PROVINCE OF NEWFOUNDLAND AND LABRADOR HOUSE OF ASSEMBLY Volume 1 Number61 4th. Session 34th. General Assembly VERBATIM REPORT MONDAY, MAY 11, 1970 SPEAKER: THE HONOURABLE GEORGE W. CLARKE

Hay 11, 1970, Tape H822 Pa~e 1 The House met at 3 P.M. MR. SPEAKER: Order! UON. J. R. SMALLWOOD (Premier): I know that I speak not only for every member of this House, but I think for every Newfoundlander, for every ~ewfoundlander in Newfoundland, and every Newfoundlander out of Newfound­ land, when I say that no one could be more welcome in the Chamber today than Canada's Minister of Fisheries, the Hon. Jack Davis. And with him, his executive assistant, Mr. Molloy. Mr. Davis is the sixth Canadian to be Minister of Fisheries of Canada since we became Canadians in the last twenty-one years.

I have known all of them personally, and I have admired and respected all of them. But I think I can say that Mr. Davis is not only the most popular Minister of Fisheries that Canada has had in our time, but deservedly so, an enormously interested man. And enormously determined to be a successful Minister of Fisheries and very intelligent and understanding that he could be a popular and successful Minister of Fisheries only by being a great Minister of Fisheries, and we are very proud that he is here with us in our Province today attending the great Conference of the Fisheries Council of Canada.

I understand that there are 600 persons enrolled, registered, that 450 of them have come into the Province from other parts of Canada, and that this is by far the greatest Conference I think in numbers in the life of the Council. That of course is very appropriate that in this great fishing province, I suppose the second greatest fishing province of Canada, the greatest in dollar value and so on I suopose, being British Columbia, the ~anister's old native Province, that here in this Province on the Atlantic Ocean, the greatest conference in the history of the Council should be held.

I want them to know that they are terrihly welcome, that we have enormous respect for them, and pretty well all Newfoundlanders of all political faiths, of all ooinions, are united in at least that one thing, that we all have affection and resoect for 37:35

May 11, 1970 Tape 0822 Page 2 Canada'a great Minister of Fisheries. I want to say a word of welcome to three gentlemen who ·::·are here in the gallery today from Grand Falls. Two of the councillors of the Town Council there. Councillors Brown and Cardwell, and the town engineer Mr. Wilfred Maloney. They are in trying to see what kind of contribution they can make to the welfare of St. John's, and see if they can find some money in Grand Falls to contribute to the upkeep of this Capital City. I am sure they would not be thinking of any reverse of that, directing money from St.

John's to Grand Falls, but if they are, I am sure that the member for that district the minister of Education, will expedite their purpose. I want to say another word of welcome to some thirty-five Grade lX students from HacPherson Junior High with their teacher Mr. Riche. The Minister of Fisheries will find one little difference, at: least one little difference between this House, and about the House which he knows mueh, that: is the House of Commons. And that is that every working day of this House, we have students. So far there are close to 1500 students, about half of them from the City of St.

John's, and half from outside St. John's, who have come here every working day. They sit in the galleries for two or three hours, and they go back to their schools and they report on what they saw and what they heard. And they go back enormously impressed by the dignity of the House, by the absence of temPer, by the statesman like way in which we consider the affairs of the Province. In this way we are buildin~ up throughout our Province, a great res~ect for the people's House, and a deep seed of ambition in many of them· to come back here, but not to the gallery. To come back and sit in these benches.

And we believe we are inspiring in the course of the years, a number of thousands of young men and young women to come in and be the law-makers as well as those who so obe~iently obey the law. Now, normally - the Leader of the Opposition is not in his seat 3735

May 11, 1970 Tape #822 Page 3 at the moment, but normally I end this welcome to the students by issuing a stern challenge to the Leader of the Opposition, and the stern challenge is this, that I dare him to get up and contradict me when I say that these students are the brightest, the best looking, especially the girls, the most intelligent, the best-dressed, the brightest, the smartest-looking students we have in the whole Province. And he never yet has, not even once, has taken up my challenge.

He gets up every day and agrees with me on«,hundred percent fervently, he agrees with me that these are wonderful young people. But I do not know who is going to speak for the Opposition today, but someone I have no doubt - they will not lose the opportunity to agree with me. It is the only chance they get. Every day, every work day, they agree fervently with me, if they never do any other time of the day. I welcome them warmly to the House • MR. HI CKl-tAN : Mr.

Speaker, the hon. the Leader of the Opposition is off on a frolic of his own for a short while this afternoon, and it is my pleasure on behalf of the official Opposition to extend a very warm welcome to the students of MacPherson Junior High. I had a fairly close and long association with that school. It was part of the system of whose board I served as chairman for about eight years, and one of my children is presently a student there, another has gone through, and there are two others to come.

So I dare not miss this opportunity to extend to Macpherson Junior High the very warm wishes of the official Opposition to thepeople's House, and not to go away from here with the impression that this is generally a slow moving, slow functioning group of men. In other years business is done with utmost dispatch. This year we seemed to have bogged down, but we they come back again in three weeks time Hr. Speaker, probably by then, the debate on the Bud~et will have commenced and they will find how much money their schools will receive during the next fiscal year.

I think it is most appropriate that as a member for the district of Burin, which is the largest of the deen 37~7

May 11, 1970 Tape /1822 Page 4 sea fishing areas in this Province, largest in terms of production, that I have heen given the opportunity to extend a very warm welcome indeed to the Federal Minister of Fisheries to this House. And by pure coincidence Mr. Speaker, there arrived on my desk this afternoon a very attractive brochure uublished today by the Burin Town Council, oJ •a the municipality of Burin setting forth the history, included : in that history is reference t~ the fact that one of the earlier reoresentatives from the town of Burin in this hon.

House was the grandfather of the hon. the Minister of Provincial Affairs. And then further in this brochure which will be of great interest I am sure to the Minsiter of Fisheries, a reference is made to the Frozen Fish Plant which is situated in Burin, operated by Fisheries Products. Three hundred and eighty men and women are employed Mr. Minister in that plant on shores, and another two hundred and fifty-five are employed on fifteen modern draggers operating out of thetown of Burin.

The Minister of Fisheries has had the very good fortune I hope he considers it a very good fortune, certainly we on the Burin Peninsula consider ourselves fortunate in that he has visited that district and has I believe toured all four Frozen Fish Plants situated in Fortune, Grand Bank, Burin and Marystown. And I am in complete agreement with the bon. :•.the Premier when I say to Mr. Davis, that his assumption of Portfolio as Minister of Fisheries, terminated twenty years of of planned neglect of the Newfoundland Fisheries by the Government of Canada.

I too join in welcoming the representatives from the Grand Falls Town Council, Quite recently I was in their new chamhers in Grand Falls and the Municipal or the Town Hall or the Chambers used by the Town Council for its regular meetings Mr. Speaker, will do a credit to any·-. municipality in Newfoundland. And I welcome them here. ~IR. CROSBIE: Hr. Speaker, I would like to welcome Mr. Jack Davis, the ~anister of Fisheries of Canada on behalf of the true Liberal Party in this llouse of Assembly. The Liberal Reform Group. Anci '-lr.

Davis, since he assumed the Portfolio of Fisheries in the r~vernment of Canada, has become a tremendously well-known name in Newfoundland. And I think 3730

May 11, 1970 Tape 11822 Page 5 it is almost universally felt here in this Province that he is the first real Minister of Fisheries that we 'have had in Canada since 1949, when we entered Confederation. So he is certainly welcome to this House of Assembly. Now Mr. Speaker, there is a matter of sealing, but even in a matter of sealing Mr. Davis has done ··his best to protect the sealing industry of Newfoundland from hysteria that swept the world. Now there is an excellent

article that has just been published in a local newspaper now, which doubtless Hr. Davis is getting, by Hr. Ralph Parker on the sealing voyage this year, on the Chesley A. Crosbie. It might be a good time now to point out to Mr. Davis that we would like to have back the gaff, not the guff. We get the guff in this House every day the House is open. But the gaff. We would like to have the gaff back for our seal fishery, and the season open a little earlier. l"e will be gaffing the guff when the next election comes Mr. Speaker, and we would like to have the gaff to use in the seal fishery also.

Rut we certainly join in welcoming Hr. Davis to this House as an outstandin~ Canadian politician and statesman. And we hope that he is going to stay with Fisheries for awhile longer. Not too long, because undoubtedly Mr. Davis has a lot of ability and there are other nerhaps, more senior portfolios to which he is destined. But he certainly left his mark in the Department of Fisheries of Canada. We would also like to 111elcome the members of the r.rand Falls Town Council and the Town Clerk, the town Engineer. And ~r.

Speaker, the hon. the Premier mentioned that oerhaps they were coming from r.rand Falls to bring some money from St. John's, but I think it is far more likely to be the other way around today because since April ?.3, the leader of the r~vernment has found $2.55 million up his sleeve to help Rettle some salary claims that are being negotiated, and it may be that the Tmm of Grand Falls feels that they put the pressure on - that }landrake the magician will produce some money for the Grand Falls area, or the Grand Falls Tewn Council. ~-lell I hope that they will be successful if th;tt 3739

May 11, 1970 Tape H822 Page 6 is their object. And finally Mr. Speaker, I would like to welcome the pupils from MacPherson Junior High School. I have no children attending that Hi~h School, but is is on the outskirts of the district of St. John's West, and it is just across the street. Even if it was not of course, we still welcome them. I think we are going to have legislation again today. We get our information on these matters }tr. Speaker, from a certain radio station. And I believe that the order of the tiusiness the day is going to be legislation, because the Budget Speech is of no importance.

It was ·brought down April 23, and this is now ei~hteen days later, but I do not think we are going to be allowed to debate the Budget Speech, but I trust that we will have some interesting legislation to discuss, perhaps the Ombudsman Bill, or the NTA Bill, or the Trustee Act, or one of these other pieces of legislation that we hope chan~es are going to be made in. So they are certainly welcome and I hope they will gain something from this Session. RON. w. R. CALLAH~~ (Minister of Mines, Agriculture and Resources): Mr.

Speaker, I join of course in welcoming representatives from Grand Falls and the students from Macpherson Academy. But my real purpose in rising is to ensure that the House does not forget or miss, or fail to be informed of the fact, that the hon. the Minsiter of Fisheries of Canada, also is the Minister of Forestry for Canada. And I think }!r. Sveaker, if we had to stop and decide which of our resources in this Province, in terms of this renewability and its lon~ life, and indeed at this point in time, its economic impact, we would perhaps have to say that that is the forest industry of this Province.

Last year ~r. ~peaker, the House is aware, faced a very serious crisis in the forest industry. in terms of the hemlock looper infestation, which had ~rown to its peak and which threatened the existence of some thirty million cords of merchantable softcood. And I think I have to say that without the intervention of the present Minister of Fisheries and Forestry of Canada, 3749

May 11, 1970 Tape #822 Page 7 Mr. Davis, we should not have been able to carry out the program that was carried out to protect those forests, and certainly to the degree, to the level at which it was in fact carried out, due very largely to the co-operation and assistance of the Government of Canada, which in turn enabled us to more successfully negotiate with the industry to persuade them to put in very large amounts of money. h this and in other ways Mr.

Speaker, I can tell the RQuse and assure the Rouse that the minister who is attem?ting to do so much in respect of our fishing industry is no less cognizant of the importance of our forest resource, and is doing very much in that respect to I think, bring to bear, the interest, perhaps even the responsibility of the Government of Canada in respect of our forest resources than any previous minister with the responsibility he now holds. So Mr. Speaker, I draw this to the attention of the Rouse and suggest that it is a very significant and very large reason why we should particularly welcome Mr.

Davis, in addition to the Fisheries consideration and its forestry consideration so extremely vital to our Province. I do so Sir, welcome him and Mr. Mullaley who is with him, and hope that very shortly he and I can get together and do some more good work to help, to encourage, to expand the forest resource industries of this Province. 2741

l'Uiy .1..&., ... ~,v - - ~ .. -c;.. MR.WINSOR: Mr. Speaker, I rise for the purpose of making a ministerial statement. But before I do I would like to take this opportunity in joining the other bon. gentlemen in extending a very warm welcome to the Hon. Jack Davis who is visiting us today. I was privileged this morning to have breakfast with Mr. Davis at eight o'clock. And after flying all day yesterday and until eleven o'clock last night I found this gentleman very wiry at eight this morning. Very wiry and he has made many decisions some of them very unpopular ones since he has been the minister of Fisheries.

And as I said this morning it took a lot of political courage to take the stand on many problems which the minister has done during his term. Again, I extend a very warm welcome to him and to Mr. Mullaley. Mr. Speaker, when the policy for the introduction of the Labrador air subsidy-programme vas· introduced it was designed primarily to encourage travel to and from Labrador and there has been a substantial degree of success. Eastern Provincial Airways have introduced special family plansincentives so that a family can travel to and from between Labrador and Newfoundland at special rates.

These incentives together with group travel and other special rates now available from Eastern Provincial Airwaysdiii~strate that the government's policJ was prudent and has produced beneficial results. The Government have now decided on a new reduced policy to become effective Hay 14th 1970. This new Labrador air subsidy programme will limit air subsidy payments to residents of Labrador only. For the purpose cf this programme a resident of Labrador will be considered as one who resides there permanently and or has permanent employment in Labrador.

It will continue to cover residents of Labrador who travel fqr ·personal reasons from Labrador to the Island of Newfoundland and return, and will not cover anyone in anyway associated with or on behalf of the Armed Forces, Government, Industry, Business, Organizations or Groups of any kind, former or any purpose. Or to any uerson who is elligible for a comparable benefit or a reduced rate from Eastern Provincial Airways. Applications forms will be obtained only at the offices of the Department of Labrador Affairs, information leaflets will be available 3742

May 11 1970 Tape 823 page 2. lb. to passengers at ticket counters advising the chanr,ing policy and explaining the general conditions of eligibility. Presenting Reports of Standing and Select Committees: H&ij. W.R.CALLMIAN(Mines & Resources): Mr. Speaker, I ask leave to table the latest bulletin of the Department of Mines, Agriculture & Resources Mineral Resources Division, which is an updated bibliography of the geology of New- foundland and Labrador 1814-1868. The significance of this bibliography ~r.

Speaker, is:1that there is very great demand and continuing and expanding demand for information as regards the geological resources of the Province. The geology of the Province and a surprisingly great library of material has been compiled dealing with every facet of the geology of the Province and I think every

section of the Province and because so much material is being turned out it is nece~sary continually to upgrade even the listing of the works papers and documents that are turned out year by year and virtually month by month. So I table this bulletin Mr. Speaker, and I understand that copies are in the Clerks office for distribution.to the House. ANS~ffiRS TO QUESTIONS: HON. E. ROBERTS(Hin. of Health): ?-fr. Speaker, I have the ansl-Ters to a number of the questions standing addressed to me on the Order Paper. Question ~b.407 asked by the hon. member for St. John's 1-'est on the Order Paper of April 13.

(1) Yes.

(2) Yes. To expand upon that the Government have rejected the recommendation acting upon the advice we have received from our Medical Authorities. I might add Sir, that it is a matter of universal practise I am told. Persons suffering from mental disorders be they prisoners or not, are cared for and treated in institutions for the mentally ill not in prisons. Question No. 438, on the Order Paper of April 15, asked by the hon. member for Burin.

(1) Yes. ·

(2) None. I might expand upon that a little Sir, the Government have not made any contribution in any of the three years in question towards the deficits incurred in the operation of the St. Anthony Hospital. We have however made available funds for the use of the International Gre~fell 3743

May 11 1970 Tape 823 page 3 lb, Association and the proviaion of medical care throughout the area for which they have medical responsibility. The hospital at St. Anthony is one of the facilities used by the IGA to this end. Question No. 50!: on the Order Paper of May 6, asked by the hon. member for St. Barbe South.

(1) No.

(2) Not applicable. question No. 336: oo the lrder Paper of April 9, asked by the hon. member for St. John's He!st.

(1) No .

(2) Does not arise. Question N~. 317; on the Order Paper of April 8, asked by the hon. member for (1) there are 36 persons employed in the direct housekeeping functions at the Hospital for Mental and Nervous Diseases.

(2) Yes, trained help personnel have traditionally been responsible for general housekeeping duties at the Hospital for Mental and Nervous Diseases and that was because it has been felt the patients should not be cared for in any way by untrained staff ataany time while they are at the hospital. Recently however Sir, the medical advisers have been changing on this, and it has now accepted these functions can safely be carried out by a housekeeping staff instead of by nursing assistants as can be seen by the answer I gave to part one of this question the hospital has begun to adapt to this new type of operation.

Question No. 463, on the Order Paper of April 17, asked by the bon. member for St. John's Vest.

(1) The cost of operating the Central aaundry was $449, 557. 102 persons.

(2) No -the Government have publicly invited tenders from any party interested in providing for us the services as present being provided by the CEntral Laundry. · tfuen we have received these nroposals we intend to evaluate them and decide whether we should continue to operate the laundry ourselves. I should add that we of course, which means the Government and includes in particular my colleague the minister of Supply who has actually invited the proposals. 3744

(3) Yes, Ouestion NO. 359 on the Order Paper of April 10, esRed by the hon. member for St. John's West.

(1) There are several wards for the treatment of dangerous patients at the Hospital for Mental and Nervous Diseases. As far as possible extremely dangerous patients are confined to one male ward and to one female ward. One of the wards still in use, the male ward has stone floors. It has heating facilities and in the view of the Government these are not adequate. Accordingly we are taking steps to improve them.

(2) There are 16 patients in ward 3C which is the male ward to which I have just referred. I believe Sir, that is one of the<Jetldest wards in that hospital.

(3) Yes. The Government have both short range plans and long range plans. The short range plans are now being implemented, the long range plans look to the construction of new maximum security facilities which we in the Government believe~ are necessary at the Hospital for Mental and Nervous Diseases. HON·.-·J.- R. · ·GHALKER(~in. of Public Works): Mr. Speaker, I wish to table the answers to questions Nos.480. 473. HON. E.DAl.rE(Min. of Mun • .A.ffairs): Mr. Speaker, in answer to Question No. 447 asked by the hon. member for St.

John's West on the Order Paper April 15. ~:'Ihere has been no allowed extras or additions to the original contracts in excess of 5 per cent. ORDERS OF THE DAY: Committee of the ~~ole on Items 3,2, 14. Mr. Speaker left the Chair. Mr. Hodder, Chairman of Committees; ~, Bill_, "An. Act ·Further To Amend The Highway Traf fie Act." MR.CROSBIE: What clause are we on now? MR.CHAI~~~= Clause 9 and 13 are the two general clauses. lm.CALLAHAN: Mr. Chairman, I would move an amendment to Clause 9 to delete (

b) of clause 9 which is the sub-clause which refers to a person driving a vehicle shall have the speed of the vehicle under control. Mr. Chairman there has been a mimeographed amendment sent around I do not know if everybody has 3745

May 11~ 1970 rape Hll page ) lb. copies I just managed to get one and in addition to deleting (

b) there is some arrangement of (a) (b) (e) (

d) of 1. which does not change the wording simply separates the elements of the sub-clduses and leaves it in fact with one small exception as it is in the principle Act. Seation.l30 in the principle Act has under (

b) driving without due care and attantion and without reasonable consideration for other persons. Those two elemen~s are separated in the amendment now proposed and in addition to that (

b) is deleted and I so move. MR.CROSBIE: We have no copy of the amendment, I imagine we agree withhit but we have not got a copy of the amendment yet. MR.HICKMAN: Did the bon·. minister say they were separated? MR.CALLAHAN: The original Aet has due care and attention and reasonable consideration for other persons together this is the principle Aet 130. So what the final amendment would now be is simply separating those two and leaving and "as it was" in 130. Simply separating those two elements into two sub-clauses. So that essentially I think that the cleanest way to do this Mr.

Chairman is to delete the whole of nine as it is there and substitute for it 131 as it is in the principal Act but separating due care and attention and reasonable consideration. They would be ~b~ and (

c) that is the simple change now. MR.CROSBIE: May we have a~copy of what you have there so we can read it so we can see what you have therei MR.CHAIRMAN: Shall the amendment carry? MR.CROSBIE: No, we have not seen it yet. MR.CALLAHAN: You sent it back because there is another: · amendment. I t"!lou~ht they had been circulated. MR.CHAIRMAN: Shall the amendment carry? Clause 13: 3746

May 11, 1970, Tape 824, Page 1 -- apb HON. W.J.CALLAHAN (Minister of ~anes, Agriculture and Resources): Mr. Chairman, I am not sure what the amendments to clause (13) mean, but it appears that they are consequential in view of the amendment that has just been accepted by the committee, and they remove certain applications. In each :. case the application of penalties to particular sections is removed, and I think perhaps that what I had better do is send this over again, so bon. members on the other side can see it and we can either wait until they have had a look or come back to it.

I have only one copy, I thought this was circulated. HON. L.R.CURTIS (}anister of Justice): On the first page Mr. Chairman, where it starts the second paragraph from the bottom, 130-l-A-1, just omit the 1. Just croos out the 1. MR. WELLS: Before driving imprudently MR. CURTIS: Yes, before driving imprudently. No the last 1, it will now read 130-1-A. The next paragraph will read 130-1-B instead of A2 - B. Then on the next page 130-1-C instead of 130-l-A3. The next one 130-1-A~1D. So the effect is that these are numbered 130-1-A, B, C, and D. The last one comes out altogether. MR. MYRDEN: That whole paragraph? MR.

CURTIS: The whole of 130-1B comes out, the quotation marks will then come after two months, the last line of the last paragraph but one. MR. ROBERTS: Hr. Chairman, may I say that my colleagues speech was one of the most moving I have ever heard. MR. CURTIS: We all heard it, not only the Opposition. I would like to move, Mr. Chairman, that the clause which was put in,

Section 14, that Sections (4}, (5} and (6} of the Act would come in by proclamation. I think it was moved when the Bill was before the House before, but I will make sure. On motion new clause, Clause 14, carried: Motion, "that the committee report having passed the Bill with some amendments, carried: 3747

May 11, 1970 Tape 824, Page 2 A Bill,"An Act to Provide For the Appointment of a Parliamentary Commissioner To Investigate Administrative Decisions And Acts Of Officials Of The Government Of The Province And Its Agencies And To Define The Parliamentary Coumissioner's Duties And Functions." }lR CROSBIE: Mr. Chairman, when - MR CHAI~~= We were discussing Clause 7, and 2 (

a) is standing. MR CROSBIE: Exactly. When we adjourned the debate on this

section when last we were in committee on this Bill, an amendment had been moved to sub-clause (1) of Clause 7.

The present law says: "On the recommendation of the members of the House of Assembly, the Lieutenant-Governor in ColDlcil may, at any time, suspend or remove the Commissioner from his office for disability, neglect of duty, misconduct or bankruptcy." And the bon. member for Burin moved an amendment, the effect of which would be that it would be changed to "on the recommendation of two-thirds the members of the House of Assembly the Lieutenant-Governor in ColDlcil may at any time rescind or remove the commissioner from his office, for disability, neglect of duty, misconduct or bankruptcy." Now, Mr.

Chairman, I believe that this amendment is right and proper. The parliamentary commissioner, if he is to be affective in his duties, is bound sometimes to be an irritant to the Government, to be recommending things that the Government does not want recommended or does not want carried out, and he should be in a position where he need have no fear of any chances of his being removed unless it can be shown that he is suffering from disability or has neglected his duty or has misconducted himself or, of course, has gone into bankruptcy. It is simple enough, you have ~ther gone into bankruptcy or you have not.

And at least I feel, Mr. Chairman, that it is not sufficient protection for him if he can be removed on the recommendation of a majority of the members of this House. There is always going to be a government in power and the government is going to be in power because it has a majority of the members of the House of Assembly. The government, to be a government, is always going to have, of necessity, a majority. And if this clause is left like it is now, 3748

-- May 11, 1970 Tape 114 Page 3 the parliamentary commissioner is going to know that any time the government wants to dispense with him, even if he is a borderline case, its majority in the House is bound to do what the government wants or else embarrass the government, .and the government majorities in the House are not usually prone to embarrass the government by voting against it. So it is only logical, sensible and proper that it should take a vote of two-thirds of the members of this House.

Then, if the government wishes or anyone wished or thinks that the commissioner should be replaced because of misconduct or whatever, they will have to satisfy two-third of the members of this House that he has misconducted himself or neglected his duties or whatever. Now if they can do that, if they can produce the evidence to do that, they need have no fear. They would probably get the unanimous approval of the House. But the fact is for us to amend the rules of this House now takes a two-thirds vote of the members of this House. That at least gives the minorities in this House some protection.

The Government, in this present session, was unable to get the rules of the House changed because the government was unable to get a vote of two-thirds of the members of this House. If the Government were able to bring into the House twenty-eight members, all at the same time, then they could change the rules. But the Government was not able to do that on this particular occasion. So that gives some protection to the minorities in this House.

I pointed out the other day that in three jurisdictions, one of which I think was Norway or Finland - it was Finland - that the ombudsman cannot be removed at all during his term of office, which is fo~r years. No one can remove him. In Norway he can be removed by a vote of two-thirds of the parliament • And in Quebec he can be removed by a vote of two-thirds of the Legislative Assembly. In other provinces he may be removed on the vote of a majority. The point is, Mr. Speaker, that whether or not the auditor general can be removed by this House by a majority is hardly germane.

If the situation is now that the auditory general can be removed by a vote of a majority in this House, then in my opinion that is wrong and he should have the same kind of protection. It should be a two-thirds vote for the House of Assembly to discharge the auditor general, .3749

May 11, 1970 Tape SA.4 Page 4 I would think. So that argument only means that the legislation governing the actions of the auditor general should be changed. · It is not the Democratic principle, Mr. Chairman, that majority rule must always decide everything in a democracy. In fact it is exactly the other way around in the United States, where the majority rule does not always govern, where certain rights are entrenched in the Constitution, the Bill of Rights. The Constitution can only be changed by much more than a majority vote.

The Constitution of Canada can only be changed, the custom is that at least two-thirds of the provinces should agree, having a majority among them in population etc. A bare majority does not always decide everything nor should it always decide everything in a democracy. In the British system a majority in parliament has always been able to change the previous law, change the Constitution and the rest of it, but that power has not been used,by the majority, to do that, because of the long history and traditions that lie behind the rise of British Parliamentary Institutions.

So I do not think that it can be argued that we are doing anything undemocratic if we decide that the ombudsman should only be re­ moved if two-thirds of the members of this House assess that it is right and proper; that he has misconducted himself, for him to be removed. The bon. member for Burin pointed out the other day, Mr • .-... . ·~ · Chairman, that the select committee of this House that recommended the ombudsman legislation. recommended in their report that he can only be removable on the recommendation of two-thirds of the members of the House.

So the amendment that the bon, member from Burin has moved is in accordance with the select committee report. And I believe the bon. minister who introduced this Bill was on that select committee. as well as other gentle­ men opposite, and several on this side of the House, the hon. member, I think, from St John's East Extern, the bon. member for Burin. So this t-muld just be putting back in the Bill what the select committee recommended. I also agree with an amendment which is going to be moved in a few moments.

I also feel that in connection with Section (7) it should not be left to the Lieutenant-Governor in Council to suspend the commissioner 3750

May 11. 1970 0 Tape 824 0 Page 5 -- apb when the House is not open, It should not be left that way0 it should be a judge. An application should be made to a judge who should have to do it, AN HON. MEMBER: That is not what is in the report MR. CROSBIE: I am not saying that the judge is in the report. but the other matter was in the report I believe that I just mentioned. So Mr. Chairman. I think that for these reasons the amendment is a good one. a right and proper one. and I would support the amendment. MR. CURTIS: Mr. Chairman. the motion is not seconded. Does it have to be seconded? AN HON. MEMBER: No. no MR.

CURTIS: Mr. Chairman. I say that it is a funny thing that the majority of this House can repeal this Act altogether, wipe it out, The majority of this House can refuse to pay an ombudsman. They can refuse to give him the money yet my bon. friend wants a two-thirds majority to suspend him. What pure nonsense is that? If a Government wanted to get clear of an ombudsman, and they could not get two-thirds what would they do?

They would either repeal the Act which the majority can do1 they would either fire him and give him no money as the majority can do, or they would amend the Act to provide that the majority can do it. I think the amendment is silly and I oppose it. MR. CROSBIE: Mr. Chairman, the bon. Leader of the House shows his expert knowledge of how majorities can dominate Houses of Assembly .when he gets up with the argument he just got up with. Why bother with any of the legislation that goes through this House? Why bother with what is in any piece of legislation?

Because if we adopt the argument that the learned Minister of Justice is making we are wasting our time because, the majority of the House can change that legislation or throw it out, or enact other legislation. MR. CURTIS: What is wrong with that? MR.

CROSBIE: Why bother with the terms of any Bill. or any piece of legislation that comes before the House1 What absolute tripe, the fact is that this Bill provides that we need a two-thirds vote to suspend the Commissioner, a Government will not dare expose itself to public odium by, when it fails to get a two-thirds majority to suspend him by abolishing his office or refusing to :J 7 51

May 11, 1970, Tape 824, Page 6 -- apb pay him. The bon. Minister of Justice knows that it is much great protection for the ombudsman to have a two-thirds provision here. No Government if it wants to be re-elected, if a public is interested in democracy at all is going to allow a Government to come in here, charge the ombudsman with neglect, not be able to make their case, and they cannot get two-thirds of the vote in the House, and then bring in a Bill to abolish the ombudsman because it will only take a majority vote. What Government dare do that? I know one that would. MR.

CURTIS: Yes, and I know another one that would like to if it got in. MR. CROSBIE: I know one that would 0 I know one that would and the bon. the Leader of the House has just shown us which one that is. MR. CURTIS: Yes, and I know another one that would but they cannot get elected. MR. CROSBIE: The argument is foolish. Give the ombudsman some protection. What this Government wants is the form of having an ombudsman, without the substance of having a really effective ombudsman. That is what is wanted. We want an ombudsman that is going to be able to accomplish something and have some independence. MR.

CURTIS: Hear, here. Make him Governor. MR. CROSBIE: Make him King, make him Premier, MR. HICKMAN: Mr. Chairman, in reply to the conment made by the Minister of Justice, that same argument could apply with equal validity to the Judge's Act which is a Federal Act.

The Judge's Act has been amended from time to time by the House of Commons but, under the Judge's Act, a judge of a superior court in any Province in Canada, or a judge of the Supreme Court of Canada can only be,(in fact it is even more restrictive than what is proposed in this amendment) can only be removed on a two-thirds vote of a joint address to the House of Commons and the Senate, something which has been done only once in the history of Canada. It was threatened a second time, but only once since 1867.

The si~le question that this House has to ask at this time is whether we want to have a truly and completely and absolutely independent, completely independent office of ombudsman or do we want an ombudsman that has to have an ear at all times to the wishes of the Government. This is the whole 3752

May 11, 1970, Tape 824, Page 7 -- apb point in appointing the ombudsman. He obviously is not going to come over and investigate departments of the Opposition, because, the Opposition has no departments to investigate.

Rather, if we are going to get across to .the small man in Newfoundland, that he has certain rights, that he is going to be protected against the manoeuvrings or the manipulations of the branches of Government that seem to be expanding every day and moving into practically every sphere of operations in this Province, as it is everywhere else, then obviously we have to convince our people that this ombudsman Act, and this person who occupies this office, and more important the office is far more important Mr. Chairman than the person who occupies it.

He is completely independent, fearless, there can be no recriminations against him. If the ombudsman Act does not work, if it is completely inoperative, if it does not serve the purpose for which it is intended, well then the Government can come in a repeal the Act. But as long as we have the Act let us make it a good one and let us make it the type of protection that the hon. the Minister who introduced this Bill would like to see afforded to our people.

Let me remind the House that when this Bill was debated in second reading, the bon. the Premier said, that so long as this did not go to derogating from the principle of the supremecy of Parliament, and this does not, that any reasonable recommendations would be acceptable to Government. Now what more reasonable recommendation, and what more reasonable amendment could be made, and it has the validity and the support of the select committee which was dominated by members sitting on the Government benches. MR. BURGESS: Mr. Speaker, I would like to rise to support the amendment totally.

I - -· The office of ombudsman is going to be an extremely sensitive position in the Province. The point made by the bon. member from St. John's West, that this gentleman will have to be psychol~-ca1y secure in his position as ombudsman because at various times it will be necessary for him to attack,(if I may use that word) Government on some citizens behalf, and he has to be psychologically secure in the knowledge that it takes a certain per centage of the members of the House of Assembly to remove him from office if he happens to step on these tender toes.

Now the ideas and opinions annunciated from the Government side of I :. 3753

May 11, 1970 1 Tape 8241 Page 8 -- apb the House about just a simple majority ruling at all times, in practically every organization or institution that I know of, and particularly in the Labour movement, there are required on motions that are very important to the welfare and progress of the organization, it requires in lots of cases a two-thirds majority. Now if we stop and talk about just simple majority ruling at all times Mr. Chairman, where do we stop .when~ we look at our jury system of twelve people?

If it just took a simple majority to convict a man you could possibly have lobbying in our jury system today. But it takes a decision of twelve people of accord to convict a man to jail. I say that psychologically the ombudsman has to have this confidence, and he has to be able to perform his duties with the sincere secure knowledge that if he does tread on these tender toes, that a lot of thought and consideration will have to be given to his removal by a two-thirds majority of the House of Assembly. MR.

BARBOUR: I am a little confused, In the past, mostly all the Bills presented in this House have been passed by a majority. Not two-thirds •••••••••••• 37r>4

May 11 th. 1970 Tape 825 PK - 1 MR. BARBOUR: not two-thirds. I t~ink_it was only once a little while ago that happened in this bon. House, 1 cannot see why an ombudsman should have to have two-thirds of the House to remove him, if it is necessary. If I can be elected in my district or a councillor can be elected by a single majority vote, that is just as democratic as having two-thirds of a majority. So I therefore, I can not go along with this amendment. 1 cannot support it, and\ _ I think it is a lot of belly-wash and we are wasting too much time on this.

I think we should let it go as it has been going, and if there is a vote taken on him, then let us by a majority whether it is one, two or three, or five or six, seven, eight, nine or tea. as long as it is a majority. So ·I am afraid 'here is one person, who will not support the amendment. MR. NEARY: ~~. Chairman, would it be in order to move the previous question? MR. CROSBIE: Mr. Chairman, before we conclude debating,the debate on this amendment, 1 hate to have to differ with my bon. friend from Bonavista South. But, Mr.

Speaker, just to take his example about being elected by a majority, if by some change there were three caadidates or four ran in his district, and the bon. member did not get an absolute majority, but he had the greatest number of votes of the four who ran, he would then be elected to this House without having a majority in his district, but he would still be a member of this House. There is no magic in a numerical majority, the ombudsman is not an elec~ed official.

He is not out been elected in some district, he is a quasi judicial figure appointed by the Government,who is suppose to be independent and look into complaints that are made by people who have come into contact :with the Government service and have complaints and want them investigated.

Now if that official realizes, even if he is threatened, if he knows that he can be dismissed by a simple majority, the members of this House, he knows that any Government has the simple majority of the House, and that is not much protection to him, if he treads -· on any toes in the Government while he is going about his duties, so we say he needs a bit more protection than that. We should require a vote of two-thirds of the members of the House. It 37~5

May 11th. 1970 Tape 825 PK - 2 MR. CROSBIE: has nothing to do with elections, it has to do with a quasi judicial official if~he is doing his job properly, making a nuisance . of himself putting,in reports like they have done in New Brunswick and the rest of it, and who needs more protection than a simple majority in this House. · MR. CURTIS: ~lr.

Chairman, an amendment to the amendment, I do move 7(1) to read as follows; On the recommendation of the House of Assembly, (I do not know why they put in the words, "members of", it seems to be very silly) On the recommendation of the House of Assembly, that is an amendment to the amendment. MR. CROSBIE: The amendment the bon. minister moved is exactly the same as the original clause. On the recommendation of the House of Assembly would still mean a majority of the members of the House of Assembly. MR. CURTIS: I will put it in a separate amendment, if you like? MR.

CROSBIE: Yes, I would prefer a separate amendment. MR. CURTIS: We will repeat yours first all right. MR. CROSBIE: Let us vote on the Amendment. MR. CBAIID".AN: Those in favour of the Amendment please say "I", contrary minded ''nay". I take it that the nays have it. MR. CURTIS: Mr. Chairman, there is an amendment, that we leave out the words, "the members of". So this

section now reads, "On recommendation of the House of Assembly". MR. CHAIR}urn: Shall the Amendment carry? MR. CROSBIE: Before the Amendment is voted on, Mr. Chairman, I just waht to point out that it is n6t in my view, I presume the bon. minister agrees, that the only difference there is that by taking out these words, the position is still the same, the recommendation of the House of Assembly, is a recommendation made by a majority of the members of the House. MR. CURTIS: Yes, but certainly not as members. ~· CROSBIE: Right. But it does not mean an unanimous vote of members of the House of Assembly. MR. CURTIS: Oh, no. MR. CROSBIE: The hon. minister would not consider unanimous votes. 37~6

May 11th. 1970 TApe 825 MR. CURTIS: That is what that fellow wants over there. MR. CROSBIE: You do not want that. PK - 3 MR. CURTIS: You would not get much business done here if you had to have unanimous consent. MR. CROSBIE: This i& just for the ombudsman now. MR. BOBDElU. ; Shall the Amendment carry? Carry. MR. CROSBIE: Nay, Nay. MR. CHAIRMAN: The "Ayes" have it. Shall the clause as amended carry? carried. Shall Clause 8 carry? MR. HICKMAN: Mr.

Chairman, we have only dealt with 7 (1) of the - oh! no, no we have been dealing with 7 (1) and it was during the Rebate in commitee on Clause (7) suggested by some bon. member on the Government side of the House that we deal with 1 and 2 separately. And the motion was that 7 (1) be amended and that is the motion that now has been defeated. There is 7

(2) Mr. Chairman,to provide at anytime when the legislature is not in session, the Lieutenant-Governor in Council make suspend th.e commissioner from his office for disability and neglect of duty, misconduct or bankruptcy. Proved to the satisfaction of the Lieutenant-Governor in Council, but the suspension shall not continue in force beyond the endtof the next ensuing session of the legislature. Now, Mr.

Chairman the practice that is followed, at least in New Brunswick, is that should the Lieutenant-Governor in Council decide 1 when the House is not in session, that there has been neglect of duty or disability, the commissioner becomes ill or incapacitated or he goes into bankruptcy or he is guilty of misconduct, then in order to remove him an application has to be made to &;:jildg~ .. .. not to the Supreme Court, but a judge of the Supreme Court of New Brunswick. And the theory behind that and the reasonableness behind that must be apparent to all bon. members.

In the first instance the Lieutenant-Covernor in Council comes to the conclusion and will say that the commissioner is disabled, that he is no longer competent to carry on the duties of an ombudsman. And tne House has just terminated its session and may not sit again for another nine months. 3757

May 11th. 1970 Tape 825 PK - 4 MR. HICKMAN: Having done that instead of placing on the shoulders of the Lieutenant-Governor the responsibility and the right, the Lieuten~nt-Governor in Council to dismiss this man for the rest of the session and• to appoint someone to succeed him, the Lieutenant-Governor in Council having gathered the facts and having arrived at the conclusion that indeed there is no alternative but to suspend . this ombudsman, this gentleman, it must then come to make a simple application to a judge of the Supreme Court.

There is nothing onerous about that, there is nothing difficult about it, not taking away any rights of the majority of the House, because remember, Mr. Chairman, the House is not involved in this issue, this is not an issue for the House, this is an issue that is decided on by the Cabinet. And we were told and very properly so by the bon. the minister when this Bill was introduced that this ombudsman is~servant of the House and DC one else. And a servant of the House presumably means he is a servant of th~people.

And this simply means that the Lieutenant-Governor in Council cannot ~amper with the wishes of the House unless it is absolutely certain that there is no choice open to it, and at the same time it gives to the occupant of this office the right to be heard, and the right to be heard by an !mparcial member of someone outside the House, someone outside the Legislative Assembly and someone outside of the Cabinet. Mr.

Chairman, I move that 7 (2) be amended by substituting after (2) by deleting the words in (2) commencing with~in any time'~nd ending with~the session of the kegislature, and substituting therefore the following; "When the the House of Assembly is not in session, a judge of a Supreme Court of Newfoundland may suspend the ombudsman from his office for cause or incapacity' due to illness or any other cause upon an application by the Lieutenant-Governor in Council". That is seconded by the hon. member for Fortune Bay. ~m. HODDER: Those in favour of the amendment, MR. CROSBIE: Mr.

Chairman, before you put the motion, I would like to speak in support of the Amendment. Under the present

section the Lieutenant-Governor in Council has far too much power if the parliamentary commissioner is ·to have any real meaning. Now

section 7(1) the committee refuses to change, so that 37~8

May 11th. 1970 Tape 825 PK - 5 MR. CROSBIE: a majority of the members of the House can suspend or remove the commissioner, if the House is in session. Now what happens if the House is not in session? If the House is not in session, the Government proposes in this Bill, that the Cabinet, that the Lieutenant-Governor in Council can itself suspend the commissioner from his office for disability, neglect of the duty, misconduct or bankruptcy proved to/satisfaction of the Lieutenant- Governor in Council. And the suspension is not to continue in force beyond the end of the next session of the legislature. Now Mr.

Chairman, once the parliamentary commissioner is suspended by the Lieutenant-Governor in Counci·l his inducement .. is gone no matter what happens in the next session of the House. So here is a parliamentary commissioner who is suppose to be investigating any complaints against any members of the executive branch of Government, yet he knows that in this Bill the Lieutenant-Governor in Council can suspend him at anytime for disability, neglect of duty,misconduct or bankruptcy.

Now it is a question of opinion what neglect of duty is, or what disability is, or misconduct, so he would be at the mercy of the Lieutenant- Governor in Council all the time he is in office, when the House is not in session, they may suspend him. They can say, in our view you have misconducted yourself, or you have neglected your duties, or you are suffering from disability and therefore we are going to suspend you. That is wrong, Mr. Chairman, it is wrong for the Lieutenant-Governor in Council to have that power, if this ombudsman is to mean anything here in Newfoundland. If you are not just passing

an Act, so the Government·--can say, we believe in givil rights, we have got a parliamentary commissioner in Newfoundland, we got an ombudsman, we passed it. If the Government is not just passing it for that purpose, then these kind of sections are very damaging to this commissioner's effectiveness. He is going to know, he can be suspended. Now the amendment suggested by the hon. member for Burin is certainly the correct procedure. If there is anything wrong the Government would apply to a judge of the Supreme Court, they would have to satisfy a judge of the

May 11, 1970 MR CROSBIE: Supreme Court that in fact the parliamentary commissioner was disabled or, in fact, he had neglected his duty or, in fact, he had misconducted himself. They would have to prove to an impartial, independent, outside person, outside of the Government all together, a judge of the Supreme Court, that this is so. And if they can show the judge, if they produce the proof to the Judge of the Supreme Court, then the judge suspends him. Surely that is a much better way than just the Lieutenant-Governor in Council making his own decision, whatever the Lieutenant-Governor in Council decides.

They may be right or they may be wrong but the ombuds- man would not have had any kind of a hearing and people are going to think, and rightly so, that there is som.ething wrong with the Cabinet suspending the Commissioner. Now this is a much better way to go about it. l-le have heard the advancement of views as to why this should be changed and as to why the Lieutenant-Governor in Council, here in this Province, wants to retain this power over the ombud8man.

If this ombudsman is to have in substance any independence then this subection (2) should be amended in the manner suggested by the bon. member for Burin. 1 certainly support the amendment. MR BABBOVR: Mr. Chairman, if the House is not in session and the Cabinet -- wants to dismiss this man, it only means notifying the Speaker and within a day or two the House can meet, and this can be ruled on by a majority and not by the Lieutenant-Governor in Council. MR HICKMAN: Mr.

Chairman, what the bon. member has overlooked is this: The position is, in New Brunswick, that when a application is made by the Cabinet to a judge of the Supreme Court and that judge comes to the conclusion that the ombudsman, for cause, has to be dismissed or must be suspended, the judge of the Supreme Court has to maintain this impartiality and this complete independence. He is then given the right to appoint a man to fill that vacancy until the next session of the House. But that man, Mr. Chairman, only stays in that position until the House next sits.

When it does, then the House appoints, on the recommendation of the Government, obviously ., a new person to fill the position of ombudsman. And it is obvious, what was intended in this Act and what was intended in 3760

May 11th. 1970 Tape 825 PK - 7 in MR. HICK}~: this Act and to what ,is intended/other Act where. they do not have that same provision with respect to a judge at the same time RI:JIIake a suspension only until the opening of the next session of the Ho"use. And it must be clear to the bon. member for Bonavista South, and I know he above all other members, and I have heard him say it in this House a dozen times, knows what is to run into the fustration of rigid enforcement of sometimes silly rules and regulations.

Obviously, if his constituent~is being jeepardize9, has been prejudice, has been discriminated ·.;tgainst) and quite often the evidence when it comes out it showsthat there has been no discrimination, the fact is that you will have some m&n!,walking the street of Bonavista thinking that he has been discriminated against, and he wants to be sure that the man who is going to decide whether or not he has gotten his rights is a man who is completely free and independent from any pressures at all, because the members of the House of Assembly will have no greater right than the man in the bottom of White Bay.

And this is what this ombudsman Bill is all about, and when it was introduced, vhen the bon. the minister introduced and other speakers including the bon: •. ~.the Premier referred to the main principle of this Bill, it was the principle of the freedom and independence of the ombudsman. That is why to the knowledge of the hon. minister and to my knowledge and to the knowledge of the members of the select committee, we could not find any evidence, for instance, of any former politican having ever been appointed to the position of ombudsman.

And the reason for it is that this man is in the same position, he has to be, as a man who is appointed to the bench of the Supreme Court or to any other judicial body. This one he~e does not offend againstthe majority of the House rule at all.

We have heard the debate on the two-third majority and the two-third vote and why we must have the majority of the House, this is quite a different issue entirely, this is an issue to keep this gentleman completely independent and to protect his rights, because he ma)Z" not be mentally incapacitat1~d ·1he ·111Ay not have committed any offence or he may not have gone bankrupt or any other cause which might warrant his being dism:l.ssed.

So s·urely, everyone else in Newfoundland has the right to be ·heard, any other citizen of Newfoundland whose rights have been trampled on, has access to the Supreme Court or some • . and the court of the Land in/protection that, that affords. Why take it away from 3761

May 11th. 1970 Tape 825 PK - 8 MR. IIICKHAN: an ombudsman? MR. NOLAN: We are not taking it away. MR. HICKMAN: Of course, you are taking it away from an obudsman, and this is why this - MR •. ::·.·FRECKEIH ··.e:ould thel hoR. member give us a reason for it? MR. HIClQ!ANl. Yes..!.there is a reason for it, because this give the absolute right to the Lieutenant-Governor in Council to suspend the commissioner. MR. CROSBIE: On what grounds? MR. HICKMAN: On what possible grounds are there?

The only grounds you could have would be ii the Lieutenant-Governor in Council exceedm its authority, and that is the very authority we are giving right now. And what I say to this House, it is up to us whether we are going to make this a functioning Bill because a simple passage of the Bill as it now stands means that we have wasted our time, and the ombudsman Act will never function in this Province. MR. CROSBIE: Farcial. MR. BARBOUR: What kind of a man are we going to 'ppoint as an ombudsman? Are we going to appoint a weakling? Somebody who is going to make mistakes every minute of the day? MR.

HICKMAN: I hope not. ~ •. ~~ MR. BARBOUR: Surely, surely when this man is appointed he will be an intelligent and practical man. 1-IR, EARLE: Ur. Chairman, I think without this amendment the whole purpose of this Bill is useless. The hon. member for Bonavista South asked the question~ what type of man are we going t9: :appoint . to this position? I say this is the complete danger, if you do appoint the right type of man, and a person who can stand on his own feet~"as I well know from personal experience, that the influence from Cabinet may well be used to have this person removed.

If you have a persuasive leader a vindictive leader, and he wishes to use his influence this can be done, And I think that this 37G2

Hay 11th., 1970 Tape no 826 Page 1 that this Clause is absolutely essential and necessary for the protection of this office. MR. NOLAN: Mr. Chairman, the first ombudsman ever to be appointed in the Commonwealth was in New Zealand and in the New Zealand legislation, it provides for the self-same administrative functions pretty much as we have in the legislation as we have before us now. The legislation in New Zealand provides that, indeed, when the House is not in session that the Lieutenant-Governor in Council can remove the ombudsman for causes and such as those listed in our Bill.

The exact same thing applies in the Province of Alberta and there are many debates. There are 1001 arguments that you can use on ombusdman schemes for example in Sweden, the ombudsman can go after the judges in the courts, perhaps, the bon. member for St. John's West would like to have that, too, or the bon. member for Burin. In Sweden the ombusdman can correct the judges in court. Also it can be expanded, too, where he has jurisdiction in municipalities and so on and I would not be surprised ~but this will~ happen eventually, perhaps, and here in other areas of Canada. But that is not the argument at the moment.

The fact is that the legislation we have here now pertaining to the removal of the ombudsman, obviously, is working and very successfully in the first country in the Commonwealth to adopt the ombudsman concept, New Zealand from contacts I had just the other day, where I checked this matter with some people I know in Alberta. They have had no :problems, indeed, this question has never been raised, and no one that I know of has ever approached the idea that this man, who after all has to be a real man to do the ;ob and his position is not to get anyone, that must be clearly understood.

If anyone is appointed ~hose sole function is to get someone, you can forget it, because he will end up as an absolute useless functionary, as far as, I am concerned and it cannot work - no more than it can work with the appointment of a policeman or any other Civil Servant. If that is his only function to get 37G3

May 11th., 1970 Tape no 826 Page 2 any one - in Sweden and so on, it has been stated and quite properly by the ombudsman that they refuse to become a tool of government ot of the opposition - the same in Finland and other areas. As ~far as I am concerned at all the Clause,we have here is a perfectly good one, not questioned in New Zealand, working very, very well and it has worked now over a period for a number of years since, I believe, 1962 when the ombudsman was first appointed.

I think you will see similar legilatian, and I am not sure about this, but the proposed legislation for the House of Commons for Canada, I believe, borders on pretty much the same thing, Mr. Chairman, and I would certainly speak against the amendment and suggest we go on with this Bill as prepared. MR. BURGESS: The introduction of this Bill to the House· of Assembly was a wonderful step forward. It is to the benefit of this Province, as far as I am concerned and I can see what the bon. member for Burin and the bon. member for St.

John's West are getting at£ They feel, unless the amendment, which they have suggested is introduced, what we will be doing is creating a strawman.

Let us stop and think about how many months of the year that this House is out of session, normally, in the normal course of events, except this year, this House has sat for somewhere in the reason of two and a half, three and a half months, which means that for a period of nine or eight months of the year, this ombudsman will be subject to an opinion , to an opinion of one man and this is the Lieutenant- Governor in Council, and this House, I am sure, by virtue·of the fact that the Bill was introduced at all. They want to create an effective ombudsman.

Some one is effective and somebody who is strong within himself and somebody who is secure in the knowledge that when he is defending the public's interest or an individual.'s interest that he can do it without fear or favour or jeppardizing his own position, and I feel, Mr. Speaker, that the inclusion or the acceptance of an amendment on this Clause can only but strengthen, psychologically the position of this ombudsman, and it would mean that he would be much more effective in the operation of performance of his functions and duties, which this Bill 3764

May 11th •• 1970 Tape no. 826 Page 3 is essentially designed to bring about. MR. WORNEl:.L: Mr~ Chairman, I wish to say a few words on this amendment. While I can appreciate the misgivings from the gentlemen on the Opposition, I still feel that we are wasting quite a bit of time on this Bill, because the Government, in its wisdom to appoint an ombudsman or a commissioner, will certainly look for a man with the highest integrity commensurate with high educational qualifications and such a man will certainly take on that post with the full knowledge of what is to be expected of him.

He certainly will not be a political stooge, because a man who can fill this office will be a man of dignity and a man whom everyone shou1a ··respect on both sides of the House. Now if repercussions or if recriminations were to be taken against such a public official, surely that man would have recourse to the court of public opinion and surely it would be disastrous to any government in a power to mistreat such highly, respected public official, and when we say as the bon. gentleman, my learned friend the member for St.

John's West has said that the Lieutenant=Governor in Council could remove a man for political purposes or political spleen. I do not think that we should really be so suspicious of governments- the Lieutenant-Governor.:. ·.: in Council. I really do not think so and I believe that we are wasting a lot of time. I have to vote against this amendment. MR. CROSBIE: Mr. Speaker, the hon. member opposite, the bon. member for Hermitage said he believes that we are wasting a lot of time - wasting a lot of time on what? Is it not the function of this House to discuss the legislation or the business that comes before it.

In the House of Commons at Ottawa a Bill may be months going through committee. There may be 100 or 200 amendments. Are we just to sit here because if we open our mouths at all, we are wasting the time of the House1 We are trying to improve this legislation and we are advancing the arguments why it needs to be !~proved? 37G5

May 11th., 1970 Tape no 826 Page 4 Mlt. ·NEARY: ?~ · ··• · Now thehon. member knows why we cannot get on with the Budget debate. MR. CROSBIE: Oh, is that eorrect. Well the order of business - for the information of the bon. minister, is called by the Government and the Government today has called legislation again. The eighteenth day following the Budget Speech the Government has called business, other than the Budget Speech. MR. NEARY: Who is procrastinating? MR.

CROSBIE: The procrastination is on the side of the Government which does not wish to discuss the Budget or the Estimates until they can get certain other matters out of the way. That is where the procrastination is. In the meantime the Government has called legislation, and we are trying to get this Bill improved. The Government does not want it improved, Mr. Chairman. There is no time being wasted here. It is not a ~qqestion - oh, the bon. gentleman wants to have the right of veto now. He calls question, when somebody is in the middle of his speech and then a - ­ thing must be voted on.

We are not allowed to speak in the House now, is that what the bon. minister wants? AN . HON. MEMBER: If ·you hesitate, he becomes speechless. MR. CROSBIE: Is that what happened. Well I am not speaking baby talk this afternoon, Mr. Chairman, and that is causing some trouble with the bon. minister. Hr. Chairman, the government at Alberta - we are not too much concerned about what the tovernment of Alberta has done.

We know the Government of Newfoundland and that is the Government we are familiar with and if this Hause is going to appoint a parliamentary commissioner, who is going to feel safe and secure in that position, then this Clause needs to be changed, because we know the Government of Newfoundland that will 37G6

May 11th., 1970 Tape no 826 Page 5 be in office until the next election, and he will need some protection, the protection that is suggested by the bon. member for Burin. The government of Alberta and this Government are two different governments. It is not a question of the ombudsman getting anyone. It is a question of, can the ombudsman •• MR. NOLAN: You are the one who said "go !!or the jugular'; we did not. MR. CROSBIE: Just listen to the bon. minister. Just listen to him. MR. NOLAN: It is a vampire you want, not a man. MR. CROSBIE: Watch out for the old jugular and for Achilles heel, too.

Here is the third report of the ombudsman, Mr. Chairman, of New Brunswick. A very fine report in the Province of New Brunswick and this gentleman is doing a lot of work there and his report is really excellent: The parliamentary commissioner can mean a lot if he is setup in the right circumstances. He does not have to get anyone. He has to investigate complaints against members of the executive branch of the government as to injustices that may have be done to them. But, Mr.

Chairman, if he knows that he is at the mercy<·of the Cabinet, that the Cabinet at any time can suspend him for alleged misconduct or alleged neglective duty and so on, he is going to be stymied, and he is going to know. We are not going to get the right type to accept appointment, if he has to accept appointment under these kind of terms. How can we? That is what is at sta'e here.

If the parliamentary commissioner is to be a judicial figure theMhe should have some type or kind of judicial independence and surely a requirement that the Lieuteaant-Governor in Council have to prove to some outside body that there has been an neglect of duty or misconduct, is only reasonable, otherwise this man is entirely in the control or under the control of the Lieutenant~Governor in Council and if he does anything to annoy those that are in power, he will not be a parliamentary commissioner very long. We have had ample evidence of th~t kind of spirit in this House. 3767

May 11th •• 1970 Tape no 826 Page 6 Mr. Chairman, I certainly am going to vote for the amendment. MR. HICIQA'..AN:Mr. Chairman, if I may. The bon. member for Hermitage says that he is sure that the Government will not appoint a gentleman except someone of absolute integrity and complete independence. May I remind, the bon. member for Hermitage that this man is a servant of the House, to be.appointed by the House, when it is in session. This is the first principle of the Bill. The main principle of the Bill is that the ombudsman is the servant, not of the Government, but the servant of the House.

Now you have a situation which can arise when the Hduse,i•t:e.ot in session and the principle of the Bill is to guard against anything which will take away from the House its absolute right and what I say to the bon. minister who introduced this Bill and I remind the House again hkat the bon. the Premier stated categorically that anything could strengthen this Bill, that the Government would not be indifferent to such an amendment and this obviously strengthens this Bill. Of course it strengthens it.

It means that before you take the very awesome step of removing a man who has been appointed by this House, before Cabinet decides to over-rule the House that it has to be very careful of its grounds and having arrived at a conclusion - it would be a very difficult conclusion to artive at, and having decided that because of the forecause that they must take this step, then surely the very fundamental right of having to apply to a judge of the Supreme Court of Newfoundland should apply.

The comment that was ' made earlier that the ombudsman would have the right of access to the courts is a lot of nonsense, because the Lieutenant-Governor in Council, under the present

section would be acting within the rights :if this House conferred on it, if it suspended him and in any event, may I remind bon. members -~ that the only~you can take action against the government is by petition of rtght and in petitioning Her Majesty through the Lieutenant-Governor for the right to sue Her Majesty, you would have to show that the Lieutenant- 37G8

May 11th •• 1970 Tape no 826 Page 1 Governor in Council acted beyond its powers, but ~he powers are conferred right in the

section 7(2) that is presently before this committee and what I say to the bon. minister who introduced this Bill; if this

section strengthens the Act, if it improves on the Act, which it obviously does, then how in the name of common sense, if you want it to work, how could you possibly vote against this amendment. MR. HICKEY: Just a couple of questions I have, Mr. Chairman, before the amendment is voted on. My understanding of the amendment is that as my bon. colleague would perfer to have the courts suspend the ombudsman. I was of the opinion that the only way a Government can be sued is if the Government elects to be sued.

In other words, if a person wishes to sue the Government or the Cabinet, if that Government does not wish to enter into a case in court,they can elect not to. Now, Mr. Chairman, if that is the case, I will certainly have to support this amendment, because it is my feeling that if we are going to empower the Cabinet, the Lieutenant-Governor in Council, to suspend this person, we are taking away from him the very right that we are protecting of the average citizen.

As I understand it and I have the honour and pleasure to serve on the committee to inquire into the setting up of an ombudsman and I might add that I am very much in favour of such an individual, but as I understand it, Sir, the very purpose of this Act is to give to all our citizens the right of appeal, a recourse to a person or a body, if they feel that they have been unjustly treated. Are we now saying that we are going to give this right to every other citizen, but we are not going to give it to this man himself.

Now surely, surely this is not too consistent, and if it can be agreed that if the Cabinet should decide, after the ombudsman were to appeal his case, that they have made a decision on the man and will not go any further, then certainly, certainly we are not being quite fairto this individual and a proper 3769

May 11th •• 1970 Tape no. 826 Page S place for his case to be heard would be in the Supreme Court, which this amendment covers and which in fact, we are saying, lf we are going to suspend the ombudsman while the House is not in session, then let us do it through the courts. MR. BURGESS: Mr. Chairman, a few words of reference to what the bon. member from Hermitage said and I believe he was quite correct.

He said, "iurely the office of an ombudsman would be filled with a man of integrity, education and with complete dignity." But I respectfully submit, Sir, that the man with great integrity, I am sure, that this ombudsman will be, but this completely irrevelant to the fact of whether be holds the job or not if he tread on somebody's toes and as far as dignity goes, some of the most dignified people .·,N the world have had their throats cut from ear to ear - the more dignified you are, the easier it is too happen, apparently and naturally education will be very helpful, A man who is highly educated in this job,it will be very helpful to him in the performance of his duties, but I respectfully submit, Sir, that education is not going to hold his job dovn for him either, if the Lieutenant-Governor of if this House of Assembly decides, the majority of this House decides that he is not going to remain in the )ob for any reason, and I am in complete accord with the hon. member from Burin when be said that any amendment that would lend any degree of strength to this Bill, because the concept of this Bill is tremendous,but any amendment that would lend any degree of strength to this Bill should be automatically and considered by this House instead of rejected, because of the fact that it was presented by people in Opposition. :HR.

CHAIIU!AN: Those in favour of the amendment please say "aya" Contrary "nay." I take it that the "nays" have it. MR. CROSBIE: I want to move an amendment. The amendment was defeated. In view of the fact, ~rr. Chairman, that this amendment has not been accepted 3770

May 11th.' 1970 Tape no 826 Page 9 by the Rouse, 1 would like to move that subsection (2) of

Section .7 be del.4:ed from the Bill altogether. It is my feeling that if this is to be left - if suspension is to be left in the hands of the Cabine .t, it is far better that the parliamentary commissioner that he not be able to be suspended at all, while the House of Assembly is out of session rathera than leave this power with the Cabinet. If subsection (2) stays as it is 3771

Hay 11th, 1970 Tape 827 JM- 1 MR. CROSBIE: stays as it is the Cabinet has the powers to suspend a commissioner at any time, and it is better for no-one to have that power and I therefore move that amend- ment. MR CHAIRMAN: Shall the amendment carry? Those in favour please say "aye, contrary "Nay". I take it that the "Nay's" have it. On motion Clause 7, as amended, carried: Clause 8: MR. CROSBIE: Mr. Speaker, this is an important piece of legislation and we want to discuss these various sections. Now here is a

section here, Mr. Chairman, sub-section (3) of Section (8) states ·that if any vacancy occurs in the office of Ombudsman while the Legislature is not in session the Lieutenant-Governor in Council may appoint a commissioner to fill the vacancy and unless his office sooner becomes vacant the person so appointed holds office until his appointment is confirmed by the House of Assembly. Mr.

Speaker, my feeling is that only the Legislature should be able to appoint this official and the Lieutenant-Governor in Council should only be in accordance to the wording of (2) of Section (4) should only be able to appoint them on the recommendation of the House and I believe that sub-section (3) is wrong. If the Legislature is not in session then the office should remain open until the House of Assembly meets again when the House of Assembly can recommend the Lieutenant-Governor in Council who to appoint not to have the Cabinet appoint the official in the meantime. Mr.

Chairman, here is a Cabinet: the Government composed of sixteen or eighteen or ten or twelve people who are going to be appointing this Parliament- ary Commissioner whose job it is to investigate any illeged injustices that may happen throughout the administration for which the Cabinet or Lieutenant- Governor in Council is responsible for and in control. Yet this sub-section also suggests that the Lieutenant-Governor in Council should appoint him and then, of course, once he is appointed the House of Assembly is just going to have to ratify him, well what else are they going to do, or to confirm him.

The whole procedure is wrong. Mr. Chairman, I suggest that the Government consider deletion of sub-section 3772

May 11th, 1970 Tape 827 ~·· - - MR. CROSBIE: (3) of this clause. Therefore I will move that sub-sections (2), (3) and (4) of Clause (8) be deleted. MR. BURGESS: In the last

section we dealt with the Lieutenant-Governor removing him and now we are dealing with the Lieutenant-Governor appointing another individual. I am in accord with the hon. member for St. John's West.

If an appointment is made by the Lieutenant-Governor in Council as he has pointed out all that remains for this House to do would be to ratify this appointment at the next session but supposing the set of circumstances arose where they did not,for reasons best known to the Government, did not ratify this temporary appointment it would create a very embarrassing set of circumstances between the Lieutenant-Governor in Council and the House of Assembly or the Government.

I think that if/more or less creating problems which will be tracked from the effects of this Bill and I support the amendment by ·tbe member for St. John's West. MR. HICKMAN: Mr.

Chairman, if the present sub-sections stand as they are now this House is leaving itself wide open to the type of unfortunate debates that we have been witnessing in the Congress of the United States concerning the confirmation of nominees of the President to the Supreme Court of the United States and no matter what you may think of that countries institutions of Government I do not think that it is the type of judicial process that we would ever like to see implemented in Canada. Mr.

Chairman, we will find ourselves in -this unfortunate situation that the Lieutenant-Governor in Council has decided in its wisdom or otherwise to nominate a person or appoint a person to fill a vacancy. This becomes public knowledge. The gentleman so appointed assumes office and functions with the same rights as if he had been appointed by this bon. House. He knows that after the next session of the House commences that within two months his appointment has to be confirmed.

That is the only difference but he continues to function on, it could be eight or nine months, appointed solely by - the Lieutenant-Governor in Council. Then his name comes before the House for confirmation or otherwise, this is when you get into, the danger is that you could get into real political partisanship. This is when the danger would arise if we would have debates arise similar to what they had in 3773

May 11th, 1970 Tape 827 MR· HICKMAN: the Congress of the United States over the nomination of Judge Carswell to the supreme court of that country. This surely is the very thing that any Government bringing in a ·Bill if it wants it to work, if it wants a Bill to do something more than window dressing surely goodness this is the sort of thing that it wants to avoid. This is an open invitation to have the very thing that no-one I hope in this House wants te see implemented here may follow if this

section stands as it does right now. May I remind hon. members that it is most unlikely that the Ombudsman will be appointed by this session of the House, most unlikely unless this session continues longer than is anticipated. So this very likely opens the probability of the first Ombudsman in Newfoundland being appointed by the Cabinet and then coming to the next session of this House for confirmation within thirty days and so ad infinitum and we may never reach the stage.

Well the Ombudsman of Newfoundland will .. ever be appointed in the first instance by this House and surely as the hon. the member for Bonavista South and the hon. the member for Hermitage said, this is the real principle behind this Bill that he is to be an appointee of the House not of the Government, so what is going to happen.

The legislation is passed, the Ombudsman is~obtained in August or September appointed by Cabinet, next session in the House comes up to be confirmed unless he is a man of very disreputable character it is most likely that the House will then confirm it but the House is not appointing, it is simply confirming. The appointment has been made and then five years later this man retires or he is removed or he dies or he becomes ill or a dozen other reasons and again between sessions, this House will never get a chance to appoint an Ombudsman if this

section stands as it is ·· today. This is not an attempt to defeat the principle of the Bill at all. The comments that I have heard from the Government side of the House would almost suggest that the principle of the Bill is at stake here. It is not at stake. All these amend­ ments have been to strength this and this amendment here, Mr. Chairman, I am sure you will agree that the amendment that we are now debating, the amendment to remove from the sections which is designed to take away from the House the 377Ll

May 11th, 1970 Tape 827 JM- 4 MR. HICKMAN: rights that we believe to be imposed on the House that this amendment is a good one and again it strengthens the Bill and this is why I have to support it and I would be very disappointed if hon. members on the Government side of the House did not. MR. SMALLWOOD: Mr. Chairman, I did not intend to participate in this debate but ever I have heard arrogant nonsense I heard it now a moment ago. The appointment of the Ombudsman is in the hands of the Government - MR. RICKMAN: Of the House. MR. SMALLWOOD: Of the Government. MR. HICKMAN: Of the Rouse. MR.

SMALLWOOD: Of the Government. MR. HICKMAN: Well then you can read it again. MR. SMALLWOOD: I have read it. It is the Government that appoints the Ombudsman not the House. The Lieutenant-Governor in Council appoints the Ombudsman on the recommendation of the Rouse. The House does not appoint the auditor general. The Government appoints the auditor general and the Government appoints the Ombudsman on the recommendation of the House. The House recommends it does not appoint, the Government appoints the Rouse recommends.

Now when this Rouse session prorogues or takea : a long ;adjournment:wbich ever it happens to be the Government gets round to finding the right man to be Ombudsman. The Government appoints him if the House is not in session and when the House then meets the name is put before the House and if the House does not recommend him he goes out because he can only be appointed on the recommendation of the House but he is appointed by the Government.

Now suppose a man is appointed on the recommendation of the Rouse and takes office and the House prorogues or adjourns, it is in session three months and out of session nine months and anytime during the nine months the man dies, the Ombudsman dies, the Ombudsman gets cancer, the Ombudsman gets hopelessly crippled, the Ombudsman has a stroke, the Ombudsman is completely incapable of doing his work or the Ombudsman breaks out drinking or the Ombudsman gets into serious legal trouble, anything happens, any of the causes for his removal crops up when the House is out of session for nine months.

Do we do without an Ombudsman? Do we do without 3775

May 11th, 1970 'l'ape 827 "" - ~ MR. SMALLWOOD: one? No, we do not do without one. We call the House together to appoint, to recommend one, not necessary. How do we get an Ombudsman? MR. HICKMAN: Appoint someone to fill the vacancy until the next session of the House. MR. SMALLWOOD: That is what the Act says, that is what the Bill says. The Bill says that in the case of a vacancy the Government appoints a Lieutenant-Governor in Council which is a long way of saying the Government. The Government appoints the man and he holds office until the Legislature next meets.

His appointment is good only until the Legislature next meets and when it meets the Government puts that name forward. Remember that the name that will be put forward will be put forward by the Government to the House. If the House by simple majority recommends then the appointment is good. The same exactly as with the Auditor General, exactly the same. Of all the trashy nonsense and I have heard a lot in my time and maybe I have uttered some too but I certainly have heard a lot and this is about as bad as any I have heard. Of course, we will, I am sure we will vote against this amendment. MR.

CROSBIE: The Premier says that the Government must appoint the Ombudsman. In the natural order of things this is like the selection of the fittest or Darwin's theory. "The ~olution of the Fittest". Just looking at this third report of the Ombudsman of NewrBrunswick, Denmark appointed by whom? By Parliament and after every general election. Finland appointed by whom? Elected by simple majority of Parliament. I MR. SMALLWOOD: That is what we will do. MR. CROSBIE: The elections have been influenced by partisan and consideration. Generally two or thr.ee candidates nominated, at least that is being honest about it.

New Zealand appointed by the Governor-General on the recommendation of the House who represented it. MR. SMALLWOOD: Same as here. MR. CROSBIE: That is right, exactly. I can understand English and I am glad to see the bon. the Premier can. Norway appointed by Parliament - MR. SMALLWOOD: I can also ~peak. 3776

. ..-.~ ---~··, -... . . MR. CROSBIE: Ah, he is a great orator. MR. SMALLWOOD: I can also speak English. MR. CROSBIE: Imagine and double Dutch. MR. SMALLWOOD: Yeah, what an accomplishment. MR. CROSBIE: And double Dutch. MR. SMALLWOOD: What an accomplishment. MR. CROSBIE: And double Dutch. MR. SMALLWOOD: But the bon. gentleman cannot. MR. CROSBIE: When the bon. gentleman is on VOCM that is when we hear the double Dutch and the English too. Norway appointed by Parliament after every general election. MR. SMALLWOOD: And this one will appoint. MR.

CROSBIE: Sweden elected by Parliament, committee composed of forty-eight members, twenty-four members of Parliament from each Chamber based on the proportional strength of the parties in the two Chambers, generally an unanimous election. Quebec, Canada, on motion of the Prime Minister the Legislative Assembly makes the appointment which to be valid must be approved by two-thirds of the members. That is the appointment in Quebec must be approved by two-thirds of the members. Hawaii, appointed by both Houses in joint session by a majority vote at each House. MR. SMALLWOOD: That is all they did here.

It is done here the same way. MR. CROSBIE: Mr. Chairman, I will sit down if the Premier wants to speak and then speak when he has concluded or I will continue with the speech that I am making now, the comment that I am making now. The comment is this that in the majority of these places this official is appointed by Parliament itself. Now there :are some places such as Alberta appointed by the Lieutenant-Governor in Council on the recommendation of the Legislative Assembly which is what is suggested here. But what is suggested in this Bill, Mr.

Chairman, is not the only way in the world how an Ombudsman is appointed. In most jurisdictions particularily in the ones where he is being most affective and particularily in Scandinavia be is appointed by Parliament and not by the Lieutenant-Governor in Council. In this particular

section here, Section (8) the Ombudsman can be appointed by the Lieutenant-Governor in Council and this House will never get a chance to 3777

Kay 11th, 1970 Tape 827 JM- 7 MR. CROSBIE: appoint him or dis-appoint him. MR. SMALLWOOD: Nonsense. MR. CROSBIE: Now the bon. gentleman will listen. He will learn. Now· Section (8) (1) if the Commissioner dies, retires, resigns or is removed from office the vacancy thereby created shall be filled in accordance with this section, (2) if any vacancy refered to in (1) occurs while the Legislature is in session but no recommendation is made by the House of Assembly before the close of that session sub-section (3) applies as if that vacancy had occurred while the Legislature was not in session.

Now mind you there is going to be no recommend­ ation made by the House of Assembly unless the Government makes it, unless the Government brings it in and has it passed through this House because the Government is going to control the majority of the votes in the House. (3) if any vacancy occurs while the Legislature is not in session the Lieutenant-Governor in Council, that is the Cabinet, that is the gentleman opposite on the front benches all eighteen of them, that is the Lieutenant-Governor in Council, those are the people who control this Province and the affairs of the Government of this Province, the Lieutenant-Governor in Council may appoint a commissioner to fill the vacancy and unless his office sooner becomes vacant the person so appointed holds office until his appointment is confirmed by the House of Assembly.

So now he has been appointed, the House is not in session and he is being appointed by the Cabinet. (4) if an appointment under sub-section (3) is not confirmed within two months after the commencement of the next ensuing regular session of the House of Assembly the appointment lapses and there shall be deemed to be another vacancy in the office of commissioner following which the Lieutenant-Governor in Council can make another appointment to the office which will be good until two months after the next House meets or they can appoint the same man. Under this

section they need never have the House of Assembly approve their recommend­ ation. That is the effect of that

section and that is why the amendment is that the sub-sections (2), (3) and (4) be deleted because it is not satisfactory. If there is a vacancy occurs in that office while the House is not in session, in my view it is better to wait until the House is in session and have the House 3778

•.. May 11th' 1970 Tape 827 JM- 8 MR. CROSBIE: appoint the replacement, not to have the Government appoint the replacement. The whole emphasis is wrong. He is supposed to be an official of Parliament, the Legislative branch not an official of the executive of the Cabinet, the judiciary, the legislative and the executive,in the United States the three powers are separated. In Canada unfortunately the executive and the legisla~ive are not separated. The executive today controls the legislative.

It is just as well to forget this fiction about the great independent Houses of Assembly and Parlia- ments, that is nonsense. They are controlled today because of our party system by the executive, the Cabinet controls this House and it is no good trying to fool anyone and say this is the peoples House and the House controls the Govern- ment, that is malarkey~ . The House is controlled by the Government because the Government controls a majority of the members of the House.

That is what is happening in the last fifty years and this official should be appointed by this House not by the Lieutenant-Governor in Council. They should have nothing to do with him and that is why the amendment is moved. MR. HICKMAN: Mr. Chairman, if 1 may continue this arrant nonsense for a few minutes, as the hon. Premier referred it. May 1 refer this Committee back to Section (4) and there is a very vital distinction between Section (4) and Section (8). Section (4) provides for the appointment by this House by the Lieutenant-Governor on the recommendation of this House.

The Lieutenant-Governor in Council has no discretion. The Lieutenant-Governor in Council shall appoint the Commissioner on the recommendation of the House of Asseably. If this House recommends Tommy Toe the Lieutenant-Governor has to appoint him Ombudsman but then we come to Section (8) which is a horse of another colour. This talk in Section (8) is not appointment, it is confirmation and that is a horse of another colour altogether.

There the appointment has been made when a vacancy occurs, the appointment is now made by the Lieutenant-Governor in Council and then this Rouse is called upon to confirm or otherwise. The original appointment if the Rouse is open is made by the Lieutenant-Governor in Council on instructions from this House. You appoint, do not question it, none of your business, we have told you to do it, you must do it but the reverse applies in so far as Section (8) is concerned and this is why Section (8) as it now stands can destroy the whole 3779

Kay 11th, 1970 Tape 827 JM- 9 MR. HICKMAN: Ombudsman principle and this is why this amendment is not arrant nonsense, this is why this amendment makes good sense otherwise we are wasting our time passing this Bill at all as we will have destroyed the a.budsman before he is·ever appointed. MR. BURGESS: The bon. the Premier when he was talking about this

section became very emotional. He dealt with the reasons why the Ombudsman can be removed, •isconduct, bankruptcy, disability, neglect of duty and he quite rightfully stated that if the House is out of session nine months of the year well then somebody has to have the authority to appoint somebody for this period of time that the House is not in session but - 3780

.... May 11, 1970 Tape #828 Page 1 MR. BURGESS: But then, when I looked into that kind of an argument Mr. Speaker, I cannot reconcile it with Sub-section (2) of

Article 8 where it stated that any vacancy referred to in Sub-section (1) occurs while the Legislature is in Session, but no recommendation is made by the House of Assembly. Now I cannot see any reason for the inclusion of those words - no recommendation by the House of Assembly. If the House is in Session a recommendation should be made and we are presuming and allowing that the House could be in Session and an ombudsman - the Province could be without the services of an ombudsman and we are allowing that the House need not necessarily make a recommendation. And I do not see any reason at all where this Sub-section (2) of

Article 8 should be in the Bill at all. MR. CROSBIE: Clause (9) Mr. Chairman, states that the Parliamentary Commissioner be paid an annual salary of $20,000 and that there shall be paid to the Commissioner in respect to time spent in travelling and the exercise of his functions, such travelling allowances and expenses may be prescribed by the Lieutenant-Governor-In-Council again. So here is another avenue where the Lieutenant-Governor-in-Council are going to control the Parliamentary Commissioner. They have to prescribe what his travelling allowances and expenses are going to be. ·Now Mr.

Chairman, what has happened in other Provinces in this respect? And other jurisdictions? How big a staff should he have? Alberta has had a Parlia­ mentary Commissioner for some time now, and according to the report on the New Brunswick ombudsman, Mr. McLellan who is the ombudsman in Alberta, wrote him and he said my staff at the moment consists of a full-time solicitor, ~o investigators, my secretary and three stenographers.

We have recently added a complaint analyst whose function will be to screen all in-coming complaints against the Act and ensure that there is jurisdiction · to consider discretions, and to establish that the complaint is one with which the ombudsman may deal. Now Mr. Commissioner that is Alberta. How many are there in New Brunswick? In New Brunswick is a 3781

May 11, 1970 Tape #828 Page 2 full-time solicitor, a bilingual secretary - a part-time legal advisor and a bilingual secretary. In Quebec there is a staff of eight with a possibility of sixteen. In Hawaii, three. One of whom will be the executive secretary. So if this ombudsman is to do very much here in Newfoundland, as the bon. the Leader of the Opposition said, when this matter was being debated a week or two weeks ago. He is going to have JW to have a Budget. He is going to have to have at least part-time legal advice.

He is going to have to have a staff of probably two other people, and it is going to cost this Province seventy or eighty thousand dollars a year to do it properly. Around $100,000 by the time this matter really gets going. Now it is interesting Mr. Chairman to note in the report of the New Brunswick ombudsman, the third report for the period ending December 31, 1969, Page 30.

He says, '"that his experience dealing with the grievances of individuals has lead him to agree with others in the importance of two principles which are not new, but need from time to time to be emphasized and restated, and these principles apply here in Newfoundland Mr. Chairman. The principles are

(1) Fair procedure rules must be followed by persons exercising statutory power granted by the Legislature when the use of such power involves the personal rights, duties and privileges of New Brunswick residents.

(2) Appeals should be provided from the decisions of persons exercising statutory power when such power involves the personal rights, duties and privileges of New Brunswick residents. These are the two principles. If you have those two principles Mr. Chairman, you hardly need the ombudsman. The trouble is that we do not have these two principles in full force here in this Province, as many other Provinces do not.

And one avenue where we do not have them is an avenue that has often been mentioned, and that is in connection with the Newfoundland Liquor Commission, where there is no appeals and no procedure rules at all. And it is also interesting to note Mr. Chairman, that Mr. Flemington, theNew Brunswick Commissioner, sai~ that he discussed with Mr. Wishart, that is the Attorney General of Ontario, the Legal Aid System in Ontario, and he concurred with his 3782

May 11, 1970 Tape #828 Page 3 comment that social ills can be and sometimes are more important to individuals than physical ills. And then he goes on to describe the Ontario Legal Aid system, which costs about one dollar for Ontario residents per annum, and points out and recommends the system of Legal Aid for New Brunswick.

This is what the ombudsman bas found in the Province of New Brunswick - important matters that should be dealt with, Legal Aid, the right to appeal from government agencies where they have power to affect the private rights and duties of ordinary citizens, and fair procedural rule, followed by those persons. lf you have that, then you hardly need the ombudsman. Now Mr. Chairman, the ombudsman if he functions properly in Newfoundland is going to cost us at least sixty or seventy thousand a year. That is being modest saying that, including his own annual salary.

But number two; if he is really to be effective, how can his travelling allowances and expenses be prescribed by the Lieutenant-Governor-in-Council. Once again the Cabinet is deciding how much travelling he is going to do and what his expenses will be. So I would move Mr.

Chairman, that Sub-section (2) of Section (9) be amended by deleting the words "as may be prescribed by the Lieutenant-Governor-in-Council." And replacing them with the words "as are properly incurred in the exercise of his duties." So that the Sub-section will then read, "there shall be paid to the Commissioner in respect to time spent in travelling and the exercise of his functions, such travelling allowances and expenses as are properly incurred in the performance of his duties." This should not be a matter prescribed by the Lieutenant-Governor-in-Council Mr. Chairman. MR.

SMALLWOOD: I do not want to delay, but obviously the payment of the salary to the ombudsman and the payment of any money he is to receive for his travelling expenses must be voted by this House. The only authority there can be for his receiving money is the authority that this House gives. The Government will bring estimates of expenditure 3783

... .... May 11, 1970 Tape #828 Page 4 before the House for everything including his expenses~ . His salary can be made statutory. That can be made a statutory salary, in fact it is statutory, it is in the Bill, and the Bill will become

an Act, and so his salary is statutory. And the House will not vote it each year, it is automatic. It will be in the Estimates and not voted, because it is automatic. It is statutory, But his expenses Sir, will have to be voted each year by th«·House, and the amount that will be voted will be the amount put in the Estimates by the Government. And who else can put in the amount? A priva~e member of the House is not permitted under the law, under the Consituttion to move that it be increased.

He can only move that it be decreased, The money to pay the costs of the omdudsman's expenses, travelling or office or any other expenses, must be entered in the Estimates. And must be voted by this House. Now who decides what will be entered in the Estimates? The Government, and no one else. And once the Estimates are bought here, we will be debating the Estimates shortly, and no member of the House except a member of the Government, no member of the House may move that that amount be increased, that is against the law. It is against the Constitution. But any member may move thkt it be decreased.

It is the same thing with the expenses of the ombudsman. They will be entered in the Estimates. They will be put before the House to vote for it, and the House can either vote for it or against, but cannot increase, cannot increase it except on motion of the Government. That is the Constitution and I did not make that up. I did not invent that system. So this clause in the Bill which provides that the Lieutenant-Governor-in-Council shall say what the expenses shall be, or how much money shall be voted for the expenses. It is the same right that the Government has with everything.

For instance the Auditor General's office. This House, the Auditor General's own salary is a statutory salary, but the expenses of his office you will find, are voted by this House. And unless they are voted by this House, he will not have any money. All he will have will be his own salary, but the expenses of the Auditor General's Department must be entered in 3784

JW May 11. 1970 Tape #828 Page 5 the Estimates and voted by this House or you get no money. The House has to vote the money. but who determines how much money will be put in the Estimates? The Government. Who can move that the amount be increased? Only the Government. Who can move that the amount be decreased any member of the House. That is why it is that members of the House, private members, members of the Opposition will frequently move that a minister's salary be reduced to one dollar. But they cannot move that it be increased by one dollar.

They cannot put a dollar on, but they cut it all out except one dollar. They can reduce it to one dollar. The same thing applies to the Auditor General's expenses, and the same thing will apply to the ombudsman's expenses. The only thing that will be statutory will be his own salary. The same as with the Auditor General. MR. CROSBIE: Whether there is anything said in the Bill or not, the ombudsman apart from his salary would not be able to spend a nickel if the Estimates were not brought before this House to authorize it. This is not what this Clause says.

This clause could say such travelling allowances and expenses as may be voted by the House of Assembly. But it does not say that. It says, "such travelling allowances and expenses as may be prescribed by the Lieutenant-Governor-in-Council." Now this Rouse can vote Estimates.

The Government puts the Estimates before the House for any department. or for the Auditor General's department or for whatever, But that does not mean to say that that official or that department is going to spend all that money, because the Lieutenant-Governor in-Council 1 the Cabinet can decide during the year, they do not want them to expend the money. or they want to have the money transferred from that vote to use in another vote. It is the Cabinet who controls the money.

We could vote $100,000 under the heading of Expenses for the Parliamentary Commissioner, and the Cabinet could prevent them fr~m having a cent of it, or could let them have $5,000 of it, and transfer $95,000 somewhere else and so on. So - By the way there is nothing in this year's Estimates as far as I know, at least I saw no heading. nothing in this 3785

JW May 11, 1970 Tape #828 Page 6 year's Estimates at all for the ombudsman or Parliamentary Commissioner. At least I have not seen any

section of the Estimates where bis~salary, or any expenses of hts office are provided for. So it is the Rouse that should vote the ombudsman money for his travelling allowances and expenses, not as prescribed by the Lieutenant-Governor-in- Council. An amount should appear in the Estimates, it should be voted and the Lieutenant­ Governor-in-Council should not have any control over it afterwards, to reduce it or whatever. It should be a matter between this House and the Parliamentary Commissioner. MR.

SMALLWOOD: Mr: Chairman, the hon. member does not seem to understand that when the House, when the Government brings before the Rouse each year as it does, its Estimates, the Government's Estimates of what money it will need to spend in the coming year, and ask the House to authorize these expenditures, that it is not then mandatory upon the Government to spend it. Anyone who is not an ignoramus knows that. Anyone who is not an ignoramus knows, because evidently somebody needs to learn it. MR. CROSBIE: I just said it.

I just explained it to the House, not the bon. gentleman is getting up and pretending he discovered it. MR. SMALLWOOD: I discovered lt just now, just while the bon. gentleman was speaking, he educated me to this. I did not know it before. Every single dollar in the Estimates this year, except for the statutory amounts are only the Government's Estimates of what it will need to spend in the coming year and asking the House for authority to spend it. But it is not mandatory upon the Government to spend one single nickel, . except what is mandatory. Are you going to make that different?

You do not make it different for the Auditor General. You do not make it different for the Lieutenant-Governor. Well they do not, and we will not. It is not mandatory upon the Government to spend money on the establishment of the Lieutenant-Governor. It is not mandatory upon the Government to spend money on the establishment of the Auditor General. And it should not be mandatory upon the Government to spend money on the ombudsman, but what the Government ought to do and does very rightly is come to 3786

JW May 11, 1970 T«pe #828 Page 7 the House and ask the House, first of all present the House with its estimate of what the Government wishes to spend on the Lieutenant-Govenor's establishment, what it wishes to spend on the Auditor General'~ establishment. what it wishes to spend on the ombudsman's establishment, and get authority from the House to spend it. That does not make it mandatory that the Government shall spend it, anymore than it makes mandatory any single item in all the estimates of the thousands of items that are in the Estimates.

The Government only comes in with an estimate of what it will spend and ask authority to do it. But it is not mandatory that the Government shall do it, except words where it is statutory. For instance, the salary of the Auditor General is a statutory salary, the payment of interest on the public debts is a statutory expense. The provision of money for a sinking fund is a statutory provision, and the salary of the ombudsman would be a statutory provision. And it is only what is statutory that the Government must spend. The rest is permissive. Its authority to spend it provided the Government can find the money.

The Government cannot always find the money that it has these legislative authority to spend. The House gives it the authority to spend always provided you have the money, when the Government for instance during the year, runs short of money for a given purpose, the House has not voted money for that purpose. The Government then can move the Governor to issue his warrant for the spending of that money, and the Governor then issues his warrant upon being moved to do so by the Cabinet. But the mere issue by the Governor of his warrant to spend, does not create any money.

All that does is give the Government the authority to spend it in the absence of the House, when the House is not in session and they run short of authority, they can go to the Governor and get the authority from the Governor. But getting authority from the Governor does not create money, anymore than giving authority from the House creates, neither creates money, both give the authority to the Government to spend it. It is completely primitive and elementary information about public finance, and yet we get here and suggest that it shall not be left to the Estimates. It shall not be left to the Budget.

It shall 3787

.JW Kay 11, 1970 Tape 1828 Page 8 not be left to the general scheme of public finance to settle how much money the ombudsman may have for his expenses. Oh yes, settle for his own salary but in addition to that, settle for his expenses. How? Who is going to settle it? You just leave it to the ombudsman? No member, no private member may move that any money be spent that is unconstitutional. Only the Government, only the Queen's ministers can move in this House that money be spent. A private member may move that money shall not be spent.

Or when the Government moves that it be spent and names the amount, a private member may move that that amount be less. He cannot move that it be a nickel more. Who therefore, is going to settle the amount that will be put to the House to vote for the ombudsman. Who is going to propose it to the House? Private members cannot. It is unconstitutional. Only the ministers can do that, and the way to do it is the way they do it in the Estimates. It is done every year.

The ministers come to the House and propose that the House give the ministers, give the ministry, give the Queen the authority to spend X amounts of money for X things. And you must include in those X things, the expenses of ~he ombudsman. There is no other way to do it, and you will find it is not done in any other way anywhere under the Union Jack in the world, nowhere in the world. MR. HICKMAN: Mr. Chairman, may I give you two citations under the Union Jack where it is done? One is in New Zealand and the other is in the Province of New Brunswick. Both under the Union Jack.

Now as I understand the function of payment for the ombudsman in the Province of New Brunswick, they follow a slightly different method insofar as the appointment of the approval of his salary is concerned. There, he is paid the same salary as a judge of the Supreme Court of New Brunswick which in effect means that the Parliament of Canada fixes the salary of the ombud.sman in New Brunswick, because the salaries of the judges of the Supreme Court of New Brunswick is paid by the Government of Canada, and is fixed by the House of Commons, not by the Legislative Assembly of the Province of New Brunswick.

But that it does give a certain degree 3738

May 11, 1970 Tape 1828 Page 9 of certainty to it, because there may be a change - the ombudsman's salary may be increased between one Session of the House and the next JW in New Brunswick, but still he gets the increase if the House of Commons votes it. In New Zealand they have, and the debate here is on the word"describe" for travelling allowances. In New Zealand they have

an Act called, the "Fees and Travelling Allowances Act," passed in 1951. And without going to the Lieutenant-Governor-in-Council in New Zealand at all, the ombudsman in New Zealand can spend any amount he sees fit, provided he stays within the Act. He does not have to go to the House of Parliament in New Zealand and have this voted for in advance. He does not have to go to the Governor General in Council and ask for approval. He is in the same position as provided in the Fees and Allowance Act, 1951. And that includes travel 3789

May 11 1970 Tape 829 page 1. MR.HICKMAN: It is called the fees and travelling allowance Act. 1959. If hon. members take a look at the New Brunswick Act there is no prescription no restriction on the travelling allowance of the ombudsman at all. MR.ROHE: Not in the Act. MR.HieXMAH; In the Act MR.ROtVE: What about somewhere else? _MR __ .H_ICK_MAN ___ :_ I do not know. there could be but,section, the next seetion which we will deal with when we come

section 11 of this Act indicated to me that there is no restriction on "the travelling allowance of the ombudsman. in the province of New Brunswick at all. MR.S}~LLWOOD: The restriction is the amount that the legislatwre votes, that is the restriction. MR.HICKMAN: It could be but I again, when we get back to what the legislature votes. Mr. Speaker, let us deal with the question of the Auditor General and the Comptroller. This House will vote an estimate of what the travelling expenses of these gentelmen will be.

But this House does not, the Lieutenant Governor in Council does not prescribe that because if the Comptroller General or the Auditor General during the fiscal year finds himself in a position where he has to incur reasonable le~itimate travelling expenses over and above that voted in the estimates he is going to do it but this

section ~ay.s not nhat the House will have to vote the money but that the Lieutenant Governor in Council '<till prescribe, and that is the horse of another colour. Mr.

Chairman, that means that the Cabinet can say to ombudsman, "look you are not to go down to Labrador City and investigate a situation or a complaint that has arised there because we are not going to approve of your travelling expanses." So what is the point of having the ombudsman, this Bill as it stands now will defeat the ombudsman before he ever gets started; MR.S~'ALLHOOD~ Hr; Chairman, the Government will bring a budget before the House before the Committee. MR.CP.OSBIE: Mr. Chairman, who has the floor? Mr.

Chairman, the bon. the Premier is never more loquacious and when he is trying to confuse the situation. Now just a few moments ago I was up and explained that this House voted the 3790

May 11 1970 Tape 829 page 2. estimates so that the Government did not have to spend them and when I was finished explaining that and sat down the bon. the Premier jumped up to give up a startling revelation, that great constitutional principle we did not know before that although'·the House had to vote the estimates the Government did not bave•to spend them, It was not mandatory for the Government to spend them.

W~ll that is something that we had already clearly understood in the by House that is not the point,/the way the Union Jack, the Union Jack, there is two places now under the Union Jack where the Hon. the Premier was wrong about. And I do not doubt that if we searched a little further we would find many other -places under the Union Jack _,.rhere he is equally wrong. All that has to be done is,that estimates come before this House for the office of ombudsman, a certain amount for travelling allowances and expenses. How do they get there? The ombudsman by this Bill is supposed to report to the Minister of Justice.

He asks the Minister of Justice • He said: "I need $10,000 next year, based on my past experience, it is going to cost us $10,000 for travelling and other expenses in connection with my office, Would you please put the $10,000 in the estimates in your department? MR.SMALL~mon: Would you please, that is the ~ey word? MR.CROSBIE: He uses please just because it is politeness. MR. SMALLWOOD: That is the key word. Will you please do it? MR.CROSBIE: Right the Government does not have to put a nickel in. MR.SMALU!OOD: Right. HR.CROSBIE: But then the House will know that the Government is not putting a nickel in.

MR.SMALLHOOD: Ri~ht, right. MR.CROSBIE: And that the Government is strangling the ombudsman. MR. SMALL HOOD: Right. MR.CROSBIE: But, the way that the Government has got it now in this legislation we can vote the certain amount of money for the travelling allowances and expenses of the ombudsman it is in the estimates. But the Government chokes them off afterwards and will not prescribe this spendin~ any of it. That is what can happen if this is left. The amount is passed by this House and it 3701

... May 11 1970 Tape 829 page 3. ahould be a matter between the House of Assembly and the ombudsman. We should be asked to vote a certain amount of money for the ombudsman. He should then be at liberty to spend that if he needs to up to the amount of the · expenditure. He simply requests the minister of Justice to put the amount he needs next year in the estimates and the minister does so. That is all, there is no great mystery to this.

There is no great new constitutional principle involved in it none at all, except that if he is an official of this House the ombudsman• should be in direct relationship with us not hampered and with the Government at his throat controlling his every move and action. As may be prescribed by the Lieutenant Governor in Council that is what is objectionable.It should be as may be voted perhaps I do not care about the amendment it can be changed. Such travelling allowances and expenses as may be voted by the House of Assembly. MR.SMALV-TOOD: Who determines that?

MR.CROSBIE: That would be determined by what is in the estimates presented to the House. MR.SHALUlOOD: And who determines that? MR.CROSBIE: The Government determines that. p,