Manitoba Committee Hansard — 13 July 1993 (Education Committee, Sitting 22, 35th Legislature, 4th Session)

35-4-ed22

Manitoba — Debates (Hansard)

MG-8048 Fourth Session - Thirty-Fifth Legislature of the Legislative Assembly of Manitoba STANDING COMMITTEE on ECONOMIC DEVELOPMENT 42 Elizabeth II Chairperson Mr. Jack Reimer Constituency of Niakwa VOL. XLII No. 22 - 7 p.m., TUESDAY, JULY 13 , 19 93 ISSN 0713·9969

MANITOBA LEGISLATIVE ASSEMBLY Thirty-Fifth Legislature Members, Constituencies and Political Affiliation NAME ALCOCK, Reg ASHTON, Steve BARRETT, Becky CARSTAIRS, Sharon CERILLI, Marianne CHOMIAK, Dave . CUMMINGS, Glen, Hon. DACQUAY, Louise DERKACH, Leonard, Hon. DEWAR, Gregory DOER, Gary DOWNEY, James, Hon. DRIE DGER, Albert, Hon. DUCHARME, Gerry, Hon. EDWARDS, Paul ENNS, Harry, Hon. ERNST, Jim, Hon. EVANS, Clif EVANS, Leonard S. FILMON, Gary, Hon. FIN DLAY, Glen, Hon. FRIESEN, Jean GAUDRY, Neil GILLESHAMMER, Harold, Hon. GRAY, Avis HELWER, Edward R.

HICKES, George LAMOUREUX, Kevin LATHLIN, Oscar LAURENDEAU, Marcel MALOWAY, Jim MANNESS, Clayton, Hon. MARTINDALE, Doug McALPINE, Gerry McCRAE, James, Hon. MciNTOSH, Linda, Hon. . MITCHELSON, Bonnie, Hon. ORCHARD, Donald, Hon. PALLISTER, Brian PENNER, Jack PLOHMAN, John PRAZNIK, Darren, Hon. REID, Daryl REIMER, Jack RENDER, Shirley ROCAN, Denis, Hon. ROSE, Bob SANTOS, Conrad STEFANSON, Eric, Hon. STORIE, Jerry SVEINSON, Ben VODREY, Rosemary, Hon. WASYL YCIA-LEIS, Judy WOWCHUK, Rosann Vacant Vacant Vacant CONSTITUENCY Osborne Thompson Wellington River Heights Radisson Kildonan Ste.

Rose Seine River Roblin-Russell Selkirk Concordia Arthur- Virden Steinbach Riel St. James Lakeside Charleswood Interlake Brandon East Tuxedo Springfield Wolseley St. Boniface Mi nnedosa Crescentwood Gimli Point Douglas Inkster The Pas St. Norbert Elmwood Morris Burrows Sturgeon Creek Brandon West Assiniboia River East Pembina Portage Ia Prairie Emerson Dauphin Lac du Bonnet Transcona Niakwa St. Vital Gladstone Turtle Moun tain Broadway Kirkfield Park Flin Flon La Verendrye Fort Garry St. Johns Swan River Rossmere Rupertsland The Maples PARTY.

Liberal NDP NDP Liberal NDP NDP PC PC PC NDP NDP PC PC PC Liberal PC PC NDP NDP PC PC NDP Liberal PC Liberal PC NDP Liberal NDP PC NDP PC NDP PC PC PC PC PC PC PC NDP PC NDP PC PC PC PC NDP PC NDP PC PC NDP NDP

706 LEGISLATIVE ASSEMBLY OF MANITOBA THE STANDING COMMITTEE ON ECONOMIC DEVELOPMENT Tuesday, July 13, 1993 TIME -7 p.m. LOCAT ION- Winnipeg, Manitoba CHAIRPERSON - Mr. Jack Reimer (Nia kwa) ATTENDA NCE - 11 -QU ORUM - 6 Members of the Committee present: Hon. Messrs. Driedger, Gille sha mmer, Orchard ' Ms. Barrett, Messrs. Edwards, Marti ndale, Pallister, Penner, Reid, Reimer, Mrs.

Render APPEARING: Reg Alcock, MLA for Osborne Avis Gray, MLA for Crescentwood WITNESSES: Bill 33- The Provi ncial Rai lways and Consequential Amendment Act Don Tennant, Uni ted Transportation Union Bill 30- The Vulnerable Persons Living with a Me ntal Disabil ity and Conseq uen tial Amendments Act Bill Martin - Canadian Men tal Health Association Allistar Gun son - Association for Commu nity Living, Manitoba Ther esa Duc harme - People in Eq ual Participation Inc. (PEP) Rod Lauder - Private Citizen Zana Lutfiyya - Private Citizen Barbara Bird - River East Advocacy Coalition for the Handicapped Inc.

Roger Kiendl and Carl Stephens - St. Amant Society Jean Smith and Debbie Doherty - Transcona Springfield Association for Special Needs Inc.

Ann Zebrowski - Private Citizen Bill 31- The Health Ser vices In sur ance Amendment Act Anna Desilets - Alliance for Life Audrhea Lande - Private Citizen Amanda Le Rougetel - Coalition for Reproductive Choice Lori Johnson - Morgentaler Clinic Robbie Mahood - Private Citizen Cynthia Byers - Private Citizen MATTERS UNDER DISCUSSION: Bill 30- The Vulnerable Persons Living with a Men tal Disabi li ty and Co nseq uen tial Amendments Act Bill 31- The He alth Services Insu rance Amendment Act Bill 33 - The Pr ovincial Rai lways and Consequential Amendments Act *** Mr.

Chai rper son: Will the comm itte e on Economic Development please come to order. The comm ittee will proceed with public presentations on Bill 30, The Vulnerable Persons Living with a Mental Disability and Consequential Amendmen ts Act; Bill 31 , The Health Services Insu rance Amendment Act; and Bill 33, The Provi ncial Rail ways and Co nseq uen tial Amendment Act. I have a list of persons wishing to appear before this committee . For the comm ittee's benefit, copies of the presenters list have been distributed.

Also for the public's benefit, a board outside the committee room has been set up with a list of presenters that have preregistered. I will not read the list since member s of the committee have copies. Should anyone present wish to appear before this committee who has not already preregistered, please advise the Chamber staff at the back of the room and your name will be added to the list. At this time, I would like to ask if there is anyone in the audie nce who has a written text to accompany their presentation.

If so, I would ask that you forward your copies to the Page and the Clerk at the back of the room at this time.

707 LEGISL ATIVE ASSE MB LY OF MAN ITOBA July 13 , 19 93 Before we proceed, is it the will of the committee to apply time lim its to the public presentations? Hon. Donald Orchard (Minister of Health): Mr. Cha irperson, I wonder, my li st sh ows two prese nters to Bill 33. If there were not other presenters to Biii S3, I wonder, as a convenience to those in dividuals, if commit tee might consider having them present first and then revert to the nume rical ord er of the bills, so tha t those individuals would not wait for considerable lengths of time. Mr.

Chairper son: I would just point out that there is one more, so there are actually three presenters for Bill 33, which has the lo west amount of presenters on it. Is is the will of the committee then to listen to presenters on Bill 33 first? Mr. Daryl Reid (Tran scona) : Mr. Chairperson, that we will be going through clause by clause on the bill imme diately after the presenters as well? Mr. Chairperson: No, we wi ll li st throu gh all presenters on all bills first. Bill 33- The Provincial Railways and Consequential Amendment Act Mr.

Chairperson: We will proceed then with Bill 33, and I wil l call on the three names who are presenters from Bill 33, Mr. Allan Ludkiewicz for C.P. Rail, Barry Domino and Don Tennant. I will then call on Allan Ludkiewicz, please. I will call one other time for Mr. Allan Ludkiewicz with C.P. Rail System. No? Well, then I will call on Mr. Barry Domino, United Transportation Union, Local 351 . I will call one other time for Mr. Barry Domino. I will then proceed then to call on Mr. Don Tennant. We have your written presentation, Mr. Tennant. You may proceed, Mr. Tennant. Mr.

Don Tennan t (Uni ted Transpor tation Union) : Mr. Chai rperson and memb ers, it is indeed a pleasure for me to appear before you today to present our submission on behalf of the United Transportation Union, Canada. As you may be aware, UTU Canada represents railway conductors, yard foremen, train and yard service employees on all railways in Canada. In addition , we represent locomotive engineer s on some short -line railways and bus operators in several locations. We are also affiliated with UTU, U.S., which represen ts these same crafts employed by the U.S. carriers, including Amtrak.

Our affilia tes also represent a fairly large bus memb ership throu ghout Uni ted States. Our Canadian memb ership is approxima tely 14 ,000; the U.S. membership is approximately 16 0,000; our Mani toba memb ership is approximately 1 ,200 . The Manitoba membership are employed on VIA, CN, CP, and Burlington Northern. Issues of concern to the UTU 1. Consequential amendments to The Manitoba Labour Act, to

section applicable by adding : Federal to provincial sale, with response to the sale of a business when (

a) before the sale, collective bargaining relating to the business by the predecessor is governed by the laws of Canada; and (

b) after the sale, collective bargaining relating to the business by the successor em ployer is gov erned by the laws of the pro vinc e of Manitoba. Please find attached, from Ontario, a page from the labour legislation marked apex #1 . 2. Consequential amendments to the Manitoba Labour legis lation or a special bill to provide protection; example, the New York dock labour protection conditions for mergers and takeovers.

Please find attached from Traffic World, June 14 , 19 93, marked apex #2 which states: The Interstate Comm erce and Transport Commis sion approved the KCS takeover subject to the New York dock labour protection conditions that provide up to six years of wages and benefits for the employees affected by the rail mergers. 3. Regulations 48(1) (

c) despite anything in this act or any other act providing for transitional arrangements in respect of a railway upon the first application of this act. The UTU concern is that there is no time frame formula in place. 4. Regula tion 48(1 )(

n) gover ning the safe operations of railways and their operati on, and 48(1 )(

o) governing the reporting of accidents. The UTU recommends 48(1 )(

n) use the Railway Safety Act and for 48( 1 )(o), the Cana dia n Transportation Accident Investigation and Safety Board Act. 5.3. The handling of applicati on where an oppo si tion has been fi led: (

a) the review of statements; (

b) the determi nation of economic viability.

July 13 , 19 93 LEGIS lATIVE ASS EMBLY OF MAN ITOBA 708 5.4. Public interest 5.5. Time constraints on abandonment orders. I do not have the bill in front of me, but there has been a heading left off the top, and that was under that

section of the bill for there. 6. The UTU recom men ds that all federal operating and training requireme nts be required. 7. A provincial transportation advisory and oversee comm ittee be set up to focus on the co-or di nation of the polic ies at all levels of government and to deal with jurisdictional barriers. All of the foregoing are respectfully submitted for your review and consideration qn behalf of United Transportation Union - Canada. Don Tennant. * (1910 ) Mr. Chairperso n: Thank you very much for your prese nta tion, Mr. Tennan t. Are there any questions? Mr.

Reid : Thank you very mu ch for your present ati on , Mr. Tennant. This legi slation is something new that is coming into being in the province of Manitoba and, I believe, will have some serious consequences for us. It is unfortunate, of course, that the government had to move in this direction, but I am sure it is as a result of pressures that were brought upon it by forces beyond its control, namely deregulation and free trade which have- An Honourable Member: Free trade? Mr. Reid: Yes. Well, I am sure if you understood the railway industry, you would know the impacts that free trade has had upon it.

Unfortunately, you do not know. I will brief you at another time on this matter. Mr. Tennant, can you give us, in your experience and in your estimation, the effect this legislation will have upon your memb ership that are currently emplo yed wi th in the rai lway in dus try of thi s province? Mr. Tennant: The effect on the membership of the UTU basic ally we do not find will be very detrimental in our particular craft in the rail industry. The craft that will be affected greatly by this will be maintenance way more than anybody else, and clerical staff through our T&DW.

In most cases where you go to the shortline bill under the legislation, where the predecessors have mainly shortline railways in the U.S., you will find that the demand for the represe ntation we represent, the locomo tive engi neers and train conductors and personnel like that, is still there. A prime example would be here in Winnipeg.

For example, even though we have people who are employed on CN, they share the employees with VIA and Burli ngton Northern because simply it would be unfeasible for most people to provide the training required to operate under the legislation and statutes under the federal regulation. So we do not expect to be drastically hurt, but where we would expect to be hurt is if there was total abandonment and the feeder lines were not coming into the railway industries at all. That is per se our group of personnel. Mr. Reid : Mr.

Tennant, do you see any other deficiencies in this legislation you would like to point out to the members of this committee so we might consider them for in corporation in this legislation? Mr. Ten nant: At length, there are several concerns, but due to needing clarification on the legislation itself, that is why under No. 7 we are looking for an advisory committee, much similar, that is afforded to the people that are in place.

One of the things I commented on, which is very ambiguous, which was under 4 and the heading was missing but the terminology is the same thing, where the licence would be revoked or concerns of transfer of one of these railway trackages to a railway company, and then later, the railway com pany sim ply, for whatever reasons, just abandons it due to financial insolvency or things like that. Mr. Reid: I take it then, Mr. Tennant, that the UTU and possibly yourself has had some experience in dealing with other shortline operations in other provinces of Canada.

If you have that experience, could you relate to us what your experiences are with respect to shortlines and your membership? Mr. Tennant: Well, examples I will use-and I will use the Stettler sub and also I will use some of the li nes in the U.S. On the Stettler sub, the initial mo vem ent there for the Stettler was a lease arrangement that went to a special bill where Stettler Corporation then purchased the trackage for the figure of in excess of $2 million, of which about $1 01 ,900 was financed by Canadian National on a forgiveable loan with no interest. I

709 LEGISL ATIVE ASSEM BLY OF MAN ITOBA July 13 , 19 93 should not say forgiveable, but with a nonin terest loan maturing in '97. Where you really see where shortline railways come into state or provincial governments is in the U.S., and I will give you an example. The state of Massachusetts is right now-1 guess for better terminolo gy-be ing touched for the tune of $1 50 million of which only $1 4 million will be coming from Canadian National, CP and two other U.S. firms.

There are other shortline railways coming into place right now, concerns in the U.S., all across the States now, mu ch similar to when we formed Canadian National out of all the shortline railways on record. They are on record now for going for 500-and-some milli on dollars. So it is a concern that the feasibility of these companies, once they come into the provincial realm, that it becomes solely the provincial dollar they are going after.

For example, there are some concerns to the producers, for exa mple, wha t is called a terminology, where you see a branchline but the branchline speeds are so low and the tonnag& and I will use for example, say 16 6. Pardon me, I will use 60 tonnes. It might be easier to explain. Due to the condition of the track, you might be able to haul 40 tonnes. I think one of the ones agriculture sees being taken away from the Wheat Board is barley. Well, if you are on, say, Graysville or some place like that, what they call a dead weight tariff is actually the difference between like, say, 40 and 60.

If that protection is taken away, that shipper now-i n which case, it would be the producer or the farmer-wo uld have to pay on that 20 tonnes, even though he did not load that car because he could not load that car because of the trackage. So all these consi dera tions and fina ncial presents will have to come out of the provincial coffe rs of the taxpayers of the province of Manitoba. Mr.

Reid: Speaking of money coming out of the taxpayers' pocket, in your experience with either the Stettler Central Western Railway, has that railway received any monies or any grants or any kind of funding support by that province? Do you see similar circumstances arising in the province of Manitoba in the future should this legislation pass? Mr. Tennant: On the Stettler sub-and I do not have any documentation here with me to it-b ut initially in the concept of the leasing arrangement of that, Canadian National was to look after the trackage.

Upon the sale that concluded Canadian Na tional's responsibil ity other than to the equipment or things like that, and as far as we were aware the provincial government of Alberta, also in Getty's riding, had to come in for the tune of a few dollars for tie replacement that was bad on the subdivision.

What I am also aware of, and I would like to draw your attention to, is that running rights that we could conceivably-! am aware right now in the Ottawa valley, CN and CP are forming joint, what we call a terminal railway which is made up of CN and CP, and apparently there is going to be a trade-off in Manitoba to CP Rail from Canadian National in one of the lines here. So these things will get into running rights and things of that nature.

Under the short line, what you could do is have a short line at Graysville, a short line out of Portage somewhere up on the Gladstone and not one place but granted running rights. I will leave it up to you to figure that out. I mean, it is basically the same thing. It is just located in Portage Ia Prairie running down CN or CP's main line. Mr. Reid : In your opinion, Mr. Tennant, do you think that there is any likelihood that either of the two main railways, CN or CP, could start short- line rail operations within the province, in other words, spin off a

section of their trackage and register it under a different company name and proceed to operate under short- line business? Mr. Tennant : Yes. Mr. Reid: What consequences do you think that will have for your mem bership and the service that you would provide? * (1 920) Mr. Tennant: The consequence on the memb ership would not be that signi ficant. The concern is that now it is divested at an arm length's reach is the abandonment process or should there not be a buyer for that particular feeder. That is the concern that the access to this legislation that we have that wou ld allow them . Mr.

Reid : Do you fore see any dif ficu lties in service? I should ask instead, do you have or know of any difficulties in providing adequate levels of service for the customers that are along the

July 13 , 19 93 LEGISL ATIVE ASS EMBLY OF MAN ITOBA 710 branch lines in our province at the current time? Are you aware of any shortcomings in service that migh t be provided to the grain elevators or to the communities? Mr. Te nnant: You are talking CN and CP now I take it in Manitoba. The service is there. Where they are willing to lock their fleet, that is about the only way I can put it. They get their orders from the Canadian Wheat Board under the Western Grain Stabilization Act and that is how it is done. Mr.

Reid: So on that then you think that the short lines will, in all likelihood, not provide any better level of service than what is currently provided through the operations that are currently provided through either CN or CP? Mr. Tennant: I think, in some cases, that you could have the complete extreme where you would have failures and in some cases you would have the other extreme where you have better service.

The one thing that has not been addressed is, for example, if Railtex or some corporation like that is coming in-1 give an example of Truro-Sydney, you are talking a corporation like Railtex now who is considered short line, but is almost on the level of what you would call a national railway. So with a firm like that you have equity. With a firm who does not have equity, and I will give you an example.

With the floods or things like that, if you had a bridge washed out, in some cases some of these bridges are $2 milli on, $3 mill ion, where is the money going to come if that firm is borderline to go in there to begin with? Who is going to pick up the cost of that? That is what you are looking at. I will give you a case in eastern Canada where VIA Rail operated on and CP wanted to abandon it. Because VIA Rail operated on it, it was maintained. A bridge was washed out, it cost $5 million. A year later CP Rail came off of there and it was abandoned.

Now if we have a short line, where is the funding going to come fr om ? I ju st men tioned the state of Massachusetts where $1 50 mi llion is being floated by a bond issue out of the state of Massachusetts and $14 milli on is comin g out of the railway. I mean, what is the province earmarked for? I do not care which government is in power. It is the same ticket. Mr. Reid : Do you foresee any difficulties arising out of the safety factor with respect to short-line railways?

It is my understanding that the national railways are regulated by certain federal acts that put in force certain provisions that would provide for the safe operation of railways. Do you foresee any difficulties with this legis lation relating to safe railway operation on short-lin e railways? Mr. Tennant: Mr. Chairperson, that was one of my concerns in the brief, under 48(1 )(n)(o), that we would adopt a mechanism that is in place now, No. 1 , being the nati onal transpor tation accident investigation and The Railway Safety Act.

That would circumvent a lot of things and the training and the operating rules that would have to be in place. Without those safeguards, we would go back to the early 19 00s. Mr. Reid: Thank you for your presentation here today, Mr. Tennant. Hon. Albert Driedger (Minister of Highways and Transporta tion): Mr. Tennant, first of all, thank you for your suggestions that you brought forward. You are aware, I am sure, by having read all the information that we have tried to provide, that this is enabling legislation.

Basically my staff and very capable people have been working on this for two years, not in isolation, have been working very closely with the federal government, with the other provinces, who are all faced with the same potential dilemma that we are facing here. What we have basically done is try to position ourselves with the legislation required to make provision for areas where a short line would be warranted. We certainly want to be very cautious in terms of who we allow to basically operate a short line so that we look at the feasibility of a line to be economically viable to do that.

Reference was made to bridges, to safety. These are all the things that for two years we have been working at very dil igently, and I think some of the other provinces by and large are modelling after our legislation to some degree.

You are aware that Saskatchewan had some short-line legislation in place and were making major changes to it in this last session apparently. · What we have done is to try and provide this kind of legisla tion to allo w those who wou ld be interested, either individuals, organizations, private compan ies, if they feel that they could viably opera te a short li ne, that we have the safety provisions in place. I just want to raise that, realizing that there might be things that we have to look at in a year's time

71 1 LEGISLATIVE ASS EMBLY OF MAN ITOBA July 13 , 19 93 once we finally get into it to some degree to see whether ther e are fur ther changes. Our professional people have spent an awful lot of time to try and address the safety end of it and the provisions that are.in there. So in view of the pending potential abandonment taking place, which we are opposing as best we can, but with the reality or rationalization taking place, we felt this kind of a thing would probably help, not only for service in the province, but also to complement the existing lines as the rationalization is taki ng place.

We feel if we get successful shortlines operati ng, it would continue for your mem bership to continue to be operating. If they are totally abandoned, ultimately that feeder line is not in there and the effect would be more dramatic than if we have a shortline feeding into it. A lot of thought and time has gone into this, and I think we have invited participation from all elements to feed into this thing as we develop this. I feel confident that with the people we have in place who have been working with this, when the legislation is passed, it does not have to necessarily be cast in stone.

I think we are sort of almost the leaders in this in Manitoba at the present time. 1 will repea t again, worki ng with the other provi nces, we are trying to hav e a uni form approach to the shortline railway act, which is required, because you have the national overriding legislation that is there for the main lines, and we hope we can work together with you people in terms of making this thing work. 1 appreciate your comments. We will be looking through this when we are throu gh with the presentations.

Even if we go through this clause by clause, I am not adverse to having staff look very closely at your suggestions, and if required, I will be bringing forward amendmen ts in third reading of this bill. Mr. Tennant: One question I did not cover in my bill and I would like to ask of you is where the three bodies-l ike, say, three bodies are together, the regulatory bodies that are involved here. In your federal legislation, there is a provision under the National Transportation Act for conflict.

How do you perceive the provincial involvement, say, when the three parties are together and you have a regulation and you are in conflict? I notice it is not in this, but if you go to the national NTA, it is there. * (1 930) Mr. Driedger: Mr. Tennant, I do not know whether I have precise information to deal with that. Where there is conflict between the federal legislation and the provincial legislation, I would think that we wou ld set up a me chanism to deal with that, through a join t process.

These are things that-breaking new water, so to speak, on this issue , I think it appears in our developing of the legis lation with the federal gover nmen t and in conju nction with other provinces that these are mechanisms we will be developing and hopefully will be able to resolve. Mr. Jack Penner (Emerso n) : Mr. Tennant, under the current provisions and agreements that are in place, there are some guarantees in place that will maintain some of the branchlines that we currently operate to the year 20 00. After the year 2000, there are no guarantees that these branchlines will in fact remain in operation.

Even if they do, we have no assurance as to how they would operate or how the facilities would be operated on those bran chlines or what kind of services mi ght be provided.

Is it your view that if some of the branch lines that have been proposed for abandonment would in fact be abandoned at say the year 2000, it would be in the interest of those people being served now by those railways that a shortline railway would be established and maintained and operated, maybe even in conjunction with-and that there be some agreements drayvn between staff who is currently staffing the major rail lines and those who would be operating the shortline railways?

Is it your view that there might in fact be an elem ent of service provided tha t might not otherwise be provided and that it migh t be more economically done than might be done under some other provisions such as trucking and/or other transportation modes? Mr. Tennant: Right now, for the tonnage, the most economic and efficient way to move a large bulk commodity is by rail.

One thing that everybody seems to deal with is shortline, and we are hoping it will go beyond just grain trackage, but you might see the establishment of new railways, whether it be a termi nal ra ilwa y or tot ally a solely new trackage or things like that to serve. There is that possibility to happen. In the U.S., this case has come about.

July 13, 1993 LEG ISL ATIVE ASSEMBLY OF MAN ITOBA 712 The concern you raised on the rationalization until the year 2000 is a concern that we have legally in here on when I was asking about the transitional peri od where there are no time frames on transition. Just where does this all come in if certain protection is not afforded, if an abandonment order was in process prior to the act, and now the act came into place, and it was a short line, what are the factors because of the lack of the wording and transition? Mr. Penner: Mr.

Chairperson, one of the major concerns that many, especially in the agricultural communities, have, especially in those areas that are in the so-called outlying areas that are only being served now and probably most economically being served, is by railway transportation of the agricultural products in to the export positions.

The argument has been made in many areas that if those abandonments would in fact take place that hav e been proposed, that there would be significant additional cost posed to those, especially the agricultural producers, in providing transportation for their goods either via trucking and/or other, and which would of course provide a substantial initial additional cost to the province in maintaining and/or upg rading many of our highways and maybe even bridges and those kinds of things. In light of that, we now currently hold or there are rail beds in place, whether they are in fact-Mr.

Chairperson, I am sorry if my questions have been lengthly- Mr. Chairper son: No, I thought you had asked a question. You may proceed, Mr. Penner. Mr. Penner: In light of that, the rail beds currently being in place and maybe needing some upgrading in some instances, might in fact provide more economical services to those areas than might be provided in other circumstances, as I asked before.

However, is it your view that we should pursue the matter of providing legislation that would in fact not only encourage the establishment of short-line railways, but would in fact provide the legal vehicle under which those rail lines might be established if there were those who wanted to invest in those kinds of facilities? Mr. Tennant: Yes, and there should be financial resources made available from the province on those particular terms, and if a long-term economic future can be seen that it is going to be cost efficient- Mr.

Penner: In your view then, are there any provisions made under this act that would in fact encourage or provide that financial assistance that you speak about? Mr. Tennant: Well, there are provisions, but they do not actually jump right out at you, if you know what I mean. So a lot is left to certain discretionary powers, from what I can see in here, and how a person would put the mechanism in place, and then if there was opposition to that mechanism, that is what I am getting at. Mr. Penner: But the act itself, Mr.

Chairperson, does not provide for funding of short-line railways through the provincial government. Mr. Tennant: There is a

section in there and I am sure the advisors could probably spell it out. There are some questions on it. Just what it says, that would have to be on the language, because there is pr ovision to make regulations . What those regulations are going to be, that is another thing. Mr. Penner: Mr. Chairperson, not for the actual funding through provincial provisional funding of those railways. Mr. Tennant: I do not see it right now in there. I will stand corrected. Mr.

Penner: The fear that some might have in this province that it would be a financial burden to the province, which might be in fact deemed as being transferred from federal responsibility now to provincial is not enshrined in this legislation. Mr. Tennant: It is a possibility. Mr. Penner: I want to establish, in Mr. Tennant's view-1 want an answer as to whether he thinks that there is in fact now provision under this legislation that would cause the province to pick up part of the cost of the operation of these short-line railways. Mr. Tennant: I will go back again to the Stettler sub. Let me explain.

I will have to get into that point, where a person comes in, picks up $2.7 million of trackage, $1.9 million is funded by a loan from Canadian National with no interest until1997, the other $700,000, how much of it initially came out of the equity of the corporation in the event of a catastrophe on a minor scale-1 will use the example of Oakville or something of a flood nature. Where is the funding going to come from? If the

713 LEGISLAT IVE ASSEMBLY OF MA N ITOBA July 13, 1993 person is becoming insolvent, not due to that there is certain business there at the present level that he can maintain it and still make a profit, but for some unforeseen event like a washout, which is quite common, whether it be beavers or rain, you name it, or anything of that nature or a legal involvement. Where is the funding going to come from? Mr. Penner: Mr. Chairperson, I again ask the question of Mr.

Tennant that under the act, as it is currently written, in your view are there any provisions or requirements for provincial funding of any part of the operation of the these short-line railways? Mr. Tennant: I do not see any provision in there unless it be for a separate special act pertaining to one issue. That is the only thing I can see there. Mr . Chair person: Thank you very much for your presentation, Mr. Tennant. I would like to call one more time Mr. Allan Ludkiewicz, Mr. Barry Domino. That concludes public presentations on Bill 33.

Bill 30- The Vulnerable Persons Living with a Mental Disability and Consequential Amendments Act Mr. Chair person: We will now proceed with public presentations on Bill 30. I wonder if the minister could join me here at the table. I will call upon the first presenter, Mr. Bill Martin. Mr. Martin, you have a presentation. The Page will get it from you, if you do not mind. Just give her a moment to distribute some of it and then we can start. You may begin, Mr. Martin. Mr. Bill Mar tin (Ca nadian Men tal He alth Association): Mr.

Chairperson, and members of the committee, I should first of all say that the handout to you is not my presentation. It is just a reference document to a point I wish to make in my presentation. [interjection] Yes, in 1983. It might be interesting for historical terms to look at it in some other parts other than the one I want to refer to you. Anyhow I will get to that one in my presentation. The Canadian Mental Health Association asked for the privilege of speaking to this legislation because of our historical interest in exploring this vehicle for the protection and support of people with mental illness. *

(1940) In preparing my remarks I have raised three questions: No. 1, would the interests of a person with mental illness be better served by vulnerable persons legislation than they are presently served by The Mental Health Act and other related acts; No. 2, what features does this act have that could perhaps be introduced into mental health legislation; and No. 3, what is missing in this act, in our view? I know that this act is directed towards not people who are mentally ill, but in order to make my comments I need to connect the two. I hope that is acceptable.

To the first question, would the interests of people with mental illness be better served by this act? Our present position is we are not sure, but we do not think so. Recent revisions to The Mental Health Act and the recent development ot the advanced directives legislation have done much to protect the rights of people with mental illness.

As it stands now, it is our preliminary opinion that this legislation appears to be more restrictive of people's freedom who are disabled by mental illness than the present mental health legislation, primarily I guess because it covers all of their lives, not just episodes, as mental health legislation does. There is a possibility, however, that this legislation could apply to other disabilities, certainly people with senility or Alzheimer's. I know of cases perso nally where people have been very vulnerable and the legislation has not served to protect them very well. I will come back to that point later.

There are some features of this act which we think are very positive and could perhaps be introduced into mental health legislation. The statement of beliefs in the

Preamble is an innovation I think, and it is a very positive one, the best interest clause in

Section 75(2). We think it is really important and we commend the drafters of the legislation for undertaking to provide these broad policy statements. We believe that after we are all gone and this legislation is still standing, those broad statements are very helpful in telling the people who woul d be admin is tering the legislation in the future the direction you as legislators wanted them to go. The concept of an individual plan I think is very positive.

July 13 , 19 93 LEGISLATIVE ASSEMB LY OF MAN ITOBA 714 Then our third question is, what do we feel is miss ing in this legislation. This act does not provide legislation for the operation of a system of care. We believe it is beneficial for the Legislature to ensure that there is, No. 1, a fixed point of responsibility for the desig n and delivery of services both regionally and provincially; No. 2, the planning process for service development is regionalized and commu nity based; No. 3, a provi ncial board is in place to manage the administration of services.

To that end, I refer you to this 19 83 document on page six. There is a list of features of one example of legislation of this nature, the Lanterman Act in California, where it talks about the kinds of features that would be put in to that sort of legislation. In mental health, there has been discussion by the Department of Health of a community mental health services act, and that is all there has been to this point. We would hope that that discussion could be renewed again and we think it would be relevant as well for administering services for other disabilities.

We note that provinces across Canada, as well as Manitoba, are moving to regionalized health care systems. We also note that in the recently released interim report of the primary health care task force, they talk about regionalization, regional boards, per capitation of funding and so on and so forth. We think that might be helpful to consider in this area and certainly in mental health. Another piece that we feel is missing is the lack of advocacy services, independent autonomous advocacy services. We believe that advocacy services are essential to balance off the power of the caregiver.

People with disabilities are not taken seriously. Time and again we hear in the mental health area where people have either been abused or have not received services, and they have made it known to the health-care provider, and they just say, oh, well, that person is disabled. What do you expect? Having an advocate within the department just does not seem to work very well. We think that would be an important feature in the area being discussed tonight and also in the area of mental health. So our concluding observations. Rrst of all, we commend the government for the process used in developing this legislation.

We think from all reports, although we were not involved in it, it was just excellent and should provide a model for future efforts of this nature. The legislation itself, we feel in general, is a step forward in the disability field. We have to qualify our comments and say that we are not specifically familiar with people who are disabled in this manner, so it should not be taken as a full-scale endorsation because of our lack of knowledge.

No. 2, because of the possible application of this concept to other disability areas, we recommend you legislate a mandatory review of the act within a period of one to three years. Some of the features may work and some may not. It is a new approach and we are really interested to see how well it works because of the effect it may have on the people we speak on behalf of. Then, I guess our final recommendation, and we think it is relevant to this field as well as our own.

We recommend that you as legislators, develop legislation that guides, directs and enables the operation of commu nity-based mental health service systems for people with a mental disability as well as people who are disabled in the mental health area. That concludes my comments, Mr. Chairperson. Mr. Chairperson: Thank you for your presenta tion, Mr. Martin. Mr. Doug Mar tindale (B urr ow s): Mr. Chairperson, a couple of questions, the first one on the role of advocates.

In the discussion paper on possible changes to legislation, this topic of advocacy was discussed, and the committee reached the conclusion that a formal structured approach to advocacy would undermine much of the natural and informal advocacy which now exists, and which should be encouraged further. I wonder if you could say again why you think there needs to be advocates, and why it needs to be part of the bill, and what their role would be? Mr. Martin : I do not agree with the comment that you just quoted to me, Mr. Martindale.

I think that we have had traditionally family members doing natural advocacy and friends doing natural advocacy, and it just has not served very well. It has certainly been worthwhile and something, but family members, certainly in the mental health area and I think probably in other disability areas, are sometimes worn out or tired. They are not skilled; they do not have the time to push through and

715 LEGISLATIVE ASSE MBLY OF MAN ITOBA July 13 , 19 93 develop the routes that are necessary to do effective and efficient advocacy. •

(1950) We have in our own association through private charitable funding provided the services of one advocate in the province of Manitoba, and find that it has been highly successful and very much in demand and very useful. Oftentimes, also I think it has actually saved money for the department, you know, where that sort of trad itional kind of circumstance where you see a common-sense solution might be the best one, but because of all the rigours and structures of bureaucracy you cannot somehow implement a common-sense thing.

Well, if there is an independent advocate, they can go ahead and push, and they are not going to be chastised by the deputy minister of their particular department, which is just a normal thing to do. I would do that if I were a deputy minister, so if I ever come to that position or whatever, I should have an advocate at arm's length from me. Mr. Martindale: Well, I will not comment on that.

About the mandatory review within a o ne-to three-year period after the bill becomes law, would you see members of the public participating in a mandatory review, or would it be only internal with the department and if it was members of the public, who should be on it? Would they represent different interest groups? Mr. Martin: Mr.

Chairperson, I absolutely believe that there should be some mechanism to ensure that the public has a chance to be informed about it and to be informed of the issues and some funds put into a prescribed process to get the information out and to get comment and to consolidate it and feed it back into the Legislature. Hon. Harold Gllleshammer (Minister of Family Services): Mr. Martin, I thank you for your comments here tonight and I think implicit in your remarks the recognition that you and your organization really represent a different client group than the legislation is intended to address.

I think that is important. I am pleased to hear your comments on the process. I think we did take the time to hear many, many Manitobans on this issue. I am pleased to hear you characterize this as a step forward. Finally, your comment on a mandated or incorporated review process within the legislation, while that is not there, I think I can assure you that this is the type of legislation, in my mind, that will be reviewed on an ongoing basis as we see how it works, as it applies to the people it is intended to serve. Thank you. Mr. Chairperson : Thank you very much for your presentation, Mr. Martin. Mr.

Martin: Thank you. Mr. Chairperson : I will call on Dale Kandel and Allistar Gunson. Mr. All ls ta r Gun son (A sso ci ati on for Communi ty Living, Manitoba): Good evening, Mr. Chairperson, my name is Allistar Gunson, and I am the first vice-president of the Association for Community Living, Manitoba. I am on your list as a co-presenter with Dale Kandel, our executive director. Mr. Kendal is in the audience and I will be making the presentation. We will both be available to answer questions if there are any after the presentation.

I would also like to take this opportunity to acknowledge in the audience the presence of our President, Ms. Bev Penner to my right. Beside her is Ms. Moira Grahame, a past president of the association who is also a member of the review committee that I will be referring to in the course of our presentation. To my left is Mr. Kandel and Mr. Reg Malanchuk, who is the treasurer of the association. I believe, Mr. Chairperson, that members of your committee have received a fairly lengthy written presentation.

There is always a risk that when one presents the written presentation and then presents it orally that the audi ence will give in to the temptation of reading at a different pace and at different locations than the verbal presenter, so if anyone is so inclined, perhaps I should explain a couple of things. At the beginning, there is a pink page which is the preface page or title page to the presentation I will be giving. I will vary in my verbal comments from time to time from the written presentation. Behind the green page is a copy of the review committee report.

We were not certain whether members of this committee had all received a copy of that report, and, therefore, we have provided it to you in its entirety, with the exception of the appendices which were attached to the report. Those appendices I believe were lists of people who made written presentations, the 65 written presentations, as well as a list of pieces of

July 13 , 19 93 LEGIS LATI VE ASS EM BLY OF MAN ITOBA 716 legislation identified by the review committee that might require consequential amendments. Then lastly, behind the blue page is a document entitled "Minor Criticisms of Bill30," which goes on for some four and a third pages. That will form part of the presentation, and for those members who so wish could form the basis of proposed amendments to the legislation. Mr. Chairperson, the Association for Community Living is an organization representing people who live with a mental handicap, as well as their families and friends.

We are a support group and provide supports, training, education and other resources to Manitobans across this province who may live with a mental handicap or who may be their family members or friends. AC L in Manitoba consists of 14 local associations spread across the province. Nationally, the Canadian Asso ciat ion for Commu nity Living represents 400 local associations and 12 provincial and territorial associations, and our national organization is amongst the country's 10 largest charitable organizations. Mr.

Chairperson, it might be helpful at the outset to identify who it is we are talking about and who it is we are attempting to help through this legislation. We appreciate that like many fields, this one may be perceived as being so laden with jargon that some people may be confused. Bill 30 is expressly applicable to people with a mental disability. In the AC L movement, we often use the term mental handicap. Previously, the term used was mental retardation. Other people use terms such as intellectual disability.

The important point here is that we are referring only to those people who live with the condition which all of those terms I have outlined are attempting to describe. Terminology acquires connotations, and over the years, society has been attempting to come up with a term which does not connote negative or demeaning values. It is most gratifying to see that the people who are leading the resistance to old fashioned and demeaning terms such as mental retardation are the very people to whom such labels have been applied.

People living with a mental handicap are standing up and objecting to being labelled in ways that make them appear to be lesser human beings or appear to be incapable of caring for themselves. People living with a mental handicap are telling the rest of Canada that they want to be respected and valued as equal members of our society, and they are very much resisting labels such as mentally retarded. Therefore, this evening and for the purposes of this presentation, I will be using the terminology which has been adopted in Bill 30, which is that of mental disability. (Mr.

Jack Penner, Acting Chairperson, in the Chair) So what is a mental disability? This term attempts to describe those people who need extra time to learn and who take extra time in making decisions. That is not to say that people with a mental disability cannot learn or cannot make decisions. Their ability to do so may be impaired in part so that they require extra time to perform these functions.

The risk of using a term like mental disability is that people who are called mentally disabled will be lumped together under one label and viewed as having the same limited level of ability regardless of their individual abilities. People living with a mental disability do not have all the same levels of ability or disability. Some live in institutions and some live in the community with supports, and many of them live in our community and are not even identified as being mentally disabled.

Therefore, when we use the term mental disability, we must avoid the danger of applying certain presumptions as to ability or lack of ability to everyone who has been so labelled. We must be aware of the fact that the term covers a whole range of levels of ability and that we need to look at each individual to determine the extent of their abilities and their needs. Mental disability is a condition. It is not an illness. Some people with a mental disability, like the rest of us, may also suffer from a physical illness or a mental illness.

Some of them may also live with a physical disability, but physical or mental illness or physical disability has nothing to do with having a mental disabilit y. · So what has changed that has brought on this new legislation? Fi rst, we hav e a different understanding of what constitutes a mental disability. Secondly, we. have a society that now is more willing to accept people with a mental disability back into the community and insists that we provide the supports and opportunities to enable community living. Thirdly, we have the

717 LEG ISL ATIVE ASSE MB LY OF MAN ITOBA July 13 , 19 93 Charter of Rights and Freedoms, which enshrines in our Constitution certain inalienable rights for all Canadians and which prohibits discrimination by governments on the basis of mental disability. *

(2000) Let us understand, Mr. Acting Chairperson, exactly what we have been dealing with as our legislation in Manitoba until now. The legislation applying to people living with a mental disability is currently

Part II of The Mental Health Act.

Part II is basically The Mental Defectives Act of the 1930s. The Mental Defectives Act was, to a large extent, the adoption in this provi nce of the Mental Defectives Act of 1913 of England. In other words, our legislation today is not that much different than and in some cases is even identical to English legislation of 80 years ago. Much has changed in 80 years. Our medical sciences bear little resemblance to what was practised then.

Our social services bear little resemblance to what was done then, and our understanding of mental disability and our dealings with people living with a mental disability bear little resemblance to what was the case 80 years ago. But, and most unfortunately, our legislative framework for the rights of and the supports and services to people living with a mental disability have tremendous resemblance to the legislation of 80 years ago. That is why new legislation is far overdue. In May 1991 , the Minister of Family Services (Mr.

Gilleshammer) established a review committee on legislation affecting Manitobans living with a mental disability as vulnerable persons. The membership of the committee consisted of Mrs. Gail Watson as chair, four representatives from the community appointed by the minister and four representatives of the government, two being from the Department of Family Services, one from of the office of the Public Trustee and one from the Executive Council office.

In December 1992, the review comm ittee presented its report to the minister, setting forth 46 recommendations on what should happen to legislation in this province. The process by which the review committee arrived at its recommen dations is an important one. First, the membership of the review committee represented a number of interests and concerns both in the community and within the government. It is important to note here that the review committee's report was unanimous. Second, the review committee had the benefit of studies and legislative initiatives in a number of provinces and in the United States.

Thirdly, and most impor tantly, the review committee conducted a province-wide consultation on these issues. This consultation started with the publication by the committee of a discussion paper of which 1 ,500 copies were distributed across the province to interested parties. The review committee then conducted a live consultation session by satellite with groups in 21 centres spread across this province. The committee then held publi c forums in Dauphin, Brandon, Portage Ia Prairie, Stonewall and Winnipeg to solicit comments and reactions. The committee also received and reviewed 65 written submissions.

Therefore, once the review committee came to its unanimous, final report, it had completed an intensive consultation across the province and an intensive review of the state of thinking of this field in the country. What the review committee recommended had already received substantial public support through the consultation process. The review committee's unanimity did not come easily.

There are strongly felt anc:f'debated issues in the report, and unanimity could only be achieved with the compromise on the part of all concerned and their willingness to ach ieve what was recognized as a major breakthrough in attitude and in approach, which at the same time Would be feasible for government implementation. Mr. Acting Chairperson, I would like to list now what I consider to be the highlights of the review committee's report.

Firstly, the report identified at least 16 important criticisms of current legislation and recommended the repeal of the application of The Mental Health Act to persons living with a mental disability. Secondly, the report annunciated 10 basic principles by which any new legislation and the delivery of services would be guided. The review committee believed these principles to be so important that it recommended they be incorporated into any new legislation affecting people living with a mental handicap and that such legis lation provide that it be interpreted in accordan ce with these principles. In fact, I

July 13 , 19 93 LEGISL ATIVE ASS EM BLY OF MAN ITOBA 71 8 consider these principles to be so important that they deserve to be read here, and I would read them as follows: 1. All adults have the right to self-dete rmi nation as reflected in the Canadian Charter of Rights and Freedoms. Rights, freedoms and digni ty shall be respected and protected un der the laws of Manitoba. Every citizen of the province has the right to freedom of association, the right to life, liberty and the security of the person, and the right to equal protection and equal benefit, both before and under the law. 2.

All adults are presumed to have the capacity to make all decisions affecting t� emselves unless clearly demonstrated otherwise. 3. All adults have the right to fundamental justice in all matters affecting their rights including access to all in format ion, the right to a mode of communication appropriate to the adult, the right to be heard, the right to appear with advocates and counse l, the righ t to receive reasons for all decisions made, and the right to an unbia sed decision-maker. 4. All adu lts sh ould be en abled to mak e decisions.

Where an adu lt req ui res personal support in making a decision, every reasonable effort shall be made to provide such support. The form of support can be the advi ce, advocacy, support and affection of family and friends chosen by the adult. All adults shall be gi ven the opportunity to express themselves in an individual way and to the fullest extent possible. 5. Every effort should be made to determine the adult's decisions and to enhance individual choice with the support of family and friends chosen by the adult. 6.

Any in tervention by the law in the decision-making process of an adult shall be the least restrictive and intru sive form of support, assistance or protection and shall relate directly to the needs of the adult at that time; 7. Where su pport is necessar y in making decisions, interdependent or supported decision making through the advice, support and affection of family and friends chosen by the adult shall be recognized and validated. 8.

In order to respect and preserve the legal rights of adults, any legislative or legal response that est ablishes a substitute decision-making process shall be invoked only as a last resort and mu st be based on evidenc e that the current practice is no longer empowering the adult. The determination by a hearing panel of a person's need for a substitute decision-maker shall be personalized, comprehensive and involve those who are im portant to that adult's life. 9.

A high prio rity of gove rnment shall be to provide adults in need with support and services whic h al low for in dependence, realiz ation of capabilities and self-dete rmination. Supports and services provided by government shall be arranged in a manner which minimi zes legal interventions and upholds an adult's rights to self-determin ation and participation. 10 .

All adults have the right to privacy in the consideration of matters relating to their lives and li festyles, except and only to the extent that disclosure to others is reasonably necessary for the operation of the lawful procedures provided for in the legislation. Mr. Acting Chairperson , turning back to the highligh ts of the report, highlight No. 3. The report, consistent with the principles I have just read, provides for intervention into the lives of people living with a handicap only when required and only to the extent required.

That is why the report and Bill 30 apply only to people living with a mental disability who are described as being vulnerable, that is, req uir e supports to meet basic needs regar ding their health care, personal care or property and financial affairs. If someone lives with a mental disability and does not require supports to meet these basic needs, then the law should not and need not apply. Highl ight 4. The report recognizes the existence and im portance of supported decision making.

Supported decision making is the process by which people who require some assistance in making decisions receive that assistance from those whom they trust and respect. This is to be sharply contrasted with the current law which proceeds on the approach that if one has some difficulty in making decisions, then all rights to make decisions should be taken away. * (201 0) We all practise supported decision making. We all consult other people when we make decisions. The big ger the decision, the mo re we tend to consult. We will often consult our spouse, our ot her fam ily memb ers, our friends, and if

719 LEGISL ATIVE ASSEM BLY OF MAN ITOBA July 13 , 19 93 necessary, our professional advisers on many questions based upon the nature of the decision we have to make and the circumstances. People living with a mental handicap are no different in this respect. Because many of them are not as good in making decisions as some of us are, they may rely more often on others for advice and support. This is a very natural process for all of us, and the review com mi ttee calls it "supported decision making." I like to tell the story, Mr.

Acting Chairperson, of when I go shopping for a car, and I will probably be doing that again very shortly. When I go shopping for a car, I take my brother with me, and I take him with me because he knows a lot more about cars than I do and he is also a lot better at dealing with car salesmen than I am. I have this temptation of walking onto the lot and buying the first thing that is coloured red, and he manages to dissuade me from that. But the fact that I rely upon my brother, I think, is very typical of how people make decisions, how we consult with others.

I think it is very much the same for people who may have a mental disability. Supported decision making also encompasses the issue of commun ication. Some people may un de rstand the ques tion and issue and have formu lated a response but may have difficulty in expressing or verbalizing that response. People around such a person, like their friends and family, are often in the position to determine what that response is and to communicate it or verbalize it for that person.

The taking away of the right to make decisions about oneself and giving that role to another person is called substitute decision making, where the decisions of one person are substituted for the decisions of another. Substitute decision making is what The Mental Hea lth Act currently provides for. The public trustee or private committee is appointed to make decisions on behalf of another who is deemed to be incapable of making those decisions.

The review commit tee was suf ficiently concerned about the im portance of supported decision making, and the im portance of avoiding any possibi lity that supported decision making would be overlooked in favour of the more drastic substitute decision making, that it recommended a number of things.

Firstly, in recommendation No. 9 of its report, the review committee stated that supported decision making should be recognized in legislation and continued as a natural process for adults to make decisions, an d that memb er s of the support network be allowed and encouraged to participate in the developmen t of the individual plans for ser vices and in the media tion and appeal processes referred to in the report.

Secondly, in principle No. 8, the review committee stated that substitute decision making should be invoked only as a last resort and where there is evidence that the current practice is no longer empowering the adult. Thirdly, Mr. Acting Chairperson, in its recommen dation 19 , the review committee again referred to substitute decision making as a last resort and set out a num ber of procedural requireme nts so as to ensure that it would, in fact, be a last resort.

This includes the requirement for it to be shown that support networks and other less intrusive means are not working and that reasonable efforts have been made to try and make them work. Highlight No. 5 of the report is its recognition for the need for protection of people living with a mental handicap and who are vulnerable to abuse and negl ect by others. The com mittee recom mends a method for dealing with these situations and the mandatory obligation on service providers and on government staff to report cases of abuse or neglect which they may be aware of.

Six, the report accepts the use of substitute decision making only as a last resort and in very well-defined circvmstances. The process by which a substitute decision-maker can be appointed is much more user friendly by moving the hearing and appointment processes away from the courts and into the hands of hearing panels and a vulnerable persons' commissioner. Lastly, Mr.

Acting Chairperson, the report calls for the creation of the position of vu lnerable persons' commissioner with the responsibility of not only admin istering the process of appointing su bstitute decision-makers, but also and im portantly, the duty of promoting the statement of principles and ensuring that options for supported decision making and other alternatives have been fully explored. Much reference is made in my presentation tonight to what is in the review committee's report. ACL supports the recomme ndations of the review comm ittee because we have seen the process

July 13 , 19 93 LEGISL ATIVE ASS EM BLY OF MAN ITOBA 720 which has given rise to them. We have seen the work and efforts of other jurisdictions. We have heard the words of support of many Manitobans for the direction which the committee took, and we recognize the process, ne go tiation and compromise which led to a report acceptable to all of its memb er s and patently feasible for the provincial government to implement. Let us now, Mr. Acting Chairperson, turn to Bill 30. ACL views Bill 30 with mixed emotions.

We are pleased by the introduction of this bill because it represents a long overdue revamping of the legislation. We as a province can no longer get by with what is basically 80-year-olp outdated British legislation, and any other field to utilize legislation of that vintage would be held up to public ridicule. We recognize that the fact that this legislation has made it this far, and I refer to Bill 30, represents a commitment and a tremendous amount of effort on the part of the Minister of Family Services (Mr. Gilleshammer). We believe the mi nister deserves public credit for this.

On the other hand, we are disappointed that Bill 30 represents a missed opportunity. It is a missed opportunity because it only reflects part of the thrust and intent of the review committee's report. There are a number of im portant issues which are dealt with in the report but which are dealt with in an incomplete manner or not at all in Bill 30. I would like now Mr. Acting Chairperson, to outline our major concerns with respect to Bill 30. Our first concern is that the statements of principles which the review committee considered to be so im portant and central is missing.

There are some statements akin to some of the principles in the recitals of Bill 30. There has been a government policy statemen t issued referring to supported decision making, but there is nothing in the body of Bill 30 which is a statement of principles guiding the

interpretation and adminis tration of the act as the review committee recommen ded. There are already precedents in Manitoba for the use of a statement of principles in legislation. The Chil d and Fam ily Services Act begin s with a declaration of 11 principles and states that the act is in fur therance of those pri nciples. The Environment Act begins with

Section 1 (1 ), prior to the

definitions section, which sets out the intent and purpose of that act. The role of the statement of principles is central to any legislation directed to people living with a mental disability. The legislation contemplated by the review committee is intrusive into the lives of many Manitobans. It allows for that right of some Manitobans to make their own decisions to be taken away and to be given to another person. It allows for the power of government officials to remove some Manitobans out of their homes to be placed elsewhere against their will.

It allows the placement or im prisonment of some Manitobans in institutions. It is such a potentially scary abuse of basic human rights that it must clearly set out the strict parameters and guidelines within which these powers can be exercised and the removal of rights allowed. That is why the review committee called for the state men t of princ iples.

In fact, the review committee went fur ther and rec omm ended, in addition, 1 0 operating principles applicable to core support services, as found in recommen dation 12 , four principles or requirements for individual plans, as found in re com men dation 13, and seven operating principles for the provisions respecting protection from abuse or negle ct, as found in recommendation 16 . These various principles will serve in legislation to protect vulnerable people.

Let us never lose sight of the fact that Bill 30 will apply to people because they are vulnerable, because they are not necessarily as skilled or as capable or as articulate in recognizing and asserting their basic rights. Legislation dir ected at these vulnerable people must be drafted with the greatest of caution and care so as to ensure that those who are less able to care for themselves and their rights are not unduly, unnecessarily or unfairly deprived of the right or abil ity to li ve and to liv e as mem bers of our community.

The legis lation contemp lated by the review comm ittee and the statemeot of principles are inseparable. Without the principles, the legislation is not what the review committee intended, and we are concerned about the dang ers which may develop as a result of the omission. Our second major concern , Mr. Acting Chair person, is that in our view, the greatest achievement was the recognition, understanding and im portance which it gave to the concept of supported decision making. As more recognition is

721 LEGISLATIVE ASSEM BLY OF MAN ITOBA July 13 , 19 93 given to supported decision making, corres pondingly, a lesser role is giv en to substitute decision making. * (2020) (Mr. Chairperson in the Chair) Supported decision making is a natural process. It is cons isten t with the principles of self det ermina tion, presump tion of capacity and empowerment to make one's own decisions.

That is why we are most pleased to be advised of the amendments to Sections 5.1 , 48 and 83 of Bill 30 which are to proposed by the mini ster so as to give better recognition to the role of supported decision making and its role as being more desirable than substitute decision making. Most regrettably, a person who reads Bill 30 without those proposed amendm ents would be given the strong im pression that it is about substitute decision making. Of the 16 0 sections in the bill as it presently rea ds, other than consequ ential amendmen ts, 13 0 de al with substitute decision making.

In fact, Bill 30 could have been called the substitute decision making act. Our third major concern, Mr. Chairperson, has to do with the application of The Mental Health Act. As I indi cated earlier, the review comm ittee recommen ded repeal of the application of The Mental Health Act to persons living with a mental disabili ty. However, Bill 30 effectively preserves the application of The Mental Health Act.

Section 3 grand fathers its application to persons in the psychiatric facility. Subsection 16 9(3) amends the definition of a mental disorder under The Mental Health Act to exclude a disorder due exclusively to a mental disability. In other words, if there is any element of mental illness, no matter how small, then The Mental Health Act will apply. Subsection 16 9(8) excludes court-appoi nted comm ittees under The Mental Health Act only where there again is no element of mental illness.

If one views Bill 30 as a positive step for people with a mental disability, then it is unfortunate that Bill 30 has at the same time left the door open for people to attempt to utilize the provisions of The Mental Health Act which has less protection of rights and is not really appropriate or applicable. Ther efore, Bill 30 establishes two separ ate legisla tive schemes affecting the men tally disable d-Bill 30 and The Mental Health Act. Unless good reason can be given otherwise, which we have not seen, Bill 30 should be the one that prevails. Our fourth major concern, Mr.

Chairperson, is that one of the cri ticisms which the review committee made of current legislation governing the provision of support services to people with a mental disabil ity is that there is no right of appeal. The review committee itself made three main poi nts about support services-fi rstly, that they should be designed and implemented through an individual plan ; secondly, that there should be provisions for mediation where disputes arise; and thirdly, there should be a right of appeal.

We are pleased that Bill 30 reflects the first two points, but it does not necessarily reflect an effective right of appeal.

Section 15 of Bill 30 provides for appeals, and I quote, unless resolution of the dispute could involve an increased allocation of funds for support services or a change to regulations or policies.

Section 19 of the bill goes on to im pose these same restri ctions on the appeal board in the making of its decisions. In other words, what is im portant here is that the bill deals with the issue twice. It deals with it laterally, that the appeal board cannot make decisions that have certain im pacts, i.e., that change policy or require an additional allocation of funds, but it firstly says that you cannot even file an appeal which could, and the word is "could," involve a change in policy or an increased allocation of funds. If one were to concede for a moment that the appeal board should not have the ability to increase allo cation of funds or to change policies, the problem is that

Section 15 dealing with the right of application goes further. It is the use of the word "could," and I say that once again. It allows a member of the Department of Family Services to prevent appeals even being made because of the fact that there is a possibility that this might involve a change in policy or a possibili ty that it might involve an increased allocation of funds. Mr. Chairperson, our fifth major concern is that unlike other provisions of Bill 30,

Part 3 of the bill dealing with protection and emergency intervention has no provision for appeal. This is a serious omi ssion because of the extent of the emergency powers available under

Part 3.

July 13 , 19 93 LEGISL ATIVE ASSE MBLY OF MAN ITOBA 722 Under

Section 25 of the bill, if the executive dir ector, that is, the department, bel ieves on reasonable grounds that certain conditions exist, then the executive director can enter a person's home, use reasonable force, remove the person, requir e the police to help and main tain this emergency action for up to five days. There is nothing which appears to stop the executive director from repeating this emergency action again and again so as to extend it well beyond five days. There is no right of appeal. A person who wishes to challenge the actions of the executive director must get around the privative provisions of

Section 16 1 of the bill and show, that the executive di rector did not act in good faith. The executive di rector may be wrong in dete rmining that a particular indiv id ual is a vulne rable person at ser ious risk and in putting that person in an institution in Portage Ia Prairie for a series of five-day stays, but as long as the executive director is acting in good faith there is a good chance that there is nothing legal ly which can be done on behalf of the person, according to Bill 30. This is procedurally wrong, it is patently unfair, and I submit that it clearly contravenes

Section 1 0 of the Charter of Rights and Freedoms. The em ergency pr ovisions of Par t 3 are im portant but without some provision for appeal and accountability they are outright dangerous. There are in addition some 39 minor concerns which we have about Bill 30 and which are attached to the written presentation, and which I may touch on the high lights thereof at the end of my verbal presentation. Mr. Chairperson, I turn now to ACL's position on Bill 30. ACL recognizes that many of its concerns are based on what the wording of Bill 30 is both capable of suppor ting and not capable of supporting.

Because of this, ACL believes that instead of opposing this bill, Manitobans with a men tal disabil ity would be better served by its passage. This is not perfect legislation, and there are many issues that require review--monitor ing, edu cation an d evaluating of the results of implementation. We feel it is extremely im portant for the bill to provide for a formal review of its operation with a mechanism for such further amendmen ts at that time as may be found to be necessary. A Manitoba precedent for such a provision may already be found in

Section 56 of The Freedom of Information Act. A similar arrangement, in terms of a legislative revi ew, was agreed to by the gov ernment of Ontario in connection with its legislative package respecting people with a mental disability, which included its advocacy act which was passed a year or so ago. Without such a review provision, we must live with the prospect that our concerns about Bill 30 may come true, and we might have to wait another 80 years for change. A provision for formal review wou ld at least give Manitobans with a me ntal disabi lity and the ir fam ilies and friends some comfort.

We feel a sense of lost opportunity. There was, and still is, the opportunity for the government to achieve great things. The review commi ttee's recommen dations represent what is desirable and what is doable. The government, if it implements the necessary changes so as to comply with the review comm ittee's work, will have a piece of legisla tion which will be at the leading edge in Cana da. Suc h legisla tion wou ld attract the attention of other groups who will want to seriously consider that the leg is lation apply to their constituencies as well. *

(2030) Should our major concerns prove over time to be unsubstantiated, Bill 30 is a major leap forward towards respecting rights, ensuring dignity and providing supports where requi red to people who are vulnerable and who live with a mental disability in Manitoba. Thank you, Mr. Chairperson. Oh, Mr. Chairperson, before I conclude, I guess I should turn to the end of the written presentation, just very quickly. I would draw attention- this is the last five pages of the written presentation follo wing the second blue page.

We ha ve identified here a number of questions and concerns which have not been placed in the main body of the presentation. I think these a�e im portant matters which merit the attention of the committee. The first one deals with the fact that if someone acquires a mental disability after age 18 , under the review committee definition they were included as a vulnerable person. Under the definition in Bill 30, they are excluded.

Section 5 deals with a transitional feature with respect to people who are about to turn 18 . What it does allow is for an order to be made on the basis

723 LEG ISL ATIVE ASSEMBLY OF MAN ITOBA July 13 , 19 93 of a situation that is possibly up to 12 months old, before that person does turn 18 . Item 3 echoes a concern raised by Mr. Martin before me. There is no mention of a provision for advocates in the !?ill. In the written presentation, Mr. Chairperson, I quote recommendation 10 of the review comm ittee's repor t which calls for the recognition of advocacy in legislation, and then I refer to recomme ndation 11 which goes on to call on the department to have the capacity either to arrange for or to contract for advocacy services.

We have a problem tha t if the bill does not recognize advocates, why should the department? Item 4 dealing with

Section 1 0(1 ) deals with a little procedural problem with respect to individual plans. Item 5 deals wit h the fact that ther e is no provision for any ongoing review or variation of individual plans, even though in recommendation 13 the review committee said that they should be assessed at least annually. Item 6 deals with the role of members of support networks and advocates in the proc edur al processes under the act and the fact that they are not really referred to or provided for.

Item 7 deals with giving a written copy of an individual plan to the person in respect of whom that plan has been prepared, so that person can have a copy of it. Item 8 deals with a procedural problem with respect to the mediation provision. The mediation provision does not seem to cover the refusal or failure of an executive director to come up with an individual plan. Item 9 deals again with the issue of who can start the process, and I refer to recommendation 14 of the review committee's report. Item 1 0 deals with the matter of appeal, and if I remember correctly, Mr.

Chairperson, I believe that ite m 10 ma y be addressed by an amendmen t which I un der stand may be proposed by the minis ter and which I did not refer to in my remarks earlier, if I may stand corrected on that one. Item 11 has to do with the ability of the executive dir ector to limit documents which have to be put forward in respect to an appeal of the decision of the executive director. Item 12 is an imp ortant one dealing with the mandatory obli gation to report abuse or neglect.

The review committee had recommended that the obliga tion of ma ndatory reporting be on both ser vice provider s and on gov ernment staff, because it will often be government staff who will be in the position to determine the state of affairs that would lead one to conclude that there was abuse or neglect. Bill 30 only refers to service provi ders. In di scussin g this poin t with departmental staff, they take the position that service providers includes government staff, and with respect, I am not sur e I agree with that

interpretation. Item 13 . It is possible for the executive director, when he or she proceeds un der

Section 21 , I believe, with respect to abuse or neglect, to come to a decision without ever having looked at, met or interviewed the vulnerable person.

Section 24. There is an issue, Mr. Chairperson , of what happens if the depar tment un covers criminal abuse or neglect. The review committee recommended that the, quote, appropriate action, be taken, by which I understand the police should be told. If the Criminal Code has been violated, then the police should be told about it, but

Section 24 would appear to make the matter discretionary on the part of the department. Item 15 , removal from a situation- this has to do with abuse or neglect. The sections, 25(1 ) and (2), twice refer to removal from an abusive or a neglect situa tio n, whic h wou ld lead one to a stro ng conclusion that this is the primary response. That is what the Legislature is saying. Where there is abuse and neglect, remove. It seems to me that if I am a vulnerable person living in my home, and a care worker who is hired to come in and take care of me is abusing me, remove the care worker.

Do not remove me from my home, yet there is that implication in the wording of those sections. Item 16 has to do with the issue of to whom does the vulner able persons' commissioner report. Recommendation 25 of the review committee was tha t the commis si oner should preferably be appointed to and responsible to the Legislature and in the alternative, appointed by the Lieutena nt Governor -in-Council, reporting to the Minis ter of Justice with an annual report to the Legislature. There is nothing on this, I believe, in the bill. Item 17 .

We make the point, and it is not dealt with either expressly or otherwise in the bill, that it is important to us that the executive director and the

July 13 , 19 93 LEGISL ATIVE ASS EMBL Y OF MAN ITOBA 724 vulnerable persons' commissioner not be the same person, whether that happens through appointment or through delegation of authority. Item 18 . We point out that the role and authority of the commissioner under

Section 29 is qu ite different from that which was contemplated by the review com mittee . The bill's version of the commissioner is an admin istrator of hearin g panel processes who has the additional power to support substitute decision makers upon receipt of the panel's recommendations. The revie w comm ittee 's version of a commissioner goes well beyond that and calls for an official who not only does the adminis trative functions, but also who will ensure that the process works fairly for all persons concerned. That is why I refer to recommendation 26, Mr.

Chairperson, which lists 16 duties of the commissioner including the promotion and furthering of the statement of principles. I refer in item 19 to a problem where it appears that the comm issioner arrives at an opinion in respect to matters subjectively, not objectively. Item 20 deals with the issue of evidence which is excluded by law as being irrelevant, inadmissible or unr eliable yet appears to be acceptable for a hearing panel.

Item 21 deals with the problem of whether or not a vulnerable person who is present at a hearing panel where evidence will be heard and decisions made on whether or no t a su bstitute decision-maker should be appointed, whether that vulnerable person is entitled, as of a right, to be able to understand the process. I had, I think, in my comments previously referred to a

section of the Charter of Rights and Freedoms where that is assured by the Charter but is not necessarily assured by the bill. *

(2040) I will skip over items 22, 23, 24. These are all procedur al matters , Mr. Chair person , which I believe are items that should be addressed when the bill is examined. Again, in item 26, the process under the bill which follows basically the process identified by the review committee is that an application is made to the comm issioner for the appoi ntment of a substitute decision -maker. It is the job of the commissioner at that point to do a prelimi nary investigation.

The commissioner has the power of dismissing vexatious applications, sort of a screening process, and the commissioner also has an obliga tion to make certain inqu iries and then ma ke certain decisions, dismiss the application outright, dismiss the application but talk to the executive director, proceed with the application toward a hearing panel, and so on. Well, it would be nice if the person who is the subject of that application would know that he or she is being investigated and that steps may be taken toward the establishment of a hearing panel.

Item 27 on page "d" deals with matters which shoul d be the su bject of the prelimina ry investigation, none of which, I believe, are reflected in the bill. If the commissioner is going to make a preliminary determination as to whether or not this is an application that should go forward, perhaps it would be a good idea to make the commissioner address the issue of who is the support network, who is the family, who are the advocates for this person, and these other items which I have listed in No. 27. As I am running down the page, Mr.

Chairperson, there are sort of interesting points of procedure and process in law which I believe should be addressed and which I will not take up the committee's time going through in detail. Turning to the last page, I believe that those are all procedural items. So those conclude my comments with respect to the bill. Again, in

summary, ACL Manitoba believes the bill should be passed because it does represent an im provement of the law, but ACL Manitoba believes that changes are im portant and are needed for this bill to make it a better piece of legislation, and I have outlined in those major concerns I have listed the amendments that we think are vital. I have just gone through a number of the minor concerns, as well. Thank you. Mr. Chair person: Thank you for your presenta tion, Mr. Gunson. Questions? Mr. Martindale: Than k you very much, Mr. Gunson, for a lengthy and comprehensive brief on behalf of ACL.

I take it you feel very stron gly, or your organization feels very strongly, about the review committee recommendations. Perhaps you could tell me why that is so. Is it because they· were

725 LEG ISLATIVE ASSEMBLY OF MAN ITOBA July 13 , 19 93 unanimous and because there was a lot of public consultation? What is the reason that you put so much em phasis on the review comm ittee recommendations? Mr. Gunson: Mr. Chairperson, I could have come here tonight and given you my wish list on behalf of ACL of what we would really like in the ideal world, but I am realistic enough to know that firstly, the government would say, no, period. I am realistic enough to know that for major changes in the law, the government looks to see where there is public support or a mandate for those changes.

ACL is prepared to live with the review committee report, has lived with it and still supports it. That is because we bel iev e that what the review committee report calls for is good. We believe that it is a process that works or will work, and we beli eve, qu ite frankly, that it is something this government could live with. Mr. Martindale: Do you believe this bill would be im proved if the statement of principles were a part of the bill, and if so, could you explain why and what the significance is?

Now I understand that it makes a difference in court, but I think you are a lawyer, and you could probably explain to me why that is im portant. Mr. Gunson: Mr. Chairperson, I had spoken in the middle of my presentation to the fact that what the review committee report calls for, even though I do support it, is potentially dangerous and potentially abusive and potentially allows for the taking away of people's rights. I had said that the system that the review committee calls for and the statement of principles are in separa ble.

Becau se the state men t of principles tells us as members of the public, tells us as vulnerable persons, tells us as people who work with vu lnerable persons, tells us as service providers, tells us as government employees and tells us as the courts that though this bill does allow for large, wide draconian powers, they have to be exercised with great care, with great discretion and only in very limited circumstances.

That is why it is so im portant for us that that statement of principles be there as much as possible in the legislation, so that it is clear that the powers that are there can be only exercised in certain ways at certain times. Mr. Martindale: Could you explain to me what difference that ma kes when you go to court, whether those principles are in the

Preamble or the bill? Mr. Gunson: Well, I guess my first concern, Mr. Chairperson, is that what is in the

Preamble is only a part of the principles, and I would like to see all of the principles there. Secondly, I am concerned, though I am not a legislative draftsperson, that notwith sta ndi ng

section wha tever of The Inter pretation Act, because certain princip les appear in som ewhat tentative language in the

Preamble of

an act that they just do not have the im pact on the practice under the act in the

interpretation of the act that they would have if they were in the body of the act. That is why, for example, in my presentation I referred to The Environment Act and to The Child and Family Services Act, both of which have the principles in the act. Mr. Martindale: I believe it was one of your minor recommen dations that the vulner able person's commissioner report to the Legislature. Can you tell us what other advantages you see to that besides the one in your brief? Mr. Gunson: Mr.

Chairperson, I guess the role that we envision for the commissioner is a role that approaches almost that of an advocate, that this is a person who not only sees to the function of the system but sees to the function of the system in a fair and equitable manner and tha t in the recommendations in the review committee's report, there is a long list, as I indicated earlier, of all those duties that we l?aw the commissioner should be fulfi lling. I am wondering if maybe I could just locate them qui ckly. Reco mmen dation No. 26 of the revie w committee report, and I will just read the beginning portion of it.

Tha t the ma jor duties of the commissioner's office be as follows: to promote and further the state me nt of principles and operating principles of the legislation; to establish gu idelines for the ope ration of the hearing panel-and moving along-to ensure an advocate is inv olved if the adult wishes; to ensur e that appropriate and thorough attempts to ascertain the adult's wishes have been made ; to inv estigate complaints, and so on. So those are just some of the items, Mr. Ch air person , but, again, it is the role of the admin istrator. This is not just an admin istrator.

What the review committee report contemplates is

July 13 , 19 93 LEGISL ATIVE ASSEM BLY OF MAN ITOBA 726 not just an adminis trator. It is an admini strator with a responsibility to ensure fairness and equity and that the system does function in accordance with the statement of principles. *

(2050) So having that image, Mr. Chairperson, of what the role is of this commissioner, then the committee asks itself the question, well, who should the commi ssioner repor t to? If the comm issioner reports to the Min ister of Family Services, with respect to the min iste r and regar dless of the incumbent of that office, it often will be to a certain extent the mi nister's department that is involved with the individ ual, and it is perh?pS in some cases involved whether or not there is a support network in place or an ad vocate in place within the contemplation of the review committee.

It is felt that the comm issioner, because of the extent of those duties and responsibilities, must have an accountability to someone other than the mini ster inv olved in this field. That is why the primary recommendation was, appointed by and reporting to the Legislature, which I believe is the requirement for the Ombudsman, and the sort of com prom is e that was sugg ested in the recommenda tion was that, if not that, then appointment by the Lieut ena nt-Gove rnor-in Council with a report to the Minister of Justice. To my un der standing, Mr.

Chai rperson, no negative reflection was intended for this or any future Min ister of Fam ily Services. It was just felt that in order for ther e to be fairness, not only fairness to be done but seen to be done, that there should be that sense of independence in terms of to whom the commissioner reports. Ms. Avi s Gray (Crescentwood): I do not have any questions. It is a very thorough brief and I would like to thank ACL for their excellen t presentation and all the work that has been put into this. Thank you. Mr. Gllleshammer: I too would like to thank Mr.

Gunson for the contribution he has made to this process and to the committee here this evening. I thank him for acknowledging that this is a major step forward in the replacement of legislation which dates back to the beginning of the century. 1 am pleased that while the presenter recognizes that there are divergent opinions on parts of the legislation, that the organization he represents is in support of the bill. Thank you. Mr. Chairpers on: Thank you very much for your presentation, Mr. Gunson. Mr. Gunson: Thank you, Mr. Chairperson. Mr. Chairpers on: I will now call upon Theresa Ducharme, please.

Just before you start, I noticed you are also presenting or wanting to ma ke representation on Bill 31 . Did you want to do both presentations at this time? You can if you like. Ms. There sa Ducha rme (People In Equal Participati on Inc. (PEP)): I would appreciate it because they are complementary to one another. Mr. Chairpers on: Is it the will of the committee to proceed that way? [agreed] Ms. Ducharme, you may begin. Ms. Duchar me: Mr. Chair person, comm ittee memb ers, ladies and gent lemen and all those present. Can you hear me? I do not want anyone to fall asleep, please.

People in Equal Participation Incorporated wish to present our comments and concerns to the comm ittee regar ding the report of the review committee exam inin g legislation affecting adult Manitobans living with a men tal disa bili ty and vulnerable persons dated November 29, 19 91 . Here we are July 13 , 19 93. Please document that in your records. These are our concerns referring to page 1 0. Recommendation 4 emphatically states that this report be easily understandable to those to whom it is intended.

They were not completely successful, Sir and ladies, because I do not understand it, and I am not here as a person who is not vulnerable, because I am vulnerable. I am also physically handicapped and I am mentally challenged. I believe that every person in this room is in the same category as all of us discussing The Mental Health Act, are we not? Yes, we are. Are we all sleeping, because I cannot hear any person saying yes, no, maybe so. Can I have a comment back, please, because I would li ke to know if I am speaking to myself, and I like the smile of the Chair.

Please encourage me so I do not get disrupted with all the conversation previous to this because The Mental Health Act from 19 13 , to me, has not advanced any further than the day it was created on paper, the same paper that I am reading from today by the review committee, the professionals who were there, without consultation and without the input of those who it is, or will be, affected by it.

727 LEGIS LATIVE ASSE MB LY OF MAN ITOBA July 13 , 19 93 Principle No. 2 is unclear because the, quote, clearly dem onstrated otherwise, is not specific enough as to who and wha t grou ps- fam ily, comm uni ty, profess ion als . This is no t demons trated. 1 . do not unde rstand it, sir and ladies. Principle No. 3, mode of communication needs to be rephrased into a more understandable term ; define as to the level of language presented such as simple English, grade level understanding, type of media used. I am not su re wha t you are speaking on, gentlemen and ladies.

Whomever put this conglomer ation together, I com pliment them for spending their time and tax dollars. So it might be-to redefine it so we can understand it, because the fi rst statement says it mus t be understandable. Page 12 , princi ple No. 4. No "shou ld," use "must." Drop the whole conglomeration. It says, we shall, we should, we can, you may. Now, why are they frightened to use the word "must?" We must have this; we must have that. You know, I shall meet you today, I shall see you tomorrow, or I can come here or I can do this.

I counted how many times throughout the whole review committee submission that the word "must" is only mentioned once where I could hardly barely find it. I said, well, is this not wonderful. It says on Principle No. 4, use "must," do not leave loopholes. "Adults," the term needs to be defined as to whether it is chronological or mental age is in tended. Throughout the whole submission, it mentions adults. We are not sure if you are talking about children, the elderly, the seniors, chronological or what are we talking about, gentlemen and ladies. Principle No. 5.

"Must" instead of "adults," and the definition needs completion. We want to know exactly what type of adult you are speaking on, okay. No. 6 is the same way. "Must" must be used instead of "shall." Principle No. 7. "Must" instead of "shall." By what method will this principle be implemented? I am giving you some homework to do, because I did not write everything down because it is very difficult for me to do. So you must read Principle No. 7 and redefine it, please. Principle No. 8. "Must" instead of "shall." "Must" used here took guts, the only place in the whole presentation. Pri nciple No. 9.

"Mus t" ins tead of "shal l." Econom ically and realis ti cally, how will these supports and se rvices be provided and to what level? I am not understanding. You know, every place it says, we must, everyone has the right. I have the right to be here as long as I wish from midnight to two o'clock in the morning. I have the right, but do I have the abili ty, gentlemen and ladies? Do I have the support staff to assist me? I have the right to be any place and everywhere, but financially do I have that right?

Now, with the recession and everything else, we are not sure if we can even leave our home or whether I am able to go back to a home or whether the mentally handicapped will leave an institution or return to an institution or even have an institution. Could you please explain it more emphatically and give them back their submission so they can do their homework properly or go back to school, start from Grade 1 and put it in the context that we can understand, please? Okay? I am not here to waste my energy or my time or my physical ability to the best of my vulnerable self. Please? Okay?

I am encouraging everyone of you to accept me because you must include me in The Mental Health Act, because I am mentally challenged and I am also vulnerably challenged and I am physically challenged, so I would like to know if I am included in that new hea,lth care act or The Mental Health Act? Because I am not sure what kind of act we are putting together, ladies and gentlemen. Okay? It was nice of the presenters before me who are here standing up, able-bodied, paid to do so, and I am here as a volunteer, so my job is secure.

That is right, that I will always be here, until death do us not, until you possibly see that you must remove me from my position, but there is no position, Sir, because I am here as a volunteer, supporting People for Equal Participation and those who have men tal dis abi liti es, those who are fina ncially strapped, and support services are not there. So I thank you for moving me up because my energy and also my patience is running low. Principle No. 1 0. Who will determine to what extent exposure to others is necessary?

Are we going to call everybody in the family and say, hey, how much of this information is private. Are we

July 13 , 19 93 LEGISLATIVE ASS EM BLY OF MANITOBA 728 going to determine, or are we going to have everybody behind a desk talking about it and saying, hey, this is private, this is not private, this is for the principle of review, oh, let us go back and make another bill. Sir, could you please assist my paper and turn it over, love, because I know you are a good man. Thank you. Now, that is how you get volunteers, and that is how you turn the recession and place it back in your lap.

So I know you will be making a donation or contribution with every smile and energy that you possibly can, because I am here to acquire volunteers and I know you would love to spend some time with me voluntarily. ' � (21 00) Now, Sharon Carstairs stated on June 29, 19 93, in Question Period: It is therefore with some consternation that I do not find that statement of principles in the act itself. I understand that that was to be the framework by which all decisions and all authorities would be decided within Bill 30.

Why the statement of principles is not framed within the legislation in this particular matter, I do not know. I would lik e to answer Sha ron Car stairs' qu estion. It is because these principles are unclear, difficult to understand and are not stated strongly enough. Must needs to replace shall, should, may, can, could, would. I am in-1 do not understand, please. All the professionals who put it together must come back and consult with those who will be affected by it and put it in my language, darling, because that is why I am here.

I hope you do not mind me calling you something sweet like that, because it is very unlikely that I will call you anything else, to put up with, the patience that you have to now, right? Recommendation No. 6. Now this one-1 hope we are all awake-vu lnerable person is not the best term. According to Bill 30, Mr. Orchard-1 will wait until Mr. Orchard can attend to my needs because I would like his attention. Are we all listening? Like good boys and girls in school? Okay. Vulnerable per sons is not the be st term , according to Bill 30. Amendmen t set by the Honourable Mr.

Gilleshammer, vulnerable person means an adult living with a mental disability who would need assistance to meet his or her basic needs with regard to personal care or management of his or her property. That is on page 6, so I am helping you do your homework. According to Webster's New World Dictionary, vulnerable is defined as that can be wounded or injured, open to or easily hurt by criticism or attack, subject to increased penalties and bonuses. Now, I would like to ask if any politician has never had a vulnerable momen t. Are we not easily criticiz ed , inj ur ed or hur t by commen ts or statements?

We do not have to have a door fall on our head. We do not have to have people throw us around or mentally derange us or physically divert us, right? Now, are we not all vulnerable? Well, are we all going to be included in the new vulnerable amendments act, please? Because I do not wish to discriminate against any person who has placed this new amendment act together that wishes to make one challenge, and most of all, strong recommendation to rephrase the word "vulnerable" to the mentally- and physically-challenged person so we can be combined together. Because the predecessor before me that spoke mentioned that.

As long as you are mentally retarded, you may only be wa lking, you are not physically in a wheelchair, you are not an elderly person, but, Sir, I am mentally challenged constantly by the lack of support services. I do not know if tomorrow I will be able to have a bedpan. I am not sure if I will wake up tomorrow or have somebody scratch my nose or physically assist me. So every day is a challenge to me, and I am not mentally handicapped yet, but I have been on a psychiatric ward with a nervous breakdown when I had an aneurysm.

I have had, and I sti ll am in the context of having-and I do have a brother who is unable to go school for 45 years. I have lived with him all my life, and I do not understand how persons walking do not say that they do not have context or contact with people who are not somew hat- the terms used be "turned crazy" or "dt,�mb," or "stupid," or "illi terate," not retarded. Not this not that, but we still use the word, well, you must be crazy. You did not hear me; you did not understand me. That is the opposition or that is possibly the party in office. But they are all here tonight, do you understand?

So we are very, very angry, especially PEP. We have beautiful mem bers who are contributors to society. We have the greatest hearts in the world. Their heads are there. Some are in wheelchairs;

729 LEGISLATIVE ASSEMBLY OF MAN ITOBA July 13 , 19 93 som e are confined to in stit utions. Our PEP members deserve a right and also encouragement. But, economically speaking, we are not sure what the health care bill holds or whether we are going to have everything removed from us. Because right now I am mentally challenged. My husband is very ill. He is very, very sick. He is unable to care for me. Since February 20 I was to receive 24-hour care from Home Care, but they have not arranged it.

So I have had my dog, my little puppy dog, sitting there, and he is still waiting there to press 91 1 or push the medical alert button. That is how far advanced Home Care has come, because we do not have 24-hour care. I am only able to stay at home as long as my husband, who was physically and emotionally unable to care for me, but he had five bypasses, and the doctor said-and he will not give up his wife because he loves her dearly. And he says, honey, you go there and you tell every politician I used to be a bus driver, and now I cannot help it. The politicians are saying, oh, how dare you?

Do what you can, because we both fall into the category of The Mental Health Act as well as the other act, the health insurance act, because every one of you who do not understand, we are not asking for handouts, we are not asking for change, but you put all this garbage on paper and think you are doing a good job. You are not, because you people who are in office, you are there until the people re-el ect another party member.

I am not condeming the work you are doing, because every person right now is petrified whether you are mentally or not, because we are all challenged right now by the recession and by the economic restraints. We are not sure. The do ctor last week was changing my trachea tube, and said, Theresa, do it yourself, because I do not want this job no more. But my arms do not work, my legs do not work. The only thing that does work is my mouth, and that is the weapon I am going to use to push everybody aside that 1-do I ask you people, they are the ones that will be speaking further.

We have a right to live in the community, but most of all, we have a right, but do we have the ability? Do we have the support services? Do we have the staff? Are any one of you willing to come out and wipe my ass free of charge and do anything without asking for payment in return? You cannot find a person out there that wants to volunteer their services except to come here and make the speech to say, hey, the Assembly, everybody wants to have their committee and their organization stay alive. They want to stay because the government has been free , gi vi ng out gr ants.

What is happening to us, ladies and gentlemen? We had 10 years for the Decade of the Disabled. The Mental Health Act has been sitting on the desk for two years being reviewed, reviewed for what? Use it for ass- wipe, because it is not any further than 19 13 . Do you know that, that we are going right back to where we were in the first place. Mr. Orchard, I hope I am your roomma te one day so that I can lay down next to you, and we can discuss the politics of how you are going to help me- Floor Comment: Clean up your language first. Ms. Ducharme: Well, I am sorry, darl ing , but excuse me, please.

Retract that from the Hansard, please. I do not want it mentioned, because I am a lady. But I am telling you that it has been very hard. I have been sitting here in this building since 2:30 this afternoon waiting to speak tonight to save on transportation. It has been very painful for me. I have to go back to my hubby and say to him, I am your wife, I am able-bodied, the best I can. I cannot breathe, I cannot walk, I cannot do nothing for you, hon, but I have a right to be here as long as I am physically able and emotionally strong. I know you people have a difficult time.

I am offering my services, my experience, my volunteer self to help create any changes, but if this Mental Health Act gets passed, using the word "vulnerable," every one of you will have to find room for me in that act, because we are all vulnerable, and the whole act states as mentioned, I do not understand it and neither do our PEP members. * (21 10 ) The first phrase itself says, it must be easily comprehensible for those who are affected, and the most em barrassing statement of all, it does not have any statistics except for the gentlemen that said, oh, well, we have this, member s, we have that, memb ers, but do they know how ma ny mentally challenged people are out there that this act will or has affected?

Does anybody have those statistics? It does not mention any statistics. It does not mention anything, and it is painful to me to say that people have done their home work, but they have not canvassed the whole province, but

July 13 , 19 93 LEGISL ATIVE ASS EM BLY OF MAN ITOBA 730 when we were having an election, we all know where each person is, that we all know where their address is and how old they are and why they are there and please give me your vote so I can be here. It is very painful to me that I have to come here and struggle so hard. I asked other members to come and they said, Theresa, they will not listen to you anyway. Why do you waste your time? I said, that is my offer and for all the care that I have received in the past from Home Care, any kind of care, that I am thankful to be alive.

I cannot receive the services and return them right now. I have asked over and over again tq have a priv ate session with Mr. Orchard, but he cannot meet with me until the House is adjourned. Well, I do not un derst and, because we do not have 10 , 15 minutes. He can meet with the media. He can meet with this, but why can he not meet with a constituent or a member of society that requests that? So if I have t�it is painful to me because there are many questions that I would like to ask that pertain to why it says right here, the mentally handicapped have the right to have independent individual plans. But why?

It does not mention a name. I have a prime caregiver. I cannot stay in the community unless I have a prime caregiver, but the mentally handicapped are supposed to have a case worker. I do not understand the difference from being men tally challen ged or physically challenged and why the government holds all of us. Why do the mentally challenged even want to be reporting to Family Services? Why do they not just keep them in a closet because they do not really care? Why do they have to go backwards instead of forwards? We have got a police system. We have got the criminal system. We have got every other system.

Why do we need a commissioner? We ha ve an Omb udsman. We have got the government in place. There are so many easy loopholes, and it took four years to put this conglomeration together. I do not understand it, people, and I am not an illi terate person. I am mentally challenged. I am vulnerable because I hurt very easy from criticism of others, and I really am physically challenged myself. I ask that Bill 31 be rerecognized because at the same time tha t you su pport the fact that Morgentaler receives the same recognition that the housekeeping right now also is receiving.

Because right now home makers have been removed. What is the difference if you pay medicare, for people like yourselves to pay for our homemakers and receive medicare in return, because what is the difference if you remove or clean somebody's womb out and you pay Morgentaler to do that yet? You let him get free insurance to do this and pay for his abortions. It does not make sense, ladies and gentlemen. Could you please reverse so that we can respect the go vern me nt? We know you are under pressure.

We know the challenges that you have to cope with, and we know everything that you are faced with, but you want to be on the right track, you want to most of all be-a nd the fact that you want to stay in office. You want to get re-elected. You want to do your best, and you are doing the best with what we have right now, but you can do much better. How you do better is by humbl ing yourself. I am taking names down tonight, and I would like to know how many of you have volunteered four hours of your precious time to help a men tally -chal lenged or physically-challe nged person? That is my challenge to you.

So I will be taking names so that you can come, and I have the names of people who are waiting. It could be housekeeping. It could be anything that we ask because we cannot manage without the fellow helping hands of those who really care. That is why you gave me this opportunity to be here today, and I thank God I had the strength to be here for the vulnerable and, most of all, the mentally challenged person that I am and all the anger that is going on out there with people saying, why are you doing this?

They are asking me to phone the uni ons to see why the unions are charging $28, whether you work eight hour s or whether you work 88 hours. Why are the un ions causing this? Why is the government causing this? I am only a human being, ge.ntlemen and ladies. I am not the Lord himself, but I ask that each and every one of you make the right decision upon this act, act 30, and act 31 , because they are one and the same. I trust you will make the right judgment. I thank you for the this opportunity and God bless each and everyone of you.

Please stand up so I can see how tall you all are because I fe�;�l like standing up after sitting here for 18 -s ee? So there you go. I thank you.

731 LEGISLATIVE ASS EM BLY OF MAN ITOBA July 13 , 19 93 Mr. Chairperson : And we thank you , Ms. Ducharme, for your presentation. Are there any questions of Ms. Ducharm e? Thank you very much, Ms. Ducharme, for your presentation. Ms. Ducharme: Why are there no questions? Mr. Chairperson: I am just the Chairperson. Ms. Ducharme : Well, you are supposed to give me your names for volunteer services. Nobody wants to volunteer? Nobody wants to help? Well, I do not know, we are going to have a hell of an election upcoming soon. Mr. Chairperson: Thank you very much. Ms. Ducharme: Well, I will ask one while I am here.

That is just like the government shoving something in your mouth when you do not want it there, but anyway, I love each and everyone of you and I thank you again. I hope I did not put you to sleep. Mr. Chairperson : No, not you, Theresa. Thank you very much. Ms. Ducharme: I will be seeking office in the next provincial election, so watch out for me, love. Mr. Chairperson : Again, thank you very much for your presentation. I will now call on Mr. Rod Lauder. Did you have a written presentation, Mr. Lauder? Mr. Rod Lauder (Pri vate Citizen) : No. Mr. Chairperson: No. Okay, then, you may begin. Mr.

Lauder: Well, it is a pretty tough situation to be in to be following Allistar Gu nson and Theresa Ducharme. I think we have kind of both ends of the spectrum. I want to start by saying that I think prior to addressing comments I would like to make about the act, I want to make just a couple of comments in terms of the dissemination of this act.

You know, as far as I can make out from the list of presenters tonight, Theresa, indeed, may be the only person who in the parlance of people with disabili ties wou ld represent consumer interests, and that certainly nobody who would be deemed a recipient of services by the Department of Family Services now is going to be making a presentation. I think there is something to be drawn from that and the way this act has been put forward and the job that the department has done in letting people know about it. * (212 0) I am also concerned because of the cost of someone just to obtain a copy of this act.

I went over this afternoon and had to pay $12. 45 plus GST for the act. Most people with men tal handicaps in this province are on welfare or are very poor, and most people with mental handicaps in this province, if they wanted to go after a copy of this act, would have to go to their income security counsellor and ask for this to be part of their special needs allowance for the year. I do not think that is right.

I do not think that is right when I phone the government department that is responsible for this, and they tell me that all the supervisors within Family Services have received copies of this act and that the supervisors, in turn, are free to make copies of this at government expense for any of the workers in their department. So it seems to me that it is a little un fair that a person with a men tal handicap could not get a copy of this for free and would have to go out and use their special needs money for it perhaps,

whereas civil servants who are making $40,000, $50,000 and $60,000 a year can get copies of this for free. I am concerned that at the point this act gets passed, and the assumption is that some form of this act will be passed, that at this point it would appear, in conversation that I had with at least one civil servant, that the primary effort will be indeed an abridged version of this. The assumption will be that people cannot under stand the act as it is written or that people, again, would not be given copies of the act as it is written. I think that that seems to represent a peculiar situation.

Then fina lly, the curious note that The resa started on was of cour se re ferring to the committee's final recommendations

Document details

Collection	Manitoba — Debates (Hansard)
Citation	35-4-ed22
Type	hansard
Volume / chapter	35th 4th hansardpdf ed22.pdf
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	3069d7c7dd6449aa765726e74987b4b2375989e6

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