Manitoba Committee Hansard — 14 July 1987 (Statutory Regulations and Orders Committee, Sitting 3, 33rd Legislature, 2nd Session)

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Manitoba — Debates (Hansard)

LEGISLATIVE ASSEMBLY OF MANITOBA THE STANDING COMMITTEE ON STATUTORY REGULATIONS AND ORDERS Tuesday, 14 July, 1987 TIME - 8:00 p.m. LOCATION - Winnipeg, Manitoba CHAIRMAN - Mr. G. Roch (Springfield) ATTENDANCE - QUORUM - 6 Members of the Committee present: Hon . Messrs . Cowan, Desjardins, Harper , Hon . Ms. Hemphill, Hon . Mr. Penner , Hon . Mrs . Smith (Osborne), Hon . Mr. Storie Mr. Mercier , Ms. Mitchelson, Mrs . Oleson and Mr. Roch APPEARING: Bill 49 Mr. W. G. Burns, Manitoba Real Estate Assoc iation Bill 70 Mr. Art Reimer, Manitoba Teachers ' Society Bill 72 Mr.

Harry Peters, President, Manitoba Association for Rights and Liberties Lee and Agnes St. Hilaire, Victims of Child Abuse Laws Darlene Hogue , private citizen Mary Dolman, private citizen Bill 59 Mr. Tom Cohoe, private citizen Ms. Shawn Greenberg, Legal Aid Manitoba Mr. Tony Dalmyn, The Canadian Mental Health Association (Manitoba Division) Henry Elias, private citizen Mr. Harry Peters , Manitoba Association for Rights and Liberties (MARL) Dr. Marilyn McKay, Manitoba Psychiatry Association Dr. Jay Brolund, Psychological Association of Manitoba Dr. Jim Brown , Group of General Hospital Heads of Psychiatry Dr.

Werner W. Hunzinger, Grace Hospital , Head of Psychiatry Ms. Sharon Jorgenson, Association of Occup ati onal Therapists of Manitoba Ms. Denise Higgs , private citizen ALSO PRESENT: Messrs . Brown and Orchard STAFF MEMBERS PRESENT : Gene Szach, Legislative Counsel Office Dr. J. Toews, Department of Health Greg Yost, Legislative Counsel Office Tom Walters 45 MATTERS UNDER DISCUSSION: Bill No. 24

An Act to amend The Corporations Act; Loi modifiant la

Loi sur les corporations Bill No. 35

An Act to amend The Child and Family Services Act ; Loi modifiant la

Loi sur les services a l'enfant et a la famille Bill No. 37

An Act to amend The Liquor Control Act; Loi modifiant la

Loi sur la reglementation des alcools Bill No. 38

An Act to amend The Law Society Act; Loi modifiant la Lo i sur la Societe du Barreau Bill No. 40 The Human Tissue Act;

Loi sur les tissus humains Bill No. 42

An Act to amend The Construction Industry Wages Act; Loi modifiant la

Loi sur les salaires dans l'industrie de la construction Bill No. 46 The Charter Compliance Statute Amendment Act, 1987; Loi de 1987 modifiant diverses dispositions legislatives afin d'assurer le respect de la Charte Bill No. 48

An Act to repeal Certain Unrepealed and Unconsolidated Public General Statutes and Parts of Statutes (1871- 1969); Loi abrogeant certaines lois generales d 'interet public non abrogees et non codifiees et certaines parties de loi (1871-1969) Bill No. 49

An Act to amend The Real Estate Brokers Act; Loi modifiant la

Loi sur les courtiers en immeubles Bill No. 59

An Act to amend The Mental Health Act ; Loi modifiant la

Loi sur la sante mentale Bill No. 60

An Act to amend The Anatomy Act ;/ Loi modifiant la

Loi sur I' Anatomie Bill No. 62

An Act to amend The Insurance Act ; Loi modifiant la

Loi sur les assurance Bill No. 69 The Statute Law Amendment Act (1987); Loi de 1987 modifiant le droit statutaire Bill No. 70

An Act to amend The Public Schools Act; Loi modifiant la

Loi sur les ecoles publiques Bill No. 72

An Act to amend The Child and Family Services Act (2); Loi modifiant la

Loi sur les services a l'enfant et a la famille

(2) CLERK OF COMMITTEES, Ms. S. Clive : May I have your attention, please? The first item of business of the committee meeting this evening is the election of a new chairperson . The floor is open for nominations .

Tuesday, 14 July, 1987 Mr. Cowan. HON. J. COWAN: Yes, I move the Member for Springfield. MADAM CLERK : Mr. Roch has been nominated. Are there any further nominations? Hearing none, Mr. Roch, would you take the Chair, please? MR. CHAIRMAN: The Minister of Health . HON. L. DESJARDINS: Mr. Chairman , if it meets with the approval of committee, I think we would be ready to agree to have the presentations first. The Mental Health Act would be the last one to accommodate the Health critic of the Official Opposition . MR. CHAIRMAN: Is that the wish of the committee? (Agreed) The Attorney-General. HON. R.

PENNER: Thank you very much. May I indicate to those who appeared on bills for which the Minister of Consumer and Corporate Affairs is responsible , Insurance and The Corporations Act and so on, that as Acting Minister of Consumer and Corporate Affairs and as former Minister of Consumer and Corporate Affairs, I'm representing Mr. Mackling this evening and will certainly be prepared to listen with interest and, I hope, understanding to any submissions on these bills. BILL NO. 49 - THE REAL ESTATE BROKERS ACT MR. CHAIRMAN: First, we will hear the delegations on Bill No. 49,

An Act to amend The Real Estate Brokers Act. We have on the list Mr. W. G. Burns of the Manitoba Real Estate Association. Is there anyone else here who wishes to make presentations tonight before I call Mr. Burns? Okay, Mr. Burns , will you please come forward? Have you written briefs for distribution? MR. W. BURNS: No, I haven't, Mr. Chairman. MR. CHAIRMAN: Okay, that's fine . MR. W. BURNS: Mr.

Chairman , it is with some interest that I have watched the nightly newscasts over the past two or three nights, and I can tell you that nothing that I have to say tonight will likely create some of the news that made the late night television programs over the past two or three days. My name is William Burns and I have the privilege of serving as the president of the Manitoba Real Estate Association for this year. Our association consists of some 2,700 members who are brokers and salespeople, scattered throughout the Province of Manitoba , but mostly concentrated in the City of Winnipeg .

Our membership represents 87 percent of the 3,100 practitioners who serve the real estate needs of the people of Manitoba. 46 The activities of our association are many. The most prominent are the development and administratio n of the pre-licensing education courses for the entire province; the development and encouragement of post licensing education for our members; the promotion and maintenance of a standard of business practice and a code of ethics for our members; the advocating and promotion of just and desirable legislation affecting real estate in the Province of Manitoba. It is this last activity, Mr.

Chairman, that brings me to the podium this evening . I would like to make a few comments and suggestions with regard to Bill 49. First of all, let me point out that the Real Estate Brokers Act has been amended on several occasions, and that these amendments have generally had the endorsement of the real estate industry. Representatives of the Manitoba Real Estate Association and/or the Winnipeg Real Estate Board have, on more than one occasion, appeared before this committee to support and comment on amendments being presented at the time.

Unfortunately, we find ourselves unable to support "' Bill 49, because we disagree with its principal objective which is to require, in the absence of contrary agreement , that all monies held in real estate brokers' trust accounts to bear interest, with such interest being used by the Manitoba Securities Commission for approved worthy undertakings or, in lieu of such undertakings, being paid into the Consolidated Revenue Fund of the Provincial Government on an annual basis.

The current act provides that, unless mutually agreed upon by all parties to a trade or transaction and unless a broker is instructed to do otherwise by the parties to a trade or transaction, all deposits and all other monies held by a broker on behalf of third parties must be placed in a non-interest-bearing trust account or invested in a trustee investment with the proceeds therefrom to be paid in accordance with the agreement of the

part ies. At the present time , there is relatively little demand for the par ties to a real estate transaction for interest to be paid on their money, held in trust by a real estate broker. Generally speaking, it is only sizable deposits being held for lengthy periods that are placed in interest bearing accounts or trustee investments .

Part icipants in this normal residential real estate transaction are not demanding interests on their deposits, as the amounts held in trust are relatively small and are being held for short periods of time. This is particularly the fact when the parties learn that the existing statute requires the broker to hold these monies in a non interest-bearing account. In order to pay interest to the parties , separate accounts would have to be set up with the agreem ent of all parties as to who would be entitled to the interest on completion of the transaction. It is our view, Mr.

Chairman , that if monies held on deposit are to be placed in inte rest-be aring accounts with the beneficiary of such interest being the Provincial Government, it will then become incumbent upon the real estate industry to so advise their clients and customers . The corresponding result will undou btedly be a substantial increase in the number of deposits that will be required to be held in separate interest bearing trust accounts. The bookkeeping and the administration in setting up and discontinuing separate

Tuesday, 14 July, 1987 accounts for these deposits will be monumental and must be borne by the broker . In addition , each account so opened will diminish the potential revenue accruing to the fund. We fail to see any rational justification for the introduction of this legi:ilation and view it as another form of hidden tax imposed only on those persons participa t ing in real estate transactions .

In the alternative, should the government be adamant on collecting the interest earned in brokers' trust accounts, then we would suggest that these funds not only be used for the general benefit of the public in matters real estate. Bill No. 49 currently provides that all interest be paid to the Manitoba Securities Commission to be used by the commission to meet the costs of commissioning or undertaking educational programs relating to the real estate industry and the objectives of the act, as such other programs as the commission may authorize.

The balance remaining in the account or perhaps the entire amount, should the commission not utilize any funds, is then paid into the Consolidated Revenue Fund on March 31 of each year. Bill No. 49 further allows for the possible creation of an advisory body, authorized to make recommendations to the commission on the disposition of the interest earnings received. It is our view, Mr. Chairman, that Bill No. 49 does not go far enough in ensuring that the interest earned in brokers ' trust accounts will be used for the benefit of the public in matters real estate.

We strongly suggest the creation of a real estate foundation, comprised of ministerial appointees, industry representatives and members of the public, which would be charged with the responsibility of disbursing the interest monies earned from trust accounts to a broad range of worthy undertakings in the field of real estate . Such a foundation would ensure that the interest earned on monies on deposit by the public in brokers' trust accounts is generated back to the public in the field of real estate.

Funding could be made available for projects such as public and industry real estate -education, urban studies, subsidization of some senior citizens, housing accommodation, low-cost housing developments and whatever other worthy undertakings the foundation deemed appropriate. Such a foundation would be similar in scope and purpose to the Manitoba Law Foundation and the British Columbia and New Brunswick Real Estate Councils.

The creation of such a foundation would allow the interest earned on the public's money to flow back to the public in matters real estate, and not merely be absorbed by the Consolidated Revenue Fund of the Province of Manitoba. Bill No. 49 currently only contemplates the creation of an advisory body with limited authority, which would make recommendations on the use of interest. The creation of a real estate foundation would charge this body with the full responsibility for disbursing funds. In conclusion , Mr.

Chairman, we would reiterate that, from a philosophical point of view , we do not believe that the province has any right to claim interest on monies held in trust by real estate brokers on behalf of their clients . Alternatively, should the government be insistent on claiming this interest, we would recommend the creation of a real estate foundation 47 charged with the responsibility of disbursi ng accumulated funds to projects of real estate natu re. Mr. Chairman, that concludes my remarks tonight. I would be happy to answer any questions that members of your committee may have. MR. CHAIRMAN: Thank you, Mr.

Burns . Do the members have any questions? The Attorney-General. HON. R. PENNER: Mr. Burns, no doubt of course, and it's clear from your submission, for which many thanks, that you've read the bill. It's my understanding from 26( 1. 7) that there is in effect a first charge on the money, that is the interest earned on the deposits. That is, after paying in fact the expenses of the commission to meet the costs of commissioning or undertaking educational programs related to the real estate industry, it's only, at least on an interim basis, that thereafter any surplus be paid into Consolidated.

Do you read that clause in the same way? MR. W. BURNS: We read that the money is to be paid to the commission and, if the commission desires, it may use it for those uses as you've enumerated there. But we don't see that there is any direction given to the commission on the use of those monies, and I think that's what we contemplate with the foundation. HON. R. PENNER: Did you participate in any of the consultative meetings with the Minister? MR. W. BURNS: Yes, we did meet with the Minister on two occasions. HON. R.

PENNER: It's my understanding from the Minister that he conveyed - and I wonder if that was your understanding, it may not have been - that in a sense this was an interim bill that the commission, once established, would begin to work out the objects of the trust, as it were. Is that your understanding? MR. W. BURNS: No. My understanding, Mr. Chairman, was, as this act sets up here, the bill sets up, that this advisory committee would be just an advisory committee. If I remembered our conversation accurately with the Hon. Mr.

Mackling, that was emphasized on at least two occasions that are indelibly impressed on my mind. HON. R. PENNER: I simply thank you, Mr. Burns, and leave you with the assurance that it is not the intention of the bill to in fact appropriate that money to consolidate it, but to work with the industry in setting up appropriate objects for the use of the money. MR. W BURNS: Thank you, Sir. Those words are music to our ears. MR. CHAIRMAN: The Member for St. Norbert. MR. G. MERCIER: Mr. Chairman, to Mr.

Burns , following along the questions of the Attorney-General and, I take it, the Attorney-General would be agreeable to deleting that clause for paying into the Consolidated Revenue Fund.

Tuesday, 14 July, 1987 Mr . Burns, the members of the Opposition raised in debate on this bill your first concern, that of having to set up numer ous small accounts. The Minister of Consumer Affairs, in concluding debate on Second Read ing, indicated that a broker would only have to have one interest-bearing account in which to put all of his deposits. I wonder if that was your understanding or, if that is the case, whether that is satisfactory to meet your personal concern? MR. W. BURNS: Mr .

Chairman, we recogn ize that this Bill 49 calls for brokers to establish one interest-bearing trust account, and we have no dispute with that. Our contention is that the presence of this legislation which, in effe ct, calls for the interest to accrue to the benefit of the province as it were, that will create or, first of all, require members of our industry to disclose to the clients and customers that, if the deposit is placed in their trust account, the inte rest goes to the government or to the Securities Commission,· to be precise.

They do have the option of directing the broker to place it in a trust account where the interest is for the benefit of one or the other of the parties to the agreement. Our contention is that this legislation will increase the numb er of th ose ac counts, causing therefore more work for the broker and less money to accrue to the fund that is to be set up. MR. G. MERCIER: Where is the interest going now? MR. W. BURNS: The legislation of The Real Estate Brokers Act calls for the trust funds to be placed in a trust acco unt, non- interest bearing, unle ss otherwise directed by the parties. MR. G.

MERCIER: So the banks have the use of the money and therefore the inte rest. MR. W. BURNS: I sup pose you can dr aw th at conclusion. MR. G. MERCIER: Do you think if you put it to your clients now that inte rest could either go to the banks or to the government or to themselves, if they made a separate agreement - you know, I'm trying to find out where the distinction is between having the money go to the banks and the money going to the government to set up an educational program for real estate. MR. W. BURNS: Mr .

Chairman, I think it's the considered opinion of the mem bers of our industry that the consuming public is not as concerned that the money rest in the hands of the bank for whatever period of time is involved. Let me empha size that it is, generally speak ing, a very short period of time and frequently for amounts of money in the $1 ,000 range. The public seems to be less concerned with the fact that the money would go to the benefit of the bank, if that's the point that's to be made, and more concerned with the fact that it is accruing to the coffers of the government. MR. G.

MERCIER: Following along the Attorne y General 's comment, would you be supportive and would that meet a lot of your concern if the

section related to the balance of the mo ney established by the 48 Securities Comm ission could be paid to the Consolidated Revenue Fund, if that were deleted? MR. W. BURNS: If that were deleted, Mr. Chairman, I think our group would be very pleased. MR. G. MERCIER: Thank you. MR. CHAIRMAN: Are there any further questions? There being no further questions, I thank you for your presen tation, Mr. Burns. MR. BURNS: Thank you, Sir. MR. CHAIRMAN: Is there anyone else wishing to make a presentation on this particular bill? BILL NO. 70 - THE PUBLIC SCHOOLS ACT MR. CHAIRMAN: If not, we'll move on to Bill No. 70,

An Act to amend The Public Schools Act. The persons wishing to appear are Diane Kelen from the Manitoba Teac hers' Society . I would call on Ms. Kelen to come forward now. MR. A. REIMER: I'm obviously not Ms. Kelen. MR. CHAIRMAN: Your name, sir. MR. A. REIMER: My name is Art Reimer. I'm here on behalf of the Manitoba Te achers' Society. MR. CHAIRMAN: Okay, Mr . Reimer. Go ahead, please. MR. A. REIMER: I have copies of my brief. Mr . Chairman, members of the committee, we are pleased to be able to have the opportunity to appear before you this evening in representation on Bill 70.

The Te achers' Society supports the proposed legislation, as we see the existing legislation in sections 36 to 38 as inadequate. The principle of the amendments to The Public Schools Act is to define direct or indirect pecuniary interest and to require a trustee who has such an interest in a matter before the school board to disclose that interest and to withdr aw from participating in the decisions aff ecting that matter. The society, however, urges that the bill be amended by including the following as

section 36(2XvXd): "no trustee shall be presumed to have a direct or indirect pecunia ry interest in any matter, by reason only of the marital status of the trustee." The society requests this amendment to the proposed legislation because of the rece nt case, Cape v. St. Vital, in which the school board attempted to argue that, because a candidate for a trustee was married to a school teacher, this prima facie constituted a conflict of interest which disqualified the candidate from being eligible to hold office as a trustee. Mr. Justice Smith rejected this argument and concluded that

section 36 applied to an economic relationship and had nothing to do with the marital relationship between a trustee and a spouse who was employed as a teacher in that school division.

Tuesday, 14 July, 1987 The proposed legislation in Bill 70 does not clarif y this issue and, in the future, some trustee in office or a person se eking office as a trustee may be emb arrassed in a similar fashion. The amendments sug gested by the society will clarify the issue and thus prevent future attempts 10 politically embarrass trustees or potential trustees. I might just add a few additional comments.

Section 227, I believe it is, of The Public Schools Act makes it clear that teachers or emplo yees of a school division or students in a school division cannot run for school trustee, but the current

section that was ruled on in Cape v. St. Vital,

section 36, has been removed and repl aced with the new bill and, therefore, we believe leaves it open, while it may be implied, to someone attempting to what we would view as a frivolous attempt to em barrass somebody at election time for school trustee, to prevent that person or make it awkward for that person to run. So we would like to see the amendment that's proposed in this brief added to the act simply for clarification to make it abundantly clear that someone could not carry on that attempt again in the future. MR. CHAIRMAN: Are there any questions? Mr . Storie. HON. J. STORIE: Thank you, Mr .

Chairperson. Perhaps Mr. Reimer is aware that I have discussed this with the president of MTS and given her assurances that the intention was to make this abundantly clear. Legal counsel have indicated that the purpose of your amendment is secure in the current wording. However, I'm certainly not opposed to making it abundantly clear by an amendment.

I would ask whether, given the intention of your amendment is to protect, I assume, not only a spouse but a dependant who might be emp loyed by a school division, would it not be possible to broaden that and perhaps - and I have some suggested wording which I would propose along the lines of: "a trustee shall be deemed not to have direct or indirect pecuniary interests by a virtue of a dependant being emplo yed by the school division or school district." Does the broadening of that from marital status to a dependant cause you concern? I should indicate that dependant, as it's defined in the bill, includes spouse.

MR. A. REIMER: No, we don't have any concerns with broadening the definition. I'm not sure at what age a person no longer remains a dependant. If it's only spouse, is a person who is over 18 still a dependant? No, we have no concern with that. HON. J. STORIE: So just to be clear then, the intention is not to ensure that only a spouse of a trustee may be an emplo yee but that anyone, in fact, in that family may ... MR. A. REIMER: That's right. HON. J. STORIE: Fair enough. 49 MR. CHAIRMAN: Are there any other questions? Hearing none, I th ank you, Mr . Reim er, for your presentat ion. MR. A.

REIMER: Thank you very much. MR. CHAIRMAN: Is there anyone else wishing to make a presentation to this bill? BILL NO. 72 - THE CHILD AND FAMILY SERVICES ACT

(2) MR. CHAIRMAN: If not, we will move on to Bill 72,

An Act to amend the Child and Family Services Act (2). The first person to make a presentation will be Mr. Abe Arnold from the Manitoba Association for Rights and Liberties. MR. H. PETERS: Yes, Mr . Chair person, Mr . Arnold is not able to attend at this time. I have a brief however for distribution. MR. CHAIRMAN: The name, please? MR. H. PETERS: The name is Peters, Harry Peters. MR. CHAIRMAN: You have briefs you wish to distribute to the committee? MR. H. PETERS: Yes, that is correct. Mr . Chair pers on, ladies and gentlemen of the commit tee, I'll read from the brief.

MARL has been concerned about the question of the Child Abuse Registry since the matter first came to our attention in the 1985 Child and Family Services Act. In July 1985, we expressed reservat ions about the sections dealing with the establishment of the abuse registry and the wide provision for making available the information contained therein. In May of 1986, we again raised our concerns with the Minister, Hon. Muriel Smith, after rec eiving several complaints from persons who felt that their names were wrongfully placed on the child abuse suspect list. At that time, they had no way of clearing their names.

In January 1987, we met with the Minister and presented her with a brief in response to the report of the child abuse review team. We stated therein that, as a civil liberties organization, MARL was opposed in principle to maintaining a suspect list. We added however that, if the government felt such a list was required to ensure better protection of children, a whole series of safeguards should be introduced.

We presented a series of proposals which we now find have been largely included in Bill 72. lt should also be mentioned that we were called in for a further consultation with mem bers of the Community Services Department last May when new regulations for the Child Abuse Registry were already under considera tion. The MARL delegation repeated our views in regard to acces sibility to the list of verified abusers, the listing of suspected abusers, and the appeal process for listed suspected abusers.

While we were aware that changes were in the works, it is noteworthy that these changes were not brought forward via the bill now under consideration until a

Tuesday, 14 July, 1987 citizen challenged the abuse registry in the courts. We now know that this bill has been introduced in response to the court's judgment declaring the existing Child Abuse Registry uncons titutional. The present suspect list - in any event, we welcome the proposals in Bill 72 but we wonder how justice will be done to the people whose names are on the current list. That list should actually be done away with. If the government wants some of those on the old suspect list moved to the new suspect list, every name must be dealt with de novo.

In this way, every person being reconsidered for the suspect list will have the opportunity to take advantage of the appeal procedures provided for. This means that if there is a long list of names to be moved from the old list to the new list, the department will have to be prepared for a considerable number of appeals under the new system of panel hearing. The definition of abuse cau ses us some concern. The new amendments failed to include a clear definition of what constitutes abuse. This question was raised when a MARL delegation met with the department representatives in May.

We were promis ed copies of then-existing

definitions, but have not yet received them. We have received information by phone today about the contents of the abuse definition guidelines but, until we see a copy of these guidelines, we must reserve judgm ent and we may wish to make furt her submissions. The Registry Review Commi ttee - the provisions for appointing a Registry Review Com mittee does not indicate how the members will be chosen, though the Minister has indicated that they will come from a broad range of community interests.

This provision does not address MARL's earlier concern tha t the review commit tee should consist of individuals who are qualified but truly independent of the medical, child care, or police personnel who are generally involved in putting names forward for the suspect list. lt is also necessary to make certain that members chosen for the panel for a particular appeal should not be in a conflic t-of-interest position.

With respect to the qualifications of review comm ittee mem bers, when the MARL delegation met with department representatives in May, a question was raised by one of the officials about appointing laypersons who may lack expertise to judge appeal cases. lt should be pointed out that there are existing government boards, for example, the Social Services Advisory Commi ttee, whose mem bers are mostly laypersons. Such individuals have demons trated that they are qualified to make fair decisions in hearing appeals.

The review committee for the abuse registry might require some orientation program at the outset, but there is no reason why a group of individuals competent to judge these appeals could not be found. They could include a mix of professionals and laypersons able to render independent decisions. We also urge that the individuals who are qualified to sit on the Registry Review Committee should be appointed without regard to their political affiliation or background.

One final comment about the removal of the names, the Minister has been quoted in the press to the effect that the names of child abuse victims will be removed from the registry when they turn 18. She is also cited 50 as suggesting that abusers' names will be removed 10 years after the last time an entry was made against them or when the victim turns 18. We cannot find any reference to this in the legislation however. To conclude, we remain opposed in principle to a suspect list. lt remains to be seen whether the registry will justly fulfill its function of better protection for children. MR.

CHAIRMAN: Thank you, Mr. Peters. Are there any questions? Mrs. Smith. HON. M. SMITH: Mr. Peters, the question of removal of names, we had indicated that we were intending to bring in amendments at committee stage, as you have described. Do you agree that's a fair approach to the removal? MR. H. PETERS: I certainly think there has to be a mechanism to remove names and, given the context of removing them as time goes by and the length indicated, that seems to be a fair process, given that the list has to exist. HON. M.

SMITH: Would you agree a suspect list could be available to Child and Family Services agencies for purp oses of adoption, foster placement and so on, but not to the broader group of emp loyers, such as school divisions or day care centres? MR. H. PETERS: I think that's a welcome consideration. MR. CHAIRMAN: Any further questions? Hearing none, I thank you, Mr . Peters, for your presen tation. MR. H. PETERS: Thank you for hearing it. MR. CHAIRMAN: I would now call on Lee and Agnes St. Hilaire from the Victims of Child Abuse Laws. Have you briefs for distribution to the committee? MS. A. ST. HILAIRE: No I don't.

MR. CHAIRMAN: Okay, that's fine. Please proceed. MS. A. ST. HILAIRE: Good even ing. I'm representing my group known as Victims of Child Abuse Laws. We are a group of 30 people in Manitoba who have been incorrectly identified as having abused children and, equally as bad, our children have been incor rect ly diagnosed as having been abused. My group feels that they have been falsely listed on the Child Abuse Regist ry. I would like to read to you an affidavit that is filed in the Court of Queen's Bench by a member of one of my group. The affidavit is by Elsbeth Ryz.

"I, Elsbeth Ryz, housewife, of the Town of Pilot Mound in the Province of Manitoba, make oath and say: "THAT I reside with my husband, Robert Ryz, in the Town of Pilot Mound in the Province of Manitoba; "THA T I have personal knowledge of the facts hereinafter deposed to me, except where I have stated that they are based on information and belief; "THAT in or about the month of March 1985, I was visiting my parents with my four-year-old daughter

Tuesday, 14 July, 1987 Tracey, when my daughter Tracey while playing, dressed up in her grandmother's clothes, tripped and fell and landed on a corner of the wall.

As a result of her fall, Tracey received a black eye; "THAT someone unknown to me reported to the Child and Family Services Department that I was abusing my daughter; "THAT as a result of this complaint, a social worker from Brandon by the name of Marilyn Blanko conducted an investigation approxima tely one week after this incident; "T HAT as a result of the investigati on, we were advised approxi mately one week later that my name and my husba nd's name would be placed on the Child Abuse Registry which upset us considerably since we had in no way abused our child; "THAT at this time, we also wanted to adopt a child, and I am informed by my husband.

Robert Ryz, and do verily believe that he telephoned the Department of Child and Family Services in Brandon, Manitoba and asked a representative of the Child and Family Services Department what effect the investigation and the subsequent placing of our names on the registry would have in our wanting to adopt a child. He was advised that. because of the placement of our names on the registr y, we would have trouble adopting a child which upset us greatly; "THAT we asked the social worker.

Marilyn Blanko, to bring us adoption papers so that we could make an application on more than one occasion and we received no response from the Department of Child and Family Services, which to us verifies that, because of our name being placed on the regi stry, precluded us from ever adopting children ." I'm not your everyday speaker here, so bear with me. The parents who are in my group wanted me to read a brief on their behalf. They wish that their names not be revealed. On October 27, 1986, the mother was waiting for her daughter to come home for her lunch from school.

The daughter's friend whom she had invited for lunch came home, but no Lynne. The mother waited and waited for her daughter to come home. The mother was worried, worried about what other parents worried about. Was she kidnapped? Sure enough her daughter was legally kidnapped by our Manitoba Government, Child and Family Services Depar tment. Two-and-one half hours after they apprehended the child, Child and Family Services called the mother to tell her they apprehended her child. The social worker gave the mother an appointment for 3:00 p.m. the next day, 29 hours after they apprehended their child.

The mother was not given any reason for the apprehension. The same ev ening, the parents received a phone call from their seven-yea r-old daughter. She told the parents she wanted to come home and that she was going to walk home. The mother asked the daughter for the address. The mother said we'll go pick you up. When the parents went to pick up their daughter, an elderly lady told them to go home and cool off. When the parents met with the agency, counsel was refused entry. Six weeks later, police were called in.

The father was charged with sexual abuse on December 23, 1986, for allegedly fondling his seven-y ear-old daughter's breasts over her pajamas and bedding. The parents claimed they in no way abused their daughter. 51 Because of this, the father was placed in a psy chiatric ward at Health Sciences Centre for six weeks and is still on medication. The mother was given visiting privileges. The mother was treated as guilty, even when the allegations were not made against her . Dr. Ellis, child abuse psycholog ist. made a request from the mother who has liver cancer. This request I would like to read to you.

"P art of this res olution mu st come from an independent medical opinion regard ing mother's health status to allow you to make appropriate plans for the child. If mother wishes to resume the care of her child, she must give your agency permission to receive from her cancer specialist a medical report dealing with her current medical status. Her prognosis and reason for what appears to be no active treatment.

If this report documents that mother is likely to remain in the picture for the next two years, it will be possible to develop a plan that could result in returning daughter to mother's care." So imagine, two years. they've requested from the mother, can you guarantee us that you're going to be alive for the next two years, so we can give you back your daughter. I think that's terrible . The daughter was not returned to the home until six months after apprehen sion. In order for the mother to get back her daughter , the father had to leave home.

As a result of this, the father had taken two jobs to support himself and his family. At the court hearing, the Crown deferred the charge. They asked the father to take a parenting course. The father said the first parenting course is available the latter part of September 1987. In the meantime. the family is still separated and it looks like it will be at least another six months before the family can be reunited as a family. The mother says the daughter is asking for her daddy who was removed from the home since April 1987, and hasn't seen his daughter since October 27, 1986.

The father is not allowed any visiting privileges over this period of time. The parents have great concern that their daughter's name will be on the Child Abuse Registry and the effects that this will have on her life. The name would still remain on the list even if this charge is dropped. I oppose to listing names of suspected abusers on the Child Abuse Registry without a conviction. I don't feel there is a need for an appeal process or a registry review commit tee because no person's name should go on a registry without a conviction.

I received a letter from the Minister, the Honourable Muriel Smith. saying the Manitoba Child and Family Services Act involve appropriate teams who get involved in assessing whether in fact a child has been abused.

If after a full investigation by properly trained social workers and a child abuse psycholog ical assessment. using the aid of anatomically corrective dolls and a professional medical assessment, and a polic e investigation. and a professionally trained child abuse commi ttee, who get involved to help in difficul t investiga tions, cannot find any evidence that abuse occurred, in my opinion. should not place that person's name on a Child Abuse Registry. Or, if the Child and Family Services Department suspect a person is guilty, that person should be charged and tried in a court of law.

If the court finds that person guilty, so be it; or if they cannot find that person guilty, let that person go

Tuesday, 14 July, 1987 free. Our Canadian Constitution maintains that a person remain innocent until proven guilty. You may claim that it is sometimes dif.ficult to prove guilt in child abuse cases. lt is also difficult to prove guilt in any other criminal cases. I do not know, perhaps it is your intention to create a perfect society; so was Hitler's claim. Accord ing to

section 19.3(3), it reads: "The director may, on application by a school division, day care centre or other emp loyer whose emp loyees will be re sponsible for the care of children, advise the applicant whether the name of a person has been entered in the registry pursuant to subsection 19.1(2) where the director is satisfied this information is rea sonably required by the applicant; (

a) to assess an applicant for employment; or (

b) to assist in care of a child." Now, from what I understand, as a mother, or say three of my neighbours decide to hire a babysitter to look after our children while we go to work,

section 19.3(3) will allow us to get information from the Child Abuse Regis try, or therefore anyone else hiring a person in trust of children, such as a babysitter, a maid, a homemak er, or a chauffeur, this highly confidential registry can be made available to the majority of the province. Say, for another example, even if Mrs. Smith or Mrs. Brown, who want to hire Johnny next door to cut the grass, has two young childr en playing out in the backyard, acco rding to sect ion 19.3(3), can have access to information on that registry of a person whom they want to hire.

The Big Brothers Associa tion, Boy Scouts, Girl Guides, and such youth organizations can have access to the registry according to

section 19.3(3). There are a substantial amount of people who will have access to the regist ry. Another example, how about young Smith going to school? He's 14 years old, gets the finger pointed at him for child abuse. An investigation takes place by the Child and Family Services Department; he is placed on the Child Abuse Registry based on suspicion only, as a suspected abuser. Young Smith, now 19 or 20, comes out of school, works a year or two, is offered a job opportunity in the United States. Imm igration officials, through their investigation, find young Smith on the Child Abuse Regist ry.

Young Smith is denied a residence visa to the United States. In my son's case, Lee, this is no problem for him because he is an American citizen. If I was in Lee's shoes, when I became the age of majority under the present government, it wouldn't take me long to decide which country to live in. I would like to conclude by having my son, Lee, say a few quotes, when the social worker was investigating him. MR. L. ST. HILAIRE: Good evening. When I was investigated by a social worker, Harry Knott, (phonetic) there were some questions that were asked that were uncalled for.

The questions he asked me were, if I had ever seen a naked woman before. I said, yes, at school. They teach us about sex; it was on giving birth to a child. Mr . Knott asked me if any of my friends are sexually active. I answered, no. Harry Knott said, come on, Lee, I could tell you of at least half a dozen girls at your school who screw 52 around, girls you know. Then he said get rid of your Mom and we'll have a talk in private. The second question was: Lee, did you do those things to your sister? I answered , no. Then Harry Knott said to me: Does it make you feel bad what people are thinking of you?

Aren't you ashamed? Aren't you em barrassed? Everybody knows about it, Lee. For two-and-a-half years I felt that everyo ne was looking at me as if I was a child abuser. I don't think there could be anything worse than being accused of a child abuser. I'm happy my name is off the registry and now I feel I can get on with my own life. Thank you. CHAIRMAN: Ms. Darlene Hague. MS. DARLENE HOGUE: Hello. lt's Darlene Hogue. MR. CHAIRMAN: Do you have some written presentations for the comm ittee? MS. D. HOGUE: Yes, I do. Oh, I've got none to pass around. Sorr y. MR. CHAIRMAN: Oh, none to pass arou nd.

Okay, just proceed then. MS. D. HOGUE: I've been trying to write a brief on the damages that are caused by listing innocent names on the regist ry. But how can you write down on a few pieces of paper showing how it destroys the family and the friends surrounding them? On Friday, February 20, 1987 in Gimii, Manitoba, our lives took a turn for the worse. The day care that my childr en attended had made a report of an al leged child abuse to the local Community Services Department. The supervisor of the lnterlake Area, Richard Panson, and a social worker, Randy Sawatsky from Gimli, met with us.

They first questioned me and then wanted to question my common -law husband, Gilbert Gauthier. When they had him in a different room, I had to take my 20-month old son to the hospital without Gilbert knowing. So Randy accompanied me and Andre. Dr. R. C. Patel had examined and verified that the bruises on my son's buttocks were caused by an open hand consistent to a spanking. He did not consider this child abuse but an over-zea lous spanking. We then met in Richard Panson's office where Richard and Gilbert were waiting for us.

At that time, they told us that we had been very cooperative and they believed this was not a case of child abuse and the matter would be dropped. When we left the office we felt as if we had a horrible nightmare, but when we woke up we were taking our children home - but this was only star ting. On Saturda y, February the 21s t, Andre took sick and so I took him back to the hospital. Once again, we met with the physician who had examined him the day before. He then told me that there was a virus going around affe cting a lot of children. The next thing I knew they were taking head X-rays.

He said they wanted to keep Andre overnight for observa tion. I asked him for the results of the X-rays. The doctor told me there were no abnormalities. For the following

Tuesday, 14 July, 1987 week I got excuses why I couldn't take him home. On Tuesday , February the 25th, Constable Tom Boyle had called us down to the Police Department and questioned us for thr ee hours. He showed us a statement given on Mo nday the 24th by Richard Panson saying Andre was in the hospital with a hairline skull fracture, leading the police to believe that it was caused by a blow to the head from parents' handling. This was the first time we had heard of it. After we were through bei ng questioned, I went to the Community Services Department.

I spoke to Randy Sawatsky and asked him why I had been lied to about the X-rays. All he said was the police shouldn't have told us. He then got Richard Panson on the phone. His answer to all this was a lack of communication. I asked where he got his information and he said "Dr. Patel ." I went to Dr. Patel and he said at no time had he given out any information about the X-ray because there wasn't anything to tell. There was no fracture of any kind.

He also told me that Panson had gone to the day care the day before and had physically examined my older son, Joseph, who was four, for signs of abuse and sexual abuse. If Community Services had wanted my son examined, why didn't a qualified physician do it? The following morning I contacted Panson again and wanted to know why he didn't tell me about Joseph. He replied, didn't I tell you? I guess I forgot. I feel this case was handled by incompetent social workers who should be reprimanded.

In the be ginning, concerning the laws of the regist ry, they were made with good intentions but in the end has gone too far. According to provincial policy, it requir es that anyone involved in an investigation be registered regardless of the results, and current policy prevents any names from being removed. 1t makes a parent think twice of disciplining their children. You want to shelter them as if they were made out of glass for fear the situation will reocc ur and only be treated worse because you're already on the list.

If my children were to fall and it caused bruising or broken bones I only hope to God I have a witness sta ting I didn't do it. Since February my childr en have had no physical discipline, and they have gotten totally out of control. If this is our only alternative, then I believe the government had better find financial funding for federal prisons because that's where the young people are going to end up. Putting innocent names on the Child Abus e Registry along with the convicted is only painting us with the same brush.

Where does the Charter of Rights come into this law? it's the child experts who say that social workers are insufficiently trained. Why should they be the judge, the jury, and the exec utioner on suspicion only? All I'm doing is fighting for the rights of a human being and fighting for the rights of my children. Who's taking that into consideration? MR. CHAIRMAN: Thank you. Are there any questions? Hearing none, I thank you, Ms. Hogue, for your presentat ion. Next presenter is Ms. Shannon Courchene. Ms. Shannon Courchene. She's not here. I'll move on to the next presenter, Ms.

Sue Sinclair. 53 I will now call on Ms. Mary Dolman. Mary Dolman. MS. M. DOLMAN: Good even ing. MR. CHAIRMAN: Have you any written briefs for the committee? MS. M. DOLMAN: No, I don't. MR. CHAIRMAN: Okay, that's fine. Proceed. MS. M. DOLMAN: In September 1983 1 was suspected of abusing my ten-and-a-half-month-old son. The shock and the horror of these accusa tions were devastat ing to me and my family. I had no idea after this invest igation that there was a list of suspected abusers registered anywhere until I read Saturday's paper. I could be on this list; I don't know yet.

My son was very ill from birth with bowel problems so he was repeated ly in and out of hospital for this and bouts of respiratory problems. They said that because he was so sick all the time that they were right away saying I was taking my frustrations out on him, which wasn't true. When he was three months old I fell down in the driveway with him and fractured both his legs and fractured my leg. Early in September he had fallen while playing off my daughter's bed and fractured his right leg. He had to have a cast put on so he could weight bear.

Later in September my son was rushed by ambulance in what I believe was critical condition to Winnipeg Children's Hospital. He had a bowel obstruction due to adhesions from a previous surgery in June. They noticed his leg and that was when the questions started . They asked me how it happened and I explained how it had happened - that he had fallen off my daughter's bed. They never said anything. Every thing seemed fine until a few days later. The attending doctor, Dr. Postuma, told me I had to see another doctor, a Dr. McCrae. I asked why, but no one would tell me.

I kept asking anyone who was on staff there, why did I have to see another doctor? Finally, a Dr. Benoit approached me and said she was Dr. McCrae's assistant. All I kept saying to them was, you're wrong, you're wrong about me. The questions were mostly about when I fell down with my son, then about the incident when he fell off the bed. I had numerous sess ions of couns el ling with a social worker named Brenda Grabners in Winnipeg. They kept my baby for a month while they inte rrogated me. lt took a month for them to release my baby from there, and even then they were bucking about letting me take him.

I walked in there at nine o'c lock in the morning and I waited there till four o'clock till they finally released my child. I asked very, very nicely, but they were angry with me when I went out of the hospital with him, but they did release him, after a month. They intimidate you until you're crazy. After all that, I was just left wondering, what's next? But nothing happened - I was jus t left hanging. There were no "sorries" or "we made a mistake," nothing. Then I find out there was this Child Abuse Registr y, so I went down to the Health and Social

Tuesday , 14 July, 1987 Development in Selkirk to find out if my name was on this list. They said they had no list there. They sent me upstairs to talk to some guy, a Mr. Gow, (phonetic) and I told this gentleman briefly what happened to me with my son. He was puzzled at the fact that I'm from Selkirk and had never seen a social worker from Selkirk, only Winnipeg, at the time of this little investigation. I told him who was involved in carrying out this invest igation. He said usually your file would have been sent down here to Selkirk, and we would have handled it, not Winnipeg.

The next day, I returned to find out if my name was on the list. He was not so talkative then, as he was the day before. Then he decided he'd better ask to see my I.D. after he'd questioned me the day before. He checked to see if I was who I said I was. The only words he told me were: "No, there's no record of this inves tigation." That's pretty crazy, I think. So what were they doing with me and my baby? Practising? I was not convicted or anything. I have phoned countless times to Winnipeg to find out if I'm on the list. Last time I called they told me to write for this into.

Pretty smart, I said to the girl I spoke to. There's a mail strike going on out there, you know. I want to know what's going on. I still don't know if I'm on the registry. My reputation is all screwed up. To our Honourable Minister, Muriel Smith - current policy states: Anyone suspected of child abuse, whether sexual or physical, your name automatically goes on the regist ry. After all I was put through, should my name be on this Child Abuse Registry? Thank you. MR. CHAIRMAN: Are there any questions? Mrs. Smith. HON. M. SMITH: Ms. Dolman, I can sympathize very much with the experience as you've outlined it.

The problem we're having from the other side is trying to ident ify and prevent child abuse. Do you belie ve if there is a registry and there is notification, if your name is on, and a right for you to appeal, to have your situation reviewed and clear guidelines for removal of your name, that the registry is still an important part of our protection of children? MS. M. DOLMAN: I can unde rstand the . . . of your registry for parents who are abusing their children, but people who are suspected of abusing children, I don't believe their name should be put on this list, just because they were suspected.

I don't belie ve it. If my name is on the list, I would very much appreciate that it is removed. I did not abuse my son. HON. M. SMITH: You do appr eciate that under the law, as proposed, that if your name is on, you would be notified and have the right to a review and removal of your name, if there's no further concern. MS. M. DOLMAN: Yes. MR. CHAIRMAN: Are there any further questions? Hearing none, I thank you, Ms. Dolman, for your presenta tion. I'll call again for Ms. Shannon Courchene. Miss Sue Sinclair. Is Miss Sue Sinclair here? Is there anyone else wishing to make a presentation to this comm ittee? 54 Mr.

Brown. MR. A. BROWN: Mr . Chairman, there was a group of these people who wanted to come and speak. They had them put on the wrong bill, and I think that this is where the confusion has come in. MR. CHAIRMAN: lt's unfortunate this mixup happened. They can always send a written submis sion to the Legislature. Is there anyone else wishing to make a submission to the committee tonight on Bill No. 72? Not hearing anyone, we'll move on to the next bill. Bill No. 62,

An Act to amend The Insurance Act, I'd like to call Mr . Ji m Weiss - I don't know if I'm pronouncing it right - from the Winnipeg Life Managers' Association of Canada, the Winnipeg Chapter. Is Mr. We iss here? Mr . Weiss not being here, I'll ask if there's anyone else wishing to make a presentation before the committee? Hearing no one, we'll move on to the next bill. Bill No. 40, The Human Tissue Act, I would call on Ms. Joan Roberts from the Lions Eye Bank to come forward now.- (Interjection)- No presentation from the Eye Bank? Okay, thank you. Is there anyone else wishing to make a presentation on Bill No. 40?

BILL NO. 59 - THE MENTAL HEALTH ACT MR. CHAIRMAN: Hearing no one, we 'll move on to Bill No. 59,

An Act to amend The Mental Health Act. I'd like to call on Mr. Tom Cohoe to come forward at this time. Mr . Cohoe, do you have any written presentations to distribute to the committee? MR. T.. COHOE: I have only notes of my own. I would like to have made a written brief, but I didn't have time. MR. CHAIRMAN: Okay, that's fine. Please proceed. MR. T. COHOE: Could I have the permission of the commit tee to set this exhibit on the table? MR. CHAIRMAN: Yes, you do. MR. T. COHOE: I appreciate the opportunity to speak to this commit tee. I'm a victim of The Mental Health Act.

Perhaps some of you mem bers of the Legislature have heard complaints from people who claim that they are victims of psychiatry before. I know of one former MLA, Sidney Green, who told me that a lot of people have made complaints to him. If you have managed to have been reached by a number of people that's large enough that it bothers you, perhaps you should think that you should start listening to some of us and what we'r e saying.

There maybe a lot of experts in this room who can tell you what their theory tells them, what they have learned in school, what they have learned because they're great philosophers or something like that. What I have to say starts with experience. I experienced violence at the hands of psychiatr y. I can tell you that no argument that somebody has constructed from theory or because they think that

Tuesday, 14 July, 1987 they're great experts or something like this will convince me that my experience is wrong. I'm angry. I've been trying for six years to find one person in society who's willing to be responsible, in the sense of respon sible that politicians mean. You have to answer for what you do. I haven't been able to find anybody who's responsible. I'm going to give you here a core argument. I'll call it my core argument. I'm going to repeat it before I'm out, because it's of critical importance.

What I would like to know is that, if you take a person to be examined by a psychiatrist against his will, how is it possible that the psyciatrist can make a meaningful examination of that pers on. This person is obviously not cooperat ing. Perhaps psychiatrists are so brilliant, such great geniuses, that they have much greater ability to penetrate into the human mind than the rest of us do. But I would like you to consider that even a child can frustrate an adult trying to reason with him, the child having fun.

I'm sure every adult has had the experience of trying to reason with a child who is enjoying frustrating an adult. it's impossible to reason with a child when he wants to frustrate you. Okay, if you take me to see a psychiatrist against my will and I decide to frustrate that psychiatrist, which I have done by refusing to go - it's clear that I'm trying to frus trate that psychiatrist - then I believe that I'm intelligent enough to frustrate that psych iatrist. I'd like to say that every person who's taken before a psychiatrist against his will is doing that. They are trying to frustrate the psychiatrist.

They are not coopera ting. That's why the have to be taken against their will. I'd like to say that to try and frustrate somebody who has you in jeopardy is a very difficult thing. What are you suppose to do? Are you suppose to tell them why you don't want to cooperate with them? They want you to start talking to them. If you answer the questions they ask you, that's exactly what they want. I don't know if any of you are familiar with the many kinds of protest that go on in this society, for example, people sitting down in front of a logging truck.

That's a pretty crazy thing to do, isn't it? it's pretty hard to understand. it's a form of protest. We ll, I would suggest to you that, when you have a person in handc uffs who has said he won't cooperate with this examination and he's doing whatever he's doing, speaking in metaphors perhaps, using rhetoric perhaps, expecting the psychiatrist to make some mental leap to realize that she is doing wrong because, if you try to hold a conversation with a psychiatrist in the normal method, as I said before, you are coopera ting.

Whatever the person in that situation does can't be rea sonably seen as anything more than a protest and, as I said, protests take many strange forms. So if the behaviour of a person in front of a psychiatrist who has him in jeopardy appears strange, it shouldn't be surprising. I'd like to say something about my credentials. I can't give you a string of formal credentials. I don't really believe in credentials, but it is my experience that society responds to pressure and authority first and reason last.

So I'll have to do what little I can to make you feel I have some ability to think usefully . it's kind of embarrassing to me to do this, but I don't know what else I'm supp osed to do. When I was in high school, the guidan ce couns ellor, Eileen Drew (phonetic), my sister told me that she told 55 her that I was the most intelligent person she had ever seen. Since she went to university , I suspect that what she meant by that was that, of the people she was giving the kind of tests that they give in schools, I was the best of all the ones who took those tests.

I don't imagine that I'm supposed to be the most brilliant person who has ever been seen in the University of Manitoba, for example, where she went to school, but there's something meant by that anyway. My high school marks, I received the award for having the highest average in the school division, notwithsta nding the fact - and I'm not boasting - that at the time I abused alcohol a lot, skipped out of classes and went fishing and drinking with my friends instead of going to school. When I went to university , I got my come-uppance for that. I had a B average.

I thought that I could get straight A's in university the same way, but I couldn't. However, after 10 years of working, I went back to university and I took essent ially the requi red courses for medicine, the pre-med courses. I got three A's in that and thr ee A-pluses. I was told by George Dunn, the head of the Chemistry Department at the time, that in the first year chemi stry course that was required I got the highest mark of all. In the biochemistry course, I noticed that my paper was picked up from the second position on the list.

When I got to enter a program as a Masters student, Lyonel lsraels, my advisor - and I'm sure some of you in this commit tee have heard of him before - we were given a surprise test by the Department of Biochemistry to see how suitable we were to be students in that department. I was taken aside afterwards and told by Esther Yamada, one of the professors there, that I received the highest mark of all the students I was competing against.

In the entire period in which they had given this test, the history of it, I was second by 1 percentage point, and that not'-' thstanding that I spent one year preparing to go into biochemistry and I was competing agains t four-year majors in the biological sciences. As I said, I am sorry if it appears I'm boas ting. I really don't like doing this, but I am competing against experts, people who claim to have great credentials. I've argued success fully against experts in their own fields before.

The first example that I have of letters to show my success is against Jeremy Bernst ein, who is one of the world's leading physicists. He printed an

article in Scientific American, which I found a mistake in. I wrote him a letter telling him what the mistake was. He set himself up in this letter here by telling me where I was wrong. I sent him another letter in which I presented a detailed argument. In this second letter , he admits I am right. "Dear Mr. Cohoe: Thanks for your note of October 19. You are right. There is an error," etc. I would like to impress upon you that people who write in Scientific American are leaders in their fields. Here's a proof that was sent to me by a Ph.D. student in mathematics in context with the same argument.

He proved I was wrong. I had spoken to Jasper McKee, and he said he thought I was right. So I brought this to the student and the student said, oh, he'd look at his proof again. He looked at his proof, and here he sent this with an admission in it that he had dropp ed the minus sign in the proof, and that I was right after

Tuesday, 14 July, 1987 all. And here is my letter from Scientific American acknowledging that I had found that mistake and thanked me for calling their atten tion to it. That's one expert that I have defeated in argument, and I have documents to show it. 1 don't have documents to show the time that I emb arrassed Jim Wright and Dr. Paraskevus (phonetic) in the Institute of Cell Biology. Being a student there and working amongst a lot of doctors made it very difficult for me, because I'v e been mist reated by doctors and none of them want to be re sponsible for it.

I was deli berately trying to embarrass them at the time. The point that I made with them was that Jim Wright had sugge sted that ribonucleotide reductaes (phonetic) is an enzyme that possibly controls the reproduction of the cell, and he went on to give an idea that he thought showed it. Actually , it was one of his students who was talking. Dr. Paraskevus and Jim Wright began to discuss the consequences of this and built up a castle in the air.

If I hadn't been mistreated by doctors, I would not have wanted to em barrass them, but I got particular delight in sawing off the limb they were on, to mix a metaphor, by pointing out that the experiment they were building up this wonderful picture with didn't have proper controls on it, and that was accepted . Jim Wright afterwards complimented me on making the point. Dr. Paraskevas, on the other hand, hated me for it and he suggested to me the next time I saw him, you're leaving, aren't you, Tom, which indicated to me that he was angry at me.

Now another expert that I have won over to my opinion is David Justice, the Editor of Etymology in Merriam We bster's dictionaries. I sugg ested to him that I had found the root for a word that we know in English, a very recent word, and he rejected that. I've got a whole file here of interchange of letters, but it ended up with my last letter to him was a seven-page letter in which I had to do research in two languages to find the facts I needed. I received this letter from - I'll just read part of it - Mr . Justice. "Dear Mr .

Cohoe: Thank you very much indeed for your richly informative and cogently argued letter. You have done much to flesh out the case for deriving seam from esquimode. lt is the rare correspondent who is able to follow up the initial happy idea with such empirical buttres sing. Please feel free to write again when the muse moves you." And he started off by telling me I was wrong on that, so there's another field. The last exhibit I have here is my globe.

This might not look like very much, but actually it represents a considerable technical problem. lt's more than a single problem. lt's actually a project that required a lot of coordination of a lot of mathematical ideas, as well as the ability to see that there was something possi ble. This is a projection of the sphere of the earth on a geodesic globe. In order to make this projec tion, I first of all had to find out what a geodesic sphere is. I have to understand the principle of that geometric shape. I could have found that out from books. In fact, I had not decided I was trying to do any thing.

I'm interested in solid geometry, and I was making some models. After I'd made a few models, I discovered that I was one tiny step away from Buckmins ter Fuller's geodesic sphere. So I made a model of it and then I thought it might be possi ble to make some thing that might be 56 commercially useful, and I thought to make a globe that would have a projection of the ear th's surface - well, I'll describe that later. But besides understanding 1he sphere, another problem is to determine the longitude and latitude of all tl1e vertices. That's not a very easy problem, even once you understand how the sphere works.

Then you have to determine what kind of projection is the right kind of projection to make. There are all kinds of projections. There's only one that's right. All the rest of them will either leave space out of the ear th's surface and, in this gap here, there' ll be an overlap, with the map reproduced on two faces. That particular project ion, straight lines are great circles on that projec tion. In order to make this, I had no funding of the type that university professors get. I worked with a little six inch plastic mirror. I measured some 10,000 points on a Mercator's projection of the earth.

I had to write a computer program to convert the projection from a Mercator's projection to this type of projection. There are actually 80 different projections there.

I thought the reason for doing this - this is a demonstration model, this isn't supposed to be a final model. lt only has the oce an's coas tlines, but I thought that the Department of Education could use something like this. lt would be a model that would be in pieces, and kids in school would build the model of the globe and put decals on it, and it would give them an interest in geography. lt would make geography more interest ing than just a bu nch of dry facts. They would be participating with their hands. I took this around to the Department of Education at the University of Manitoba.

I don't remember the names of the people I spoke to there, but I remember one teacher there being quite enthusiastic about it. I took it to Garry McEwen of the Provincial Department of Educa tion, Curriculum Dev elopment and Implementation. He told me that, if I got this into a commercial form, they would probably list it on their re commended list for grades, something like, 5 through 12. I don't remember the exact details. I also took it to Linda McD owell, Social Studies Coordinator for the Winn ipeg School Division. She also expres sed enthusiasm for it. She suggested many ideas to me.

I wasn't able to do any more work on this project. This project has reached the point where it requires money to develop as a commercial project. To finish this map with the oceans, I mean, with the rivers, the lakes , the boundaries of the countries, shadings for the mountain ranges, etc., would require, in order to make it possible for a human being to do it, computer equipment, adve rtising. lt's tremendously expensive. If it's going to be bought by schools, it would have to be put onto lists for various school boards. I hope it sells throughout North America.

Every state has its own list of text books. lt would cost a lot of money to approach all these people. The cost of developing a package, the cost of setting up dyes and printing stamps and stuff like that, it had reached the point I achieved what I wcnted to do. That was making it, a demonstration model. So, those are my credentials and, as I said, they are nothing. I consider myself to be a member of that class of people about which it is written that we are a poor group of homeless people, unemployable. I'm talking about the problem or so-called problem of kicking

Tuesday , 14 July, 1987 mentally ill people out of hospitals and they become homeless drif ters. We ll, I am supposedly unemployable. I am not making any money right now, although I was kicked out of university basically for fighting for my rights in the Health Scienc es Centre. But if it wasn't for my wife, who is a dentist, I might well be one of those drif ters right now. MR. CHAIRMAN : Was that the extent of your presenta tion, or . . MR. T. COHOE: I'm sorry, I can't hear you. MR. CHAIRMAN: Was that the extent of your presen tation? MR. T. COHOE: No, it isn't. MR.

CHAIRMAN: Just before you proceed, I'd just like to ask, if anyone in this room has Hyundai Pony License No. 592DSW, the lights are on. I would also like to, not to try to limit you but to urge you to expedite your presentation as fast as is possible, because we have a lengthy number of other people who wish to present. MR. T. COHOE: I'm sure you do. I appreciate that you'd probably like it if I hadn't even come, right? MR. CHAIRMAN: No, no, not at all, not at all. MR. T. COHOE: I'v e been waiting a long time to say what I have to say. I'm sorry that it's not more well organized, but I didn't have time.

If you had given me this opportunity a few years ago, I would have made it shorter, but I've reached the point where I'm almost in despair. I can't get the energy up anymore to, on this subject, make a written brief of the kinds that I have made in the past. I'm sorry also if I appear to be angry. I can't help it. I actually am angry. Maybe I'm rather daring to be angry, I don't know. Okay, now I want to start to get into exactly what my complaint is. I wrote a letter to Gary Filmon on May 21, 1986, and it's fairly well summa rized in this letter so I'll read to you out of it. "lt is difficult for me to be brief.

If it were a simple thing to convince society that The Mental Health Act is oppressive and is hurting hundr eds of people every year, someone would have already done the job. I know that many have tried. In a br ief letter , I mu st find a crack in a wall of institutionalised rationalization, a wall which no one else has managed to breach and which most people seem to want to buttr ess up. I will try to satisfy your request. "I'm including with this letter part of a brief which I wrote in 1983, in which my complaint is expressed fully .

I would not say every thing today the same way I said it in my brief, and I hope you do not feel that it contains the argument I want to make in court. I'm also including with this letter the response I got . . . "- well, like I said, I didn't have time to ... "The subj ect of my case is neither trivial nor without ramifications. I lost three months of my life through incarcerat ion and my whole year at university, was assaulted physically and with chemicals, was humiliated 57 in the society in which I was living, and was subj ected to a bombardment of psychological pressure designed to make me doubt myself.

"I'm also suffering many consequences of a loss in faith in the basic goodness of my Native society, which has allowed this abuse to occur to me and, as yet, shown no signs of allowing me even to make a grievance in court. Losing faith in your society is perhaps a greater bur den then you can imagine, although justice would probably cure the problem. "I also lost a promising opportunity for my future, because of conflicts I had with professors in the Faculty of Medicine at the U of M, where I was a Master's Degree student two years after my incarcerat ion.

The conflicts arose directly from my attempt to convince my professors that medicine, being a self-re gulating discipline, they were ethically responsible for the conduct of their colleagues in psychiatry. They did not want to hear this, and I was eventually forced to leave as being a nuisance, although I can provide evidence that I was considered intellectually capable at the time. "From my point of view, I was merely struggling for what I believed and still do to be my right as a human being and for a response from society which would allow me to have faith in it and to live with it.

"I was incarcerated and received all of the above mentioned consequences, as a result of a psychiatric examination in which I made non-cooperation obvious. I and the hundr eds of others this happens to every year in Manitoba did not cooperate for a natural reaso n. lt is the same reason that government Minis ters, whether Conservative or New Democrat, do not cooperate and open their personal affairs to examination at every unsupportable or unsup ported innuendo that they have done something wrong.

"All that I needed to be able to respond quite naturally, the way I did to the attempted psychiatric examination, was to have faith in myself and enough spirit to remain uncowed. The untenable premise is that my deliberate obstruction, notwithstan ding that, psychiatrists could make a meaningful examination of my mental health. I want my opportunity to ask the psychiatric profes sion how it thinks it could have done this. "I would at least jus tify my right to expect answers from them by charging them with what I think they have done wrong. That is more than they ever did for me.

I think that you can appreciate that I have a substantial important question for them to answer. "My grievance, however, is against society itself, which has given the psychiatrists extensive, unjust power through The Mental Health Act, and expects them to use it. I don't think that psychiatrists are evil people. I think that they're actually dupes in this process. I have already paid in advance for my right to make a case in court. I should not have to make a case against The Mental Health Act at all. That's because the people who support it are the ones who are taking action.

I'm just rec ommending that action not be taken. If you want to take action against people, lock them up and things like that, then you should have to be the one to make the case. "I should not have to make a case against The Mental Health Act at all, although the question of redress is another matter . lt is society which should have to make the case for The Mental Health Act. lt should have to

Tuesday, 14 July, 1987 do this in the face of arguments that people like myself can raise against the act. Understanding that nothing is ideal, I want to make my case against the act. I accept the burden of proof because I have to. "I tried to find out names of the people who treated me, as they would call it in the hospital. I don't have the right to find out anything. I wrote a letter to the hospital asking them for their files on me.

This is what I received back. '" Before we can consider your request, would you please advise us of the reason the request is being made, and the purpose for which information will be used. Following receipt of the same, your request will be duly considered ."' Melvin Holley of Legal Aid, Arnie Peltz' division, affirmed to me that I don't have any rights at all, and that I can't sue anybody because they are protected by The Mental Health Act, even though the decisions they made were completed without my permission. I have been emba rrassed in front of my family.

I expect that, whenever I go to meet relatives of my wife, for example, who don't know anything about me, they will consider me to be a bum because I am not work ing. My wife is supporting me. it's not a simple thing to try and fight The Mental Health Act or acts to do with psychiatry. I don't expect I can ever explain in a social meeting, a quick social meet ing, anything about myself at all. In fact, I'm now resisting meeting members of my wife's family for that reason. I speak of her cousins and uncl es and not her immediate fami ly. I have no income, as I said before.

These are effects that this thing has had on me. Now I would like to make a bit of an argument that there is something wrong with psychiatry . The first thing that should be clear to anybody who thinks about it is that the mind is basically unobservable. The only mind that any human being can observe is his own m:nd, and all the experiments that psychiatry and psychology, both of which share the pretension to be able to unde rstand mind, all the experiments that they have ever done require reporting by intermed iates of what is going on in their mind.

The direct observation is impossible, and the extrapolation from the lab to the complex world of hum an interactions is no t justifiable. Even sciences like physics, which study very simple things by comparison, find it very difficult to explain even relatively common-da y phenomena. The few successes that they've had, for example, invention of radio and television and nuclear bombs, which may or may not be a success depending on whether you are considering the intellectual achievements a success or what it's done for the world, but these types of achievements are actually rather simple.

The reason we've come to respect sciences like physics and biology is because there are some undeniable achievement

whereas, with psychia try, the only achievement is perhaps that people who are complaining about another person get satisfac tion. In the Soviet Union, psychiatrists hold that there is a type of schizophrenia, which the psychiatrists of the western world think is a bunch of bunk. That is political dissidents are suffering from what has been called in English, "creeping schizophren ia." Now, I'd like to ask you, why it is that in the Soviet Union, psychiatrists have managed to find an illness 58 that's convenient for the political order there, and this illness hasn't been found here.

Well, because the political order in this part of the world does not toler ate political repression, but the words social, economic, and religious often appear in the same sentences with political. We ll, in this coun try, in fact perhaps in the Soviet Union, they would argue that while they have political repression, we have social repression here, and there are great stratifications socially here. Perhaps what psychiatry is serving here is a social order. We ll, our social dissidents are being repressed here. I think that I am somewhat of a dissident, a rebel.

That's because I'm a creative person, and crea tivity and rebelliousn ess go hand in hand. The psychiatrists of the world, including the Soviet Union, their colleagues are not their political brethren or people high in the social stratus. Their colleagues are people of the medical community and of the psychiatric commun ity, and they commun icate in medical and psychiatric journals, not political journals. So there's immed iately a problem understand ing why it is that psychiatry in the Soviet Union is serving this political order.

I'll just use that as evidence to show that psychiatry will serve whatever power there is, however it is. lt really has nothing to do with science. Chile, I have an advertisement for a book here - this is a list of books that are advertised by Scientific American - "The Breaking of Bodies and Minds - Torture and Psychiatric Abuse in the Health Profes sions." This goes on to give a little blurb on this particular book that describes abuse in other parts of the world by psychia try . Has anybody in this room ever heard of Ewan Cameron, Lionel Orlikow? We ll, Lionel Orlikow, you know about Lionel Orlikow.

Ewan Cameron is not some person who went off the wall and was kind of a - he was the leading psychiatrist in the country actually, and considered one of the leading psychiatrists in North America, responsible for making Montreal a leading psychiatric centre. My wife studied some of his work when she was in dentis try, as she had to. This particular abuse in this society by one of the leading members of the psychiatric professi on didn't occur in 1923 or 1890. it's very recent. People who were abused are still alive.

One of the reasons I feel quite sure that you're not making much progress is one of the people who is fighting for justice happens to be a psychiatrist. His father was one of the abused people, so he's not likely to represent the viewpoint that psychiatry is actually re sponsible for what happened to tho se people. I was pleased to see the Conservative Party actually found there was no reason for them to believe other than that it was the psychiatric professi on at the time that was responsible for this. There was a norm.

We ll I would suggest to you that was very rece nt and the norm, very recently, was of drastic abuse of people. Now apparently today we've come a long way. I don't believe so. I think that the attempt to find the CIA as responsible -a nd I don't like what the CIA does, much of it. I think that's definitely not right. The pe ople ethically re sponsible for what that profession does are psychiatrists. I'm no t comple tely witho ut some professional backing. This book here is by Thomas Sauce (phonetic).

Tuesday, 14 July, 1987 He's a professor of psychiatry at New York State Universi ty. He basically thinks that psychiatry is abusing people. Some other abuses, Sigmund Freud, the great genius of the early part of the century, well, one of the things that Sigmund Freud taught and this person in this book who is not just sort of wild card who came out of nowhere. He managed the library of the Freudian papers and was in close commun ication with the family. He argues that Sigmund Freud used false evidence to show that women, when they claimed they have being raped, are fantasizing it.

This is the great genius Freud, and obviously this particular person was kicked out of the profession because he was em barrassing the profession, and it was held that these arguments shouldn't be held before the public. What about lobotomies? I'm actually kind of terrified . There's a psychiatrist in this room right now, that person right there. I accuse her of abusing me, because she was the one who did what she would call treating me. I would actually apprecia te it if she would be willing to � argue with me. I would like an argument.

I'm not ' intellectually frightened of any psychiatrists, and I'm in a position where I'm not in jeopardy and there's a third party who will be judging. I'd just like to repeat my core argument again. I said I was going to say it several times because it was very important. Psychiatrists don't seem to understand that, when they bring a person in who is determined to resist an examina tion, they can 't make a meaningful examination. Any child can frustrate the attempts of an adult to reason or whatever it is - maybe the adult is being unreasonable.

But children can frustrate adults is the point that I want to make. Surely, if a child can frustrate an adult, I can frustrate a psychiatrist. Even though psychiatrists are great genius es, I can still frustrate them whether they like that or not. Psychiatrists are supp osed to know when people are dangerous. I recall, a few months after I had left the Cancer Treatment Centre, talking with Dr. lsraels on the phone about this problem, and he said to me, well, psychiatrists, we need them because they can get dangerous people off the streets.

Then he mentioned the case of the person who had shot 21 people at McDonald's. I said to him that particular person had been pounding on a psychiatrist's door the day before that happened, and that was not a very good example for him to give me. lt illus trates very well that psychiatrists don't know what they're talking about when they think they can determine who's dangerous and who isn't, and he laughed at that because he had nothing to say - a rare )Ccasion when he didn't have anything to say. I did write a brief at one time.

As I said, I had more energy for this a few years ago, and I wrote an analysis of the concept of what dangerousness is. I know that you're tired and I wish that I did have the time and the energy to make this more pleasing, but I'd like to read some out of this. A rationalization for compu lsory committal goes something like this. A person compelled to undergo a medical examination to determine his sanity may be dangerous to himself or the public. The physician can screen out the dangerous people. Since they are dangerous, it is just that they be comm itted for medical treatment.

The fallacy in this syllogism lies locked up in the word "dangerous." 59 Before going on to expose this falla cy, I should state that I'm in agreement that there is a class of people brought in for medical examination for whom the description "dangerous" is appropriate. These are people who have committed violence or threatened someone. They are often brought in for medical examination.

This class of people does not affect my position that The Mental Health Act is unjust because, firstly, in their case the act is red undant as the court system is available and approp riate charges can be laid and definite sentences given, as there is no obscurity in the wrong they have committed; and, secondly, there's no more justification for compelling them to undergo a medical examination than there is for compelling anyone else before they have been given a fair trial in which, as in all trials, they have knowledge of the charges against them in legal defence.

So what I'm saying there is that that particular class of people really are irrelevant to the argument of whether or not psychiatrists can determine dangerousness. I'm talking about people who have actually done some thing that there are witnesses for and that the facts could be determined in a court that this person did do something that was

an act of violenc t� or threat ening. Now I will show the fallacy of the use of implication of the word "danger" as to describe any other than those of whom I have just argued for whose alleged actions are as a clear-cut court route. In other words, what I'm saying is that one group of people, there's no problem in deter mining the facts in a court. So there's no excuse for the psychiatrist there to take a person who is resi sting before a psych iatrist. The person about whom I speak is the person who commits acts that may not be illegal but that are highly unusual.

An example would be one who claims to have received messages from God to speak in riddles and does so passionately enough that someone may be frightened by his behaviour . This is a person who cannot be properly charged or convicted. Although to dem onstrate there's a solution to any problem, if it is willingly sought for, a court order restrai ning his approaching the fearful person might be obtained if the legal apparatus was set up. This particular person's physician might want to decide he's dangerous. I must ask what the word dangerous in this context means.

Since the person does not have a record of violence and has not threatened , there must be some other basis of meaning for the word. lt must be assumed that the word means that the person is likely to commit violence in the future. If a person is called dangerous, it does not automatically follow that he is dangerous.

Just calling the person dangerous doesn't make him dangerous. 1t can only be said with certainty that the physician who calls him dangerous thinks that he is and, more serious, the consequences where the person is so labelled, the more credence the honest physician must give to his ability to know this person will commit violence. A physician who is going to call a person dangerous must believe very strongly that he knows what he's talking about. Locking up the examinee and forcing drugs on him is such a serious action against him that the physician must believe it to be a veritable certain ty.

The punishment is as severe as it would be if the person had already committed a crime. Thus, we must be able

Tuesday , 14 July , 1987 to conclude that the physician is essentially claiming to be able to predict the future. This is the heart of the fall acy. lt is not unr easonable to claim to be able to predict the future in certain cases. If I toss a stone in the air, I can usually predict with certain ty, before it hits the ground, that it will do so. This is trivial. A less trivial type of prediction is scientific prediction. In a type of prognostic test called "restriction linkage analysis," geneticists can predict with high reliability whether or not an unborn baby will have sickle cell anemia.

With this type of prediction before it is available, someone hypothesizes that it's possible, gets some money , and in a series of carefu lly controlled experiments, tries to prove or disp rove, in an objective way, the hypothesis. If he succeeds in proving it, a new type of limited prediction becomes available. The psychiatrist, on the other hand, has proved no such hypothesis. The assertion of an hypothesis, proven or unpr oven, makes it a theory.

That's the examination of people to determine whether or not they are dangerous, excluding the chargeable group that I mentioned, is grounded on an unpr oven theo ry, and that theory is that the psychiatrist can make such a determination. There are several characteristics of this insidious theory that are relevant besides its unpr oven nature. They explain its current sway. These characteristics are that it is a popular theory and it has been around a long time.

They guar antee that we are likely to have held this theory as fact during our development in education - that psychiatrists have some powers, that is, to determine facts - long before we realized that we held them and if we ever came to that realization alone. Most people have never questioned this thing in their upbringing. They just take it for granted. Everybody sitting at this tabl e here takes for granted that psychiatrists are capable of doing what they claim they can do. I don't think any of you here have ever seriously questioned it.

Another reason for the popularity of this theory is that it's su bject to spectacular reinforcement such as the frequently held theory that flying is the more dangerous way to go from A to B than is driving. That's also subject to specta cular reinforcement. When a plane crashes, it's in the news headlines and everybody hears about it and they're horrified by it - the same thing with psychotic murders. Automobile accidents, on the other hand, and explainable mur ders, if there is such a thing, appear more frequently in the back pages.

That flying is more dangerous is easily dis proved and has been because of three conditions. Airlines are motivated to do so because they stand to lose by letting that theory grow. They are capable of doing it, having the resources to do so, and the measurements that must be taken are highly objective and easy to take. That "crazies" are dangerous, on the other hand, is hard to disprove and has not been because of th ree analogous conditions.

The people who would lose by this belief and be most motivated to disprove it are locked up and don't have the resources to dis prove it, and the measurements that must be taken are difficult to take, being highly su bjective. So this theory that psychiatrists can find out certain things is spectacularly reinf orced and there is no 60 analogous condition that allows that theory to be overthrown - analogous, that is, to the theory that flying is dangerous.

The falla cy of the word "dang erous" in this rationalization - well, that's the part of the letter that refers to before - but the fall acy of the word "dangerous" is that it is a pejorative word, a prejudicial word, that biases everybody against the person to whom it is applied and makes it seem respectable to mistr eat him. The use of the word is made respec table in - (inaudible)- by the fact that it is used or implied, of course, by physicians. Hidden in this one word is an old unscientific and unfounded theor y.

The working hypothesis of the last branch of medicine has not accepted rigorous sciences as its backbone. This theory is the mains tay of that branch of medicine that keeps applying much rigorous science in its peripheral activities, such as measuring the parameters of people who are convicted by its theory and testing various cures such as the all too recent, chillingly frightening procedures such as frontal lobotomization. lt's not right to call people dangerous in this sense of scientific prediction in this context.

Until it has been shown to be legitimate, no one can be justified in its application, let alone professi onals. I do not think that it will ever be proven that psychiatrists can show dangerousness, because I don't think they can. lt's time for society to stop . . . HON. L. DESJARDINS: Mr. Chairman, on a point of order. MR. CHAIRMAN: Excuse me, Mr. Cohoe. The Minister of Health, on a point of order. HON. L. DESJARDINS: Mr. Chairman, on a point of order, and I hesitate to interrupt Mr. Cohoe. No doubt, he's very sincere, but I wonder if we could ask Mr. Cohoe approxima tely how long he has?

We have quite a few people who wish to make presentations and, if they'd all take the same time, we'd be here till eleven o'clock tom orrow morning. I wonder if we could - I think we're more than rea sonable. I wonder if Mr. Cohoe has very much longer to go? MR. T. COHOE: We ll, I think that I'm more than half finished. HON. L. DESJARDINS: Ha lf-finished? We ll, Mr . Chairman, then if that is the case, either we ask Mr. Cohoe to expedite and wind up because it's been an hour now, and I don't think that we can afford - in all fairness, I think you should realize that we can't spend two hours on every brief.

That would be impossible. MR. T. COHOE: The point that I would like to make is that I would like to be able to appear in a courtroom. HON. L. DESJARDINS: This is not the jurisdiction here. MR. T. COHOE: I know it's not. This is the only chance I've had to say what I've got to say at all. HON. L. DESJARDINS: I under stand that and I think we've been very patient and we'd like to be patient,

Tuesday, 14 July , 1987 but we must be fair with everyo ne. I think that you know that, in here, there will be an appeal. I think you should welcome this change. At least it will give you an appeal to any treatment or involuntary treatment that we might give. If you want to discuss that with some people later on, some member of staff, but the court ... MR. T. COHOE: I tried. I spoke to a lot of people and part of what I intend to tell you here tonight is how many people I tried to get to listen to me.

For example, I would have appreciated if I would have been asked to speak to the people who were drafting the bill at the time. There was a period when you sent out and asked for briefs from a bunch of groups of people. I let so many people know that I had some thing to say and nobody thought that what I had to say was important at all. I'm trying to do the best I can. HON. L. DESJARDINS: Well, this is what we're doing tonight. This is the reason for this tonight.

But can I ask you then - I promise that we'll listen to you on another occasion if you want to talk to us again, but I don't want to misinf orm you or tell you that we can do anything about the courts. We have no jurisdiction in the courts at all. MR. T. COHOE: We ll, I wasn't saying about jurisdiction in the courts, to ask you to influence the courts. I was just asking you to understand my position that I haven't been able to get into one, and this is my only time I've ever had a chance. But I will do my best to be as fast as I can. HON. L. DESJARDINS: Well, I suggest, Mr .

Chairman, then if it is the wish of the comm ittee, that we give Mr . Cohoe another 10 minutes and maybe, after that, we can entertain a motion of having a set time on those making representat ions. MR. CHAIRMAN: What is the wish of the committee? Mr. Cowan. HON. J. COWAN: I concur with th e Minister's reco mmendation that we request Mr. Cohoe to try to expedite matters, and also that Mr . Cohoe avail himself of the opportunity perhaps to meet with staff on another occasion to go over those points of his brief which he is not able to present here this even ing.

There are a large number of other presenters whose presentations are equally important and, while one cert ainly appreciates the need for individuals and the desire for individuals to participate in the process, one should also appreciate the need for other participants who have been waiting quite patiently. If we are going to hear everyone here this even ing and give them a fair hearing, then we are going to have to acknowledge time constraints. So I would ask Mr. Cohoe if he could try to finish up in about 10 minutes and then avail himself of the opportunity for further presentations to staff at a later date.

MR. T. COHOE: What opportunity will you guarantee me then? 61 What I really want is an argument, actually. Like, I'd like to participate in a debate. HON. L. DESJARDINS: This is out of order. This is no argument at all. You make your point, and we will consider it while we study the bill to see if there's any point that you might justify an amendment. We 're not here to discuss the value of the medical profession and so on at this time. We 're looking at a bill, and you should address your remarks . . . MR. T. COHOE: I'm sorry I that I can't know exactly what it is that you're trying to do here.

I'm just trying to represent myself as best as possible. HON. L. DESJARDINS: Have you read the bill, Mr. Cohoe? MR. T. COHOE: No, I haven't read the bill. I have legitimate complaints. I don't have to have read the bill to be in a position to make some complaints. HON. L. DESJARDINS: What if I guarantee to make an appointment for you to meet with staff and try to explain the bill? MR. T. COHOE: Who? HON. L. DESJARDINS: To meet the staff we have, Mr . Waiters and others who we might have available to go through the bill with you. MR. T. COHOE: Yes. HON. L. DESJARDINS: All right. MR. T.

COHOE: We ll, I have no choice about it, so I guess I have to agree to that. HON. L. DESJARDINS: We 'll make an appointment and try to explain the bill to you. MR. T. CO HOE: What's their professional qualif icati on s? I'd like to kno w the professional qualifications of the staff member though, before . . . HON. L. DESJARDINS: That'll explained to you when you discuss the - the staff is not on trial here. MR. T. COHOE: You don't seem to understand that I've been seriously abused. I'm having a hard believing in my society because you've done this to me.

I haven 't had the slight est opportunity to question this in any way at all. I'm trying to cooperate with you. HON. L. DESJARDINS: I am suggesting, Sir, that we will make this arrangement. That's the best I can do. I think it'll be more profitable. It'll be better for you. You'll have a better chance than here at this time. There are a lot of people waiting also. lt's quite a while for a presentat ion. So I will guarantee that we'll arrange a meeting with staff to go thr ough the bill. MR. T. COHOE: Yes. As I said, I have no choice.

Tuesday, 14 July, 1987 HON. L. DESJARDINS: We ll, thank you very much then. MR. T. COHOE: May I go on? HON. L. DESJARDINS: Can you finish up in about 10 minutes or so? MR. T. COHOE: You don't want to hear from me. MR. CHAIRMAN: Mr. Cohoe. MR. T. COHOE: Yes? MR. CHAIRMAN: I was just re cognizing you. Mr. Cowan. HON. J. COWAN: Mr. Cohoe, we'd like to hear the summation of your comments, and would appreciate if you could take a few minutes to provide those to us.

Then we have staff here who will immediately arrange a meeting with you, so that you can go over in some detail the bill itself, which is the matter before the commit tee. We would appreciate hearing, at that time, further comments that you may have on the bill or comments that you may have on the general conditions. But I'm afrai d, in regard to tonight's meeting, there are a large numb er of others who have listened with inter est to your presenta tion, but also have presenta tions themselves that they would like to make.

Out of deference to them, if you could accommodate them, I think we can perhaps accommodate you for summing up for a few more minutes and then arrange for another meeting, if that's to your sati sfact ion. MR. T. COHOE: All right, I'll finish this as quick as I can. As I said here, I've seen MARL. I've asked them to speak to their commi ttee. Bill Martin, Carolyn - a particular committee heard me at one time; Lea Girman, executive assistant for Roland Penner; Norm Larsen who, one week after he met me, left for Ottawa; and Melvin Holley.

That's a short list of the people who I have spoken to and appealed in every way I could think of to have the opportunity to be considered myself as somebody who has some thing to say in this. Nobody has ever invited to me to make any kind of submi ssion on anything. I should have been invited to make submis sions because I am an expert in that. The natural people involved with this bill, there are three natural parties involved in this bill: lawyers, psychiatrists and the people who are are treated under the act . I am a natural opponent of the psychiatrists.

Also, I think I am in a position to make a good argument. I would appreciate it if your legislation would reflect what I call my core argument. That is, if I don't want to be examined by a psy chiatrist, it's impossible, and so you can't compel somebody to undergo a psychiatric examination and have a meaningful result from it. I would appreciate it if there would be some route to the court for me now. I'd also like to say that I am rather afraid because, at any time, something could happen and somebody could say, well, look this guy has got a histor y. Send him out to see a psychiatrist.

I doubt that I will ever 62 cooperate with psychiatrists and I will be abused again. I'm really afraid of that. That's not just some thing that I'm just saying here. I am quite afraid of that. lt might seem unr easonable to y.ou but,. from my J:IPint of view, what the psychiatric profession does is unr easonable. I would add, as I said befo re, that I think it's really society and this legislation that is resp onsible, not psychiatrists. Psychiatrists are just dupes.

In fact, I believe that most of them think that what they're doing is a good thing and that they are trying to do a good thing, but they are not really - well, as you said, we're not trying psychiatrists here; it's just the legislation. Well, it is the legislation that has allowed this, and actually it puts pressure on the psychiatrists to do this kind of thing. They feel that they're responsible to do it. I talked to better psychiatrists who suggested that they were expected to do this role, and to expect them to be the prosecution and defense at the same time is to put them into an unr easonable position.

So, in a sense, I really feel that it's the legislation that's responsible. Any legislation that would require me to go before a psychiatrist without having had some form of a trial first, in which I have been charged and in which I have all the accesses to the normal judicial process and all the securities that it implies, anything less than that is completely unsatisfactory from my point of view. So that's, I guess, it then. MR. CHAIRMAN: Thank you, Mr. Cohoe. Are there any questions? Hearing none, then I thank you for your presenta tion. Mr. Cowan. HON. J.

COWAN: Perhaps, given the large number of presenta tions that are to follow and the fact that we have some other business to take care of, hopefully on clau se-by-clause consideration of a large number of bills, if it would be agreeable to the committee, we might recommend that presenters try to keep their briefs to 20 minutes or less and then there would be more time for asking of questions if that's required.

Of course, if a presenter is summing up and needs to go over a bit, that would not be a problem, but we try to maintain that sort of a time constraint so that we can get through the rest of the presentat ions this ev ening, if that is acce ptable. MR. CHAIRMAN: Is that the will of the commit tee? (Agr eed) We 'll now call on Legal Aid Manitoba, represented by either Mr. Mel Holley or Ms. Shawn Greenberg. Ms. Greenberg. MS. S. GREENBERG: Mr. Chairperson, my name is Greenberg and I am appearing for Legal Aid. There is a written brief which is being distributed right now. MR. CHAIRMAN: Thank you. MS. S.

GREENBERG: I intend to be particularly brief and I have no exhibits. First, let me indicate why Legal Aid is presenting a brief with respect to Bill 59. Legal Aid has been in

Tuesday , 14 July, 1987 busine ss now for 15 years and, for 15 years, we have been involved to a large extent with mentally ill, both repres enting them as counsel, as litigators, and involved in commun ity-related activities and mentally ill people, involved in commi ttees designed to promote legislative reform, and involved in giving drop-in advice to mentally ill patients, and have had and continue to have an on call service to Selkirk, Brandon and all the psychiatric facilities in Winnipeg. As a result of that, we've had extensive involvement with mentally ill patients.

Most recent ly, we have been involved with taking a test case to the Manitoba Court of Queen's Bench regard ing the existing Mental Health Act, challenging it on the basis that it contravenes the Canadian Charter of Rights and Freedoms. We are particularly concerned with presenting on behalf of mentally ill people because we feel that they are in a peculiar position, being the primary target of legislation and not being capable, for the most part, to make any kind of representations or to articulate a position on behalf of themselves.

For that reason, we feel it is incumbent upon us to speak on their behalf and to make submissions with respect to the legislation. I have noted on the agenda that there is a list of a numb er of people who are going to be making representations to the comm ittee, varyi ng from psychiatrists, mental health associa tions, lawyers. I anticipate that the commi ttee will be getting quite a broad perspective on the bill, bul l would like to indicate what our perspective is.

We view the bill in a somewhat different matter than I assume psychiatrists will, and we view in the bill in a somewhat different matter than the Canadian Mental Health Association has. We see that the CMHA has received a fair amount of media coverage and we note that the Opposition critics have given a fair amount of attention to the attacks placed on the bill by the CMHA, primarily in regard to the lack of any kind of provision in the legislation regarding commun ity mental health services. Let me say, at the outset, that we do not intend to challenge the bill with respect to this matter.

While we support the CMHA in their bid to try to encourage the government to do something about community health services, we do not feel that should impede the amendment of the existing legislation. We feel that there are tremendous flaws with the existing Mental Health Act which demand and have long demanded review, and it is incumbent upon the Leg islature to proceed with amending that legislation without any kind of contingency plans, without any kind of contingent requirements that it be predicated on the advancement of community health services.

In revie wing Bill 59, we are looking at the bill primarily as lawyers would, with a view to looking at the legislation as it is designed to remedy the existing problems regard ing patients' righ ts. We mu st say that we commend the Legislature for the draft of the bill. We feel that Bill 59 does represent a laudable attempt to cure some of the existing defects in the law.

We commend, in particular, the removal of the director's power to order exa mination and treat ment; the establishment of the criteria to justify both assessment and admis sion to hospitals; the provision regarding access to medical reports; the automa tic review provisions for reviewing patient status at certain 63 intervals; provisions for appeal to a review board and the es tab lishment of a review board ; and the requirement that patients be advised of their legal rights both upon examination and upon admission to hospital. Unfortun ately, we feel that the amendments do not go far enough.

We have two main areas of concern. Our first main area of concern has to do with the patient's right to object to both examination and admission to a psychiatric facility. While the amendments require that patients be advised of their rights to legal counsel, it is not quite clear of what use that right to coun sel is. The patient is not entitled to be heard in any regard with respect to examination or admission until after the fact.

The bill sets up quite a laudable review process, but the problem with the review process is that it is precisely that. lt only provides the patient with an appeal remedy. lt does not give the patient any right to be heard from the outset. Now, we fully appreciate that there are many cases where it would be impractical to have a patient be given the opportunity to advocate his rights from the outset because very often that causes del ay, but we see that the bill also provides remedies for emergency situations.

We believe that it is absolutely impossible to support any legislation that does not allow a mentally ill person a right to vocalize his position from the outset. lt appears that most of the amendments have been designed with a view to accommodating the Canadian Charter of Rights and Freed oms and it appears to us that, in order to accommodate the patient's right to fundamental justice on detention, it is incumbent that the legislation provide him with an advocate from the outset.

The im portant thing to remember about this legislation is that this legislation deprives a person of his or her liberty , and the only other analogous situation in our law where there is a law that takes away a pers on's liberty is the criminal law. lt is difficult to be able to logistically support any kind of legislation that does not give to mentally ill people at least the same kind of rights and protections as persons who are accused of criminal offences.

These people are detained and their libe rty taken away from them through no fault of their own, through no probably activity, strictly because they are ill. lt is inconceivable to us that they should not be given the benefit of the same kinds of protect ions as those who are accused of criminal activity. Our second concern with Bill 59 relates to consent to treatme nt. lt is commendable that the bill does recognize this as an issue, and there is a fair amount in the legislation regard ing consent to treatment, but we feel that it does not go far enough to protect patients' rights.

We believe that it is a fundamental principle of our legal system and our social system that people should have control over their own bodies and their own destiny to as much an extent as possible. We feel that treatment should never be forced upon a competent pers on. The bill, as presently drafted, allows a review board to override a decision or the views of a competent person and to force treatment even though that person is competent. We can see no reason whatsoever for supporting that kind of legisla tion.

Secondly, with respect to people who are not mentally competent, although a consent to treatment obviously

Tuesday , 14 July, 1987 cannot be obtained from them, we believe that the Public Trustee is not the appropriate person to be looked for for that consent. Bill 59, as presently drafted , req uires the consent or allows consent to be given to treatment by the Public Trustee in situations where consent cannot be obtained by the patient. We don't feel tha t the Public Trustee Depart ment has the necessary medical expertise or is properly qualified in order to make a decision as to the suitability of treatment.

Now the two areas that I have indicated basically relate to an individual's right to control his own body, his own environment, and the issue really is how best to give a mentally ill patient the right to advocate his rights with respect to detention and his rights with respect to treatment. We have some reluctance or hesitation in suggesting that lawyers should always be involved in the process or that the right of a person to counsel would necess arily mean legal counsel.

Lawyers don't usually have the necessary expertise to deal in the area of mental health, and lawyers are primarily involved in a litigation process which is not necess arily the best solution for the mentally ill patient. We believe that the best way to accommodate providing patients with an advocate is by having an in house advocate in the psych iatric facility who is available from the outset. Now I understand that, at some point, the reports preceding the preparation of this bill had reviewed the possibility of setting up some kind of an in- house counsel service and had rejected that idea.

We would point out that the concept comes from the Uniform Mental Health Code and is a concept that is also being lauded by other comm ittees and other groups, and we feel that it is the only way to possibly provide patients with the availability of having someone who would have both the necessary type of expertise to deal with the situation and be available in a quick enough time to be able to facilitate the proces sing of the patient through the system.

We should also point out that, in terms of funding for that kind of facil ity, we appr eciate that bringing in house counsel into the system at the various facilities would create an expense, but we also cannot conceive of how the government can afford to supply continuous duty couns el service to criminal cl ients but not accommodate mentally ill people with the same kind of facilit y. Now, as I indicated, our major concerns with the legislation are the two areas that I've outlined above, but we would also like to draw to the attention of the committee certain specific problems with the legislation,

section by sec tion. The primary concern in terms of specifics of the legislation that we have noted has to do with

section 26.4( 1). We assume that the problem in this

section is an oversight. The entire concept or the entire workings of this new bill is predicated on the establishment of a review board. We note that

section 26.4 ( 1) is permissive in its language in terms of requiring the es tablishment of a review board. We would assume that permissive language is an oversight, and that it was in fact intended that the language be mandator y. Otherwise, it is obvious that the legislation or the designed legislation cannot function. We also draw the attention of the commit tee to the time limitation set out in

section 7 and sect ion 11 . We 64 belie ve the words such as "forthwith" are subject to abuse if specific time limitations are not placed upon the wording. We also believe that the time limitation of 72 hours as proposed in sect ion 15(

b) for examination by a psychiatrist should be shortened to 48 hours. With respect to time limitations, general ly, we belie ve that the act should stipulate that detention be allowed for the least amount of time possible in order to effect ively utilize the process without unnecessa rily infringing the patient's liberty. We also believe that, with respect to the jur isdiction of the review board as set out in sect ion 26.5, there should be some kind of a general catch-all phrase at the end of the

section which indicates that basically the review board would have jurisdiction to deal with any type of issue involving patients' rights, patients' treatment, patients' admission to hospital, etc. We also note that with respect to the hearings before the review board, the act presently provides that there should be 10 days notice of such hearings. We feel that that amount of time is an inordinately long time. and in view of the fact that we would propose that advocates be allowed to make representa tions on behalf of the patients from the outside, we would suggest that the time limit be reduced substantially .

Lawyers often are in court on very complex matters, in a matter of a day or two, and we do not see any reason why patients shouldn't have access to the review board on very short notice. In conclusion then, we commend the Minister for introducing the legislation and, as I said, we believe it is a laudable attempt to improve the patient's rights, and we feel that it is absolutely essential that some amendments go through.

As said earlier, we do not feel that the problems with mental health service, with commun ity facilities, should prevent the passage of legislation which is in bad need for the remedying of patients' rights. We feel that the problems that we have articula ted in the bill are easily correctible and that the legislation can be easily remedied in order to cover the points that we've raised. Those are my comments. MR. CHAIRMAN: Thank you, Ms. Greenberg . Are there any questions? Mr . Orchard. MR. D. ORCHARD: Just on that last point, if I may. Do you have a suggestion on the 10 days? As I read

section 26.5(6), "The review board shall give 10 days' written notice of the application to every party and to every person who is entitled to be a party, " etc., etc. You would suggest that can be considerably shortened to two days, three days? MS. S. GREENBERG: I would suggest definitely it is.

As I say, lawyers are often in court on far shorter notice than that and, in view of the fact that we anticipate this board being utilized by patients from the outset, if in fact the commit tee saw fit to go along with that kind of recom mendation, it would be necessary obviously to be able to conduct a hearing on short notice in order to facilitate the process of having a patient committed, if necessary. We don't want to place obstacles for the admission of the patient and we appreciate the fact that, by taking the position that

Tuesday , 14 July, 1987 patients must have rights right from the outset, must be able to advocate their position right from the outset, that advocat ing of that position

Document details

Collection	Manitoba — Debates (Hansard)
Citation	33-2-sro3
Type	hansard
Volume / chapter	33rd 2nd hansardpdf sro3.pdf
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	d483061a5200170a3401ea9c2dd1f6ddb8e505d0

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