ISSN 0542-5492 First Session - Thirty-Second Legislature of the Legislative Assembly of Manitoba STANDING COMMITTEE on LAW AMENDMENTS 31 Elizabeth 11 Chairman Mr. Phi/ Eyler Constituency of River East VOL. XXX No. 7 - 8:00 p.m., MONDAY, 28 JUNE, 1982. Printed 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) ANSTETT, Andy ASHTON, Steve BANMAN, Robert (Bob) BLAKE, David R� (Dave) BROWN, Arnold BUCKLASCHUK, John M. CARROLL, Q.C., Henry N. CORRIN, Brian COWAN, Hon. Jay DESJARDINS, Hon. Laurent DODICK, Doreen DOERN, Russell DOLIN, 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 I-IAMMOND, Gerrie HARAPIAK, Harry M. HARPER, Elijah HEMPHILL, Hon. Maureen HYDE, Lloyd JOHNSTON, J.

Frank KOSTYRA, Hon. Eugene KOVNATS, Abe LECUYER, Gerard LYON, Q.C., Hon. Sterling MACKLING, Q.C., Hon. AI MALINOWSKI, 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, John RANSOM, A. Brian SANTOS, Conrad SCHROEDER, Hon. Vie SCOTT, Don SHERMAN, L.R. (Bud) SMITH, Hon. Muriel STEEN, Warren STORIE, Jerry T. URUSKI, Hon. Bill USKIW, Hon. Samuel WALDING, Hon. D. James Constituency Ste.

Rose Springfield Thompson La Verendrye Mi nnedosa Rh ineland Gimli Brandon West Ell ice Churchill St. Boniface Aiel Elm wood Kildonan Arthur Emerson Lakeside Brandon East River East Tuxedo Concordia Swan River Virden Kirkfield Park The Pas Ru pertsland Logan Portage la Prairie Stu rgeon Creek Seven Oaks Niakwa Radisson Charleswood St. James St. Johns Morris Roblin-Rus sell St. Norbert Assiniboia Gladstone Pembina Selkirk Transcona Fort Rouge Wolseley Dauphin Turtle Mountain Bu rrows Rossmere lnkster Fort Garry Osborne Ri ver Heights Flin Flan lnterlake Lac du Bonnet St.

Vital Party NDP NDP NDP PC PC PC NDP NDP NDP NDP NDP NDP NDP NDP PC PC PC NDP NDP PC NDP PC PC PC NDP NDP NDP PC PC NDP PC NDP PC NDP NDP PC PC PC PC PC PC NDP NDP NDP NDP NDP PC NDP NDP NDP PC NDP PC NDP NDP NDP NDP

LEGISLATIVE ASSEMBLY OF MANITOBA THE STANDING COMMITTEE ON LAW AMENDMENTS Monday, 28 June, 1982 Time -8:00 p.m. CHAIRMAN -Mr. P. Eyler. MR. CHAIRMAN: Committee come to order. For those of you who might have come for presentations on other bills, Bills No. 32, 33, 50, and 63 have been referred to the Muni cipal Affairs Committee which is meeting down the hall. BILL NO. 23 -

AN ACT TO AMEND THE LEGAL AID SERVICES SOCIETY OF MANITOBA ACT MR. CHAIRMAN: We left off this morning in the mid­ dle of Mr. Green's presentation, so if there is no press­ ing busin ess, we'll conti nue with Mr . Green's presentation. MR. S. GREEN: Thank you, Mr. Chairman. You have indicated that I was in the middle. I hope that I was at least th ree-quarters of the way down. In any event, we'll continue. I was at the point where I was indicating, Mr. Chair­ man and Ladies and Gentlemen, Committee Members, the nature of groups that wou ld be eligible under the rules that are set out in the legislation; namely, in

Section 3.1 (2). that the matter in the opinion of the society, involves an objective or interest common to the members of the grou p or relating to an issue of public concern. I wish to repeat that, indicating the broadness of it. Involves an objective - it needn't be a legal case. Indeed, much of the activities of Legal Aid in these areas won't necessarily involve legal cases at all. When I say that, I' m talking about it in a narrow sense. They could be representations at meetings or appeals of a various nature, public demonstrations, or what have you.

All of these things, in my respectful subm is­ sion , could be covered by what is suggested here and indeed, in my view, are intended to be covered. I say that by virtue of what I know the Legal Aid people have felt to be a legitimate provision of Legal Aid, such as occurred with the Sherbrook-McGregor Overpass. I am not certain, but I believe that the Attorney­ General was qu oted as saying that this would help people such as those who were opposed to the Sher brook-McGr egor Overpass. If that's what's intended, Mr.

Chairman, then there couldn't be a bet­ ter example of providing legal assistance to people involved in a political issue. Each one of these thin gs are political issues. I indicate, Mr. Chairman, that a group could come to this Legislature or to the Legal Aid Committee that's mentioned here and, if in the absolute discretion of the Society they believe that thi s group is correct, the grcup could ask for funds for obtaining legal assis­ tance to declare that portion of the Criminal Code of Canada which prohibits hate literature to be unconsti­ tution al. Mr. Chairman, that's not farfetched.

I, for one, think it is unconstitutional. I was opposed to it as a Statute, but certainly once you have a Statute which 108 says that nothing shall interfere with freedom of expression and freedom of speech, then it is qu es­ tionable; even more questionable whether a Statute that outlaws hate literature is unconstitutional. Now, Mr. Chairman, I just happen to think that it is and I certainly don't disagree with those people, the sincerity of those people who think that such a Statute is helpful and necessary and think that it does confer protection on people who have been hurt by that kind of discrimination.

In my view it doesn't, but that's beside the point. A person could ask for money to do that and unless you are going to deal with these appli­ cations subjectively, that money should be granted. That is an issue of common concern and a matter in the public interest. The only way of preventing that kind of thing is not making legal assistance available on these types of issues. I'm certain, Mr.

Chairman, again, because I have been in communication with the people who are proponents of this type of thing, that a tenants'associ­ ation seeking to deal with their particular block or seeking to exercise their rights under The Landlord and Tenant Act wou ld be eligible. Indeed I go fu rther than eligible, that it's intended that they be able to get this legal aid. Well, Mr. Chairman, is not the Landlords' Associa­ tion in the same position?

If you 'll provide legal fees for people who are fighting the tenants' issues should not their be a provision of legal fees for those people who are fighting the landlords' issues which the land­ lords regard just as valid as the tenants do theirs? Mr. Chairman, I' m not suggesting that you give it to both; I'm suggesting emphatically that you give it to neither.

Groups who are pursuing these kinds of objectives, if they are strongly enough motivated and if their cause is right, will be able to do one of two thi ngs; they will be able to raise funds for their objective and/or they will be able to get counsel to pursue them. I have no doubt that has occurred and I'm able to speak in that regard from personal and practical experience.

But the dangers in the Act are that it gives to some­ body, and somebody who is appointed by the gov­ ernment and that is not an entirely accidental or yet clinical type of appointment; I have never pretended that it was and I smile at those who do so pretend that the government's point of view is reflected and the legal aid will go to those groups that have a particular direction, and against those who have another direc­ tion. I say, Mr.

Chairman, that although in the short run that looks cosy when you're in control, that ulti­ mately it is not cozy; ulti mately it hurts most those who propose it; that under such systems which ulti­ mately - and I'm certain this is the direction that will be taken, that the government will start financing politi­ cal parties.

Ultimately those groups who had, in their origin, the kind of spirit and drive that enabled the advancement of parties like the New Democratic Party, will not be able to advance because the other parties will be publicly financed and they will be inelig­ ible under the rules that will be stated; that is, the kind of rule that has taken place in the Province of Quebec where all the entire public has to finance the estab-

Monday, 28 June, 1982 lishment parties because the other parties do not get a vote. Now, Mr. Chairman, that is what is being done with this type of legislation and I regret that some people perhaps do not have as much foresight as is necessary to see that is what is here. Mr. Chairman, I have no objection - I've heard it suggested that this is to enable the consumer to appear before committees like the Util ities Committee when the gas prices are being set I don't think that shou ld be legal aid.

I think that the government should appoint the best team of lawyers and accountants and economists to the Department of Consumer Affairs to be there and that that should be part of the Estimates of the Department of Consumer Affairs.

That's not a position that I'm taking today; that's a position that I have taken consistently and that the former Member for Bu rrows took consistently. lt was never achieved but certainly if you want to do that, that is something that is a very, very legitimate thing. lt could be done before the Milk Control Board; it could be done before the Util ity Board; or it could be done before any other agency that is considering the protection of the con­ sumer.

But that's not the responsibility of an ad hoc group and which one do you pick; that's the responsi­ bility of the elected representatives of the people and of the administration itself. Now, Mr. Chairman, that is my subm ission; I'd be very willing to answer any qu estions that arise from it MR. CHAIRMAN: Are there any questions for Mr. Green? Mr. Enns. MR. H. ENNS: Yes, thank you, Mr. Chairman. One of the problems that I have with the bill before us Mr.

Green, are that - and you touched on it just latterly in your last comments- was that, by and large, certainly in the experience that governments of all description have faced in recent times, has been this kind of action raised by interested groups against or opposed to governmental action or the ir agencies. I, of course, speak of some experience dating back to the time that you will recall, 1969, when a government agency, in fact, paid for and employed advocates to oppose Crown Corporation's actions at that particular time.

Do you foresee. in this legislation, the Government, or the Legal Aid Commission paying for a civil action against a private concern or against Safeway or Dominion, for their practices in the distribution of groceries and foods, or? MR. S.

GREEN: Well it says "any consumer or envir­ onmental issue" and I am certain that a group that felt that Safeway is not doing proper jobs, in terms of advertising, will say that the Combines Investigations Branch, which is responsible for prosecutions under misleading advertising, etc., is not doing a good job and they will apply for legal aid and Legal Aid will say, certainly they're not doing a good job, you go ahead and do it What you do is set up what has been very prevalent in the United States, that is, a whole series of class action type of things which are there largely because of the separation of powers in the constitu­ tion.

But if you 'll go specifically to what you're refer­ ring to. the Churchill River Diversion is a very good 109 example. In 1973 there was a Northern Flood Commit­ tee that wanted legal aid from the Province of Mani­ toba and they wanted Legal Aid from the Province of Manitoba to stop the Province of Manitoba in what the people of this province thought was a very important project We said to them if you wish to sue the prov­ ince you go ahead but we do not recognize the obliga­ tion of the province to finance your suit against us.

So what happened is that the Federal Government financed a suit by a group of people in the Province of Manitoba, styled themselves as the Northern Flood Committee, and the kind of thing they financed was letters sent by children to me from Cross Lake.

Every child in the class was told that if this project proceeds the playgrounds in Cross Lake would be flooded; that was financed by the Federal Government against the Province of Manitoba. it was an outright lie, it was paid for by the Federal Government; and when they made the settlement they expected the province to reim­ burse the Federal Government On that issue there was a governmental crisis and we didn't finance that committee. MR. H. ENNS: In a roundabout way you answer that question in the first instance.

Class actions are made because governments are not responding, either through Combines Legislation or what have you , against the issue that was originally raised. My con­ cern with this bill is that, and I expressed it at Second Reading of the bill, there's a presumption inherent in the amendment to the bill that says that those pieces of machinery put in place, whether it is the Public Util ities Committee, whether it is other tribunals of appeal to hopefu lly - I say hopefully because they don't always act in the interests of the citizens of this province - get a fair hearing.

I'm distu rbed that we have to pay high-priced lawyers like you rself or the Attorney-General, to make the average citizen heard when he has a legitimate case of complaint against his or her government MR. S. GREEN: Well, Mr. Enns, I did say -and I still am of the opinion - that before things, such as, the Public Util ity Board, which you say is there to protect, that is true and it has a hearing, but up until several years ago the hearing was a very one-sided hearing.

The gas company would come in with their economists, their lawyers and present the position; and I have every sympathy for the fact that the Department of Consu­ mer Affairs should sit down, get the information, hire their lawyers and their economists and also appear before the Board and make a position. I don't say that this responsibil ity should be abdicated to so-called citizen groups. The citizens are represented by their elected representative. MR. CHAIRMAN: Mr. Enns. MR. H. ENNS: Mr.

Green, you're aware that organiza­ tions, bodies, such as the Public Util ities Board now has within its Statutes the authority to appoint that kind of legal assistance, accounting assistance, expert assistance to represent consumer views at such hearings. MR. S. GREEN: Mr. Enns, it'as been my observation

Monday, 28 June, 1982 of regulatory agencies that they become regulated by the people that they're supposed to regulate and not vice versa. Therefore, it is my opinion that the Department of Consumer Affairs should be the watchdog for the citizen and not the regulatory agency itself. Therefore, I have absolutely no objec­ tion, ind eed I thin k it is valuable for that department to appoint whatever expertise is necessary to make sure that the Board has input from both sides. MR. CHAIRMAN: Mr. Penner. HON. R. PENNER: If I may be permitted a comment, Mr.

Green said that the citizens are represented by their elected representatives and I want to use that as a case in point, as I did in the House. That is that the citizens who are affected very severely by expropria­ tions in connection with the Core Initiative Program, their right to an inquir y was waived by their elected representatives, the last government, such that they were not to be heard at all. That was though t to be wrong by this government.

The question arose as to their being represented in an inquir y which it was thought advisable to hold, and I thin k properly so, because there are conflicting views as to what shoul d happen in an area where people live, have lived in many cases for much of their lives. The group formed their own group because government, their elected representatives, had said, you shall not be heard and the Department of Consu­ mer Affairs said, in effect, you shall not be heard- that is of the former government- formed their own group.

Then we came to question inevitably, how were they to finance themselves in making adequate representa­ tions and Mr. Green is qu ite right. The regulatory agencies or inquir y commissions can be captured by the experts. They needed more than legal representa­ tion; they needed some assistance with respect to architects and planners and so on and they obtained it. But a que stion would arise, how are they to finance themselves in this situation.

I am simply saying, and that's what this bill is saying in part, that we would rather do it with public funds than by having them run bingo games because we're looking at really something that is a matter of broader public concern. The knowledge that is reflected incidentally in a very extensive analysis in the last issue of the Canadian Bar Review called "Fi nancing Public Participation in Environmental Decision­ Making," the public really demands that substantial groups who are otherwise unrepresented or disen­ franchised be heard because it improves the quality and acceptance of the decision-making process.

That's what this is about. Secondly, and to conclude these remarks because I didn't want to go on, actually Mr. Green talks about foresight and he talks about what might happen. Foresight is good if you have that kind of a crystal ball. I don't pretend to, although Mr. Green in qu ite right in anticipating that there may be all ki nds of applica­ tions. The fact is that all we are doing here is regulariz­ ing what has taken place for 10 years. One might, I thin k usefully as well, have looked. not speculatively but actually, as to what in fact took place.

Group certificates have been granted, the last one of which was the Logan Communit y Committee of 110 which I've already spoken, but to the Society of Seniors to fight gas rates successfully, to the Asso­ ciated Tenants' Action Committee to fight hydr o rates. In fact, this is an example because that action was very successful and cost the government $1 1 million, while saving consumers $1 1 million; this is an example which I thin k argues against the position taken by Mr. Green that is, that Legal Aid, being the board being appointed by government, would neces­ sarily reflect the interest of Government.

In fact, it was jus t the opposite in this case as it was in other cases­ to the Health Action Committee on milk prices; to the Anti-Sniff Coalition on anti-glue sniffing; to Ross­ brook House on the Sherbrook- McGregor Overpass. These are real examples; the hypotheticals are spe­ culative only. Finally, I think Mr. Green has missed something in the bill and I' m sorry that he has, because he says, well if you gave it to tenants, why wou ldn't you give it landlords.

First of all, because the aim is to help the disadvantaged, that's what Legal Aid was about right from the beginning and remains- to help the disad­ vantaged; those who cannot afford legal assistance on their own. The point that is missed by Mr. Green is the eligibili ty of groups in 10.1 (2) which attempts, perhaps not as successfully as it might - I thin k it does - but attempts, nevertheless to restrict the granting of such certificates to low-income groups. When Mr.

Green speaks of his and my personal example with the Winnipeg Film Society, the Winnip eg Film Society was a group of middle-class people with middle-class incomes and middle-class knowledge of the legal sys­ tem. We're talking about the residents of Logan; we're talking about the low-income tenants; we're talking about those ki nds of people who are primarily the aim of this kind of legislation. MR. CHAIRMAN: The Attorney-General's commen­ tary may perhaps loosely be construed as a qu estion, if you'd like to respond. MR. S. GREEN: I must regard it as a ques tion, Mr.

Chairman, otherwise I will have no right to speak and I certainly want to answer what has been suggested. Mr. Chairman, what I suggested is exactly what the Attorney-General has jus t confirmed, that legal aid will be made available subjectively to those people that the government thinks need it and that are in line with what it wants -(I nterjection)- well, Mr. Chair­ man, let me finish. My learned friend says that it will be given to tenants but not to landlords. What if landlords are disadvan­ taged?

What if you have a group of disadvantaged landlords and they exclude from their membership, which they have a right to do, any landlord that's making money is out. That might be only a very few landlords now, by the way, and they come as a group of disadvantaged landlords and they ask for legal aid to put them in the position whereby they will be advan­ taged again. Now what the Attorney-General is saying is that we know in thi s government, who are the groups that are entitled. The Winnipeg Film Society - my friend says that they were a middle-class group of people.

They were a group of people who were not much different than who were part of those people fighting the

Monday, 28 June, 1982 Sherbrook-McGregor Overpass. Let's see these dis­ advantaged people who are fighting the Sherbrook­ McGregor Overpass - the Member for Wellington, Lloyd Axworthy, the Min ister of- what is he the Min is­ ter of now? Carl Ridd, the professor at the University of Winnipeg; Sister McNamara. a middle-class per­ son. These were the people who were fighting the Sherbrook-McGregor Overpass: they were granted legal aid. So it's not the people who are involved, it's the qu estion of the issue and who you are sensibly helping. Now let's take the expropriation of Logan Avenue.

I think that's a cruel thing that is happening. My friend says that the government waived the provision grant­ ing them a hearing. That provision is now on the legis­ lation: Mr. Chairman, that provision is now in the legis­ lation, it is part of this government's program. If thi s government felt that a provision waiving a hearing, before expropriation takes place, should not be there why have they not repealed it from the Act? The rea­ son they have not repealed it, Mr.

Chairman, is that every public authority knows, and that's why it was enacted that way and it was carefully thought out, every public authority knows that if you're going to have expropriation that you cannot permit a hearing which will not have an ultimate effect on whether you're going to expropriate or not because otherwise you're fooling the people. If you're saying that the hearing need not result in the elimination of the expropriation, that it will just result in recommendations, then don't have the hear­ ing. And, indeed. Mr.

Kostyra, when he announced that there would be a hearing taking place, when he announced the appointment of the Shapiro Commis­ sion, he said "it's to let the people get it off their chests, we are probably going ahead with the expropriation." Now, Mr. Chairman, that is the cruelest type of hear­ ing; that's the kind of hearing that my friend the Member for Lakeside conducted with respect to South Indian Lake when he said they were going to have a hearing, and after the hearing we're going to go ahead and flood the lake, and it doesn't matter what the hearing says. Mr.

Chairman, the fact is that an announcement of that type was made when the authority was appointed but, in any event, let's assume that it was not, and if it was not I wou ld not like to leave it on the record. If Mr. Kostyra tells me that he didn't say that, I wo uldn't pursue that he did. But the fact is that it is still the law in the Province of Manitoba that before you exprop ­ riate you can waive a hearing, or you can have a hearing; that law is being administered by thi s government.

This government has not seen fit to change that law and, in my view, they will not change it because it would be very stupid to change that law. Mind you, that does not mean that this government will not change it. I take that back. The fact is that is not a good thing to do. to make expropriation su bject to a hearing which can stop the expropriation. By the hearing making that decision would be unacceptable; that is not the present law. When my friend says that people should be given public funds, they should n't have to hold bingo games. Mr.

Chairman, from what I read in the legislation the way you' ll get public funds now is through bingo games, so it's going to be six of one or half-a-dozen of the other. 111 The fact is that this legislation, Mr. Chairman, is designed to abdicate responsibility on the part of the Department of Consumer and Corporate Affairs. My friend says that they were the ones who saw to it that there was a saving of $1 1 million. If that's the case, then it should have been the department that did so: it can still be the department that does so.

You do not have to wait for a group to do it, that's the responsibil­ ity of the elected representatives of the people. I hope that I've been able to go through this disserta­ tion without once referring to the Attorney-General's balderdash as balderdash. MR. CHAIRMAN: Mr. Driedger. MR. A. DRIEDGER: Thank you, Mr. Chairman. The que stion that I have to Mr.

Green is that, in your opin­ ion, if this bill gets passed would people like the Red Ri ver Flood Prevention Coalition, incidentally who feel that the operation of the floodway and the opera­ tion of the flood gates are creating flood damage upstream every time that the gates are being oper­ ated, would these people be in a position where they would qualify for assistance under Legal Aid, because this is an operation that basically is a volunteer group and are always operating in the red? MR. S. GREEN: In my view, Mr.

Oriedger, they would qualify but my prediction is that the government will look, not at their operation as a group, but will see that there are some farmers there and that one of them owns 400 acres of land, which might be worth, on the market at $500,000 and they'll say we're going to give legal aid to a farmer that has land worth $500,000.00? Absolutely not. So the legal aid is being made a wea­ pon of society, as against the haves and the have-nots and this is going to be the provision of legal aid. MR. A.

DRIEDGER: A further question then, if they th row the farmers out of their organization that own 400 acres, and basically have those that own 10 acres and they then applied, in your opinion, would they then be able to qualify? MR. S. GREEN: That's consistent with the present law. I wo uld suggest, Mr.

Driedger, that if those farmers really wish to get legal aid they should n't have 10 acres, they should divest themselves of everything they own, they should walk to the Legal Aid offices, put their pockets outside, show that there's nothing in them, cross their hearts and spit and beg for money because that's apparently what is being suggested as the way in which you get legal aid. MR. A. OR lEDGER: Mr. Chairman, then to Mr. Green. What Mr.

Green is suggesting that if it is somebody that has a personal view, concern, if it's a meaningful thin g where a man is worth any substance at all, or has a concern at all, as a group they would not qualify under this bill, or is this bill just made for certain individual people, in your opinio n? MR. S. GREEN: Mr. Chairman, I've indicated my opin­ ion. I can tell the member that there is another aspect of legal aid which is not part of the bill which, there­ fore, I won't dwell on; that it is the law in the Province

Monday, 28 June, 1982 of Manitoba that if you have a man who is just above the legal aid line and a man just below, the province will finance the guy below to sue the man that's above. The man that's above will have to pay his own legal costs, the guy that's below will not and you will be doing what we used to refer to in law as champerty, you will be financing a citizen to sue another citizen.

In my view, if you're going to finance one side of a legal case, for whatever reason, that the only fair way is to finance both sides because you can drive a middle-class person, who is just above the line, into poverty by the legal case. MR. A. DRIEDGER: Then in my opinion, Mr. Chair­ man, this bill should not be passed. MR. S. GREEN: Well, this has got nothing to do with the bill. That doesn't mean that I don't agree with your opinion. MR. CHAIRMAN: Mr. Scott. MR. D. SCOTT: Thank you, Mr. Chairman. Regarding Consumer Affairs, you said you'd like to beef up the Department of Consumer Affairs, Mr. Green.

Can you see, putting yourself back a few years, if there is a case which the government was not in favour of, can you see you, as a member of the government, pushing the funding or pushing the Consumer Affairs or even pre­ venting Consumer Affairs into taking a case on which you, as a leading member of the Government of the Day, did not want to see that case pursued? MR. S. GREEN: Mr. Chairman, I don't understand the question. If there was a case involving a consumer who had an argument against a company then my tendency would be to let them fight it out themselves.

If we are talking about the qu estion of whether the consumers should be represented by their elected representatives before Boards which are determining these types of issues, I could see myself suggesting that be done. MR. CHAIRMAN: Are there any further questions? MR. D. SCOTT: Mr.

Green, also what I'm attempting to get through on is that the government, say in taking a case with Hydro for instance, which may be going or asking for rate increases and there they wou ld have, through the present system or through the proposed system, a group of not necessarily tenants but con­ sumers could have access to Legal Aid assistance in protesting that rate increase. Yet the government, on the other hand, was to be the benefactor in a way in that the government Crown corporation is to be the benefactor of the increases.

I would be very surprised if at least some governments and some individuals perhaps in those governments would be willing to see their own department fight another wing of the gov­ ernment or another agency or a Crown corporation ow:1ed by the government. MR. S. GREEN: Mr. Chairman, I can tell the honour­ able member that. when I was a member of Cabinet, this very issue came up and if it will make him feel better, as far as I am concerned, there was no reason 112 to have the Manitoba Hydro have its rates argued before a Public Util ities Committee.

If you wish to campaign to the world on that question, my position is clear, there is no reason for it. The elected representa­ tives of the people, including the Cabinet, should see to it that rate increase does not hurt their constituents and that's what I was there for. MR. D. SCOTT: We had another case with, say, the Environmental Counci l. The Environmental Council, which was started up under, I think, you r tutelage as Min ister at the time, really never got sufficient funding or sufficient aid by the government to ever take any ki nd of cases forward or even present cases very strongly.

As a matter of fact, if I can recollect cor­ rectly, when they were started, you told them that their comments would be welcome but they certainly would not necessarily be listened to. So, I think that is ... MR. S. GREEN: I'm sorry, I never said they would not be listened to, I said they might not, they would not necessarily be accepted.

They were always listened to and, as far as the Environmental Council is con­ cerned, again, I have absolutely no sensitivity about saying that what was intended by the government and by the Opposition - it was unanimous - was that we provide seed money to a group of citizens to get them started in taking an interest in environmental qu es­ tions, to provide them with the staff, but not to finance them.

They were to have sufficient strength of their position, if they wanted to take a position which was contrary to the government- and not one of them will say that I ever tried to inhibit them, as the President of the Environmental Council. He told a group of women, you better watch what you're doing because you're hurting the government. Nobody on the Environmen­ tal Council will ever say that I made that kind of a statement to them. Yet he, who was the President, and had much criticism to make about the way they were being treated, was certainly never treated in that way. MR. D. SCOTT: Mr.

Chairman, they may not have had a restriction on what they could say, but certainly when the limit of funding was so low that it took them a year to two years to get out their even very minor reports, I certainly don't think that they have ever been used to the capacity which they could possibly use. MR. S. GREEN: Mr.

Chairman, the fact is that the Environmental Council was set up under the aegis of the Government of the Province of Manitoba, but we told them, and I tell you this, that I consider the Mi nis­ ter of Environmental Control to be the ulti mate protec­ tor of the rights of the citizens with regard to the environment. That is his job. If he doesn't do that properly, don't blame it on the Environmental Council. MR. CHAIRMAN: Are there any further questions for Mr. Green? Mr. Enns. MR. H. ENNS: Mr.

Green, I don't know why you avoided answering that questi on, but I would like to persist on thi s particular one issue that I again raised at Second Reading of the bill. There is virtually in

M.onday, 28 J1.1ne, 1982 every aspect of government, various appeal bodies that have been set up to make access to government or to make redress to government or to bureaucratic decisions more understandable and acceptable by its citizens. In the Department of Highways and Trans­ portation, we take and give drivers' licences to our citizens, but there is a Licence Suspension Appeal Board that deals with those issues, composed of ordi­ nary citizens, we hope, where citizens can redress their problems. In the question of allocation of Crown lands is a Crown Lands Allocation Board set up.

Within Autopac, there is an appeal board set up that can accept the citizen's complaint about the manner and way in which that large corporation deals with its citizens. My problem with this kind of legislation is that even if I would buy the need for this kind of expenditure on the part of the taxpayers, on the part of the public, through the Legal Aid system to approach govern­ ment for redress of what individual groups or individ­ uals assumed to be a wrong, then surely we should question ourselves as to whether or not the need for all these various appeal bodies are necessary. MR. S. GREEN: Mr.

Chairman, there is a legiti mate difference of opinio n as to how best you secure the rights and privileges of citizens of the Province of Manitoba. I will concede that this is one of those opin­ ions. I will not refer to it as balderdash. I don't happen to agree with it. I think that it results in less protection to the citizen and, in fact, a danger of the debate on these questions being taken out of the hands of the elected represen­ tatives and put into the hands of lawyers. This is a great bill for lawyers. Does this committee know that the position is already advertised?

All the lawyers have been canvassed now with an advertisement that there is going to be, under the Department of the Legal Aid staff, a public affairs lawyer that's going to be changed every 18 months so that you don't have the same person doing it. I assume that there is some validity in that, so that it won't become a hardened position, but that position has already been advertised. I am not here to try to cast aspersions on those people who feel that this is the way of doing it. I am here to suggest that, in my respectful subm ission, it's wrong.

By the way, when you talk about the Boards, I am not satisfied with the treatment that I always get, but that's one of the things that you have to accept in life. You have to fight. MR. CHAIRMAN: If there are no further questions then, I wou ld like to thank you for you r presentation, Mr. Green. MR. S. GREEN: Thank you very much. You've been very courteous, Mr. Chairman. BILL NO. 27 -

AN ACT TO AMEND THE

SUMMARY CONVICTIONS ACT MR. CHAIRMAN: The next person is Mr. Norman Rosenbaum, presenting a brief on Bill No. 27. Wou ld you like to wait until a copy of the brief is circulated? MR. CHAIRMAN: You may proceed, Mr. Rosenbaum. 113 MR. N. ROSENBAUM: Yes. The Manitoba Associa­ tion for Ri ghts and Li berties is dedicated to the pres­ ervation and enhancement of civil rights and liberties in the Province of Manitoba. From time to time, we take the opportunity to comment upon legislation proposed to be passed in this House. We wish today to comment upon certain provisions of Bill 27 which we feel raise certain serious considerations.

Section 9 of Bill 27 amends The

Summary Convic­ tions Act by adding

Section 11 .1 (2).

Section 11. 1 (2) provides for the mechanism of default conviction.

Where a person is served with a summons and does not voluntarily pay the amount of the fine and costs set out in the offence notice, appear before a justice or enter a not guilty plea with in 15 days or such further period as is specified in the offence notice and arrange for a trial date for hearing of the matter, a justice may convict the person, enter a default convic­ tion and impose the amount of the fine and costs set out in the offence notice and in default of payment of the fine and costs, impose a term of imprisonment. lt should be noted that the mechanism of default conviction removes the traditional burden upon the Crown to prove the offence.

The

section suggests in fact trial in absentia. lt is phrased: "a jus tice may convict the person, enter a default conviction ... " The Crown need not prove its case, even by way of ex parte hearing, and the entire concept of due process appears to be discounted for the sake of expedience. The

section refers to "service" upon the accused of the summons. lt is unclear whether service must be personal. Indeed, by way of comparison the proposed

Section 11 .1 (3) states that "Where a default convic­ tion is entered against a person, the court shall send to the convicted person by mail a written notice." Hence the term "service" in

Section 11 .1 (2) by not being defined is not entirely clear. If it is interpreted to merely requir e service of the sum mons by mail, the accused may never actually have the summons brought to his attention. He may through inadver­ tence become su bject to default conviction and fine and to arrest and imprisonment.

Section 11 .1 (3) provides that where a default con­ viction is entered the court shall send by mail a written notice "stating that if the convicted person fails to pay the fine and costs imposed upon him on or before a specified date or within such time as may be allowed under

Section 10.1, a warrant may issue for the arrest and detention of the convicted person." Again, it shou ld be emphasized that the

section refers to mail service, not personal service. A warrant may issue for the arrest of the person, and we therefore submit that the person ought at least to be personally served with the notice to pay the fine.

Section 11 .1 (3) specifies that the written notice shall state certain matters as referred to above. The amendment does not, however, require that the notice specify the accused's right to file a request for a hear­ ing de novo, which right is set out in

Section 11 .1 (5). As

Section 11 .1 (5) sets out that the person against whom is registered the default conviction may "not later than 7 days immediately preceding the date specified in the notice for payment of the fine and costs, request a hearing de novo," we would submit that the notice also specify the person's right to file the request. A right is not likely to be exercised if it

Monday, 28 June, 1982 is not known. Further,

Section 11 .1(5) does not make provision for court discretion in the filing of a request later than the specified seven days. We suggest that there should be a discretion to meet unu sual cases where, for exam­ ple, the deadline is missed through inadvertance.

Section 11. 3(1 ): This

section deems the owner of a vehicle to be gui lty of an offence automatically and without judi cial intervention of any sort whatever, even by a jus tice, where a summons has been left by a peace officer and no person has voluntarily paid the amount of the fine set out in the summons, entered a plea of not guilty within the 15 days specified in the summons or arranged for a trial date for the hearing of the matter. Given the automatic nature of this provi­ sion, a number of absurdities are conceivable. For example, X, the owner of a motor vehicle, dis­ covers that it has been stolen from him.

He cannot locate it. He searches frantically for it, but in the mean­ time the thief has committed a parking violation with­ out the owner's knowledge. The owner is unable to locate the vehicle for several days and in any event, well beyond the 15 days mentioned in the summons on the car's windshield. The owner, under the pro­ posed section, finds himself convicted of the offence which the Crown has not been requi red to prove, the conviction having issued automatically. While the proposed

Section 11 .3(2) provides that where a default conviction is entered against and a fine imposed upon an owner under Subsection (1), the court shall by mail send the owner a notice in writing stating that a default conviction has been entered against and the fine imposed upon the owner, the provision is for mail service. Thus, the owner might not receive actual notice of the conviction. His address might, for example, recently have changed, he might be away on vacation, the notice might be lost in the mail, and so on. Nor does there appear to be any requirement that the notice set out the owner's right to file a request for a hearing de novo.

Section 1 1.3(4) states that "Up on receipt of a notice sent under Sub section (2). the owner may, within 15 days of the mailing of the notice, file a request for a hearing de novo." There is a conflict in this wording between the words "receipt" and "mailing." A letter might be lost in the mail for a number of months, yet the owner may only file the request within 15 days of the mailing, notwithstanding that receipt has been delayed for several months.

Section 11 .5:

Section 11. 5 provides that where a person is convicted of more than one offence and a prison term is imposed with respect to each of the offences in default of the payment of the fine, "the prison terms shall run consecutively unless the court otherwise orders." This provision imposes a potentially drastic pun­ ishment greatly in excess of what might be expected given the nature of the offence. Criminal Code proce­ dures in fact would appear to be less stringent, sent­ ences of imprisonment being presumed to run con­ currently unless otherwise ordered by the Court.

Subm itted that for the reasons earlier discussed, we believe that this bill should be given further considera­ tion prior to passing. MR. CHAI RMAN: Are ther e any qu est ions for 114 Mr. Rosenbaum? Mr. Penner. HON. R. PENNER: Just a brief comment. As I said in an aside this morning, I wish I had an opportunity to ha•:e received the brief earlier. I've been looking at it since receiving a copy this morning and there are a couple of amendments which we have already in mind and a couple of more which we are prepared to bring in clause-by-clause that will deal with some of the concerns expressed in the brief.

I ju st wanted to make a general comment with respect to the concern about the traditional burden upon the Crown and the suggestion that this bill is in some way restricting the rights of accused individu­ als. In fact, as I said in the House, it's my view that rather than restrict the rights of individuals, this bill is expanding the rights of individuals. I think one has to look at what takes place now. There are several hundred ex parte hearings a month. The total cost to the taxpayer of these ex parte hearings is in the order of about $200,000 a year.

I call it the $200,000 farce because they invariably end up in a conviction. If there is a conviction and then the accused is notified - as the accused must be no longer an accused, but now a convicted person - the only right that the accused has is an appeal to the County Cou rt, which almost invariably requir es a lawyer at considerable expense to that person.

Under these procedures which are being proposed, first of all, the person has a right to avoid the expense and problem of going down to traffic court entirely, because we're considering mainly traffic offences and can deal with the matter by mail, instead of having to go down. Secondly, even by mail he can plead not guilty and by mail be found not guilty; but where the person just doesn't show - and that's a major problem for the administration of justice - instead of the ex parte, there will be a default conviction.

But now, under this legislation, that person instead of having to appeal to the County Court, get a lawyer and all of that, can have a simple trial de novo, that is, a new trial, but in the ordinary traffic court, which as you know is open at nighttime; most people go unrepresented and have their hearing. it's an expansion of rights, not a restric­ tion of rights, to a very considerable extent.

Not only that, it's a saving to the taxpayer at the same time of $200, 000 and yet -(I nterjection)- yes, but at the same time I'm emphasizing -I don't think I needed that particular aside, you can have your turn to speak if you want it - I'm emphasizing that the rights of the persons are being expanded. I don't care if it would cost us half-a-million dollars.lf we were restricting the rights of accused persons, then I would be opposed to it and that is simply not what is happening.

Indeed, as a result of some suggestions that have been made, amendments will be brought at clause­ by-clause stage to make sure, as has been suggested in the MARL brief. that persons who may have missed some of the notices are told explicitly about thei r right to the new trial in traffic court, to make sure that these things happen. Finally and by way of comment with respect to the consecutive, rather than concurrent sentences; we have cases. all too many of them, of the flagrant viola-

Monday, 28 June, 1982 tors who may accumu late - some have accumulated 40 or 50 traffic violations. They are simply saying that this law isn't for me. I can go ahead and park at will, contrary to the law and to heck with authority and to heck with the rights of other people to have a traffic stall when they need one. lt just doesn't seem proper that these people should have to pay, for example, just $5 for the one offence and all of the other convictions to run concurrently. They should pay for each one of their violations, it seems to me. I'm sure, and I'll even put this as a que stion to you Mr. Rosenbaum.

Would you not think that's proper? We're talking about the flagrant violator in these cases, or persons who have accumulated a number of moving offence tickets and have not done anything about it. Should they pay the one fine or should there be fines on each one of the MR. N. ROSENBAUM: Well, with respect, the

section in fact refers to consecutive terms of imprisonment, rather than simply a fine. I believe that my learned colleague misses the point when the

section does, in fact, deal with imprisonment rather than a mere fine. lt is dealing with consecutive imprisonment rather than, for example, consecutive or mu ltiple fine or whatever. lt would appear to tend to conflict with the trend in other areas of criminal law. Upon the matter of the expansion of the rights of the accused we appreciate that number of other amend­ ments to expedite the accused right of appeal in review. However, it does remain that this central issue of default conviction does remain.

Surely there must be another method of bringing the accused to court, for example, the issue for the warrant for the accused to appear, rather than to have a default conviction issued, in fact, under one of the sections with regard to traffic offences for a default conviction without intervention of a justice. MR. CHAIRMAN: I might remind members of the Committee that the purpose of these hearings is to receive Briefs and presentations from the public and as such, we ought not to be arguing with them but merely asking que stions to clarify their position. Are there any further questions for Mr. Rosen­ baum? Mr.

Santos. MR. C. SANTOS: Thank you, Mr. Chairman. Mr. Rosenbaum, do you see any merit in limiting default conviction to include only convictions puni­ shable by fine but not by imprisonment? MR. N. ROSENBAUM: I'm unc omfortable with the concept of default conviction but if half a loaf is better than none, certainly the sense of default conviction where the liberty of a subject is involved, I would say that is a much more pressing concern, for example, than default conviction involving fine.

The concept and the difficulty with the concept of default convic­ tion remains; however, when it is a case of the liberty of the su bject, then it's a much more drastic remedy for the Crown to have a default conviction. MR. CHAIRMAN: Mr. Santos. MR. C. SANTOS: That's all, Mr. Chairman. 115 MR. CHAIRMAN: Mr. Orchard. MR. D. ORCHARD: Well, Mr. Chairman, Mr.

Santos has brought up a rather interesting point, wherein he suggests that possibly a default conviction shou ld only be registered in such offences as carry only a fine, hence eliminating the possibility of the courts deciding whether consecutive imprisonment should be imposed as it's part of, I believe,

Section 11. 5. But is it not my understanding, and maybe Mr. Rosenbaum or the Attorney-General could clarify this. I believe

Section 11. 1 (2) makes all default convictions su bject to imprisonment, whether it be a parking fine, running a red light, failing to pay a speeding ticket. MR. N. ROSENBAUM: I be lieve that the

section of The

Summary Convictions Act would itself tend to restrict and would not include all manner of

summary conviction offences. However, I don't have a copy of the Act itself before me and I'm not prepared, I' m not able to answer that particular question. MR. D. ORCHARD: Mr. Chairman, Mr. Rosenbaum you mentioned a concern - and it's one that is shared by a number of people - in that notice, according to the amendments to The

Summary Convictions Act, shall be by mail and there's no specification as to whether it's registered mail, certified mail. lt's deemed to be ordinary mail and with not wishing to cast any particular offence on the current mail system, that can be something of a hazardous method of delivering a default conviction and, indeed, for the accused to register with the proper authorities. Well, I'll find the

section - a reason why he explains extenuating cir­ cumstances, so that the accusation may be modified by a judge or a magistrate. All of those depend on the mails only and they can present some problems. Just because you mail an item in today's mail service doesn't necessarily guarantee delivery to the individ­ ual it's mailed to. Would you have a suggestion as to how The

Summary Convictions Act may be amended to properly use the mails to delivery sum monses, default convictions, etc.? MR. N. ROSENBAUM: Yes, I' m uncomfortable with having a possible default conviction register after ser­ vice through the mail. In fact, I think it's an inherent difficulty with mail service. For example, in civil pro­ ceedings, by reference to the Queen's Bench rules, the provision is for personal service unless otherwise specified and there are elaborate procedures in terms of civil procedures.

In fact, it's necessary to apply to the court for an order of substitutional service if it's wished, for example, to proceed. In fact, to register a defaults judgment in the Queen's Bench, you have to file an affidavit of service in the court indicating that person's service or substitutional service by order of the court has been accomplished. Those particu lar sequences are not incorporated in this Act.

I suggest that at least some thought should be given as to the mechanics of at least ensuring that, if there is to be mail service that it is with an amount of certainty, especially where default conviction is under. MR. D. ORCHARD: Now, you expressed some con­ cern about

Section 11 .5 on the consecutive nature of

Monday, 28 June, 1S 32 prison terms. Would I interpret your concern in that, let's take a situation of successive parking violations which can be registered as a default conviction, a number of them accumulate, each with a consecutive prison term involved, would you be suggesting that where you have the ability under this

Summary Con­ victions Act to cause consecutive prison terms to be the final conviction to the offender? Would you sug­ gest in those cases that personal service be triggered in some manner so that you don't have all of this coming about because of lack of mail service, failure to receive the mail, for instance, the individual could be away on a six-week holiday which is not uncom­ mon even in the senior levels of the Civil Service nowadays. MR. N. ROSENBAUM: I tend to think that's where it reaches the stage of prison term, that's the ulti mate situation.

While it is difficult to conceive of mail servi­ ces being at fault for that inability, the possibility does remain in the legislation. lt is our position that possi­ bility should be precluded by not allowing for it in the legislation. MR. D. ORCHARD: I have no further questions . MR. CHAIRMAN: Are there any further que stions? Mr. Enns. MR. H. ENNS: Mr. Rosenbaum, I appreciate that the Government of Manitoba is not breaking new ground in this instance. I understand that there are several ju risdictions in Canada that have enacted similar measures in this respect, Ontario, principally the one that comes to mind.

Also, I must indicate to the com­ mittee and to you, Sir, that this proposal has been ki cking around in the bureaucracy for at least four years and possibly longer, except that governments of that day didn't succumb to that kind of bureaucratic pressure. My simple que stion to you , Mr. Rosenbaum, are you su rprised that this government and this Attorney­ General brings in these kinds of measures at this time? MR. N. ROSENBAUM: I can't comment on that que s­ tion. I really can't. MR. CHAIRMAN: Any further que stions? Seeing none, I would lik e to thank you, Mr. Rosen­ baum, for your brief. BILL NO. 51 -

AN ACT TO AMEND THE CHILD WELFARE ACT MR. CHAIRMAN: On Bill No. 51 , we have Ms Vi cki Laiman. MS S. SHACK: Mr. Chairman, I am obviously not Ms Vicki Laiman. MR. CHAIRMAN: Could you identify yourself for the committee? MS. S. SHACK: This is an instance that illustrates the difficulties that volunteer organizations tend to have. 116 Our volunteers are not always free to arrive at the time that they hoped they would arrive at, so I am pinch­ hitting.

My name is Sybil Shack and I am a member of the Manitoba Association for Rights and Li berties which, as you know, is an organization dedicated to tne preservation and enhancement of civil rights and liberties in the Province of Manitoba. From time to time, we take the opportunity offered to us to com­ ment upon legislation proposed to be passed in this House. Today, we are commenting upon certain pro­ visions of Bill 51,

An Act to amend The Child Welfare Act. I am afraid that I must apologize twice because I am not as knowledgeable in this matter, of course, as Ms Laiman was who worked on the bill and prepared this paper. The amendments of Bill 51 , which concern us par­ ticularly, affect the organization of Child Welfare agencies, protective guardianship, children of unmar­ ried parents and adoption. While MARL applauds the widening of notice of provisions, such as found in

Section 7 of Bill 51 as being of benefit to those involved in hearings, there are concerns and potential conflicts which we would like to raise. The first of these deals with

Section 4 of the bill and

Section 7, I think, of The Child Welfare Act. Pre­ viously, child welfare committees could be formed only in areas that were not served by children's aid societies. The new establishment of "Child Welfare Committees" consisting of "residents of an area inter­ ested in Chil d Welfare" may conflict with already existing child caring agencies. This is an ambiguous

section as to the purpose for which the committees would be set up; in fact, there are several ambiguities, we believe, involved in this particular section. One is an ambiguity in the purpose of these commit­ tees and the circumstances in which these commit­ tees would be set up and in how their function would be defined in relation to other "child caring agencies." We could see potential conflicts here between a child caring agency and a child welfare committee whose members will probably be drawn from the community.

We can see also potential problems with confidential­ ity in such committees - confidentiality, the child car­ ing agencies normally consider of great importance. We believe that if there were conflict between a child caring agency and the child welfare committee, that would certainly not be in the best interest of the chil­ dren involved. Our concern, of course, is with the children.

What we are really suggesting is that the composi­ tion, the function, and the relationsh ip of these child welfare committees should be more clearly defined in the Act, that these ambiguities should be, if possible and we think it's possible, eliminated. We are also concerned that too much is left to be controlled by regulation in the new subsection.

In the new Child Welfare Act, Subsection 7(3), it should be made clear- this is a minor point - but on reading this, I know Ms Laiman and I noticed this immediately, that the "director" spelled with a small "d" in that particular su bsection could refer to any kind of director, the director of an agency, the director of the Child Welfare Committee. The word "director" should be more clearly defined as the Director of Child Welfare if that's the intent of the su bsection; the intent

Monday, 28 June, 1982 is not clear. A second major concern is regarding the orders of the court for su pport by a putative father of a child of unmarried parents. We believe that it is a good move to make sure that mother is named as well as the child caring agency to receive support money for the child. This allows the mother to have a direct entitlement to the money for the child, but we believe that the judge should be able to have the money go directly to the single mother and not necessarily through "a desig­ nated officer as defined in

Part IV of The Family Main­ tenance Act" for disbursement by such a designated officer; that is, we think the judge should have the right to pass the money on directly to the mother. A third major concern is in

Section 19 of Bill 51 . lt would appear to give too much discretion to the child caring agency to extend the ti mes for the making of an application for an order of adoption. it's ambiguous as to who, within the child caring agency or which child caring agency, would have the direct authority to make adoptions or to extend the time in which adop­ tions can become firm.

Further, the ju dges usually have the prerogative to extend times and applications to them as this would be - that is, there has to be an application to a judge for the extension of time for firming up an adoption and then it usually lies within the discretion of the judge to set the limits or to extend the limits if necessary. MS S. SHACK: We are concerned that some of the amendments in this bill then are ambiguous in their wording and might very well lead to litigation resulting in harmful effects to the children.

This is an extremely important Act and it's really a very complex Act, The Child Welfare Act as a whole, because it deals with the lives of helpless children who in many cases can't speak for themselves. We believe that there should be more opportunit y for interested persons and organi­ zations to study its implications and that it shoul d not be passed in haste without consideration to the impli­ cations of the Act. MR. CHAIRMAN: Are there any questions for Ms Shack? Mr. Graham. MR. H. GRAHAM: Thank you very much, Mr. Chair­ man, through you to you Ms Shack.

I could get down to a personal note which I will not do. On your last concern where you say it should not be passed in haste, would it then be assumed that the position of the Manitoba Association for Rights and Li berties would be one that this Act shou ld be referred to in intersessional committee? MS S. SHACK: Well, not necessarily to another com­ mittee but it certainly should have more attention in the House. We believe that there should be more opportunity for those people who are directly affected by it to make presentations regarding it. MR. H.

GRAHAM: Wel l, gi ven the fact that this Assembly may very well end its busi ness in the next day or two or possibly three, would you consider that to be haste? 117 MS S. SHACK: The suggestions we make are not a matter of life and death, as you notice, but they try to wipe out ambiguities which, I think, could be cor­ rected and perhaps more sweeping amendments could come in the next Session. On the other hand, I don't think that MARL would be distu rbed if this bill were laid over for the next Session with some greater attention paid to these areas that we have drawn to your attention. MR. H.

GRAHAM: Thank you very much, Mr. Chairman. MR. B. CORRIN: In respect to

Section 14 of the bill Ms Shack, I wanted to try and obtain your understanding of the effect of the amendment and the revision to the legislation. Perhaps before I ask you what your under­ standing is in detail, I'll tell you what I thought when I read the provision and we'll see if there's any conso­ nancy between our opi nions.

I thought that it was simply put in the Act, in the legislation, to facilitate the collection of the maintenance monies from the puta­ tive father in order to expedite the collection and rem­ ittance of that money and to assure the custodial par­ ent that in the event that the monies were not remitted that the enforcement provisions in that part of The Family Maintenance Act could be invoked. So what I thought, perhaps I'm wrong, that it was simply an expedient measure to assure that the cus­ todial parent wouldn't be put to bother as a result of payments not coming in an efficient in a timely manner.

So I thought it was basically an enhancing provision that would make the receipt of these monies more efficient and consistent with the provisions which are now util ized with respect to other mainte­ nance orders emanating from the family courts. Now, what is your understanding of that because you seem to have a different point of view? MR. CHAIRMAN: Ms Shack. MS S. SHACK: Well, my understanding was that the

section as a whole was a good section. The only part of the

section to which we are addressing ou rselves is that which suggests that the payment should go through a designated officer as defined in

Part IV of The Family Maintenance Act for disbursement instead of going directly on the judge's order to the mother. But otherwise we are in sympathy with that

section and I think I would agree with your

interpretation of it. MR. CHAIRMAN: Mr. Evans. HON. L. EVANS: I'd like to ask Ms Shack whether in her comment on the child welfare committees and the fact that there . . MS S. SHACK: I'm sorry, Mr. Evans, I have a hearing disability and I can't hear you. HON. L. EVANS: Yes, I'll speak up. With regard to Item 1 in yo ur presentation in reference to the new establishment of child welfare committees consisting of residents in an area interested in child welfare, you say this may conflict with already existing child caring agencies. You are aware, of course, that there have

Monday, 28 June, 1982 already been some child welfare committees, if I can use that general phrase, begun primarily with the Dakota Oji bway Family and Child Service in Southw­ estern Manitoba. So are you aware of the signing of the Tripartite Agreement with the Federal Govern­ ment and the Four Nations Confederacy and the sign­ ing thereto of subsequent subsidiary agreements whereby we may now turn over to various reserves who agree to the conditions, the right to act in effect as a child caring committee or a child welfare committee. MS S.

SHACK: As I understood it in the Act as it exists now, these child welfare committees are set up only in areas where there are not child caring agencies oper­ ating. Our concern is that there might be conflict in interest and administration between the child welfare committee. We're not opposed to the idea of a child welfare committee but we are just concerned that the legislation may be ambiguous as to the powers of the committee, of the child welfare committee, and it's relationship with a child caring agency, if one exists in the area.

What we're suggesting is simply that the powers be spelt out and that the relationship between the two groups be spelt out, so that these ambiguities don't develop and that the conflicts don't develop in the matter of child custody because, if they do develop, it's the child that suffers. MR. CHAIRMAN: Mr. Evans. HON. L.

EVANS: Yes, well again, I would like to ask the delegate if she has had any discussion with some of the child caring organizations, because the Child­ ren's Aid Societies involved are very much aware of the fact that we are in the process of delegating to various Tribal Councils the power and authority to act as a child caring agency on those specific Reserves.

For example, in the Dakota Oji bway Tribal Council Agreement they have, as of a year ago, established a Family and Child Caring Service in the Westman area of Manitoba, essentially, where there is already exist­ ing, of course, the Children's Aid Society of Western Manitoba. MS S. SHACK: Yes, I realize that. I, again, must apol­ ogize to you for my inability to answer some of these qu estions because, as I said, I came ill-prepared, not expecting to speak to this topic. I jus t looked to see whether the presenter, who was supposed to be doing this job has shown up and she hasn't. I take your point, Mr.

Evans and, as I said, we are not objecting, by any means. to child welfare committees; we think that the idea is a good one. We are suggesting, however. that though it may work now when it's new- and there is no legislation really setting up the relationship between the two - but what happens six months from now, or th ree years from now if there is nothin g to set forth the exact relationship of one organization to the other. T:1at is our point, I think. MR. CHAIRMAN: Mr. Corrin. MR. B.

CORRIN: Yes, I'm still looking Ms Shack, at the provisions of 14 , which we discussed earlier and 118 having heard your concern and I've been looking at it and studying the present Act. I must admit that I'm now concerned about this, too, because I think that the wording is ambiguous. So your concern that it may be necessary that a single mother or an agency tllrn the money over to the designated officer, seems to have some validity.

I guess I was wondering, what would you think if we did something to the effect of adding, as a discretionary option, a third component; namely, the possibility that the money be forwarded to a designated officer? In other words, the judge could order the money payable to the single mother, or the child caring agency, or the designated officer, such as he or she deems fit. MS S. SHACK: Yes, or to the single mother through the designated officer and we couldn't really see the point of that. The fact that a mother is a single mother doesn't necessarily mean that she's irresponsible.

If she's irresponsible the judge wouldn't order the pay­ ing of the money to her; if she's responsible, then it shouldn't have to go through another step. MR. B. CORRIN: I think the intent though is simply to ensure that, in the case where their payments aren't made or aren't regularly made, that there be an enforcement pickup that will hook in fairly automati­ cally and would obviate the necessity of the mother having to get involved, which is something that has been done now with respect to maintenance orders. generally, under The Family Maintenance Act.

But I have this concern because I think the language is ambiguous, so we'll look at it. I think there's general agreement that we're looking at it. Thank you. MR. CHAIRMAN: Mr. Harper. MR. E. HARPER: Yes, Ms Shack, I would jus t like to make a few comments on the child welfare committees. Where I come from, I guess in the north, we operate a number of child welfare committees on Reserves and part ofthe problem has been to obtain any author­ ity or any powers.

As you know on Reserves it's a Federal responsibil ity and where in the absence of any Federal Statute or any legislation that exists, we don't have any Federal Child Welfare Act. So there's a provision under The Indian Act, whereby the general laws of the province would apply on the Reserve and this is sort of a qu asi ju risdiction that seems to con­ fuse the Band members or Reserve people and also some of the people that are providing the service; namely, the Provincial Government that has ju risdic­ tion for that responsibility and so the child welfare committees were able to resolve some of the issues.

Like Mr. Evans said, establishing the Tripartite Agreement between the Federal and the Provincial and also the Tribal Councils, I think, is the proper way to deal with it because it gives some responsibility to the parents and also to the elected representatives on the Reserves. MS S. SHACK: Thank you for clarifying that point. Let me repeat that we favour the idea of the child welfare committee; we're not opposed to the idea of the com­ mittee, we would just like to have some of its relation-

Monday, 28 June, 1982 sh ips to other organizations more clearly spelled out. MR. CHAIRMAN: Are there any further questions for Ms Shack? Mr. Evans. HON. L. EVANS: Yes, well I just wanted to make a comment that we welcome all the comments . MS S. SHACK: I'm sorry, I can't hear. HON. L. EVANS: We welcome all your comments, Ms Shack and I just might point out -I know we're only to ask questions and I guess I could ask it thi s way.

Are you aware that this is meant to be, essentially, minor administrative changes in the Act and that there is a more substantive change proposed, either for next year, next Session, or possible the Session after, after the conclusion of a major review of this legislation?

This is a minor series of essentially administrative and technical changes that was seen fit to proceed with at this time; some of which are designed to make these child caring agencies more effective, and another to actually make it easier to deal with the problems of payments ordered under Sections 64 and 65, where there was unnecessary burden being caused to the child caring agency, in regard to payments ordered. Generally they're of a technical nature, but were you aware that we were going to bring in major changes next year. MS S.

SHACK: Yes, I understand that the whole Act is coming up for discussion and that other matters will be dealt with. This is why I didn't think that it was really necessary to refer this back to a committee, though we would have no objection if it were laid over until that larger overhaul, shall I say, took place because there are ambiguities that could be ironed out without too much difficulty, we think . MR. CHAIRMAN: Any further questions? Seeing none, thank you Ms Shack. MS S. SHACK: Thank you. BILL NO. 53 -

AN ACT TO AMEND THE BUILDERS' LIENS ACT MR. CHAIRMAN: From this afternoon, we still have one presentation on Bill No. 53 left over, Mr. J.T. McJannet. There is an error; he's not appearing. Are there any other people present who would like to make presentations on any of the bills considered by this Committee? Seeing none then, presentations are over and we will proceed clause by clause. Mr. Penner. HON. R. PENNER: Mr. Chairperson, on a point of order. I wonder, with the indulgence of the Commit­ tee, whether we could take The Bui lders' Liens Act, Bill No. 53, fi rst.

As announced in the House, I have here this evening Mr. David Newman who was one of the original draftspersons on the Act and has played a significant role with the bill. If technical qu estions arise, he would be in a better position in some instan­ ces - which really is a euphemism for all instances- 119 dealing with them than I would. MR. CHAIRMAN: Is it generally agreed then, we'll do Bill No. 53 first? (Agreed) Bill No. 53. How shall we proceed, clause-by­ clause, page-by-page? HON. R. PENNER: Page-by-page. MR. CHAIRMAN: Page-by-page, volu me-by-volume, bill-by-bill. Page 1- pass. Order please.

There is a considerable amount of side conversation and the Hansard reporter is having trouble recording. Page 1- pass; Page 1 (French version) - Mr. Filmon. MR. G. FILMON: I wonder if, ju st so that we're aware of anything that might be happening coming up in the bill, if firstly I could ask if Mr. Newman has seen the letter presented by the Winnipeg Construction Asso­ ciation and if he has any comments or clarification to make on the specific points which they raised. Then, we could consider the rest of it clause-by-clause. MR. CHAIRMAN: Mr. Newman. MR. D. NEWMAN: Mr.

Chairman, I have perused that letter from the Winnipeg Construction Association dated June 28, 1982, and I also received a telephone call from Gervin Greasley who is the full-time, I guess, Executive Secretary of that organization. With respect to the change they suggest from 17 days to 7 days on Page 2 of that submission, the Legislative Counsel has prepared an amendment to the proposed Bill 53 to accommodate that request to reduce 17 days to 7 days.

The rationale for that 17 days was that it was required, according to some of the government archi­ tects, in order to have sufficient time to determine whether payment was justified, number 1; number 2, the standard form of Canadian Construction Associa­ tion contract had 10 plus 7 days as the normal period for payment. However, as I understand it, in order to accommo­ date the difficulties the construction industry is now experiencing with cash flow, it's a matter of determin­ ing should the pressure be on the architects to certify qu ickly or should contractors be put to a delay.

The decision has been made tentatively to give the con­ tractors the opportunity to get earlier payment so the reduction to 7 days is proposed by way of an amend­ ment to the bill. With respect to the comments of the Winnipeg Con­ struction Association in connection with su bsection 27(2) and 27(2.1 ), the problem with the old Act, which they suggest had some advantages over this one, was that the

interpretation most commonly given to that su bsection was that if liens had been registered then there could be no payout. Because that was the inter­ pretation that was commonly given, the very evil that he felt would be cured by preserving the old concept, would be perpetuated. So what has been suggested to him, and he now agrees with, is that the su bsections which are in the new bill deal quite clearly with the problems that existed previous! and when explained to him, he agreed with that. lt was also pointed out to him that,

Monday, 28 June, 1982 under su bsection 56(3), there was a procedure avail­ able to get payment out of court if someone was in need and justifiably entitled to payment. When that was pointed out, again, he felt on behalf of the organi­ zation that they would be satisfied with no amend­ ments to 27(2) as drafted. With respect to the two minor points on page 4 of the letter dealing with sections 47 and 48, those are minor drafting points and I would leave that up to the opinion of Mr. Tall in as to whether or not he feels that those would improve the legislation. MR. G. FILMON: Mr. Chairman, I just wonder if Mr. Newman could address his concern about

section 55(2) in which the word "contract" refers specifically to the document between the owner-agent and con­ tractor and he thought, that is Mr. Greasely thought, would eliminate liens filed by subcontractors. Is that a correct

interpretation on his part and, if so, should it be corrected? MR. D. NEWMAN: Section? MR. G. FILMON: it's the final two paragraphs on Page 3. MR. D. NEWMAN: I th ink a careful reading of that subsection provides that the amount that would be paid in would not exceed the total amount of the claims for liens. So the result is that the maximum amount that would be paid in would be the amount claimed in any one of the liens, whether filed by sub­ contractors or the contractor. As a result, the maxi­ mum amount that could be paid in would be the amount of the registered liens.

So it was intended to use the word "contract" there and the concern that he expressed in his letter in the second-last paragraph, I think, and he agreed with me. lt was taken care of by the last two and one-half lines in Subsection 55(2). MR. CHAIRMAN: Mr. Filmon. MR. G. FILMON: Thank you. Mr. Chairman. I think then we are prepared to proceed page-by-page, except where there are amendments being proposed. MR. CHAIRMAN: Pages 2 to 6 (English and French versions) were each read and passed. Page 7, clause­ by-clause, Clause 12 -pass;

Section 25(1 )-pass. HON. A. PENNER: 25(2), there's an amendment. I believe. MR. CHAIRMAN: 25(2)(a) - Mr. Corrin. MR. B. CORRIN: I move. THAT the proposed Clause 25(2)(

a) of The Bui lders' Liens Act. as set out in

Section 12 of Bill 53, be amended by striking out the word and figures "Sec­ tio:l 46" in the 2nd line thereof and substituting there­ for the words and figures "Subsection (5), (6) or(7)." MR. CHAIRMAN: Any discussion on the proposed motion of Mr. Corrin? Mr. Tallin. 120 MR. R. TALLIN: Could we be ready to make similar amendments to the French version that would be con­ sistent with the English motions? We haven't the French version of the motions. HON. R. PENNER: This was a drafting error. Mr. Filmon. MR. G. FILMON: Thank you. MR. CHAIRMAN: The proposed motion of Mr.

Corrin-pass; 25(2)(a). as amended-pass; 25(2) (b)- pass; 25(2)(c)-pass. Page 7, as amended, and Page 8, (English and French versions) were each read and passed. Page 9, top of the page, (d)-pass. 25(5) - Mr. Corrin. MR. B. CORRIN: I move, THAT the proposed Subsection 25(5) of The Bui lders' Liens Act as set in

Section 12 of Bill 53 be amended by striking out the figures "17 " in the 4th line thereof and substituting therefor the figure "7." Mr. Newman's already given a full explanation of this. MR. CHAIRMAN: Any discussion on the proposed motion of Mr. Corrin? Pass. 25(5), as amended-pass. 25(6) - Mr. Corrin. MR. B. CORRIN: I move. THAT the proposed Sub

section 25(6) of The Bui lders' Liens Act as set out in

Section 12 of Bill 53 be amended by striking out the figures "17 " in the 4th line thereof and substituting therefor the figure "7." MR. CHAIRMAN: Dis cussio n- pass; 25( 6), as amended-pass. 25(7) - Mr. Corrin. MR. B. CORRIN: I move, THAT the proposed Su bsection 25(7) of The Bui lders' Liens Act as set out in

Section 12 of Bill 53 be amended by striking out the figures "1 7" in the 3rd line thereof and substituting therefor the figure "7." MR. CHAIRMAN: Proposed amendment-pass; 25(7), as amended- pass; Page 9, as amended-pass; French version, Page 9-pass; Pages 10 to 12 (English and French versions) were each read and passed. Page 13 (English version), balance of Clause 45(2). top of Page 13-pass; Clause 18-pass. Clause 19- Mr. Corrin. MR. B. CORRIN: I move. THAT the proposed Su bsection 46(1) of The Bui lders' Liens Act as set out in

Section 19o f Bill 53 be amended by striking out the figures "17 " in the 4th line thereof and substituting therefor the figure "7." MR. CHAIRMAN: Discussion, proposed amendment? Mr. Penner. HON. R. PENNER: Wait. Yes, I'm sorry, why don't we do the amendments sequentially? MR. CHAIRMAN: Which one do you want to do first?

Section 19?

Monday, 28 June, 1982 MR. B. CORRIN: I move, THAT

Section 19o f the English version of Bill 53 be amended by adding thereto, immediately after the figures "46" in the 1st line thereof, the word and fig­ ures "47 and 48." MR. CHAIRMAN: The proposed motion passed, as amended,

Section 19, now 46. 46(1)- Mr. Corrin. MR. B. CORRIN: I move, THAT the proposed Su bsection 46(1) of The Build ers' Liens Act as set out in

Section 19 of Bill 53 be amended by striking out the figures "1 7'' in the 4th line thereof and substituting therefor the figure "7." MR. CHAIRMAN: Dis cussion on the proposed motion-pass; 46( 1). as amended-pass. 46(2) - Mr. Corrin. MR. B. CORRIN: I move, THAT the proposed Su bsection 46(2) of The Bui lders' Liens Act as set out in

Section 19 of Bill 53 be amended by striking out the figures "17 " in the 4th line th ereof and substituting therefor the figure "7." MR. CHAIRMAN: Proposed amendment-pass; 46(2), as amended- pass; Clause 46(3). bottom of Page 13- pass; French version, Page 13, as amended-pass. Page 14 (English and French version)-pass: Page 15, Clause 47. MR. R. TALLIN: Mr. Green has suggested two improvements and I agree with both of them.

Section 47, which the reference in the 2nd line should be to su b-contract rather than su b-contractor: and in the 4th line of 48 the word "mortgagee" should be "encumbrancer." Could we treat those as corrections without a formal amendment? MR. CHAIRMAN: Clause 47, as semi-amended, I guess. Mr. Filmon. MR. G. FILMON: Encumbrancer of encumbrancee? MR. R. TALLIN: No, it's the encumbrancer. MR. G. FILMON: The encumbrancer. MR. CHAIRMAN: 47, as corrected; 48, as corrected; balance of Page 15-pass. Does that mean a change in the French version? Page 15 , as corrected (French version) -pass. Pages 16 to 19 (English and French versions) were each read and passed.

Preamble (Eng­ lish and French versions)-pass: Title (English and French versions)-pass. Bill be reported in French as well. That completes Bill No. 53. Shall we revert to the standard order? Mr. Penner. HON. R. PENNER: There are two Min isters here who are not members of the committee or at least one of them is not and perhaps we might extend them the courtesy of doing Mr. Evans' Bill No. 51 and Mrs. Hemphill's Bill No. 43 and then the rest in order. 121 BILL NO. 43 -

AN ACT TO AMEND THE PUBLIC SCHOOLS ACT MR. CHAIRMAN: Bill 43 first, was it? How shall we proceed, Page-by-Page or Clause-b y-C lause? Page-by-Page. According to my records, we have already passed Page 1. We started consideration of this bill a few days ago and we passed the first page and then decided to wait for the Min ister. Page 2 (English version)- pass; Page 2 (French version). Mrs. Oleson. MRS. C. OLESON: On Page 2, could I ask the Minister if the accumulated sick leave is portable from one school division to another? MR. CHAIRMAN: Mrs. Hem ph ill. HON. M. HEMPHILL: No, it is not. MRS. C.

OLESON: lt is not? HON. M. HEMPHILL: No. MRS. C. OLESON: Thank you. MR. CHAIRMAN: Page 2 (French version) and Pages 3and 4 (English and French versions) were each read and passed;

Preamble (English and French versions)­ pass: Title (English and French versions)- pass: Bill be reported. That completes Bill No. 43. Bill-by-bill. Batch-by­ batch. The next, Bill No. 51 . What is the will of the committee? HON. R. PENNER: The Minister isn't here right now. He's coming. Go on to the next one. BILL 31 - THE CHILD CUSTODY ENFORCEMENT ACT MR. CHAIRMAN: Bill No. 31. Could we keep down the noise and we'll proceed in an orderly fashion? Page-by-Page on Bill No. 31.

Pages 1 to 6 (English and French Versions) were each read and passed; Page 7, Clause 12 (1) (English version)-pass; Clause 12(2)-pass: Clause 13 (1 ). Mr. Corrin. MR. B.

CORRIN: THAT the proposed subsection 13 (1) of The Chil d Custody Enforcement Act be amended by striking out the last four lines thereof and substituting therefor the following: "In the records in the custody of the person or body within the knowledge of an individual and the person, body or individual shall give the court such particulars and the court may then give the particulars to such person or persons as the court considers appropriate." MR. CHAIRMAN: Mr. Filmon. MR. G. FILMON: Is this the amendment proposed by Mr. Riley? HON. R. PENNER: Yes.

Monday, 28 June, 1982 MR. CHAIRMAN: Any further discussion? Proposed amendment-pass; Clause 13 (1) as amended-pass; Clause 13(2)-pass; 13(3)-pass: remainder of Page 7 (English and French versions) as amended-pass; Page 8, Clause 14 (1) (English version). Mr. Corrin. MR. B. CORRIN: THAT the proposed subsection 14(1) of the Act be amended by striking out the words "in addition to its powers in respect of contempt" in the 1st line thereof and that the su bsection be further amended by striking out the word "willful" where it appears in the second line thereof. MR. CHAIRMAN: Mr. Penner. HON. A.

PENNER: Again, this responds to sugges­ tions made by Mr. Ri ley in his brief on behalf of MARL. MR. CHAIRMAN: Mr. Filmon. MR. G. FILMON: I was just clarifying that. That's fine. Thank you, Mr. Chairman. MR. CHAIRMAN: Dis cussion on the proposed amendment? Proposed amendment-pass; 14(1) as amended-pass. Are there any further amendments on this page? Balance of Page 8 (English and French versions) as amended- pass; Page 9 (English and French versions)-pass;

Preamble-pass;

Preamble (English and French versions)-pass; Title (English and French versions)-pass; Bill be reported. What about all these things at the back? HON. A. PENNER: Bill No. 51 , Mr. Chairman. MR. CHAIRMAN: Mr. Driedger. MR. A. DRIEDGER: Mr. Chairman, could we maybe deal with another bill and leave 51 just for a little while , please? MR. CHAIRMAN: Are you waiting for Mr. Sherman. MR. A. DRIEDGER: Yes, he's on his way. BILL NO. 51 -

AN ACT TO AMEND THE CHILD WELFARE ACT MR. CHAIRMAN: All right. Bill No. 31 is finished. Bill No. 51. How shall we proceed? Page-by-Page? Order please. Are there any proposed amendments in this bill? Page 5, Mr. Corrin says. Page 1 (English version)-pass. Mr. Sherman. MR. L. SHERMAN: Mr. Chairman, in Clause 1, I wanted to ask the Min ister if he could explain the reason for the change in the definition of "child caring agency" to include a "child welfare committee" appointed under

Section 7? MR. CHAIRMAN: Mr. Evans. HON. L. EVANS: Let me offer a brief explanation. The words '!a child welfare committee" appointed under 122

Section 7 are added to the definition of a child caring agency in order to enable the Committee to have all the rights and dutie s of a child caring agency under The Child Welfare Act. Without this particular change, a child welfare committee cannot, or could not appre­ her.d children because according to

Section 17 of the Act, only an officer of a child caring agency or a Family Court, or a peace officer may apprehend the children in Manitoba. And as I explained, Mr. Chair­ man, in the Legislature this is meant to give the power, the strength to the various Indian organizations, which are now getting the responsibi lity, obtaining the responsibil ity under The Tripartite Agreement and, of course, it is applicable also to the Dakota Oji bway Tribal Council and their child and family car­ ing services. MR. L. SHERMAN: Mr.

Chairman, well I would ask the Min ister whether the change is designed specifically to accommodate the Dakota Oj ibway Child and Fam­ ily Services Agency and the Churchill Health Centre? Can I put that que stion to the Min ister? He has menti­ oned the tripartite arrangement, but ... HON. L. EVANS: Yes, and the South-East Tribal Council which jus t recently signed an agreement with us and indeed, other Tribal Councils in the future. Hopefully there will be several others in the near future. MR. L. SHERMAN: Mr.

Chairman, I'd ask the Min ister why it's necessary to change the definition to accom­ modate child welfare committees of that kind? it's my understanding that under

Section 7 of the Act, as it's presently written, the rights and powers that are vested in child care agencies can be vested in a child and family service, or a child welfare committee on the authority of the director, provided the particular committee has to meet with the supervisory requir e­ ments and the authority of the director. Is that not already a part of the existing legislation and would that not accommodate the particular agencies and centres and services that the Min ister is concerned with? HON. L.

EVANS: Excuse me, I didn't hear the - there was some interruption here - I didn't hear the specific suggestion. MR. L. SHERMAN: I'm wondering why the definition has to be changed, or should be changed at this time, when the current Statute, the current act, already pro­ vides in the existing

Section 7; which we don't deal with until the next page of this Bill, for vesting the rights and authorities of a child caring agency, in a child welfare committee, on the approval of the director? HON. L. EVANS: Well, the approval of the director is under the authority of the Min ister, but from our expe­ rience, there was a concern that the Dakota Oji bway Tribal Council did not have full legal authority to carry out the intent of the agreement and that is, for it to have and rights and powers of a child caring agency such as the Children's Aid Society of Western Mani­ toba, or Chil dren's Aid Society of Central, Eastern or

Monday, 28 June, 1982 Winnipeg or. indeed, the Department of Community Services and Corrections. As the member knows, the Department of Commun­ ity Services and Corrections indeed, is the child car­ ing agency for the vast part of the provi nce- the entire northern part of the province including Dauphin and the lnterlake regions. MR. L. SHERMAN: But doesn't the existing

section in the Bill provide that except where there is a Children's Aid Society in existence, a child welfare committee can have vested to it, the rights and authorities of an agency which would therefore give them the right to apprehend children in circumstances where appre­ hension was warranted. Doesn't that already exist under

Section 7 of the existing Statute and that being the case, why is it necessary to broaden the definition? HON. L. EVANS: We've obtained legal advice and also from experience we are told there could be a weakness in that delegation of authority. There was a case, I believe, in Portage la Prairie, which could have resulted- I believe it hasn't- but could have resulted in this deficiency being experienced. So we want to ensure that the various Tribal Councils will have the full rights and privileges and responsibil ities of the Children's Aid Societies that we experience in the Province of Manitoba. MR. L.

SHERMAN: But could not that be achieved, Mr. Chairman, by specifying then, that those rights to which the Min ister refers, be vested in Tribal Councils where circumstances warrant without opening up the definition as broadly as it is opened up here? The reason I raise the qu estion, Mr. Chairman, is because with the opening of the definition to the broad parameters that are provided here linked with

Section 7, and

Section 1 has to be linked with

Section 7 of the existing bill, or

Section 4 of this new bill; there seems to me to be a very broad door opened, which could lead to considerable difficulty and conflict in appre­ hension situations in child protection situations, between groups that were designated by the Minis ter and existing agencies like the Children's Aid Society of Winnipeg, or the Children's Aid Society in any of the four regions in Manitoba in which it exists and operates. MR. CHAIRMAN: Mr. Corrin. MR. B. CORRIN: Just dealing with the general con­ cern that's raised with respect to existing

Section 7; existing

Section 7 implies upon reading it, that the authority to delegate the power of a child caring agency to a local child welfare committee is desig­ nated to the director, subject, of course, to the appro­ val of the Min ister responsible for this particular Act. I think the problem arose with respect to the direc­ tor essentially being put in a position where he was delegating authority that was not accurately or ade­ qu ately reposed in him by virtue of the legislation itself. So as I understand the Portage case, the court held that this particular

section was insufficient, was deficient with respect to the directors being able to give full authority to a local child welfare committee. Therefore, we deem it necessary, as I understand it, to 123 make the amendment which specifies that a child wel­ fare committee appointed under

Section 7 can, indeed, be constituted a child caring agency. That may be slightly vague but as I understand it, that's the sub­ stance of the case and the the effect of the decision, so that deals with the technical aspect of what you've raised and doesn't go to the other more conceptual aspect. MR. L. SHERMAN: Well, Mr. Chairman, I appreciate Mr. Corrin's explanation and I understand what is required here under the legislation on the basis of the difficulty that was encountered in the Portage case and the difficulty the Min ister says is encountered in other cases.

My question, basically, is why could that difficulty not be addressed by amending the legisla­ tion to specify that when the director or the Mi nister- ! have no objection to its being vested. specifically in the Min ister, the Lieut enant-Governor-in-Council - when the director or the Lieut enant-Governor-in­ Council designates a group as a child welfare commit­ tee that that provides that committee with the rights and authority that is vested in a child caring agency without opening up the definition of child caring agency to include any child welfare committee that is appointed under

Section 7 which, in effect, means any child welfare committee that the Mini ster wishes to appoint. HON. L. EVANS: I'm a little confused by what Mr. Sherman is commenting upon because

Section 7 that he refers to is in the existing Act, which discusses the fact that a director may establish a child welfare com­ mittee by the appointment of local citizens known to be interested in child welfare, to be known as a child welfare committee of such-and-such and the director, su bject to the approval of the Min ister may grant to the committee such powers and impose such duties for the welfare and protection of children as he sees proper, etc., etc., etc. So I think you're addressing something that already exists, Mr. Chairman. MR. CHAIRMAN: Mr. Corrin. MR. B.

CORRIN: I jus t wanted to embellish the point I was trying to make before, if it wasn't clear. The direc­ tor does not have the power under this legislation to apprehend children, order the apprehension of child­ ren: it's not specific. So, as I understand it, it's the intention of the amendment to make it very clear that a local child welfare committee is designated a child caring agency because those bodies do have the power to do that under the autho rity of the legislation. MR. L. SHERMAN: Mr. Chairman, just to go back to the Minis ter's point, that was precisely my point to begin with.

My first que stion was, since it's already in

Section 7 why do we need this amendment? When the Min ister qu otes from

Section 7 of the existing Act he leaves out one very important and crucial phrase and that is the lead phrase in the

section which says "where there is no Children's Aid Society" - I don't have the Act in front of me but it says: "where there is no Children's Aid Society the director may do such­ and-such and such-and-such," and that's precisely my point. The definition as it is broadened under the

Monday, 28 June, 1982 amendment in front of us opens it up for the Mini ster­ and I don't care whether it's the Min ister or the direc­ tor- to appoint a child welfare committee anywhere to compete with Children's Aid Societies. HON. L. EVANS: Mr. Chairman, before Mr.

Sherman got here we were discussing this with one of the dele­ gates and we pointed out to the delegate that the Children's Aid Societies in the province, including the Children's Aid Society of Western Manitoba where the Dakota Oji bway Tribe functions, is knowledgeable and is very co-operative and very willing to turn over th is responsibility as it relates to the functions of that Indian Tribal Council on those specific Reserves named in the agreement and similarly in agreements that we're signing and have signed just recently with the Sout heastern Tribal Council.

The Children's Aid Societies have given us their full co-operation. it's not a matter of competition, it's a matter of co-operation. MR. B. CORRIN: I just wanted to give Mr. Sherman an opportunity to peruse the

section to which I referred before, it's

Section 17 (2), and talks about apprehen­ sion of children, it says "an officer of a child caring agency, or of a Family Court or of a peace officer on reasonable and probable grounds believes that a child is in need of protection, may apprehend the child without a warrant and take the child to a place of safety." That is the rationale for the amendment; you have to be able to designate the committee and agency in order to do this and the former legislation, or the legislation as it is now written, essentially dele­ gates the responsibil ity to the director when the direc­ tor is not in a position to further delegate such a responsibil ity. it's only a child caring agency that has that authority. lt really is, in that respect, a fairly tech­ nical amendment but you have other points which you raise which are more philosophical in nature.

MR. L. SHERMAN: Thank you, Mr . Chairman, return­ ing again to the Min ister's last point and I acknowl­ edge and appreciate Mr. Corrin's explanation again. The Mi nister placed some emphasis on the Tribal Cou ncil and/or the Indian Reserve vis-a-vis a Child­ ren's Aid Society, such as the Children's Aid Society . of WestMan and advised the Committee that the CAS of WestMan is perfectly happy to have a Tribal Coun­ cil designated as a child caring agency on a Reserve and I don't think anybody around th is table would argue with that, Mr. Chairman, certainly I wouldn't.

But what we're talking about in the case of many Children's Aid Societies, particularly the CAS of Win­ nipeg, is not a Reserve but a city and if the Min ister wants to confine it to Reserves that's one thing and, in fact, I would have some suggestions with respect to

Section 4 of the new Act which is

Section 7 of the old Act when we get to it.

But before getting there I wanted to ask him about the rationale for the widening of this definition, because under the definition it doesn't restrict it to making arrangements, for example, where our Native population is concerned on Reserves. lt permits the Min ister to designate a child welfare committee any­ where, anytime among any group of people, five of us around this table if we could persuade the Min ister that we were concerned about the welfare of children- 124 not this Mi nister because he couldn't be that easily persuaded, but some Minis ter - we could be desig­ nated a child welfare committee and be in competition with the Children's Aid Society for the apprehension of children.

I don't think that's either in the best inter­ ests of the children or of society or certainly of the Children's Aid Society. HON. L. EVANS: Mr. Sherman expresses certain concerns, concerns that I don't have. I think that in the province we are living in a very fluid situation at the present time. I don't see any problem in respect of this definition as we have it. He may wish to read into this certain conclusions or ramifications which may or may not be valid and I think he's taking more of a philosophical position in it.

I look upon it as essen­ tially a technical change which is necessary because of the explanation we've given you earlier. I think that there's no question that sometime in the futu re. there could be overlapping, at the moment you might say there's overlapping in the sense that the Department of Commu nity Services is responsible for delivering programs for children's welfare in the bulk of the prov­ ince in Northern Manitoba, the bulk of the geography of the province at least. You have designated in Chur­ chill a Churchill Health Centre.

At some time in the future, it may be in the interests of children of this province to have other committees designated, not necessarily to make the organization or the system unduly complicated, but to be more efficient and to be more effective and to be more meaningful to the peo­ ple involved. MR. CHAIRMAN: Mr. Sherman. MR. L. SHERMAN: Mr. Chairman, I can accept the technical nature of the amendment in

Section 1, but if it's tied to

Section 4, which it has to be, in order words, tied to

Section 7 of the existing Act, then I think this becomes a very important question in terms of the phi losophy and direction of the Min ister where the child welfare system is concerned. There are three reviews going on right now of The Child Welfare Act. In addition to that, the Kimelman Task Force is still studying the whole que stion of Native adoptions; the Mi nister is awaiting recommen­ dations from the Kimelman Task Force on that rather controversial subject.

I suggest, at the very least, that he is prejudging the conclusions of the Kimelman Task Force by proceeding with an amendment to the Act of this ki nd right now. That is the kindest thing I can say about it. At the most, he is, wittingly or unwit­ tingly, permitting a threat to the Children's Aid Socie­ ties of this province. He mentions the Churchill Health Centre -there is no Children's Aid Society in NorMan.

So the problem that he's got could be very easily accommodated by dealing with the designation of groups like the Dakota Oji bway Child and Family Ser­ vices Agency, the Churchill Health Centre, the Indian Bands and Councils that come under the aegis of The TripartititeAgreement, Indian Reserves, etc., etc. This problem could be addressed that way. He chooses to address it by opening the door to any child welfare committee to go out on the street tonight and apprehend children. That's what I have difficulty with.

Monday, 28 June, 1982 HON. L. EVANS: Mr. Chairman, ulti mately it is the government and the Mini ster of the day who, I sup­ pose, has the power to designate any authority to a Children's Aid Society or, indeed, any other organiza­ tion. I know some of them were established a long time ago, but ulti mately the final responsibil ity lies in the department, in the Min istry, in the Department of Child Welfare, in that division of that department. The government takes the final responsibility and has therefore, the authority to affect the operations of Childr en's Aid Societies or indP-ed any other organization.

So the designating of authority to any committee is, in a way, no different than designating autho rity or allowing authority to be designated to a Children's Aid Society. MR. L. SHERMAN: But why, Mr. Chairman, wou ld the Min ister take that authority while th ree reviews of The Child Welfare Act are under way and while the Kimel­ man Task Force is still at work?

If those three reviews come in and the Kimelman Task Force comes in th ree months from now or six months from now with a number of pretty firm recommendations, there is no qu estion in my mind that, at the next Session of the Legislature, we'll be looking at a proposed new child welfare Act, which doesn't bother me. Why are we tampering with the existing authority of Children's Aid Societies at this point in time, in this Session, when those reviews and that Task Force are still at work? HON. L. EVANS: I think we have explained the need for this change. I'm not sure whether I have the same concerns that Mr.

Sherman has. I think we are trying to accomplish something here and I don't read any great difficulty into this amendment. MR. CHAIRMAN: Mr. Corrin. MR. B. CORRIN: I think, getting down to the nitty­ gritty, Mr. Chairman, throu gh you to Mr. Sherman, we're really quib bling to some extent over "frivolous detail." As the Min ister has tried to explain, ultimately the manner and the conduct in which apprehension takes place is within his responsibility. The Legisla­ ture has the right to delegate the responsibility to apprehend the children as it is set out in this legisla­ tion, to child caring agencies.

There is provision in this piece of legislation to incorporate child caring agencies and there are several of those agencies in existence in the province today. The Min ister has explained that this particular mechanism that has been proposed is being put in place in order to expe­ dite the provisions of the Tripartite Agreement which has been negotiated between several Indian Bands, the provincial and the federal levels of government.

An alternative, I suppose, under the legislation would be to ask 12 people who are associated with these Bands to incorporate a child caring agency and the same purpose could be affected. lt is really a question ultimately of who the government trusts in the sense that, in all cases, there's a delegation of authority and that authority must be exercised pursu­ ant to the provisions and terms of the legislation. So I appreciate the concern; I think probably most members appreciate the concern.

But I don't think 125 that it is an attempt necessarily to undercut the exist­ ing authority of the Children's Aid Society, but rather simply an effort to implement the provisions of a Tri­ partite Agreement which was negotiated by the former government and which, I believe, was negotiated sub­ ject to the approval of the Children's Aid Societies that are in existence in the province. I don't think that there have been any concerns raised by them, certainly not before Committee. Those agreements have been known and their contents have been known for some time.

So I think that, usefu lly, we might consider passage of these amendments as opposed to putting the affected people who have entered into the Tripartite Agreement to the trouble of having to go through the business of incorporating an agency pursuant to the child welfare legislation. MR. L. SHERMAN: Mr. Chairman, I don't want to delay the Committee's work on the bill, but I can't accept the argument that's advanced for the change in the legislation because the fundamental change is the removal of the term "where there is no Children's Aid Society." That has been removed. The objectives that Mr.

Corrin articulates and that the Min ister has enun­ ciated can be achieved by strengthening the legisla­ tion with an amendment, but not this amendment. This amendment linked to the one that comes up in

Section 4 opens the door in a way that I've suggested which seems to me to be one that is going to create grave difficulties for Children's Aid Societies. How­ ever, I will make my suggestion as to how that should be handled when we come to

Section 4, Mr. Chairman, having registered my difficulties with Clause 1. MR. CHAIRMAN: Clause 1- pass. Mr. Sherman, if you have extensive comments to make, we could go clause-by-clause rather than page-by-page. MR. L. SHERMAN: Thank you, Mr. Chairman, I really have no extensive comments to make other than on the ones I made on Page 1 and the ones that I'll be making on Page 2. After that, the amendments are all ess entially hous eke eping poi nts and they'r e acceptable. MR. CHAIRMAN: The remainder of Page 1- pass; Clause 3-pass. Clause 4- Mr. Sherman. MR. L. SHERMAN: Thank you, Mr. Speaker, Clause 4 is the clause that deals with existing

Section 7 or Clause 7 of the Act as it presently stands. As I've indicated, Mr. Chairman, it specifies that such and such an authority can be assigned or delegated or vested where there is no Children's Aid Society and that has been removed from the proposed new legisla­ tion which simply states that the Lieutenant-Governor­ in-Council may establish, etc., etc. and then the Lieutenant-Governor-in-Council shall, by regulation, establish and then finally that a child welfare commit­ tee is su bject to the supervision and authority of the Director.

I come back to the point that I was trying to make before, the difficulties that the Mi nister seems to feel he has where the Dakota Oji bway Council is con-

Monday, 28 June, 1982 cerned and where the Churchill Health Centre is con­ cerned and that he antici pates under the Tripartite Agreement can be addressed by dealing with this sec­ tion and simply stipulating that where there is no Children's Aid Society or where the area is an Indian Reserve the Lie utenant-Governor-in-Council may establish a child welfare committee, etc., etc.

That would give him the authority to designate the Dakota Oji bway Tribal Council; they could have all the autho rity they wanted to apprehend children, same with the Churchill Health Centre, same with any Band or Tribal Council under the Tripartite Agree­ ment because they'd be operating on Indian Reserves. lt would preserve the integrity of the Children's Aid Society of Winnip eg and the Chil dren's Aid Society in other urban centres who are the child caring agencies that have the apprehension rights at the present time. MR. CHAIRMAN: Mr. Evans. HON. L. EVANS: Mr.

Chairman, I want to advise the honour able member that the wording of existing Sec­ tion 7, which the Member for Fort Garry refers to with his initial reference to where there is no Children's Aid Society, is unworkable and from a legal point of view it's deficient, because what we're doing in effect when you set up the Dakota Ojib way Family and Child Ser­ vice Agency, you're in effect working in an area of a province where you have a Children's Aid Society ­ although admittedly we're talking about delegating that to the Reserve.

But, on the other hand, prior to that time the Children's Aid Society did from time to time function in problems that arose on a Reserve. So we're told be legal counsel that what we have here is vastly superior to what you have at the present time, that thi s definition from a legal, technical interpreta­ tion point of view is inadequate so we're improving the legal description. lt makes it more workable. MR. CHAIRMAN: Mr. Sherman. MR. L. SHERMAN: Mr. Chairman, with respect, the present

section or clause is only unworkable after the opening phrase. I wou ld agree with the Mini ster that after the phrase "Where there is no Children's Aid Society" from then on,

Section 7 of the existing legis­ lation is ambiguous and probably as a consequence unworkable. That is the reason why he's proposing that it be replaced by

Section 4 of the bill in front of us which provides for a new

Section 7(1)( 2) (3), but I don't endorse the removal of the qua lifying phrase which says "where there is no Children's Aid Society." The Min ister says that some difficulty would arise by virtue of the fact that some of these Tribal Councils operate in areas where there are Children's Aid Socie­ ties and I don't disagree with that, that's why the sug­ gestion that I intend to make, or that we intend to make, accommodates that difficulty too.

What we suggest is that clause shoul d begin with the words "Where there is no Children's Aid Society, or where the area is an Indian Reserve." That then accommodates the Tribal Councils in Westman, Eastman and Central where there are Children's Aid Societies. lt wou ld give them those rights and privi­ leges on the Reserves, but it wouldn't interefere with the right of the Children's Aid Society operating in 126 urban centres. HON. L.

EVANS: As I have explained earlier - the Member for Fort Garry does know, I'm sur e but I'll remind him - that the vast bulk of the geography of the province is covered by the department not by the Children's Aid Society and furthermore ... MR. L. SHERMAN: They're covered, they're covered in the definition. You've already got them under Regional Office of department HON. L. EVANS: Mr.

Chairman, we believe that this is a more workable definition and this is the legal advice we've got, so we're suggesting that there's an improvement here. lt's indeed broad, but nevertheless the breadth of it makes it more efficient MR. L. SHERMAN: Mr. Chairman, the legality is not in qu estion. lt's perfectly legal for the Min ister to dis­ band the Children's Aid Society if he wants to bring in legislation to do it I'm not challenging the legality, I'm asking him what his phi losophy and his intent is and why would he take a step that is un necessary?

He could meet his difficulties with the amendments as they are laid out before us and by adding that initial phrase that I've referred to, protect the Chi ldren's Aid Societies. Why would he do otherwise when no con­ clusions have been reached yet with respect to any of the child welfare studies that are under way, not even those having to do with the Native adoption issue?

What will happen if a particular group - I'm not referring exclusively to the Native community, they have the same rights that we all have and I'm not challenging that, but so has the Children's Aid Society got rights- from any sector of society were designated a child welfare committee in Winnip eg? What then happens to the status and the authority of the Child­ ren's Aid Society when it comes to apprehension of a child? What would the Min ister say in a dispute over the apprehension of that child between two different agencies? HON. L. EVANS: Mr.

Chairman, the member is posing a hypothetical situation that may never exist I would assume whatever government is responsible, what­ ever Min ister is responsible, that that Mi nister and his staff would want to ensure that the organization of child caring delivery, the programming, was such that you wouldn't have unnecessary duplication and con­ flict and that there wouldn't be unnecessary confu­ sion. Certainly, this is not what you wish to occur.

Of course, I have to remind him, and I'm sure I don't have to but, the Children's Aid Societies are virtually funded by the Province of Manitoba 99.99 percent They have to come to the government every year for budget approval; we have to approve the addition of staff; we have to approve the addition of expenditures that may be increased for whatever special reason. In other words, we take a very, very close look at what the Children's Aid Society is doing at any time during the year, not only at the end of the fiscal year, but also during the year.

We are very, very concerned there­ fore that there not be unnecessary duplication, that there not be an unnecessary expenditure of money and an unnecessary complicated situation that you

Monday, 28 June, 1982 have duplication and confusion. Certainly, that is not in the interests of any government, of any Min ister, who has this responsibility. So what I am suggesting, Mr. Chairman, is that ultimately the authority for child caring programs is vested in the Government of Manitoba with particular vesting in the Min ister and his staff, not in any organi­ zation of Children's Aid Societies, even though some of them have been established a long time ago.

The fact of control and responsibil ity, as outli ned in the Act I believe, makes it qui te clear that the final respon­ sibili ty is with the Government of the Province of Manitoba. MR. L. SHERMAN: Mr. Chairman, the Min ister says that I am suggesting or posing the possibility that some time there might be some disagreement or there might be some dispute. There already is a disagree­ ment; there already is a dispute. That's what the Kimelman Task Force is all about. Why is the Min ister moving in this way before he's even got any answers from the Kimelman Task Force?

I don't know who is right in that dispute and, as far as I know, Judge Kimelman hasn't determined yet who is right. As far as I know, the Mini ster certainly hasn't indicated to the Legislature as to who is right. There is a strong case that can be made on both sides of the argument and, presumably, the expert and compassionate minds that are being asked to evaluate and study this su bject will come up with some humane and equitable answers. The answer may well be that there should not be a fragmentation of child apprehension autho rity in the City of Winnipeg.

In the meantime, the Minis ter is proceeding with an amendment that certainly permits it. One can only assume without being too cynical about it that if he's proceeding with an amendment that is going to permit it, there must be some intention to encourage it. HON. L. EVANS: Mr. Chairman, we do have a prob­ lem right now, today; we've had a problem for many, many months. The legislation is deficient and we've got to do something now to correct the situation.

The point is that these organizations, such as the Dakota Oji bway Child and Family Service as an agency designated by us, do not have the power to apprehend children and that is a major deficiency which live are trying to correct. lt is a problem that's existed for many months and exists right here today, right here this evening. We're trying to correct it. We don't have to wait for a Kimelman Committee.

As we have said earlier, we've got the Ki melman Commit­ tee which is only limited to international placement of Indian children; it's rather restricted, but we have other reviews going on and we've got an internal review. There will be other reviews. Certainly, in a year or two, there will be more elaborate changes and improvements, hopefully, to this legislation, but this specific amendment is caused, initiated and recom­ mended to us by legal authority because we have a problem right now. MR. L. SHERMAN: Mr. Chairman, the Min ister is solv­ ing his problem right now with the Dakota Oj ibway Tribal Council.

He is solving it right now with the amendments that he's brought forward. He is also 127 going beyond the solution of the Dakota Oji bway Tri­ bal Council and enshrining an incipient th reat to the Children's Aid Society. I will take him out of his quandary, Mr. Chairman, by moving an amendment, if I may. That is that I move, seconded by Mrs. Oleson THAT

Section 4 of Bill No. 51,

An Act to amend The Child Welfare Act, be amended by inserting at the beginning of Su bsection 7(1) Child Welfare Commit­ tee, the following words: "Where there is no Child­ ren's Aid Society or where the area is an Indian Reserve." MR. CHAIRMAN: Is there any discussion on the pro­ posed amendment by Mr. Sherman? HON. L. EVANS: Mr.

Chairman, the memt:or pre­ viously indicated his concern and whiit his intent was and that is, presumably, to protect the existence of the Children's Aid Society, even though we have explained to him that the Chi ldren's Aid Societies are funded virtually 100 percent by the taxpayers of Manitoba and that the control of those societies is already vested in the Province of Manitoba, and I would refer him to

Section 4(9) of the existing Act, where it says, "The Lieutenant-Governor-in-Cou ncil, namely the Cabinet, may by order dissolve a society" for various reasons. We can almost dissolve a Children's Aid Society every time the Cabinet meets, so the concern about whether a society exists or it can be protected, I say, you may have a phi losophical concern, but at the moment the Government of Manitoba has the control, through the purse strings and legally. lt can affect the existence or nonexistence of a Children's Aid Society. Knowing, therefore, that the member has indicated this as his concern for this amendment, it is really not necessary. lt won