Manitoba Hansard — 26 June 1978 (Sitting 71B, 31st Legislature, 2nd Session)

31-2-71b

Manitoba — Debates (Hansard)

LEGISLATIVE ASSEMBLY OF MANITOBA Monday, June 26, 1978 Time: 8:00 p.m. SUPPLY - ATTORNEY-GENERAL MR. CHAIRMAN, Mr. Warren Steen : Gentlemen , come to order . We are innormed by Mr. McKenzie, who chaired this afternoon in my absence , that we are on 1.(b), Planning and Management,

(1) Salaries - pass - the Member for Selk irk. MR. PAWLEY: Mr. Chairman , I would like to deal in some general terms under Legal Aid with the Minister, because I believe when we deal with Legal Aid itself, that section, we should deal with detail , but in this case I would like to ask the Minister a question pertaining to policy. First , I would like to ask the Minister insofar as policy in the providing of Legal Aid services in Manitoba , whether that policy is determined in his government by the Board of Directors of Legal Aid or by government itself? MR. CHAIRMAN: The Attorney-General. MR. MERCIER: Well, Mr.

Chairman , I think to date the policy has been decided by the Board of Legal Aid . MR. PAWLEY: Is that to be the continued practice insofar as Legal Aid in Manitoba is concerned? MR. MERCIER: Mr. Chairman , I think we're all aware of the changes that Legal Aid had made as the result of some reduced funding this year.

Those changes have basically been in force since April 1st of this year and I would like, certainly prior to preparation of the Estimates next fall and hopefu lly much earlier, I to review with the Board of Legal Aid the experience that they have had in delivering Legal Aid services with their reduced funding . We have not yet received the budget for Legal Aid; we would like to receive that and I would like to review with them at the earliest opportunity possible, probably some time thisssummer or early fall , their experience with reduced funding in order to deal with the whole subject matter next year . MR.

PAWLEY: Then I would like to ask the Minister if he could deal with one particular aspect of Legal Aid, and that is pertaining to the provision of Legal Aid services to juveniles in juvenile court. Is it correct that Legal Aid Services are not provided to juveniles fac ing charges in Juvenile Court even in the event that that juvenile may face a term of incarceration? I know that generally there 's been a policy determination that Legal Aid Services will not be provided in Juvenile Court .

But I'm asking the Attorney-General whether, in instances where incarceration is a real probability , whether Legal Aid is provided . MR. MERCIER: Mr. Chairman, in the news release put out by Legal Aid, by the Chairman, they state : Legal Aid for Juvenile Court matters will be restricted to cases in which there is a likelihood , if the juvenile is found delinquent , of a committal to a juvenile institution or in cases in which the juvenile is liable to be transferred to an adult court.

In addition , I am advised verbally by the Chairman of Legal Aid that he has instructed the executive director that he does not wish to have any hardship imposed upon anyone as a result of the positions taken by the Board of Legal Aid. MR. CHAIRMAN: The Member for Wolseley is next on my list , and I might remind members we are on Planning and Management

section of the Attorney-General's Estimates . The Member for Wolseley . MR. ROBERT G. WILSON: Well , under Planning and Management this afternoon, we were talking about the crystal-balling and the possible indication by the Minister of some of the priorities and 4339

Monday, June 26, 1978 wishes that he indicated he would like to see for the future . I'm sure that many of us have similar aspirations for our areas as well as the province as a whole , and I can 't help but think of possibly the former Mayor, with his thoughts of a new aquarium , and of course the former Member for Elmwood, the new Autopac building . The Minister talked about a new Provincial Law Courts Building and a possible Provincial Judges Building .

Now out of that Plannnng and Management , it seemed to me that I had to express a concern of one , that whenever you build anything new you have the maintenance costs and all the things that go with it, and I wondered at what point in time would the Minister be supplying for those of us who are not turned on to the priorities expressed by the Ministerr , if he could supply us with information that might help us reach a decision , possibly in concurrence with himself .

I realize for years now the judges have expressed a desire to get out of the Public Safety Building - I stand to be corrected , you can correct me if I'm wrong - and I see noth ing wrong and I wondered if you could possibly elaborate on the difficulties that are involved in having a courtroom in St. Boniface, three or four courtrooms in the Public Safety Building and of course , two to four courtrooms in the Law Courts Building . I wonder what some of the problems might be that would sort of demand that we central ize this particular function .

I see certain advantages to it not being centralized and out of this grows a concern that has crime increased that much in Manitoba to go along with the seemingly number of unending appo intments made to and for the addition of provincial judges . Does the Minister possibly envision a study to see if the former government maybe appointed far too many provincia l judges and far too many part-time judges?

If we in turn make appointments , then we would be increasing the amount of provincial judges , part-time and full-time, to an extent where we may be diluting the system so that judges really weren 't doing a full day 's work. Maybe they might only be handling one or two cases a day rather than four or five . Sometimes when a person has a very light workload, they spread the work over a week to make it appear as if they 're overworked . I would like the rationalization for the new Provincial Judges Building . Would it not be better to renovate the present site of the Law Courts Build ing?

Is this the intention of the Minister or are we talking ... The Member for Selkirk was talking about a new building . Would it really not be just renovating the present facility? MR. MERCIER: Mr. Chairman, the process of consideration of a new Law Courts Building or a new Provincial Judges Building began some time ago. I believe it was 1964 under the then Attorney-General and now Premier . Unfortunately it hasn 't progressed much further than planning .

It might be interesting to note that in Manitoba our province has the lowest ratio of jud ges to population in Canada but there is, of course, still a concern that I have that the existing facilities and judges be used to the max imum possible degree of efficiency and we are certainly concerned with that and are continually reviewing that. The backlog of cases still continues to rise and I think there 's approximately six to seven months time now but we are reviewing that and hopefully there may be some things that we are able to do to expedite the process but it's a problem that exists right across Canada . MR.

WILSON: Well , before we get onto the rationalization of why we need a new Provincial Judges Building, I realize it started some years ago but we are in a period of restraint and it would seem to me that, in my humble opinion , a Provincial Judges Building and a new Law Courts Building would be very low on my particular ladder.

But I wondered , you talk about the lowest rate of the judge per population , if one was to consider the fact that the former Corrections Minister, and indeed many people have talked about Manitoba having a very low crime rate , so it would seem to me it is very unfair for the provincial judges and their planners to equate Manitoba to Quebec and Ontario where you have a larger influx of industry and possibly unemployment.

So, I'll leave it at that and await the Minister's material because if indeed he has not got any money in his Capital Works budget then we possibly would get some warning , because I would share the concern that the Cabinet wouldn 't try to have a special warrant to create a new Law Courts Build ing when I have so many things that I think would take priority over that and I must at this time lobby for Misericordia Hospital and some of the work that needs to be done there . MR. MERCIER: Well, Mr.

Chairman , perhaps I can undertake to review the matter with the Member for Wolseley at a later date with respect to the rationalization for a new Provincial Judges Building. MR. CHAIRMAN: (bX1)-pass - the Member for Wellington . MR. BRIAN CORRIN: Mr . Chairman, through you to the Minister . Mr. Chairman , the Member for Selkirk was quizzing the Minister with respect to a recent Legal Aid withdrawal of service pertaining to youth access to the Legal Aid service and I understood that the Minister responde d that where 4340

Monday, June 26, 1978 there was a demonstrated need , in other words, where there was some possibility of imminent incarcer ation, that Legal Aid was taking steps to intercede on behalf of the youth in question and provide defence services . I was wonder ing if the Min ister could apprise the Committee as to what measures have been taken in order to establish when a given youth, when an alleged offender, is indeed in a precarious circumstance that might lead to his or her incarceration. MR. MERCIER: Mr. Chairma , I can 't advise as to particulars .

I indicated to the Member for Selkirk that I wished to meet shortly with the Chairman and if necessary the Board to review the experience of the first three months ' operations of Legal Aid under the revised funding in order to determine what difficulties if any that they have encountered, and to ensure myself that a basic system of Legal Aid is being provided . MR. CORRIN: Thank you, Mr. Chairman, a supplementaiy to that.

When the Minister refers to a basic system of Legal Aid ; it 's always been my understanding that one of the fundamental tenets of our particular delivery system is the duty counsel position and availability of those counsels for persons alleged to have committed offences and who are brought before the courts in those circumstances .

I can say, having served as a duty counsel , as I'm sure many of my brothers and sisters at the Bar have over the years , and I might add served as as duty counsel in the years before there was Legal Aid as well , before there was remuneration for those sorts of services, as it presently exists . I have always considered that to be what you might describe as a fundamental tenet of any Legal Aid system . And I think particularly so in the case of allegedly youthful offenders, because these people, of course , are not privy to the ins and outs of the law.

They are, I think , quite accurately described as being somewhat more vulnerable than adult offenders, and I have always felt that it is quite important and I'm sure the Minister would agree that these people have adequate access to as much information as they possibly can , in order that they can be apprised -.. of all the possible ramifications of a charge being laid against them . I might say that is particularly of concern in the case of alleged youthful offenders who are maintained in custody at the Youth Centre in Winnipeg and other centres around the province . So, Mr.

Chairman , I would ask , in view of that , whether or not the Minister is aware as to whether or not the duty counsel system has been maintained during the term and tenure of his government? I would think that that 's a matter that is so fundamental that I would presume that the Minister can respond. MR. MERCIER: Mr. Chairman , I am not aware and I am relying at this particular point on the release from the Legal Aid Services Society , that there has been any change in the operation of Duty Counsel. MR. CHAIRMAN: The Member for Wellington. MR. CORRIN: Mr.

Chairman , I don 't want to become strident , but on this subject I can become most strident. It's one that passionately excites me simply because it does indeed involve a potential risk to members of the population who are at the very best dependent , completely dependent for that matter on government, on other people . We're talking not of adult offenders ; we're talking of juvenile offenders and I think it's absolutely fundamental that these people have access to that sort of service .

I can't for the life of me understand how the Minister can sit back and say that he's satisfied that the needs of this particular

section of the population are being served when, in fact , - to his knowledge anyway - there is no knowledge of a demonstrably capable duty counsel system in place in dealing with juven ile offenders. I think it's fairly obvious that unless there is such a counsel system in place that there 's a great potential risk inherent in the situation and I call upon the Minister to make himself privy to the information in order that he can satisfy himself that these individuals are not left without resources in the face of possible severe raiifications. MR.

CHAIRMAN: Just before the Attorney-General answers, I might point out to the Member for Wellington that when the Member for Selkirk, his colleague, asked a question on Legal Aid 1 think he opened his questioning that he knows that there is a

section for Legal Aid but he wanted to ask the Minister a policy question that he felt , and I would agree with him, could come under Planning and Management. I would hope that the debate on Legal Aid would be saved until the following page, Item 9, because there is a full

section for Legal Aid and it is far easier if we do keep a department 's Estimates in order as the Items appear in our booklets. MR. CORRIN: Well , I agree , Mr. Chairman , and the Minister of course is now aware that we're quite concerned about duty counsel services for juvenile offenders and therefore by the time we get to that particular

section perhaps he can familiarize himself with the situation in order that he 4341

Monday, June 26, 1978 can inform th members of the Committee what in fact is transpiring in that regard. MR. CHAIRMAN: The Attorney-Genera .. MR. MERCIER: Mr. Chairman , we will make further inquiries in respect to this matter that the honourable member raises . MR. CHAIRMAN: The Member for Selkirk . MR. PAWLEY: Sir , I just would like to make a few comments and leave them with the Attorney-General. If he wishes to respond he may do so, but it' s a philosophic position that I would like to present to him .

It seems to me that the function of the Department of the Attorney-General has undergone a number of changes in the past eight , nine years and I think changes for the better . No longer is it basically a department that is principally concerned about prosecution , courts , law enforcemett , but there are many other aspects to the department itself - portions of the department that deal with Legal Aid , Human Rights Commission , Law Reform Commission , Manitoba Police Commission - all areas that I think proceed to emphasize the justice role rather than necessarily the role of Attorney-General as narrowly defined.

I think this is only right within a changing society that there should be this change in attitude, approach and emphasis within the department of the Attorney-General.

The impression that I have is that in our present society with changes in society, the complexity of society , technological, and bureaucratic largeness private and public , that laws are becoming more and more complex and thus of course is the need for the Law Reform Commission to constantly attempt to deal with simplification of the law so that the average person can better understand the law and the law can better serve that person rather than that person serve the law.

Secondly, I have a very clear impression that the law tends presently to favour the wealthier in our society , and it is for that reason of course that the Legal Aid system was introduced into society in order to provide better improved balance as between those with wealth and tho se with less wealth so that there would be equal access to the law before our courts .

Thirdly , I would like to just touch briefly on the item mentioned by the Member for Wolseley, that our courts themselves too ofte because of the backlog of case tend to cause a delay in the providing of necessary services to the public at large throug h the adjudication of law. I'm not blaming anybody or faulting anybody but I do see that as a basic problem confronting us in society.

It's not as bad yet in Manitoba as it is in British Columbia , Ontario , Quebec , larger centres, but it is one that I believe to be worsening , will continue to worsen, and I know that this is a challenge that the Minister must be confronted with . Then I believe that in our society and sometimes for good reason , there is a mistrust of the judicial system and of lawyers and I think this is another area that has to be confronted by those that are conscious and concerned about the administration of law and justice in the province.

Too often lawyers and courts tend to be identified with the economic or social elite in society rather than the population in general and I think until the law is looked upon and can be accepted by the general population as being accessible and understood by all, that there will be this tendency to mistrust the law. So I want to, not necessarily look for argument but simply to present a philosophic position . It's one that I don 't suggest for one moment that was accomplished during New Democratic period of government.

I think we tried to inch our way towards an objective , justice rather than Attorney-General , human service rather than emphasis upon the courts and police , recognizing that there is a role both for the traditional and the non-trad itional. But certainly recognizing that new

part in the department , those newer parts that have been introduced since 1969. I mention all this to the Attorney-General under this

section because I believe it deals with general policy , because I am concerned and will be dealing with the specific items, very concerned as to what is happening in those people 's programs . I know that insofar as programs dealing with the courts and the police there have been very little by way of cut, in fact, there have been increases.

But I am concerned about what has happened in the area of Legal Aid , the Law Reform Commission , the Human Rights Commission , the Criminal Injuries Compensation , Police Commission and Legal Aid because I do believe that those areas are a small attempt to deal with some of the general philosophic problems which 1 feel confront us, confront the present Attorney-General as well as previous Attorneys-General . MR. CHAIRMAN : The Member for Wolseley . MR.

WILSON: I would be remiss, and I'm not going to get into Legal Aid under this section, but 1 did want to touch upon it because of some remarks made by the Member for Selkirk that the courts were understood only by the social elite because we must ask ourselves why the delays are 4342

Monday, June 26, 1978 there . I remember the former gentleman in charge, Mr. Roland Penner , who got into loggerheads with the then Councillor Robert Steen , now the Mayor of the City, and he wanted an apology because he had alluded to certain problems pertaining to Legal Aid, and quoting from the news story of October 25th , 1973, he said that the number of not guilty pleas in the court had doubled since Legal Aid was instituted and the pay for off-duty policemen - and this was in 1973 - had gone over $100 ,000.00.

I received th is letter here, from a lawyer who indicated support of my then pleas with the former government for a reduction in Legal Aid , in which he was hoping that Legal Aid would become more selective and curtail the use of Legal Aid assistance for repeated offenders, those who jokingly carry cases to the courts so they won 't have to spend time in jail and habitual criminals who continually use Legal Aid . So I am altering an opposite position . . . MR. CHAIRMAN: Order please . Order please . The Member for Selkirk on a point of order. MR.

PAWLEY: I'm not asking you to curtail the Member for Wolseley but I'm just warning that with the specifics that the Member for Wolseley is getting into, I would have to deal with them now rather than leave them, as I would have hoped, to the Legal Aid section. MR. CHAIRMAN: To the Member for Wolseley, we do have a full

section in the Estimates on Legal Aid . MR. WILSON: Well, I'm offering only an alternate opinion to the Member for Selkirk and as I say, I have a very extensive file on Legal Aid but I'll leave it with this remark, that the objectives of Legal Aid , if you are talking about policy and planning for the future, should be to assist in the administration of justice and the rights of citizens and not become a stable source of income for an oversupply of members of the Law Society . MR. CHAIRMAN: The Member for St. Vital. I know that the Member for St. Vital will stick to the item before us. MR. D.

JAMES WALDING: I will attempt to, Mr . Chairman, but just before that, I would like to request that the last member to speak table the letter that he has just quoted from, in accordance with the rules. MR. CHAIRMAN: Will the Member for Wolseley table the letter, or we'll have the Clerk make a copy of it? MR. WALDING: To the

section before us, Mr. Chairman, did the Minister tell us why there was a $2,000 reduction in the Salaries this year? MR. CHAIRMAN: The Attorney-General. MR. MERCIER: $2,000 in the Salaries? MR. WALDING: From 257 to 255 . MR. MERCIER: A reduction of one staff member. MR. WALDING: Did the Minister explain to the Committee what the Planning and Management

section actually does and whether there is any change in its function this year? MR. MERCIER: No change in its function. MR. CHAIRMAN: The Member for Selkirk. MR. PAWLEY: Mr. Chairman, I think before I leave this section, because it is under Administration, could the Minister advise whether he was satisfied generally with the operations of this department upon his assumption of responsibility as Minister of the department.

In other words, did it fall into that category that sometimes his First Minister would refer to as being inefficient, or ridden with fat, or any of that general criticism that has been launched from -time to time by the First Minister in connection with the affairs of government? MR. CHAIRMAN: To the Member for Selkirk, I hope the Attorney-General won't lose sight of the question from the Member for St. Vital. The Attorney-General. 4343

Monday, June 26, 1978 MR. MERCIER: Mr. Chairman, I don 't believe and I certainly hope that this particularly would be one department that would be in any way affected, for political reasons. I think this is a very basic , almost non-political operation in the sense of the Prosecution Department and Civil Litigation Department. To the quest ion of the Member for St. Vital, Mr. Chairman , there was a reduction of one administrat ive secretary, then with the addition of collective agreement and salary adjustments resulted in a net reduction of 2.2 thousand. MR. CHAIRMAN: 1.(b)(1)-pass ; (b)

(2) Other Expend itures-pass; (

c) Administrative Services , (c)(1)-pass ; (c)(2)-pass; (

d) Canada-Manitoba Gun Control , (d)

(1) Salaries - the Member for Selkirk . MR. PAWLEY: Mr.

Chairman , in connection with this agreement , could the Minister update us as to what is the arrangement in connection with the Gun Control Program , and these are the questions I would like to pose to the Minister : I would like him to explain to us the basic substance of the agreeme nt that has been reached with Ottawa insofar as the administratinon of gun contro l in Manitoba ; whether that gun control will be done through municipal authorities or through local police authorities, and by what manner will that control be done; and lastly will it be self-sustaining?

Would the program be self-sustaining insofar as the costs of that program?

I would just like to mention to the Minister the reason for concern here is that during previous conferences of Attorneys-General, concerns were expressed repeatedly by Manitoba that this was a program that was not as necessary in Manitoba as it was in the larger centres - Toronto, Montreal, Vancouver - that it certainly was not a priority of Manitoba insofar as the way of things , the administration of justice ; and that we were concerned that this would be a cost that woul d be saddled onto the backs of Manitobans , an imposed priority , that may very well have been a priority for Roy McMurtry in Ontario , or Andre Bedard in Quebec , or Garde Gardom in B.C., but hardly the priority for provinces such as Manitoba or Saskatchewan .

So I would like the Minister to provide us with his general attitude , as well as answers to the specific questions which I posed . MR. CHAIRMAN : The Attorney -General. MR. MERCIER: Mr. Chairman , n o agreement has yet been reached with the Federal government although we are certainly proceeding on the understanding that all of the costs of the administration are recoverable from the Federal government. MR. PAWLEY: Could the Minister tell us how the program will be administered?

Will it be administered through municipal government or through local police forces, and in what way will the checking be done prior to the issuance of licences? And lastly , of course , I would like to have the Minister 's expression of view whether it is a priority with him in the way of things insofar as the department is concerned? MR. MERCIER: Well, whether or not it is a priority I don 't think we have any choice, unfortunately , Mr. Chairman.

We have established a Gun Control Officer , the program will be adm inistered through particularly the City of Winnipeg , and through the local police departments who have jurisdiction . Again, we expect that all of the administrative costs will be recoverable from the Federal Government . MR. PAWLEY: I'm just wondering if the position that was taken by Manitoba previously at various meetings of Attorneys-General were reaffirmed , or was there any change in the general position of Manitoba pertaining to gun control in Manitoba itself ? MR. MERCIER: No, Mr. Chairman , there's been no change in that position . MR.

CHAIRMAN: (d)(1)-pass ; (d)(2)-pass; 2.Legal Services 2.(

a) Civil Litigation : (a)

(1) Salaries-pass - the Member for Wellington . MR. CORRIN: Mr. Chairman , I would ask you to exercise your judgment and tell me or advise me whether or not this would be an appropriate time - and perhaps you can only do so in consultation with the Minister - to discuss the salary of Special Counsel , whom I believe are retained , I'm not sure . but I believe are retained to provide Civil Litigation Services under this item - I'm not sure, perhaps he could advise us if that's so? 4344 •

Monday, June 26, 1978 MR. MERCIER: It would be appropriate as well as any other location to discuss it here. MR. CORRIN: My question is with respect to the term ination of services of one , Professor Dale Gibson of the University of Manitoba Law School, who for some time was conducting litigation ~ pertaining to what has come to be known as the Forest Language Case.

I was concerned when Professor Gibson 's emp loyment was discontinued, and I must say in view of the fact that I think most of the members in this room are somewhat familiar with this individual's fine credentials , his reputation - not only in our province , but on a national basis in the field of constitutional and related areas of law - I was wondering whether the Minister could advise us for what reason Professor Gibson was asked to discontinue his employment in this particular case? MR. MERCIER: For what reasons? Well , I don't want to get very far into this, Mr.

Chairman, but we decided that for the new action that was being started, that we would retain other counsel. MR. CORRIN: Well I think , Mr . Chairman , that we all appreciate that there was a deision taken by the Attorney-General and Members of Cabinet to retain other counsel. I don 't know whether the Attorney-General'e response is serious or it's meant to be intentionally facetious . The question more pointedly - I don't want to put too fine a point on it because I don't think it's necessary - is simply why was Professor Gibson 's employment terminated?

I'll express my confidence in him, he taught me Constitutional Law, and I know he taught many other students at the University of Manitoba that particular subject, but I think I can say without qualification that his reputation, his credentials , are heralded about all of the provinces of this country.

He's quite well known through the many articles he's published on a variety of topics , and I think both his academic and his practical qualifications are beyond any reproach whatsoever. can 't understand why the government saw fit to terminate his conduct to this particular matter , and I think t's incumbent on the Minister to provide some response to this question in order that there be no misreading of this situation by members of the legal community and the public at large as well.

I think this, in a sense, is a slur upon the very fine reputation of a qualified professional , and I think if he is to be released in these circumstances, there should be some cause shown, there should be some reason given, and I can't think of a more appropriate time for that reason to be given than right now. MR. MERCIER: Well, Mr. Chairman, I'm not going to get involved in public discussion on the merits or the demerits of either Mr. Gibson or Mr. Twaddle, who was retained by our government to handle the Forest case. Mr.

Twaddle was a constitutional advisor to the previous government and very active in that role, a man who has established a practice solely devoted to litigation in the courts. Mr. Gibson also is a man who is very learned in constitutional law and certainly, while he, to my knowledge , does not carry on an active practice of law, is a very qualified man and one whom I have confidence in also. Mr. Twaddle' however , is engaged in the full -time practice of law and the decision was made to retain Mr. Twaddle .

Both of these gentlemen are eminently qualified to handle this case as are many other counsel in the City of Winnipeg . MR. CHAIRMAN: The Member for Wellington. MR. CORRIN: Well I don 't feel motivated to spring to Professor Gibson's defence in this regard because of course I concur with everything the Honourable Attorney-General has said about Professor Gibson 's credentials. I might add that I also concur with his impressions and opinions of the other counsel , Mr. Twaddle .

I think we can unequivocally state that both men have considerable reputations in the field , but I would point out that if the time factor - the Attorney-General did mention that he was concerned about Professor Gibson not being actively involved in the courts and felt perhaps that the more active participation of Mr. Twaddle lent itself to this sort of litigation.

Well I might add that to the best of my knowledge , Professor Gibson was on his sabbatical this year so if that were a concern certainly he would in all probability have much more time to tend to this matter in a more meticulous , perhaps even in a more meticulous manner than would Mr. Twaddle because of the very nature of his practice . I would also, I must say, express some concern that there be a change in counsel in midstream as it were .

I don't understand - if Professor Gibson had handled the matter in an efficient and effective manner , and I presume he has from the Minister's statements - I don't understand why the Minister would want to change horses in midstream . I can't .comprehend why there would be a need for a change in litigation counsel when an individual had proven that he was qualified and capable. It's not , as I'm sure the Minister is aware, it's highly unusual to discharge counsel in midstream ..

It's much more usual to add counsel , to supplement counsel if counsel expresses the need for some external assistance as opposed to a situation where you discharge counsel and retain 4345

Monday, June 26, 1978 new counsel who's been unexposed to the matters under discussion previously . So I would ask again what reason there was for discharging - in view of the fact that time was not a consideration and all things being equal I think we can state that the expertise of the two men in question is relatively equivalent, I would ask what reason there could be? I could make a suggestion but I wouldn't want to do that .

I could make a suggestion that Professor Gibson perhaps - I think we can say it - known to have at one time in his career practiced law with the former Attorney-General of this province , may have been considered to have been perhaps a quisling or something of that nature. I would hope that that wouldn 't be the case. I would certainly hope that that sort of partisanship would not be expressed in this sort of manne r because I don't think that Professor Gibson was appointed for political purposes or reasons.

If Professor Gibson was political quite frankly , he certainly hasn 't been political for a long , long time , and so I don't understand and I wish the Minister would direct himself to the quest ion in a more candid and a more open manner in order that we can get to the bottom of it. MR. MERCIER: Mr . Chairman , Mr. Gibson was not discharged . Mr. Gibson carried out his function that was assigned to him , billed out his services , a new case was started and new counsel were hired. MR. CORRIN: Well, can we ask the Minister a supplementary then?

Was the new counsel retained at the same hourly rate in the same manner in terms of remuneration as was Professor Gibson , or was there any change in the terms affecting that employment? MR. MERCIER: I'd have to inquire into that matter and advise the honourable member at a later date. MR. CHAIRMAN: The Member for Selkirk . MR. PAWLEY: Mr.

Chairman , I'm pleased that the Member for Well ington raised this issue because it has been one that has caused me concern because I want to say that while I was Attorney-General I was very much impressed with the work that Professor Gibson had put into this case , and for the Attorney-General to suggest that proceedings before one court had been completed and therefore that particular case was finished and to go on to another counsel - I don 't think that removes at all from the central point that the Member for Wellington made , that this was a chain or a link of appeals and the various proceedings, which all involved the same central issue , so that I too must express surprise and disappointment that Professor Gibson was not permitted to carry on with the entire process of litigation involving the Forest case.

I would ask the AttorneyGeneral whether there was any differences expressed by him with Professor Gibson insofar as the manner in which he conducted the case previously , whether there was any differences in policy as to approach by Professor Gibson and the remedies that he was requesting from the courts . MR. MERCIER: Well, there weren 't, Mr. Chairman .

I wonder if at the same time the Member for Selkirk and the Member for Wellington could comment on the propriety of a solicitor engaged by a client - in this particular case, the Province of Manitoba - and after not being rehired to carry on another aspect of the same matter , making a public statement that he thought his client , the Province of Manitoba , was going to lose . MR. PAWLEY: Mr. Chairman , I'm not aware of the particular statement that the Attorney-General is referring to and I would have to see the total context of that statement to know whether the statement itself was appropriate or not . MR.

MERCIER: I'll send you a copy of the newspaper

article then . MR. PAWLEY: Mr.

Chairman , might I say that an observer from the outside mgght in fact comment that a lawyer who is well advanced in the handling of a particular case and then to be removed from the case or relationship of cases , a complex area of cases , might in fact feel that there 's a better chance of the government losing as a result of change of counsel in mid-stream in the series of cases, so that if that comment had come from another third party then I could certainly very well understand why that third party would have arrived at such a conclusion as that in view of the manner by which this changeover in solicitors occurred .

I would ask the Minister whether Professor Gibson had asked to be relieved at all from handling these cases? MR. MERCIER: No. 4346

Monday, June 26, 1978 MR. CHAIRMAN : I might point out to members that the four pages of notes that the Member for Wolseley was referr ing to some moments ago during the debate on this Estimates are non-signed docu ments. The Clerk informs me that you can 't tab le a letter unless it is signed by the sender of it, and I asked the Clerk if he would show the notes to the Member for St. Vital who was the person who asked that it be tabled .

Therefore I would have to return these notes to the Member for Wolseley because they appear to be notes written out obviously for the Member for Wolseley on the subject of Legal Aid , but it's not really a letter. The Member for Selkirk . MR. PAWLEY: Well , Mr. Chairman , then on a point of privilege , which I suppose it is, as I recall the Member for Wolseley 's words , they were to the effect that he had received a letter from a solicitor who had expressed objection or opposition to the Legal Aid Service system in Manitoba .

Are we now being informed that the letter is one that is unsigned , a letter which is not in the handwriting of a sol icitor , but in fact in the Member for Wolseley 's own handwriting? MR. CHAIRMAN: It would appear to me - to the Member for Selkirk - that they are notes on the subject " Legal Aid " on a Manitoba interdepartmental memo paper , but not signed notes - 1 think the Member for Wolseley left them with myself for the Clerk , thoughts written after a talk with Bob Wilson , Wolseley MLA , but I don't know who sent them to him, you'll have to ask him. They are not even addressed to him, officially . MR.

PAWLEY: Well , the Member for Wolseley certainly owes the committee an explanation , because the very clear impression that the Member for Wolseley left with us all, was to the effect that he had received a letter from a solicitor He referred to that letter objecting to the then existing Legat Aid System under the former government , and I'm rather taken aback that the letter the member is referring to are unsigned notes . MR. CHAIRMAN: The Member for Wolseley . MR. WILSON: Mr.

Chairman , as you well know , dur ing the past several years I have received a somewhat unso licited notoriety for asking for a reduct ion in Legal Aid, and after that , many members of the legal profession and citizens of Manitoba have called me up. I suggested to them , like after the train ing I'm starting to receive from members such as the Member for Selkirk opposite , and I might say from the former councillo r, June Westbury, who always said , " If you have a complaint agains t Legal Aid lawyers or welfare abuse , put it in writing.

" So this gentleman came down , I sat down with him and he wrote them out for me. He's numbered them , and I intend , hopefully , to read them into the reco rd when we reach the

section under Legal Aid . MR. CHAIRMAN: To the Member for Wolseley , are they speaking notes that you 've acquired , then? They are not a letter? MR. WILSON: They are written in a form - now , I would have to look up Webster 's Dictionary as to , as Peter Warren wou ld say, what you call a memo or a letter or whatever. But the point that I'm trying to get at is - and I object to the Member for Selkirk - I'll give him a sample of my handwriting , if he wishes these are not written in my handwriting . MR.

CHAIRMAN: Well , you cannot read them into the record and say that this is a letter sent to you by a constituent or acquaintance or anything . You can just treat them as speaking notes. You cannot quote an unknown third party source or else you must identify that source and table it. MR. WILSON: Fair enough . MR. CHAIRMAN: And it must be signed , too. The Member for Elmwood. MR. DOERN: Well , Mr. Chairman , I would say that this is most unusual procedure , but usual for the Member for Wolseley , and I think he should just take it and consign it to the wastebasket with his other fabrications . MR.

CHAIRMAN: Well , let's get back to the Attorney -General's Estimates . Legal Aid , Civil Litigation . The Member for Selkirk . 4347

Monday, June 26, 1978 MR. PAWLEY: Mr. Chairman, I'd like to ask the Attorney -General - I know this may come under Manitoba Development Corporation, but I would ask the Attorney-General whether Charles Huband continues to handle the civil litigation pertaining to the CFI matter? MR. CHAIRMAN: The Attorney-General. MR. MERCIER: Yes, Mr . Huband and certain of his associates and partners handle various aspects of it, I think , as the member is aware . MR. PAWLEY: Is he continuing to handle the same aspects as he did prior to October 11, 1977? MR. MERCIER: I believe so. MR.

PAWLEY: Well , is the Attorney-General in a position to indicate whether there has been any progress made - I certainly don 't want the Attorney-General to enter into any details , as I know that is something which concerned me while I was Attorney-General too during process and negotiation - but has there been any progress made in conn with ection negations and a settlement pertaing to the CFI matter? MR. MERCIER: No. MR. PAWLEY: I believe this comes under this

section , the Unified Family Court I would like to express concern due to the fact that the Member for Fort Rouge , who is not present , revealed to the House that the moneys that had been made available from Ottawa for the Unified Family Court had in fact been rechanneled to some other province , and I would like the Attorney-General to advise us whether or not any attempt has been made by him to recoup this money so that , hopefully, we could proceed forthwith with the Unified Familh Court projec t at the earliest possible date. Has this money been lost to the province? MR. MERCIER: Mr.

Chairman , when we dealt with this matter dur ing Estimates, we were under the impression at that time that the project could be deferred one year , because some consideration was being given to deferment of other projects, and that in all probability moneys would still be available for at least two years of a project , and according to one member of the administration of the Department of Justice there was a good probability that money would be available for a full three years of the project. I have written to Mr.

Bassford indicating that that was my understanding of the matter between the respective departments, and hoping that on that basis in the event we wish to proceed with the project next year , that funding will be available. I have not received a response. MR. PAWLEY: I want to place clearly on record, Mr. Chairman , the position of the opposition in connection with this matter .

It is true that for a brief period of time , it had been deferred under the previous government , but was proceeding towards commencement date prior to last October , though there was some administrative problems that were being ironed out. But certainly arrangements were being made for the project to commence . I want to say that while I sat where the present Attorney-General sits I was under constant criticism from members of his own party about the fact that I was proceeding in areas prior to getting on the road with the Unified Family Court.

I remember the Member for Birtle-Russell , who criticized - and quite properly - myself in committee in connectio n with delays in the Unified Family Court project. I recall , as I mentioned in the House the other day , the Member for Birtle-Russell and the present Minister of Health and Social Development criticizing us sharply for not proceeding faster with the Unified Family Court project , when we were in government , and I had to concur with them , that we were not proceeding as rapidly as we ought to have , that there were admin istrat ive problems that had to be ironed out.

But at least the money was committed for the project , i t was there , and attempts were being made to obtain a co-ordinator and some other key officials to proceed with the project.

Now it is very regre ttable that in the area of Family Law in Man itoba , not only do we have rising concern about the position that the present government is taking in connection with the repeal and elimination of what I do feel were the best family laws in Canada last year , but we also see the deferral for this year and possibly into next year and possib ly the year after that , with jeopardy to the receipt of federal moneys - possible jeopardy of the Unified Family Court project .

At the same time , while I won 't go into other areas in connection with maintenance , I regret very much that this is a project that has not been permitted to escape the clutches of the restraint process . 4348

Monday, June 26, 1978 I think it would have been somewhat reassuring to those who were concerned about Family Law in Manitoba to at least see this project go ahead . I don't think I have to tell this Attorney-General that at Attorneys-Generalconferences , Attorneys-GeneralS were looking at our project with interest and there were repeated comments being made that the Unified Family Court was probably a must if we were to see significant and substantial improvement in the administration of Family Law of not only Manitoba , but elsewhere in Canada . MR. MERCIER: Well , Mr.

Chairman , there 's no question that in concept and in principle, the Unified Family Court is a worthwhile project to be proceeded with , but I think I indicated at the beginning of my Estimates that the increase in expenditures for this department is a total of 10.2 percent , which is a much higher increase than that seen by many other departments. Members are aware .,. of the increase to hosp itals , to education, etc ., that are much lower, so that even , Mr.

Chairman, with the 10.2 percent increase in funding in this particular department , we have had to make certain decisions that continue the basic functions of the department in the area of law enforcement, prosecutions , litigation , the courts , and it was, unfortunately, Mr. Chairman, a year in which financial restraints had to be exercised, and projects like these, of course if money were available , would have been proceeded , but unfortunately there was not suff icient money available. Certainly , Mr.

Chairman , with the introduction of Family Law and the steps we are taking, presently .. before the Legislature with respect to the jurisdiction of the Queen 's Bench and the jurisdiction of County Court Judges in the eastern judicial district, as local judges of the Court of Queen 's Bench, we may see there a Unified Family Court operation just evolve out of the legislation and the changes we are making. But , Mr.

Chairman , I just point out that with the 10.2 percent increase , we are maintaining the basic funct ions of the department, and unfortunately with the financial restraints, some projects which we certainly we would have liked to have become involved in, were not possible with the amount of moneys available . .. MR. PAWLEY: Mr.

Chairman , I wou ld just like to emphasize , in view of the Minister 's comments, that Unified Family Court doesn 't necessarily mean just the unification of the Court process , but an improvement of the backup services to the Courts in Family Law; the family counselling, the enforcement of maintenance orders , the streamlining, the other various support services.

And unfortunately , there's nothing additional being added insofar as the new legislation is concerned with respect to these areas, so that I have to say, again, that what I fear is happening it that we may very well be losing important federal money in this area , and may not be able to recoup it in the future . MR. CHAIRMAN: The Member for Wolseley . MR. WILSON: Basically , I wanted to ask one question in line of the questioning by the Member for Selkirk . The Minister mentioned that there was no progress being made on CFI, and if it's true that Mr. Huband is the solicitor who is acting for the government?

Would the Minister be able to tell me - I'm just going back from memory - is there any large amount of money that the Province of Manitoba has frozen somewhere in Canada - I think it's Quebec MR. MERCIER: Montreal. MR. WILSON: Would you be able to tell me the amount of that money? MR. MERCIER: About $6 million . MR. WILSON: If the taxpayers of Manitoba know that there 's $6 million sitting in the bank for them in Montreal there must be some strings attached. Are we getting interest on that money? Is there any interest being paid? MR. MERCIER: Interest is being paid on the account. MR.

WILSON: What rate - 5, 10 percent? MR. MERCIER: I don't have the specific interest. No, it's not just interest from a normal account in court , it is being held in trust in a bank account. MR. WILSON: If trust accounts don't bear interest, would this be a special trust interest-bearing account? 4349

Monday, June 26, 1978 MR. MERCIER: It's a special interest-bearing account. MR. WILSON: Well, again I don't profess to be a lawyer like so many other members around this Committee , but what would the reason be that my voters in Wolseley and the other people of Manitoba can't get hold of the $6 million? MR. MERCIER: Because the court case hasn't been decided yet as to whom is entitled to it. MR. WILSON: Would we be able to get that $6 million if one of the principals being sued by the government was released or let go or anything like that?

What I'm trying to get at, it would seem to me, and this is just going back in stories, I believe, that the Free Press wrote . It would seem to me that if it was felt that it was hopeless, that Austria didn 't seem to want to bring these gentlemen to co-operate with Manitoba , that if the case was judged to be 60-40 or 80-20, and I believe the former member for Selkirk , I mean the former Minister , will remember some of his responses to me when I brought up this subject, but it would seem that both the former Minister and yourself are saying that you're still continuing with Mr.

Huband on the CFI matter and there 's been no progress made. I would like to know is there any possibility - I say you don't have to give me the answer - but is there any possibility that at some point in time this government might say, " We'll take the $6 million and let Mr. Kasser go," or is that the long and short of it or is it more complicated than that? MR. MERCIER: Mr. Chairman , I'm not going to answer any questions about the direction we're taking in these particular law suits either civilly or criminally until they 're resolved because I don 't want to prejudice any actions that our counsel are taking .

MR. CHAIRMA N: The Member for St. Vital. MR. WALDING: Thank you, Mr. Chairman. I'm not sure whether my quest ion should come under (

a) or under (

b) but I'd like to ask the Minister about an illdividual whose name I cannot recall but I think he's an accountant. He's been widely publicized in the media over the last few weeks as saying that he has not paid any income tax either federally or prov incially for several years and not only does he make that admission but he's in fact boasting about it. I'd like to ask the Attorne y-General what he is doing about it, and what he is doing to protect the rest of Manitobans who h ave to pay income tax? MR. CHAIRMAN : The Attorney-General. MR. MERCIER : Mr.

Chairman, that is a matter which is prosecuted by the Federal Government Department of Justice if there were to be any charges made . My depattment does not get involved in prosecutions or actions under the Income Tax Act. MR. WALDING: I'd like to ask the Attorney-General whether the Department of Finance has approached the Attorney-General 's Department about this matter? MR. MERCIER : No, not to my knowledge . MR.

WALDING: If such an action were commenced against this individual by the Federal Department would either the Manitoba Department of Finance or the Attorney-General 's Department be involved in such an action? MR. MERC IER: I don 't think in the past we have ever become involved in those prosecut ions so, barring something unforeseen , I don 't believe that we would be. MR. WALDING : Does the Minister have any knowledge of whether the federal department concerned is proceed ing on this matter or not? MR. MERC IER: No, I don 't. MR. CHAIRMAN: 2. (aX1)-pass ; 2. (aX2)-pass; 2. (bX1) - the Member for Selkirk . MR.

PAWLEY: In dealing with this area 1 think it's an appropriate time to have an updating insofar as the Alexander Kasser matter . As I recall the last stage insofar as the Kasser matter was concerned , we had reached the point where the Austrian Government was proceeding with the preliminary steps 4350

Monday, June 26, 1978 towards which Kasser would be placed on trial. Those preliminary steps involved translation of material of which there were many many volumes, and we had legal counsel in Austria which was conducting our case representing Manitoba, and I know that the Attorney-General has had special prosecutors in Austria to review matters . Could the Attorney-General at this stage advise us as to what progress?

I recall when I had announced in fact that we had commenned - that the Austrian -'" Government was assuming the necessary preliminary steps to placing Kasser on trial, I remember, I believe, having been advised and thus indicating that I believe about six, eight months would be required in order to do the necessary translating if I recall correctly. I would ask the Minister whether or not that translation has been finished and whether he can now indicate to us just what step the prosecutions have reached? MR. MERCIER: Mr.

Chairman, the special prosecutors and Inspector Coby from the RCMP went to Austria in May of this year to review the evidence which has been translated with the prosecutor in Austria. They were there for some few days going over the whole matter with him. They are presently awaiting advice from the Austrian authority as to whether or not charges will be laid. We expect to receive some indication by the end of July. MR. PAWLEY: The Austrian authorities have continued to assume all costs pertaining to the translation of material? MR. MERCIER: That's correct. MR.

PAWLEY: And you say that they are presently reviewing the material prior to hopefully their proceeding with charges? .,. MR. MERCIER: That's correct. MR. PAWLEY: Could the Attorney-General under this

section advise me as to the staff man years under Criminal Prosecutions now as compared to the staff man years this time last year? Has there been an increase? MR. MERCIER: Under (b)(1) there were - first of all, perhaps I could just for the benefit of the member indicate that under (a)(1) we created one new position in the Civil Litigation Department with a view to doing as much of the counsel work in house as possible and reducing the reliance ... on outside counsel.

Under (b)(1) there were three new positions created during last year prior to October the 11th; we have reduced one of those positions this year so that (b)(1) is reduced by one position from last year. MR. PAWLEY: I wish to ask the Minister whether or not the special

section which dealt with fraud prosecutions within the department under George Dangerfield, whether that sub-section still exists? MR. MERCIER: Yes. MR. PAWLEY: I just want to express to the Minister my surprise that here under Criminal Prosecutions there's been a reduction of one and the Civil Litigation an increase by one because I certainly recall the difficulty which had taken place insofar as shortage of staff, turnover of staff, the difficulties particularly relating to northern Manitoba. I would ask the Minister whether or not the pre-trial hearings - and I'm not sure, cut me off, Mr.

Chairman, if this belongs elsewhere - but the pre-trial hearings, whether they have contributed towards a reduction of staff under Criminal Prosecutions by eliminating many of the issues that would otherwise have to be dealt with through more prolonged trials? MR. MERCIER: It has been expanded somewhat, Mr. Chairman. Mr. Guy, Crown Attorney at the city is now spending a full day at it rather than half days and he reports that he believes a number of court days have been saved, a number of witnesses have been saved as a result of the pre-trial ~ discovery.

In fact he estimates a total of 117 and '12 days have been saved as a result of this procedure which of course means a saving in expenses in salaries of police officers as witnesses. MR. PAWLEY: Would the Attorney-General then concur that that project has indeed been a successful one over the I believe it's been in operation for at least one full year if not more than a full year? 4351

Monday, June 26, 1978 MR. MERCIER: The initial period that is covered by Mr. Guy's report is October 1st of 1977 to March 31st , I believe . MR. PAWLEY: March 31st of 1977 to March 31st of this year . And has it been successful? MR. MERCIER: Yes, it has been successful. MR. PAWLEY: And will be continued? Is there any intent to extend it into other possible areas of the province? I know that in the rural circuits there would hardly be much need for it because much of that is dealt with on a more informal basis but what about Brandon and Thompson? MR.

MERCIER: Well, it' s certainly an area where we could contemplate expansion if there's sufficient volume but there has been no decision taken yet to expand it to any other area . MR. PAWLEY: I wonder if the Attorney-General could comment on another area . One criticism which I've hear d of the system is that sometimes defence counsel and Crown attorneys are able to ascertain through this system as to which judge they may appear before and thus it sometimes ca be abused in that way. MR. MERCIER: Well, Mr. Chairman, I'm not aware of that occurring any more than it has in the past. MR.

PAWLEY: So you 're satisfied and you can assure this Committee , Mr. Chairman , that you have not received information that would indicate that that problem has been worsened by the pre-trial project that we had initiated last year? MR. MERCIER: I would agree with that statement. MR. CHAIRMAN: (bX1)-pass - the Member for Wellington . MR. CORRIN: This Item (bX1) - I'm quite concerned to hear tha t there has been a reduction of one staff member on the Criminal Prosecutions side of the departmen t.

I'm particularly concerned because I have to presume that this is as a result of financial restraints that are being exercised as mentioned by the Minister . Mr . Chairman , through you I have to make public my concern to the Minister that these restraints may be leading to what the courts have recently described - and I'm paraphrasing very , very gene rally , and I'm not being very specificat this point in my remarks, but I believe the Man itoba Court of Appeal has described as abusive plea bargaining processes and procedures within the judicial system in this province .

The Court of Appeal and other levels of the court system have expressed ample concern that plea bargaining is lowering the standard of the administration of justice within our province and is having a very negative effect on the processes of law that we have come to expect and enjoy .

Now , needless to say that plea bargaining , by its very nature being almost a quasi commercial sort of transaction between the Criminal Crown Prosecutor and the defence counsel representing the accused offender , will deny the court's right of review and may have , as the courts have expressed, a deleterious effect in that sometimes matters which would merit and warrant a more serious venue or course of conduct , are allowed to go forward subject to the retention by the Crown of a lesser plea .

Not too long ago , for instance , we had in the Manitoba courts a case that I have become quite involved and concerned with involving a woman by the name of Diane Hope-Evans who was , I believe , originally charged with murder and subsequently in the course of plea bargaining between her counsel and the Attorney-General 's Department, her counsel found himself availing his client of the opportunity to enter a plea with respect only to manslaughter charges .

This has, of course , a bearing on the nature of sentence and in some cases , for instance, this one being a very good example , will actually impose a ceiling on the sentence that the court can impose . I think we all read the remarks of Mr. Justice O'Ssllivan in Saturday's newspapers pertaining to the appeal of this matter . I am concerned . I think not only myself but I think many people are concerned that the standards , as I said , that we formerly enjoyed with respect to justice administration not be impaired or diminished in any way as a result of this bargaining process .

If that is the by-product of financial restraint , then I would say that it is the public that suffers because respect for the law will deteriorate and the standard of justice will diminish and we are in essence sacrific ing the principle of justice for the principle of economic exped iency and I don 't think that is a fair set-off in view of the demands of these times , the very difficult and great demands made on society by acts of criminal violence and other matters and courses of conduct that pertain to this area of these Estimates . 4352 -

.. Monday, June 26, 1978 So I would ask if the Honourable Minister could advise the committee whether he has taken any steps to curtail plea bargaining by members of his Criminal Prosecution staff and whether he can indicate whether or not the past rash of plea bargaining has in fact been induced by financial restraints that have been exercised by his government. MR. MERCIER: Mr.

Chairman , firstly , with respect to the honourable member's concern about the deletion of one posit ion, my advice is that this relates to a rural area and is more of a bookkeeping position so that there is no diminution of prosecution resources available. With respect to the Evans case that the honourable member refers to, the attorney did agree to the ente ring of a plea of manslaughter. There was no agreement as to sentence and that is the reason why the appeal was launched . I would point out that in the case of Regina versus Semino, which was a case of the Manitoba Court of Appeal , Mr.

Justice Matas , who wrote the Majority Decision , referred to three particular areas. One was the position of Crown Counsel in making a recommendation on sentence, including mentioning a specific sentence , and the court took the position that there is nothing wrong in being specific where the circumstances call for it.

Secondly , referring to Crown Counsel joining with Defence Counsel to make a submission on sentence , the majority took the position that it was not objectionable for a properly arrived at joint submission to be made , nor where the circumstances call for it, is it objectionable to recommend a specific term, subject always to the overriding discretion of the court to accept or reject any recommendation. With respect to the position of Crown Counsel in taking a different position on appeal from that taken by Crown Counsel at trial , Mr.

Justice Matas wrote, " In exercising its appellate function, a court will not , in all cases , necessar ily hold the Crown to a position taken at trial. It will certainly consider the earlier stance of the Crown to be an important factor to be taken into account but whether the Crown ought to be bound will depend on the circumstances of the case." The department has been advised in matters relating to sentence , that senior members of staff must be consulted , remembering that the fitness of sentence is a judic ial function and not the function of Crown Counsel.

Careful consideration has been given to that judgment , Mr. Chairman, and appropriate instructions have been made within the department. MR. CORRIN: A supplementary . I must say that I am pleased to hear that some guidelines have now been set down in order that plea bargaining not go forward on a willy-nilly basis in the future. As I said, this matter first came forward and came to the attention of the public and particularly the courts just in the past seven or eight months -(Interjection)- Well , I don't think it is a question of that, as I suggested , I think . MR.

MERCIER: Is that question directed to the Member for Selkirk , Mr. Chairman? MR. CHAIRMAN: The Member for Wellington has the floor . MR. CORRIN: I would remind the Honourable Attorney-General that this question did not pose a problem during the tenure of the former government. This matter became contentious during the now short term of the present government and it was while this government was imposing restraints that the courts were moved to express concern as to the deterioration of criminal prosecution standards in this province .

So I don 't wish to be too deliberate or too agitated in my denunciation of the present government regime , but I must say that it does seem strange that there was no need for the courts to pass this sort of notice during the tenure of the former government, only during the short term of this one. But I must say that I am pleased that guidelines have been set as a result of the case that the Honourable Attorney-General has put before us. I am particularly pleased that senior members of his department will now be reviewing the appropriateness and propriety of plea bargaining transactions.

I suppose that is a euphemism but I don 't know how else to describe them. As I said, they are at best quasi legal and more akin to commercial transactions in the nature of the conduct of the administration of justice . I am particularly concerned because I was frankly very concerned previously that the courts were being put at a great disadvantage. My honourable friend says that no harm came because after all the courts have considerable latitude when passing sentence.

Well, as I suggested earlier, if you drop a charge using perhaps murder as an example, if you drop a murder charge to a manslaughter charge , the statutorymminimum changes dramatically . You have a significant alteration in the statutory minimum that the court can impose and will impose and therefore you are fettering the discretion of the court to a substantial degree . I would note also tha t in matters of importance, matters such as - using the Evans case again as an example - matters involving horrific detail and circumstance, I think it is very important, 4353

Monday, June 26, 1978 most important that there be accountability of the Crown in the form and shape and substance of the Minister , and no discretion being allowed to be made or had by the individual employee of the department. Notwithstanding that I appreciate that most cases of this nature are handled by senior Crown Counsel as opposed to junior, I would think that before a dec ision of this sort is made , the Minister or his designated senior appointee should be involved and I am pleased to hear that such will now be the case .

I am wondering - it begs ano ther quest ion - whether or not this will be the format in all proceedings where plea bargaining is transpiring , or whether this sort of review, this sort of senior level review , will only take effect and place with respect to more serious matters? If that is the case , I am concerned as to what matters have been defined as being sufficiently serious to warrant and merit the attention and assessment and evaluation of the senior officials of the Minister's department. MR. MERCIER: Well , Mr . Chairman , it is a very difficult thing to define and therefore there is no definition .

Basically what we are concerned about are any cases wtere there is any doubt whatsever as to what a Crown Attorney should do , senior staff will be consulted. MR. CORRIN: A supplementary , Mr. Chairman . Then I would ask whether or not we have indeed made any progress , because if the Honourable Minister is telling the committee that the discretion is not vested in himself or in his designated delegated authorities , but rather with the Crown Counsel actually responsible for the progress of the case, I would suggest that very different standards will be applied.

I would suggest that very obviously , a very busy , possibly an overwhelmed junior Crown Counsel, may exercise a very different sort of discretion or prerogative than a very competent senior experienced Crown Counsel meeting the same opposition in the form , perhaps , of a very experienced competent defence counsel.

I would suggest that if we are going to have uniformity , the only thing to do is to define some sort of guidelines so that this sort of discretion is not exercised at the junior level but rather for the sake of administrative accountab ility and pol icy accountability , that it be moved upstairs to where it belongs, to either the Minister or his designated delegates within the senior ranks of the department. Might I respectfully suggest that such guidelines of accountability be defined very early on because I think that not to do that will cause justic e to fall into disrepute .

We will have the old situation where if an accused can afford to hire a very competent , experienced senior defence counsel , discretion with respect to plea bargaining will tend to fall in his or her favour · and if the poor hapless individual finds him or herself with an inexperienced junior counsel , perhaps discretion will fall the other way. So I would suggest that there is obviously a need for a better defined policy in this respect. MR. MERCIER: Mr . Chairman , I don 't share the honourable member 's lack of faith in the competence and ability of members of the department. MR. CORRIN: Mr.

Chairman , through you and with respect , I think my honourable friend is aware that for some years there has been considerable difficulty in reta inin g senior members of the department. There has been a tendency for members, once they have reache d what might be called a middle level, after a few years of service within the department , to move on to private practice.

I must say that I think one can generalize and state that for the most part , with few exceptions , most of those individuals very soon become recognized as competent , able , highly-sought members of the ranks of the defence counsel within the province .

Now, with respect to my honourable friend 's department and the members of that department , I don't think it is stretching the point too far , to suggest that generally speak ing they 're at a disadvantage when confronting these individuals , who constitute the to a very large extent the ranks of defence counsel within the province , and I think it is spec ious for the member to suggest that discretion of this sort can be vested in them , when in fact their counterparts at the defence bar are the same people who have gone through their positions and have for one reason or another sought positions at the private bar .

And I would suggest that the only way that we can adequately defend the publ ic interest , and perhaps even look after , dur ing the initial stages of these young lawyers' careers - and a great many of the lawyers with the Criminal Division of his department are young lawyers by anybody 's definition - is to provide adequate supervision and to give them adequate support services , and the only way to do that is build in st ict policy guidelines so that members are not left to their own resources when having to make critical decisions .

We all know that in this province decisions represent precedents , and I don 't think that I for one would like to see preceden ts of this sort being left to the discretion of very junior counsel confronting former colleagues who sought out different pastures in the private sector. So in response , I would suggest that the Minister should make a serious attempt and effort to define some guidelines that can lead these individuals in this respect.o 4354 :: ·.

... • Monday, June 26, 1978 MR. MERCIER: Well , Mr. Chairman , I note the member 's concern , and we will review the matter certainly in the light of his comments and determine whether any further action is necessary. MR. CORRIN: A supplementary.

I am also concerned as to whether or not the Minister is going to specify any guidelines when dealing with individuals who are not at arm's length with himself or other members of his party , or the government, and what I'm talking about now is situations such as the one that arose in the Evans ' case, and I'm sure it is probably a rare circumstance and situation , but it does transpire from time to time, where you have an appointee of the government , in this case I believe the chairman of the Manitoba Police Commission, put in a position where he is bargaining with a departmental solicitor , barrister , respecting pleas.

In this case, even if the responsibility was chucked upstairs , even if the final decision were to be made by the Attorney-General himself , there would be I thinkaan essential conflict, and although, as I said , this is going to be possibly a very rare situation , it has transpired on one occasion and it may well happen again . I was wondering what the Attorney-General was going to do to try and eliminate and avoid these sorts of occurrences from happening again.

I also wanted to ask him whether or not he thought it was proper for the chairman of the Police Commission , given the fact that he is in a position where he may and will and probably is on a regular basis being callt!d upon to determine the propriety of conduct of members of the police forces across our provinc8 to be allowed e, to engage in the conduct of criminal cases before the courts dealing with police witnesses, people who he may well later be called upon to sit in judgment of. There is a very serious liability inherent in that sort of process, Mr.

Chairman, and I would suggest that sooner or later some shrewd lawyer or some shrewd police officer is going to bring that to the attention of the public . I would suggest that you can 't do both; you can 't on the one hand represent the interests of an accused and cross-ex .amine the police trying to discredit a police officer 's testimony , and then on the other hand put on another hat and be an impartial judge of the conduct of a police official.

I suggest that this is going to lead on a disaster course which is going to have very serious recriminations, not only on the government, but again on the administration of justice within the province . It was a matter of grave concern for me when I saw this particular individual involved in the Evans' case .

Although it wasn 't discussed publicly, I think many people within the profession , were concerned as to whether or not the Attorney-General would be able to impartially exercise discretion in a plea-bargain situation dealing with an appointee of the government of that sort of stature and that sort of position . So I would ask the Attorney-General whether or not there's going to be any regulation devised , perhaps even an informal request made to this individual asking him to withdraw from criminal litigation for the term of his office as chairman of the Police Commission? MR.

MERCIER: Well, I think the Prime Minister of this country put it most succinctly when he said , " Bunk, " because bunk is exactly what this is. I think the comments made, Mr. Chairman, by the Member for wellington, are completely unfair, the suggestion that because Mr. Shulman was an appointee of the government to a position that he is going to be favoured by the Attorney-General 's department. In fact it is probably exactly to the contrary , because the appeal was, in fact, launched , and we all know the result of the decision of the Court of Appeal.

I have never heard any suggestions , for example, with respect to the special prosecutors retained by the previous government , Mr. MacGregor and Mr. Gallagher , who had been active in criminal law, that there was ever any suggestion that they should drop out of the criminal law field because they were retained by the government in a particular area.

I think the member will be aware from his days on City Council that there would be on the one hand a lawyer retained by the city - in that case it was of course through the Board of Commissioners because the Council was not involved in making appointments - but on one day counsel would be retained by the city to defend the city 's interest and the next week he would have another case dealing with another matter against the city. I think it is unfair to Mr. Shulman to have those kind of comments made , Mr.

Chairman, because there is just absolutely no favouritism to anyone by the Attorney-General's department, and Mr. Shulman is the vice-president of the Manitoba Law Society , Mr. Chairman , and I have to reject those remarks totally out of hand . MR. CORRIN: Supplementary , Mr. Chairman. For clarification, although I think the Minister has almost intentionally set out to misconstrue my comments, I did not in any way disparage the ability or competence or integrity of Mr. Shulman . Mr. Shulman is a friend of mine, Mr. Shulman is a colleague of mine and Mr .

Shulman has been retained by members of my family and his father before him as counsel for years - SSPANNING TWO GENERATIONS NOW. So I would like to suggest that there is certainly no effort on my part to be concerned about the qualifications of this eminently suitable member of the aar. I, for one, am fully familiar with the standards of his practice 4355

Monday, June 26, 1978 and can assure you that that was not my intention , so let the record be clear. What I was directing myself to was the principle involved , and perhaps I was hypothesizing using this particular example , but I assure the Minister that there is going to be dramatic repercussions if this sort of thing is allowed . And with respect, I think it's for the Minister to exercise discretion, not necessarily Mr. Shulman or any designated appointee of his department.

What I have suggested is, that if a person in the position of chairman of the Manitoba Police Commission is in fact allowed and enabled to continue his practice , his or her practice of law within this province, criminal law within the province , then most certainly there is going to be a conflict of interest, because you can't on the one hand ask people to believe that you are an impartial arbiter, an objective , impartial arbiter of police conduc t, and on the other hand have an individual defending the interests of an accused individual and of necessity, in those circumstances, having to cross-examine, and cross-examine diligently , police officers with an attempt very often to impune their credibility with a view to trying to counterbalance , or to, as it were, -. destroy the case being brought by the Crown through the auspices and with the assistance of police officials.

I would suggest that the conflict is obvious - it's not hypothetical - and I would suggest that if the Minister were a police officer who was brought before such an individual in his designated capacity as chairman of the Commission , and had previously been subject to thorough cross-examination in those circumstances, and whose credibility perhaps even had been impuned, who was perhaps found in that particular case not to have done what he might have done in order to best administer the ends of justice, I would suggest that the !!" Minister, being such a police officer, would be most concerned about his future being adjudicated by such a member of the bar .

So I would suggest that it's incumbe nt upon the Minister to take steps to eliminate and alleviate the possibility of such a conflict of interest. The Minister cited the case of the Winnipeg Police Commission . I should tell the Minister, if he wasn't aware , that members of the legal profession who sat on City Council studiously avoided, with the exception of one individual , studiously avoided the Commission for that very reason.

I can think of one or two individuals who I believe , well, who told me that they cautio usly avoided and in fact refused service on that particular Commission , because they felt that it represented a conflict with their practices . They didn 't feel that they could wear one hat in the morning and another in the afternoon . I might say that one of those members was a member of the Honourable Minister's caucus, and I would suggest somebody whom the Honourable Attorney-General has a great deal of respect for.

So I would suggest that the principle abides, and we're not dealing with personalities , we are dealing with a matter of substance and principle, and I would suggest that if the Minister avoids making a decision , then the decision will be made as per usual in the form of public opinion . It will be done very arbit rarily and it will probably be made on an appeal basis , when some police officer, as 1 said, retains shrewd counsel , who decides that this is a contravention or denial of his rights of natural justice . MR. MERCIER: Mr .

Chairman , I'm glad that the honourable member agreed with me as to the integrity and abil ity of Mr. Shulman . I'm satisfied that Mr. Shulman would exercise those characteristics if indeed there arises a situation in which he may have a possible conflict of interest. MR. CHAIRMAN : The Member for Wolseley. MR. WILSON: Mr.

Chairman , basically I listened with interest and I wanted to get back to where the Member for Wellington started off perta ining to plea bargaining and the fact that the Minister, if I'm correct , did he say that a review of the whole matter was being considered by his government ; and the second part of that , is there a

schedule of fees amongst the legal profession . We talked about the Evans ' case . Is there a special fee set in criminal proceedings that, for instance , somebody arrested on a major drug situation it would be $7,500, rape would be $5,000 , breaking and entering $2,500, and murder, everything they 've got - is there any set

schedule of fees by the profession for criminal proceedings or is it by the hour? MR. MERCIER: Are you referring to Legal Aid

schedule of fees? MR. WILSON: No, I am referring to the particular industry

schedule of fees pertaining to cases - under criminal prosecution . If I get the answer I want , I can further get into my area of concern . In other words MR. MERCIER: Mr. Chairman , I believe that with the exception of the Legal Aid

schedule of fees relating to criminal matters , there is no prescribed

schedule of fees for criminal matters from the Law Society . 4356

.. Monday, June 26, 1978 MR. WILSON: Well, my concern is on the street, it is one of my concerns of trying to end the plea bargaining to the extent it had been under the former government, was the fact that individuals were paying $7,500 when arrested on drug charges and when plea bargaining took place, the lawyer did very little work and still was entitled to the $7,500 . fee,

whereas under civil litigation, he would have to account for the hours he spent on the case. So this is where my concern came forward, is the fellow paying the $7,500 for the fact that he got a lesser sentence than anticipated or is he paying it because there is some

schedule of fees amongst the industry for a particular crime? MR. MERCIER: Mr. Chairman, as the honourable member is aware, the Law Society is a self-governing profession and that is a matter within the jurisdiction of the Law Society . MR. WILSON: Mr.

Chairman, then I am very pleased I put my comments on the record because it seems to me that this is very well-known amongst people on the street, from all walks of life and especially those who are sort of fringe people who always seem to be in and out of trouble, and it would seem to me that if they do read my comments, they might look into the fact that possibly there is a particular known fee for certain types of cases and that fee is charged whether the fellow spends a month on the case or whether he spends just several hours. My other comment was to certainly agree with you, Mr.

Minister, and to disagree with the Member for Wellington, but a number of things the Member for Wellington said were things that I could identify with and agree with. I think I have expressed this as a known fact in the architectural field, that it certainly seems to me in my time in Winnipeg, that many young lawyers who are now very successful lawyers in this city, started out and if I could use the term , got their MA or post-graduate degree by being employed by the government, stayed one or two years and then went on into private practice .

So it would seem to me that indeed we have a fantastic turnover; I hope this turnover now has stopped because of our increased salary structure, because it seems that we did have this type of youthful team. This is not to say they are not a very capable team.

I have met many of them and they are very capable but the problem I envision is that when you are in plea bargaining, I do feel the experienced lawyer should be involved in it - these are my personal comments only - because the rookies are no match for the likes of the Brodskys and Regiers and Walshs, whoever may be dealing for teese particular people who can well afford .

I noticed the Member for Wellington contradict some of the situations that the Member for Selkirk had said when he proved that at least in criminal law, that it is those people who get into the area of hiring these people, either through Legal Aid or otherwise , who are able to take on the less experienced people in the department and obtain the lesser sentences. So these are my own personal comments that I wanted to put on the record.

My last thing is a question: would you be able to tell me or take as notice, because I was sincerely critical of the former Attorney-General when I asked the total cost of the lawyers travelling around the country, to Austria, and I remember the great Mitchel-McCaffrey team, under the CFI Commission of Enquiry, that travelled the length and breadth of the country at the taxpayers' expense, and I wonder if he would be able to tell me the total cost of the CFI enquiry to date, under the Criminal Prosecution

section that we are before, or just an estimate. Mr. Matas in the Tribune hatl said that the cost was $2 million, and I believe the former Attorney-General had said that that fi!!Jure was a little high. I'm wondering if we have reached that plateau yet. MR. MERCIER: Up to March 31 of 1978, the total expenditures for legal fees and related expenses relative to the criminal fraud proceedings were $511,677.98. MR. CHAIRMAN: The Member for Selkirk . MR. PAWLEY: Mr.

Chairman, I believe I should ask, in view of the impression that might be left by the Member for Wolseley's question, have you any reason to be dissatisfied with any of the work that has been done by the special prosecutors to this date? Are you continuing along in the same course of action as was carried on earlier under the previous government in respect to the special prosecutions in the Kasser, Reiser, etc . matter? MR. MERCIER: We are continuing the same course of action, Mr. Chairman , and have no results. MR. CHAIRMAN: The Member for St. Vital. MR. WALDING: Mr.

Chairman, my question arises from the remarks of the Member for Wolseley . 4357

Monday, June 26, 1978 I would like to ask the Attorney-General if an individual can have his solicitor's account taxed in a criminal matter the same as in a civil matter? MR. MERCIER: I believe so. MR. WALDING: That being the case, I wonder if the Attorney-General would explain again for the benefit of the Member for Wolseley, just what recourse an individual citizen would have if he felt he was being charged too much. MR. MERCIER: The Law Society office answers calls like that every day. MR. WALDING: Thank you. MR. CHAIRMAN: The Member for Selkirk . MR. PAWLEY: Mr.

Chairman , I think I should just say, in view of the fact that the Member for Wolseley has injected some doubt into this area, that one of the concerns which I had durin the period that I was Attorney-General, was the fact that in our society the international white-collar criminal seems to have so much going for him,

whereas the petty thief has much less going for ~ him insofar as dealing with the criminal justice system. One of the main problems seems to be our extradition laws of which Manitoba made numerous representations to the Federal Minister of Justice that there should be an improvement in the treaty arrangements dealing with extradition treaties . There are so many loopholes in extradition treaties that it seems that if you are powerful enough and wealthy enough , no matter how horrendous is the crime that is committed, you can escape paying for your wrongs. It always surprises me, Mr.

Chairman , that a law and order man such as the Member for Wolseley ~ is so soft when it comes to the area of the wealthy and the powerful in the field of international white-collar crime . I can recall being under criticism from the Member for Wolseley because we were attempting to do what was reasonably necessary in o~der to obtain remedies, remedies insofar as the crimes that were perpetrated in this province , in our view, by certain individuals. So that here again we face that inference from the Member for Wolseley that there is something that has been undue and excessive in the cost to date. Well, Mr.

Chairman, we can have two laws , and I hope that we can explore this further as we proceed along with these Estimates, whether or not there are two laws. But unfortunately the path which I believe the present Attorney-General rejects, of taking a soft view of int ernational white-collar criminals and a hard line position insofar as the smaller criminals, is certainly one that we never shared with the Member for Wolseley when we were in government. MR. CHAIRMAN: The Member for Wellington. MR. CORRIN: Mr.

Chairman, dealing very generally now with the question of retention of outside counsel, and I was going to raise this under the Civil Division of the department but I chose to wait until such time as we were also dealing with the Criminal Prosecutions, because I was particularly interested in the prosecution of individuals such as Reiser and Kasser and the necessity to retain special counsel in order to proceed forward against them. I'm a new member and I suppose I have to qualify what I am about to say by saying that I am totally unfamiliar with the previous state of affairs .

I do, though, feel that what I have to suggest has some merit. For a long time, I felt that if the government were to exercise fiscal restraint, and this government of course is avowed to do that, I might say at any cost , then one of the ways that that could best be effected is through the tendering process.

Of course now, contemporaneous with the new standards that exist within the province and the public and private discussions that are now being held within the ranks of the Law Society pertaining to the question of advertising of legal services , it occurs to me that it is quite timely, most timely, to broach the subject of tendering for legal services being provided to government by special counsel and for that matter, tther sorts of agents that are retained by the various departments. I am talking about professional agents .

But dealing specifically with tendering procedures for legal services, I would ask the Minister whether or not he sees any merit in establishing guidelines thtt would necessitate public tender for the provision of legal services. I am appreciative of the fact that certain individuals, by virtue of experience, by virture of special aptitude and skill , perhaps are given special status - and should be given special status - when matters such as this, the matters of retention of counsel arise.

But it seems to me that living in a province the size of Manitoba and having a profession that is now of a fairly significan t size, affords the opportunity for many , and has afforded the opportunity for many individua l members of the profession to reach significant levels of attainment within their 4358

Monday, June 26, 1978 chosen profession . I would suggest that it is no longer appropriate for any individual, as has been done in the past when tendering has been broached at other levels within the Law Society particularly, it is no longer appropriate to suggest that only a very few individuals are capable and competent of handling work and therefore there is no merit in the tendering format. I would ask the Minister whether or not he will consider implementing tendering guidelines with respect to provision of services of this sort? MR. CHAIRMAN: The Attorney-General. MR. MERCIER: Mr.

Chairman, I think I indicated when we dealt with the Civil Litigation Branch , that we had added one additional position there with a view to doing as much as possible of the ongoing continuing work within the department, because it is the most economical, rather than retaining outside counsel to do ongoing work . Certainly there are cases when special expertise is required or special, perhaps even independence from the department is required, that it is necessary to go outside the department. In cases like that, Mr. Chairman, they could be likened to the situation where you require an operation by a doctor .

In those particular circumstances, it is not the lowest price that you 're concerned about, you're concerned about the quality of the particular work. MR. CORRIN: A supplementary . I would note , Mr. Chairman, that I suggested that there be guidelines drawn; I wasn 't so specific as to suggest that price was the only standard. Obviously when you 're talking about professional services, price is not the only standard, but I would suggest in certain circumstances by use of guidelines you can create a situation where all other things are equal and you can do that in a number of ways I think.

I think that one can call for a certain number of years experience at the bar, one can suggest perhaps even that there be references with respect to a specific, a particular type of work . Dealing with the Forest case for instance, I think both myself and the Minister were in concurrence and agreement that both counsel, respective counsel, Professor Gibson and Mr. Twaddle , were both qualified and competent to go forward , both capably endowed with forensic skills and legal knowledge and most suitably chosen for the conduct of this particular case.

But , having agreed that the two individuals were the same, I would suggest that perhaps in those sorts of circumstances , it does boil down to price. If you have two qualified experts who are, as in the Forest case, recognized by the Attorney-General as being of equivalent stature, I would suggest that it's not irregular and it's not inconsistent for me to suggest that tendering might well be the most equitable manner of proceeding, having in mind the fact that the government must protect the public interest whenever retaining outside agents in the employ of the administration.

So having that in mind, I would ask the Minister whether or not he would agree that given the fact that his government is so cost conscious and is so concerned as he has suggested on several occasions , even this evening, with making government more efficient, making government better managed fiscally, I would ask whether or not he would be willing to consider even implementing the tendering process on a limited experimental basis in order that members of the bar and members of the public can gain some insight as to whether or not this practice might be of value to the citizens of the province. MR. MERCIER: Mr.

Chairman, perhaps for the third and last time, I have indicated that we have taken the position to expand the in- ouse staff of the Civil Litigation Department because we feel that that is the most economical way of handling all of the ongoing duties, and we feel that we have in fact absorbed some of the work that was previously done by outside counsel so there is only the rare and special case where we anticipate that it will be necessary to retain outside counsel , and for the moment , we have not considered any form of public tendering for legal services . MR. CORRIN: A supplementary , Mr. Chairman.

Addressing myself to that reshonse, Mr. Chairman , I would have to remind the Honourable Minister that it was he who suggested that there had been no increases in the complement of the criminal

section of his department , no increases whatsoever in the number of persons employed . As a matter of fact, there was a reduction of one SMY in this fiscal year, in these Estimates . So I would suggest that for the Minister to now advise the members of the Committee that he is taking decisive action by expanding the complement of his staff .. . MR. MERCIER: The Civil Litigation Department , I said. MR. CORRIN: Well , we're not talking of civil litigation when we're talking about cases involving for instance , Messers . Reiser and Kasser. . . 4359

Monday, June 26, 1978 MR. MERCIER: You didn 't dffferentiate between civil and criminal. MR. CORRIN: .. . we're talking about both criminal and civil matters , I think, under the heading of the criminal section. If the Minister wants to attempt some sort of finesse and move back onto the civil item, as I said , I am more than willing to discuss both. I think in both cases, the same principle pertains and applies .

I think the principle is very simple ; if the government is cost conscious as it has said , if it is in fact deliberating on ways and means to reduce the public expenditure in this province , then I would suggest a very cost effective manner might be the tendering process and I would suggest there is absolutely no way that this government can establish whether or not such a process has merit and whether or not it might be comparatively speaking , more efficient than infinite expansion within the ranks of the department , and I must point out on that point, I must aver to the very special nature of the cases that we have been discussing.

I think there are very special circumstances and reasons why the government in the cases such as CFI and the Forest case do not reta in counsel from within the ranks of the department, simply because these are very specialized areas of law, they require persons who have specialized knowledg e and experience, and obviously it would not be efficient for the department to staff these - you might call them these specials , these special need professionals on the speculat ion that there may one day be a case where their spec ial talents could be utilized.

Obviously you are not going to staff Professor Gibson , or a Mr. Kerr Twaddle with your department on the surmise that one day you may have need to avail of their specialized services. It's much better, it's more effective and more efficient when you do, to go outside and retain them , but I am merely suggesting that if and when you do, the tendering process is the most efficient manner of doing it. We have heard debate in the Legislature , the Minister of Highways was just a few short days ago telling us that it was his intention and the intention of your government , Mr.

Chairman , to upgrade the standards of tendering within the province , that he found that there was concern ; not agreed with by members on my side , but he found that there wasneed for concern in this regard. Given this manifestation of concern , I would suggest that we extend that concern not only to apply to the sale of airplanes and government businesses , but also to the retention of professional services. I can assure the Minister tha there are legal firms in this city , large legal firms, who staff many lawyers of diverse backgrounds , who would be quite pleased to

part ici pate in a tendering procedure . I don 't think that they would feel that they were at any disadvantage , legal firms of 5, 10, 15, 20, 30, and 35 members, if they were called upon to compete one with the other in this sort of procedure. As a matter of fact, I think that you would find that it would once and for all dispel a lot of the past criticism that has been associated with the retention of counsel by government. The old .. traditional charge that there is a good deal of pork barreling . N you knowow no one has ever proven it and I am not sure that it's true .

I, for one , would argue that it's quite untrue, and it's unfounded , but unless the government takes some deliberate measure and procedure to circumvent these sorts of charges , there will be no way to put the lie in the mouths of those who wish to impute motives and make such charges publicly and privately . So I would suggest that the Minister give consideration to the tendering process in the retention of legal counse l. MR. CHAIRMAN: The Member for Wolseley . MR. WILSON: Mr.

Chairman , in 50 seconds or less, on a matter of sort of personal privilege, the Member for Selk irk sort of indicated that I was an agent for the rich and the powerful , and I can 't help but reject that totally because I criticized him on the Vogt case , where a man had killed his wife and left his father-in-law crippled for years, and two years later he was playing tennis on the courts of the province here .

So I can reject that totally and say that my concern is that international law should be left either to the United Nations or something , because the United States and others haven 't been able to get hold of Vesco and others haven 't been able to get hold of hijackers , and the FLQ and others . I think if you are going to have practica l government , you have $6 million to $8 million sitting in Quebec , many lawyers have indicated there is absolutely no hope of bringing Mr.

Kasser to justice, I'm saying for the taxpayers of Wolseley and myself - and it's my own personal opinion , and obviously the Minister and the Member for Selkirk are slightly in agreement , I feel that principle only goes so far and when there is $8 million sitting there for the taxpayers of Manitoba or even if 1 am exaggerating , it's only $6 million plus interest I say the time has arrived that I as an individual try to convince my government to get the $6 million because that can buy an awful lot of happiness in Manitoba . MR. CHAIRMAN: The Member for Selkirk . MR.

PAWLEY: 1 want to speak to that point of persona l privilege , if that's in fact what it was. 4360

.. Monday, June 26, 1978 Mr. Chairman, first , I didn't accuse the Member for Wolseley of being an agent for the wealthy and the powerful. I was suggest ing there was an inconsistency between his policies and his attitudes towards the criminal justice system as between two llasses: one, the rich and the powerful, the very rich, the International white-collar criminal, and those involved in petty theft; and secondly, I don 't think I need emphasize that to leave the international white-collar crime to United Nations would be like trying to row a canoe across the Atlantic Ocean - you wouldn't get very far. MR. CHAIRMAN: (bX1)-pass; (bX2)-pass. Resolution 20;

Be it resolved that there be granted to Her Majesty a sum not exceeding $2,304,100 for Attorney-General, Legal Services - pass. Boards and Commissions 3.(

a) Manitoba Law Reform Commission, 3.(aX1)-pass- the Member for Wellington . MR. CORRIN: Mr. Chairman , I noted in a local daily newspaper that there was an advertisement finally posted for the position of Director, I believe Director is the actual designation of the position, of the Manitoba Law Reform Commission. I think a lot of people have been quite concerned for some time after the departure of Mr.

Frank Muldoon, that there was a very demonstrable need to replace this very capable individual in this capacity, and I was wondering whether or not the Minister could make any report to the Committee as to what progress has now been made in retaining ... -(Interjection)- MR. MERCIER: Mr. Chairman, I refer the member to Hansard covering the discussion this afternoon. MR. CHAIRMAN: I am told, to the Member for Wellington, I wasn't present, but I am told that that subject matter was discussed at great length this afternoon during these Estimates. MR. CORRIN: Well, you see, Mr.

Chairman, if I would have been here and I would have raised it this afternoon, I would have been told that it should be raised under 3.(aX1), but I am pleased to hear that matters are moving forward with great expedition . MR. CHAIRMAN: 3.(aX1)-pass; 3.(aX2)-pass; 3.(b) .. . MR. CORRIN: Might I ask, Mr. Chairman, not to be redundant, but given that we discussed the question of the retention of the director of this particular commission, did we go into any further detail as to the format to be adopted, or perhaps to be continued by the department with respect to this very important body? MR.

CHAIRMAN: The Attorney-General. MR. MERCIER: As much as required, Mr. Chairman.$ MR. CORRIN: Do I take that then, Mr. Chairman, to be a negative response? He indicated, as much as required; I don't know whether that again is a facetious reply or . .. MR. MERCIER: I think we had a very full and thorough discussion of the operation of the Law Reform Commission this afternoon, Mr. Chairman, particularly the position of the Chairman , whether it should be full-time and part-time , and what accommodation could be made in respect to the operation and I think it was adequately covered by the members who were here. MR.

CHAIRMAN: 3.(bX1) Salaries - the Member for Selkirk. MR. PAWLEY: Under the Human Rights Commission, I would like the Minister to advise me as to the staff presently in the Human Rights Commission, the number of staff this year compared to last year, and reduction if any, where, and also I would like the Minister to deal with the reasons for the decrease in the Human Rights Commission, a significant decrease of some $40,000 in this not too significant item financially . MR. MERCIER: Mr. Chairman, I believe that the two positions that have been deleted were in fact unfilled and had been unfilled for some time.

I think, upon the appointment of a chairman, whether that be full-time or part-time, then obviously we will have to review the budget with the new chairman in preparation of the Estimates for next year . MR. PAWLEY: Mr. Chairman, I believe that- oh, you've moved from Law Reform to Human Rights. 4361

Monday, June 26, 1978 -(Interjection)- MR. FOX: It's getting late, we had better adjourn . .. MR. MERCIER: The positions that were not funded were one-half term SMY and one and a half cnntract SMY which was summer student research and the secretary . Would you like the details ;:: which would comprise the 41 .7 reduction? There 's also a reduction in professio nal fees because we're going to use the lawyers in the Civil Litigation Branch .

That reduction amounted to the reduction in the Printing and Publications is $5,000 , and a reduction in Advertising and Exhibits of $3,600 , and other minor items of $900 which total $41 ,700.00. MR. PAWLEY: Now, Mr . Chairman , I'd like to ask the Attorney-General whether the position of northern field worker has been filled insofar as the commission is concerned , that is the worker working out of the The Pas office? MR. MERCIER: Mr. Chairman , I'm advised that there were two workers in the north.

One resigned and the position was allocated to a secretary's position in the city so that there is still one worker in the north . MR. PAWLEY: Mr. Chairman , that information does cause me concern because if there is an area where Human Rights Commission and its activities are very important it is in the northern area. It was for that reason that we established an office in The Pas in which there served a secretary plus a field worker .

Now , if I'm led to believe that we only have one person working in The Pas at the present time - one field worker , no secretary - in view of the number of complaints which originated in the north, and I think we can understand the reason for the type of complaints that would occur from the north in view of the native situation , Metis situation ... MR. MERCIER: Mr . Chairman, there was apparently two field workers plus one secretary at The Pas.

The one worker resigned and the moneys for that f.JOSition were transferred to a secretarial position in the city so that there is still one field worker plus a secretary in The Pas. MR. PAWLEY: So what we really are faced with then is a reduction of one field worker in the north . Well, I must express disappointment, Mr.

Chairnan , that there has been a reduction of a field worker in the north because I belieVe there is need for Human Rights Commission activity in view of the very nature of the communities throughout the north and the character of the complaints spells a need for a Human Rights Commission and fieldmen in the north . So I want to ask the Attorney-General whether he can assure us that there won't be a further cut in the remaining fieldmen in the north in The Pas district? MR. MERCIER : This year? MR. PAWLEY: Yes. MR. MERCIER: No, there's none that I'm aware of, Mr . Chairman . MR. PAWLEY: Well , Mr.

Chairman , has there been a reduction in field workers elsewhere in Manitob a? Is the reduction consistent with the reduction in the north - a 50 percent reduction in the north insofar as field workers are concerned? MR. MERCIER : Mr. Chairman , this was a decision of the Human Rights Commission I assume based on the priorities that they established for themselves and the work flow . There have been no other reductions in field workers outside of The Pas. MR. PAWLEY: Mr.

Chairman , I do think that if it's a decision of the Commission it's one that's been imposed as a result of the pressures of the reduction in the number of dollars made available so 1 want to express grave concern about that area. As well I would like to express concern about ... an earlier comment that the Minister made in connection with reduct ion in fees . One of the innovations :: which we placed into the Human Rights Act in 1974 was a provision which removed any veto from the Attorney-General insofar as the referral of cases to boards of adjudication .

It was my feeling at the time that it was most important that the Human Rights Commission not be subject sometimes to the particular political whims of whatever Attorney-General was in being at any one time, so in 1974 we removed the veto insofar as referral , the veto which had previously existed enjoyed by the Attorney-General. In order that that be effective I think it 's important here , and I certainly prefer 4362

Monday, June 26, 1978 in-h ouse legal services as much as poss ible, but I think this is an area where it' s important to utilize from time to time independen t legal services to ensure that there is independence from the Att orney -General Department insofar as matters , particularly those that may involve government itself and questions of discriminat ion pertaining to government. So I want to ask the Attorney-General , in view of the reduction in fees allocated , whethe r there 's an intention to use here more in-house srvices as he indicated the intention was in other fields? MR. MERCIER: Mr.

Chairman, yes, the intention is to use more in-house services but I recognize the point that the honourable member is attempting to make , that in some cases it could be seen to be a conflict of interest if an in-house departmental staff person did represent the commission on a matter and each case will simply have to be assessed on its merits. If we can foresee that problem then we'll take the necessary steps to retain outside counsel and avoid it. I might say, Mr.

Chairman , that since assuming government we have had one request for a Board of Arbitration and that matter has been proceeded with but not concluded yet . MR. PAWLEY: Mr. Chairman, I would also ask the Minister in connection with a program that was undertaken by the Human Rights Commission dealing with ethnic group work . Can you advise me whether that is continuing . MR. MERCIER: Mr. Chairman , I've indicated the various areas which were reduced. As far as I'm aware that program is being carried on. MR. PAWLEY: Can the Minister advise me of the percentage of increase in complaints?

Certainly in the period from the inception of the Human Rights Act up to the present time there's been a steady increase in the number of complaints as more and more of the public became aware of the workings of this commission . Can I be advised as to the percentage increase in complaints received by the commission last year at this time to this year at this time? MR. MERCIER: Mr. Chairman , I believe that that information is contained in the Annual Report of the Human Rights Commission . I don 't have a copy with me. MR. PAWLEY: Is it out now? MR. MERCIER: Yes, it's tabled .

Perhaps just to give the honourable member notice, I'm advised that there is an error in the report which will have to be corrected . MR. PAWLEY: Mr. Chairman , I want to express additional concern to the Minister about what appears to be reductions insofar as education prevention. It seems to me that the Human Rights Commission is one that should not basically rely upon response mechanism but certainly has to inform the community . It aas to be prepared to work through the schools and the workplaces and other groups .

I remember the excellent work that was done by the commission with the Hotel Association over the last year or two . I'm concerned that with the reductions that the Attorney-General mentioned that there will be a reduction insofar as education. Is the Attorney-General telling us that the commission will be now more response - it will be solely response orientated? MR. MERCIER: Mr. Chairman , I believe the effect of the reduced funding will be to reduce the amount of moneys available for mass printing of educational material. MR. CHAIRMAN: (b)(1)- pass - the Member for Wellington . MR.

CORRIN: I'll be very short and deliberate. I must say that I was quite concerned and still am quite concerned about the recommendation made by the Task Force respecting the Human Rights Commission. I would like to know whether or not the Task Force members responsible for the review of this particular commission consulted with the Minister prior to making their deliberations, and whether or not the Minister is aware as to whether they sought the advice and counsel of the Chairman or the Director of the Commission? I do have another question but I think it would be more appropriately supplementary . MR.

MERCIER: Mr. Chairman , I did not consult with the Task Force relative to their recommendations on the Human Rights Commission . I don 't know whether or not they consulted with anybody on the Commission. MR. CORRIN: Having heard that response , and I thank the Minister for being so forthright, I would 4363

Monday, June 26, 1978 respectively again suggest that the Minister, prior to making any conclusive decisions respecting the nature of this particular government agency, make a special effort to consult with the Director of the Commission in order to apprise himself of the work that the Commission has done and its expectations for future growth and development . I think we can all concur - I don 't think anybody at this table would disagree that this is a very important fundamental area .

This particular commission does work which by its very nature makes our society here in Manitoba more cohesive and more humane , and , as the Member for Selk irk has pointed out , if there are to be any cutbacks as were recommended by the Task Force and particularly in its educational activities, and I would remind the Minister that these educational activities are with respect to advice that is given to school children, to working people throughout the province , people in remote northern situations and particularly indigenous people of native ancestry , and women 's groups of course .

I would suggest that all of Manitoba would be the less for such a restraint policy , and although there has been some evidence that there have been some limited cutbacks , I would strongly importune the Minister to be most cautious , to be very conservative when considering making any changes in the scope and extent of the jurisdiction , the qualitative program of this particular commission . MR. CHAIRMAN : The Attorney-General. MR. MERCIER : Mr.

Chairman , the last sentence of the paragraph on HumanRights Commission says that the Commission , as its first priority , should be directed to respond to complaints regarding violation of rights under the terms of the Act, and I don 't think anybody could disagree with that. Certainly that has its own educational value. So I assume that the member is not referring to that particular sentence . MR. CORRIN: No, Mr.

Chairman , what I was concerned with was the actual last sentence the Minister skipped - if he looks over on Page 21 , the last sentence is actually , " Consideration should be given to the number of staff reductions that can be realized by the above recommendations." And the recommendation was that there be a reassessment and an adjustment of the Human Rights Commission 's educational activities .

I would suggest that it is very very difficult , and I'm sure that the Minister will agree if he thinks about this in any depth, it is very difficult for a person who is unaware of his or her rights - a woman who may well not be aware of the provisions of the Human Rights Legislation in this province ; a native person who may not know about these same laws - it is very difficult for such a person to exercise his or her rights under those laws unless there is

an act ive program of education and dissemination of information in all our communities. So the one without the complement of the other is vitiated in purpose, Mr. Chairman. There will be oo significant value to a program that sees significant curtai lment of educat ional activities .

I think that the Minister would have to agree that people who have these limited backgrounds, or for that matter like most people who are not familiar with the law, would be very unlikely to bring matters before the Commission unless there is what I would like to call a more activist - am pleased and proud to call a more activ ist position taken by the government in this respect. So , having said that , I would hope that the Minister would concur that my concern is not ill-founded but founded on a reasonable premise and on an equitable foundation . MR. MERCIER: Mr.

Chairman , I think basically what the Task Force is saying is that we should attempt to get the best value for our dollar spent in this area and any other particular area and we just have to look at the effectiveness of some of the mass mailings that go out because I hhink many of us know how some of those reports are treated and we just have to make sure that the money is effectively spent . There is no question that there is an educational function that is necessary . MR. CHAIRMAN: The Member for Winnipeg Centre . MR. J. R. (Bud) BOYCE: I have just a couple of questions , Mr. Chairman.

Did I understand the Attorne y-Gener al right, that he has

Document details

Collection	Manitoba — Debates (Hansard)
Citation	31-2-71b
Type	hansard
Volume / chapter	31st 2nd hansardpdf 71b.pdf
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	a9073147789292fea9d0dd3a09146589277a06b5

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