Manitoba Hansard — 30 May 1983 (Sitting 77B, 32nd Legislature, 2nd Session)

32-2-77b

Manitoba — Debates (Hansard)

IS SN 0542-5492 Second Session - Thirty-Second legislature of the Legislative Assembly of Manitoba DEBATES and PROCEEDINGS 31-32 Elizabeth II Published under the authority of The Honourable D. James Walding Speaker VOL. XXXI No. 778 - 8:00 p.m., MONDAY, 30 MAY, 1983. �rinted by the Office of the Queens Printer. Province of Manitoba

MANITOBA LEGISLATIVE ASSEMBLY Thirty-Second Legislature Members, Constituencies and Political Affiliation Name ADAM, Hon. A.R. (Pete) ANST ETT, Andy ASHTON, Steve BANMAN, Robert (Bob) BLAKE, David R. (Dave) BROWN, Arnold BUCKLASCHUK, Hon. John M. CARRO LL, Q.C., Henry N. CORRIN, Brian COWAN, Hon. Jay DESJARDINS, Hon. Laurent DODICK, Doreen DOERN, Russell DOLIN, Hon. Mary Beth DOWNEY, James E. DRIEDGER, Albert ENNS, Harry EVANS, Hon. Leonard S. EYLER, Phil FILMON, Gary FOX, Peter GOURLAY, D.M. (Doug) GRAHAM, Harry HAMMOND, Gerrie HARAPIAK, Harry M. HARPER, Elijah HEMPHILL, Hon. Maureen HYDE, Lloyd JOHNSTON, J.

Frank KOSTYRA,Ho n. Eugene KOVNATS, Abe LECUYER, Gerard LYON, Q.C., Hon. Sterling MACKLING, Q.C., Hon. Al MALINOW SKI, Donald M. MANNESS, Clayton McKENZIE, J. Wally MERCIER, Q.C., G.W.J. (Gerry) NORDMAN, Rurik (Ric) OLESON, Charlotte ORCHARD, Donald PAWLEY, Q.C., Hon. Howard R. PARASIUK, Hon. Wilson PENNER, Q.C., Hon. Roland PHILLIPS, Myrna A. PLOHMAN, Hon. John RANSOM, A. Brian SANTOS, Conrad SCHROEDER, Hon. Vic SCOTT , Don SHERMAN, LR. (Bud) SMITH, Hon. Muriel STEEN, Warren STORIE, Hon. Jerry T. URUSKI, Hon. Bill USKIW, Hon. Samuel WALDING , Hon. D. James Constituency Ste.

Rose Springfield Thompson La Verendrye Minnedosa Rhineland Gimli Brandon West Ellice Churchill St. Boniface Riel Elmwood Kildonan Arthur Emerson Lakeside Brandon East River East Tuxedo Concordia Swan River Virden Kirkfield Park The Pas Rupertsland Logan Portage la Prairie Sturgeon Creek Seven Oaks Niakwa Radisson Charleswood St. James St. Johns Morris Roblin-Russell St. Norbert Assiniboia Gladstone Pembina Selkirk Transcona Fort Rouge Wolseley Dauphin Turtle Mountain Burrows Rossmere lnkster Fort Garry Osborne River Heights Flin Flon Interlake Lac du Bonnet St.

Vital Party ND P NDP NDP PC PC PC NDP IND ND P ND P NDP NOP NOP NDP PC PC PC NOP ND P PC NDP PC PC PC ND P ND P NDP PC PC NDP PC NDP PC NDP NDP PC PC PC PC PC PC ND P ND P NDP NDP NDP PC NDP NDP ND P PC ND P PC NOP NOP NDP NDP

LEGISLATIVE ASSEMBLY OF MANITOBA Monday, 30 May, 1983. Time - 8:00 p.m. MR. DE PUTY SPEAKER, P. Eyler: When last we met we were considering the pro posed motion of the Honourable Attorney-General, considering the second reading of Bill No. 14,

An Act to amend The Elections Act. The Honourable Member for Sprin gfield has 22 mi nutes remaining. ADJOURNED DEBATES ON SECOND READING BILL 14 - THE ELEC TIONS ACT MR. A. ANSTETT: Thank you, Mr. Sp eaker . Mr. Sp eaker , when we were interr upte d for Private Members' Hour at 4:30, I was commenting on the pro vis ions in Bill No. 14 which will allo w for the int roduction of a continuous advance poll, and I know that some members opposite, in debate on this subject, expressed some reservations about the operation of a continuous advance poll.

Before 4:30 I assured them of its success, both in the last two Federal Elections, and in New Zealand for a number of decades. I would also like to point out, Mr. Speaker , that the purpose of a continuos advance poll, contrary to the suggestion of the Member for Lakeside, I believe, who commented on this, is not to extend, over a period of half-a-dozen days or a dozen days, the period of voting in the election. Instead, the same rules would apply as now currently apply to advance polling.

A person would have to take an oath, as they do for a regular advance poll, attesting to their need to be absent from their polling place, or the polling subd ivision in which they normally reside. That's the current provision and it's expected that would continue. So the purpose of this provision, Mr. Speaker , is strictly to enhance the ability of electors to cast their ballots. At the present time there are a number who are disenfranchised because of their inability to attend, either at the regular advance polls or on polling day.

The other area in whic h some memb ers have expressed some concern is the question of vouch ing. Some members opposite seem to feel that the integrity of the democratic system in this province and country will only obtain if any person who is left off the list by the enumerator - (I nterjection) - the Member for Pembina had something difficult for supper and it's just now releasing itself. Mr. Speaker , the Member for Pembina is welcome to join this debate after I fin ish my remarks, but I'm having some trouble dealing with his remarks now.

Some members opposite - but not the Member for Pembina - suggested that the elim ination of vouching would be a real threat to basic democracy and elections in this province. I'd like to point out that in the Province of Quebec, for example, no vouching is required; anyone can be added to the list, by oath, on polling day. In the Province of New Brunswick, anyone can be sworn 3226 in at the poll in both urban and rural polls, or obtain a certificate to vote; no voucher is required. In B.C., a straight oath entitles a voter to cast a ballot on polling day, although they must cast it under a special

section and cast it in a special ballot box. In Prince Edward Island, they swear a simple oath, the same as is proposed here in Manitoba. In Saskatchewan, the same as Pri nce Edward Isla nd, and as is pro pos ed in Manitoba. In Alberta, they swear an oath; they have to produce identificat ion, as they do anywhere else, but they swear an oath and they're added to the list and they vote. The Member for Kirkfield Park expressed some reservations about the need for certain forms of identif icat ion to be requir ed.

I concur with their suggest ion, and if she'd like to make that in committee, I'm sure the Attorney-General would welcome an amendment to require certain specific kind s of identification to be shown by the individual when they take the oath. I think that's a worthwhile suggestion. In Newfoundland, and in the Yu kon, and in the Northwest Territories, people can be added to the list. In the Yu kon and Northwest Territories, vouching is still the rule, but certainly in Newfoundland people can be added by a simple declara tion.

So the rule that obtains in the vast majority of Canadian provincial elections is a rule which says you don't have to drag somebody else to the poll with you to attest to the fact that you're an eligible elector . The bottom line, Mr. Speaker, is whether or not we want an open electoral system that promotes the participation of the largest percentage of the eligible electora te in making decisions.

Those people who wish to require that a person take one or, in the past in Manitoba, two individuals to the poll with th em, obviously have no confidence in the ability of the electorate, or in the election administration, to safely and properly admi nister the laws. So, Mr. Speaker, I have some reservations, certain ly, about leaving it open without any identification. I share the Member for Kirkfield Park's concern about that, and I think that's a worthwh ile suggestion. One of the problems that some people seem to attach to this vouching is that in the city it's going to be a dangerous problem.

In the count ry, everybody knows each other so it won't be a problem in the country so we could let people sign a declaration in the count ry, because everybody knows each other and, as the Member for Minnedosa says, country people are more honest. Well, Mr. Speaker, I can't accept that argument, I can't accept that argument. I beli eve that all the people . . . MR. DEP UTY SPEAKER: Order please. The Member for Arthur on a point of order. MR. J. DOWNEY: Mr.

Speaker , I heard what the Member for Minnedosa said and he said that the country people are honest; he didn't say they were more honest, he just said they were honest. MR. A. ANSTETT: Mr. Spea ker, I stand corrected. If I mis quoted the Member for Min nedosa, I apol ogize.

Monday, 30 May, 1983 I believe that the people in the city and in the country are honest, and I don't believe you're going to get fraud in an electoral system that allo ws people to be sworn in on polling day. In addit ion, the Chief Electoral Officer has indicated that they have done checks of people who have been sworn in on polling day with vouchers, and that there has been no indication whatsoever of fraud at that level, using the present provisions. So, Mr.

Speak er, if people wanted to abuse the electoral system, if it's suggested by members opposite that there are some people out there who might not be honest, regardless of who they are, Mr. Speaker, if there's one there are propably two, so every person who is dishonest can easily find a voucher. The Member for Pembina, obvious ly, kno ws more dishonest people in this province than I do, he's already enumerating th em. So, Mr. Sp eaker, the position of members opposite is predicated on the supposition that it's easier to find two dishonest people than it is to find one . Well, Mr.

Speaker, I don't hold that opinion of the people of Manitoba. The other concern I have, Mr. Speaker , very briefly , is the concern expressed by the Member for Lakeside about occupation; I touched on that briefly . He makes the argument that the only reason for not taking "occupation" off the ballo t is that the people of Manitoba don't want to elect too many lawyers.

That was, perhaps, the clearest argument he advanced for leaving the occupation of candidates on the ballot But I've looked at some of the campaign literature of members opposite, and members on this side, and you know every time somebody puts out some campaign literature they put a little box at the bottom of one of the pages, they put their name in it with an X in a circle beside it.

Nowhere on those blanl< ballots that they print on their literature with their name on it do they put their occupation under it; they don't think it's significant. - (I nterjection) - The Member for Kirkfield Park says, because it's going to be on the ballot If the Member for Kirkfield Park, or any member opposite, thinks that people go into the poll on polling day, not having made up their minds, and then they decide who they're going to vote for by picking up the ballot in the polling booth and say ing, hmm, Harry Enns says we've got too many lawyers, I won't vote for him. A MEMBER: Right MR. A. ANST ETT: Mr.

Speaker, members opposite who say "right," who think that voters make their decision on polling day, based on what appears on the ballot, are underestimating the intelligence of the people of Manitoba. I'm not prepared to do that; I think people make their decisions on far more important factors than what they read in the polling booth. MR. DEP UTY SPEAKER: Order please. The Member for Arthur on a point of order. MR. J. DOWNEY: Yes, Mr. Sp eaker , the memb er referred. to a member of the Legisla ture by the first name, by his name.

I think he should have refer to him as the honourable member for such-and-such a constituency. MR. DEPUTY SPEAKER: The Member for Springfield. MR. A. ANS TETT: Mr. Speaker , the Member for Arthur's point was well taken. I was not referring, however, to the Member for Lakeside by his name. I was pretending that I was the hypothetical voter in the poll, who was looking at a ballot. The Member for Arthur's point is well taken, though. The Member for Lakeside doesn't want to see any more lawyers in the House.

There may be other members in the House who share his concern; I don't I don't think the occupation of members makes one bit of difference and I don't think that people are swayed by what they see under a person's name on the ballot. Mr. Spea ker, those are my comments on this bill. I commend it to the House. I think there may be room for impr ovement in some of the suggestions that are proposed, and I'd certainly be interested in hearing those suggestions from members op posite in committee. MR. DEP UTY SPEAKER: The Member for Pembina. MR. D. ORCHARD: Thank you, Mr. Speaker.

I beg to move, seconded by the Honourable Member for Arthur, that debate be adjourned. MOTION presented and carried MR. DEP UTY SPEA KER: The Honourable House Leader. HON. R. PENNER: Mr. Speaker, I move, seconded by the Minister of Finance, that the Speaker do now leave the Chair and the House resolve itself into a Com mittee to consider of the Supply to be granted to Her Majes ty.

MOTION presented and carried and the House resolved itself into a Com mittee to consider of the Supply to be gr anted to Her Majesty with the Honourable Member for River East in the Chair for the Department of Consumer and Corporate Affairs; and the Honourable Member for Burrows in the Chair for the Department of the Attorney -General . MR. DEP UTY SPEAKER: The Honourable Member for Burrows. CONCURRENT COMMITTEES OF SUPPLY SUPPLY - ATTORNEY-GENERAL MR. CHAIRMAN, C. Santos: Please come to order. The

section of the Com mittee of Supply is now comm encing on the consideration of the budgetary item for the Department of the Attorney -General's Office. As is customary with this committee, we shall commence our proceedings with the opening statement from the Honourable Minister . HON. R. PENNER: Mr. Chairman, what I would like to do by way of an opening statement, is discuss some major initiatives which will develop throughout the course of this fiscal year in the Department of the Attorney-General and conclude by a brief general comment about the size of the Estima tes and the size of the staff. I don't propose at all to go through a 3227

Monday, 30 May, 1983 detailed analysis, department-by-department, section by-section, of the Department of the Attorney- General. I think that's a matter for discussion as we go through each item. I think perhaps one of the most important major new initiatives which will develop during the course of this fiscal year, first by way of legislatio n, and subsequently programm atically, will be the unified Family Court, which is targeted at the moment for imp lementation by January 1, 19 84, so that if that target date is met there will still be three months of this fiscal year in which that court will be operative.

It will be constituted as a division of the Court of Queen's Bench. I should say here, parenthetically , that it was certainly in my consideraton, the intention to very seriously consider establishing a unified Family Court at the level of the Provincial Bench. This would have required a constitutional amendment to

Section 96, so that provincially-appointed judges could have the full ambit of family jurisdiction. This, however, was not to be. All of the provinces concurred in what would have been an amending resolution to that effect, to amend

Section 96, with Family Law jurisdiction and with jurisdiction concerning admi nistrative tribunals. These were to have been dealt with at the Constitutional Conference dealing with Aboriginal rights. As we app roached the target date, the Minister of Justice said that the Federal Government would not go along with the proposed amendment to

Section 96 dealing with Family Law jurisidiction, because he had some things that he wanted to bring in by way of an amendment to The Divorce Act himself, and they felt that there were a number of sections of the practising bar in various provinces, particularly Ontario who, while supporting the now generally accepted notion of a unified Family Court, did not want to see it at the Provincial Judge's level, but wanted to see it as a superior court, arguing, in part, that unified Family Court should be seen as a major superior court.

So that's why, in proceeding with the unified Family Court, it is being done at the level of the Court of Queen's Bench. There is, of course, a significant cost saving in pr oceeding in that way, and that is, that on the ass um ption which is accepted, that in order to implement it, we would need five new judges in the Court of Queen's Bench.

The Federal Government is prepared to appoint five new judges, and in consultation with members of the bar and the bench, with the Attorney-General, people suita ble to a family division, family law practitioners, perhaps some of those already sitting in the Family Division of the Provincial Bench, that me ans that the ma jor cost, some thing approximating 60 percent to 70 percent of the cost of the Family Divisi on, would be borne by the Federal Government. The court would have exclusive jurisdiction in the Winnipeg, Selkirk, St.

Boniface area, but the judges of the court would have jurisdiction, of course, to hear family ma tters as do all Queen's Bench judges anywhere in the province. The creation of the unified Family Court raises some questions that I think members of com mittee may want to consid er, and that is what will be the case, what will be the work of the present Family Division if their jurisdiction with respect to family matters is, in effect, taken away in the Winnipeg, St. Boniface, Selkirk area. I can't really purport to answer that definitively , but I would like to ind icate what is likely to happen.

I have al ready indi cated that it's possible that one or two members of the 10 -person Family Division could be appo inted to the Court of Queen's Benc h Family Divis ion.

The You ng Offenders Act, which is targeted for a proclamation for October 1s t, although I'm inclined to think it might now be somewhat later , but nevertheless will be proclaimed in the next several months, my officials tell me that because of the provision in The Young Offenders Act that young persons charged as being young offenders are entitled to counsel, and that the instance of a judge, Legal Aid, the Department of the Attorney-General must appoint counsel, that we can anticipate a greatly incr eased number of trials for young offenders necessitating judges, Crown attorneys, courtroom space.

It would be very difficult to get a handle on that, but all we can say is that it's likely that there will be an increased workload on the juvenile level in the Young Offenders Court. Of course, the present judges of the family division will continue to do family work outside of Winnipeg on the circuits they now occupy. We will require in the family division a person designated as a master. Several, or at least some judges of the present family division, Provincial Family Divisi on, have expressed an interest in serving in that capacity for a year or two. It can be on a rotating basis.

They would still retain their rank as a Provincial Court Judge serving as a master . The pay would be the same. Ind eed, it would cut down the cost of operating the family divisio n. There is no reason why, if there is a shortage of work for the present members of the family division - I don't think there will be over a period of the several months it will take us to get into work with that court. They can also, of course, serve as some of them already do in the Criminal Divisio n.

There is another possibility that is certa inly open for consider ation - I am cons idering it - is that if we estab lish the Law Enforcement Review Agency it might be appropr iate to consider appointing a provincial court judge as the Comm issioner . So that, all in all, with respect to the question of what happens to the judges in the Family Divis ion, I don't think there is a problem.

With respect to costs, there is in the setting up of the court, which would be set up on the second and ninth floor of the Woodsworth Building, some leasing costs, in that new space would have to be leased for the present occupants of that space, the Department of Northern Affairs, the Department of Consumer and Corporate Affairs and some leasehold improvement costs. We estimate that the one-time capital cost for establishing the court would be in the vicinity of $600,000 to $650,000.00.

In terms of an operating cost, if it goes into service on the targeted date of January 1, 19 84, approximate operating costs for this fiscal year would be $95,000.00. A full year's operating cost would be approximately $267,000 and I can give details of that when we come to the appropr iate

section in the Estimates, but that would not as a full year's cost, of course, kick in until 19 84-85. That could in fact be red uced by appr oxim ately $12 7 ,OOO with the redeployment of some of the existing provincial judges to serve as a ma ster or to serve with the Law Enforcement Review Agency. But I think you can speak of a gross cost in the neighbourhood of $250,000 to 3228

Monday, 30 May, 1983 $275,000 for the staff of the Family Division of the Court of Queen's Bench. There are some offsett ing savings that are taken into account in those figures. We now estimate, because of the reduct ion in the overall workload of the present family court judges at a provincial level, having already in these Estima tes cut down the amount of money estima ted to be expended for part-time judges, the service of par t-t ime judges, th at ind eed further reduct ions might be made. It's quite possible, except on a minimal basis, we might not need to pay for part time judges at all.

A second major initi ative that is coming forward by way of legislation and then will be im plemented but is targ eted for July 1, 19 84, to the extent if there are any costs in volved they're not likely to be expended in this fiscal year - but I should just make note of it here - is the amalgamation of the Court of Queen's Bench and the County Courts of Manitoba.

I should just point out here that the proposal that we're contemplating with respect to that court is that the whole province would be one judicial district, that there would be 12 judicial centres for the hearing of cases, and 16 admin istrative offices. Perhaps, I might just quickly indic ate for the Member for St. Norbert that it's thought that some of the advantages of the new amalgama ted Court of Queen's Bench will be, first of all, accessibility to the public and legal profession, that documents, instead of being filed in just five locations, can be filed in 16 locations.

Again with respect to assize hearings, they will be expanded from five locations to six locations with Thompson being added to Winnipeg, Portage, Brandon, Dauphin and The Pas.

With respect to the hearings of civil and other matters expanded from five locations to 12 locations, we think that there will be some increased flexibility and efficiency in terms of the scheduling of sittings, the assignment of judges and adminis trative staff, the elim ination of dupl ication in such areas as forms and filing, cost savings to the litigants in terms of greater accessibilit y, greater flexibility in filing and serving documents. There will be, of course, a cost impli cation, but that will arise in the 19 84-85 Estimates.

They are something in the vicinity estima ted in 19 82-83, $40,000 that will be expended with new forms, signage, station ary, court seals. There will be some staffing costs, but those staffing costs will not arise until fiscal '84-85. One final comment about amalgamation. There will also be an offsett ing saving in that we will no longer designate judges as judges of a surrogate court. There will no longer be a Surrogate Court. There will be the one Court of Queen's Bench that will have jurisdiction in all matters and the extra money that is paid to some judges to sit as surrogate judges will be saved.

That's approxima tely $45,000 a year. I have al ready ind icated with respect to the Small Claims Court, it will continue, at least for the foreseeable future, to operate as it presently does, that is, using clerks for hearings. There will be an ame ndment intro duced in this Session of the Legisla ture so that it's in place for the projected amalgamation which will simply replace

Part 2 of The Country Court Act with the equivalent

section of The Court of Queen's Bench Act. Where we'll go with the Small Claims Court has not yet been decided. It may be that some of the proposals of the Law Reform Comm ission will be considered - it's certai nly open for consideration - but nothing will be int roduced in this Session, and nothing is planned in the foreseeable future with respect to the Small Claims Court.

I must say that although I'm sympathetic to representat ions which have been made, that we should increase the jurisdiction of the Small Claims Court from its present 1, 000 to a maximum of 3,000 - some would say 5,000 - but I'm open on that. The third in itiative that al ready has been the subject of some discussion in the House and will be subject to further dis cuss ion in the House is the Law Enforcement Review Agency. This, of course, raises some questions about the function of the Manitoba Police Commission.

The Manitoba Police Commission will continue of course to exist, hearing appeals in some matters and having a function assigned to it under The Law Enforcement Review Act. It will also continue as the Police Commission charged with the responsibility of developing crime prevention programs and assisting in police training, police standards. In anticipation of a cha nge d worklo ad for the Manitoba Police Commission, three of the staff of the Manitoba Police Commission have been moved over from the commission to the department, but at the same salaries. There are no cost implications to that.

For example, one member of the staff on the Manitoba Police Commission, who was doing communications work for the commission, is now a member of the department as a whole and does communi cations work for the department as a whole and not just for the commission. So we haven't added any communication person to the department. We've just taken Mr. Phillips, who was with the commission, and moved him over to the department. He has been gi ven departmental responsiblities in the area of communciations with the intention that he would work on pamphl ets, explaining the new

summary conviction proceedings; changes in the family law will probably require a revamping of the family law manual which has been in existance for some time, and th:ngs of that kind. There is more than enough work for a communication person in the department. The Law Enforcement Review Agency, there is no date yet set for proclamation. I want to make sure that we are able to engage the services of a top-flight person as commis sioner. I have already indi cated the possibility that this could be a Provincial Court Judge, and I am inclin ed to go that way if we can find a person to take that position.

The costs will be not great. We're thinking of a small beginning on the Law Enforcement Review Agency until such time as there is a better handle on what his workload will be. Certain ly, there will be some office space to rent a commissioner and some support staff, and the fees to be paid to people sitting on the board, which will, of course, be on a per diem basis based on just how man;t sittings there are. I don't expect that much of the cost will fall into this fiscal year.

As I say, it will take some time from the date of passage of the legislation to the actual setting up of the agency itself, and that's more likely to come some time in the late fall or perhaps around January 1st of 19 84. With respect to freedom of information, just a very brief comment. It will not be operative in this fiscal year. The legislation is still being worked on. It's lik ely that it may be int roduced and referred for intersessional 3229

Monday, 30 May, 1983 study because it's a major undertaking and that might be the better part of wisdom to do it in that way; and that would coincide with the perceived need for at least several months of very careful work to set up the adminis trative structure. In any event, a decision has not yet been taken as to which department would admin ister the freedom of information legislation. It could well be the Department of Cultu ral Affai rs which alr eady ha s the ma jor re sponsib ili ty for the handling of go ve rnme nt information and documents and the archiv es. Mr.

Chairman, with respect to ongoing matters in the department, just a few words on court efficien cy, Land Titles Office, Law Enforcement, and one or two of the agencies. With respect to court efficien cy, we're continuing the computer program called Promise. There will be further developmental aspects. I think the figure there is probably $11 7,000.00. That will be discussed when we come to the appropr iate point in the Esti ma tes, and there will be some operating cost because we're finally in a position to move from the developmental stage into a pilot operational model for this year.

The Promise system - no pun intended - prom ises to be very helpful in helping us to trace each indi vidual charge right through from beginnin g to end and to be able, using various programs in Promise, to help us better organize the work of the court and hearings of the court. We antici pate some conside ra ble savi ngs from the development of the Promise system.

I should also like to mention that we ha ve introduced under the leadership of the Chief Provincial Judge, Harold Gyles, what is called a Calendar Court, the intri cacies of which can be explained when we come to Court and Court Admin istration; but, in effect, the Calendar Court, which is operating at 373 Broad way, by November it's anticipa ted that all cases in Winnipeg will be handled on the Calendar Court basis.

It's projected that all cases going through the new Calendar Court can be di sposed of within the objective we've had for some time under previous ad mini strations of being able to dispose of criminal charges within a th ree month period; that is, of course, criminal cases being heard at the provincial judges' level. Members are already aware of changes that were made last year with respect to

summary conviction proceedings. The second major sect ion of that Act was proclaimed just a short time ago and is presently in force. We antici pate as a result of th ese new proce edings, not only , of course, will the po li ce, particularly the Winnipeg Police, save an enormous amount of money in terms of witness fees, because we only pay a very small portion of what it actually costs the City of Winnipeg, but departmental ly, there will be as many as six staff who can be redepl oyed by the end of the fiscal year as a result of the changes tha t have been made in su mmar y conviction proceed ings.

In the Land Titles Office, we are continuing with the computeriza tion. We expect that by the end of fiscal 19 83-84, there will be a staff saving of two persons; another two or three in 19 84-85. We are also anticipating a staff saving as a result of the statutory changes encompa ssed in Bills 10 and 11 , having to do with the General Register. So we're looking to some considera ble saving in staff over several years but beginnin g this year in the Land Titles Office, principally of course because of the computeriza tion.

With respect to law enforcement, a major expense in the department, as members will see by the Estimate book, we are working quite intensively with the senior officials of the RCMP, trying to effect cost savi ngs, looking very carefully at their deployment of forces. We are continuing with the development of the Native policing program, principally the 3-B Program, and there are eight new 3-B constables being pla ced this year.

We are now considering, because you must do it a year ahead, what might be the number, if any, to be added in fiscal '84-85 and we had, in fact, a prelimi nary dis cussion with senior officials of the RCMP on that this morning. The 3-B Program as a whole has worked well. It has a general acceptance on the Reserves. One significant development in the 3-B Program is to move police detachment offices, not on the Reserve but adjacent to the Reserve, so that the constabulary are available in terms of their resident.

I ha ve been conc erned , I'm sure the pr evious Attorney-General was as well, with the fact that we are spending this very very substan tial amount of money on law enforcement and with the retirement last August of Gordon Wiens from the de partment, we are upgrading that position to be that of a Director of Police Services. Staff is working with Civil Service now to work out a classification and a job description. We expect that to be comple ted within the next relatively few days in fact, and the position will then be nationally advertised.

But when one item in the budget alone accounts for 40 percent of the budget, it cert ainly argues for the upgrading of that position so that someone can work on a regular basis, alm ost a daily basis with the senior officials of the RCMP, on questions of the staf fing deployment of the various detachments and to work with some of our other policing programs. I should say with respect to other policing programs, as the previous Attorney-General will recall - I'm sure others will as well - we grant money to municipalities for their policing programs.

We have decided that, not for this fiscal year but for the next fiscal year, that it would be more appropria te if grants to municipalities for policing were made through the Department of Municipal Affairs because they already make a whole number of grants and there should be some system pursuant to which grants are made.

The grants which are presently made are really , in a sense, hapha zard in that they bear no logical relation to population and the cost of policing in a given area, or to the tax base of a municipality which must bear the brunt of some of the costs, so that this particular aspect of the Attorney-General's Estimates, which account for a couple of hundred tho usand dollars in grants to municipalities will be, after this fiscal year, moved to the Department of Municipal Affairs.

A couple of conclud ing observat ions about programs in the department; there has been considerable increase in activity in the human rights field. The figures for 19 82 compa red to 1981 ind icate that there were 4,907 matters handled compared to 4,229 in 19 81, with no changes in staff - in fact there have been no changes in staff for the last few years - and we go into these Estima tes on virtually that basis. I'm already advised that there is, in fact, still an increase in workload and 3230

Monday, 30 May, 1983 that this is exerting severe pressures on staff. It may be that some rational ization of staff and expend itures will have to be made during the course of this year to assist the board and the officers of the Human Rights Commission to carry out the very impo rtant work which it does. With respect to Legal Aid, I'm afraid that the effects of the recession will continue to be felt through a significant part of fiscal '83-84, at least to the point where the loading on Legal Aid will increase quite dramati cally .

The figures for April of 19 83 ind icate that the cause for concern is, in fact, not without justification, something like a 13-14 percent increase in workload - April over April - for April, 19 83. I'm concerned, as I'm sure members will be, that towards the end of this fiscal year there will be an applic ation by Legal Aid for supplementary funding to deal with the increased workload.

However, I've alerted the board and the officials in Legal Aid to the increased difficulties of them being able to look for any substantial suppleme ntary funding and that they should begin working now on cost savings and rationalizations. Indeed, the new board is hard at it and I think they will be able to show some positive results. Certai nly I met with them a few weeks ago - 10 days ago, in fact - and found them to be a very ha rd work ing, conscientious group.

For example, one of the things that the y're doing, indeed have already im plemented, is to estab lish one of the Community Law Offices as a specialist office doing criminal work only and providing the Duty Counsel for the Criminal Courts. They exp ect th at some considerable gain in efficiency and some savings in costs can result from that venture.

With respect to service in Northern Manitoba, you will see when we come to the Estimates for Legal Aid, that we've added one lawyer and support staff in Thom pson to service Thompson and Norway House and some other circuits in that area, which are presently served at considerable cost and lack of accessi bility from Winnipeg. So the net cost of that is approxima tely $40,000.00. Mr. Chairman, the Estimates of the Department of the Attorney-General show, in terms of a budget over budget increase, an increase of approxima tely 13.9 percent.

This is made up as follows: The general salary increase plus increments accounts for 9.4 of that 13.8; Law Enforcement accounts for 13.2 of that 13 .8; and increase in Legal Aid payments to the private bar account for 1. 2. Actually there's a net reduction in the operating budget of $42,000, after having conside red those increases that I've just mentioned. Those then are my opening observat ions about the Department of the Attorney-General and I would be pleased to answer any specific questions that the Member for St. Norbert might have in his opening remarks. MR.

CHAIRMAN: Consistent with the procedure and practice in this Committee of Supply , the Chair now calls upon the leading critic of the Loyal Opposition to present his reply to the Mini ster's opening statement. MR. G. MERCIER: Mr. Chairman, I think the Attorney General successfully fili bustered his opening statements 3231 and I'd like to move into individual items. Under this topic, I ask for your guidance perhaps, Mr. Chairman, I bel ieve we're on 1. (b)(1). MR. CHAIRMAN: Before we proceed any further, I'd like to invite the membe rs of the Attorney-General's staff to take their respective places.

The Member for St. Nobert. We are now starting with Item 1. (b)(1) . Do you want to consider that together with Item 1. (b)(2)? MR. G. MERCIER: Well, Mr. Chairman, perhaps just for clarification, there are some matters that I would like to discuss under this item and I think this is appropriate because there's really no budgetary item with respect to constitutional matters. Would that be appropriate here? MR. CHAIRMAN: I'm calling Item 1. (b)( 1) and 1. (b)(2) togeth er. MR. G. MERCIER: Mr.

Chairman, if perhaps we could firstly deal with the statement by the Attorney-General a week or so ago, with respect to the Federal Provincial Agreement to amend The Manitoba Act, I would like to ask the Attorney-General some questions. Firstly , would he not agree that the translation of Statutes in Manitoba, as undertaken by the previous government, as conti nued by the present government, was being done reasonably in light of the expertise avai lable in that particular area, the trained translators and legal translators and staff resources? MR. CHAIRMAN: The Honourable Min ister. HON. R.

PENNER: There is two observat ions. First of all, of course, there's a general observation that I think I should make now and then I'll attempt to deal with the question in general; and that is, that the translation unit is lodged here with the Department of Cultural Affairs and the specifics ab out tr anslation and translation costs will have to be raised . . . MR. G. MERCIER: I'm not going to raise costs. HON. R. PENNER: Yes, okay fine, I just wanted to make that general observation. The question posed by the Member for St.

Nobert, of course, begs the question of reasonableness, and I suppose from the point of view of the province it might be said, looking at it only from the point of vie w of the province as an adminis tration seeking to control costs, that it might be reasonable if we di dn't have to do it at all. On the assumption that we have to do it, it might be reasonable to have it done by the year 2023, rather than any earlier.

If we were under an order of the Supreme Court requiring that it be done by 19 90, then reasonableness would not enter into it very much; we would reasonably have to obey an order of the Supreme Court. That's why it's difficult to answer that question. I know that the previous government was making some efforts, running into somewhat the same difficulties we were running into, at least a year ago. The situation has im proved. I suspect that had the situation im proved in the same way for the previous admin istration had they

Monday, 30 May, 1983 stayed in power, as it has for us, then it is quite likely that the previous admi nistration would have accelerated at the rate at which it was translating.

I have no reason to believe that they would have done oth erwise than that, wher e I think the reasonableness of the approach that has developed, perhaps is best demons trated by - or in an answer I gave to the hono urable member this afternoon in the House when I pointed it out, and later on I hope to have more precise statistics than I was able to provide this afternoon - that we will not be in a position of having to translate a very large number of private bills, institutional charters, municipal charters and things of that kind, and that the cost whatever it amounts to, the Minister for Cultural Affairs will have, I hope, hard figures by the time we get to his Estimates we will be saved, and I guess that's reasonable.

MR. G. MERCIER: Mr. Chairman, I suppose I'll have to ask the question again. After the Forest de ci sion while the previous government was in power, I believe that all reasonable steps were taken to recruit translation people as quickly as possible, to begin th at mon umental task. The Province of Quebec assisted, the Federal Government assi sted , outside contra cts were ent ered into, nationwide advertisements were placed, but the fact of the matter was, for us and for this government, as they are now experienci ng, that trained translators are difficult to find, to employ and to retain.

My question to the Attorney-General is: Does he not consider that the efforts that were being made by the previous gov ernment and his gov ernment, to proceed with the translations of the existing Statutes was being done in a reasonable way? HON. R. PENNER: Again, given the circumstances that pertained at the time, if you're looking at availability of the translating resource, or resource persons, then it's reasonable that you seek to get those people and get as many as you can according to the need. That's reasonable, I assume, that that's what the previous government was doing.

When I came into office there were three people in the unit and a director /reviser. Very shortly after we lost the director/r eviser. To this date we have been unable to hire a director /reviser and that poses a serious problem because, although the trainees who were in place shortly after I took office because some of those who were in place when the previous Attorney-General was in office, were lost to us. We did finally get some who passed the exam, who stayed and are still with us, although even that's a bit sha ky. Their work always must be subjected to the scrutiny of a reviser.

We have been trying desperately to hire a reviser. Finally, just in the last month and a half we've simply had to second a me mber from the office of the Legislative Counsel, who is sufficiently expert to be able to act as a reviser to the transla tion unit in order to do that.

So I assume, with what we're presently doing and with the work that has been free-lanced and the work that has been contr acted to the Uni versity of Moncton, and - and this is an important addition - the assistants in personnel that the Secretary of State is now promising, we'll be able to keep abreast of the transla tion of new bills and revised bills as they're introduced - and we're keeping abreast for the first time compl etely in this Session - and we'll be able to continue working on the backlog. I don't know what other answer I can give. I wasn't sitting as Attorney General in 19 81. MR. G. MERCIER: Mr.

Chairman, I think a disinterested observer would come to the conclusion that efforts were being made, under the previous government and under the present government, to proceed with the translation of Statutes, was a reasonable one.

Could the Attorney-General, for the record, confirm that in the Bilodeau case in the Manitoba Court of Appeal, in the majority opinion of the then Chief Justice Freedman, the court not only refused to declare the applicable Statute and all Statutes invalid which were not translated into French, but also refused to enter into what is called in the judgment, an affirmative action program? HON. R. PENNER: I can confirm the first part. I don't know that the court was asked specifically to deal with an affirma tive action program.

Certain ly, the majority of the court in the judgment of the former Chief Justice, Samuel Freedman, held that the word "shall" in

Section 23, in effect, did not mean "shall" but meant "should." In legal language, he said that it was directory and not manda tory. The dissenting judge, now the Chief Justice of the province, Mr. Monnin, disagreed with that; took what he considered to be, however, a practical approach to the problem and said that since it wasn't established by a Supreme Court decision, that

Section 23, The Manitoba Act, as a whole, was a cons titut ional instrument; until 19 79 the obligation to transla te would only flow from 19 79, and the pre-1 979 Statutes and regulations would not have to be translated. It was my view, and I think rightly so, that for a number of reasons neither of those judgments would commend itself to the Supreme Court.

The record of the Supreme Court in dealing with these cases, both in Forest and in Bla ikie, was such that we had every reason to believe that the Supreme Court would come to the conclusion that shall means "shall," demonstrating once again that the law is not always an ass. The reason for that, among other reasons, is that on April 17 , 19 82, The Constitution Act, 19 82, was proclaimed and there are provisions thr oughout there, using the language "shall" and tying that language and those provisions into a remedial sectio n. The remedy

section of the Char ter,

Section 24, which incidentally is far more sweeping and open than anything that we're proposing, is such that the court would be able to not only impose an affirmative action program or some kind of action program; but, indeed, if one looks at

Section 52 of the Charter, which says that any Statute which is not in conformity with the Charter is to that extent invalid , th at th ese new developments in constitutional law were of, and are of such import, that the likelihood - no one can speak here of certainty at this junction - was that the Supreme Court would say that shall means "shall," and then given the powers that it has under The Constitution Act, 19 82, would propose some remedial action. MR. G. MERCIER: Mr. Chairman, just for the record, I'm trying to be as precise as I can be in the questions, 3232

Monday, 30 May, 1983 and we are going to try to deal with the Minister 's Estimates with some dispatch, hopefully complete them tomorrow night. We app reciate all of the informa tion that the Attorney-General give us in his an swers. Perhaps, if he could be a bit more specific, we'll get on a lot faster.

In view of the fact that we have the Court of Appeal decision in the Bilodeau case, and in view of the fact that I think most disinter ested observers would say that what was being done in Manitoba with respect to translation was being done in a reasonable way, does the Attorney-General have reason to believe that even ii - and I suggest it's perhaps unlikely - the Supreme Court were to hear the Bilodeau case and find that the word "shall" was to be interp reted in a mandatory way, does he think that the result of any remedy given by the Supreme Court would impo se any greater onus on the Province of Manitoba than the reasonable way in which the Statutes have been trans lated so far?

HON. R. PENNER: The Member for St. Norbert is still making the assumption that what was being done so far is reasonable. Let 's, however, without really trying to exchange one person's view of reasonableness for an other, assume that the Supreme Court found that it was reasona b le and said - having come to the conclusion that the words of

Section 23 are indeed mandatory - that you do have to translate your statues; you do have to translate your regulations because that flows from Blaikie. Indeed, flowing from Blaikie, they would also go on to say that you do have to provide Frenc h langu age services in your admi nist rative tribun als, because that was said in Bla ikie. They would say that, and they would - I can only assume - say, however, in order for our decision to be effective, we're im posing a date. Now, I'm sure sure they would n't impo se a date without some discussion from counsel on either side.

I know that the honourable Member for St. Norbert is reasonable, and he knows that I'm reasonable, but it may stop there. When I had discuss ions over a period of time with counsel for the Societe Franco-Manitobaine, a person from the University of Ottawa by the name of Mr. Magnet (pho netic.), I may say I didn't find him always reasonable.

He assumed - and I'm sure he didn't find me reasonable - that there's no reason why we couldn't have all of the Statutes and regulations transla ted within a couple of years; and that he, if given the task, would himself in very short order put together a translation unit that he was prepared to ship in from Ottawa to Manitoba at some prohibitive cost - but he found that reasonable - and do the job. At one point, we asked him to put some action where his promises were to see ii, in effect, he could come up with this transla tion unit that he said undoubtedly was there, and he didn 't produce.

The difficulty though is this, that supposing we were able to take advantage of a one-shot effort like that and get a translation unit; suppose that the Supreme Court had bought that argument advanced by Mr. Magnet on behalf of the SFM and Bilodeau, and said, well, they can provide you with the services and the Secretary of State is willing to help, and it's 19 90; supposing they had said that.

The difficulty is that it's our estimate that we really do have to use such talent as we can recruit and keep to train our own indigenous translation force over that period of time between now and appr oximately 19 90, because these birds that fly in on the wings of pretty high salaries and nest here but for a while, soon look back to the home marsh in Ottawa Valley or Montreal and say, you know, this may be all right for people born and bred on the prairies, but it ain't Montreal, and it's not the sin capital of Canada, Hull, Quebec, and away they go, and you can't chain them down. MR. G. MERCIER: But, Mr.

Chairman, I believe it is unlikely that the Supreme Court, if they were in a hearing on the Bilodeau case to find that the words interpret the shell in a mandatory way, would have imposed an unreasonable date for comp letion of the translations, even if they had decided to embark in that course of a remedy which the Court of Appeal in Manitoba was not prepared to do. It was raised - I think the Attorney General will find if he rereads the decision - it was raised by counsel for Mr.

Bilodeau and I believe also by counsel for the Federal Government who took the position that it should be interp reted in a ma ndatory way, but because the result would be chaos there should be some sort of delay im posed. Would the Attorney-General rot agree that the Supreme Court would not, even if they had gone that tar to interpr et the wording in a mandatory way, impose a time limit on translations, would he not agree that the Supreme Court would not have carried on further to deal with the right to communicate services in French, as is proposed or set out in the proposed amendment? HON. R.

PENNER: I would agree with that. MR. G. MERCIER: Mr. Chairman, could the Minister then give us the rationale which he and the government used in embarking upon that expansion of French speaking rights? HON. R. PENNER: First of all, with respect to the work "expansion," we had already undertaken, as had the previous government, to deliver some services at the level of the government in the French language, and we are really continuing with that. What the only difference is, these rights or these services rather, are being protected within the Constitution.

However, just looking at in a blunt hard-headed way, it was part of a deal. It takes two to tango. Over a period of time, the proposal was advanced fine, you say, with all of the difficulties that you have in recruiting and keeping translating staff, that to do the job of translating you' re going to require in 19 93- 1995, you say that given the fact some of the transl ation staff comes and go es, that alth ough you're no w translating new bills and revised bills that come into the House, you don't want to be under the gun to have to do that until January 1, 19 86 or 19 87.

You say with respect to the translation of regulations, which haven 't really begun, that you're going to need some time. You also say there is a whole raft, hundreds of bills, hundreds of private Acts and so on, that are of very very limited use, and you don't want to spend the million or two or three, whatever it might cost, to translate those, fine. Accept all of that and we'll agree 3233

Monday, 30 May, 1983 on an amendment to

Section 23, which will give you that time and relieve you of that responsibil ity, but the quid pro quo, your part of the bargai n, is to take tho se things that you've already said you're prepared to deliver and are delivering, in part not yet in whole, and put them in as an amendment to

Section 23; protect them constitutionally so that they are no longer at political risk. As this develops, the other of the bargain was that a consi derable amount of money would be contrib uted by the Federal Government, a package well over $2 million, if you take the saving in terms of the Statutes, we no longer have to translate. We're talking big numbers. We're talking $3 to $4 mill ion and that's the bargain that was made.

But I would just add one other thing - and I don't want to speak at length - and that is I think, at looking down the path of history to the origins of this province and its beginnings and to this country and to problems of national unity in this country, that what we did is morally right. I would just add this, and I'm sure the Member for St.

Norbert may be aware of this - and if not then I hope this is helpful to him - that what we have effected is being acclaimed by the Angloph ones in Quebec who had joined this action because they saw that what might be gained in this acti on, rather than lost by the Francophone minor ity in Mani toba, couldn't help but strengthen the th reatened position of the Anglophone min ority in Quebec because the two sections, 13 3 of The BNA Act as it used to be, and 23 of The Mani toba Act, are word for word identical. MR. G. MERCIER: Did the Attorney-General personally conduct these negotiations and dicussions? HON. R.

PENNER: Yes, I did. Always with the assistance of counsel at various times with me at the table. The table was always the table in my office, I may say. I feel more secure in th ose circumstances than going out to the wilds of St. Bonif ace where counsel for the province in the case, Mr. Twaddle; Chief Legislative Counsel, Mr. Tallin; my deputies and associate assistant deputy, and from time to time, Mr. Turenne, co-ordina tor of French Language Services for the government. MR. G. MERCIER: Mr. Chairman, in a newspaper

article back last August, it was ind icated that the Attorne y General had at that time drawn up a draft amendment which would be a replacement of

Section 23, which would free the government from having to translate existing English-only laws. Could he explain what he was proposing at that particular time, and what led him to change his mind? HON. R. PENNER: What I was proposing was pretty well as you recounted from the newspaper

article and that is an amendment, which in effect, would remove

Section 23 and replace it with a new

Section 23, which would have these various time lines for the translation of Statutes and regulations, but which had no provision in it for French Language Services, that was turned down comple tely . At that juncture, we examined the alternatives that were available. One of course was, as urged by members of the opposition, to throw down the gauntlet and go to the Supreme Court and let the chips fall where they may. The other was, to conti nue to negotiate to see if something could be worked out.

From that time in July , August of 19 82 to April- the whatever of this year - was it May? - the negotiations went on and produced the results that we are now di scussi ng. MR. G. MERCIER: Mr. Chairman, the Min ister referred to the quid pro quo, and I wonder if he could amplif y on that. What has the province saved? HON. FI. PENNER: The province, first of all, has gained the comfort - I'm here talking legally - of time within which to make sure that we have the on-the-ground facility to . . . MR. G. MERCIER: Excuse me, Mr. Chairman. Perhaps to be more precise . . . HON. R. PENNER: Oka y. MR. G.

MERCIER: . . . what I was getting at is what does the province not have to translate that they would have otherwise been required to translate? He refers to unconsoli dated Acts, municipal Acts and private Acts. HON. R. PENNER: I will be able to provide the honourable member - I don't have it with me tonight - two schedules; one which will, in fact, give the names of those private bills and Acts which we propose to translate, and those which we don't.

We had the revised Statutes, the appendix, which contains about 20 or 30 pages, a list of these bills which aren't in fact contained in the revision or in the consolida ted Statute. We could go through it now, but I will provide that information. MR. G. MERCIER: Mr. Chairman, would the Attorney General also provide a list of the departments, etc., that are referred to in

Section 23.8(1) of the amendment, which will be required to - where a person will have the right to communic ate in English or French with the head or central office of any department; head or central office of any court, quasi-judicial or adminis trative body, any Crown corporation or any agency of government; and whether or not there are - at least in the Attorn ey General's mind - which offices are referred to in subse ction (2) of that

section where there will be a sign ificant demand or "due to the nature of the office, etc., it is reasonable ... " could we have a comple te list of all of tho se offices that will be affected by that section? HON. R. PENNER: Thank you, Mr. Chairman. I can't guarantee that I can provide, at this stage, a comp lete list. I'll provide as comp lete a list as possible. We're attempting to establish an invento ry, if you will, of places where we think service should be supplied, and an inventory at the same time of the persons we have available to meet antici pated demand.

Certain ly, the language, as quoted by the Member for St. Norbert, encompa sses the head offices of the 18 departments of government, so that, for example, if somebody came to my office and wanted to speak to me and to discourse with me, using the Fr ench lang uage, then an appointment would be made for that person. 3234

Monday, 30 May, 1983 Since there are only two languages which we actually presently speak in my office, English and Ukrainian, we would go across the hall and get Greg Yost from Mr. Tallin 's office, or if Mr. Yost was not available, we would go across the street or just phone and have Art Proulx come over; but we would also have available as would every other Minis ter, the services of the Translation Bureau.

Indeed, if somebody dropped in without an appointment to see a Mi nister - I don't know how many Minis ters see people without appoi ntments - and wanted to dis cuss somelhing with the Min ister or the Deputy Mini ster - perhaps I should have cast Mr. Pilke y in this role - arrangements can be made to ha ve someone available so that that can be done without any real problem, without any additional staff. MR. G. MERC IER: Mr. Chairman, would the Minis ter acknowledge that the right to commun icate may itself be the subject of litigation as to what that really means to a French-speaking person in Manitoba? HON. R.

PENNER: I really antici pate vi rt ually no litigation under this sect ion, and that may be part of the optimism that has carried me thus far in life without serious scars; but communication, would take it to mean oral or written commun ication. At the level of written communication, it means to be able to write a letter in, let's say, French and to have a reply in French. Well, that we're now doing as a matter of policy. When a letter comes to my office in French, it is answered in French. I send that letter over to the Translation Services; within about a day, two days, it comes back translated.

I write a reply; it goes to Translation Services, comes back to me nicely typed in the French language. I try my own rather lim ited French to make sure that it's oka y, sign it and away it goes. MR. G. MERCIER: Mr. Chairman, I thi ni< this will be the last question on this subject, and I asked the Attorney-General a question today in question period and he may not have appr eciated what I was trying to get at.

There have been a num ber, I think, of French speaking people who have said the requirement to translate all of the Statutes and all of the regulations is a waste of money because they don't require all of them to be translated, and they refer to some of the much lesser-known Statutes that we have in existence that are not in any degree of any popular use.

Was there, in the discussions and negotiations, any attempt to reduce that total requirement, other than the list of Statutes that the Attorney-General's already referred to, which I'm sure are agreed to - they're not really of very much signi ficance; appreciating, Mr. Chairman, that to find the test to be used might be a very difficult one - but was there any dis cussion or negotiation along that line? HON. R.

PENNER: No, there wasn't, other than - the question was raised at one stage and, indeed, some of the figur es that the honourable member used about the number of Statutes which had been purchased from the Queen's Printer came into the discussion, but what was said was - and the statistics are there - that the number of persons pract ising law in the French language are increasing quite remarkably; that they want to be able, as do some of their clients, to deal in that language; that the reason why there hasn't been greater use is because it's been difficult, to this point, to use the language to the extent that they would like to use the language.

But it ran up against the kind of problem, final ly, that the Member for St. Norbert at least implied the adverse to, and that is: How do you arrive at that list? I know that in my own years in the practice of law - the Member for St.

Norbert has had many years also in the practice of law - that maybe two dozen Statutes of the whole lot that I actually used - but you just never know from day-to-day what case is going to arise that will require the use of a particular Statute; perhaps it was a little more than two dozen - but not many more out of the hundreds and hundreds of Statutes that are available, so that it's difficult to select and say, well, sure you can pick the main ones and then, looking at our translation polic y, the empha sis has been put, by and large, on the obvious ones - The Hig hway Traffic Act, The Public Schools Act and The Garagekeepers Act.

MR. CHAIRMAN: The Member for Elmwood. MR. R. DOERN: Just a couple of ques tion s, Mr. Chairman. I was just wondering if the Attorney-General could give any ind ication of what time constraints or pressures there were on the negotiations. In other words, this would be something one could only estimate, but was there a limi t in terms of the negotiations, in his judgment of - are we talking about another month or a year or a day or what? What was the urgen cy, other than the Supreme Court pressure? Was that the pressure and was that what you were trying to obviate? HON. R. PENNER: Yes. MR. FI.

DOERN: I just want to know whether it was possible the negotiations could have been conducted over a longer period of time, or whether the Attorney General felt that he had to conclude them within a definite time frame? HON. FI. PENNER: We had tried to be - I hope I'm correct in this - we had obtained at least one, perhaps two, adjournments of the hearing and then sought a second or a third adjournment. Counsel were instr ucted by myself, thr ough Mr.

Twaddle to argue for an adjournment before the Chief Justice of the Supreme Court in March or April - I can find the exact date - and we were join ed in that appl ication for an adjournment by the Federal Government who went along with us. We said that we would think that perhaps a little more time would be of benefit to all concerned. Regrettably the Supreme Court di dn't go along with that applic ation for an adjournment and set May 26th as the hearing date. It was our view that once the matter was before the court and argued that the negotiations effect ively would likely come to an end. MR. R.

DOERN: The Bil odeau case, is that case now finished or is it possible that still may proceed to the Supreme Court? HON. R. PENNER: The case is adjourned without a date having been set. Part of the process that we're 3235

Monday, 30 May, 1983 involved in is finding the way of formally bringing that case to a conclusion. The agreement is that when the amending resolutions are passed by the respective Houses, the Legislative Assembly of Mani toba, House of Commons and the Senate, federally , that there'll be a formal motion before the Supreme Court to dismiss the case and strike it off the list. MR. R. DOERN: So that if that case did proceed, after this legislation was passed, then you would - I'm not a lawyer, you are - you would assume just be thrown out? HON. R.

PENNER: No, what could happen is, if it were to proceed - it just won't - but if it were to proceed, then the Supreme Court could say that the Statute was, at the time, invalid, because not in the French language, and that the conviction for the $5 speeding ticket - or was it a $25 speeding ticket; I suppose it was $25 - was invalid and they would quash the conviction and order costs assessed against the province; but they could not then go on to find that all of the Statutes of Manitoba were invalid because the Constitution would have been amended, validating our Statutes. MR. R.

DOERN: Could the Attorney-General clear up this point? Is Manitoba now officially biling ual, or is this the action that will make it officially bilingual? What has been the status of the province over the last number of decades? HON. R. PENNER: The Provinc e of Mani toba arguably was officially bilin gual within the restricted terms of

Section 23 of The Mani toba Act, confined to the specific things mentioned in

Section 23 of The Manitoba Act, subject only to this; that, as I pointed out a bit earli er, in the Blaikie case in the Supreme Court, the Supreme Court argued on the basis of what is called the living predoct rine of constitutional interpreta tion, that the word "cour ts" of the province would have to inc lude admin istrative tribunals with quasi-judicial powers, so that those would then be encompa ssed within the wording of

Section 23. The addition that has been proposed extends that limi ted form of bili ngualism to include services offered by the government through its head offices and agencies and Crown corporations, to that extent and that extent only, so that it's a lim ited form of bil ingualism developing from

Section 23 which talked about the Statutes, tal ked about the Journals and records of the House, talked about the courts of the province, as the pla ces where mandatorily - whatever that means - both languages are the official languages of the province. What has been added to that is that persons have the right to obtain services in the French language from government offices. MR. R. DOERN: There's talk of 14 ,000 pages. What are these 14 ,000 pages? What is the bulk of them, or how do you break down what categories there are in these 14 ,000 pages still to be transla ted? HON. R.

PENNER: No, I can't give that answer tonight, but I'll take it as notice. I've undertaken to provide the Member for St. Norbert with a list. There are three components, and exactly how the 14 ,000 pages are broken down I can't give you just at the moment, all of those Statutes which are presently contained in the consol idated Statutes.

The other component are those bills which are listed at the back, but which are not containe d; they're the unconsol idated, not carried forward in the consolidation; that list, which is many thousand pages of Statutes, part of that will be transla ted, the bulk of it won't, and regula tions. MR . R. DOERN: Has there been pressure or encouragement on the government by the Federal Government to do all that translation or pressure or enc ouragement by the SFM to do all of those translations? HON. R. PENNER : When you say all of those translations, to what are you referring. MR. R.

DOERN: Again I'm talking about these so-called 14 ,000 pages. HON. R. PENNER: I wish you had been here from the be ginn in g. The who le thing is premis ed on the assumption that we may have been placed in a position, by a decision of the Supreme Court of Canada, that the fact that these Statutes were passed in one language only invalidated those Statutes. That's primarily where the pressure came from. MR. R. DOERN: The final question I have, Mr. Chairman, is I' d like the Attorney-General to make a general comment; I guess, attorney generalities or whatever they are.

What would you say to people, and we're all talking to people and discussing the matter and thinking about the matter , and I have had some phone calls and letters which are not enthusiastic, and I would ask you what you would say to people who are afraid that this action or amendment will have an adverse effect on the province; people who are concerned that official bilin gualism will be detrimental to our society? What general statement would you make based on your knowledge of what is going to be done and what changes will result? HON. R.

PENNER: I would make the same general statement that I made in the House and in comme ntaries to the media and that is, it im poses no obligation on any person, or institution, or corporation to change the languages that they use in any way, shape or form. It makes no change, and I use this but just as a metaphor , in the amount of French that will appear on the Corn Flake boxes, it's already there, and that is there as a result of federal policies enacted a long time ago.

The only change, other than with respect to the timing of the translation of Statutes and regulations and the number of those that must be transla ted, has to do with the provision of services by the government to those people who come to the government and would like to deal with the government in French. MR. CHAIRMAN: The Member for Turtle Mountain. MR. B. RANSOM: Mr. Chairman, the government presented a paper to the First Min isters' Conference 3236

Monday, 30 May, 1983 on Aboriginal Constitutional Matters held in March of 19 83. The paper was entitled "Frame work Agreement Concerning Charter of Aboriginal Rights." One of the things that the paper called for was that the word "existing" be removed from

Section 35, when particular rights are defined and entrenched, and that the word "guaran teed" be added after the word "affirmed." I ask the Att orney-General how he would see that changing the force of the Constitu tion? HON. R. PENNER: I wonder if I could just have Mr. Mercier's copy of the Constitution for a moment. The argument that was advanced by the aboriginal people thems elves, and one which I found compelling because I had come to the same conclusion myself, I suppose, is this : that if you say as does

Section 35( 1) - "the existing aboriginal and treaty rights of the aboriginal people an'! hereby recognized and affirmed," it leaves open entirely what those rights are. It's as if, instead of having this whole Char ter, we have on the third line which said, "the existing rights of the Canadian people are hereby recognized and affirmed," period, thank you very much, goodbye. You'd have one page. You wouldn't ha ve enough to fill up a proclamation to put on the wall, and it would leave to the courts to fill the void.

Any time somebody thought that their right was an existing right, and they wanted to enforce that right or to seek a remedy based on that right, the y'd run to the court and say to the court, our legislators. our polit ical geniuses were incapable of defi ning what the rights of the Canadian people are; and you, the non -elected judici ary, you'll have to do the job which they were incapable of doing.

It was that kind of reasoning that I thought was compelling and persuasive, and led me and the First Minis ter with me when we were seeking to put forward for discussion a document that would cut through some of the very sharp divisions which had developed in earlier preparatory meetings for the Aboriginal Rights Conference here, and try to develop what in effect would be an Aboriginal Charter of Rights. MR. B. RANSOM: The government at the same time proposed that some items be inc luded in

Part 2. One of those was the defi nitio n of the term "aboriginal peoples. " Does the pro vinc e have a defi nition of aboriginal peoples? HON. R. PENNER: No, we don't in fact, and that is one of the difficulties I think is going to have to be faced. You see, there is a definition in the present

Part 2. In this Act, aboriginal peoples of Canada includes the Indian, Inuit and Metis peoples of C3nada and there were a number of concerns there. One is, it's very difficult to rational ize the term "aboriginal" with these three quite dispar ate groups. Looking at it historically to a certain extent, one can say that the Indian and Inuit people were original peoples in the sense that they were here when the white settlers came, French and English alike, but the Metis people were not original in that sense, although they may have origina ted from those original people.

So that in itself begged a difficult question. But further , that defi nition in this Act, Aboriginal Peoples of Canada, includes the Indian, Inuit and Metis people, suggests there are others; that these are just examples, and if we were to get to the point of having a fairly carefully defined Charter of Rights of the Aboriginal Peoples of Canada, we'd better go about the business of trying to define that term a little more precisely. MR. B.

RANSOM: The second thing which the government proposed was a statement concerning and a defi nition of "aboriginal title," including the rights of the abor iginal peoples of Canada to a land base. Does the province have a position with respect to that point? HON. R. PENNER: I think it is widely accepted that "abor iginal title" is not the same as a title to land as it is developed in the common-la w system, which is based on the notion of owner ship and posession , subject only to the rights of the Crown;

whereas arguably , abori ginal title was based on use and occupancy rather than on ownership as we understood it. We thought again, if aboriginal title was to be protected constitu tionally in some way, that it ought to be defined. It was our view in Manitoba, in any event, that whatever aboriginal title turns out to be, or at least as we would would want to see it defh,ed, that the basic right whether tha t's of owner ship, or of use and occupancy , and harvesting the resources of the land are really dealt with in Manitoba, are comple tely by treaty. That would have been and is our position.

Unlike B.C., for example, and some other places in Canada, all of Manitoba is covered by treaty. It would be our position that the treaty effectively extinguished title but we felt that we were looking, not just at the Manitoba situation but at the national situa tion, that there would have to be some defi nition of the concept of aboriginal title. MR. B. RANSOM: Did the government have a specific position in mind with respect to the thir d point which called for the inclusion of a clause concerning aboriginal rights, in cludi ng customary lin guistic cultural and spirit ual rights? HON. R.

PENNER: What the honourable member is referring to, of course, is a framework agreement and that is, that agreement was to be the basis upon which negotiations were to be conducted, and clearly what we were delineating are those things which ought to be the subject of some discussion and some defi nition. We didn't go beyond and haven't yet gone beyond, at least in every particul ar, the statement of items to be negotiated and potentially inclu ded in Aboriginal Charter Of Rights. MR. B. RANSOM: Well, Mr.

Chairman, there were a number of other items to be inclu ded, but two of the other s specifically cal led for a cla use concer ning economic rights and benefits including hunting, fishing, trapping and gathering rights and concerning benefits from the development of renewable and non-renewable resources to which there are aboriginal or Treaty entitle me nts and als o a cla use rela ting to self government for Indian, lnuits and Metis. Mr. Chairman, is the Attorney-General telling us now that all the province did by putting forward this paper 3237

Monday, 30 May, 1983 was identify the areas which they thought should be dealt with , as opposed to saying that the province has a position with respect to these points? HON. R. PENNER: Yes, but I would like to amplif y that for the Member for Turtle Mountain. As the preparations for the First Min isters' Conference proceeded, one presumed to begin with, that the preparations were strictly on a question of an agenda, but it was clear right from the beginnin g that the discussion would not be lim ited in that formal sense. The representatives of the abo riginal people were raising a number of substantive issues.

It was clear and it was accepted by all that there was no way in which , at a two-day meeting of First Min isters, there would be very much that could be pinn ed down and one of the first things then that was discussed was what is called the ongoing process; that it may take five, ten years before we can really come to some definition of aboriginal rights, sharply focused enough to warrant being entrenched in a constitutional instrument, so there was some discussion on the form that the ongoing process would take.

At tha t stage, arguments were being advanced strenuously particularly by the Inuit comm ittee on national issues, but by the other aboriginal groups, that they felt that simply to refer to an ongoing process would mean that nothing much would be accomplished, that everything would be left very fuzzy and that every time you met you'd have to start from first base and, at that point, the Attorney-General for Ontario and myself, proposed the possibility of defining the matters to be dis cussed in an effort to resolve that problem, so that the notion of the ongoing process would be accepted and it would not be devoid of content, that the statement of principles that the member's referring to was advanced by ourselves and pla ced on the table but not adopted; at least not adopted in that form.

MR. B. RANSOM: Mr. Chairman, I have some di fficulty with the gov ernment 's ac tions then, in this area, because the government is proposing, for example, to remove the word, "existing" from the Constitution which was something that the Native people, of course, wanted to ha ve done but the Manitoba Government, at least, does not know at this point what would be put in, in place of that. My un derstan ding, "existing" was put in because there was some rather better understanding of what "exis ting" rights meant than simply by including aboriginal rights, without any definition of that.

I agree with the Min ister that it's fine to identif y those areas which must be dealt with, but to identify those publicly and to ma ke public pronou ncements about th em without knowledge of what they mean; for instance, to put out a press release saying that the Manitoba Government recognizes the aspirations of Indian people to achieve self-det ermination, and in this document, speaks about self-government for Indian, Inuit and Metis, I suggest that they are going to raise the expectations of those people involved to a very great extent and I am quite alarmed that the Attorney-General and the government have not, at least, worked out a position which they beli eve defines these terms.

I perhaps wouldn't be asking the Min ister for the exact details of it but I would have felt much more secure, for the general public interest, had the Attorney General been able to assure us that all of these points had been addr essed by him and his staff and his col leagues and that in deed the go vernment ha d positions worked out. The second concern would be for the Native people, the In dian people and the Metis people, who have had their expecta tions raised subs tantially by this government and may find tha t the y will be disappointed ultima tely .

I would simply urge the Attorney-General that he and his colleagu"ls not make any more public pronouncements using phraseology that is used by the Native groups without atta ching some

definitions to it, because what the Na tiv e people mean by self government may be quite different from what the Attorney-General means by self-government and from what I might mean by sell-gov ernment, for wha tever tha t's worth. So, Mr. Chairman, those are all the comments that I would like to make on that issue. HON. FI. PENNER: Just very briefly , it was never our proposal and it is not now our proposal that the issues would be dealt with, sort of in series, that we would remove "existing," and then at some later date, define these aboriginal rights.

It would be part of one package so that things would not be left in a vacuum. With respect to the statements - I think if you analy se them - you will find in fact that, at least that was the intention, that they hold no specific promises. What we said is we recognize the aspirations for self-government, but in our discussions with the Native people leading up to the conference, at all times we used the words, "lim ited form of self-government," so there was no illusion. I'm confident that there was no illusion created that we were hol us-bolus accepting someone else's definition of self-government. MR.

CHAIRMAN: The Member for Virden. MR. H. GRAHAM: Thank you very much, Mr. Chairman. I would like to go back to the program the Attorney General proposed for the translation and he had set down, at least he felt that he had bought some time for the province, I believe approxima tely 10 years, to acco mplish the translation of the Statutes . Does that in clude, tha t same time frame, the translation of regulations as well, or is that a separate time frame for that? HON. R. PENNER: I'm sorry, the last part of your question? MR. H. GRAHAM: The translation of regulations; does that involve that same time frame? HON.

R. PENNER: Yes, it does. MR. H. GRAHAM: Could the Mini ster ind icate what time in that time frame they would expect to start translating regulations? HON. R. PENNER: What Legislative Counsel feels will likely be the case is that regulations, by their very nature, which are really part of

an Act, that when we get down the line to do what we're presently doing, that whenever 3238

Monday, 30 May, 1983 we have substantial amendments to

an Act now, we're really bringing in a revised Act in order to just keep going at it, that at those times when we bring in a revised Act, it will be brought forward in both languages and, at th ose tim es, Act by Act, we will do the regulations. That's one way that will begin to bite into the task.

The other point that is made by Legislative Counsel is, in his experience, that subs tantially regulations are changed very substantially every five to six years, and that as we come up to those periods of time where we would change a regulation in any substantial way, that at that time we will translate the regulation. Now, of course, when we introduce a new bill in both lang uages, and it calls for regulations by O/C, the regulations, in stead of coming forward from the Lieutenant-G overnor-in-Council in one language, will come forward in two languages. So we'll try to keep current. MR.

CHAIRMAN: The Member for Virden. MR. H. GRAHAM: Well, Mr. Chairman, is there any deg ree of urgeny or priori ty on the updating of regulations prior to translation, or will the translation go ahead, regardless of whether the regulations have been reviewed and updated? HON. R. PENNER: I'm not sure that I follow the question. Perhaps if I answered in this way, that the priorities for translation itself are being established in terms of the most commonly used public Statutes.

As those are transl ated, then clearly when you have a translated Statute there is a need to consider translating the regulations th ereto appertaining, so that would estab lish a priority in that way. MR. H. GRAHAM: I'll go one step further. According to the Rules of our Assembly , the Standing Comm ittee on Statutory Regulations and Orders is requir ed by our rules to review all regulations that have been passed by the Assembly , or all regulations that have been passed by Order-in-Co uncil.

I was wondering if the Attorney-General had any interest in having those reviewed by the Standing Comm ittee on Statutory Regulations and Orders before translation took place? HON. R. PENNER: I'll certainly take that up with Legi sla ti ve Couns el.

As you know, the Standing Comm ittee on Statutory Orders and Regulations hasn't met for a long period of time, and there's such a backlog of regulations that, in the normal course, should really be referred to that commi ttee and reviewed by it, that it becomes a question that everybod y's sort of just left by benign neglect as to what should be referred to that commi ttee; how far back should we go; what should be the practice with respect to the review of regulations?

In terms of esta blishing the priorities for translation I' d prefer to discuss that with Legislative Counsel and perhaps furnish a more definite answer to the member tomorrow or the day after. MR. H. GRAHAM: Well, Mr. Chairman, I think if we're looking at a cost of approxi mately , what is it, $12 5 a page for translation, or something in that ballpark figure. When we are requir ed by our rules to review all regulations, I would hope that the Attorney-General would consider reviewing them before we start to translate them. HON. R. PENNER: Agreed. MR. CHAIRMAN: The Member for Turtle Mountain. MR. B. RANSOM: Mr.

Chairman, I understand that the Department of the Attorney-General doesn't file an Annual Report. Has the Attorney-General any plans to implement that practice which is followed by all other departments of government? HON. R. PENNER: Yes, I do. MR. CHAIRMAN: The Member for St. Norbert. MR. G. MERCIER : Mr. Chairman, I noted in a newspaper

article where the Attorney-General is quoted as indicating that he had some sober second thoughts about the Charter of Rights, and quoted a political scientist who said the Charter's principal impact on government is to judicial ize politics and poli ticize the judicia ry. The danger , the Attorney General went on to say, is that questions of social and political justice will be transformed into technical legal questions and citizens will abdicate their responsibil ity to solve issues.

He questioned whether the Charter has given the courts a basis upon which judicial legislation may be founded and upon which parl iamentary supremacy is subverted. I wanted to ask the Attorney-General whether his speech writers had found some of the Leader of the Opposition's former speeches, or perhaps even one of mine, and he mixed it up with what he planned to say in speaking to this group, Mr.

Chairman; or has the Attorney-General's views on the use of the overriding provisions of the Charter changed from sometime ago when he, on behalf of the government, I bel ieve, indicated at no time would this government ever use the override provisions of the Charter. HON. R. PENNER: First of all, I don't use speech writers and that may be my failing. I would be perhaps less in trouble if I were to use speech writers than if I were to rely on my own inventive prose. That's not intended to be a self-serving statement. Yes, I've had, as I said, some sober second thoughts.

What I was saying to the members of the bar, assembled in a seminar on current developments in the law at Hecia, was that there is a danger; a danger that I'm much more mindful of I think than I was at the beginning. The di fference, however - I'll come back to the notwithstanding clause in a moment - the difference between my approach and the Leader of the Opposition, for example, whose speech at the time I've had the occasion to read in the last few weeks, is that he was opposed to the concept of the Charter entirely . That's as I read his speech; I'm not.

I feel that the protection of certainly procedural rights th at relate to basic questions of civil liberties, the protection of the subject, are prop erly encom pa ssed wi thin a constitut ional instrument, and that th ere should be remedies associated with the protection of those procedural rights. 3239

Monday, 30 May, 1983 Where I raise some questi ons, and I think they are im portant questions and I will read ily admit that in one form or another these were raised by the Leader of the Opposition, is to what extent do you want to bake into a constitutional instrument of this kind that gives the courts remedial power - as I think it should - substantive rights. We may be dis cussing that in deed when we come to discuss, for example, the question of the inclusion of the enjoyment of property in

Section 7. Do you run the risk of introducing what the Americans call substantive due process, such that, in fact, you're inviting the Supreme Court of the country, because ultimately it rests with the Supreme Court to become really legislators. What I said to the group assembled was that this is a dang er, that I thought the Charter was a good instrument, it was a powerful declaration of values that we hold in this society, but that we ought to be careful not to turn the protection of our rights into a matter of technical narrow legalisms.

With respect to the notwithsta nding cla use, I think it is arguable that presents ultima tely a safety hatch. I don't think it's necessa ry, quite frank ly. I don't think it's a dumb idea, but I don't think it's necessary . I don't think it's necessary because

Section 1 of the Char ter, which says that the rights in the Charter are subject to such reasonable limi tations as can be demons trably justified in a free and democratic society; that that sect ion is safeguard enough against courts, in effect, acting as legislators second-guess ing the Legisl ator. It may well be the case, if it were to become the practice of the courts over a period of time to, indeed, take a

section like

Section 7 an d, in stead of doing what the Americans Supreme Court has been doing since 19 41, and that is, move away; the Americans courts have moved away from substantive due process and have really said, no, this isn't a proper sphere for us, it is for the legislators, and we will not use the 5th and 14th amendment to strike do wn social leg islat ion, progressive legislation, passed within the jurisdiction of state or federal Legisla tures.

If our courts were to part from that very cautious approach that both the Warren Co urt and Berger Courts, Liberal and Conservative courts have taken in the United States, and begun in fact to judicially legisla te, then it may well be the case that the government of the day, whether it's an NOP government or any other government, would have to reconsider its use of the notwithst anding clause. MR. G. MERCIER: Well, we're making progress, Mr. Chairman.

Perhaps, when we return in another year or two, and decisions have been rendered, the Attorne y General will find hims elf in a position where he may very well want to use the overriding provisions, and we'll be than kful that they were included. Mr. Chairman, on another matter of ... HON. R. PENNER: That's the advantage of being a progressive, you do make progress. MR. G. MERCIER: You're becoming more Conservative. A techn ical ques tion, I think this would be the appropr iate secti on. Could the Min ister tell us what grants are being made by this department in the forthco ming year? HON. R.

PENNER : I think this is the mo st underprivile ged department of them all, in terms of grants. There's a grand total of $64,000: $1 4,000 for a Crown Attorneys' Seminar , it was our our turn to host that and provide part of the cost of it; granted $25,000 to the symposium for the retirement of Chief Justice Samuel Freedman, principally to pay the cost of publication of some of the very fine contributions to legal knowledge and jurispr udence tha t were made at that speech; and $25,000 to the Manito ba Association of Rights and Liberties. That's it. MR. G.

MERCIER: Is that the same amount as the Association of Rights and Liberties received last year? HON. R. PENNER: Less, $4,000 less. MR. G. MERCIER: Mr. Chairman, has the Attorne y General found jobs for the articling students who thought they had jobs with the Court of Appeal Judges? HON. R. PENNER: Three have already found positions. My department is hiring an additional articling student, a space that was filled by someone who is not coming is available, and one of those who was did not get a position because of that breakdown for the articling clerks will certainly be interviewed and may end up being hired.

MR. CHAIRMAN: 1. (b)( 1)- pass; 1. (b) (2)- pass; 1. (c)(1 )-pa ss; 1. (c)(2)- pass; 1. (d)(1) . The Member for St. Norbert. MR. G. MERCIER: Mr. Chairman, I just wonder if the Min ister could ind icate whether there are any changes in the admin istration that have been impl emented , or proposed to be impl emented, in this particular area? HON. R. PENNER: There are no changes. MR. CHAIRMAN: 1. (d)( 1)- pass; 1. (d)(2)-pa ss; 2.(a)(1). The Member for St. Norbert. MR. G. MERCIER: Mr. Chairman, could the Min ister advise us of the status of the Arthur D. Little suit respecting CFI? HON. R. PENNER: Yes.

New counsel were retained within the year, approxima tely a year ago, Mr. D'Arcy McCaffrey has now the conduct of that case and is proceed ing with it. The defendant in the case, the A. D. Little Company , has served third party notic es on Technopulp and all of that bunch in Montclair, New Jersey, and Kasser and many of his adjunct companies and enterprises. I don't know how many thi rd-party notices were serviced, but we're now discussing how to proceed with thir d-party proceedings, but it is actively being pursued. MR. G. MERCIER: Mr. Chairman, has the full amount of the civil settlement been collected?

There were some payments that . . . HON. R. PENNER: Yes, the last of the payments came in almo st a year ago, July or August, in the summer . 3240

Monday, 30 May, 1983 It came from England, from the Bertram Com pany , I believe. MR. CHAIRMAN: 2.(a)( 1)-pa ss; 2.(a)(2)- pass; 2.(b)(1). The Member for St. Norbert. MR. G. MERCIER: Mr. Chairman, could the Attorney General advise us as to what is the present backlog in criminal prosecutions? HON. R. PENNER: In my intr oductory remarks I mentioned the Calendar Court which was designed by Chief Justice Gyles, and that it's hoped by the end of the year we'll be down to three months, but we are running longer than that. At the moment, we're running closer to six months in non-custodial cases.

Custodial cases, we're setting into July , I think. The Calendar Court was just instituted on January 2nd of this year, and it takes some time for the cycle that is used to become operative. What it means, basical ly, is that when the prelimi naries have been deal with, and a trial date is set, it's plugged into a certain date in the calendar and assigned to a court room; rather than to a judge and judges sit in those court rooms and they have a lump of cases, so this is the theo ry, there are always cases to fill the void that is created so often, and unavoida bly, by last minute pleas and last mi nute cop-outs.

MR. G. MERCIER: Mr. Chairman, I believe a few years ago the backlog was done to four months. Could the Attorney-General explain why it is incr eased from four to six months? HON. R. PENNER: Yes, the price of progress.

It was running at about four months when we started the Calendar Court, and it will be three months by the time the Calendar Court is working, but that hia tus of shifting from the one system to the other has meant that, in order to make sure that it is working properly, that cases presently being set are being set at about the six-month mark, just into the latter part of November, first part of Decemb er. It's my hope, as the Calendar Court gets more, as the wheels get oiled, or the skids get greased, that the time will get back to the promis ed three months. MR. G.

MERCIER: Could the Attorney-General advise us as to the status of the CFI criminal prosecutions? HON. R. PENNER: Regrettably , we appear to be - what's the phrase - dead in the water on that. As the Member for St.

Norbert knows, we were unable to prosecute successfu lly in Austria, and we thought that we had a good crack at prosecuting three of the principals, Reiser, Zingre and Wuest, in Switzerland and, indeed, everything seemed to be going swimming ly, and then, at least for me, unaccountab ly, the principal prosecutor, who at one time wore the hat of a magis trate and then a prosecutor and then a special prosecutor and then a special ma gistrate, ended up reversing hims elf compl etely and throwing the indictment out.

At the moment, it doesn't seem that we're able to proceed in terms of the act of prosecut ion, crimina lly, any further than we have gone. 3241 MR. G. MERCIER: Mr. Chairman, have the criminal prosecutions then been abandoned officially? HON. R. PENNER: No, the charges still remain; the international warrants still remain. MR. G. MERCIER: But no attempt is being made in Austria or Switzerland to proceed with any further charges? HON. R. PENNER: We're at the end of the line there. MR. G. MERCIER: Mr. Chairman, does the Attorney General plan to make any changes in The Remembrance Day Act? HON. R. PENNER: No. MR. G.

MERCIER: What is the policy being followed then with respect to pr osecut ions under The Remembrance Day Act? HON. R. PENNER: I believe, if I'm not mistaken, there were some prosecutions arising out of infractions. There has been no change in poli cy. MR. G. MERCIER: I believe that the department then basically acts upon complaint. HON. R. PENNER: That's right, reactively .

I may say that I belie ve one of the questions that have been cons idered in the Department of Labour and Emplo yment Services is the whole question of statutory holidays and to try and rationalize some of the problems with Sunday closings and all the rest of it, so that rather than deal with any particular problems in isolation, that problem, to the extent that it's dealt with at al!, will be dealt with in that context. MR. G. MERCIER: Mr. Chairman, there was a recent

article in which a numb er of pr ovincial judges commented upon the fact that, in their words, judges are sometimes guilty of forgetting the victims of crime and some examples were cited. The concept was discussed whereby a presentence report would inc lude what they refer to as a victim im pact section. Is that something that is being looked at and reviewed and acted upon? HON. R.

PENNER: The Chief Provincial Judge has made a proposal to study some like schemes extant in the United States; if I'm not mistaken, perhaps one in B.C., but no particular progress has been made on that principally because I simply haven't had a chance to sit down with the Chief Provincial Judge and discuss it in some detail. The form in which it was presented did not appear to make any substantial change or propose any substantial change from that which is done now when counse l, instructed by the Crown, speaks to sentence and brings to the attention of the judge all of the material factors. MR. G. MERCIER: Mr.

Chairman, a number of judges have also referred to the parole system, and concern has been expressed over some period of time by judges,

Monday, 30 May, 1983 by Crown attorneys, by members of the public, with respect to what is sometimes described as a lenient parole system. What is the Attorney-General's opinion, and has he made any representation to the Solicitor General with respect to the parole system? HON. R.

PENNER: No, I haven't, because as the me mber kn ows, it' s been many years no w sinc e Corrections were launched in the Department of the Attorney-General and I have had no official occasion to deal with the whole question of Corrections, including parole, so that I've had no official views and made no official representations, and - this may surprise the Member for St. Norbert - I've not even made any speeches on the subject. MR. G. MERCIER: Does the Attorney -General, on behalf of the prosecutorial staff, have any concerns about the parole system? HON. R.

PENNER: The prosecutorial staff has not made any representations to me indicating that they have a concern which they would like me to address. The whole question of parole is a difficult and complex one. The Solicitor-General of Canada seems to have his share of trouble with it, which I'm sure would only be augmented by any advice I might give him dealing with the whole question of "gati ng." Of course, gating has been struck down by the Supreme Court of Canada, and now the Solicitor-General proposes to bring in some amendments to federal legislation dealing with the whole question of parole.

I think everybody recognizes that at some point or anot her, someone who has been senten ced for an offence has to be released; and the question is: At what juncture, at what point should that person be released? Should it be in every case only after the comp letion of the full amount of the time for which that person has been sentenced, or are there alterna tives where rel ease under clo se super vis ion into the community assists the rehabilitation of that person?

On the whole, it seems that some form of release into the community prior to the expiration of the sentence, where the re's still control over the offender as a whole, can work. There are a number of problems; one of which is this question of earned remission time which seems to be earned independently of the question of whether an assessment has been done on the potential of the person for rehabilition. So that's a problem and I don't purport to have the solution to it.

The man datory supervision where, if a person is released because of earned or remitted time, then for the period between release and the actual end of the sentence originally handed down, the person is under mandatory supervision, that concept seems to be not a bad concept. The problem is that some persons who are released automatically in the sense that simply they appeared to have been on good beh aviour for most of the time that the y've been in carcerated , may still pose a thr eat to the community and yet they are released automatical ly. I don't, as I say, pretend to have a solution to that problem. MR. G.

MERCIER: Mr. Chairman, I believe it was last year, or early last year, the Attorney-General, as the result of some public pressure, and perhaps acting on his own, appointed a com mittee to review the whole problem of im paired drivin9. They made a report and ma de some rec omme ndat ions, and I believe the Attorney-General anno unced that some changes were being ma de; one of which was to auto mati cally prosecute a second offender, someone who committed a second offence within a two-year period of time. HON. Ft PENNER: Right. MR. G.

MERCIER: Perhaps the Attorney-General has some statistics on the results of that change in policy and the number of people that have been affected. But, also, just as important, it seems week-by-wee k, if not day-by-day, we see newspaper photographs in this city of very tragic circumstances where people are killed, young and old, and most recent ones very young people killed as a result of im paired drivers. I sense in the public a growing concern about that situat ion.

It may very well develop into a concern that there has to be stronger punitive measures with respect to these kinds of offences and I wonder whether the Attorney General is considering anything further, or whether even perhaps at the Conference of Attorneys-General that he just recently attended, have discussed, or are reviewi ng this particular problem. HON. R. PENNER: With respect to the committee headed by Mr. Jack Montgom ery, Q.C., I have received a progress report from Mr.

Montgomery and anticipate receiving the full report in about a month or a month and a half, and I expect that the com mittee will make a number of recommendations. I would like to advise the Member for St. Norbert that as soon as the report is received, I'll furnish him with a copy and, certain ly, I will look at which of the proposals, if any, or perhaps all of them, we may be able to move on. It is a very broadly based committee.

There's people from law enforcement, from the Alcoholic Foundation of Manitoba, from the Citizens Against Im paired Driving, and I'm very satisfied with the extent of the work and research that the com mittee has done - I may say at no cost other than the time of Mr. Montgomery - so that work continues. With respect to the question of the meeting of provincial Attorneys-General, what was discussed that relates to that question specifically was the complex question - at least I find it to be a complex one - of the mandatory testing of body fluids. Have I got the title of that right? Something close to that.

Principal ly, what that really zeros in on is legislation which has been int roduced in B.C. and will be in troduced in Saskatchewa n, and may ha ve been intr oduced in Saska tchewan in the last day or so, Mr. Lane advises us, where pursuant to which where a driver invol ved in an accident it may be demanded of him to provide a blood sample in those circumstances where the question of a breath sample can't be dealt with because the person isn' t capa ble because of injury or consciousness of providing a breath sample.

In the case where the person is unconscious, I believe that the legislation permits the taking of blood for purposes of analysis in terms of alcoholic content. There is concern expressed by some of the Attorneys-General 3242

Monday, 30 May, 1983 that this legislation may well be found to be ultra vires, that it really is legislating criminal law, because the language that is being used for most of those Statutes are very similar to the breathalyzer Statute in the Criminal Code; but Mr. Lane has advice from his constitutional counsel - I'v e been unable to afford one in my department - that suggests there is an argument for sayi ng that such legislation is intra vires, because it doesn't really occupy a field occupied by federal legislation.

The federal legislation deals with breath only, and since it doesn't deal with blood - legislation that deals with bl ood sometimes being called vampire legislation - may be legit. I'm sort of keeping my eye on that and seeing how tar it goes. MR. G. MERCIER: Mr. Chairman, I belie ve we passed some legislation but it was only with respect to the civil liability of . . . HON. R. PENNER: That's right, protect ing doctors who took blood from an unconscious patient from civil liabil ity. MR. G.

MERCIER: Does the Attorney-General have any statistics resulting from the change in polic y, going from the one year to the two years with respect to repeat offenders? HON. R. PENNER: No, I don't. I don't have statistics but I'll en de avour to get some numb ers for th e comm ittee and for the member in the next day or so. MR. CHAIRMAN: 2. (b){ 1) - pass; 2.(b) (2)-pa ss. Resolution 18 : Resolve that there be granted to Her Majesty a sum no t exce eding $5 ,505 ,400 for the Attorney-General, for the fiscal year ending the 31s t Day of March, 19 84- pass. Comm ittee rise.

SU PPLY - COMMUNITY SERVICES AND CORRECTIONS MR. CHAIRMAN, P. Eyler: Order please. Com mittee come to order. We are considering the Estimates of the Department of Comm unity Ser vi ces and Co rr ect ions. Does the Minis ter ha ve an opening statement? Mr. Mini ster. HON. L. EVANS: Thank you, Mr. Chairman. I'm pleased, at this time, to present the 19 83-84 Estima tes for the Department of Community Services and Corrections for the consideration of the Legislature. The development of this year's Estimates have been challengin g for our department.

Because o' the eco nomic reces sion we ha ve been faced with a significant inc rease in the demand for services of the department, particularly for municipal and provincial social assistance; at the same time, the recession has reduced revenue potential for the government. We have addr essed ourselves to this challenge, Mr. Chairman, by reviewing all programs and services to determine their appropriateness and effectiveness. This was done with the intention of meeting our commitment to Manitobans in need, while being steadfast in our comm itment to fiscal responsibi li ty.

In working to addr ess this challenge, we have consulted with the province's social service community and seized the opportunity to identify and in itiate ways to imp rove existing policies and to assure the efficient delivery of services. Members will reca ll our anno uncements which init iated major program reviews. These included the Review Comm ittee on Native Adoptions, headed by Judge Edwin Kimelman; the Garson Review Comm ittee on Adult Corrections; the Ryant Task Force on Social Assistance; and, as well, our review of the Child Welfare Legislation, again involving ma ny, many groups in the commun ity.

These reviews are now well under way, and on Friday we received Judge Kimelman's Interim Report which offered recommendations on the question of out of-province adoptions of aboriginal children. I intend to be recommending to my Cabinet colleagues a course of act ion on th ese reco mm endations as soon as possible. In addition, we are now studying the Report of the Task Force on Mental Retard ation which was initia ted by the former government. A major thr ust in our repriorizing of programs and expendit ures invo lved a review of the funding policy to pr ivate nonp rofit social servic e agencies.

Und ersco ring the review was our comm it ment to develop one of the finest social service delivery systems in Canada. On May 9th, my colleague, the Min ister of Finance, and I met with the agency representatives to inform them of changes in our external agency funding polic y. Th ese were (1) a cha nge from fu nding organizations' operational and service budgets to the purchase of services;

(2) Board of Directors and paid mana gement assu me full ma nagement and adminis trative responsibility for agency operations; (3) an end to historical guarantees governing the financial rela tionship, such as, the funding of provincial salary equivalents for approved numbers of staff positions; (4) provide greater flexibility through a global budget approach related to a bottom line expenditure, rather than the lin e-by- line accounta bilit y; (5) no recovery of surpluses or payments of agency deficits. This dir ection was often suggested to government by agencies in the past.

Its impl ementation represents a basic change in the financial relationship between government and external organizations. Through these cha nges we hope to better define programs and services to be purchased. This approach also will strengthen the role of agencies, provide them with greater flexibility and ensure the continued development of commun ity-based social services. At the outset of my remarks I noted that the economic recession has pla ced severe pressures on our Social Assistance Program.

Higher unempl oyment rates and increases in the numbers of unemplo yment insurance exhaustees have incr eased provincial and municipal welfare caseloads and expendit ures. The average monthly municipal assistance caseload for 19 82-83 is expected to be 40 percent higher than the previous fiscal year, and the caseload is expected to inc rease a further 30 percent this year. To meet these pressures the amo unt budgeted for municipal assistance represents a 95.5 percent in crease over the 19 82-83 vote. The Manitoba Government is commit ted to securing the finest quality day care service for Manitobans. 3243 I

Monday, 30 May, 1983 Members will recall that last year the new Comm unity Child Day Care Standards Act was app roved. It will be proclaimed this fall with regulations which set out licencing practices and standards of qua lity. To support this legislation the intro duction of these regulations foll owed a provin ce-wide consultation process with parents, day care operators, and workers which was cond ucted by my Legislative Assistant, the MLA for Wolseley. I'd like to take this opportunity to thank the MLA for Wolseley for a very fine job well done. We have budgeted, Mr.

Chai rman, a 19 .4 percent increase for Child Day Care Services. This represents $2.25 million all ocated to three areas: (1) incr eased funding for day care providers through higher grants and fees, and for day care users through higher allowable income levels for low income families to be eligible for day care subsidies; (2) increase funds to meet the 19 83-84 cost of services which began operation in 19 82-83; (3) new funds to expand services and to assist day care centres to meet the licencing standards to be intr oduced under the new Comm unity Child Day Care Standards Act.

More than a million dollars has been earmarked to increase day care grants and fees, which is roughly 9 percent, for more than 500 provincially funded day care facilities. Provincial maintenance grants will also be increased. Maximum daily fees for parents will incre ase from $9.50 to $1 0.35 per diem and, in additi onal, start up grants to new facilities will increase by 9 percent New funds will also be available to expand the range of day care services for the public.

Specifically , an additio nal $230,000 in grants will be available to help a limited number of day care centres, and family day care homes, to provide care for child under two years of age. We recogni ze that this age group represents the area of greatest unmet need for licenced and subsidized day care services. With the introduction of regulations for licencing, and standards for day care centres, it is timely to initiate this service.

In total, about $800,000 in new funds has been requested to assist in upgrading existing services to meet standards under the proposed new legislation and to provide for addit ional spaces. My department's Rehabilitative Services Division supports those activities designed to provide residential, locational and recreatio nal opportunities for the mentally and the physic ally handicapped. An in crease of $360,000 has been budgeted under the Commu nity Mental Retardation Program.

This program supports com munity residences for the mentally handicapped, including supervised living accommodation, as well as social and self-help training for mentally handicapped adults. Additio nal funds have been earmarked for existing community residences and increases in training services for residents.

Funding is inclu ded to support the maintenance of the mentally handicapped in the communi ty and, by way of example, approximately $16 0,000-plus has been made available for inc reased funding for Day Activity Centre prog ram ming; for commu nity residential living; for our Respite program; and for a supervised apartment living program. Through these efforts we b.elieve that mildly retarded adults will have an opportunity to learn to live independently in the commu nity.

Funding for institutional services for the mentally handicapped is primarly directed to the operations of the Manitoba School for Retardates, the Pelican Lake Training Centre, and the St. Amant Centre in Winnipeg; incr eased funding has been provided for these centres. Yesterday I was pleased, Mr. Cha irman, to participate in the opening of the three new cottage facility at St. Amant Centre. The new facility is a 24 bed accommo dation and I am pleased, too, that operational funds have been increased for the St. Amant Centre to support the activities of this new facility.

My department's Empl oyment and Rehabilitative Services activity has been redesig ned, redesignated as the Human Resources Opportunity Program. Through admini stative changes I am pleased to report that we were able to dra matica lly incr ease a number of participants in the program from 16 0 to over 500, with no increase to the staffing component. The number of clients, as of last month, have levelled off to a figure of approximately 425.

We're funding over 1, 000 app roved spa ces for mentally handicapped persons in the province's 24 occupational activity centres which are operated by communi ty-based organizations. A monthly fee of $121 for each disabled person was paid by the province in 19 82-83 and this has been incr eased to $1 32 for this fiscal year. In addi tion, each of the 24 centres will receive their annual administrat ion grant of $1 0,000 plus actual client transpor tation costs. The province's Adult and Juvenile Correctional and Probation Services provide a complete range of services and facilities for offenders.

I'm gratified to report to members on the success of the Fine Option Program. I can report that, at the end of April of this year, 63 1 persons had comp leted more than 24,000 hours of commun ity service work under the program, and virtually all of the 1, 522 registrants had at least begun their fine option. I would like to commend the staff of the Fine Option Program for their organizational efforts, and certainly the 85 com muni ty resource centre s throughout Manitoba for their support in co-ordinating fine option activity .

As a result of the Fine Op tion Program individuals now have the opportunity to remain at work during the day, be with their families, and to continue to participate as full and active members of the commu nity while, at the same time, contributing to commun ity life by performing valuable service work. I'm plea sed to inform members that Capital funds have been earmarked to commenc e planning for a new Remand facility in Wi nn ipeg . The government recognizes the need for this facility and we ant icipate that this will be suppo rted by the findings of the Garson Review Committee.

Perhaps no area of my department is facing greater challenges than the Child and Family Services Divisio n. Current eco nom ic conditions have pl aced a

Document details

Collection	Manitoba — Debates (Hansard)
Citation	32-2-77b
Type	hansard
Volume / chapter	32nd 2nd hansardpdf 77b.pdf
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	422a4b1af9b35a224e70a8bab2ba858ad2a561c0

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