Manitoba Hansard — 10 March 1980 (Sitting 13B, 31st Legislature, 4th Session)

31-4-13b

Manitoba — Debates (Hansard)

Time: 8:00 p.m. LEGISLATIVE AS SEMBLY OF MANITOBA Monday, 10 March, 1980 CONCURRENT CO MMITTEES OF SUPPLY SUPP LY - ATTORNEY-GENERAL MR. CHAffiMAN, Mr. Morris McGregor (V irden): Call the committee to order. We're on Resolution 16.2(b)(l) . The Member for Wolseley. MR. WILSON: Mr. Chairman, before the former Leader of the Opposition goes on to another subject, we we re --{Interjection)-- Former Attorney-General. I wanted to talk about wiretapping, following up my colleague for Wellington in that I'd like to ask the Minister about the apparent . . . There were several things mentioned.

One was the judicial control which wasn't sort of properly explained. By that, I mean, it was told to me that members of any surveillance team carry around what they call ''blank" warrants of assistance which are signed by judges and I wondered, do the surveillance teams also carry around blank wiretap orders or do they actually have to deal with a specific case, and is there that type of control?

And dealing with the concern expressed by the former Morton Shulman, where are these --{Interjection)-- Well, Morton Shulman is still Morton Shulman, but concerning the security of the tapes because he was able to demonstrate that they sort of kicked around loosely in different buildings and office shelves, and I wondered in Manitoba if the system could be explained once more.

Is, like the province of Ontario, this province entertaining any idea of publishing the names of all the wiretap victims or wiretap people in the province in a given year, and what issue of the Manitoba Ga zette does this appear in as to the numbers? I remember under questioning of the former Attorney-General, now the Member for Selkirk, he mentioned was 18, and upon checking the library today, I could not find that particular issue pertaining to the Manitoba Gazette the Minister referred to.

And I wondered if the Minister could comment on the size of their surveillance team, and why it has to be so large and, possibly under civil liberties or under protection for the public, is there any way we could consider in Manitoba the people engaged in this very controversial subject? If we are to go with the sug gestion of many people that we accelerate the wiretapping efforts, I would suggest we should be extremely careful and assure that senior members of the staff of both the provincial government and the RCMP should be engaged in this.

Because what you have in many cases is young cadets or students and young members of the force who are not quite attuned to what the word secrecy means and, after a couple of drinks, they seem to have a rather vocal exposure of their jobs. Like anybody else in any type of job, I guess they like to relate what they do to certain people. And I think that if this wiretap phenomena is going to continue, as the Member for Wellington suggested, there's some 40,000 people indirectly affected and some 517 special warrants issued by the Solicitor General in Ottaw a.

I would be concerned about the process, I would wonder if we would follow the Ontario system and I wondered at what point in time. There's some indication to this committee and to maybe this member, as to the explanation as to how you go from point "A" to point "B ", i.e. the judicial control. What type of a judge is it that signs these all the way down to what type of individuals are on the surveillance team? And a concern expressed similarly by Mr. Schulman, as to the security of these tapes, so that they are not readily available to the media and subversive groups. MR.

CHAffiMAN: The Honourable Member for Inkster. MR. GRE EN: Mr. Chairman, just before we leave this section, and I hope I won't be long, but I want to go back to the business of fingerprinting, etc. Now, the officials of the Attorney-General's staff have been kind enough to give me a copy of The Identification of Criminals Act, Mr. Chairman, and once it's headed as The Identification of Criminals Act we can rest assured that it must be The Identification of Innocent Persons Act. - 603 -

Monday, 10 March, 19 80 This is the entire statute, Mr. Chairman, in English and in French. In other words, this page contains both the English and the French versions of the entire statute.

And it says: "Any person in lawful custody, charged with or under conviction of an indictable offence, or who has been apprehended under The Ext radition Act or The Fugitive Of fenders Act, may be su bjected by or under the direction of those in whose custody he is, to the measurements, processes and operations practised under the system for identification of criminals, commonly known as the Bertillon Signaletic System, or to any measurements, processes or operations sanctioned by the Governor-in-Council having the like object in view." Mr.

Chairman, the second part of it, not that I am aware of anything that the Governor-General has sanctioned, but just look at what powers sometimes parliamentarians give to a Cabinet when they re careless.

"To any measurements, processes or operations sanctioned by the Governor-in-Council having the like object in view." This is, of course, with respect to identification, which some of the honourable members if they're as old as I am, will bring to mind the wartime joke, "Schultz is dead", which I am not going to repeat the joke but the fact is that you all remember people running around saying, "Schultz is dead", and it all had to do with the story which preceded the line. ''Such force may be used as is necessary to the effectual carrying out and application of such measurements, processes and operations." Now, that's virtually the statute. rve left out the part which says that they're not liable if they do it, etc.

Now, Mr. Chairman, it's clear that this is done to innocent people, no doubt whatsoever, any person in lawful custody charged with an indictable offense. It is also clear from this statute that they are not required to give it back to you. Now maybe we have a kindly benevolent government that decides that they are going to tell the police officers to give it back to you, but I don't know that we can rely on it. Furthermore, it still begs the question, if the person is innocent, why should he be fingerprinted?

And if he is found guilty and then they have to prove a prior convition, fingerp rinting may be necessary at that time. But why does a person who is charged wi th an offense and is never convicted, why is he subjected to mug shots and fingerprinting, which no other person is subjected to? Now I believe that there is a historic reason for this , Mr. Chairman.

I believe that there is a prejudice with regard to people who are charged, that this is the Identification of Criminals Act, and that there is a general notion that if a person is the kind who will commit a crime, if you have his fingerprints you know that he will be available if he commits one in the future, and that criminals tend to be categorized as types, when people who have a historical knowledge of it know that the only difference between the criminals on the inside and people on the outside is that some have been charged and convicted and others have not.

But this is the Identification of Criminals Act and, Mr. Cha irman, I think that I did indicate at the last meeting that unless someone could show me that I was way off base and, having already confessed that I've existed in public life and in particularly in the law profession for some almost thirty years and I have never ever saw need to take issue with this, which I only attribute to some fallac y or frailty on my part, I believe something should be done about this. I don't know whether it's been debated in parliament before. I don't know whether there has been a strong issue but I intend, Mr.

Chairman, if the resolution's list ever gets down to the point where I know that it is going to be heard, to introduce a resolution saying that this should not happen to a person who is not convicted of any offense. Even a person convicted, I still have some problem, but there may be reason for it in terms of proving a second conviction. But certainly a person who has not been convicted, I do not know why he should be subjected to having to give his fingerprints and have a mug shot taken for the purposes of a Criminal's Identification Act. MR. MERCIER: Mr.

Chairman, the Act doesn't appear to indicate when it was passed; I take it it was quite some time ago. MR. GREEN: Oh, rm certain it's not, and by the way •.• MR. MERCIER: It would be quite .. . MR. GREEN: Mr. Chairman, if I may interrupt the Minister for one second, because he has being bombarded for the last three days by a whole list of things which are not - 604 -

Monday, 10 March, 1980 primarily his jurisdiction but which he has to deal with, also which are not primarily • . . As a matter of fact, I think very little of what we have been throwing at you is legi slation that is provincial. But I would think that you would be as concerned as many of the members around the table, and therefore I don't apologize for giving it to you.

I only say that I understand your predicament, and that's why the members here are urging upon you, because you meet with the other AG's, you meet with the law enforcement people, and you should be the one to express our concerns to them as to the kinds of things that are being brought to your attention. MR. MERCIER: Mr. Chairman, the Me mber for Inkster I think raises a valid point, specifically with why wouldn't someone who is perhaps charged but not convicted be entitled to have the fingerprints and photographs returned or destroyed.

We will arrange to raise this matter, either at a meeting of Attorney-Generals or through the Crim inal Law Subsection of the Uniformity Law Co nference initially, to review with officials of federal government in other provincial departments. It's a valid point. MR . CHAIRM AN: 2.(b)(l )-;>ass. The Official Leader of the Opposition. MR . PAWLEY: Mr. Chairman, I just wish to pursue a type of matter, which I believe the Attor ney-General has been dealing with to some extent, the approach insofar as sentencing.

In particular I am referr ing to a welfare fraud matter and concerned again as the other day re the attitude of his department, he himself, his approach, and the guidelines or instructions that are given for submissions prior to sentencing on the part of provincial judges court.

Dealing with a matter in which a convicted brother committed suicide in 1971 or 1972 - I believe the Attorney-General has the file from no tice that I had given to him - leaving some six or seven children, ages three to twelve, and the convicted undertook to look after those children along with seven or eight of his own children, for a total of fourteen or fifteen children, since 1971, refusing to put those children up for adoption because he felt an obligation to try to raise them and, in fact, over the first two or three years tried to get by without collecting any welfare, and finally during a w inter period was able to obtain some employment.

And I believe employment continued for a number of winters thereafter, but during that period of time, due to a lack of notice to the welfare people, contiued to collect wel fare for his late brother's children. The result of this is that the party was convicted of welfare fraud and sentenced to six months.

The convicted party had felt it a sufficient concern to raise these children without thrusting these children into the hands of the state, or Childrens' Aid for upkeep and, I don't know, miraculously managed to raise the six, seven children as well as some eight of his own; as I say, a total of fourteen, fifteen children. And I was somewhat taken aback, though there was an offence that the party in question was sentenced to six months under these circumstances.

I wanted to find out from the Attorney-General whether there was plea bargaining in the particular case, whether or not the Crown Attorney charged with the case had recommended a jail term; whe ther if the Crown Attorney did recommend a jail term, whether advice had first been sought from the Director of Prosecutions or more senior counsel as to the sort of sentence that should be sought in such a case. Further, to find out from the Attor ney-General whether there are general guidelines that are followed insofar as wel fare fraud cases, such as this.

I'm not going to repetitive except to say that cases such as this, circumstances of this nature concern one when one hears about the famous case involving fraud and the utilization of DREE , DREE moneys, and the house being bu ilt by the DREE recipient, and the sentence be to contribute the money to charity; or the Campbell case down in Toronto with one day, gives rise to the legitimate concern on the part of the public that the law appears to apply in two separate ways - a jail term for some, for the poor, and for those with wealth the easiest of treatment at the hands of the court.

So I would like from the Attorne y-General some indication as to how such a sentence was arrived at, and some indication from him as to his own views pertaining to cases such as this. I should hasten to mention that it's my understanding in this case that the convicted had no previous related offence. MR. MERCIER: Mr. Chairman, with respect to the Leader of the Opposition's last comment, that's my understanding also, is that the accused had no previous offence or previous record. The amount involved was $28,30 0 and some, over a period of two-and-a-half - 605 -

Monday, 10 March, 1980 years, my department just got the file this morning. The file doesn't indicate the position the Crown Attorney took when the matter came up for disposition; it does indicate that Mr. Chartier had counsel and it appears that no appeal against sentence was filed. What we have done, as I explained a few days ago, Mr.

Chairman, at the request of and in consultation with the Department of Com munity Services, we have assigned one lawyer in the department to deal with them on all of these social wel fare fraud cases in order to ensure that all cases are dealt with on a similar basis by our department, and to consult with their department and officials in their department wit h respect to how these matters are to be raised, etc. Those are the facts that I have before me, Mr. Chairman, from the file. There was no appeal against sentence apparently filed by counsel for the defendant in this case. MR.

PAWLEY: It's my understanding in this case that there was plea bargaining, and that the Crown Attorney did, in fact, recommend a jail term. So that I was interested in knowing, in the rural circuit, the Crown Attorney, usually the first experiences on the rural circuit, whe ther or not in cases such as this, that are a little different from the normal, whether advice would have been sought from the Director of Prosecutions prior to the seeking of a jail term in this type of case. MR . MER CIER: The file doesn't indicate that, Mr. Chai rman. MR .

PAW LEY: If the Attorney-General is satisfied that the facts I've outlined to him are accurate, does the Attorn ey-General feel that a jail term in a case such as this - rm only using this case file by way of example - is a reasonable outcome under these kind of circumstances, where - I tell you, this fellow, all he should have done was made some arrangements maybe that some assistance be obtained from the province.

He's kept six or seven children for the last nine years, he's raised them, children that would have otherwise ended up with adoption or Children's Aid, well, as I say a total of some 14 or 15 children that he was raising, whether or not the Attorn ey-General feels a jail sentence was the proper approach in a case such as this. And are we faced with many such cases as these? MR . MERCIER: Well, Mr. Chair man, there appeared to have been in recent months a number of social wel fare fraud cases involving very large amounts of money over extended periods of time.

We would like to, through counsel we assigned to work with the department, to review with them their methods of monitoring these payments. There are at least three or four cases involving $20,000 to $40,000 over two to two-and-a-half years, so I'd like to have an opportunity to review with the department their methods of monitoring these payments and investigate that. I appreciate they're very difficult, very difficult cases to deal with when a man raises 14 children as the file would indicate. MR . CHAIRM AN: The Me mber for Wellington. MR . CORRIN: Yes, thank you, Mr. Chai rman.

Well, I want to take this opportunity to deal with something which I think has long been neglected and is becoming quite controversial again in the courts, and I think justifiably so. It has received a a lot of publicity, if not notoriety in the southern United States in the past year, and that's the question of radar evidence to establish speeding. At the outset, Mr.

Chairman, I'd like to say that I think that the use of radar, although it's not inherently unfair, certainly is an anomaly in our law , in that it reverses the normal law insofar as it puts the burden on the accused, the person who stands as defendant, to literally prove his innocence, his or her innocence. This is, as I'm sure the Attorney-General, Mr.

Chairman, will appreciate a very unusual circumstance and one which I think deserves a good deal af attention, be cause I can tell you and I am sure that the experience of the people who drive motor vehicles is such as to advise them that it is very very difficult to succeed in defending a prosecution brought persuant to a radar prosecution violation for speeding. The State of Florida recently did a good deal of research on the subject of radar, and radar is essentially •.. I think it's one company that produces virtually all the units in North Ameri ca.

I may not be absolutely accurate on that but I think they certainly manufacture the preponderants. Ce rtainly the unit I am familiar with, and I think it's the only unit that's made, is one that relies essentially on the Doppler effect principle, the transmittal of sound waves and the reflection of the wave off an object back to a monitoring device which records it and gives a reading. - 6 06 -

Monday, 10 March, 1980 In Florida, recent judicial scrutiny found that the radar operating in that state only says some 70 to 80 percent we re operating effectively and accurately. They we re able to conclude that 20 to 30 percent of the units were giving inaccurate readings. And since the onus, as I said, Mr. Chairman, is on the accused person to disprove the allegation that he or she was speeding, I think that it deserves some real attention at this time. As I am sure we're all aware the police have become quite reliant on radar devices and use them to a wide extent throughout Manitoba.

It's very very rare indeed, particularly on the high ways, that the police will actually pursue a vehicle and do an actual observation check while maintaining a constant speed behind a vehicle. Most of them are utilizing the radar devices to a very large extent. Now, I suppose it's also important because, Mr. Chairman, as you are aware, most Manitobans only go to court very very few times in their lives and I would imagine if we asked most Manitobans when that occasion was, they'll say it was with respect to a speeding violation. And a lot of people, a lot of people, fight these charges. It's not uncommon, Mr.

Chairman, if you go down to any one of a number of courts that deal with speeding violations, to find quite a large crowd assembled for the purpose of defending. Some come with legal counsel, but the majority don't; they can't afford le gal counsel for that type of charge which usually attracts a fine somewhere in the range of $20 to $50.00. But they come there, they come there because of the principle involved and because most of them feel that they deserve a day in court. And it's my opinion, and it certainly was the opinion of the people who did the study in Florida, that a lot of them are there justifiably.

They have a legitimate beef and they should be given their hearing. Now, right now, if you go into court, the policeman takes the stand, and about all he has to do is say that he took his tuning fork out and he calibrated the machine before he hit the road some time within two hours before he wa s able to take the reading on you. And having done that, he simply points out what the reading was and the presumption shifts to you. If you're the defendant, the presumption, the burden of winning the case shifts to you. The policeman said you we re speeding and that's the end of it. He stands down.

Well, you're in a pretty bad position and I know what rve done in the past, and I think a number of lawyers have tried it with little success in this province but with great success in Florida and some other southern states, some Ameri can states, is try and bring expert evidence to bear that will in fact rebut the presumption that radar testimony is accurate. Now, there are several points and I have enumerated them and I think that this is now becoming •.• These are the findings of the Florida study and I believe these are now commonly accepted defects relative to radar.

First of all, the argument, and this is always used in court, whenever somebody comes to court, the policeman if there is any sort of cross-examination by the accused at all, the accused presents to the policeman the possibility that there was another car nearby, near him and perhaps travelling at a greater speed but perhaps paralleling him while he was passing him or whatever, the presumption is, and the policeman always states and they refer to the manual that says that the radar can only read the speed of the first vehicle.

This is invariable and the judge always sagaciously shakes his head and says, "We all know that because the manual that the policeman has with him says that the radar will only read the speed of the first vehicle and, as long as he's got it aimed in generally in that area, you can be assured if you we re the first vehicle, he got you. " Well, that isn't true. They have done studies. They have done technical experients with radar and it is now established, to some state sat isfaction as well, that contrary to the manufacturer's instructions, it doesn't always read the speed of the first vehicle.

It's a presumption but there is a technical defect. It is possible, and it is possible, for instance, if a large truck is following, that it will read because of the reflected energy from the larger object, it will read the truck and not the car in front, the smaller object in front.

Now the reason I'm bringing these technical defects to the committee's attention is because I think this province should do what Florida has done and establish and adopt legal guidelines for the use of these units, so the officers, when they come to court, have to prove a few conditions precedent prior to the judge being satisfied that the speeder was violating the law. Now another defect, and this goes against another one of the shibboleths about radar, that it only reads moving objects.

Well, they've done tests on radar now which have proven that radar will accord a speed to things like a house on the side of the highway. You know, they've done tests that prove that a radar will often be able to read a house at going ten to fifteen miles an hour on the outskirts of the right-of-way. That's the wo rd of the truth; that's not inaccurate. Somehow certain types of energy sources, depending on the siding of the object, - 607 -

Monday, 10 March, 1980 can actually contribute. And the purpose of bri nging this to the committee's attention is I'm saying it contributes to the speed of the vehicle, so if you've got a house behind you, you might get your speed bumped ten to fifteen miles an hour, kilometers per hour. Another thing, the mounting of the target gun is essential, and many policemen, and this has been certainly discovered in the United States, many of the policemen are not properly trained in the use of the apparatus.

They don't know how to mount it in the vehicle they are occupying and, as a result, the readout mechanism will not be working properly; there will be a distortion. Apparently the officer has to mount the target gun and the readout mechanism in such a way that they don't interfere with each other. There is some sort of energy interchange between them. But if the officer has - and they have done this with fixed speed vehicles, wi th different mountings - if the officer has not got it appropriately and properly mounted, he again will get surplus speed reading out.

So it's a question of training the officer in this question; it's a technical defect which can easily be remedied if the officer knows how to use the machine. I think in this province it's safe to say there are a lot of police on the high ways who haven't had sufficient training. Now, another thing that has come to the attention of authorities as being a real potential defect, and again one which only proper training is an adequate antidote, is the question of tuning and calibrating the machine. The accuracy of the machine is always predicated on the tuning and the calibration of the unit.

If it is improperly tuned, if the person who does the reading, the officer - and they usually use a tuning fork - doesn't take enough time and doesn't do it with sufficient eye to detail, the machine will not represent an accurate reflection the speed of the oncoming vehicle. Now the policemen, of course, always come to court and they do testify that they do this, but I think again it is a question of training. In the United States, they found that a lot of officers who thought they were tuning their machine when they got into their cars, who thought they were doing everything by the book, weren't.

They we re doing it to various degrees. Some officers were doing an excellent job and they virtually had their machines perfectly tuned, and others were getting into cars and driving off in a rush, came in a little late and they were out in a hurry to get onto the highway, and their machines weren't properly tuned. Now a fifth point, I guess, is the question of the beam. There is always in court, everybody presumes that the beam is directed in an exactly linear manner so that there is no dispersion of the radar beam.

In other words, the argument is that it is impossible for the radar unit to read anything but that which it is aimed at; that if the officer has put it on auto-lock at a certain spot, or tracking spot, or he has manually aimed it, that it can't possibly read anything. They have done tests on that, and they found that is untrue. There is a dispersal effect, a scatter, a shotgun effect, and the truth is that if there are multiple lanes of traffic, the radar will be affected by other oncoming vehicles.

They have done proof of that with constant speed vehicles on the side, and speeding vehicles in the lane where the attention of the scope was directed, and the constant speed is recorded and not the speeding vehicle's speed. So, Mr. Chai rman, I think that we should consider adopting guidelines that are similar to those that have been brought forward in the State of Florida. I think they are sensible. The first one is the checking of the radar calibration.

The officer is required to give testimony, and he has to write in his little book that he tested his radar unit, he calibrated it im mediately after apprehending the accused. In other words, it is not enough just to come to court and say, oh, I checked it in the morning, I know it was accurate. He has got to do it right in front of the accused. He has got to get into the car, get out his tuning fork, he has got to show the accused that the machine is accurate.

The accused may not be able to understand it, but I suppose through experience, and through publication, a lot of people will become familiar with what is required, and they will be able to be vigilant of their own rights. They will be able to see that the machine is working. This is im portant. It is also important because a lot of policemen don't know the machine is not working. If they calibrated and they found their machine wasn't working, they would rip up the ticket. They woul dn't bother to take Joe Smith to court if they knew the machine wasn't working.

But right now they won't calibrate, be cause the law only requ ires that calibration before they go on the road, not after they apprehend you. Now, the second point that I think would be a very great improvement, again it is a pre-condition in Florida, is simply the prohibition on the use of the auto-lock. The auto- lock is invariably susceptible to distortion when there are two cars paralleling each other, and there have been num erous tests done on that. The auto-lock is not reliable. Most policemen - 608 -

Monday, 10 March, 1980 use the auto-lock; it is a lot easier to use the auto-lock. It is like an automatic homing pilot, and it is a nice, littl e, sophisticated bit of gadgetry, and they flip it on to it and it does the work for the man behind the machine. But the point is that it is not always accurate, and it is not fair. The guy sitting in the ditch, if he is on auto-lock, may not be reading the right car. The third thing they do, and I think this is absolutely fundamental, is they require visual identification of the suspect vehicle be fore the reading is taken.

What often happens - and I have had it happen to me, rn admit it, it has happened to me - is you'll be driving along, I have been caught once on a radar offence, and I thought it was unfair. The policeman was down in the ditch, he was at least 20 feet down, it was on the Trans-Canada. He was 20 feet down, he could no t have possibly identified my vehicle. Now on that given evening, I am sure it was a long weekend, and rm sure he must have picked up 20 or 30 or 40 violators. The point is that, because he can't tell you that it was you he was reading, I think that you have a legitimate defence.

When he comes up he admits, I didn't see you, that was his first remark, I know that you we re the first vehicle into my scope. Did you see me? No, I couldn't see you because I was in the ditch, but the machine said you were there and I came up right away and there you we re. But he doesn't know for sure that there wasn't a passing car. He doesn't know that somebody didn't overtake you for a split second and fall back, which often happens on a busy night on the Trans-Canada, coming back on a Sunday night or a Monday on a long weekend, and it is a real problem. I have heard this from a lot of people.

If you go to the traffic court, there are a lot of people who say that it is unfair that they can be tagged with the offence when the policeman couldn't even visually identify them as being the offender. It is just presumed. There is a reliance on the machine, and the machine essentially completely rebuts any presumption in favour of the accused person. So in Florida what they have said is the policeman has to visually identify the speeder, the suspected speeder. He has to see the white Pontiac or the blue Buick first, and then he locks, then he fires and he takes his reading; and that makes sense.

I think that makes damn good sense, Mr. Chairman. So I am suggesting that if we want to enhance the experience of the average Manitoban in the courts, that average guy who will only go to court once or twice in this life, perhaps, on a speeding violation, that we should provide a little basic justice. We shouldn't have these presumptions that rebut the integrity of our citizens. You know, very often these people, I think, are - I believe they are telling the truth. There are just too many of them. They are not the sorts of people that no rmally make up stories.

Sure, some people are going to buck the sy stem, bu t I think a lot of people are probably telling the truth. And it probably reflects the Florida finding that 20 to 30 percent of the readings on the highways are inaccurate. So we are convicting 20 to 30 percent of Manitobans who shouldn't be convicted of offences on the basis of what a machine read-out said. So I would encourage and I would ask the Attor ney-General, be cause I know this came up last year - there was a court case here in Manitoba where the whole question of radar accuracy was challenged.

I would ask him whether he would consider checking with Florida, and whether he would consider looking into this matter, in order to rectify a currently inequitable situation? MR . CHAIR MAN: The Me mber for Rossmere. The Honourable Minister. MR . MERCIER: Unless he wishes to speak on the same subject .•• MR . VI C SCHR OED ER: No, I don't think my comments on that would assist you greatly. MR . MERCIER: Mr.

Chairman, there was a great deal of publicity given to a decision in the County Court of Dade Coun ty, Florida, about one year ago, one year less, and I take it that is what the Me mber for Welli ngton is refer ring to. Well, Mr. Cha irman, I can understand the Member for Wellington may have missed the statement that I made after we reviewed that matter.

Subsequent to that decision, senior officers in my department obtained and assessed reports from the manufacturer and various police departments who used the Decator Speed Timing Device, and I indicated that I was informed that the Decator Speed Timing Device was used by RC M Police highway patrols in rural areas of Manitoba, Alberta, and British Co lumbia, and I was further informed that because of their long-range reliability of being found that these devices are more suitable to - 609 -

Monday, 10 March, 1980 rural highway usage than in crowded high density urban traffic areas. For that reason the City of Winnipeg Police Department do not use the Decator speed timing devices but other devices that have been approved and appear to be more suitable for urban needs. I indicated that I was advised that the Decator speed-timing device can operate in either the automatic or manual modes. In the automatic mode, once a high speed is registered on the machine it blocks into that reading. However no decision apparently is made as to what caused the high reading.

It is my understanding that the device was used in the automatic mode during testing for purposes of the hearing in Dade County, Florida. The RC MP police do not use the machine with the automatic mode, but prefer the manual mode whereby their trained police officers using the machine determine what in fact caused the high reading before an enforcement action is contemplated. The RCM P police are satisfied that the readings attained in the Dade County case would have been rejected by their trained personnel and not used for enforcement action.

I subsequently wrote to the RC MP in Manitoba to confirm that enforce ment action is only taken in the use of any approved radar speed-timing device, when a properly trained Peace Officer is fully satisfied that the machine is working properly and that the Peace Officer can determine and positively identify what in fact caused the high reading on the machine. Apparently the president of the International Association of Chief s of Police and the United States Department of Co mmerce bo th confirmed our assessment of this particular speed timing device. MR. CHAIRM AN: The Me mber for Wellington. MR .

CORRIN: A supplementary to that. I suppose what I would have liked to have heard from the Attorne y-General, Mr. Chairman, is not that he is satisfied with the test the RCMP have done and the clean bill of health that they have given their machinery. What I would have liked to hear is that he is willing to look into the matter independent of the police and law enforcement agencies. I think, Mr. Chairman, and we've said this several times in the course of these estimates, that the Attorney-Gene ral is not just the agent of the law enforcement agencies of this province, and I say that with respect.

If law is to be meaningful, there has to be a balance, a balance between the rights to be accorded to the average citizen and of course the rights to broader society as embodied in the context of law enforcement, preservation of law and order. So I would ask whether the Attorney-General might not do an independent review of the machinery, as was done by the court through technical evidence in Dade Co unty, Florida, in order to assess the viability of these units for use in Manitoba on an independent basis.

It seems to me that it would be incumbent on the Honourable Minister to undertake some independent review of the reliability and efficacy of this particular unit. I don't know why we always presume that the police are the only side of the story to be polled.

I'm not suggesting that their representations would be coloured by any inaccuracy, but I am suggesting that there is a good deal of technical independent scientific technical data which shows that this particular machinery is subject to inaccuracy and inefficiency, and I can't see why the courts in Florida could find that the machine was 20 to 30 percent inaccurate and the RC MP say that it's altogether wholesome and completely reliable in the context of Manitoba. Maybe it's the good cold weather, I don't know.

But it seems to me that the crowds in our traffic courts are reflective of the mass indignation of many of our people who are apprehended through the use of these radar devices and I think some cognizance should be given to the little guy.

They are spending a lot of time and money defending themselves against the allegations that are made wholely on the basis of the technical information derived from the units, and I think for once the Pr ovince of Manitoba should spend a few dollars and have a technical investigation of the reliability of the units from the layman's point of view, no t from the policeman's point of view, not from the lawyer's point of view, but from the taxpayer's point of view, from the motorist's point of view. I don't know why that can't be done. It can't be that difficult.

There are many experts in residence in this province who could come to a Legislative inquiry and provide testimony, could tell the Attorn ey-General something about the unit. I'm sure the police would be pleased to attend as we ll and rebutt any such evidence that they thought was un reliable. I don't see why something like this necessarily would be out of line for this province. It's in accord with the spirit of natural justice, Mr. Chairman. - 610 -

Monday, 10 March, 1980 MR. MER CIER: Mr. Chairman, the Me mber for Wellington may have missed part of the statement that I read to him. I indicated the review was done under the supervision of my department. That review was then confirmed by the United States Department of Comm erce, National Bureau of Standards in Washington, last spring. MR . SCHR OEDE R: Thank you, Mr. Chairman. Dealing with the High way Traffic Act, I have a question with respect to warrants being issued under that Act.

My recollection of the early 1970s was that, for instance, if you were picked up for speeding and if you didn't show up in court on the date provided on your traffic offence notice, you would be sent a letter indicating that if you did not make arrangements with respect to that ticket within four weeks of the date of that letter, then the courts could proceed ex parte and come to a decision, and if you were found guilty you would be fined accordingly. Just recently a young lady in my constituency came to me and said that she had been picked up for speeding. It was an absolutely legitimate speeding charge.

It was radar, and my understanding was that she agreed that was one of the 80 percent of the times when ... there is no question, she had been speeding, she wasn't disputing that. However, for some reason or other she lost her speeding ticket - this is City of Winnipeg - she went down to the Public Safety Building on three specific separate occasions, went to the Clerk of the Courts Office. On two of those occasions she talked to police officers as well, who assisted to att empt to locate the ticket. The ticket was never located.

Then a few weeks after her third visit she was telephoned by the police and told that there was a warrant out for her arrest and she had better show up to pay her $40 to stay out of jail. Now this particular young lady was fortunate enough to have $40 and was fortunate enough to have been at home, because had she not been at home or had she not had $40, she could well have been scooped and put into the detention facilities provided in this City until such time as she could appear in Court.

Now again, my understanding is that during the previous administration, situations like that, for charges like that, would not have arisen in the first place. I'm not faulting the Attorney-Gen eral's Department for the mix- up in the City of Winnipeg. That's a problem that they have to resolve. It's their court. Another area that I would like to ask about is the Lavallee case, the case dealing with the Intoxicated Pe rsons Detention Act. My understanding is that there was a decision in the Provinc ial Judge's Court last year declaring that particular Act unconstitutional.

There was no appeal taken and the Cabinet asked the Court of Appeal to rule on the constitutionality of the IP DA , and I am just wondering whether the Attorne y-General could inform us what has occurred with respect to that matter. MR. MER CIER: Mr. Chairman, on the first point raised by the Me mber for Rossmere, there has been no change in policy, but if he would perhaps like to give us the name of the individual involved we will have a review and report to him on what happened on that particular case.

With respect to The Intoxicated Persons Detention Act, we form the view that the judge rightly acquitted on the merits of the case, the accused in that case, and therefore didn't want to put hi m, the accused, through the difficulty of an appeal on a constitutional question, so the matter was, by Order-in-Council, referred to the Court of Appeal and I expect that that matter - the last I heard it was to be heard in the Court of Appeal at the end of March. MR. SCHR OED ER: Thank you, Mr.

Cha irman, on that Lavallee case, I am just wondering whether the Attorney-General could explain why outside counsel were hired to handle that case. Were there not people available wi thin the department? MR . MERCIER: Mr. Chairman, the court appointed counsel to argue the other side of the case. The department is taking the view that the Act is constitutional, that the court can ask counsel be appointed to argue the other side of the case raised by the judge in question. Thank you. MR. CHAIRMAN : The Me mber for St. Johns. MR . SAUL M.

CHE RN IACK: Floating between two Comm ittees, I am not quite sure that I know all that is going on this Com mittee when I am away. May I ask the Minister, has he acceded and has he given the information which I requested the other day in regard to the statistics on prosecutions? - 611 -

Monday, 10 March, 1980 MR . MER CIER: Mr. Chairman, in the absence of the Member, I indicated to the Commit tee that we would attempt to obtain the answers to the questions raised by yourself and provide those to you. Those are not readily available. MR . CHE RN IACK: Mr. Chairman, I am surprised that the Department doesn't have any statistics of that kind. Does it have any at all? MR . ME RCIER: We have some.

That is one of the issues I raised earlier on in the Estimates of the department under Administration, where we had included some monies to study electronic or computer systems, because that kind of information is no t readily available in the department. And that is very similar to other jurisdictions. We have to attempt to put that together from manually-kept records. MR . CHERNIACK: That is interesting, Mr. Chairman. It seems to me that one has to have certain guidelines or measuring sticks with which to com pare its performance with that of others.

Of course, if others don't have it either, then that doesn't help very much, does it? Nevertheless, internally, even year to year, it is a matter I think that should be of interest, and ther deparments do maintain statistics of a similar nature. For example, I believe that the Department of Labour or the Department of Health might have lists of infractions against laws and that kind of thing, and I will of course, let this stand now, and next year, if the government is still around, we'll use the statistics given, which I assume the Minister will produce as soon as they are ready.

It is not a question of just our waiting for any special occasion, and if they are in work, can we assume that they will be available in a month, two months, during this session? I don't want to ••• MR . MER CIER: As soon as I have an indication from the Department what is available immediately and how long it will take, I wi ll indicate that. MR. CHER NIACK: Mr. Chairman, then that also means that what is available will be given to us as it becomes available. MR . MER CIER: Right. MR . CHERNIACK: Well, that's fine, Mr. Chairman. rn accept that and move on.

Back again - I know you we re discussing wi retapping and I did want to discuss it. I am not sure the extent to which the Minister responded, so if he tells me that he did respond in specific to my questions, then of course I will have to wait to read Hansard on it. I would refer the Minister to an interesting

article which appeared in a magazine that serves our profession, The Canadian Lawyer, and an

article - I don't seem to see a date for it, but there aren't that many issues since I think it has only been around for about a year - an

article by an Edward Greenspan dealing with wi retapping, which I can lend him if he is interested. In any event it raises certain questions in my mind which I would like to have answered by the Minister. I would like to premise my question with the quote that is in the first paragraph of this article, wherein he quotes William Pitt, the Earl of Chatha m, as saying, "The poorest man may in his cottage bid defiance to all the forces of the Cr own. It may be frail, its roof may shake, the wind may blow through it, the storm may enter, the rain may enter, but the King of England cannot enter. All his force dare not cross the threshold of the ruined tenement." Well then the

article goes on to say that it has become rather easy to enter the premises, through electronic means, of anybody, no matter how strong his home may be. I would like to ask the Minister - well another point. The

article described that the enabling legislation requires that before authorizing a wiretap the issuing judge must hear evidence from a peace offficer that; (

a) other investigative procedures have been tried and failed; (

b) other investigative procedures are unlikely to succeed; or (

c) the urgency of the matter if such that it would be imp ractical to carry out the investigation of the offence using only other investigative procedures. Now I do believe, Mr. Chairman, that people, well most people, try to take the easiest and quickest way to arrive at a solution to their problems, and that does not exclude people in the law enforcement business. I believe that there are many more confessions that are the basis of successful prosecutions than there are good detective work and the best standards of the detective stories that so many of us read. - 612 -

Monday, 10 March, 1980 Since the Attorney-General is, I believe, charged with protecting the privacy of a person, as wiretape may derogate from privacy, I would like to know the Attorney-General's procedure when there is a request from the detective agency or the enforcement agency for an order for wiretap before it gets to the judge. What is the procedure within the Department that is designed to protect the privacy of the person? MR. MERCIER: Mr. Chairman, procedures used in the Department are that only an application can be approved either by myself, Mr.

Pilkey, the Director of Prosecutions, the Deputy Director of Prosecutions, and where the senior, very senior, police officer in either the RCMP or the City of Winnipeg Police Force have recommended it. MR. CHERNIACK: Then what procedure is followed or what details are required to satisfy the granting of the opportunity to go to a court to get the order? What questions are asked, or what answers are expected? MR. MERCIER: Mr. Chairman, the Member for St. Johns read out the requirements from the Criminal Code. MR. CHERNIACK: Mr. Chairman, I read them to the Minister, the Minister didn't read them to me.

I would like to know whether there is a personal interview, whether there is an examination - I mean a personal interview of the police officer requesting it or is it done by mail? Or is it that the police officer requesting this just sends a memo saying , there are other investigative procedures that have been tried and have failed? Or indeed, do they spell out the natu re of the investigative measures that have been tried, which have failed, and the nature of any other kind of investigation that could be carried on that would not be of any use? MR. MERCIER: Mr.

Chairman, the general procedure is that the documentation would have to be prepared and signed by the officials that I have indica ted, very senior police offic ers in the RCMP or in the City of Winnipeg Police Force. The matter would be reviewed and approved.

If it is approved by the senior officials I've indicated in the Attorney-General's Department, then the matter is brought before a judge, at which time a counsel from the Crown Attorney's Departme nt and the police officer involved appear and make the application before the judge, who will review the material, ask questions and decide whether or not the order should be granted and in what form. MR. CHERNIACK: Well, Mr.

Chairman, the Minister must, I am sure, knows as well as I do, that ex-parte applications are usually successful - I think that is a fair statement to make - and I am wondering whether these applications can become and do become routine, in that if a senior poli ce officer sends a memo to a senior Crown counsel or senior member of the Attorney-General's Depa rtment setting out these bits of information that are required, is that then sufficient on a pro forma basis to say, well the burden of proof has been established, we will go on, or is there an actual cross-€xamination or investigation? MR. MERCIER: Well, Mr.

Chairman, as members of the Committee have indicated and as members of the De partment are well aware, this is an extraordinary measure to be used and treated seriously by the department, seriously by the police forces. The judge himself has to be satisfied as the

Section indicates that the criteria read out by the Member for St. Johns from the Code is complied with. Now we are talking in general because you are talking about every case. Does the Member for St. Johns have a specific situation he is concerned about, or just the general procedure? MR. CHERNIACK: It is a fair question and I would say the specific is the right of every individual who is affected by wiretap. No, there is not an example I have to offer. But. you will note that the Minister has said that it is treated seriously.

Well, I assume it is treated seriously, nevertheless I don't know the extent to which there may be an enquiry within the department to the senior police officer requesting it. Do you rely on the senior police officer's statement or do you question him about? Do you say, well what have you explored, what could you explore, why is it that you are not exploring the other thing? Is there a two-way conversation conversation, is there a face -to-face confrontation? - 61 3 -

Monday, 10 March, 1980 MR . MER CIER: Well, Mr. Chair man, these are matters that counsel in the criminal prosecutions branch have to satisfy the judge that these matters have been explored, that other alternatives have been tried and failed, or other investigative procedures are unlikely to succeed. And since we are speaking generally , any counsel involved in an application like these has to satisfy himself, and has to question that police with respect to these matters.

As indicated, every application or suggestion for a wi retap that's proposed by the police is not accepted by our deparment as a case that should go before a judge for an order. MR. CHERNIACK: Mr. Chairman, I was going to come to that, and I was going to, and I will now, ask how many applications are made in a given period of time, and how many are rejected. I suppose that information is no t readily available; I trust it will become available. MR . MER CIER: Yes, if it is available.

Whether a record is kept of the number of proposed applications to a judge that are turned down, I'm not sure, but we'll see what information is available. MR. CHERNIACK: May I ask, does the police officer submit all these applications in writing, or can they be verbal? MR . MERCIER: I would expect that they are not always in writing, that they may be disCU$ed over the telephone in some cases. I can't indicate that every case is made in wr iting before Crown Attorneys decide on whether they are going to accept it or make a recommendation. MR . CHE R NIACK : Mr.

Chairman, I would never expect any Minister to be fully cognizant of all that goes on within his department. If he were, he would be superhuman, and therefore would be a threat to the bureaucracy. But, I would like to think that a case such as involves this tremendous incursion in people's privacy would be something for which the Minister would not only accept formal responsibility, but personal responsibility. And I would like to think that oral conversations should be recorded.

I think there has to be a record of every application and every rejection, if there is such, because of the fact that the burden is really placed, by law, on the Attorney-General first, and then the judge. And the Attor ney-General, when he said that the prosecutor or the Crown Attorney appearing be fore the judge has to prove his case, I think that it goes stronger in that the Attorn ey-General's senior personnel must first act in a judicial capacity in order to decide, not will the officer succeed, but should the officer succeed, and therefore proceed with conviction.

And I mean that with a small "c" in the sense of truly believing that this wiretap is required properly. Again from this article, there is a quotation from a judge where the court says, and I'll quote, "I do not think that a judge unassisted on an ex parte application, and in my case at any rate, without familiarity with the investigative procedures usually undertaken by the police, can properly protect this important right of private communication from infringement, whether the infringement is intended or not.

" In other words, the indication there is that a judge sort of, not quite, bu t almost, rubber-stamps an application. So the information I would like to get, other than I would have liked to have had a more righteous, indignant response by the Minister saying, I fight hard and I make sure that I check on the applications that have been granted to make sure that my senior officers are indeed acting in the interests of the private individual and personally does so, because I think this is important enough, but because a judge quoted here feels a little insecure.

I'd like them to know more statistics for the next time around, Mr. Chai rman, whether we can get some idea of how many occasions there are when such an application is requested by the police investigative officials, how many are granted as compared to how many are denied by the department's senior officials, and then the success rate in court. I would guess - and this may be a completely unfair assumption, and it's only a guess - that most of the applications are granted. MR. MERCIER: Mr. Chai rman, on that point, those are statistics that are required to be published.

Now, that may indicate to some people that the court is rubber -stamping the applications, or may indicate that the deparment has very jealously guarded the rights of individuals and they were all proper applications. - 614 -

Monday, 10 March, 1980 MR . CHERNIACK: I accept the truth of that. It has to indicate one or the other, I should think, or just a sloppy attitude on the part of both, which I'm not suggesting for a moment takes place. But I think that kind of information would be helpful because, Mr.

Cha irman, again, one who is taught in the law - I didn't use the wo rd trained in the law, but one who is taught about the law - is first impressed by the British sense of justice and the law that we have inherited over the years which is designed, I suppose, from the time of the Magna Carta to protect the individual, and yet the incursions on that are growing and grow ing, really, to the extent where we have to have more and more protections for the individual.

And the Attorn ey-General being the person primarily responsible, in my mind, to act on behalf of the private person is, I think, required to carry a greater bu rden of responsibility than even the court which, perforce, must rely on the information presented to it. And the court does not have the investigative opportunities that the senior Crown people have, and that's why I'm looking forward to hearing, to getting the information from the Honourable Minister.

And I'm really looking for an assurance from him that he holds himself personally responsible for these decisions that are made, be cause they are made at a level so high up that they are so close to him that he ought not to be in a position of not know ing the details and the justification. There are so few people that are involved in that decision. And I'd like the Minister to accept personal responsibility and accountability in that connection, along with the need to report on that.

I suppose, finally, I'd like to know whether there are any statistics that would indicate the success rate in court when evidence is presented on the basis of wi re-tap. I suppose one cannot really recognize or distinguish that too clearly, bu t it would be interesting to know the number of convictions and the number of acquittals that place when a wi re-tap has been used. MR. MERCIER: Mr.

Chairman, just a brief comment on that, be cause we did discuss that at an Attorney-General's meeting, the proportion of wi retaps that have resulted in or contributed towards successful prosecutions, and I'm certain that information is available. MR . CHE RN IACK: And I assume that it will be made available to us. I thank the Attorn ey-General for his offer of continued information on this basis. MR . CHAIRM AN: The Member for Wolseley. MR.

WILSON: Well, this may possibly be under Law Enforcement, bu t I think under Crimi nal Prosecutions it might • • • The Member for Wellington spoke about speeding in an auto and radar because he had some personal experience, and I wanted to share something in • . . the credit industry seems to be writing off a large amount of conversion by theft of autos. Now, about 25 years ago, a young fellow in St. Vital, with no previous criminal record or anything, was sent to jail for two years for selling a car that he had purchased, because he wanted to go on a holiday.

And yet today, I see in the credit industry that at least, from my own experience, about a dozen a month, and the victims are always told, well, they should have checked with the 15th floor of the Woodsworth Building to make sure there was no lien on the car. And I'm wondering if the Attor ney-General would like to comment on the fact that the conversion of auto by theft seems to be almost disappearing from our courts, and yet it's still in the Cri minal Code.

I read of very few cases in the paper, and yet in practical terms, it seems to be getting to be more and more morally acceptable for people to purchase an automobile, and now adays so many of them are worth more than $8,000.00. And I've seen it even conversion. I saw a lawyer not too long ago buy a converted airplane and get stuck for $12,0 00.00. So, it is not just the poor that are getting stuck, it's also other people.

And it would seem to me that the consumer out there needs some assurance that there is a safety valve somewhere, that possibly there might be a new awareness of conversion of auto by theft, because I think it is almost like that ring of recreational vehicle thefts that's taking place in Brown sville, Texas, where they take every van they see and whip it into Mexico, and there's been something like 10,000 half ton trucks that have been converted.

I express alarm at the amount of automobiles that are being sold in the newspaper, and sometimes even off car lots, to the unsuspecting person who can't believe he's getting such a good deal on a car. And I wondered if the Minister might - am I in the right

section of his estimates, or has there been any discussion on this matter? MR. CHAIRM AN: Mr. Minister. - 615 -

Monday, 10 March, 1980 MR. MERCIER: No, there hasn't, Mr. Chairman, while I've been here. Well, theft is theft , and if there's evidence, there would be prosecutions, unless the member has so me specific area or incident. MR . WILSON: It almost re minds me of the fact that a grocery store in an area could get robbed 10 times, and each time there are 35 citizens around, and nobody is willing to come forward as a witness.

And rm suggesting to the Minister there's an alarming amount of conversion of autos by theft in the province, but the banks, chartered banks, and the finance companies and the credit unions are in a position where they recover their converted vehicle and it's the less-fortunate citizen, the ordinary working Joe, who has put a considerable amount of his savings into buying an automobile. And because he's a shopper, he's getting stuck, and it doesn't seem to me that the victim can lay the charges.

It always seems to have to be the bank, from my information, it has to be the bank or the credit union or the finance company that lays the charges and I just wondered if there's cases brought to the Department's attention, do they go out and solicit the banks and finance companies to give some consideration for the benefit of all to possibly helping the government to educate the people that engage in this practice, that it's not going to be tolerated by the government and law enforcement agencies? MR. MERCIE R: Well, Mr.

Cha irman, I think the Department has enough prosecutions to worry about without having to solicit business. This matter is simply, has not come up as an item for discussion since I've been Minister. No particular problem of any kind is being raised with me. MR. WILSON: Well, this is what I talked about, I think I spoke earlier about priorities, and I certainly don't put money crimes ahead of crimes of violence.

But it seems to me that, as other members of the committee have expressed concern, that if the Minister is looking into welfare fraud, which also involves money, it does not involve a crime of violence, that I would hope that someone on his staff would read Hansard and ask some questions regarding - they could get in touch with the finance community and just in their general discussions maybe the Com mercial Fraud Squad of the RCM P could ask some questions and find out if what I say is true, that there is an alarming increase in conversion of autos by theft. I will leave it at that. MR.

CHAffiM AN: The Member for Wellington. MR . CORRIN: Thank you, Mr. Chairman. Dealing with the question of wi retaps again, I meant to ask this afternoon and I forgot, but now the Member for St. Johns jogs my memory. I would ask whether the Attorney-General agrees with the position of the Chief of Police and the Federal Justice Pr osecutions Divison with respect to the consequences and the resultant state of the law brought into effect as a result of the Court of Appeal decision in Ashok Dass versus The Queen? MR. MER CIER: Yes, Mr.

Chair man, we have concerns about the implications of that particular judgment, as do a number of other provinces. I might point out to the member that this matter was considered at the Cr iminal Law Subsection of the Unif orm ity Law Conference this past August, at which that body recommended to the Federal Minister an amendment to clarify the situation. MR. CORRIN: A supplementary, Mr. Chairman. I am curious what it is that the Minister is concerned and objects to. MR . MERCIER: Well, the concern, Mr.

Chairman, is if an order to place a wiretap is obtained, it seems reasonable to expect that included with that order is permission to enter an address to install the wiretap. MR. CORRIN: It occurs to me that some of the people here obviously are not familiar with the Dass decision. I would indicate that in that case the Court of Appeal of Manitoba refused to recognize the authority of the police to plant a bugging device by illegal - 616 -

Monday, 10 March, 1980 means. It was found that the RCM Police had ill egally entered a premises in order to implant an bugging device, and the controversy relates to whether or not the Court was correct in saying that they would not condone that and that they would not allow the police to break the law. There is a distinction here between a wi retap where the police simply monitor through electronic means the communications on a given line, and the case, as was the fact in Dass, where they break into a premises in order to implant the device in somebody's residence.

See, they committed the criminal act of Break and Enter in order to do what the court allowed. I would ask the Minister, in view of his supportiveness of the police position, why he would place a greater value on the right of the police to pursue and use illegal methods in their pursuit of suspected criminals, than on the right of potentially innocent citizens to be protected from acts of crime perpetrated by the police forces they pay to protect them. MR. MERCIE R: Well, Mr. Chairman, the Dass decision is being followed in Manitoba. I can tell him it is not being followe d in a number of other provinces.

The comment in the Dass decision was considered obiter, although we are following it , because it is in our Court of Appeal, but it has been questioned in other provinces. For example,

Section 25 of the Code says, "Everyone who is required or authorized by law to do anything in the administration or enforcement of the law as a private person, peace officer, in aid of a peace officer, is, if he acts on reasonable and probable grounds justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose. " Other provinces have interpreted that

Section and the Sections with respect to wi retapping to implicitly approve the entering into premises to place the wiretap. MR . CORRIN: In view of the fact that we are currently holding to the law established by our Court of Appeal, but other provinces aren't, I suppose it would be to the point to ask the Minister, through you, Mr. Chairman, whether he anticipates any move on the part of himself or his government to effect revision of the law in order to facilitate the activity that was deemed illegal in the Dass case. MR. ME RCIE R: Mr.

Chairman, because of our concerns, we raised the matter at the Unifo rmity Law Co nference, which approved a recommendation to the Federal Minister of Justice to amend the Code. MR. CORRIN: Mr. Chairman, is the Minister then telling us that he personally would condone the - and I will go through this now in some detail. Let's use these circumstances. A person suspected of committing a crime and who is the subject of a judicial order allowing the police to use electronic surveillance, comes to visit the Minister in his home.

He is visiting with the Minister and his family, and the police, having legal authorization under the power granted to them by the courts, decide that in order to effectively monitor the suspect's activities, it is necessary that they implant a bugging device in the Honourable Minister's recreation room. They are not satisfied with an electronic survey of his telephone, but rather choose to put a bugging device into his living room or into his recreation room.

I would ask then, would the Minister suggest that he could be approving of that, that he would approve of the police breaking into his home in order to implant a bugging device in the midst of his family in his recreation room or living room ? Would he app rove of that activity, and is that what he is saying then, that he has asked the Federal Govern ment to authorize by way of legislative revision? MR. MER CIER: Mr.

Chairman, we have just spent a great deal of time outlining what must be proven to a federal court judge before an order allowing a wi retap is authorized, the require ments of showing that other investigative measures have been tried and failed, other investigative procedures are unlikely to succeed, or the urgency of the matter. The order from a judge, if the application had been proven all of that, is required to set out the specific addresses where the private communications may be intercepted.

Having shown all of that, having been approved, as we have said, by senior officers of my department and the Police Department and then by a federal judge, all of those preliminaries having been approved by the people involved • . . The Member picks out - for example, my house - a fairly unlikely situation. So let me just say that what is required to be done again is all of the matters that we have referred to earlier and the proof that's required in 17 8.1 3. - 617 -

Monday, 10 March, 1980 MR. CORRIN: Perhaps the example I gave was not apropos. Perhaps I was being unfair to the Minister to even suggest that any person who the police might suspect had committed a crime could ever be present in his home, bu t the re marks that I am about to make are said with respect to the me mber affected. We have discussed them before in these Estimates and I think, in fairness, he suggested that he doesn't mind, he thinks it is for the general betterment of society. The police obviously suspected a member of this House of committing a crime.

They obtained a warrant , we know that because he has told us that; they obtained a warrant, and he received notice of that subsequently, to electronically eavesdrop on his telephone conversations. In so doing, as I understand the law, they would also be allowed to implant bugging devices. It is an omnibus permission. It extends beyond just the wiretap interception. It would also go to the implant of bugging devices. Now, Mr .

Chairman, although the police may not have wanted to implant such a bugging device in the Honourable Minister's recreation room, they may well have decided it was to their benefit to implant such a device in the Honourable Minister's caucus room, knowing that the member who was under suspicion had use of that room and was in the room and talking to a variety of people during the day. They might have thought that something germane could have come to the fore as a result of that sort of thing.

So during the early hours of the morning when the building was locked and caucus doors were bolted, an RC M Police officer might have, by ille gal means, stealthily entered the building and forced the door, or used some sort of sophisticated method to open the door, and implanted several very sensitive bugging devices under the desks of honourable members who share those caucus offices. Now, Mr.

Chairman, I would ask whether or not, if the police had done that, whether the Honourable Minister would think that that should be sustained and upheld, and that the law should be revised in order that the policeman doing that should not be guilty of a criminal act; that even though he or she entered the pre mises by force, clearly not an invitee, that that person should do so with impunity, and the evidence should be available in court. Is that what the Honourable Minister is asking the Minister of Justice, his federal counterpart, to provide in the law? MR. MER CIER: Mr.

Chairman, a few days ago the Me mber for Welli ngton chastized the Member for Wolseley for raising matters that were personal to him. MR . CO RRIN: That is up the Ch airman, don't ask me. MR. ME RCIER: And he, I found in the last few days, continually makes reference to those circumstances. But I am not going to in any way become involved in that matter. It is not neces sary, I point out to him, Mr. Chairman, to enter an address to put a wi retap on the telephone. MR. CORRIN: Mr. Chairman, the Minister is circumventing and evading the issue.

The issue is not a wiretap on a telephone, it's the implantation of a bugging device. I don't know how I can say it more clearly. Now, I am suggesting that in the Dass case they entered the building to implant the device. They had to break a lock to get in; whether they broke it or not is irrelevant. They entered it illegally without a search warrant, without permission; they entered by stealth onto the premises, and therefore, if they were normal citizens, ordinary citizens, they had broken the criminal law of this country.

And what I'm asking the Minister, I'm not asking him to comment on the case before the courts involving the Me mber for Wolseley. rm asking him whether he would approve, since he wouldn't discuss whether - he said it was too hypothetical to discuss his recreation room and his personal dwelling. rm asking him whether he would approve the same sort of activity on the part of the police with respect to his caucus office, or if he doesn't want to discuss the case before the courts, le t's hypothetically presume that the Me mber for We llington is under suspicion, and it's my caucus office that's broken into for the purpose of implanting the device.

Would he approve of that? Would he approve of the police entering? And that's what he said he wou ld, Mr. Chairman. And with respect, I suggest he said he's asking his federal counterpart to revise the law in order to allow exactly that sort of police activity, activity which otherwise has been deemed illegal by the Manitoba Court of Appeal. So that's the question, and I would appreciate a response from the Minister. - 618 -

Monday, 10 March, 1980 MR . MER CIER: Mr. Chairman, every case is different, and the facts of every case are different, and people involved in the use of rooms or premises or addresses are different. And as I have indicated on a number of occasions, this power is not used in any normal or haphazard fashion. It's an extraordinary remedy and is dealt with seriously by the Department. A judge must be satisfied. There are situations in which I would approve the entering of an address for the purpose of implanting a bugging device.

The Dass case was not one that was prosecuted by our department, it was a federal prosecution, but it was an internationad drug case in which, I understand, it would have been very difficult to obtain a conviction without the methods that were used in that particular case. And I have no compunction, in those cases, of approving the entry of an address to implant a bugging device. MR. CORRIN: In that case, I would wonder whether the Minister took the opportunity to appear before the McDonald Co mmission into the activities of the RCM Police.

As I am sure the Minister is aware, that was a substantive point at issue in the course of the McDonald Inquiry. It had been discovered that those sorts of activities we re taking place. I believe there were break-ins in order to obtain material, material that the police thought might provide them with information leading to a future arrest.

As we, of course, found out, some of the material that they were obtaining in this manner was not material that was germane to criminal prosecution, but rather had to do with people's legitimate rights of free expression, br eaking into newspaper offices and so on and so forth, the offices of registered political parties, things of that nature. I would ask, since the Minister feels so strongly about the need for the police to have this extraordinary power, whether he wouldn't feel that the representation should be made to McDonald.

Perhaps he did make the representation to the McDonald Com mission that the RCM Police should have this extensive power and put our province on the record, as it we re, in support of that. MR. MERCIER: I did, Mr. Chairman. MR . CHAIR MA N: 2.(b)(l) - The Member for Wellington. MR . CORRIN: I would just like to express, certainly, my personal regret that the Province of Manitoba took that position. I was personally unaware of the fact that Manitoba had done that.

I would suppose, having heard that, I would like to know whether the Minister made a personal submission that was not carried, or whether it was a written submission by himself, or presented on his behalf by someone else. Pd like to know when this was done, and how it was done, and how it seemingly seemed to manage to avoid public scrutiny. MR. MERCIER: Mr. Chairman, the submission was written to the commission. MR . CORRIN: I'd like to ask why it wasn't tabled in the Legislative Assembly.

I'd like to ask whether copies of this submission were made available to members of the Legislature, whether they we re made available to the press? If the Minister could reply to that question, Mr. Chairman. MR. MERCIER: The answer, Mr. Chairman, is no, they were not tabled, no they were not distributed. In this correspondence, we are attempting to bring to the attention of the commission the decisions that were being rendered in the Manitoba courts.

When the Queen's Bench decision in the Dass case was made, we informed the commission of that decision and similarly, when the Court of Appeal make their decision, we informed the commission of that decision and the dilemma in which law enforcement authorities found themselves. MR. CORRIN: In this respect, Mr. Chairman, I think that it's of some relevance and merit to discuss the whole question of clandestine reports at various levels of this department. As was stated in the first day's proceedings, Mr. Chairman .•• MR . CHAIR MAN: The Honourable Minister. MR. CORRIN: A point of order? Mr.

Chairman, the first day we asked again whether we could see the Knox Report on Court Administration. We we re told we could not. We asked whether we could see the Hall-Pilkey Report into the Minister's Department and court - 61 9 -

Monday , 10 March, 1980 administration. We were advised that it, too, was not available. We asked whether we could see the report prepared by Messrs. Philco and Norton with respect to the Minister's Department. We were told, no. We asked whether we could see the Manitoba Police Co mmission report into the Frampton case. We were told that there is still some matter before the court. We asked whether or not we could see the recent Manitoba Pr ovincial Judges report on the Chief Judge's powers, which was on the front page of the Winnipeg Tribune, but is not available to members of this committee. Mr.

Chairman, we seem to have an endemic problem. Virtually no thing of a constructive nature in this province that is relative to this member's department is available for public consumption. Everything is done on a clandestine, secretive basis. Every single document that's prepared is privileged. It's stamped "For Minister's Eyes Only ", and that's the end of it. We don't experience that with respect to the vast majority of the other departments. The Labour Department issues a lovely prospectus that tells you everything it did, as the Member for St.

Johns said, gives you detailed statistics on departmental activity, gives you some idea of what is ongoing, what is proposed, what policy is. This department - it's a closed door. The atmosphere is absolutely repressive. Mr. Chairman, on the week-end, just to see if I was the only one that was out-of-step, and if my thinking was wrong, I went and checked the Ontario records. In 1976 , they did a study into their courts. They, too, had problems, and they did a study. Mr. Chairman, if I might just leave my seat for five seconds, I want to show you the study. Excuse me, Mr. Chairman. Mr.

Chairman, in Ontario, when they do a study on court administration, it's called the White Paper on Court Administration, and the Ministry of the Attorney-General publishes it. None of this nonsense about every report being privileged and private. They're not afraid to talk about their problems. They have a

section entitled "The Cri sis Facing the Courts ", another section, "Origins of the Case load Cr isis ", all the things that we studied here, studied ad nauseam for the last 2 1/2 and three years. They had a central project, they did an experimental project, perfectly rational - by the way, it was an all members committee, they didn't seem to feel that it was necessary to keep refer ring the matter back to special counsel and advisers. They assessed and monitored their special project - it was called the Central West Project - then they tabled the report , with an evaluation of the experience in Central West.

Perfe ctly consistent with rational policy formulation. Nobody was embarrassed; Mr. Mc Murtry is still as popular as ever. As a matter of fact, it went so far as to recommend a whole series of judicial revisions. They have something called

an Act to provide for the reorganization of the administration of the courts that came out of it. It's a lovely document for someone who's interested in the subject to peruse and get a final review of what's transpiring in Ontario. Mr. Mc Murtry signed his name to it , he wasn't ashamed of it, he put his name to it, and said we had a problem, but this is the way we're going to lick it. Why, in Manitoba, do we have to do four studies - and I don't think I counted the special judicial report that we didn't see either until the Honourable Opposition Leader managed to get a clandestine, furtive copy provided to him.

Why do we have to do all those sorts of studies when other jurisdictions seem to get by in the light of public scrutiny? Why do we have to have such special status and treatment for our problems in the courts? I don't understand it, and it's just consistent and it's endemic. Everything in this department is not for public eyes, it's beyond the pale. And it's really questionable whether or not the administration of justice can be served by a department that seems absolutely adamant with respect to its protection of its functions, the retention of secretive procedures relative to public matters.

There's no excuse for that. We're going to spend some $36 or $38 mill ion on this department in the next year. I can't see, since that's taxpayers' money, why taxpayers aren't entitled to know. Why can't they know what the problem was? Mr. Knox spent the better part of a year studying the crisis in the court caseload. Surely he made substantive recommendations. We may have criticized his recommendations, but I can assure you that I know that he is a qualified, capable man. Surely he made good recommendations.

Why can't we know which recommendations were implemented, which were accepted by the department and the Minister, and which were thrown out ? Why can't we know something as simple as that? rm sure Mr. Knox would like to know that. Why can't we know why certain recommendations were not implemented? That was in a press report, the Minister was at least candid enough to admit that he would not adopt everything in the Knox Report. There were some things that he felt deserved further review, or that weren't curr ently palatable. But why is that the case?

Why can't the opposition be assisted in doing its job, why can't the public see, why can't members - I wonder if members of the govern ment have seen the Knox Report? I would be inclined to think that members of the Minister's own side, if they were to candidly express their own perspective of the situation, would have to admit and confess that they were indignant in not being able to gain access to the report. Why shouldn't - 620 -

Monday , 10 March, 1980 a rural mem ber, if he's concerned about admini stration of justice in his area, be able to see what one of these rapporteurs says about it in his area? Why shouldn't he ? Would it hurt the system? Would anybody's rights be impaired or impuned because a me mber of the Legislative Assembly read a report prepared by som ebody that - I don't know whe ther we paid them, I think most of these people work gratuitously - but why should that be the case? Why can't we go to the system that seems to be accepted in Ontario, why can't we talk about all-party committees?

Why can't we do that sort of public investigative work? The Minister may not want to answer that, but I think that's really the cloud that's hanging over his department, and won't go away until we confront it. And it's leg itimate. Why should the report have been made to the Mc Donald Comm ission of Inquiry wi thout membe rs of this House knowing it? Why shouldn't we have known what you were recom mending to Mr. Justice Mc Donald ? Why is it nec essary that everything be done behind closed doors ? I think that me mbers on this side, Mr.

Chairman, are disgusted wi th that and I think all right-thinking Manitobans, to use a phrase that the Premier of this province holds so dear, all right-thinking Mani tobans should be disgusted as well. MR. ME RCIER: Just briefly, Mr. Chairman, for example, the Uniformity Law Conference report is tabled in the Legislature each session, containing the recom mendations and positions taken at that conference. On that conference, we had in addition to some me mbers from the department, a lawyer appointed from the civil side, Mr.

Smethurst, who had been for some time the private lawyer involved on the civil side and has also been on the Law Reform Com mission. On the crimi nal side we appointed from the private bar the chairman of the crim inal law subsection, Mr. Hymie Weinstein, and that report again will be tabled in the Legislature. The Me mber for Wellington refers to not all of the Frampton Inquiry Report and sort of tosses off the suggestion that some thing is still before the courts. What is before the courts is a criminal prosecution.

We spent a couple of days hearing from him about his concerns for people accused with crimes and that we shouldn't publish their names, and here we have a situation where not all of the report is being released because release of the report could prejudice a fair trial of the accused , and I thought he would have agreed wit h that kind of proposition. He refers to comme nts from the Provincial Judges' Association to me which appeared in a daily newspaper. I indicated to him that I, and in the past have indicated, I've met wit h the executive of the Provincial Judges' Association on the Act and other matters.

They und ertook to review the Act and send their rec omm endations to me on a private and confidential basis. That's the way they prefer to operate and it is comme ndable, because I would have thought that he would have agreed that he doesn't want judges to become involved in the public arguments over policy matters. That's not their role. I thought it was important that they be given an opportunity to make their comm ents on

an Act which affects their operation, and my understanding of that was that it was comp letely confidential. Somehow that report appeared in the newspaper as do a nu mber of reports from their association. He refers to the Knox Report. We issued a lengthy news release on that particular report and the Provincial Judges report on backlog. I'm prepared to review wit h him the recomme ndations that were made and the progress that has been made on each recomme ndation.

I've indicated to him and to others that there were comm ents that were related to personalities, and I don't think those are properly a matter of public air. He refers to some other things, the Norton Philco Report; I know of no such report. You know, under that criteria any letter written to me by any outside lawyer would be a report, when any number of lawyers and people in the province on a daily basis write and comment on various matters that the department might be involved in. He refers to the Hall Pilkey Report. There is no report.

There is ongoing consultation, as I've indicated previously, with the federal court jud ges and the provincial court judges on the adm inistration of court services and how we can more closely consult wit h them. We're making efforts in that area to involve them and make sure they're involved in the decisi ons that affect the operations of their courts. Mr. Chairman, I reject the im plication that everything in the report is done in a clandestine manner. One, he refers to the report, or maybe he didn't , but I know that for example that most other departm ents in government do file an annual report.

There is no requirement for the Attorney-Gen eral's Department to file an annual report. Maybe there should be. But that apparently is the history of this department going back for many many years. While other de partments have been under a legal requireme nt to file an annual report, - 6 21 -

Monday , 10 March, 1980 this department never has had that obligation. Perhaps we should consider whether or not that would be an appropriate function for the department to undertake. MR . CORRIN: Just very brie fly dealing wi th some of the, to use a legalistic phrase, some of the alibis that are levelled on behalf of the department and the Minister. Mr. Chairman, through you I would note that in the case of the Knox Report, the fact that Mr. Knox made mention of a few personalities does not preclude the Minister from providing mem bers of the Legislature wi th the recomme ndations made by Mr.

Knox - all the recomme ndat ions made by Mr. Knox, not a news release. -We would like to see them. We would like to see the actual docu ment. We'd like to have the same rights as an accused in court , the right to cross examine; we'd like to be able to read the document which says that the action taken by the Minister and his government is justified. We haven't been able to do that, so of course we're malcontent. If he were in the opposition and he were reviewi ng our government's estimates of his department, he would say exactly the same thing , and he would be right. With respect to the Frampton Inquiry, Mr.

Chairman, the Minister indicates that I want it both ways. On the contrary, I don't want it both ways. I would note that everything that transpired before the Manitoba Police Commi ssion happened in full view of the Manitoba public. The press was present. They carried daily accounts of the Frampton Inquiry. I'm sure that we were all aware of that because daily various questions were presented during the Question Period to the Minister. So let's not kid ourselves, everybody knows what happened at the Frampton Inquiry, and by not rele asing the recomme ndations made by Mr.

Schulman as the Chairman of the Manitoba Po lice Comm ission, the Minister does nothing to enhance the respect for law and justice in this province. Presumably Mr. Schulman doesn't serve just the Minister. Mr. Schulman serves all the taxpayers when he makes such an extensive and intensive review of the state of police/citizen relations. So, Mr. Chairman, respectfully through you, I would submit that it is specious for the Mini ster now to suggest that he will not release Mr. Schulman's recomme ndations because he's afraid of prejudicing the rights of people who are now before the courts.

We got a blow-by-blow account in both daily newspapers in Winnipeg, and certa inly on every radio station hotline show and every evening newscast on television. We all know exactly what Mr. Frampton alleges to have happened. And I might add that at this point therefore there is no possibility of jeopardizing either of the police office rs' rights. It would of course enhance the ability of people in this assembly to make better laws for the protection of our people. If we are contin ually waiting, what is happening in the interim? I would ask the Minister, is he undertaking to reform the law in that respect?

Is he acting on Mr. Schulman's recomme ndations? Is there going to be any initiati ve taken? It's been many months since Mr. Schulman tabled his report. MR . CHAIRMAN : The Me mber for Elmwood. MR. RU SSELL DOE RN (Elmw ood): Mr. Chairman, I think we can probably pass this item and then move committee rise. MR . CHAI RMAN: The Member for St. Vital. MR. JAMES D. WAL DING (St. Vital): Mr. Chairman, before this matter passes I just have one sma ll item to bring up with the Minister. I und erstand that the Manitoba Liquor Control Com mission comes up under the Mini ster's Salary as the last item.

I have in my file the annual report of the Liquor Control Commi ssion for the year ending 1979 but I can't find a copy of the Chief Inspector's Report for the same year. Would the Minister make it available for me before we get to that point ? If it hasn't been published yet, perhaps the Minister can explain the delay. MR. CHAIRMAN: The Honourable Minister. MR . ME RCIER: Mr. Chairman, I've just received that report. I guess it's just been printed, and in fact I intended to file it tomorrow. MR. CHAIRMAN: 2.(b)(l)- -pass; 2.(b)( 2)--pass .

Resolved that there be granted to Her Majesty a sum not exceeding $3,087, 700 - Attorney-General. Committee Rise. - 622 -

Monday, 10 March 198 0 SUPP LY - LABOUR AND MANP OWE R MR . CHAIRMAN, Mr. Abe Kovnats (Radisson): This committee will come to order. I would direct the honourable memb ers to Page 68 of the Main Estimates, Department of Labour and Manpower. Resolution No. 90, Item 2. Labour Div ision (

a) Workplace Safety and Health. Item

(1) Salaries--pass; ( 2). The Honourable Me mber for Logan. MR . WIL LIAM JENKI NS: I wonder if the Minister could give us a breakdown on (1) here on the personnel that are involved wi thin the department and whatnot that we've had. -(Interjection)- We've already had that this afternoon? I see, okay. MR. CHAIR MAN: (2 )--pa ss: (a)--pa ss. Item (

b) Mechanical and Engineering, Item

(1) Salaries--pass. The Honourable Minister. HON. KEN Mac MASTER (Thompson): Mr. Chairman, Mechanical and Electrical Branch - the branch is responsible for the admini stration of seven Acts and nine separate regulations, all pertaining to the safety of equipment or buildings and the licensing of tradesmen. There are nine separate boards or commit tees directly affiliated with the legislation, and 12 comm ittees responsible for various parts of Manitoba Building Code, each responsible to the Building Standards Board.

The criteria for safety inspection of equipment and buildings is contained in national codes made up by comm ittees that include representatives from each province, industry, manufacturers, users, etc. These codes are printed and distributed by the Canadian Standards Association, the Canadian Gas Association, Underwriters Laboratory of Canada, Am erican Society of Me chanical Engineers, Amer ican National Standards Institute, National Board of Boiler and Pressure Vessel Inspectors and the National Research Council, and others.

The branch participates as a mem ber, chairman, secretarial or advisory on 54 boards or comm ittees. These include local, nat ional, int ernational boards and commit tees. The total allocated staff of the branch is 52 persons. Inspectional staff directly involved in inspections as required by legislation total 35. An office staff of 12 support the inspecti onal staff and others such as trades examiner, me chanical plans examiner, and registrar. The numb ers in the department, Mr. Chairman, last year there was 52.31 SMY s, this year there are 54 .31 SMY s.

Two additions, which of course aren't filled, presently there is one vacancy for a boiler inspector which is in the process of being filled, and one regular engineer to be converted to a building standards officer and advanced for filling. MR. CHAI RMAN: (1 )--pass . The Honourable Me mber for Kildonan. MR . PETER FOX: Yes, Mr. Chairman, I wonder if the Minister could give us some detailed informati on in respect to the fact that we had this accident here with an explosion at this home, and out of that came the fact that there was some wrong kind of connectors involved.

I wonder if he could inform us whether there is a record of how many homes had these kind of connectors installed and how many have been changed to date, and if there are still possibly some of these being used by the industry wi thout approval of the Department, or are all of these installations now inspected each time they are made? MR. Mac MA STER: Mr. Chairman, I wonder could the Member for Kildonan carry on wi th his questioning and I will try and get those facts. You know, I have most of them here, just not put together the way that he asked the question, so ... MR. FOX: Thank you, Mr. Chairman.

The other thing I wanted to ask was in respect to the fact that we also had an elevator accident. There was an investigation into that, and whether it is being considered that any charges be laid in respect to the people who owned the building, or the people who were involved in servicing the elevator, or whether we are just going to ignore the fact that a fatality occurred, and whether there has been a step-up in inspectio ns in respect to elevators that are automati cally operated in various buildings in the province? - 623 -

Monday, 10 March 19 80 Later on I would like to get into the area of the inspection in respect to am monia plants and of course the power engineering aspect. I did ask a questi on of the Minister in respect to the fatality at Dominion Tanners and he hasn't given us any answers to that yet. I just would like to know, besides Dom inion Tanners, how many other com panies are operating wit h unqualified power engineers or below qualification power engineers, if he has that. MR. CHAI RMA N: The Honourable Member for Elmwood. MR . DOERN: Mr.

Chairman, I wanted to make a point or two and ask some questions about the Winnipeg Arena, because I find the manner in which that issue has been handled by the City and by the Province as to be rather peculiar. I would refer, as an example, to a recent edi torial in the Winnipeg Tribune on January 19 th, which is under the heading of "Safety First At The Arena", and the sub-heading is "Not Revenue".

This edito rial goes on to talk about the fact that the Winnipeg Enterprises Corporation is taking a good deal upon itself when it places revenue before public safety and then refers to the fact that there is concern about the new upper decks and the concern of City Inspector Supervisor Fred Nicholson about the effect of sway in the upper decks.

We all recall how months ago there was a great rush on the part of the City of Winnipeg to build the new expansion and, in my own judgment, I think that they probably went the correct route; namely, that they were probably sma rter to make an expansion than to build a new arena. I mean I think in principle, from an economy point of view, they took the rigAt first step. However, som ehow or other there was a great haste in the construction of the facility and then I recall a number of shocking photographs months ago in the paper where they showed some rather obvious cracks in the facility.

It seems that there is no doubt that the upper deck is safe, providing everybody sits still, bu t that if somet hing exciting happens and everybody jumps up, then this is putting a great strain on the particular facility. Well, I see my friend from River Heights, the freshman MLA . He says, "No". Well, he can be an engineer and he can be from the city and he may have been the Chairman, but there is a lot of people who expressed a concern and this has been going on for a long ti me.

We all know that the decks were closed and that there are still people today who feel a great deal of apprehension about going into the facility. I would like to know from the Minister what the role of the provincial government is in this particular project, whether there were provincial inspectors who had a role to play in terms of the safety of that facility. I know that there was some concern at one particular point in time about fire consid erations and there was a concern about fire exits and meeti ng certain requirements.

There was the Environment Com mittee using its discretionary powers to overrule their own Building Inspector in regard to exits and they gave a green light in regard to the proposed exits. So I wonder if the Minister could review the role of his department and his own role in that particular multim illion-do llar expansion so we could hear what he has to say. MR. Mac MASTER: Mr. Chairman, there has been two or three questions asked and I wi ll attempt to answer them as we go through. To the Me mber for Kildonan.

We have taken a survey in the last short period of time to attempt to determine how many connectors have been changed in the City of Winnipeg. The Greater Win nipeg Gas Comp any tells us, and this is just approximately two to three weeks ago, that they have changed 8,364 connectors, and I will go slow wit h the numbe rs so that .. • And private companies that we have polled, we polled 11 0 of them, they have changed 9, 043 for a total in Winnipeg of 17 ,407.

Now we have also done some polling in the outlying areas in the rural part of Manitoba and the best numbe r we can come up wit h today, that there's been 1,358 changed in the outlying areas outside the City of Winnipeg. So the total in the City of Winnipeg that we have determi ned that have been changed, is 7,407, and outside Winnipeg , 1,358 for a total of 18 ,756. The Me mber for Kildonan made reference to the elevator situation.

It's our opinion that it wouldn't have matt ered whether that elevator had been inspected five minutes before or five minutes after, that that wouldn't have helped in that particular incident. I th ink if the membe r wi ll recall the circumstances surrounding that tragedy, it had noth ing to do wit h the operation of the elevator. I outlined before that (

a) we were going to put signs in the elevators, and rd like to believe the majority - rm certainly not going to say them all because I'm sure you can find some - advising people what to do if there was a problem within the elevators. We're also working - 624 -

Monday, 10 March 19 80 with the companies that do maintain them. We're establishing the logbook system of notating when they were inspected and our inspectors are following up on that very very thoroughly. On the Tanneries explosion, Tanners that the mem ber mentioned, I forget just exactly what the question was, but if he'll allow me just to ramble for a minute I think I can probably answer it. The person that was operating, the person involved at that particular time, was not cerfified. That's a questi on you asked and I'm sure you knew the answer to it, but nevertheless that question was asked.

The company was prosecuted and fined $25 0 for its first offence; the plant is now open and operating, and it is in fact today operated by certified operators. And the plant is in a guarded status, whic h I'm sure the Me mber for Kildonan understands, that there is an automatic shutoff where operators have to be called and they'll leave that in place for a period of ti me until we're satisfied that the operation is back in shape and that there's no more possibilities of problems, to the best of our ability.

On the Winnipeg Arena situation, I concur in part with part of what the Me mber for Kildonan has said, and I don't remem ber all the comm ents that he made, --{In terjection) Elmwood, I'm sorry, the Me mber for El mwood. But the tone of his conversation, Mr. Chairman, certainly was that he seemed to express some concern wit h the hasty erection and the fact that things were proceeding rather rapidly and he expressed some concern for the people that were in the particular facility, and he expressed concern of the value of people's lives over dollars, and those type of concerns I share with him.

I wasn't satisfied at one particular point, Mr. Chairman, that the fire exiti ng and the met hod of exiting and the type of security that was on in relationship to fire exiting, I wasn't satisfied that that was in place and I was given pretty good advice. I think that's precisely one of the me mber's questions, why did I get involved? I was given what I consider very good advice, that those type of fire exiting precautions were not being followed, certainly to the intent of the Act. So I asked the Building Standards Board to involve thems elves and to deal wit h, I'm not sure if I say the name right, Mr.

Dennehy, I think, and with some of the city councillors. Consequently the press, and rightly so, I guess, picked it up that there were some problems and that the Minister of Labour was involved, and I felt rightly so. But I am satisfied that the fire exiting has been corrected and that things are in place in that respect.

The Building Standards Board, because of my involvement, is certainly working very closely with the City Inspections Branch and the Winnipeg Building Commi ssion, wh ich I should explain to the Member for Elmwood, he might or mi ght not be fam iliar with it, the Winnipeg Building Com mission is something si milar to our Building Standards Board. They have representatives from architects and engineers and city inspectors and that calibre of person involving - not specifi cally inspection s - but looking at codes and looking at blueprints and that type of thing.

So to the best of my knowledge, the Winnipeg Building Comm ission is satisfied with the situation at the arena today. If an apology is expected by anybody, and I don't know whether the Me mber for Elmwood felt that was or should be forthcoming, but I certainly do not have one to make. I wi ll continue listening to what I consider to be good advice and trying to weigh it, taking everything into consideration, and if I feel I should involve myself, I have no fear of doing so at the appropriate time, Mr. Chairman. MR. CHAI RMA N: The Honourable Member for St. Johns. MR . SA UL CHER NIACK: Thank you, Mr. Chairman.

There are two items I want to refer to. Firstly, the Honourable Minister referred, at the beginning of his most recent comm ents, to the gas connect ors and gave us statistics as to the number that have been replaced.

It has recently come to my attention that apparently the instructions that have been given out on the new connect ors was not com plete in that apparently, as I was informed, an inspector from the Winnipeg Gas Comp any attended at a certain home to inspect a meter, and whilst there looked at the new gas connector and found that there was a bend in the flexible portion of the gas connector which was too close to some part of the furnace that was warm or hot, and that it was badly installed. That was the new gas connecto r had been wrongly installed.

The owner of the home contacted the plumber who had made the installation and was informed that although there had been apparently classes or instructions sent out by the Department of Labour, there was no reference to that concern, and that he was not made aware of the need to ensure that the flexible portion had to be properly placed in a secure - 625 -

Monday, 10 March 1980 way. Now this was a licensed plumber, and I don't know whom else the consumer can consult, but the plumber was licensed to carry on business. The fault was laid by this person on whoever it was, and according to him it was the Department of Labour, which gave inadequate instructions or inadequate precautionary instructions. So I am looking forward to a comment on that, not the co mment but if the statement is correct and if there is a danger for improper installation which is not apparent on the surface, then it may not be too late; it should not be too late.

If indeed there is a danger with the installations that have occurred recently with the new gas connectors, then it is not too late for ,the department to notify the persons who install these connectors to ensure that they did not make an error in doing that. Because if indeed there is a danger of an explosion because of improper installation or maintenance of the old connectors, there would be a false sense of security for those who have the new connectors but wrongly installed.

So that is a matter for information to the Minister and I am looking forward to his reaction to the information I gave him as to whether it is correct or not and, if it is correct, how he proposes to deal with it. I must be a little more critical in regard to the question of the use of lower grades of power engineers.

I am not satisfied that we have heard enough answers from the Minister in regard to his justification for not lifting the present exemption as it applies to Hooker Chemical and to Simplot Chemical, and therefore I am going only by a newspaper report, that of the Winnipeg Tribune of February 22nd, 198 0, and may I say, Mr. Chairman, it is not uncommon for governm ents to blame the newspapers and the media for wrongly interpreting and wrongly putting govern ments in good light.

I have witnessed government Ministers making statements justifying their positions and accusing the media of distortion, wrongful reporting, inadequate reporting. And I say that with a sense of recollection of some eight years on each side of the House, and I am not discriminating in saying that somehow government people, no matter what their political orientation is, sometimes find that the media do not do the job that the government Minister would like them to do in reflecting a positive attitude to government and react to it.

So with that almost an invitation to the Minister to accuse the press media of wrongful reporting, I am going by this newspaper story and if it is incorrect then I am sure the Minister will point out the extent to which it is incorrect and give us his side of the story. --{Interjection)-- After I am through reading it. The Minister may have thought I was through, but I haven't even started to read it. I did refer to the reference, and as I say, I will le t him see it when I am through referring to it.

All right, I don't intend to read the entire article, bu t I will read excerpts and I will try to give the full picture. The headline reads "Government to Continue Firm's Exemption ". The story commences, "Labour Minister Ken MacMaster has no plans to lift a two-year-old exemption allowing two Brandon chemical firms to operate with low er grades of power engineers than required by law ", and then I skip to where it states that the issue was raised by the Institute of Pow er Engineers, which is concerned about safety aspects of operating without qualified engineers on duty. Then, "Mr.

MacMaster cited a shortage of power engineers in Manitoba as one reason Simplot has been without a First Class Engineer as required under its exemptions status. He said the Compa ny advertised for staff in Manitoba with no luck and then received three applications from outside the province, two of those were withdrawn and the third applicant, who was to start work later, decided not to take the job. Mr. MacMaster said Simplot has an in-house training program through which six workers will be writing tests soon for their Second Class Engineers. " The balance of the story deals with an interview with a Mr.

Penner of the Institute and comments about his concern. Mr. Chairman, relying on this information as stated in this release, which I am now sending across to the Honourable Minister, I want to make these comments, Mr. Chairman. When the predecessor Minister granted exemptions to these two firms she was attacked from this side of the House for giving that kind of consideration to these two firms, one of which at least, I believe, has received government subsidy and support in the past, and both of which, I understand, are substantial successes in their business.

The excuse was they could not get engineers and therefore there had to be an exemption. Two years have gone by, and I am sure, as had been indicated, the present Minister is equally aware of the fact that exemptions have been granted. Now I have to say, Mr. Chairman, that an exemption to me should be something of a temporary nature or the law is wrong. Either the requirements are too rigid or they have to be complied with. Two years to me is a long long time to give to these firms to let them get the necessary employees to comply with the law.

I can understand a temporary exemption for an adjustment period, but I - 626 -

Monday , 10 March 19 80 don't think that the predecessor Mi nister ever indicated that more than two years would be allowed to go by for this exempt ion to continue, for these people to continue to be in a position to have been breaking the law had not the government minister smiled on these com panies and permitted them not to break the law by granting a special exemption. I may be exaggerating this, Mr . Chairman. We will find out, but I am only going by the news story which indicates that the engineering institute referred to is concerned. Now, Mr.

Chairman, if they are concerned I am concerned, and I trust that the Mini ster is concerned, and I do not accept any explanation such as is given in that

article , which may not be co mplete, may even be wrong. But the explanation there is they couldn't get engineers. Mr. Chairman, this government, want ed to have a Hydro General Manager, I don't know how far they looked within the province but they went out of the province. They got a General Manager of whom they were terri bly proud. I don't know what they are paying but, Mr. Chairman, they are obviously paying what the market requires them to pay.

And need I refer to Bobby Hull who was brought to Winni peg, he may never have heard of Winnipeg for all I know but he came here at a price which was considered to be wild, but somebody thought it worth paying to bring a per son, and I refer to Bobby Hull as probably the highest paid athelet e ever to come to Manitoba, be cause they found the financial return worthwhile to offer him the million or more dollars that they paid hi m. Now as far as I am concerned, Mr.

Chairman, if the safety requireme nts of thi s province set out a certain standard, a qualification, for an engineer to be in a plant on the basi s of safety, to me it is not an excuse to say they couldn't find a person to fit the bill, because, Mr. Chairman, there must be engineers in Manitoba doing that job in ot her plants, and the free market being what it is, the free enterprise system being what it is, and the economic system being what this government protests is the best way, then why is it that they couldn't get engineers from other plants to come and work for them?

I don't understand that and I hope I wi ll hear elucidation on it. The Minister for Economic Development is present and maybe he can answer the question as to why it is that a firm like Si mplot or a firm like Hooker isn't able to pay a price which would mean that an engineer from some other Manitoba firm wouldn't come to work for them. Is there some maximum price which any firm will pay and pay no more even though it would break the law except for the good grace of a Minister of Labour?

Or can it be said that nowhere else on this continent could an engineer be found, for a price, to come to li ve in Brandon or wherever to do the job to fulfill the safety requirements of this province. I think it is ludicrous to say that after two years they couldn't find an engineer, and again I am going on the basis of that story.

They could find an engineer if they were willing to pay the price; and if they are not willing to pay the price and if the law is ri ght , and it must be because in two years this government hasn't changed the law, then this government is countenancing a continuance of a breach of the law by two firms who apparently are not able to pay the price to get the proper people to come to work for the m.

It has been pointed out to me, of course, I said not able to pay the price, that must be in their own mi nds because they are certainly able to pay the price if the balance would be that they would have to close up shop, which of course they would have to do if not by the good graces of the Minister of Labour. So that obviously they are not wi lling to pay a price which is sufficient to bring it in. Mr.

Chairman, I look at you, a person to whom the story I have just recounted about Bobby Hull is nothing new , you have seen football players come and go, football players to whom the climate of Manitoba was completely unattractive but the price was right. We have seen in many many occupat ions in this province the opportunity to have people come and work and contribute to the province at a price which they determine is fair and right from their stand point. Now I hope the Minister will not just confirm that news story where he says they were unable to get engineers in two years ti me.

I hope he wi ll be able to give a proper explanation which will elaborate on the story without in any way say they can't get the people, be cause that statement I wi ll not believe. If the statement attri buted to him is truly the state ment he gave and believes then I cannot accept it, that they cannot get engineers.

So I challenge the Minister to clarify the news story and to justify, if the news story is correct to try to justify it, if it is incorrect to clarify it quickly and tell us why it is that for two years the two firms have not had the quality or the qualificat ion of engineers that the law requires them to have. MR . Mac MASTER: Well, Mr. Chair man, if the Me mber had chosen to ask the question first and let me answer it then there mig ht not have been any need for the long .•• - 627 -

Monday , 10 March 19 80 MR . CHERNIACK: If the Minister would permit me to interrupt him just for a moment, just an explanation. Mr. Cha irman, I appreciate the fact that the Minister has mo re courtesy than some of his colleagues. I have a matter I must take up at the Attorney-General's Estimates. I want the Minister to know that I really must leave and it is no way a slight to him. I will certainly read the Hansard and see what he said. I hope he understands the reason for my leaving . MR. CHAffiMAN: The Honourable Minister. MR.

Mac MASTER: Well, as the membe r is walking out the door I'll tell him that he may be pleased to know that wi thin the next four to six weeks we expect to be lifting the restricti ons or the exem ption for Hooker Chemic al and that' s what I was hoping to get into before he got into it. We hope that the Si mplot will be in the same shape in not too long a future but certainly Hooker itself, the exem ption wi ll be lifted shortly. That's the only thing that I really see wrong with the

article and it's not totally wrong. It said that I didn't foresee us lifting either one. I guess during the course of the conversation the news reporter - and it doesn't say it who it was, it 's not impo rtant - asked if either one was going to be immed iately lifted. I assume that was his question. I must expect that from the reply and the answer at that particular point was no but I remembe r talking to some report ers who said , is either one ever going to be in shape and I said I thought that Hooker Chem ical Plant was coming on line pretty rapidly and

Document details

Collection	Manitoba — Debates (Hansard)
Citation	31-4-13b
Type	hansard
Volume / chapter	31st 4th hansardpdf 13b.pdf
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	29d49cebc08a1add3c17518269f7238cfbb308ed

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