Chairman, the only thing that would happen if we followed that ruling is that one of the people, who spoke the other tongue of the two official languages, would object because they weren't shown precedence. So I guess this way, if both are shown alphabetical, there's no dispute, so that's how far it gets to. MR.

CHAIRMAN: Mr. Corrin. MR. CORRIN: Mr. Chairman , do we understand ourselves, since Legislative Counsel has been so kind to take the stand as it were, do we understand ourselves then that he agrees though that it would be better if the sections were comparable and related one to another? I'm just wondering, Mr. Chairman, in practical terms, if somebody is doing research on the bill or arguing a case and I can see cases, Mr.

Chairman, and I anticipate there will be cases, for instance, just to use an example, where one counsel will speak English in making his subm ission and another counsel may in her submission be speaking French. That will be possible now in our courts, Mr. Chairman. For instance, in the County Court of St. Boniface it may be happening all the time, so you'll have the judge and of course the judge there is fully bilingual; he could appreciate the arguments in either language. You could have the judge being totally confused. You'd have one lawyer talking about one section, the other lawyer talking about the same

section but referring to it by another number and subsection and it would be like chaos. They'd never have a meeting of their respective minds and I'm wondering, in order to make the courts more efficient and facilitate communication, if we can't have exact translation. I appreciate that the custom in Quebec, Mr. Chairman, may well be to do it alphabetically, but we're not in Quebec, Mr. Chairman, we're in what is essentially a unilingual province. With respect, Mr. Chairman, I think that it will create a lot of confusion in terms of scholarship and practice, and frankly, I don't think it's workable.

I think tha t this matter should be add ressed immediately before all the statutes fall into the same state of disrepair. MR. CHAIRMAN: Page 2 pass; Page 3 pass; Page 4 ... MR. EVANS: Mr. Chairman, on page 2, I was going to ask a question, on

section 6, subsection 2, in the English. There's only one page yes, page 2, English. The lower left hand is item 6(2), and I'm asking this strictly as a layman. lt says, 'except as provided in this Act or the regulations, no officer or a clerk of a court shall take for his own use or benefit,

Monday, 7 July, 1980 directly or indirectly, any fee paid under this Act", and I'm asking very plainly why, particularly if that officer or clerk is a civil servant, why would they be entitled to a fee anyway. You almost wonder why you have to have this section. I imagine there are some people being paid fees but it seems to me it's rather odd. MR. CHAIRMAN: Mr. Tallin. MR. TALLIN: One of the groups of people who are officers of the courts are the court reporters and with respect to certain transcript fees they are entitled to keep the fees.

In addition, I don't believe there are any court clerks at the moment who are fee paid but there is still possibility that they might want to appoint fee-paid clerks who are essentially part time clerks for some courts because of the nature of the practice in the court or something like that, and presumably under those circumstances the fee-paid clerk is entitled to keep the fees and that would presumably be dealt with in the regulations. At the moment, as I say, I don't think there are any officers who are entitled to keep fees except the court reporters with respect to providing transcript of evidence. MR.

EVANS: I see. As I said, I appreciate that this is put in to cover every possibility but it just seemed to me that again, looking at it as a layman that it's rather a peculiar thing to tell your employees you shouldn't take the fees that are payable, but if there are so-called, I suppose, if you have people working in the court who are not civil servants, then in fact I can see where you would want to have this type of clause. MR.

CORRIN: I'm wondering whether the government has had any complaints from the private court reporting sector with respect to the competition provided by the public sector people in the industry. The Attorney-General presumably would be the only person who could tell us whether he'd received a complaint from anybody in that regard. I'm wondering, Mr. Chairman, and I'll do so out loud, whether or not the latitude allowed the public sector reporters is enhancing the efficiency of our courts. I would wonder whether or not it's possible for a person to serve so many masters. lt seems to me, Mr.

Chairman, and nothing I say is definitive, but it seems to me that a person in the public sector should, by and large, be devoting his or her full time to duties. I presume the salaries of these people are commensurate with full time duties. I don't know what they are. Perhaps some one can tell us. But I'm wondering why it would be necessary to allow the court reporting sector to work outside and retain private fees. MR. TALLIN: I don't know whether the court reporters do work outside or not but this Act wouldn't relate to the fees that they charge for outside work.

This Act relates to the fees that they are entitled to charge for transcripts of evidence taken in court, and outside secretaries do not take, as far as I am aware, do not take down evidence given in court. 83 MR. CORRIN: But then why does 7(2) in my ignorance, Mr. Chairman, I'll ask, perhaps I'm leading with my chin but why does 7(2) say a court reporter may retain, for his own use, the prescribed fees for copies of a transcript of proceedings or evidence? MR. TALLIN: That deals with proceed ings. Proceedings are defined as 'proceedings in the court". MR. CORRIN: Would tha t not in clude, Mr.

Chairman, private proceedings? MR. TALLIN: Yes, and are you talking about the discovery? MR. CORRIN: A discovery, for instance, between two private litigants, where the Crown is not a party, where it has nothing to do with the Crown. MR. TALLIN: Well, I presume that evidence in transcrip t of proce edings or evidence means transcript of proceedings in court, not the discovery, and evidence means evidence given in court, not evidence given by way of discovery, which is not yet in court. MR. CORRIN: Now I even have more concerns because I'm wondering, Mr.

Chairman, in that case, whether the current practice is the Legislative Counsel advising us that the current practice that enables public court reporters to retain private fees because that is the current practice, Mr. Chairman, and that was acknowledged by the Attorney-General in the House, is that practice then to be discontinued on the occasion of the assent of this bill? MR. TALLIN: No, all I said was, this bill does not relate to the fees that they charge for their outside work. This relates to the fees that they are entitled to charge as court officers for doing court officer work. MR.

CORRIN: So what we're saying for clarification then is that a court reporter can retain a fee that has to do with two private litigants if it happens in a court room, but it wouldn't give approbation to the retention of such a fee if it happened in a discovery at a solicitors office, for instance. MR. TALLIN: That's right. lt doesn't deal with that at all. lt doesn't say they can't do and it doesn't say they can do it. lt doesn't deal with that fee if there is a fee charged by them. MR. CORRIN: .. . extensive, these charges, it's a very lucrative aspect of the court reporting work. MR.

TALLIN: I'm sure they don't do it for the love of doing it. I'm saying that this Act relates to court ch arged fees, not to fees ch arged by any entrepreneur who wants to go out and do work, whether he does it in his overtime or whether that's his full job. We're not dealing with that. MR. CORRIN: So we're in a situation then, where a public reporter attending a public proceeding in the court, can charge fees for transcripts of those proceedings, so if a person wants to appeal and they ask for the transcripts to be printed, then the

Monday, 7 July, 1980 reporter can retain the fees for preparing the transcripts and that's incidentally related to what we talked about earlier about accused appeals in criminal matters. But I take it then that there is a bit of a monopoly, is there not? I take it that only the public reporters, public court reporters, have access to proceedings in the courts, so that their private counterparts can't come in and do the same thing. MR. TALLIN: I think it's open to either the Attorney General or whoever is involved in making the appointment.

I don't know The Queen's Bench Act and The Country Court Act well enough to know who appoints the court reporters, but I'm sure that they can appoint a court reporter either on a fee basis for special work, or they can appoint a person as a civil servant to do court reporting work, the same as they can appoint people to do any work in the Civil Service either on a contract basis or on a salary basis. MR. CORRIN: Obviou sly th en, when a pr ivate individual, Mr. Chairman, files an appeal and orders a transcript, he will pay the court reporter who will take the fee privately.

I'm wondering, coincident with that, whether or not, when the Crown appeals, when the Crown loses a trial and it appeals, do they pay a fee to the public reporter? Can he retain the fee that 's paid him by the public reporter in thos e circumstances? MR. TALLIN: Mr. Goodman tells me they are. I don't know, I've never had experience in obtaining a transcript from a court reporter for the Crown. MR. CORRIN: This is qu ite in cre dib le, Mr . Chairman. So we have a situation where essentially we're dealing almost, as it were, at arm's length with our own civil servants.

I presume these people are civil servants as well and these are people who are actually working as entrepreneurs within the public sector within the Civil Service system. I don't know if perhaps the Minister or the Legislative Counsel know of other such cases, but I'm wondering whether there are any precedents for this sort of activity. Do any other public servants operate on a private basis within the system? MR. TALLIN: I'm afraid I couldn't tell you. MR. CHAIRMAN: The Mi nister is not here unfortunately. You'll have to raise that question in the House. Page 3 pass Mr. Corrin. MR.

CORRIN: I'm wonderi ng, a lot of th ese questions can't be answered by the people that are here and obviously it's unfair perhaps to ask them to do that, Mr. Chairman. Again, I'm wondering whether we shouldn't wait for the Minister to return in order to hear his explanations. MR. CHAIRMAN: I suspect the Minister will give you the answer in third reading. MR. CORRIN: The point is, Mr. Chairman, obviously an amendment can't be made in the same fashion at third reading as it can before the committee. 84 MR. CHAIRMAN: Certainly it can be made in third reading. MR.

CORRIN: lt's somewhat more difficult in the House than it is here and I think the purpose of the committee is to facilitate expeditious reporting, not send it in for protracted debate, because question and answer is not the way it goes in the House on third reading, and nor would we want it to be that way, we don't want that sort of give and take on third reading, I am sure. MR. CHAIRMAN: I'm at the mercy of the committee, if you want to hold the bill up, I'm at the wishes of the committee. Mr. Evans. MR. EVANS: Again, for clarification because I didn't follow all of the conversation that has just taken place.

But under 7(2), it states, 'a court reporter may retain for his own use the prescribed fees for copies of a transcript of proceedings or evidence". My question is, Mr. Chairman, is a court reporter a private entrepreneur, so to speak, or is he a public civil servant? Is he a public servant or may a court reporter be both, and I thought I heard someone say earlier a court reporter may be both, or was it the transcriber? A court reporter can be either a private person working in the court or a public servant. Is that correct? MR.

TALLIN: lt's possible for a private person to be appointed on a contract basis to be a court reporter, the same as it's possible for a person to be employed on a contract basis for any position in the Civil Service. But at the moment, I believe, all the court reports who do the official court reporting are civil servants. MR. EVANS: So Mr. Chairman, under 7(2) then, civil servants who act as court reporters can retain prescribed fees for work done, which is a rather unusual situation. MR. T ALLIN: Prescribed fees for the transcript, not for being the court reporter.

They may take many court proceed ings with out having to provide a transcript. MR. EVANS: Once the court reporter has taken down the material, or the words that have been spoken in the court, he's compiled a report and copies, they're sort of a mechanical procedure, I mean, you type it out and you make copies. MR. TALLIN: I'm sorry, Mr. Evans, he doesn't type it out unless he gets a request from somebody who is willing to pay for a transcript. MR. EVANS: Mr.

Chairman, I would have thought, and again I'm speaking strictly as a layman, wouldn't the court itself provide, or the government, provide that sort of service. I don't understand why a civil servant court reporter engages in making copies of transcripts on his own and then charges fees for them. lt seems to me rather incredible. MR. MINAKER: Mr. Chairman, there's no change in practice in the operation of the court and a use of

Monday, 7 July, 1980 the court reporter. What is being indicated in 7.1(2) is that in 6(2) it indicates taking fees for own use. A MEMBER: 6.2? MR. MINAKER: Yes, in 6(2) it indicates that 'Except as provided in this Act or the regulations, no officer or clerk of a court shall take for his own use or benefit, directly or indirectly, any fee paid under this Act", that's been inserted in the Act.

Now, to stay with the present policies of the court reporters, which I migh t add was the policy under the former administration and other administrations, it was then necessary to insert 7(1) and 7(2) to indicate those where it does not apply, following with the present policies of the use of court reporters. So that is basically why 7(1) and 7(2) are in there because it's to follow the present policies and the former policies, to combat 6(2). MR. EVANS: Mr.

Chairman, could someone explain, even though this practice has been in existence for some time, can someone explain the rationale why a civil servant would be busy making some money on the side, so to speak, for services rendered? I don't understand the rationale for that. MR. MINAKER: Mr.

Chairman, my understanding is, how it has evolved is the fact that most of these reporters have to take the transcript in the court most of the day, then they have to give it to their typist and then after the typist has typed it, they have to proofread it and recognize the correctness of it which takes up time outside of the courts, and then they have to pay the typist to do this; and then in turn when the transcripts are provided to other people, they get a fee for them. This is how it evolved. MR. EVANS: Well, could the Mini ster advise what sort of moneys are we talking about?

In a typical case, how many dollars, what would be the amount of fees obtained by a civil servant court reporter for this type of work done? Is there any idea? Do we have any estimate of moneys received? MR. MINA KER : Mr. Chairman, it is my understanding they get somewhere in the order of approximately 2.00 a page and then they pay their typist out of that fee, and again it depends on how many copies of the transcript, and so forth. MR. EVANS: Does the Acting Min ister have any idea in terms of and this I can appreciate would be an estimate of what sort of . . . MR. CHAIRMAN: Mr.

Evans, maybe the record shouldn't know he's the Acting Minister, I don't think. He's not the Acting Mi nister. The Minister is in Ottawa. He's just filling in trying to answer some questions with the help of the legal counsels around the table. MR. MINAKER: Well, I'm the Acting Mi nister while he's not here. MR. EVANS: That's fine. But, Mr. Chairman, always thought there was an Acting Mini ster. 85 MR. CHAIRMAN: Well, it's not him. MR. EVANS: There's a first acting, a second acting. At any rate the Minister is now taking responsibility. How shall I refer to him, Mr. Chairman? MR.

CHAIRMAN: The Min ister of Communi ty Services would be acceptable. MR. EVANS: Yes, okay. If the Min ister of Community Services could advise us in some general way, what would be the amount received by a civil servant court reporter for services rendered, that is, providing transcripts? What would be an estimated typical annual amount of fees received? MR. CHAIRMAN: Put in an Order for Return, sir, we don't have that. MR. MINAKER: Mr.

Chairman, I don't think it would be possible to work out anything like that because even as Minister of Community Services, we don't necessarily have access to the Income Tax Department's files and if the reporter is dealing with private lawyers and that, we would have no idea of the total numbers of dollars that an individual might take in under that part of his revenue. And then again, out of that revenue would be the cost for the typist. MR. CHAIRMAN: Page 3. pass. Mr. Evans. MR. EVANS: Mr.

Chairman, I wonder if the Minister could advise, what is the typical salary paid to a court reporter, a civil service salary paid to a public court reporter? MR. MINAKER : lt's my unde rstand ing, Mr. Chairman, that it's in the order of 20,000 per year. MR. EVANS: Well, would he double his 20,000 a year in a typical case? Or does he only add 5 percent to it or 10 percent to it? MR. CHAIRMAN: I don't think we have tha t information, Mr. Evans. You'd have to find some other vehicle than this committee. MR. MINAKER: Mr.

Chairman, I would think that would be impossible to get unless the individual involved volunteered the information. MR. EVANS: Yes, okay. I'd only make this point, that it seems to me a very peculiar way to operate within the court. lt may have been done for centuries under all administrations and again as a layman, it seems to me a rather peculiar way of operating and rather peculiar for a public civil servant to add substantially to his or her annual salary by means of add itional work which is related to what tha t person's being paid for.

I'm not in a position to make an amendment although I think one is perhaps required and I would like to urge the Minister to look into this. MR. CHAIRMAN: Somebody told me the other day, Mr. Tommy Douglas is on the board of the Husky Oil, so there we are, it's people like that who go out and make whatever money they can.

Monday, 7 July, 1980 MR. EVANS: I don't know what the relevance of that comment is, Mr. Chairman. MR. CHAIRMAN: Well, it shows any entrepreneur is entitled to go out and engage himself . . . MR. EVANS: I'm trying to get to a point here. We're dealing with the bill clause by clause, l'rri not trying to hold it up. I think all members of this committee, on both sides of the table, should be concerned about this.

I think it's a rather peculiar situation for civil servants to be engaged in earning funds, earning moneys, for doing work which is related to their initial salary, to their primary type of work. lt seems to be a very peculiar situation. And I don't know whether it's typical of other jurisdictions or not, whether it's typical of other courts or not. Also, as my colleague from Wellington reminds me, that they are competing with the private sector, in effect, because there are private court reporters as well who don't have any civil service salary but have to rely entirely on fees. MR. CHAIRMAN: Mr. Corrin. MR.

CORRIN: Just to bring this into dramatic prospectus so that all members can understand this, perhaps we could use the example, Mr. Chairman, of a piece of legislation that would enable, in fact encourage, teachers at Red River Community College to retain fees for a portion of the work they do in the course of their public duties in training and educating students within the system; so that while using the facilities of the college, which are paid for by the taxpayers, they could also carry on private schooling of certain people in competition with places like Success Business College.

You see, with putting it in that perspective, Mr. Chairman, as I said I thought it best to . . . MR. CHAIRMAN: Page 3 pass; Page 4 pass.

Preamble pass. Title pass. MR. EVANS: Mr. Chairman, on a point of order. MR. CHAIRMAN: Point of order? Mr. Evans. MR. EVANS: Would the Min ister of Community Services, whom I believe is representin g the Attorney-General, although he's not the Acting Minister, would he undertake to look into this and communicate this with the Attorney-General? MR. MINAKER: Mr. Chairman, I will convey Mr. Evans' concerns to the Attorney-General through his staff. MR. EVANS: Okay, thank you. MR. CHAIRMAN: Bill be reported. Mr. Corrin. Mr. Tallin. Proceed then Mr. Corrin. MR. CORRIN: Mr. Tallin is ceding the floor to me I take it?

Am I recognized, Mr. Chairman? MR. CHAIRMAN: Yes, proceed, you're recognized, Mr. Corrin. 86 MR. CORRIN: I was going to say that before we proceed with this, Mr. Chairman, I would indicate that it's my intention to attempt to amend the French portion of the bill. I want to amend

Section 1 of the Bill in order that it reflects the provisions of

Section 1 of the English speaking Bill. MR. CHAIRMAN: You have your amendment ready, Mr. Corrin? MR. CORRIN: But it still has to be ... I don't think members understand. The people who are suggesting, Mr. Chairman, that it's alphabetical obviously aren't aware that the

definitions opposite the letters aren't the same on both sides of the page. Mr. Chairman, just so that my own colleagues are satisfied because they seem to be the ones who are most agreed. The alphab et that we're referring to, Mr. Chairman, is the first letter of each word in the respective languages and I'll note, Mr. Chairman that the first letter of the words as translated render the two sections completely different. You can't possibly, Mr. Chairman, regard them as being consistent, one with the other. The only way is to make sure that 1(

a) is the same in the French and the English language. MR. CHAIRMAN: Mr. Minaker. MR. MINAKER: Mr. Chairman, I would suggest that Mr. Corrin, if the amendments do come in, do it in report stage in the Third Reading after he's had a chance to discuss the matter with our Legal Counsel. it's an editorial really. MR. CHAIRMAN: Mr. Tallin. MR. TALLIN: Mr. Chairman, what Mr. Corrin I think is attempting to do is to change the order of the

definitions in the French version or vice versa, change the order of the

definitions in the English version. MR. CORRIN: No, the French because . . . MR. T ALLIN: One of the ways to get around this is to strike out the clause letters at the beginning, which is what the practice in the federal government is. They don't use clause letterings for

definitions because of this very problem. That's one suggestion. The other suggestion that I have to make is that we rearrange the order, but both could be done as an editorial matter because neither would change the meaning of the sentence. If the committee instructs me to do that, that's just a matter of an editorial correction. If you'd like to perhaps see whether the committee wants to give one or other of those instructions. MR. CHAIRMAN: Mr. Filmon. MR. FILMON: Mr. Chairman, there's an overriding thing.

The initial bill that came before the House this year said that the language in which the bill was first presented took precedence if there was any conflict between the French and English version. So it really isn't a concern, I submit. lt should be in the same way as the English because .

Monday, 7 July, 1980 MR. HANUSCHAK: Because the language takes precedence, it's only a reference

interpretation of a section. But I would suggest that leave the

definitions in the alphabetical order because if we change this one, it'll create a problem for other pieces of legislation that we may want to translate, I'm thinking particularly of The

Interpretations Act, where there are umpteen thousand sections in alphabetical order. So, therefore, in English it's more convenient to read

definitions in the alphabetical order in which they would appear in the English vocabulary and in the French, arrange them in the French alphabetical order as they would appear in that language. MR. T ALLIN: Do you wish to remove the clause letters ... MR. HANUSCHAK: Yes, the clauses, just one. Use the new

Section 1

definitions and that's it. MR. T ALLIN: Do you wish to remove the clause letters, Mr. . . . ? Then you don't have to worry about them being in opposite . . . MR. HANUSCHAK: Well, okay, that's a procedural matter. MR. CHAIRMAN: Mr. Corrin. MR. CORRIN: I just wanted to indicate that I concur with Mr. Filmon on this point.

I think that we had passed legislation which says that the language in which a bill is first int roduc ed is the pr im ary language so far as in terpreta tion of it goes henceforth, and it seems to me tha t with out removing the clause letters, we fail to live within the spirit of that. lt obviously was the intention of the Legislature I think it is our intention to have this particular bill read in this particular order as cited in the English . . . MR. TALLIN: I don't think that the bill that you are talking about, has any application here because there is no difference in the meaning.

We have been assured by the translators that the two sections mean identically the same thing. lt's just a question of what order clauses go in in a sentence and that doesn't vary the meaning. So there's no conflict. In any case this bill was introduced in both languages simultaneously, so that application doesn't ... MR. FILMON: What Mr. Corrin is referring to is, that if somebody in court cites Clause 1(

b) or 1( a), there's a question as to whether it's Clause 1(

a) in English or Clause 1(

a) in French. I understand what he's saying, there is a possible misinterpretation. MR. CHAIRMAN: Mr. Kovnats. MR. KOVNATS: Mr. Chairman, the translation is quite obvious. The French is in French alphabetical order; the English is in English alphabetical order and there is absolutely no reason for all this stupid discussion on it. MR. FILMON: Mr. Chairman, if you refer in court to Clause 1(

a) of Bill 12 it defines 'court" in English, but it doesn't in French. In French it defines 'proper officer", so it is different. 87 MR. CHAIRMAN: Mr. Orchard. HON. DONALD ORCHARD: Mr. Chairman, to solve this great controversy, I move that we remove the lettering from the

definitions in both the English and French version of the Bill. MR. CHAIRMAN: Committee agreed? Mr. Kovnats. MR. KOVNATS: No, I disagree. I think with proper French or proper English it is printed properly. MR. CHAIRMAN: Mr. Corrin. MR. CORRIN: We are not changing the printing, we are removing (a), (

b) and (c). I just wanted to make the point, Mr. Chairman, so Mr . Kovnats can appreciate it, that there is no argument that each of the Acts appropriately and properly define the various words included in the Section. What we are saying is that we want to revise the lettering in order that people not be misled into believing that each of those subsections deals with the same subject matter; so that if somebody reading in a journal discovers that there has been a dispute with respect to the

interpretation of subsection 1(

b) in The Law Fees Act, that person, if they were reading in a French Journal, would not look at the wrong subsection and be misled into believing that it was dealing with something that it is not. Can you unde rstand? We would have a situation where somebody, because somebody is citing in English,

section and subsection, which is usually the way these sorts of things go, will be misled. lt isn't a question of showing priority to a language, it is simply making sure that errors and mistakes won't happen as a result of the misleading lettering. I think that the Minister of Hig hways has . . . MR. CHAIRMAN: This matter, I'm sure, has been handled . in the province of Quebec for a hundred years or more and we can argue here all night. I don't think you actually know what we are talking about in a lot of cases and we are not going to solve the problem. So I am going to ask Mr.

Orchard to withdraw his motion and leave it to Mr. Tallin to resolve. (Interjection) No, I can't do that, okay. Well, I have a motion before me from Mr. Orchard. Mr. Kovnats. MR. KOVNATS: Mr. Chairman, is the motion just to remove all of the lettering? MR. CORRIN: In the definition section. MR. CHAIRMAN: Well, (a), (b), (c), (

d) and (e)? MR. KOVNATS: Well, being completely bilingual and being well versed in legal matters I will accept it. MR. CHAIRMAN: All agreed? (Agreed) Bill be reported pass. BILL NO. 37

AN ACT TO AMEND THE HIGHWAYS DEPARTMENT ACT MR. CHAIRMAN: Mr. Corrin.

Monday, 7 July, 1980 MR. CORRIN: Mr. Chairman, I note that Bill 37 was being tended to as a matter of special interest and concern by the Member for Logan, Mr. Jenkins. Mr. Jenkins is I am told quite ill today and unable to be with us, and I know that a week or so ago we adjourned this in order that Mr. Je nkin's amendments could be considered by the Mini ster of Hig hways. MR. CHAIRMAN: Not this, the other one, his is the other one. You've got the wrong bill. MR. CHAIRMAN: This is Mr. Hanuschak's. We have an amendment, would somebody care to read the Amendment into the record. MR. EINARSON: Mr. Chairman. Bill No. 37,

An Act to Amend The Hig hways Department Act, motion: THAT proposed subsection 15(2) of The Hig hways Department Act, as set out in

Section 3 of Bill 37, be amended by striking out the words 'or village" in the last line thereof and substituting therefor the words 'village or unincorporated village district". MR. CHAIRMAN: Any discussion? Pass. Mr. Orchard. MR. ORCHARD: Mr. Chairman, the Member for Burrows, in Law Amendments, pointed out that there are a number of unincorporated districts which do not qualify as villages, hence were left out by not having 'uni ncorporated vil lage di stricts" in the specific reference as to cities, towns and villages, so we have added that in for their coverage by the law. MR. CHAIRMAN: Mr. Evans. MR.

EVANS: Therefore, the only governmental jurisdication that is left out now is the rural municipality or Crown lands? Is that right? MR. ORCHARD: Yes. MR. CHAIRMAN: All in favour? Pass. 15(2. 1) Mr. Einarson. MR. EINARSON: Mr. Chairman, the motion: THAT the proposed subsection 15(2. 1) of The Hig hways Department Act, as set out in

Section 3 of Bill 37 be amended: (

a) by striking out the words 'hedge or other objects" in the third line thereof and substituting therefor the words 'or hedge"; and (

b) by striking out the words 'or village" in the last line thereof and substituting therefor the words 'village or unincorporated village district". MR. CHAIRMAN: Any discussion? Mr. Evans. MR. EVANS: Mr. Chairman, was this amendment related to the concerns raised by the Member for Burrows? So, therefore, it is restricted to, as the wording indicates, trees, shrubs and hedges. MR. ORCHARD: Right. MR. CHAIRMAN: 15 (2. 1) pass; 15

(2.2) Einarson. Mr. 88 MR. EINARSON: Motion: THAT proposed subsection 15(2.2) as set out in

section 3 of Bill 83 be struck out and the following subsection be substituted therefor: Removal of unauthorized trees, etc. 15(2.2) Except as provided in (2. 1), any tree, shrub or hedge planted or placed upon or within 50 feet of a departmental road outside a city, town, village or uni ncorpor ated vi llage di strict, which creates a hazard to traffic or causes obstruction of view of the roadway, may be removed and the person who planted or placed, or caused to be planted or placed any tree, shrub or hedge is not entitled to any compensation for any loss he may have suffered by the removal. MR. CHAIRMAN: Mr.

Hanuschak. MR. HANUSCHAK: Yes, Mr. Chairman. I am very glad tha t the Min ister had taken to heart the comment that was offered in the course of the debate of this bill during the last meeting of Law Amendments Committee. I think that the amendment to the bill that the Mini ster has now proposed is a tremendous improvement over the original version of it. Because I wish to point out to you, Mr. Chairman, that now the Minister, or whoever on his behalf, will only have the right to remove the tree or obstruction if it creates a hazard to traffic or causes obstruction of view of the roadway.

In other words, at the time of removal it must be a hazard or create an obstruction to view. So, for example, if, for whatever reason I may decide to dress up the front of my yard because, well, my daughter is getting married and we want to have a garden party and I want to put in a few plants and so forth, make my yard attractive, and as long as it is not creating an obstruction, the Mi nister is not going to come along and root up all the plants because this

section gives him the authority to do so. But if they should grow to 30 or 40 feet in height and they become an obstruction to view, then he has a right to remove them, but until such time he doesn't. I do not wish to instigate any debate, I wish to express my appreciation to the Minister for having taken to heed the concerns expressed by the opposition and brought in this amendment. I personally would support the amendment as presented by the Minister. MR. CHAIRMAN: 15 (2.2) pass; amended pass; 15 (8)4 pass;

Preamble pass; Title pass; Bill be amended. 15 as 5 pass; reported as Bill No. 38, for Mr. Jenkins, we'll hold it then. He's not here tonight, he is ill and they have asked to have the bill held. Mr. Corrin did. You asked to have 38 held. MR. CORRIN: Yes, for Mr. Jenkins. MR. CHAIRMAN: Committee agreed? (Agreed) Bill 39,

An Act to amend the Social Allowances Act. BILL NO. 39

AN ACT TO AMEND THE SOCIAL ALLOWANCES ACT

Monday, 7 July, 1980 MR. CHAIRMAN: In this bill we proceeded with Clauses 2(

h) and (h.1) and 1(h. 1)(i), (ii) and (iii) is where we were, and I had an amendment from Mr. Corrin on 1(h.1)(iii); that regular gifts shall be treated as income and casual. One time gifts shall be treated as capital additions to a recipients liquid assets, is the only one that I have before me. Ha ve you got an amendment George, or are we just dealing with the one? Mr. Minaker. MR. MINAKER: Mr. Chairman, we haven't any amendment, we're proposing the clause as before the Committee, as worded in the Bill before the Committee.

I think we had quite extensive debate on this particular clause, and indicated that it's pretty difficult to try and legislate either numbers in a bill to what one would consider the limits of a gift, or whether it's a one-time gift. The difficulty for the administration of the Act is in how to determine a one-time casual gift. lt could in many cases take two or three years to in fact establish that.

What I have indicated to the committee is that the administration will continue to use common sense and fairness on this, and not to the extremes that were ind icated by some of the members of the committee, that if a child received a trip to a camp that we would count that as income. We would not, and have not in the past. I think what is being debated is that both the opposition and the government are not opposed to charity.

The question is, when a recipient receives a charitable gift or donation from an individual, to what size do we look at the charitable donation and then question whether or not, in addition to that charity, should the individual also receive social assistance if they are requiring it? I think that is what we are trying to achieve with the bill that's before the House, or before the committee, and is the way that we administrate the department at the present time. To try and say that it's part of the liquidable assets wouldn't necessarily overcome 1he problems that can happen.

As I indicated earlier, we have set limits on exemptions of allowable liquidable assets, of up to 2,000 per family. I would just like to make it clear to some of the members of the committe who maybe don't realize that liquidable assets are not the family home, it is not the family car, it is not the furniture or the personal objects that a person has within the home, it is liquidable assets in definition that is used by the department, bonds, cash on hand, in the bank, and maybe a second additional car.

I want to make it very clear that what we are talking about does not pertain to the property that the home is located on, the home, or the personal belongings and so forth. We indicated that we probably will be reviewing those limits, but I don't believe by making this amendment as put forward by Mr. Corrin we'll overcome a problem that he thinks exists. MR. CORRIN: I do not intend to belabour this, Mr. Chairman. The Mini ster is quite correct in saying we've had extensive debate on this particular amendment.

I think we debated an hour-and-a-half at our last sitting and this must be, I think, our third sitting day in Law Amend ments alone on this particular bill. But I do want to say, because 89 repeatedly he has suggested that one can rely on the discretion of public servants to operate not only within the letter but the spirit of the law, I do want to put on the record the comments of the Manitoba Court of Appeal in that regard, and they are very brief.

The court, in its reasons for judgment, said as follows, and the speaker is the member of the court who wrote the judgment: 'I may also say that some of this dispute is due to a failure to recognize that public servants must operate within the legislation and regulations validly enacted for them." 1 just want to make that point, that the Court of Appeal and this is not the only time that this has happened in the judgment, this is not the only reference made in the judgment the Court of Appeal did determ ine tha t the cond uct of the depa rtment was somewhat arbitrary and questionable, not from an ethical standpoint, Mr.

Chairman, but just from a common-sense point of view. So if we're going to be asked to rely on the good graces and discretion of the bureaucracy, let the record show that the court found that was not possible in the Wuziak case. I really think, and it's the final word I'll have on this, Mr. Chairman, I really think that the Minister makes a mistake when he delegates so much authority to members of the department. I think there should be tighter governmental control with respect to this area.

I think it's necessary for him to take the proverbial bull by the horns and spell out what the government's intention is in the legislation. He may have all the best intentions, Mr. Chairman, and this is what I think we fail to impress on the Mini ster. We all appreciate that he can have the best of intentions, but that department is enormous and it's simply impossible for him to know that everybody is doing what they should and is following his instruction. Mr. Chairman, in the absence of that sort of clarity in the legislation, then it will not be possible for people to go to the court, as Mrs.

Wuziak did, in order to redress abusiv e treatment or unfair treatment by the department. That is what we're being asked to vote on with respect to this particular subclause, Mr. Chairman. MR. CHAIRMAN: If the members of the committee would just keep your visiting down a little lower, I think maybe I could hear what the honourable member is saying. At times I'm having a terrible time to hear what is taking place. Mrs. Westbury. MRS. JUNE WESTBURY (Fort Rouge): Yes, Mr. Chairperson, I'm going to support the amendment.

I think tha t some of the judg ment has been questionable and that it boggles the mind to think of how much it cost us to investigate this 400 expenditure and how much we spent in trying to get the 400 back. I would suspect that, in terms of salaries and costs, it would come to thousands of dollars. I would suggest that there is some question there as to the good judgment of the department, although I don't like to be in a position where I seem to be criticizing people who can't respond, so I will just support this amendment. MR. CHA IRM AN: Any further di scussion? Mr. Boyce.

Monday, 7 July, 1980 MR. J.R. (Bud) BOYCE (Winnipeg Centre): The Member for Fort Rouge, Mr. Chairman, says it appears as if we are criticizing people who can't respond. lt is regrettable that we hear much about thejudgment, but not about the mi tiga ting circumstances that prompted the bureauc racy to proceed in this particular manner. I would just like, through you, Mr. Chairman, to ask the Minister, the way the Act reads without the amendment, this is still going to allow some discretion without spelling out just exactly how much that discretion . . MR. CHAIRMAN: Mr. Minaker. MR. MINAKER: Yes, Mr.

Chairman, it will leave discretion. As I indicated, the present guidelines to the committee before were based on looking at if, say, there's a gift given to someone that's in the order of 5,000, then obviously we will have to look at whether or not the indi vidual required additional social allowance benefits to handle her budget for the family. The present guidelines at the present time are such that it is 2,000 in liquidable assets per family. As I indicated, we will be reviewing that to see whether in fact those might be too low, but it does leave discretion, there is no question about that. MR.

BOYCE: The Mini ster uses the term 'liquidable assets." Are these assets which can be turned into a liquid, or are you talking about liquid assets? MR. MINAKER: Liquid assets. MR. BOYCE: Having heard the Min ister, perhaps we could ask the Mem ber for Wellington to explain his amendment and how it would change that discretion. MR. CHAIRMAN: Mr. Corrin. MR. CORRIN: Yes, I would be pleased to provide that information if I'm able to, Mr. Chairman. In our submission, Mr.

Chairman, the proble m in the Wuziak case related to the fact that there was nothing in the legislation which adequately defined when a gift should be treated as a capital addition to a recipient's assets. There was nothing that provided a clarifying guideline for the administration, so the administration, confronted with what certainly was a one-time gift, decided to treat it as income. They decided that it wasn't, in the discretion of one or two individuals, the department decided that would be treated as income and they pursued it.

They pursued the matter so far as they eventually debited or they deducted moneys from the reci pient's, Mrs. Wuziak's, social allowance payments. Now, what our amendment does, Mr.

Chairman, is simply to add onto the end of the government's clause a proviso that says that only regular gifts would be treated as income, and that and these are the words 'casual one-time gifts shall be treated as capital additions to a recipient's liquid assets." So in the case of the Wuziak gift, it would be clear to the bureaucracy that that sort of asset, or that sort of income, should be attached to the liquid assets owned by the recipient. Then we wouldn't have that sort of wrangling hassle, and the Minister and I don't seem to disagree on this. This is one of the things that amazes me.

The difference seems to be, Mr. Chairman, through you, that the Mi nister is adamant in his faith in the bureaucracy. I've told him this privately as well as publ icly. I'm not suggesting that anybody in the bureaucracy is malicious in the pursuance or conduct of their duties. But, Mr. Chairman, I'm saying that by not defining the regulations by way of law, by not telling both prospective recipients as well as the staff how to go about their business, it is simply impossible to administer the department. lt doesn't make a lot of sense that this sort of thing should be simply a matter of departmental discretion.

And the Minister says, well, we'll define it. But I'm wondering how he would better define it than that way? What sort of instruction could he give to the bureaucracy that would better instruct them, that would better define how they should treat gifts? He tells me that if it's a one-time gift they'll definitely look at it as capital and if it's regular they'll look at it as income. If that's so, then why not enshrine it in the legislation so that if that is not so, a recipient whose rights are trammmelled can appeal? I don't see why we can't put it in the law.

I think we're being simply too protective of the bureaucracy and too unprotective of the citizen. And we should remember, Mr. Chairman, that the bureaucracy in the case of this sort of programming is at a distinct advantage. Generally speaking, I think it's fair to say, and it's almost a matter of record that most of the people who receive welfare are probably relatively ignorant of their rights, and I don't think they would disagree either. They don't tend to be people who have access to those sorts of social skills, and they certainly don't usually have access to extensive legal counselling.

And if they do, they often don't know they have the right to it. So it seems to me that we can spell it out and then everybody knows how the game is played and we can trust the bureaucracy to follow the law. That doesn't seem so hard, and the Minister knows that if a hard-hearted NDP Mi nister such as myself should one day come into power and try and change the law, he'll have a right to debate it, just as we're debating it this evening, so he can protect the welfare recipients. MR. CHAIRMAN: Mr. Corrin, would you read your amendment into the record so then we can proceed with it. 90 MR. CORRIN: Yes, Mr.

Chairman, although I'm not sure if you want to proceed, whether Mr. Boyce is MR. CHAIRMAN: Well, there may be more debate, but I'd like to have it on the record in case we didn't get it properly. MR. CORRIN: Yes, Clause 1( h.1) (iii), add as follows: 'Regular gifts shall be treated as income and casual one-time gifts shall be treated as capital additions to a recipient's liquid assets. MR. CH AIR MAN: Any further discussion? Mr. Boyce.

Monday, 7 July, 1980 MR.BOYCE: I'm sorry we, for the sake of argument, I suppose, in making our argument, we have a tendency to re-try a particular case. I honestly can't say how I would decide, relative to a particular case, what my judgment would have been, because I'm not apprised of the circumstances leading up to that particular judgment. Nevertheless, Mr. Chairman, I think the Member for Wellington's argument on the principle is well taken, and I think that I can't see it restricting that which is being done. it's just putting into the statute that which is purported to be done.

When we leave it up to administrative discretion, I don't think it's a bureaucratic discretion per se, I think it involves the whole administration, because I'm not going to ask the Min ister whether it was pr oceeded on his instruction or not. Nevetheless, I would assume that the Min ister responsible was app rised of the circumstances leading up to that particular case. But when we leave it to the judgement of courts, we're always going to be in a position where courts will rule and we have no way of knowing how they will rule, even if we put it in the statute.

You may recall that we, as an Executive Council, passed an Or der in-Council which many of us thought that we had the authority to pass. Five learned judges said we didn't have the authority to pass such Order-in-Council and four learned judges said we did, so you always have that judgment. But the principle which is involved in the amendm ent suggested by the Mem ber for Wellington, I would ask the admini stration to consider it because I don't think it restricts. That's my understanding of what the Minister said as far as the discretionary ramifications of this particular

section are concerned, Mr. Chairman. MR. CHAIRMAN: Mr. Minaker. MR. MINAKER: Mr. Chairman, as I indicated at the last Law Amend ments Comm ittee meeting, the amendment, as put forward, does not in any way give any assistance in determining what is a one-time gift or is a regular gift. With the amendment before us, an indi vidual tha t has been ind icated in discussions in the debate could receive three trips, one every year to the Bahamas, worth maybe 2,000, and it would not be till the third year that in fact it could be determined that it is a regular gift, not a one-time gift. A MEMBER: The second year. MR.

MINAKER: Well, it would be hard to prove that the second gift was even a regular one, but I'm saying that there has to be some discretion and I don't think you can legislate it in black and white, this particular item, and that is why I'm saying that the way it is being put forward in the bill will leave some discretion and I'll see to it, as long as I am the Minis ter, that our admi nistration will look at it practically. MR. CHAIRMAN: Any further debate? Those in favour of the amendment as proposed to Mr. Corrin, please signify by raising your hands, please. MR. CLERK (Mr. J.R. Reeves): Five. 91 MR.

CHAIRMAN: Those opposed to the amendment as proposed to Mr. Corrin, please raise your hands. MR. CLERK: 14. MR. CHAIRMAN: I declare the amendment lost. (iii) pass; (iv) pass; 1 pass. In the second Clause 2, that's supposed to and 'I" instead of an 'i", if any of the members haven't corrected it in their bills. Mr. Corrin. MR. CORRIN: Are we going on now, Mr. Chairman? MR. CHAIRMAN: Yes, on 2. MR. CORRIN: Fine. MR. CHAIRMAN: 2 pass; Clause 5( 1)(c) 3(c); (

c) pass Mr. Corrin. MR. CORRIN: Yes, I have already presented a written amendment which was distributed at our last meeting, Mr. Chairman. I have to presume that people who are interested brought it along. lt is very lengthy to read, that's why I was hoping people brought it. it's a revision of the entire clause. MR. CHAIRMAN: 5(1 )(c). MR. CORRIN: Perhaps I can just touch on it. At this point, I'll touch on the material differences between the clause as presented and the clause as amended and then we can, if necessary, read the whole thing for somebody, if they want to have the entire context of it.

Essentially, first of all, what we do . . . MR. CHAIRMAN: Can you read it it into the record first, Mr. Corrin, and then we can debate it? MR. CORRIN: I'm at the mercy of the Chairman in this case, but it's quite lengthy. Clause 5(1 )(

c) is repealed and substitute as follows: (

c) who is a parent with a dependant child or dependant children, and

i) has been separated from his/her spouse for a period of more than 30 days, or ii) is the spouse of a person who has been sentenced to imprisonment for 30 days or more, or iii) has never been married and has legal custody of the dependant child or dependant children, iv) has been divorced and has not remarried. The reason for this, Mr. Chairman, is to first of all create equality between the sexes. For some peculiar reason, we seem to have forgotten about the widower or the husband who has been deserted by his wife and who has been left to care for the children.

We have forgotten that these people, too, I think, should have a right to apply for assistance, just as their female counterparts. I see no reason, and note that this was the opinion of the Manitoba Association for Rights and Liberties, as well, Mr. Chairman, why we should discriminate in favour of women and against men in this legislation. lt makes no sense to me. it seems to me that we had a case in this regard last year or perhaps it was two years ago, Mr. Chairman. it was the notorious Fitzpatrick case where, because of the anachronistic deficiencies of

Monday, 7 July, 1980 the current legislation, the court held that a father was not entitled to welfare. This was a father who had been deserted by his wife and left to care for three children. So, it seems to me, Mr. Chairman, that in those sort of circumstances we should have some parity and equality as between the sexes, and certainly shouldn't, out of hand, di smiss the application of a father. I think all the circumstances should be reviewed, as they are in the case of women. So that's the first thing. Second of all, I'm very concerned about this 90- day rule.

The clause as written would prevent a person from obtaining welfare assistance for 90 days after a spouse had been sent to prison or after they had been deserted. Mr. Chairman, we heard substantial evidence from the delegations to the effect that municipal governments, as a matter of rule, place liens against the names of all applicants, all recipients, at the appropriate Land Titles Offices. Mr. Chairman, I think we all had grave concern as to whether that sort of burden should be placed on people.

I know right now I have a case involving a lady who lives in Fort Garry but who came to the city from a small town in rural Manitoba. She and her husband had acquired a small home there, which they were forced to leave because of her husband's illness. Her husband, by the way, Mr. Chairman, is a cancer victim and it's an inoperable, incurable sort of cancer and he's had it for a number of years. The family has been on welfare for, I think, three to four years now and she told me last time we met that the liens in the R.M. in which the property is situated now come to almost 5,000.00.

Now the property apparently, on a resale basis, is only thought to be worth between 10,000 and 15 ,000.00. I presume it's a modest dwelling and probably resale values are low in that particular town or village and she is very concerned about this. The only thing we can do, Mr. Chairman, and what we're doing is we're applying to the Municipal Council asking for special dispensation and relief. You know, they can vacate the lien if they wish, but in order to do that you have to convince a majority of the reeves that is sensible. That's a lot of aggravation, Mr. Chairman.

She has made the point and 1 think she makes the point well, and our argument is going to be that she needs the money to buy some special transportation equipment and a car. She can drive a car and she thinks that the money on the sale should be put towards an automobile so that she can drive her husband and I think they have one child to various points in the city. 1 personally think the argument has merit and I know when I sat on City of Winnip eg Council a number of such applications were successful. But, Mr.

Chairman, it is a lot of aggravation. lt often leads to horrible inequities because, unfortunately, a lot of people, first of all, don't know of the rule and, secondly, a lot of lawyers don't know that they can get this sort of dispensation on special application. So a lot of people resultantly don't do it. They just simply don't make the application and don't get the benefit. But in any event, Mr.

Chairman, we think one of the things we can do from this end is abridge the waiting period to 30 days, and by doing so, it seems to me that we can provide some im med iate assistance to people in this sort of situation. I don't understand and one of the things I wanted in enquire about is how my client could build up almost a 5,000 lien debt over a 90-day period. lt happens all the time in the city of Winnipeg where recipients are allowed to rotate cyclically and what happens is they virtually never go off municipal welfare assistance. They never go on the provincial rolls.

I don't know how tha t happens but it does. So me sort of bureaucratic Catch 22. By and large most people, as I understand, prefer" it simply because provincial welfare doesn't provide as much money as municipal welfare usually. lt certainly doesn't in the city of Winnipeg. Our rates always were more attractive than the provincial rates. Perhaps they reflected city cost-of-living as opposed to rural cost-of-living but in any event, Mr. Chairman, I would note that I would like to see that abridged and there was concurrence and support for that from MARL.

I think that's the substance of the amendments that I have made. I don't think that there is anything else, other than those two major points in the amendment. But I would certainly like to hear from the Min ister in thi s regard why men are being discriminated against. MR. MINAKER: Mr. Chairman, the honourable member has introduced a few new ideas into this particular

section of the bill, because as I indicated in second reading, all that this

section has added to the law itself is that now we are writing into law that any woman tha t has been separated from her husband for a period of more than 90 days will now qualify for social assistance, which in practice we are presently doing, but because of certain technicalities it was deemed that it should be :written into the Act. Now what we have is a suggestion that we now provide social assistance to single parent families where the man is responsible for the dependant chil dren.

What I migh t suggest is that it's not necessarily that the father should benefit or have social assistance, but rather we should look at should we really deem single parent mothers, who are looking after children, unemployable. Because in actual fact that is what the law states at the present time.

Yet on the other hand, we are pumping considerable amount of moneys into the Day Care Program and the Noon and After School Program to encourage women getting off the welfare roll, so that we are looking at that at the present time, of possibly changing that actual fact of law. lt was decided that we would not do that at this time this year. So single fathers who are employable are not eligible for assistance under our present welfare Act unless they are unemployable through disability of whatever, but they are, however, eligible under municipal assistance.

I would think that we should probably look more at the question of employability of mothers. I know that Ontario has done this and that we are looking at it, but I was not prepared in my short term in office to make this recommendation at this time, until I had a full chance to look into the complete scene. So that I, at the present time, could not support the proposed amendment that is being put forward by Mr. Corrin. 92

Monday, 7 July, 1980 With regard to the waiting period of 90 days, I think this has always been for many years what has been recognized as a reasonable period to allow a possible reconciliation of the two separated spouses and also to establish that, in fact, a mother and dependant children are deserted. I would think it would be wrong to make a change to 30 days, to assume that automa ti cally when someone is separated for 30 days that they would qualify for welfare.

They do now qualify for welfare under the municipal assistance and it's a question, I guess, of the fact that municipalities lien properties if in fact they own properties, of people that are involved in the separation. The other thing, Mr.

Chairman, which I don't want to get into a long debate and dispute on, is, I don't believe that a motion can be put forward by someone other than a government member that would create additiona l spendings of taxpayers' money and this would make considerable additional spending of taxpayers' money, by reducing the time period from 90 days to 30 days and furthermore to place now the single male parent as qualifying for social assistance, if in fact he is still employable. So I would think that for those reasons that we would not support the resolution put forward. MRS. WESTBURY: Yes, Mr. Chair person.

You know, I think that one of the reasons that there has been a tendency to consider that women and not men should be supported in the welfare system when they are raising their dependent children, is a fear that a man will give up employment to stay home and look after the children. And I personally think that only exceptional circumstances would make a man or woman give up employment to go on welfare. Because we all know that there is a certain stigma, rightly or wrongly there is a stigma, it is not a desirable state to be in, to be on welfare.

I think all of us can envision certain circumstances in which it's almost required that a parent be raising children, if ther e's for instance, it comes to mind, a hyperactive child, or some child with special problems or even if it's just the conviction of the parents that a child is entitled to be raised by a parent. I think tha t we have to remove the discrimination that is in the bill. And so, I will support the removal of tha t discrimination.

I do feel that having supported having spoken strongly on behalf of removing discrimination against women, I must, to be fair, support the opposite discrimination and I don't really believe that a person who's in a good job, is going to leave the job to go on the not-so-good income of welfare, unless circumstances in some way demand that. Now, the Minister has said, in regard to 5(1)(c)(i) 90 days is left in there to provide for reconciliation. Well, I can envisage the reconciliation falling flat rather rapidly when he finds that he hasn't had any income for 60 days or something.

The reconciliation would become unstuck quite quickly when he finds he's got debts from the 60 or 70 days. So I don't think that that's a reason to keep the 90 days in. And it certainly doesn't apply to (ii). I also want to go back to this employability factor for a minute and say that we can't really have it both ways.

Until we're providing sufficient, adequate day 93 care, of adequate standards, so that parents have faith that the care in which they're placing their children is as good as the parental care would be, we can't expect and demand that people become employed because they, you know, a responsible parent is particularly concerned about the quality of the care that the child receives. So that, you know, we can't have it both ways, if we're going to expect them to be employed then we have to provide suitable, adequate, competent day care. I'm less concerned than Mr.

Corrin is about the lien situation on municipal welfare and we've had this di scussion on the floor of council, I th ink. The scenario that Mr. Corrin gave us, you know is a special case and certainly I can see that a person such as his client, would have to have consideration and having lived in these circumstances for some years where her husband is ill however, the city, as Mr. Corrin said, the city of Winnipeg council would have disposed of that, on application, I'm sure and there were a number of cases while we were sitting, where the liens were withdrawn what do you call it?

What I think about, when I think about not placing liens, is somebody who is temporarily in a poor situation, a poverty situation but within a few years becomes prosperous again, I consider that it is not unreasonable to think of the welfare payments in that case as loans. They can't get loans on the commercial market very often or most of the time in those circums tances and I don't think it's unreasonable that when they become prosperous they should repay the taxpayer who, one would hope willingly looked after them in their times of trouble and I'm not talking about impoverishing somebody.

I also envisage a case and we've heard of this had complaints when I was a councillor, from people who said, I don't want a lien on my property because I want to leave this property to my children. MR. CHAIRMAN: May I ask where don't see any lien in this legislation that's before us. MRS. WESTBURY: Yes, it is actually a part of the amendment which is trying to reduce the time from 90 days to 30 days in order that a lien should not be placed on the home. The amendment is concerned with the placing of a lien. lt was stated and I'm replying to that. MR. CORRIN: On a point of order. Unless, Mr.

Chairman, the provincial government had exactly the same policy as the municipal governments and also placed liens, if the Minister could tell us that the provincial government currently had identical policy guidelines and was imposing liens, then of course it would be superfluous to di scuss that particular provision, so perhaps we should ask the Mini ster what the pol icy guideline, for the provincial administration, is in that regard. MR. CHAIRMAN: Mrs. Westbury, do you want to finish your argument first? MRS. WESTBURY: Well, if the province does, in fact, place liens, then what I'm saying is irrelevant.

H the province does not place liens then what I'm saying, I suggest, is relevant. Because it was one of the reasons for the amendment. So could we have

Monday, 7 July, 1980 an answer from the Mi nister and then could I come back please? MR. MINAKER: Mr. Chairman, the present policy of the provincial government is that liens are not placed against residences, unless we make payment on a mortgage, then the principal is liened, but the interest or the taxes are not liened. If a major repair is made to the residence, say over 500, like a repair to the roof or something like that, or a new furnace, then that is liened. However, otherwise the property is not liened.

Additional pieces of property will be liened, if they have, say, an additional piece of land somewhere, then it would be liened. I believe, if I remember, if I'm correct, if it relates to a farm, then anything over the quarter

section that the home is located on could be liened. But that is the present policy of the provincial government. I might point out well I can't debate on what the municipalities do, so I won't comment. MRS. WESTBURV: Perhaps when the Minister next speaks, he can tell us if that is a change because I don't remember that liens were placed in the past. (Interjection) No change, right, thank you. What I was talking about was somebody who phoned me up, I had a person phone me one day to complain about the city placing liens and she said, I want to leave my house to my children.

Her children were fairly prosperous. lt seems to me that we must provide assistance to such a woman, during her lifetime and during her need but we don't have to make that a bequest to the children, who really do not need it, and I do believe tha t the first responsibility there, when the need no longer exists is, to repay the taxpayer, from the sale of the property, for instance. So, as I said I don't have the same concern on liens as Mr. Corrin has. I don't how this can be separated out for voting. lt's one of those awkward things that would have been easy at the city because you can vote

section by section, at the request of one member and perhaps you can here, and perhaps you can advise me on tha t, Mr. Chairperson. Those are my comments on this particular amendment. MR. CORRIN: Yes, I'm wondering, Mr. Chairman, it may well be the case that the policy respecting liens has been unchanged since 1977. MR. CHAIRMAN: We still have the problem, Mr. Corrin, about the resolution being out of order, it was questioned by the Mi nister, the expenditure of dollars and I wonder how we're going to deal with that? MR. CORRIN: Well, of course, Mr.

Chairman, an equal rights amendment would by no means entail an expenditure of dollars, it's a question of whether or not the first of all, whether the legislation is even valid, constitutionally. I would argue, Mr. Chairman, that first of all, the Human Rights Act probably would take precedence to this legislation. I'm wondering first of all whether we can even enact legislation in these times, that doesn't credence to the provisions of the Human Rights legislation. I wish 94 the Attorney-General was here because I'd like to have some guidance on that point. MR. CHAIRMAN: Well, the problem as I see it, Mr.

Corrin, is the changing from 30 days to 90 days. That does cause an expenditure from the Treasury. From 90 to 30. I don't know how to deal with it.

I can read you the amendment if you so wish. lt's Rule 54 'No member, who is not a Mi nister of the Crown, shall move any amendment to a bill, or to estimates, that increases any expenditure or varies a tax or a rate of tax or provides an exemption or increase in exemption from a tax, or a proposed tax, but a member who is not a Minister of the Crown, may move an amendment to a bill, that decreases an expen di ture, or tha t removes or reduces an exemption from a tax or a proposed tax." I suggest your amendment is out of order, sir. MR. CORRIN: Well, we can change it back to 90 days, Mr.

Chairman, it doesn't matter to me. I'll continue to debate the principle. The point is, Mr. Chairman, that first of all, we should not be I'm very concerned to hear about this lien rule, simply because I'm concerned tha t it may precipi tate situations where people are encouraged to stay on municipal welfare, instead of going onto provincial welfare. And I'm concerned about that because very often, depending where you are, municipal rates are lower than provincial rates and sometimes the reverse is true. But I'm concerned that in certain rural municipalities, people would be . . . MR. CHAIRMAN: Mr.

Mi naker wants to explain his says, if that's okay with you, Mr. Corrin? MR. MINAKER: If, Mr. Corrin, might permit, what I said was, we only lien if they have addition al properties, besides the home and the land that the home is on. And we only lien on the mortgage payments, like the pr incip al on the mortgage payments. We don't lien on the interests say the payment toward a house, to maintain it for the woman, was 100 a month, of which 20 was interest and taxes, then we would only lien the 80 a month. However, in the case of municipalities, if Mr.

Corrin is suggesting they stay on municipality welfare, they lien everything on their property, so I can't see them taking that approach, because of the fact that we lien a small portion, if they in fact, qualify in our regulations to be liened. MR. CORRIN: I think, Mr. Chairman, the Min ister in that respect is quite correct. Logically, if that's the case, that would flow. MR. CHAIRMAN: 3(cXi) pass; Mr. Corrin. MR. CORRIN: I would just, with respect to (ii), the Minister has indicated that 90 days is arbitrarily chosen in order to encourage reconciliation.

I wonder since that particular provision involves people whose spouse has been in prison. I wonder if he thinks it will encourage early parole. I can't understand that at all. MR. MINAKER: I don't want to even answer that, Mr. Chairman. I was referring to the specifics of

Monday, 7 July, 1980 someone who is separated when I used the 90-day. I think that Mr. Corrin is fully aware that 90 days has been in existence for many years; when he was on council and I was on council, it was understood the municipalities looked after those people in the initial stages. The question of municipal assistance is a larger one, whether in fact it should be looked after by the provincial government rather than municipal governments, I will be reviewing that, but I wasn't prepared at this point in time to inserrt amendments of what he is suggesting in the bill. MR.

CORRIN: I just want to, in closing, make the point, Mr. Chairman, that as a result of these amendments, not addressing those problems, there will still be di fferential treatment as between residents in various rural municipalities across this province, some who will receive better allowances than others, because the provincial government won't intercede and make uniform standards and guidelines for all the various regions of the province.

So tha t is one problem that the Minister has not in his wisdom seen fit to address; and secondly, it will continue to treat men and women differently with respect to their access rights to welfare allowances. I just want to make the point, Mr. Chairman, that does not seem to make a lot of sense. Clearly, if a male can make a case for having to stay home and look after children I can think of some circumstances, using my imagination as I said, three very young children, a wife who has run off, and this must happen occasionally, Mr. Chairman, somewhere.

If a person decides that they can't carry on their employment and look after those three children let's say they're not in area where it's so simple to take the children to a local day care centre and surely, in the rural areas and in the northern areas, Mr. Chairman, there cannot possibly be easy access to day care. I mean, if you're on a farmstead I can imagine all sorts of circumstances where a person could be hard put to survive unless they had access to this sort of assistance.

I don't understand why we should proclaim legislation that treats men differently from women, particularly as I said, in view of the fact that there is a Human Rights Act in this province that says that there should not be discrimination on the basis of sex. So why can't both their applications be received and reviewed on an equal basis? The point I'm making is, under this legislation, a widower or a dependent husband is simply preclu

Document details

Collection	Manitoba — Debates (Hansard)
Citation	31-4-la6
Type	hansard
Volume / chapter	31st 4th hansardpdf la6.pdf
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	10841acdc10ec25cc3896ab15070da23e58d4c36

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