October

31, 1995

HOUSE OF ASSEMBLY PROCEEDINGS Vol.

XLII No. 46

The House met at 2:00 p.m.

MR. SPEAKER (L.Snow): Order, please!

Oral Questions

MR. SPEAKER: The hon. the Leader of the Opposition.

MS VERGE: Thank you, Mr. Speaker. I have questions for

the Premier about the Quebec referendum.

After last night's vote in Quebec, did you receive a call

from the Prime Minister or any other representative of the federal government to

tell you about a new federal government proposal, a package of Meech Lake like

constitutional and other changes designed to reconcile the differences between

Quebec and the rest of Canada? If you got such a call, will you tell us what was

said - what was said by the federal representative and what you replied?

MR. SPEAKER: The hon. the Premier.

PREMIER WELLS: No, Mr. Speaker, I got no such call.

MR. SPEAKER: The hon. the Leader of the Opposition on a

supplementary.

MS VERGE: Thank you, Mr. Speaker.

Yes, the Prime Minister may understandably be reticent about

approaching this Premier. Has the Premier been informed in any way that the

federal Cabinet met this morning to consider moving quickly to propose a package

of Meech Lake like changes? Has the Premier been informed that the package will

likely include the following three changes: Number one, devolution to Quebec of

certain powers now exercised by the federal government, including employment

training; number two, a veto for Quebec over specified constitutional

amendments; and, number three, recognition of Quebec as a distinct society?

MR. SPEAKER: The hon. the Premier.

PREMIER WELLS: Mr. Speaker, I answered the hon. leader's

question very specifically, the very specific question that she asked. I spoke

with the Prime Minister yesterday afternoon, so I have not had any discussion

with the Prime Minister since the Quebec referendum. I had a conversation with

him prior to the Quebec referendum. The content of that conversation is, at

least for this moment, between the Prime Minister and myself and that is the way

it must remain for the moment.

MR. SPEAKER: The hon. the Leader of the Opposition on a

supplementary.

MS VERGE: Thank you, Mr. Speaker.

I can understand why the Premier would not want anyone to

find out what the Prime Minister told him when he called him before the vote.

SOME HON. MEMBERS: Hear, hear!

MS VERGE: Mr. Speaker, a supplementary for the Premier.

Prime Minister Chrtien got his wake-up call last night. I ask the Premier, did

you get yours? After last night's alarm, are you now ready to change your

position in ways that will reach out to Quebec and unify Canada?

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Premier.

PREMIER WELLS: Mr. Speaker, we are dealing with something

here that is vitally important to the future of all of this country, of all the

people in this Province. For the Leader of the Opposition to be playing cheap

politics with it as she is now is disgusting beyond belief.

SOME HON. MEMBERS: Hear, hear!

SOME HON. MEMBERS: Oh, oh!

MR. SPEAKER: A supplementary, the hon. the Leader of the

Opposition.

MS VERGE: Thank you, Mr. Speaker. I say to the Premier,

you should have thought about the importance of the Meech Lake Accord when you

cancelled the vote.

MR. SPEAKER: Order, please!

MS VERGE: You should have thought about the sensitivity

of the Quebec vote before you opened your big mouth last week!

SOME HON. MEMBERS: Hear, hear!

AN HON. MEMBER: (Inaudible) be quiet.

MS VERGE: Mr. Speaker, my question is -

MR. SPEAKER: Order, please! Order, please!

MS VERGE: - very simple and I will repeat it. After last

night's scare, is the Premier of Newfoundland and Labrador now ready to change

his position in ways that will reach out to Quebec and help keep this country

together?

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Premier.

PREMIER WELLS: Mr. Speaker, I'm prepared to do what's

right for the whole of the Canadian people. I'm not prepared to sit in this

House and play cheap politics with the Leader of the Opposition for her own

political advantage.

SOME HON. MEMBERS: Hear, hear!

PREMIER WELLS: The rights and responsibilities of the

people of this Province are too important, the rights and future of the people

of Canada are too important, for me to engage in this kind of cheap political

theatrics with the Leader of the Opposition.

SOME HON. MEMBERS: Hear, hear!

SOME HON. MEMBERS: Oh, oh!

MR. SPEAKER: Order, please! Order, please!

Before we proceed we have to have some order in this

Assembly.

SOME HON. MEMBERS: Oh, oh!

MR. SPEAKER: Order, please! Order, please!

I ask hon. members on both sides to restrain themselves. We

are into Question Period and we will proceed when we have some order and decorum

here.

The hon. the Leader of the Opposition, on a supplementary.

MS VERGE: Thank you, Mr. Speaker.

Why is the Premier today, avoiding the critical issues, the

issues that have led to the feelings of alienation by Quebecers and that have

put in jeopardy the unity of Canada? Why is the Premier refusing to address the

substantive issues? Why instead, has the Premier lapsed back into talking about

a constituent assembly, talking about process after we have seen so many

displays of his instincts for dictatorial and divisive action, seen it when he

cancelled the Meech Lake vote -

MR. SPEAKER: Order, please!

I ask the hon. member to get to her question; she is on a

supplementary.

MS VERGE: Thank you very much, Mr. Speaker.

Why is the Premier refusing to talk about the vital,

substantive issues?

MR. SPEAKER: The hon. the Premier.

PREMIER WELLS: Mr. Speaker, I am refusing to be dragged

in -

SOME HON. MEMBERS: Oh, oh!

MR. SPEAKER: Order, please!

PREMIER WELLS: Mr. Speaker, I am refusing to be dragged

into a confrontational discussion in these circumstances that can only do more

harm than good, either to gratify the insatiable appetite of the media for

confrontation or, to gratify the insatiable appetite of politicians for cheap

shots and for cheap gain. Either one, I will not do it, I will place the

interest of this country first.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Leader of the Opposition.

MS VERGE: Thank you.

Mr. Speaker, I ask the Premier, why didn't you think about

the best interest of Canada in 1990? Why didn't you think about the best

interest of this great country of ours last week? How can you -

SOME HON. MEMBERS: Hear, hear!

MS VERGE: How can you possibly help unify Canada when, in

the minds of so many Canadians both inside Quebec and the rest of Canada, you

personify the division between Quebec and the rest of the country. How can you

possibly be part of the solution when so many Canadians believe that you are

part of the problem?

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Premier.

PREMIER WELLS: It is very easy, Mr. Speaker. I have the

clear conscience of knowing that the position that I have taken throughout has

enjoyed the overwhelming support of the Canadian people. I will stack the

acceptability of the position that I have taken throughout this entire

constitutional debate against the position the hon. member has taken, at any

time, even if it had ten times the popularity and support that it does have.

MR. SPEAKER: The hon. the Leader of the Opposition, on a

supplementary.

MS VERGE: Is it not true that the Premier chickened out

from having the free vote in this House of Assembly that he promised back in

June 1990 because he was afraid that he would lose? Did he not avoid going to

the people of this Province in a referendum, even after the Chief Electoral

Officer told him there was time, because he was afraid he would lose? Is not

your retirement from politics part of a necessary change everyone is talking

about today, Premier? Will you not resign now for the sake of Newfoundland and

Labrador and for the good of the whole country?

MR. SPEAKER: The hon. the Premier.

PREMIER WELLS: Mr. Speaker, the tirade you just heard

from the Leader of the Opposition bears no relationship to the historical

reality, and I will let the historic record decide. I have complete and total

confidence in the historic record. Mr. Speaker, let me say this: I have too much

respect for the people of this country and for the future of this country, even

if the Leader of the Opposition does not, to get this House engaged in that kind

of stupid, silly, irresponsible, confrontational discussion at this stage. This

Province and its people, this country and its people would never forgive me if I

allowed myself to be provoked and participate in that kind of irresponsible

discussion at this stage, and I simply won't be.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Opposition House Leader.

MR. MURPHY: Thank you very much, Mr. Speaker.

MR. W. MATTHEWS: I have to say to the Premier that I find

his statements revolting, when for two weeks in this House we would not ask this

Premier a question on Canadian unity because we did not want to inflame the

situation in Quebec. We made a conscious decision, as a caucus, not to ask this

Premier questions -

SOME HON. MEMBERS: Hear, hear!

MS VERGE: Because we were afraid of what he would say.

MR. W. MATTHEWS: - because we were afraid of what you

might say. And what did you do? ... walk out of this Assembly and do just what

we were afraid you would do.

Now, I want to ask the Premier this question, a very serious

question: How can you justify your carrying on as Premier of this Province when

last week you were not permitted to speak publicly for this Province during the

crisis that preceded yesterday's vote, when you could not be trusted to speak in

this House of Assembly or answer the reporters' questions without compounding

the damage you did to Canadian unity and pushing Canada to the brink? How can

you stay on as leader of the government and Premier of this Province in view of

what you have already done, damaging the unity of this country, I ask the

Premier?

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Premier.

PREMIER WELLS: As to the first part of the member's

comments, if they were indeed so concerned about national unity, if they were

indeed so concerned about the future of this country, why are they throwing it

to the wolves today? Why are they setting aside this

SOME HON. MEMBERS: Hear, hear!

PREMIER WELLS: - (inaudible). It is a complete fraud.

Now, Mr. Speaker, I have not and never have been - and there

is no authority or force that can prohibit me as Premier from speaking on behalf

of the people of the Province in whatever way that I think fit in terms of the

interests of the people of this Province. So there is not a problem there. The

difference, which the hon. members opposite obviously do not understand, is, Mr.

Speaker, I am sensitive to the fact that almost no matter what I say, those who

may want to, including members opposite, can twist and contort it and cause it

to appear to be something, which is what happened last week. I said nothing last

week that I didn't say eight times a year for the last five years. This is no

different. It is my responsibility as Premier of this Province to speak whenever

it is appropriate and necessary that I do so and that I will, but it is also my

responsibility to ensure that I am not placed in a position where making a

statement does not help the cause of this Province or hurts the cause of the

country. Fortunately, Mr. Speaker, I have the good sense to know when it is

appropriate to speak in that manner and when it is not. It is a lesson the

Opposition might learn, Mr. Speaker.

MR. SPEAKER: A supplementary, the hon. the Opposition

House Leader.

MR. W. MATTHEWS: Thank you very much, Mr. Speaker.

I guess it is like closing the barn door after the horse is

gone, I say to the Premier that is the point with him. He has come to his senses

too late. Now, I would like to ask the Premier -

AN HON. MEMBER: (Inaudible).

MR. SPEAKER: Order, please!

MR. W. MATTHEWS: Mr. Speaker, can we dash a little spice

on the old Kentucky Fried man himself?

Mr. Speaker, I want to ask the Premier: Will he confirm that

last week when provincial Legislatures started passing resolutions expressing

support for Canadian unity, and the idea of this House of Assembly passing such

a resolution was raised, that the Premier had to yield to pressure from the

Prime Minister and our federal minister, Mr. Tobin, to hold his tongue and to be

quiet, and let the resolution stand in the name of a government back-bencher out

of concern by the federalist forces in the no campaign that if indeed such an

important resolution was debated in this House of Assembly that this Premier had

the potential to once again put his foot in his mouth and further inflame the

situation in Quebec? Can the Premier indeed confirm for this House that indeed

that is the case and that is what happened last week, that in essence he was

told by the Prime Minister and Mr. Tobin to be quiet, and we were not allowed to

debate the resolution in this House because they were so afraid that he would

further inflame the situation in Quebec and threaten Canadian unity.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Premier.

PREMIER WELLS: Mr. Speaker, there is little the hon.

member has said, in the years I have been in this House with him, that has been

further from the truth than that absolute balderdash.

MR. WINDSOR: You know the difference. (Inaudible) be

honest.

MR. SPEAKER: Order, please!

PREMIER WELLS: I resent the hon. member's implication.

MR. WINDSOR: It hurts, doesn't it? The truth hurts.

PREMIER WELLS: He would not recognize the truth if it

tripped him up.

MR. SPEAKER: Order, please!

PREMIER WELLS: Mr. Speaker, I am happy to tell you that

the Member for Pleasantville came to me in the morning with this proposal for

the resolution. It did not originate with me at all. It originated with the

Member for Pleasantville. I gave him full credit for it.

We took a look at it. Before I did, I said: Look, I do not

want us to do anything here that will cause any harm. I would like to talk to

the people who are involved in the national campaign to make sure that we do not

do anything inappropriate that will cause them any difficulty, and I did.

The suggestion out of Ottawa was that I should move the

resolution, not that I should not but that I should. I disagreed. The Member for

Pleasantville proposed it -

SOME HON. MEMBERS: Oh, oh!

MR. WINDSOR: Who do you think believes that besides

yourself? If that is not blatant, I do not know what is. You know that is not

true.

MR. SPEAKER: Order, please!

PREMIER WELLS: Mr. Speaker, we are either going to apply

the rules of the House or we should go somewhere else and debate, if the hon.

member is not prepared to live by the rules.

MR. WINDSOR: You know it is not true.

MR. SPEAKER: Order, please!

The Chair is not amused by the interjection and the comment

and the bantering back and forth that is going on. Question Period has now

turned into a period of debate. It is not designed for that. It is a period for

the Opposition and members to ask questions to the government, but this has

turned into a debate. I ask hon. members to restrain themselves, let the

questions be asked, and let the answers be given.

MR. ROBERTS: A point of order, Mr. Speaker.

MR. SPEAKER: The hon. the Government House Leader.

MR. ROBERTS: Mr. Speaker, I just heard the Member for

Mount Pearl distinctly say to the Premier: You know that that's not true. I

suggest that is contrary to the rules of the House. If Your Honour so finds I

would ask the hon. gentleman for Mount Pearl be directed to withdraw it.

MR. SPEAKER: The hon. the Member for Mount Pearl.

MR. WINDSOR: Mr. Speaker, the hon. gentleman has been

here a long time, not much longer than I have. He knows full well as I do that a

statement that `That is not true' is quite different from saying somebody is a

liar, or somebody lied, which is absolutely unparliamentary. I've been here long

enough to know what parliamentary language is and that was totally

parliamentary.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: Order, please!

The hon. the Government House Leader to the point of order.

MR. ROBERTS: Mr. Speaker, I distinctly heard the hon.

gentleman say: You - referring to the Premier - know that is not true. That,

Sir, is calling somebody a liar by any other name. If the hon. gentleman for

Mount Pearl had the courage of his convictions he would - if he wants to make

that charge there is a proper parliamentary way for him to do it. Not sneaking

across the House the way he is.

MR. SPEAKER: To the point of order.

The Chair didn't hear the comments made by the hon. member

but I will take the opportunity to review Hansard to see exactly what transpired

and will rule on it later.

The hon. the Premier.

PREMIER WELLS: Mr. Speaker, that any hon. member should

put forward the kind of suggestion that the hon. Member for Grand Bank just did

is totally unwarranted. I've told the House precisely what happened. The Member

for Pleasantville can, I'm sure, confirm exactly what happened. That is

precisely what happened. What I've told the House is exactly what happened.

Now I say to members of the House again, you, members

opposite, you may not like me personally, you may be deathly afraid of me

politically, you may want to try and -

SOME HON. MEMBERS: Hear, hear!

PREMIER WELLS: You may want to try and attack me

personally for your own political gratification, but I say to you, in heaven's

name put the interests of this Province and this nation first and foremost and

be statesmen and stateswomen. This is a time when we should put the interests of

the nation first instead of the narrow-minded, bigoted, political interest of

individual members or parties.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: Order, please!

A supplementary, the hon. the Opposition House Leader.

MR. W. MATTHEWS: Mr. Speaker, that is exactly what we

did, we put the interest of the country first, I say to the Premier, which he

did not.

Let me ask him this: Isn't he aware that the federal Minister

of Fisheries and Oceans, our representative in the federal Cabinet and Mr. John

Charest, National Party Leader of the P. C. Party, had to call this caucus to

plead with them not to debate this issue here, to give leave for an undebated

resolution from this House of Assembly because they were so petrified because

you, were a lightening rod in Quebec and they did not want to take a chance that

you would further inflame the situation in Quebec?

Now I am telling the Premier, before he gets up and accuses

anyone of not telling the truth, I am telling him the truth of what happened,

and he better be sure of his facts before he gets too hot under the collar. Can

the Premier confirm that?

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: Order, please!

The hon. the Premier.

PREMIER WELLS: I am indeed quite aware of what happened

and since the hon. member has raised it, I will tell him very clearly what

happened.

The proposal for the resolution was put forward. I knew that

this kind of acrimonious debate in the House could only hurt the situation at

the time, because of this kind of political acrimony -

SOME HON. MEMBERS: Oh, oh!

MR. SPEAKER: Order, please!

PREMIER WELLS: - so I suggested to the hon. member who

had proposed the resolution, that if the resolution was to be put forward, it

ought to go forward without debate because I wouldn't want to exacerbate the

situation by reason of acrimonious debate of this nature.

When I spoke with Mr. Tobin, I suggested the same thing to

him; he felt very strongly that that was the appropriate course to follow - that

came from me. Now, I know that Mr. Charest and I know that Mr. Tobin called the

Opposition because they wouldn't consent to it going forward on that basis. I do

know, that certain members, that one or two members at least, in the Opposition

refused to consent to it going forward on that basis, claiming that their

constituents wanted to hear from them on the issue and that was why Mr. Charest

called. Mr. Charest called the Opposition at my request because

SOME HON. MEMBERS: Hear, hear!

PREMIER WELLS: - it was at my suggestion that Mr. Tobin

spoke with Mr. Charest to call the Opposition. It was at my suggestion that Mr.

Tobin spoke with Mr. Charest to get the Opposition to agree to do this because

it was in the interest of this Province and the nation that it be done. Now, it

is too bad the Opposition or at least certain members of the Opposition were not

prepared to do it.

SOME HON. MEMBERS: Oh, oh!

MR. SPEAKER: Order, please!

PREMIER WELLS: Fortunately for this Country and this

Province, Mr. Charest was a statesman. Fortunately, Mr. Charest was a statesman

and he acted like one, which is more than can be said for the members of the

Opposition.

MR. SPEAKER: Order, please!

The hon. the Member for Burin - Placentia West.

MR. TOBIN: Mr. Speaker, the facts are not what the

Premier said. We would not give consent for the Member for Pleasantville to

introduce the resolution; we insisted it be done by the government, Mr. Speaker,

both Mr. Tobin and Mr. Charest saw our point and went back to government and it

was introduced by the Government House Leader. Those are the facts of the

interjection by Charest's (inaudible).

SOME HON. MEMBERS: Hear, hear!

MR. TOBIN: Mr. Speaker, seeing today we are talking about

honour and trustworthiness in this, I would like to ask the Minister of Tourism,

Recreation and Culture a question.

I ask him, does he still stand by the statement that he made

in the House on November 16, 1994, when he said on educational reform: This

government's plan was not then and is not now and it is not our plan to seek

constitutional change. Our plan is to try to get needed reforms for a better

education system by consensus. That was their plan then, Mr. Speaker, it was

their plan last week, it is their plan this week, it's the plan this afternoon,

it's the plan tonight. It will be the plan tomorrow and it will be the plan

until the day we die.

Let me ask the minister, does he still stick by that

statement? If he does not, can he tell me where to send the flowers?

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Minister of Tourism, Recreation

and Culture.

MR. GRIMES: Thank you, Mr. Speaker.

I appreciate, in this particular forum being given an

opportunity to address the issue again, because as I indicated in my speech to

the Legislature last evening on the Education Reform Bill, the resolution that

we will vote on today, it is clear that that kind of representation of part of a

twenty-five or thirty minute speech that I gave in response to

an act of

absolute, total, political grandstanding by the former Leader of the Opposition

who introduced a motion caring nothing about education reform but trying to

embarrass the government on a Private Members' Day, that that particular person,

these members opposite, Mr. Speaker, tried to embarrass the government but it

did not work. The Leader of the Opposition walked out of the Legislature,

refused to vote on a motion he presented, supposedly to move forward and advance

the cause of education reform, and now they stand up, hoping again there would

be some political embarrassment or something, because that is the sort of thing

they relish.

They do not care about the issues. They care only about the

political appearance of it, and I will go to my grave at some point in time,

like all of us will, maybe I will be in a senior citizens home in my last few

years, or it might be my own home, but I will be sitting in a rocking chair

someplace saying to somebody - maybe I will be thinking about dying or I might

know I am going to die, but I will say, yes, to the day I die the plan for this

government was to achieve consensus.

SOME HON. MEMBERS: Hear, hear!

MR. GRIMES: It is only because consensus was not possible

that then you either have to abandon all the plans, forget about reform, and do

nothing. We, Mr. Speaker, react to the circumstances of the day. That was a

debate a year ago, a lot has changed, and I firmly believe in dealing with the

issues and the circumstances of the time. The plan, because we believed in the

best interest of reform and the students of the Province, was to reach

consensus. It did not happen, and that does not mean we have changed anything

other than to deal with the reality that there was no consensus. We are going to

have a vote shortly after Question Period where I will proudly stand and vote in

favour of the resolution because it is no change of position on my part.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: Order, please!

Again I have to caution members, particularly to my right. I

have heard comments that are considered unparliamentary - give him a polygraph,

the hon. member is lying. I heard that come from down there but I cannot

identify the individual. All these terms are unparliamentary and the Chair will

not tolerate these kinds of comments.

The hon. the Member for Burin - Placentia West on a

supplementary.

MR. TOBIN: Mr. Speaker, the minister can squirm all he

likes, but the Premier today was exposed by the Leader of the Opposition and my

colleague for Grand Bank, as to how he refused to allow a consensus to be

reached to put this country together back in 1990. Today we have shown why this

minister, together with the government, would not allow the consensus on

education reform.

Mr. Speaker, I ask the minister, when you make statements

like that, betray your constituents, betray the people of the Province, how can

you expect to be trusted when you represent the government of this Province

anywhere in Newfoundland or Canada? How can you be trusted?

MR. SPEAKER: The hon. the Minister of Tourism, Culture

and Recreation.

MR. GRIMES: Thank you, Mr. Speaker.

I have no hesitation whatsoever defending any position I have

taken in this debate, or others. There has been in response to the question one

exposure today consistent and that has been my greatest disappointment since I

have been in this Legislature since 1989, that members opposite as shown in

their line of questioning today are not at all interested in the issues at hand,

but are interested only in trying to twist something into some kind of political

machination for their own purposes. It has been reflected by the questions today

by the Leader of the Opposition and reflected now by the questions by the hon.

Member for Burin - Placentia West. It is consistent with what they have done

since 1989 and I have no hesitation, and no difficulty in defending my position.

My position has been consistent. We deal with the issues as they arise and as

they develop. That is what we have done in this respect and that is what we will

do with the education issue when we bring it to a close today in this

Legislature.

MR. SPEAKER: Question Period has expired.

Before we proceed with the routine business I want to welcome

to the galleries on behalf of all members twenty-eight students and

representatives from the Council of the Student's Union at Memorial University.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: As well, I want to welcome to the Speaker's

gallery a former member of the House of Assembly, the Member for St. John's

South, John Nolan.

SOME HON. MEMBERS: Hear, hear!

Notices of Motion

MR. SPEAKER: The hon. the Member for Eagle River.

MR. DUMARESQUE: Thank you, Mr. Speaker. I will on

tomorrow ask leave to introduce the following resolution.

Whereas the unemployment insurance account is funded solely

by employer and employee payroll deductions;

And

whereas revenue has exceeded expenditures in recent years

and the fund is projected to be self-supporting in the future;

And

whereas this program is vital to the income security of

thousands of our people who are seasonally employed;

Be it resolved that the House of Assembly endorse the

government's position that seasonal workers not be treated any differently than

others who access the program.

Answers to Questions

For which Notice has been Given

MR. SPEAKER: The hon. the Minister of Employment and

Labour Relations.

MR. MURPHY: Yes, thank you very much, Mr. Speaker. This

is in response to a question from the hon. Member for Burin - Placentia West

last week. The question, of course, I asked my staff to review it, and staff in

turn reviewed it with our federal counterparts. Let me say to the member that it

is very unlikely any detailed and meaningful analysis will be completed before

the end of November this year.

The member also stated the other day that in 1991-1992, $1.1

billion came to the Province in UI benefits while during the past year it was

only $645 million. Let me correct that.

AN HON. MEMBER: (Inaudible).

MR. MURPHY: I say to the hon. Member for Ferryland I can

read Hansard also. I would like to correct these figures. During 1991-1992 there

was actually $950 million entering the Province, and in the past year UI

combined with TAGS has brought in $966 million to the Province. Which is an

increase in the amount of money entering the Province, not a decrease as the

member proposed.

MR. SPEAKER: The hon. the Minister of Works, Services and

Transportation.

MR. EFFORD: Thank you, Mr. Speaker. I want to table

answers to the questions raised by the hon. Member for Ferryland yesterday in

regard to the highway signage and the tourism logo, and to point out the hon.

member was wrong on each question. I will table a logo of the four-leaf lucky

shamrock.

SOME HON. MEMBERS: Hear, hear!

Petitions

MR. SPEAKER: The hon. the Member for Green Bay.

MR. HEWLETT: Thank you, Mr. Speaker. Again I rise to

present a petition on behalf of my constituents who do not want the District of

Green Bay to be split in the upcoming electoral boundary changes. Today's

petition brings the total number of signatures to nearly 1,500.

During the last election the Liberal Party promised to set up

a proper and independent electoral boundaries commission with a mandate to

greatly reduce the number of seats in this House of Assembly. After the election

such a commission was set up under the chairmanship of Judge Mahoney. However,

when it became clear that this commission was going to take its mandate

seriously and would be recommending a reduction from fifty-two to forty seats

the Liberal government changed the commission's mandate. In the end the Mahoney

commission's final report recommended a forty-four seat House of Assembly.

In the proposed forty-four seat Assembly Green Bay would keep

its existing communities but would add Badger, Millertown, Buchans Junction and

Buchans to become a new seat called Green Bay - Buchans. The Windsor

section of

the old District of Windsor - Buchans would be added to the Grand Falls seat to

form a new seat called Grand Falls - Windsor.

The Liberal Party for its own selfish ends decided it could

not live with a forty-four seat Assembly. Before Christmas last year a

government official briefed the PC caucus on a possible forty-eight seat

Assembly. This meant Green Bay - Buchans dropped the northern part of Green Bay

and added a part of the former town of Windsor.

This year the Liberal government, under a very restrictive

mandate, appointed Judge Noel to formally draw up boundaries for a forty-eight

seat Assembly. Out of this exercise came the District of Windsor - Springdale.

The old Green Bay district still lost its northern part but picked up most of

the former town of Windsor. The Badger to Buchans area was added to Grand Falls

to form a new seat called Grand Falls - Buchans.

Mr. Speaker, the Liberal Party has broken its word many times

in the last six years. It should not be surprising, therefore, that it broke its

word about changing electoral boundaries. It promised to significantly reduce

the number of seats in this Assembly. It spent several hundred thousand dollars

on an independent commission whose report it basically shelved, all for a measly

reduction of four seats.

Mr. Speaker, there has also been some talk of late about

making further amendments when the electoral boundaries issue is brought before

this House. To get further into horse trading at this stage would only drag all

of the members of this House into this utterly sordid mess. As one MHA, I have

presented nearly 1,500 names on petitions from residents of Green Bay who don't

want their district to be split in two. Their concerns can be met if this hon.

House would accept either the interim or final report of the Mahoney Commission.

I am also pleased to note, Mr. Speaker, that Mr. John Nolan, who is in the

gallery today, was a member of that commission. In either case, whether we

accept the interim or final report, we have a district called Green Bay -

Buchans where Green Bay has some territory added but Green Bay itself is not

split. Similarly, concerns in the town of Grand Falls - Windsor about keeping it

as one seat would be allayed by the Mahoney report. The forty-eight seat Noel

report was a cynical manipulation of due process by this Liberal Government. I

will not support it or get into the mire of tinkering with it. If the government

wishes to establish or re-establish some legitimacy, let them bring in the

Mahoney report; otherwise, they should scrap this entire sorry mess and let a

future government do it right. Thank you, Mr. Speaker.

MR. SPEAKER: The hon. the Member for Baie Verte - White

Bay.

MR. SHELLEY: Thank you, Mr. Speaker.

I would like to rise today to support my colleague in his

petition, as I have done several times before. Also, Mr. Speaker, although we

will be coming to full debate on these electoral boundary changes, I think I

should stand and support my colleague, because it concerns my district and the

overflow from the member in Green Bay.

Mr. Speaker, we have said all along, many members on this

side have said that we do support a significant decrease in the number of seats

in the Province. I don't think that is a problem. I think the problem we see

here, that my colleague keeps referring to, is a process that we went through,

Mr. Speaker, as we have gone now from fifty-two seats down to forty-eight, which

I don't think is a significant number, to talk about a decrease. If we are going

to talk about a decrease it would - as he referred to, down to forty-four seats,

Mr. Speaker, but the whole process from the beginning has been tainted. It has

included political rhetoric that has gone back and forth across this floor. We

will get into a full debate in the weeks coming, as a matter of fact, in a few

days from now but, Mr. Speaker, the point has to be made that the process of the

decrease in the number of seats is what bothers us most.

Mr. Speaker, we should also remember that we have to consider

rural and urban Newfoundland when we do the realignment of seats. I have no

problem with picking up an extra thirteen communities as it will be now in this

latest proposal, so that I will then have thirty-three communities in my

district alone, thirty-three communities, thirty-three different councils to

deal with, about ten different fire departments, different organizations,

different groups. Mr. Speaker, that has to be considered when seats are

realigned in this Province if we are going to do it properly.

Mr. Speaker, I think it can be done. And we also have to

remember the geography of the different seats, as opposed to a rural seat and an

urban seat,

whereas I would take eight to nine hours to drive around my district

just to stop in and visit each community, to do it justice and to be in contact

with my constituents, an urban seat, as my colleague, the Member for Kilbride

said, it can take one hour to drive around his district. I think those are

factors that have to be considered when we are talking about realignment of the

districts. Mr. Speaker, I have no problem accepting the thirteen communities

from the District of Green Bay but I can certainly see why my colleague - his

constituents have a problem where they will be joined onto the Baie Verte

district. Sometimes it just doesn't make sense to join certain parts of the

Province when it comes to the geography, the routes and the highway system in

this Province, for example, what would happen with the Grand Falls - Windsor

town being divided.

So, Mr. Speaker, those factors, not the one-on-one vote as

was suggested by the Premier, is the only factor to look at. The 10 per cent

variance now does not take into account or help out the situation when it comes

to population. So it has to be more than population, it has to be geography; it

has to be demography, yes but also other factors.

So, Mr. Speaker, I support my colleague and the concerns that

he brings forward by his constituents, and I support a decrease in the number of

seats in this Legislature. I have no problem with that as long as the process is

straightforward and is not tainted by political interference.

Thank you, Mr. Speaker.

SOME HON. MEMBERS: Hear, hear!

MR. SPEAKER: The hon. the Government House Leader.

MR. ROBERTS: Mr. Speaker, I will not delay the House on

this except to say two things: number one, as I will demonstrate, the process

has been straightforward and appropriate; and, number two, the matter will be

debated at such length as the House should deem necessary in this session,

beginning very soon indeed, so we will have an opportunity then to reply to the

canards being thrown about this House by those who, if they don't know better,

will, when the debate is over, I trust.

Thank you, Sir.

MR. SPEAKER: Before we call Orders of the Day, there is

an agreement that we take a vote on the resolution, Motion 4 on the Order Paper,

which concluded yesterday. It is my understanding that we want a recorded vote.

Is the Chair correct in that, that we are taking a recorded vote?

The hon. the Government House Leader.

MR. ROBERTS: Mr. Speaker, that is correct. The motion was

adopted by the House yesterday. There is one of our members who is on his way

in, in a moment. The Whip has just whipped. Your Honour, would you perhaps...

Hold on now, here he is.

SOME HON. MEMBERS: Hear, hear!

MR. ROBERTS: I believe, every member of the House,

without exception, is in his or her seat, and accordingly, if my friends

opposite are ready, I suggest we proceed, and perhaps we could proceed simply to

a standing vote, because I think this is a matter members would want to record.

MR. SPEAKER: Is the House ready for the question, and is

it agreed that we have a standing vote?

SOME HON. MEMBERS: Agreed.

MR. SPEAKER: All those in favour of the resolution,

please stand.

If we could have the Sergeant-at-Arms, could we have the bar

across the House?

The House is now ready for the question.

CLERK (Mr. J. Noel): The hon. the Premier, the hon. the

Minister of Justice and Attorney General, the hon. the Minister of Industry,

Trade and Technology, the hon. the Minister of Education and Training, the hon.

the Minister of Works, Services and Transportation, the hon. the Minister of

Environment, the hon. the Minister of Finance and Treasury Board, the hon. the

Minister of Tourism, Culture and Recreation, Mr. Lush, Mr. Barrett, Mr.

Dumaresque, the hon. the Minister of Natural Resources, the hon. the Minister of

Municipal and Provincial Affairs, the hon. the Minister of Employment and Labour

Relations, the hon. the Minister of Social Services, the hon. the Minister of

Health, the hon. the Minister of Fisheries, Food and Agriculture, Ms Cowan, Mr.

Walsh, Mr. Ramsay, Mr. Crane, Mr. Langdon, Mr. Oldford, Mr. Noel, Mr. Gilbert,

Mr. Tulk, Mr. Andersen, Mr. Vey, the hon. the Leader of the Opposition, Mr.

Hodder, Mr. Harris.

MR. SPEAKER: All those against the motion, please rise.

CLERK: Mr. W. Matthews, Mr. Sullivan, Mr. Tobin, Mr. A.

Snow, Mr. Woodford, Mr. Windsor, Mr. Hewlett, Mr. Jack Byrne, Mr. Manning, Mr.

Shelley, Mr. E. Byrne, Mr. Fitzgerald, Mr. Careen, Mr. Mackey, Mr. Penney, Dr.

Kitchen, Mr. Smith, Mr. Whelan, Mr. Flight, Mr. Carter.

CLERK: Mr. Speaker, thirty-one `ayes' and twenty `nays'.

MR. SPEAKER: I declare the resolution carried.

SOME HON. MEMBERS: Hear, hear!

Orders of the Day

MR. SPEAKER: The hon. the Government House Leader.

MR. ROBERTS: Mr. Speaker, we will be asking the House to

deal with, in the first instance, Order No. 11 which is Bill No. 16. I believe

my friend, the Member for Humber Valley, adjourned the debate last time, if

memory serves me well. Assuming we dispose of that bill, we will go on to deal

with Order No. 16 which are amendments to the jury act. If we should be so

fortunate as to get through that bill, we will then deal with Order No. 17,

which is Bill No. 30. If we get beyond that, well, we will see. We do not

propose to ask the House to sit beyond 5:00 this evening, notwithstanding the

remonstrations of my friend, the Member for Grand Bank.

Mr. Speaker, would you be good enough to resume the debate on

An Act To Amend The Evidence Act, Bill No. 16, Order No. 11.

MR. SPEAKER: Bill No. 16.

The hon. the Member for St. John's East.

MR. HARRIS: I believe it was I who adjourned the debate

on the -

MR. ROBERTS: I'm sorry; I had trouble (inaudible) my hon.

friend.

MR. HARRIS: I spoke following the Member for Humber

Valley who quite, in his usual thorough manner, unlike many members of the

House, actually read the legislation before he got up to speak on it - a new

approach for some members of this House. In his usual thorough manner the Member

for Humber Valley had indeed thoroughly reviewed the legislation and raised some

quite pertinent questions dealing with the application of the legislation.

The principle, of course, of the legislation is to allow

people who would not otherwise be permitted to testify in a civil proceeding

without corroboration to be able to testify and to have a finding of fact in a

civil proceeding be determined on the basis of an evidence of a child, whether

given on oath or not. In fact, this makes provision to allow evidence to be

taken from a child regardless of whether the child knows what an oath is.

This is consistent with the changes in the Canada Evidence

Act which allows the evidence of a child to be used in determining a criminal

finding of guilt where the finding must be beyond a reasonable doubt. There is

no impediment, in my view, to permitting the evidence of a child without

corroboration to be used; of course, when believed, it would have to be accepted

by the trier of fact, whether it be a judge or jury, to be used without

corroboration, if believed, to support a civil lawsuit where the consequences

are almost always only damages. Of course, there may be an injunction; there may

be just damages or monetary damages as opposed to potentially, loss of freedom,

or a monetary fine in the case of a criminal proceeding.

The Member for Humber Valley did raise a point which is an

important one and that is, that the term `child' is not defined in the Evidence

Act. Generally speaking, a child, contrary to a lot of people's ideas of what a

child is, a child is actually, by general law, a person who is under the age of

majority, so an eighteen-year-old would be a child in the law's eyes even though

an eighteen-year-old can vote, have a driver's license, vote federally and

provincially and be permitted to carry out many activities. Certainly, he is

treated as an adult for the purposes of criminal law and many other respects but

under our general law, a child is someone who is under the age of nineteen, the

age of majority.

Now, Mr. Speaker, I think that the intention here is not

really dealing with a child in that sense, the intention appears to deal with

the child, in particular a child which is known as a child of tender years, a

child perhaps under the age of six or seven or eight, who does not necessarily

have the maturity to understand what an oath might be but, which a ten-year-old

or twelve-year-old or a fifteen-year-old or an eighteen-year-old would certainly

be expected to understand, so it is really dealing with the evidence of a young

child as opposed to a legal child, and I don't know if the Minister of Justice

is prepared to look a little more closely at this.

Clearly, an eighteen-year-old or a sixteen-year-old would be

considered capable of giving evidence without the provision of this particular

section of the Evidence Act, and there is sufficient protection there on two

grounds. Number one, the court must establish first of all that the child must

promise to tell the truth, and the court must be of the opinion that the child

understands what it means to tell the truth and is able to communicate that

evidence. There is provision also for the court to conduct an inquiry to

determine whether, in its opinion, the child understands what it means to tell

the truth and is able to communicate that evidence.

Not particularly contemplated what kind of inquiry might be

conducted, but I would assume it would take the form of a voir dire as it is

known in law, which is just a preliminary trial within a trial of that

particular issue, and then the court will establish itself perhaps by asking

questions of the child, and allowing the child to be cross-examined on that

point, to establish whether or not the child knows the meaning of telling the

truth and is able to communicate the evidence and is prepared to make such a

promise to the court.

The key of course, is that a child can give evidence in these

circumstances without having to give an oath, without having to take an oath and

secondly, that the evidence given by a child need not be corroborated. Now

that's a legal rule which members may or may not be familiar with but what it

really means is that, if the only evidence of a particular fact or circumstance,

is the evidence of an eyewitness or the evidence of a child witness, then that

evidence, if believed, if accepted, would be sufficient to make the finding a

fact.

There may be lots of circumstances where there may be only

one witness to an event. Lots of times things happen that only one person

witnesses, whether it is a child or an adult. If an adult were to give evidence

of what he or she saw, and the court were to accept it, then that would be

considered adequate without corroboration. This merely says that if, in fact, a

child is giving evidence, that also would be sufficient for a finding of fact if

the evidence is believed. There could be all sorts of circumstances.

The minister, in his opening remarks, referred to certain

events that may occur when only a child is present, with a perpetrator of

certain acts. That could be a sexual assault or a sexual abuse case, and clearly

if a child in these circumstances can give evidence in a criminal court and have

it accepted, surely the child should be able to give evidence in a civil court

as well if an action is taken against a perpetrator or against someone whose

negligence had a role to play in causing the damages to the child.

There may be less sinister circumstances or less tragic

circumstances where a child is the only witness to a particular event. It could

be that a child is the only person who can identify the driver of a vehicle if

there has been an accident, or some such thing like that, where the child was

present, the child saw this particular man get out of the car after the car

crashed, and if in the absence of that evidence it may be impossible to

establish who the driver of a vehicle was, so it does not have to be a

circumstance where the child is a victim. The child may just be a witness to

certain events, and need to be able to give that evidence in order to support a

particular side of a case. It may be to the defence. It may be that the person

defending a civil suit, the only evidence which would exculpate that defendant

from a big damage award against him or her would be the fact that a child

witnessed certain things happening, and if that defendant was unable to call the

evidence of this child, that defendant could be required to pay damages because

the legal rules prevent justice from being done in particular circumstances.

There are always critics of the legal system, or cynics about

the legal system, who continuously cry out about the fact that technical rules

often prevent justice from being done. I guess the rule with respect to the

evidence of a child is one of those rules that in certain cases may have

prevented justice from being done because the evidence was unable to be called

or supported by other corroboration, and therefore justice was not done in a

particular case.

There is no guarantee, of course, that the evidence of a

child would be accepted by a court. There is nothing in this legislation which

says that a judge or a court must accept the evidence of the child, but it

allows the evidence to be heard, and if believed, and if the weight of evidence

is sufficient to make a finding of fact in favour of the evidence of a child,

then a finding can be made, so it not a piece of legislation that requires the

evidence to be believed or be determinative of the issue. It merely allows the

evidence to be put before the trier of fact, whether that is a judge or whether

it is a jury in a civil case, which we do now, of course permit - civil juries.

I do not know whether there are intending to be any other

speakers on this particular bill. I would commend it to hon. members as an

improvement in the law of evidence and an improvement in the judicial system by

removing one of those technical rules which may, from time to time, prevent

justice from being done, and in fact, in some cases, where a child may be a

victim of a particular tort of negligence, assault, or abuse, prevent a case

from being launched for damages. So, I think it is a significant amendment;

although it may not be one of those things that are in the forefront of people's

minds, it is an improvement in the law.

As I said, I don't think there are going to be many other

speakers. So, I ask the minister, if he is rising, to address this, to deal with

the issue of the definition of a child. Obviously, an eighteen-year-old would be

expected to give an oath, or take an oath, or a declaration, and this wouldn't

apply to him, although, I suspect, the intention here is to deal with children

of tender years as opposed to those who are considered legally children, who

could be seventeen or eighteen years old and legally adults under the Criminal

law but legally children under our

Interpretation Act or under our general law,

the Age of Majority Act.

If the minister would deal with those questions, I would be

very interested, but otherwise, I want to offer my support for the legislation

and for the changes to the Evidence Act.

MR. SPEAKER: The hon. the Member for Waterford -

Kenmount.

MR. HODDER: Mr. Speaker, I am pleased to rise and support

the intent of the legislation in Bill No 16. This is a very useful piece of

legislation, however, I do have a couple of comments I would like to make

relative to the process that many of our children face when they are required to

give evidence in court. I ask the minister, in particular, if he would try to

make our courts a little more child-friendly. Many of the representations I have

listened to in the past have told me that our court systems are not particularly

geared to facilitating the evidence of children.

While there are some very good initiatives in some parts of

the Province, and in particular, I refer to the initiatives of Judge Fowler in

the Grand Falls court system, likewise we have heard some statements made that

would indicate that many of the parents, many of the social workers, and many of

the court workers who are involved in the hearing and the facilitating of the

evidence of children, tell us that the courts are not always very friendly

places for children.

I ask the minister if he would try to address that issue

because there is no point in our saying that the evidence of a child is valid if

indeed we do not make it a facilitating approach. The children in court often

feel very confused. They feel very alone, and the police station is often not a

very good place for the child to be interviewed. We hear from social workers who

say that they are so taken up with their particular social issues that they do

not have time to prepare a child for the giving of evidence. We know that

courts, for anybody, regardless of what age they are, can be, and often are,

very traumatic experiences, so we know that for a child the intensity and the

trauma would be that much more significant. Also, some of the social workers I

have talked to tell us that children do not always have adequate time to spend

with a lawyer before entering the court to give testimony, and that is very

unfortunate. Because sometimes, if a child is not given the opportunity to work

with a child-focused legal representative, then the whole process might be

somewhat jeopardized.

We ask the minister, if he could make sure, when we talk

about the evidence of children, that lawyers have adequate time to spend with

the child and that there are lawyers made available. Right now, we have a

situation in many parts of our Province, where lawyers are made available for

the adults through legal aid but often, getting children ready is a function of

the social worker or the school guidance counsellor, and these people say to us

that they are not trained in the technicalities of the law. It is not their job

to get children ready for presentations in courts and that it is not appropriate

to have a social worker spending days and hours with a child, getting a child

ready for a legal process that even the social worker might find very

intimidating and very trying.

In child abuse cases, Mr. Speaker, the lawyer for the

defendant, who is most often a male, most often a member of the child's extended

family, although not always - lawyers are very aggressive in their defence and

they often take advantage, so I am told, by people who have been into the courts

in these circumstances, they take advantage of the child's unfamiliarity with

the courts. Too often, the emphasis in court is on winning and that means

further victimizing the child. It appears that the system permits it and

facilitates that happening.

So, Mr. Speaker, while we support the bill that is before us

in allowing the evidence of a child to be admitted to the court, we are also

saying, let's try to make sure that the court system does not further victimize

the child. In other words, if we are going to have the same rules set up for a

child as we have for a twenty-eight-year-old, then treating a four-year-old or a

five-year-old in the same system of juris prudence as you would treat a

forty-year-old or an adult then that seem to me not to be a very facilitating

way to go about doing things.

Mr. Speaker, we know that in spite of some of the revisions

that have been contained in, I think it is Bill C-15, the federal jurisdiction,

and as modified in Bill C-26, in spite of these changes that the court system is

still a very rough place for children. Children are treated, as I said before,

as little adults and are subjected to the same rules of cross-examination. As I

said, it is erratic and sad to see that our laws and our courts that are

designed to protect children also expect a child to testify in the same basic

procedures as that given to the adults.

Mr. Speaker, also, I wanted to note that in some of the

dialogue I have had with people who have been in these circumstances,

particularly with school guidance counsellors and social workers, they tell us

there is a wide variation between various courts. They tell us about courts that

are very sensitive to children. They also tell us that there are some court

systems,

whereas one social worker said - and I won't name the court, but she

said: I wouldn't want my child ever to have to give evidence in that court. If

the social worker is saying that, then obviously, there is greater need for

training, for training of judges. The judges have to become more familiar with

childhood issues, with the nature of the child and be as familiar with the

nature of the child as they are with the nature and the purpose of the law.

So, Mr. Speaker, I want to just say again that we should be

facilitating a court environment that accommodates children and their stage of

maturity, and if that means a child giving evidence in an alternate setting

rather than in the open courtroom, then perhaps that should be arranged.

Maybe, Mr. Speaker, we should also address the issue of

accommodating children with disabilities. Some children may not be able to

communicate as well as others. Some children suffer from speech impediments.

They may suffer from learning disabilities that do not seem obvious to the

lawyers or to the judges. We want to facilitate, then, those who have speech or

hearing impairments, and children who may even be autistic, but these children

may be able to tell what is right and what is wrong, what happened and what did

not happen. Sometimes we have to be familiar with the nature of learning and the

nature of communicating if we are going to have real equality for children in

the hearing of evidence.

Also, we should take note of

Section 43 of the Criminal Code

of Canada. I want to reference that because it was stated on the news just a few

days ago by one of the police sergeants in St. John's and it was a commentary in

the local media.

Section 43 of the Criminal Code of Canada says, and I quote:

Every schoolteacher, parent or person standing in the place of a parent, is

justified in using force by way of correction towards a pupil or child, as the

case may be, who is under his care, if the force does not exceed what is

reasonable under the circumstances.

This particular

section of the Criminal Code of Canada

compromises the evidence given by a child. It has been used in many cases

dealing with physical assault against children. A parent or a teacher or a

baby-sitter or a day care worker can use physical force to discipline a child or

student as long as the degree of punishment fits the crime. If we are going to

talk about children and evidence, then we have to define what we mean by what is

permitted and what is not permitted. Until we come to make revisions to the

Schools Act, corporal punishment is still on the books of the Newfoundland

legislation as far as schools are concerned.

When, a few days ago, I discussed this issue with Inspector

Craig Kenny of the Royal Newfoundland Constabulary, he told me that very often

this kind of legislation that still stands in the Criminal Code of Canada

compromises the evidence given by a child. As long as it stands there, then we

have to recognize as legislators that many people who go to court can use that

kind of legal loophole in order to have a child's evidence disregarded in a

court, or in a way, in many cases, as Inspector Kenny said, a great deal of

physical abuse cases that are reported to the police just get filed. In other

words, they don't get acted upon because it is deemed to be within the

constraints or within the parameters of

section 43 of the Criminal Code of

Canada.

With these words and with again a commentary asking to

facilitate a court environment for children that accommodates them, asking for

training for social workers, lawyers, police, Crown attorneys and judges, and

asking as well, that laws that permit children to be physically mistreated

either by parents, as in the Criminal Code of Canada, or in the Schools Act,

that we should have these things eliminated. Then, children will have an

opportunity to be fairly treated and fairly heard in a court of law. Thank you

very much, Mr. Speaker.

MR. SPEAKER: If the hon. minister speaks now, he will

close the debate. The hon. the Minister of Justice.

MR. ROBERTS: Mr. Speaker, I gather from the lack of

people rising to speak that the House wishes me to close debate, and I shall do

so. Let me thank members for their contributions which were substantial and, in

my view, to the point. I will make a comment or two with respect, if I may, to

the comments made by the members who have spoken.

First of all, my friend, the Member for Waterford - Kenmount

AN HON. MEMBER: (Inaudible).

MR. ROBERTS: I am sorry?

AN HON. MEMBER: (Inaudible).

MR. ROBERTS: No, he is certainly not from the Waterford;

no, he is from Waterford - Kenmount.

- made, I thought, a very good point when he spoke about the

- I am sorry?

AN HON. MEMBER: (Inaudible) Waterford.

MR. ROBERTS: The hon. gentleman's colleagues may wish him

there, but we, on this side, do not.

Mr. Speaker, the point made by my friend, the Member for

Waterford - Kenmount, I thought, had a great deal of merit and substance when he

spoke of making courts child-friendly. Now, I don't know whether any hon.

members here have ever had the experience of giving evidence in a court. I have,

in three instances. The funniest one was a number of years ago when I was in Mr.

Smallwood's Cabinet. We adopted a resolution of an Order in Council that added

Bay Rum as an alcoholic liquor under the Alcoholic Liquors Act, and the reason

we added Bay Rum as an alcoholic liquor under the Alcoholic Liquors Act was that

not only was it being used as a drink instead of aftershave, which is what it is

intended to be, but the manufacturers of Bay Rum, or the distributors of Bay Rum

up in Ottawa or Toronto, or wherever they came from, had been on to the liquor

board here in St. John's - this was 1968 or 1969 - and had said: We don't know

what is going on in Newfoundland. You must be the cleanest shaven people in the

entire world, because two-thirds of the Bay Rum being consumed in all of Canada

is being consumed in Newfoundland and Labrador.

Well, a little explanation quickly revealed that a gentleman

who may or may not still be in this world, called Jakie - my friend, the Member

for St. John's East may well know Jakie professionally, either his profession or

Jakie's, I know not. But a gentleman named Jakie was offering an unusual form of

service. If the gin ran out, Jakie was offering Bay Rum and, for all I know, the

stuff did its purpose. It was also dangerous. Anyway, we adopted an Order in

Council, and in due course the Gazette came out and announced that henceforth

and from this day, Bay Rum was an alcoholic liquor in the eyes of the law in

this Province, and it could only be sold at liquor stores. If you wanted Bay

Rum, you had to go in and in one

section next to the cognac and the rum or the

whisky, there was the Bay Rum.

Well, in due course, I was served one day with a subpoena to

appear in what we then called the Magistrate's Court, the Provincial Court, and

when I rang the then Minister of Justice, Alex Hickman, now Chief Justice

Hickman, he said that didn't surprise him; he, too, had received a subpoena.

Another of our colleagues had, and in due course the three of us appeared

before, I don't know, John Pius Mulcahy or Hughie O'Neill, one of the

magistrates, and there at the Bar was the author of this subpoena, Jakie

himself, and Jakie was had up on a charge of distributing or selling Bay Rum

contrary to its being a prohibited... et al. The police had found him with a

truckload of this stuff and he had no explanation, so he said, `Well, that's a

charge on in court.

So Jakie's defence, in part, was hinged on the evidence he

wanted from the three of us. In any event, each of us, in turn, went into the

box, said that yes, we were a member of the Cabinet; yes, the Cabinet had

adopted a... We were being questioned, I think, by Jakie, probably Inspector

King was prosecuting, it was a long time ago. Jakie examined me; yes, I was a

member of the Cabinet; yes, the Cabinet had adopted this Order in Council; and

no, I was not prepared to say why we had. That was contrary to my oath of

Cabinet secrecy, and the Magistrate said that was all very right with him, and

would Jakie get on with his defence. I guess he was convicted and fined twenty

bucks.

What I am trying to say is that giving evidence is a

formidable undertaking for anybody. In that case, it was ultimately

straightforward, but I have been in a witness in other matters as well, and I am

a member of the Bar who has spent a lot of time in court, not as a party or as a

witness but in my role as counsel. It is a formidable undertaking and it must be

particularly so for a child.

We have here in this Province a very good victim service

group who work within my department. We have been able to expand it; it was

begun in the time of my friend, the Member for Humber West when he was minister.

We have been able to expand it in the last three or four years very

substantially, I hope we can maintain it, it is certainly a priority. And what

the eight or ten or twelve or fourteen men and women who work in the victim

services group do is help people through the trial process and children is one

of the groups with whom we work.

We have also had - I will name only one of the Crowns, but a

number of Crowns have gone out of their way - Crowns, of course, are doing the

prosecutions in criminal matters and they have to deal with these things and in

many cases, they are the ones presenting the witness to the court. A lady who is

still a member of the Bar but no longer living or practising here, at least for

the moment, Cathy Knox, was particularly good in working with children and there

are techniques that can be used legitimately to take the child down to the court

to explain, here is where the judge is going to be and here is where you will be

- and you know, it goes through the routine so it is not quite as frightening

when the child comes in to court. And then, too, the Criminal Code, as my

friend, I suspect, knows, has been amended to allow a greater degree of

protection for child witnesses. So we are doing what we can, but at the end of

the day, there is still the fundamental principle that one has the right to

confront one's accusers to know the evidence against one and that must be done

in an open court subject to the safeguards that are in the Criminal Code and

that have been accepted by the Supreme Court of Canada. But I thought my

friend's remarks are well taken. We believe this legislation will help to make

the courts, to use my friend's phrase, child-friendly.

My learned friend, the Member for St. John's East, raised an

issue which was also raised by my friend, the Member for Humber Valley, and let

me deal with it because I think it is very central. My friend, the Member for

St. John's East asked: What is the definition of a child? Now, my learned

friend, the Member for St. John's East is familiar with the process in a court

but hon. members may not be with respect to presenting a child witness. In the

first place, it falls at common law to the trier of fact, the judge, or a jury

to decide whether the evidence is accepted and the weight to be given to it, but

it falls to the judge, if the judge is sitting alone or whether it is a judge

and jury trial - it falls to the judge to supervise the presentation of evidence

and the judge must decide, in that role, whether a young person, understands

what is going on. And I have called child witnesses of twelve and thirteen and

the judge questioned the young man or the young woman and agreed the child was

capable of saying what the truth was, and was prepared, and understood the oath,

or the obligation if it wasn't in the form of an oath or an affirmation. And

that, essentially, is the common law in a nutshell and that's reproduced in 18

(1). And that, I think, has been the practice for many years in courts here. So,

the judge has to satisfy himself or herself that the child knows, and makes a

promise.

Now, whether the promise is under oath or not is irrelevant

in the sense of figuring out whether the child is prepared to make the promise

to tell the truth and secondly, the court, by which we mean in this case, the

judge, is of the opinion that the child understands what it means to tell the

truth and is able to communicate the evidence. Now, there is no definition of

`child' here or in this act. There is no definition. In common law - and I will

come back to the - statute law says it; in common law, a child is anyone who has

not attained the age of majority, which traditionally and at common law was

twenty-one.

The way it is applied in the courts is, a judge will

interview the child in court, in the presence of parties and counsel and will

decide; when I say interview, I mean that the child is standing in the witness

box and the judge, sitting in his or her place on the Bench, will ask the child:

Do you know what the truth is? Do you know what it means to tell the truth? And

then, if satisfied, the judge will allow the witness to be admitted, allow the

evidence to be admitted from the witness with or without an oath or affirmation

as the judge decides is appropriate. That continues.

The change here is to allow a different form of inquiry to be

conducted in addition to the common law one and that's really the significance

of these amendments. You come to 18 (2) and that is essentially a restatement of

the common law, and then you come to 18 (3).

AN HON. MEMBER: (Inaudible) 18 (3).

MR. ROBERTS: How do you mean - 18 (3) is as clear as the

words. If a child does not promise to tell the truth or the court is of the

opinion that the child does not understand what it means to tell the truth - a

two-year-old or a three-year-old may not understand what it is to tell the truth

but the judge may still form the view that that child will be able to give

evidence that is sufficiently reliable. Now, remember, the trier of fact, be it

the judge or be it the jury, depending on the form of trial, makes the

determination as to whether - on the facts itself but -

AN HON. MEMBER: (Inaudible).

MR. ROBERTS: Well, the truth and the weight. But a

three-year-old child could be perfectly capable of saying, `Well, here is what

this man did to me,' even though that child may not know the concept of truth as

we know it. Somebody has to decide that and it falls to the judge. This

section

authorizes the judge to make that inquiry, and at common law that was not

permitted. If a judge at common law concluded that a child did not understand

the concept of the truth or was not prepared to promise it, then that evidence

could not be admitted. So we are changing the common law. We are changing it

only obviously for civil matters, the Criminal Code is not subject to our

evidence act. There is a Canada Evidence Act but, as I said in introducing the

bill, similar changes were found in the Criminal Code, were put under the

Criminal Code two or three years ago, and I referred to those earlier.

Now, Mr. Speaker, that left one other point. Before getting

to that, let me pay a deserved compliment to my friend, the Member for Humber

Valley. I made a note when he spoke, it was on October 16, two weeks past, that

I thought he put the point very well when he said, `if a child can give criminal

evidence, under the Criminal Code, then he or she ought to be able to give civil

evidence under this bill.' And this bill is not a new principle; we are simply

adopting and incorporating into law of this Province a uniform act that has been

mirrored in the Criminal Code. It may not be word for word, I haven't checked,

so I am not going to say.

That left one other point, Mr. Speaker, that members have

raised and both my friend, the Member for Humber Valley and my learned friend,

the Member for St. John's East raises, what is a child in the law of

Newfoundland? Let me give them the answer. There are two statutory enactments in

this Province that speaks to who is a child. The

Interpretation Act, which is a

statute of general application that gives definition to a whole number of words

and phrases, provides that the age of majority, those words mean nineteen but,

in addition to that - and my friend, the Member for Humber Valley may want to

follow this because I assure him it took me awhile to figure this out and I had

help from the Legislative Council because I would never have found - we still

have in this Province an Age of Majority Act, but I will defy any hon. member to

find it.

Let me tell hon. member's, Mr. Speaker, where the Age of

Majority Act is. If one takes the revised Statutes of Newfoundland, 1990 which

came into effect in 1992 or something, when I signed them as the minister and

one goes to Volume 10, after you get through such gems as the Vital Statistics

Act and the Veterinary Medical Act and the ones near the end of the alphabet,

you come to the schedules.

Schedule A is acts omitted from and repealed by RSN,

1990 and that is all very straightforward. Then, we come to

Schedule B -

Schedule B is acts consolidated in RSN, 1990 and that is all very

straightforward. Then, one comes to

Schedule C, acts not consolidated in or

repealed by RSN, 1990. And

Schedule C has a whole bunch of statutes that are

still law, although they do not appear in the consolidations - for example, an

act for the maintenance and operation to the lines of railway from Whitbourne to

Port aux Basques and the branches thereof, adopted in 1893; in fact, we did

repeal that a year or two ago - but in

Schedule C are still law. I will say to

my friend, the Member for Humber Valley, the Age of Majority Act is in

Schedule

AN HON. MEMBER: Why?

MR. ROBERTS: I will come back to why. It is in

Schedule C

along with such gems as the Railway Settlement Act of 1923, the British

Admiralty Property Act of 1947 and other matters that are household words in

homes throughout Newfoundland and Labrador. They are having a meeting a tonight

at Mud Lake in my constituency to talk about the American Bases Supplementary

Leases Act of 1948 which is a very live subject.

Now, Mr. Speaker, more than that, the way the other schedules

and

Schedule C are set together, it is all but impossible to define it because

not only does one have to go to

Schedule C but the acts there are listed by year

of enactment, so you have to go to 1971 to find the particular statute that

bears upon this. Not only that but you have to know enough to find

Schedule C,

you have to know enough to find 1971, and then you have to know that it is

called The Minors Attainment Of Majority Act, 1971. Now, if the purpose of our

statutes is to make the law accessible and available this is surely a classic

example of how not to do it.

I think I have some familiarity with the statutes after

thirty years at the bar, a number of them working one way or another with

statutes, and I could not find it. I asked the Legislative Council and after

half an hour they were able to explain to me what I just explained to the House.

It took them awhile to get through to me because I was all but incredulous.

Anyway, I say to my hon. friend, that is what the law says. The law says it is

nineteen and there will be a

section in the Attorney General's Act, that is the

bill we bring in every year to clean up all the errors that have been found over

the previous twelve months in statutes.

I have given instructions, as Browning had the Duke say in My

Last Duchess, I have given instructions. There will be a

section in that act

that deals with the age of majority and we will put it back in where it is

successful in the statutes. Nobody would ever find it, I would suggest, where it

now is. I do not want to try and second guess the consolidation process. The men

and women who did it did a brilliant act, but they just got this one wrong in my

opinion, and we will pick it up.

AN HON. MEMBER: When will be the next consolidation?

MR. ROBERTS: The next consolidation will not be for ten

or fifteen years, but it will be picked up in the next one, I assume.

MR. TOBIN: That's so boring, Mr. Speaker.

MR. ROBERTS: The hon. gentleman may think it is boring

but he is living proof of the need for an Age of Majority Act. I must say that

is not bad, is it, for once? I told my friend for Burin - Placentia West -

AN HON. MEMBER: Are you sure those are friends you are

talking about all the time?

MR. ROBERTS: Well, compared to the crowd over here they

are. I told my friend for Burin - Placentia West last night that nobody would

believe that I was not paying him handsomely to set up these straight lines, and

the answer is I am paying him what he is worth. I know it is not very much but

there is a minimum wage law and I must respect that.

Mr. Speaker, with those few brief remarks and that trip

through the byways and highways of

Schedule C I believe I have answered the

points raised by my friends opposite, and I move that the bill be read a second

time.

On Motion, a bill, "An Act To Amend The Evidence Act," read a

second time, ordered referred to a Committee of the Whole House on tomorrow.

(Bill No. 16)

MR. ROBERTS: Tomorrow, Mr. Speaker, not withstanding the

demands. Would you be good enough to call Order 16 which is Bill No. 33, "An Act

To Amend The Jury Act."

Motion, second reading of a bill, "An Act To Amend The Jury

Act." (Bill No. 33)

MR. SPEAKER: The hon. the Minister of Justice and

Government House Leader.

MR. ROBERTS: Thank you, Mr. Speaker.

All I have to do is find the speaking notes, and here they

are.

MR. W. MATTHEWS: The jury is out.

MR. ROBERTS: Mr. Speaker, the hon. gentleman for Grand

Bank may think the jury is out and I will say on him it is, just as the tide has

gone out on him as well.

MR. SULLIVAN: I think the age of majority (inaudible)

MR. ROBERTS: The age of majority in this Province is

nineteen in the present statute, and I say to my friend for Ferryland that we

will be dealing with it in the Attorney General's Bill and it will be eighteen.

MR. SULLIVAN: You cannot even go on a jury now.

MR. ROBERTS: You cannot go on a jury now but you will be

able to if this - one can vote at eighteen. The age of majority is nineteen.

There are any number of anomalies, I say to my friend for Ferryland in the law.

We will be dealing, in this session, with a new limitations act and it will be

referred to a committee, I would hope, and the committee may want to hear

representations on it. We will be dealing with the age of majority in another

context there because the common law, which is still good law in this Province,

the common law says that a child, i.e. someone under the age of majority, may

not make a contract that is enforceable against that child, so if an eighteen

year old goes to buy a motor vehicle and signs a contract, the young person may

enforce that contract as against the person selling the car, or the truck,

whatever it is, but the person selling may not enforce it the other way around.

MR. SULLIVAN: (inaudible) sell cigarettes.

MR. ROBERTS: Yes, because we have no law that says -

AN HON. MEMBER: (Inaudible).

MR. ROBERTS: No, that is true. We have no law that says

how old one must be to work in a confectionery store that sells cigarettes. We

do have one that says how old you must be to serve in a liquor - yes, but my

friend for Ferryland is correct. Unless we are prepared to bring in a law that

says now either: Thou shalt not sell cigarettes in a groc. and conf., a

confectionery store, or we are going to say nobody under the age of... is it

nineteen to smoke?

AN HON. MEMBER: (Inaudible).

MR. ROBERTS: No, but I mean, unless we are prepared to

bring in a law that nobody under that age, the age for smoking, whatever it is,

may work in a store, then we do have the anomalous situation that one may sell

something that one is not legally old enough to buy. In any event, when we come

to the limitations act there will be a provision in that that deals with this

question of children contracting. My own view is that we should lower it

somewhat, because what was good law 200 years ago, 100 years ago, when the

common law principles were developed is not good law today.

AN HON. MEMBER: (Inaudible).

MR. ROBERTS: I'm sorry? Yes, of course. I was twenty-one

before I cast a vote because that was the age in those days. Now it is eighteen,

Mr. Speaker, and I don't think anybody would quarrel with setting eighteen at

the very minimum as an age when a young man or a young woman is an adult for all

purposes.

MR. TOBIN: (Inaudible).

MR. ROBERTS: Mr. Speaker, I would rather sit on the hon.

gentleman's competency hearing.

MR. WOODFORD: (Inaudible.)

MR. ROBERTS: Oh yes, I agree with my friend for Humber

Valley that the world comes on us now far earlier than it did years ago.

Let me come back to the jury act amendments, Mr. Speaker.

AN HON. MEMBER: You could send them off to war at

eighteen for years.

MR. ROBERTS: Oh yes. Let me come back to the jury act

amendment, Mr. Speaker, if I might. These amendments are quite straightforward

and they are described in the explanatory notes. I will not go through them at

any great length but let me just refer to them briefly.

The major principle that this bill would make into law

assuming it is accepted by the House is the one that I've just been chatting

with members across the House on.

SOME HON. MEMBERS: (Inaudible).

MR. ROBERTS: I thank my colleagues for their earnest

attention. I will do the same to them when they are up trying to introduce a

piece of legislation.

AN HON. MEMBER: They are praising you.

MR. ROBERTS: If they are praising me I wish they would do

it out loud, please. Not loudly, but out loud.

Mr. Speaker, the major change that we are asking the House to

enact is to lower the age at which a person may be summoned for jury duty. Of

course, this act applies to any jury, civil or criminal. We very rarely have

civil juries in this Province but criminal juries of course sit, well, certainly

daily, and many a day on most days.

AN HON. MEMBER: (Inaudible).

MR. ROBERTS: Mr. Speaker, as I've always said, I would

rather sit on my hon. - the gentleman for Burin - Placentia West has his

competency hearing, which will be any day now. I would be happy to attend on

that.

Your Honour, the proposal is to change the age for jury duty

from nineteen to eighteen. The reason for that is really very straightforward.

In the eyes of society today a young woman or a young man who is eighteen is a

citizen. One of the prime responsibilities of being a citizen in my view is the

right and the responsibility - I'm one of those who believe that rights bring

with them responsibilities - to serve on juries. It is a fundamental principle

of our system that one is condemned by a jury of one's peers. That applies only

in respect of serious offences. I believe it is five years or more under the

Charter. I don't have it in front of me. But if one looks at

section 11 of the

Charter, I think that is the requirement, five years or more.

The principle is that before one can be condemned one is

subject to judgement by a jury of one's peers. That principle can be traced back

that we shall be judged by our peers. In fact in England I suppose it is still

technically possible for a peer of the realm to be judged by the full House of

Lords sitting as a jury, and if that is not law it was removed only recently,

and that reflects the fact that the peers of peers are peers. Commoners were

judged by juries of commoners.

In any event, that is what we seek to do, and that is in

clause 1, which simply changes the word `majority' to the word `eighteen', and

that is how we get around this confusing situation I described earlier with

respect to what is the age of majority.

The next series of amendments are really procedural. They are

not substantive. Each has an importance in its own right and will make the jury

process go a little more smoothly and effectively, I am advised by the sheriff

and by the officials charged with running the process.

Clause 2 -

AN HON. MEMBER: (Inaudible).

MR. ROBERTS: Yes, I say to my hon. friend from St. John's

East, it is important. It broadens somewhat the scope of people who are eligible

to be called for jury duty. The law now says that - I will just look it up to

make sure I do not misquote it here - the law now says that a person who has

been convicted within five years of the taking of the jury list of an offence

for which the punishment could be a fine of $1,000 or more, or imprisonment for

more than one year, or is ineligible for jury duty.

We are changing that now to provide that the people who

cannot be called for jury duty are, first, a person charged with an indictable

offence. Now that is a charge not disposed of, but a person charged with an

indictable, i.e., the more serious offences. A person charged with an indictable

offence is not eligible for jury duty until that charge is disposed of.

Secondly, we declare ineligible a person who has, within five

years of the taking of the jury list, unless through (inaudible) pardon -

remember the Law of Canada does provide for a pardon in criminal matters - that

person has served a period of imprisonment or other detention for indictable

offence without the option of a fine.

Now those words are an attempt by the drafters, and I think a

good attempt, to capture serious offences. So if one is charged with an

indictable offence but has not stood trial or had the matter disposed of -

AN HON. MEMBER: (Inaudible).

MR. ROBERTS: It says that, a person charged with an

indictable offence.

AN HON. MEMBER: (Inaudible).

MR. ROBERTS: Mr. Speaker, if my hon. friend is saying

that any person charged with an indictable offence, even though it has been

disposed of, let's say found not guilty for an example, cannot be called for

jury duty, then I think he is wrong but I will ask the Legislative Council. I do

not pretend to be a drafter. I will ask the Legislative -

AN HON. MEMBER: (Inaudible).

MR. ROBERTS: Charge? No, charge is quite straightforward,

I say to my friend from Ferryland. I will ask the Legislative Council to have a

look at that. If, in fact, it is open to that

interpretation then we will move

an amendment at committee stage. In fact, I will go so far as to say I will ask

my hon. friend to move the amendment provided he does it in words done by our

drafters.

Certainly, the principle we are trying to do is where a

person has been charged, and an undisposed of charge, and I do not know if the

words are capable of the

interpretation my hon. friend has put forward.

The second

part is an attempt to capture serious offences,

people convicted of serious offences.

That, then, brings us into the exemption clauses. These have

been done essentially at the request of the sheriff and the officials who have

to make this system work. The present system is cumbersome. This one, we

believe, is a step forward. Again the words, I think, are very clear and very

straightforward. They specify who can be exempted. They specify the process -

AN HON. MEMBER: (Inaudible) provincial court judges?

MR. ROBERTS: Why are we taking it away from provincial

court judges? I say to my friend from St. John's East, the provincial court

judges have asked to be relieved of this. It is simply a burden on them. There

is only one sheriff, but if there are adequate deputy sheriffs throughout the

Province then the system, I am told, will work. The provincial court judges tell

me that it is simply a burden on them. It is also - my friend would not be aware

of this, I am sure, but there are lawyers who charge for making these

applications. Judging from his demeanour, he has not. I am surprised; it must be

the only thing he has not charged for in the course of his practise. In any

event, it is no longer necessary. All that need to be done is send a message to

the sheriff on the proper application form and it will be dealt with.

Mr. Speaker, there are two other changes that I would draw to

the House's attention. The first is found in

section 6, which amends subsection

20.(3) of the act. That allows us to move into the computer age in drawing

juries. We now draw panels by hand. There is a big barrel down in the court and

the Sheriff's hand goes down and out comes a name and that person is - the panel

is seated there and that person's name comes forward and is then dealt with in

accordance with the procedures. This allows the use of other methods. I'm told

we are thinking of computers.

I don't know quite how it works but I'm assured it does work.

In fact, somebody told me - I should ask my friend, the Member for St. Barbe

this - that the 6/49 numbers are selected by computer as opposed to being drawn.

I'm still back in the bit where you draw the white ball and say: Under the B,

five, and under the G, sixty-six, or whatever the numbers are.

AN HON. MEMBER: (Inaudible).

MR. ROBERTS: Sixty-six is under the O, is it? I ask my

friend, the Member for Ferryland. Sixty-six is under O?

AN HON. MEMBER: (Inaudible).

MR. ROBERTS: Under O.

MR. SULLIVAN: (Inaudible).

MR. ROBERTS: Every fifteen. It has been years since I

played bingo, I say to my friend, the Member for Ferryland, but I will take him

on in some wagers on other things if he wants.

The two other things we are doing that I'm sure will catch

the interest of members - they will be up all night thinking about this one -

the first is we are providing - this is in

Section 8 - that a person who is

getting a pension except other than a monthly guaranteed income supplement or a

spouse's allowance under the Old Age Security Act of Canada or a pension under

the Canada Pension Plan, that any other person receiving a pension shall not be

able to qualify for or to claim reimbursement for serving on a jury.

The principle of jury service is that one does it as a

citizen's duty. There is a

section in the act that says that an employer cannot

dock a person's wages when that person is called for jury duty. We had a

problem, Mr. Speaker - I think it was the Rideout

AN HON. MEMBER: (Inaudible).

MR. ROBERTS: Well, the unemployment insurance we've

straightened up.

- the Rideout trial in Corner Brook years ago which went on

for about a year, George Rideout on criminal charges. There was one juror who

was the single employee of a business. The business had an owner and one

employee, and as luck would have it, the employee was selected for jury duty on

the Rideout trial. It went on for a year. We had to make a special arrangement

to compensate because the employer just would have gone out of business. It is

okay if it is Newfoundland Tel or the government or some large enterprise, but

in that case, we did make a special arrangement.

AN HON. MEMBER: (Inaudible).

MR. ROBERTS: I beg your pardon?

AN HON. MEMBER: (Inaudible).

MR. ROBERTS: My understanding, I say to my friend, the

Member for St. John's East, is that the UI problem has been resolved. So members

are aware that we were running into a problem in areas of the Province with

significant numbers of people on UI where they were not eligible for jury duty

or they could not come because they would be cut off; like my friend, the Member

for Burin - Placentia West, who is frequently cut off - sometimes cut up,

sometimes cut down, but often cut off.

The other thing which I'm sure my friend, the Member for

Burin - Placentia West will be deeply interested in, Mr. Speaker, is this:

Section 43.1(1), and I won't read it all, but I say to my friend, the Member for

Burin - Placentia West that the next time he is called for jury duty, as in fact

he can't as long as he is in here. If he is called for jury duty and he gets a

parking ticket, all he has to do, if that parking ticket is as a result of

answering the summons or serving on the jury, is to go to see the Sheriff, and

as long as the Sheriff is acting in a manner prescribed by the

Lieutenant-Governor in Council by regulation, the Sheriff may cancel that

ticket.

MR. HARRIS: That is the Bas Jamieson (inaudible).

MR. ROBERTS: I'm sorry, is it the...?

MR. HARRIS: That's the Bas Jamieson amendment.

MR. ROBERTS: I say to my friend, the Member for St.

John's East, he has a deeper acquaintance with Mr. Bas Jamieson than I do, but

did Mr. Jamieson get into this problem?

AN HON. MEMBER: (Inaudible) City Hall.

MR. ROBERTS: Oh, okay.

MR. TOBIN: (Inaudible).

SOME HON. MEMBERS: Oh, oh!

MR. ROBERTS: Mr. Speaker, what do I do with the Member

for Burin - Placentia West? He is like one of these roly-poly balls that we used

to have as kids. You know, it has a big weight in its bottom, and he certainly

has a big weight in his bottom - all you have to do is look at it and you see it

-, and you tap him and he rolls over - he is a bit of a pushover I'm told, by

those who know him - and he bounces back. You tap him again, and the big weight

in his bottom, which you can see whenever he takes him over, but no, he pops up

again. I mean, what can you -

MR. SULLIVAN: Get to the bottom of (inaudible).

MR. ROBERTS: The hon. gentleman, the Member for Ferryland

may want to get to the bottom of the Member for Burin - Placentia West, but I

don't, I assure him. I assure him I do not want to on grounds of taste or

morals.

MR. SULLIVAN: (Inaudible).

MR. ROBERTS: Now, Mr. Speaker, we are being taken away

from the amendments to the Jury Act. We are being dragged away and I apologize

to the House for allowing my friend, the roly-poly bottom weighted gentleman

from Burin - Placentia West to drag me away like this. I would agree that my

friend, the Member for Ferryland has bottomed out many times.

MR. FUREY: Is that Lynn in a new costume?

MR. ROBERTS: No, I say to my friend, the Member for St.

Barbe, it is not Lynn in new costume, but when the hon. gentleman from Burin -

Placentia West moved from his seat to that of the lady from Humber East, he

raised the electoral level of each seat. He can stick on that one for a bit.

Your Honour, with that said, I move the bill to be now read a

second time and we will deal with comments from the gentlemen opposite if they

wish to make them. Thank you.

MR. SPEAKER: The hon. the Member for Humber Valley.

MR. WOODFORD: Mr. Speaker, all of the things that the

minister said, pertaining to the revisions and the amendments of this Jury Act

and some of the questions that I had to ask of the minister has already been

asked by my colleague, the Member for St. John's East. One thing I would like

for the minister to check into, and he referred to it in the last part of the

amendment, was whether someone on unemployment insurance, who was called for

jury duty, would be able to receive UI. I've heard this before the hon. member

brought it up; I've heard some comments on it that people who had been called

for jury duty have been told by Manpower, by UIC that they cannot receive UI,

they were cut off - that they would not be receiving it.

MR. ROBERTS: They were not available to work.

MR. WOODFORD: Yes, exactly. That is the exact reason that

was given to them; they were not available to work.

MR. ROBERTS: It is a requirement, as my hon. friend may

know, for UI, that one would be available for work.

MR. WOODFORD: Exactly, it is the same thing as going to

school and then they were taking so many subjects they got - but in this one

here they will be cut. And the other question I ask the minister: How much is it

- the amount that may be prescribed, does that depend on the individual's

income, what he or she is involved in or what? What amount - is it six dollars,

five dollars?

MR. ROBERTS: It is a per diem amount. I don't know how

much it is, but you ain't going to get rich on jury duty.

MR. WOODFORD: No. In the same section,

Section 43 (2) as

the amount prescribed. If I am not mistaken they used to get five dollars, was

it?

MR. ROBERTS: It is better than that but I will find out.

MR. WOODFORD: But it is on a per diem basis?

MR. ROBERTS: Yes.

MR. WOODFORD: The other section,

Section 4 (1) where the

Sheriff can now compile a list of the names and addresses, just a question

there. The enumerations are done, anyway, by the Chief Electoral Office, so I

take it for granted that what the Sheriff does in this case is just get the list

from the Chief Electoral Office, and he, in turn, compiles the jury list for

people living within that 25 kilometres of the city? So that doesn't have to be

done a second time, that is done in any case. That is all, Mr. Speaker - but

especially that one pertaining to the UI, because the minister himself referred

to that earlier and it is a question, I am sure, that will come up again if it

is not addressed.

MR. SPEAKER: The hon. the Member for St. John's East.

MR. HARRIS: Thank you, Mr. Speaker.

I just have a few remarks on this bill. I made a number of my

comments across the floor of the House to the minister while he was making his

address in order to facilitate the questions being dealt with instead of having

to repeat them. So I won't dwell on some of these things. I will just say though

that we seem to have had more amendments to the Jury Act since the former Member

for Grand Bank has been made the High Sheriff than we have ever had before.

MR. W. MATTHEWS: What was that?

MR. HARRIS: Ever since the former Member for Grand Bank

has been made the High Sheriff of Newfoundland, we seem to have more amendments

to the Jury Act then we have ever had before.

MR. W. MATTHEWS: It needs to be amended again -

(inaudible) job, I'd say.

MR. HARRIS: I suspect that the High Sheriff of

Newfoundland is carrying out a one-man lobby to the Ministry of Justice on an

annual basis, if not more often, to seek amendments to the Jury Act but I do

think on the whole -

AN HON. MEMBER: (Inaudible).

MR. HARRIS: Now, listen. He is not listening.

MR. ROBERTS: (Inaudible).

MR. HARRIS: No, I say to the minister that ever since the

former Member for Grand Bank has been made the High Sheriff, there appears to be

a one-man lobby to the Ministry of Justice to seek improvements to the Jury Act

and I think, over the last several years there have been significant

improvements to it. I see there are some more refinements here in this act and I

think that, on the whole, they seem to provide for a more efficient system.

I will say something about jury trials while I am on my feet,

Mr. Speaker. It is a fact that in this Province, in the last fifteen years since

I have been admitted to the Bar, the number of jury trials and the use of juries

by defendants in criminal trials has increased very, very substantially. There

was a time, and when I was admitted to the Bar in 1980, that the only time you

would see a jury trial was in a very serious offence such as murder, at least in

St. John's - outside of St. John's it was more common; in Grand Falls it was

quite common to have jury trials in certain matters, cases of rape or alleged

rape or criminal negligence causing death, those types of trials where a jury

was considered to have a point of view on a case that would be presumably

somewhat more sympathetic to a defendant, in some circumstances, or at least it

was thought that way and people would choose a jury.

There was an exception, the exception was in Labrador, very

common to have jury trials in Happy Valley - Goose Bay, and I don't know how

that practice developed but it was very common to have jury trials in Goose Bay

even around the time of 1980 and thereabouts when I was first admitted to the

Bar. It would have been considered by most judges in St. John's that to have a

jury trial, even though you had a right to a jury trial for an offence that was

not one of the more serious charges, it would have been considered out of line,

and the court would not look too kindly upon a lawyer who advised a client to

have a jury trial for a matter for which it was not a tradition to have one.

But in the last ten years, it has been a very common

occurrence to have jury trials for even matters such as armed robbery or break

and enter sometimes, occasionally where the defendant feels that a jury trial is

available to him or her. On the civil side we have had provision for jury trials

for many years. I am only aware of two that have had a jury trial, one involved

a personal injury claim, where a jury was sought to determine an issue with

respect to liability, but it is a rare event on the civil side. But because of

the large number of jury trials on the criminal side, it has been necessary to

streamline and make more efficient the jury system.

It is, as the minister said, a very old and revered tradition

in our legal system, what is sometimes known as the anglo-American legal system,

basically the British system of justice as taken across the waters and revised,

to a certain extent, by each jurisdiction including our own, to accommodate the

local circumstances, the local conditions and the changing notions of justice.

19th Century devised this Criminal Code, but they did not adopt it. They devised

it, but it was adopted by Canada and the British criminal law sort of meandered

upon it with various little acts from here and there, and with common law crimes

still possible in England -

AN HON. MEMBER: (Inaudible).

MR. HARRIS: Yes, of course, Newfoundland's constitutional

history being parallel in that regard to England up until the time of

Confederation, certain common law crimes, conspiracy and other matters, and with

very lengthy sentences possible without codification, without the control of the

Legislature over the types of sentencing and the nature of sentencing, of course

when we became citizens of Canada and a part of Canada we were also under the

Criminal Code, which has at least provided a document where citizens and lawyers

and law students could know what the law was in one place, and if it was

necessary for Legislatures to change it, they had it there before them, and the

history of various sections in the codified and annotated codes in order to

change it.

The jury system is an important part of that, although I

think it comes under criticism from time to time because there are circumstances

when a jury may, in fact, acquit someone who no judge would acquit, because the

judge would apply the law the way it is written, the way it is codified, and

rely on the evidence, but a jury may, despite the evidence and despite the law,

find someone not guilty.

AN HON. MEMBER: O.J. Simpson.

MR. HARRIS: O.J. Simpson may be an example of that,

although the members of the jury who are under the American system are allowed

to talk about their deliberations and what they did afterwards, not during, have

said that they did not accept the evidence. They have not said that they

believed he was guilty, but they acquitted him because they did not like the

system.

There are lots of cases where, historically at least, in

political circumstances, juries have acquitted despite the apparent guilt of

certain accused persons. It is very common in Ireland for juries to acquit

certain individuals of criminal offences because they believe the offences and

the laws and the actions of the police were oppressive to the Irish people, the

to get a jury to convict someone of a crime which was perceived as either a

political crime or a crime arising out of the oppression of the Irish people by

Similarly, coroners' juries in the Irish Republic, or what

was prior to the Irish Republic, would find, in cases of starvation, verdicts

against the British Government for causing the starvation of children by their

policies and by, again, their oppression against the Irish people.

So the jury system requires a unanimous verdict. All members

of a jury must agree either to acquit or to convict, and that provides a

protection in our system.

AN HON. MEMBER: That is in criminal.

MR. HARRIS: That is in criminal. In a criminal case there

must be unanimity in order to have a verdict. Now, you can have a hung jury -

AN HON. MEMBER: Or a hanging jury.

MR. HARRIS: Sometimes you have a hanging judge or a

hanging jury - not any more, not in this country, and never, I hope, in this

country, despite the efforts of certain members of our federal Legislature to

try and change that.

The hung jury, of course, is not all that common. Strangely

enough, the twelve men and women on a jury come to a conclusion one way or the

other either to acquit or to convict and for an accused person whom, our system

says has the right to be considered innocent until proven guilty, that is a

protection. He doesn't have to convince the judge that he is not guilty or that

there is a reasonable doubt, if he has twelve people on a jury all he really has

to do is, convince one. All he really has to do is convince one not to convict

and that there is a reasonable doubt as to his guilt and he or she is entitled

to go free or at least not to be convicted and that is a great protection in our

system because our system believes, despite the sometimes law and order

mentality that exists, that it is better for 100 or ninety-nine people who are

in fact guilty to go free than it is for one innocent person to be convicted and

jailed, and I think that that's a good principle.

We don't have a perfect system and everybody who commits a

crime does not go to jail or even get caught. For every person who is charged

with a crime, there are probably countless others who have committed the very

same crime and gotten away with it, so we don't have a perfect system to start

with.

MR. WOODFORD: In a civil case, (inaudible) is it the same

as in the States where they have nine.

MR. HARRIS: Our civil juries I think are nine, yes.

MR. WOODFORD: The same thing?

MR. HARRIS: I believe it is nine in a civil jury here and

a majority is all you need in a civil jury because the stakes in terms of the

freedom of the individual are not as high and the same principles don't apply,

but I think that's a very good system. People say: how can you see a guilty

person be acquitted of a crime? Well, guilty people go free of crimes every day.

Every day there are people driving on the highway breaking the law, the

breathalyzer law, driving while impaired; not all of them are caught, not all of

them are convicted so we don't have a perfect system, we don't automatically be

convicted because we have committed a crime, there has to be due process of law

and we have a law and a jury system that protects that due process.

As I say, it is not perfect. There are those who are

convinced that O. J. Simpson is guilty and yet he has been acquitted; not found

innocent as some people like to say. I remember there was a case here a couple

of years ago, where an individual was acquitted of a criminal charge, an

employee of government in fact, acquitted of a criminal charge and then fired

from his job and went through an arbitration process and the arbitrators refused

to reinstate this person. For a couple of years, there was a big campaign in

this Province, newspaper editors, former members of this House writing in

columns in the newspaper proclaiming the innocence of this individual saying

that he had been acquitted, and found innocent by a jury of his peers.

Well that wasn't the case, they didn't say he was innocent,

the person was found not guilty. The evidence in the trial was insufficient to

convince the jury that the person was guilty beyond a reasonable doubt for

whatever it was he was charged with and that's a very different determination in

saying that he did nothing wrong. It is very different in saying that he was

innocent of any wrongdoing, therefore ought to be immediately reinstated in his

job.

AN HON. MEMBER: (Inaudible).

MR. HARRIS: The member raises a good point. What about

due process in .05? Well, you don't get a jury trial with .05. That's a very

arbitrary law. A very arbitrary law brought in by the Minister of Works,

Services and Transportation to try and further his own reputation as having done

something, but he would have been far better off bringing in a law which

provided for graduated drivers licences, so that new persons getting their

drivers licences would have to earn the right to drive at night, perhaps, or

drive on the highway, or drive with more than one or two or three people in the

car.

We see constantly time and again, young people in particular,

but this wouldn't be aimed particularly at young people, but inexperienced

drivers who are sometimes young people going out three and four and five in a

car carrying on, radio blasting high, unable really to pay the kind of attention

that a new driver would need to pay in order to become experienced and to

properly manage a dangerous vehicle on the road.

That would have been a far better measure to bring in than

the .05 per cent. There is no due process with the .05 per cent law, I say to

the Member for St. John's East Extern. In fact, it is a law which says that you

are not entitled to due process. If you blow .05 per cent we take your licence

for twenty-four hours and charge you $100 to get it back. There is no due

process at all. The jury system provides for a due process and for a special

protection for individuals.

There are some countries which regard the jury system as

antiquated, as old-fashioned, as unfair. But it is something that we in this

Province and in the legal profession hold fairly dear as the last protection of

the individual against tyranny. It stands as a bulwark between the potential

tyranny of the state and the individual. That is the political dimension of this

right to acquit someone who may otherwise be found guilty, or may have in fact

done the deed.

That was the appeal in the O.J. Simpson case to the jury.

Johnny Cochrane in his summing up to the jury said that: Whether or not - I

don't know if he said "whether or not." I think he said that a message must be

sent to the system, to the L.A.P.D., the police department, that racism should

not and will not be tolerated. That the manufacturing of evidence should not and

would not be tolerated. That perjury in a trial to achieve a conviction should

not and would not be tolerated. They invited the jury to use that case as one to

send a message to the system that the system had failed to guarantee justice to

the black citizens of Los Angeles.

O.J. Simpson was not your ordinary defendant. He didn't have

your ordinary `dream team.' Very few people who find themselves before the

criminal court have the resources to supply themselves with the legal talent

that O.J. Simpson had available to him. How much did it cost? I've heard the

figure $5 million. They say that Johnny Cochrane's bill alone was $600,000, and

he had a defence team of five or six people. They had a lot of talent and they

showed it. I suppose that is one of the unfairnesses of the system as well, that

the defence of an O.J. Simpson is not the defence of a Bart Simpson. Bart

Simpson wouldn't get the same defence as O.J. Simpson. Bart Simpson would

probably try - he would be looking around for a legal aid lawyer and hope for

the best.

One of the things that the O.J. Simpson trial has done, I say

to the Minister of Justice, is that everyone now wants an O.J. Simpson defence

and they want their lawyer to provide it, and they are going to legal aid to get

it. You can hardly blame people for wanting to have a proper defence. Many

people who are charged with offences feel that the system is against them. One

of the protections we do have is the jury system. People, by watching the O.J.

Simpson trial on t.v., despite its soap opera atmosphere and the star quality of

the characters, whether for the defence or the prosecution, the lawyers, the

judges, and everybody who was participating, the defendant himself, people have

to look at the inside of how a jury system works and how, in fact, at the end of

the day twelve ordinary people are deciding the fate of a criminal case, even

one as important as one which decides the fate of whether or not Mr. Simpson was

to spend more time in jail. He had already spent fifteen months in jail awaiting

trial, but whether or not he was guilty of that offence and should spend the

rest of his life in jail which was based on the charge before him.

With those few remarks I have not talked much about the bill.

As I indicated to the minister the sections I was concerned about I raised. I do

see the value of the changes that are here. I would hope that the authorization

of the sheriff to cancel parking tickets does not become a temptation to the

sheriff, or to the sub-sheriffs, to cancel a few extra parking tickets. I think

that is a pretty substantial power to give someone. It is very petty, $5 here,

$10 there, but quite often there are abuses that can creep into any system and

temptations can arise. No doubt there will be people who do not qualify for

tickets to be cancelled who will approach the sheriff and say, how about this

one? I want you to cancel this one because you have that power.

It is not a power I would want to have, Mr. Speaker, because

I am sure hon. members in this House would probably be knocking on your door.

Look, boy, why do you not fix this one up for me?

MR. L. MATTHEWS: I do not think there is much point in me

going to see the Sheriff about mine.

MR. HARRIS: Well, I would say that the High Sheriff of

Newfoundland would sure look favourably on the Member for Grand Bank,

representing his old constituents. Did you defeat him in the election?

MR. L. MATTHEWS: Yes.

MR. HARRIS: Well, I would not be the one, I say, going to

see the High Sheriff trying to get your tickets cancelled, or see him about

anything. I do not know if he holds grudges.

MR. L. MATTHEWS: His is a good fellow. He is Ed's buddy.

MR HARRIS: I do not know if the High Sheriff holds

grudges, but I do know that he has been very active in lobbying the Minister of

Justice to change and improve the Jury Act, and we have seen considerable

changes in amendments over the last few years. I do not think the current

Minister of Justice appointed the High Sheriff. I think he was appointed even

before the current member was in the House this time around. I think. I am not

sure. It may have been the previous Minister of Justice.

Anyway with these few remarks I have indicated my support for

the Jury Act. I understand the Minister of Employment and Labour Relations is

going to speak on the Jury Act for the next half hour, so I will take my seat

and allow him to rise and speak.

MR. SPEAKER: If the minister speaks now he will close the

debate.

The hon. the Government House Leader and Minister of Justice.

MR. ROBERTS: Mr. Speaker, I want to congratulate my

friend for St. John's East on his brief, witty, trenchant, and altogether

forceful presentation. Let me deal with one or two of the points which he has

made. He asked about the compensation we pay for jurors. The note which I

received from my officials says that a juror who is employed, on social

assistance, or UIC, continues to receive their normal pay or benefits, otherwise

a juror is paid minimum wages which is $4.75 an hour.

Mr. Speaker, this government is addressing that issue, unlike

my friend for St. John's East. Anyway, that is what jurors are paid and certain

expenses of jurors are also reimbursed. I do not know all the details but I know

there is a set scale. I don't think that financial problems are causing any

concern for people serving on juries. I have not heard of a case where - except

the one in Corner Brook, I mentioned, where service on a jury has wreaked a

financial havoc. Businessmen may be reluctant but that is probably a good reason

why they should, Sir. Serving on a jury is a very important part of being a

citizen in my view.

My learned friend went on at great length about the role of

juries and I would agree with what he said. Juries play an essential role

particularly when they choose, for their own reasons, to refuse to convict. We

have in this country a rule, a very strict rule, difference from the American

rule that no one may ask a juror what he or she has voted or why and I think

that is a wise rule. The Americans have a different proceeding and when the O.J.

Simpson trial was over there was a rush of jurors, as I recollect, several at

least were rushing out to get on the Dave Letterman Show or the Larry King Show

or whatever to tell: here is what went on in the jury room. We don't allow that

in Canada.

AN HON. MEMBER: (Inaudible).

MR. ROBERTS: Well, in fact I was going to come to the

Morgentaler case because Dr. Morgentaler has made the law in two respects in

this country, one of them was on juries. Dr. Morgentaler was charged in Quebec,

time and time again, by the then Government of Quebec - this would have been

Jan Lasage's time, a long time ago -with performing abortions. Juries

consistently refused to convict him. That is a clear case where a jury said

simply the law is wrong and that is what it means when a jury refuses to

convict. A number of juries refused to convict him. The Court of Appeal then not

only overturned the acquittal but convicted him and the result of that - in

fact, it was so long ago that Mr. Diefenbaker was Prime Minister - that Mr.

Diefenbaker's Government introduced an amendment to the Criminal Code then - it

is still law - that says a Court of Appeal may not substitute a conviction for

an acquittal. It may order a new trail -

AN HON. MEMBER: Called the Morgentaler amendment.

MR. ROBERTS: It may be called the Morgentaler amendment

but in any event, that is a clear case where a jury has been an advance to

parliament and it made the point. My friend from Windsor - Buchans had a

question?

MR. FLIGHT: (Inaudible) O.J. Simpson?

MR. ROBERTS: I don't know what the O.J. Simpson case

means, I say to my friend but that was a clear case where the jury - I mean a

jury that is only out four hours after a trial the length of that was sending a

message and they chose not to convict. I guess in the States you can ask why and

debate it but sobeit. In fact one of the most important rights of a jury is to

do what they wish, even if it is to use a phrase judges have sometimes used,

perverse to the law. My understanding of law, there is no such thing as a jury

that is perverse to the law. If they have been properly directed and they bring

in a verdict, that is the end of it. A Court of Appeal may order a new trial if

there has been improper evidence admitted, if proper evidence has been

improperly excluded or if a jury has been misdirected on the law by the judge

but that aside, a jury's verdict is sacred and stands.

My learned friend could not resist taking a cheap swipe at

the old .05. He knows full well that is not a jury situation, not a criminal

sanction. My understanding, my friend from Port de Grave, the Minister of Works,

Services and Transportation has referred to this in the House, is that the .05

has been a great success in this Provin