Hansard Transcripts 1983-Dec-01 | Legislative Assembly of Ontario

This prominent French-Canadian historian, writer and university professor was a staunch defender of francophone rights. From the early years after 1910 he fought regulation 17 until the day of his leaving this world on November 29. Dr. Marion was one of the most prominent Franco-Ontarians, if not the most prominent. He was a recipient of la médaille de vermeille of the French Academy and the Pope's silver medal, and he was an officer of the Order of Canada.

I am sure that all members mourn the passing of Dr. Séraphin Marion.

M. le Président, je voudrais aujourd'hui vous faire part d'une triste nouvelle, le décès de Séraphin Marion. Pour tous les francophones de l'Ontario, c'est en effet un jour très triste, lorsque des personnes qui ont défendu la cause des Franco-Ontariens pendant de longues années quittent ce monde. Depuis le début des années 1900, en effet depuis l'adoption du règlement 17 tristement fameux, jusqu'au 29 novembre dernier, le docteur Séraphin Marion s'est battu pour revendiquer les droits des francophones.

II était récipiendaire de la médaille de vermeil de l'Académie française, de la médaille d'argent du Pape; il était aussi officier de l'Ordre du Canada. Je suis sûr que tous les députés, tous les francophones de l'Ontario, sont aujourd'hui très tristes d'apprendre le décès du docteur Séraphin Marion.

M. Cassidy: M. le Président, j'aimerais m'associer à ce que vient de dire le député de Prescott-Russell touchant le docteur Séraphin Marion, distingué Franco-Ontarien. C'est un homme qui au moment de son décès était âgé de 87 ans, un homme qui depuis ses plus jeunes années a milité en faveur des droits des Franco-Ontariens.

I took the occasion to have a look at a speech that was delivered by Dr. Marion in 1964, when he was a director of the French Canadian Educational Association of Ontario. A few words from that speech speak out very clearly to our problems even today in terms of ensuring true equality. This was perhaps unique at that time, or if not unique it showed his leadership. He said, "First of all, and let there be no mistake about it, I am not a French Canadian from Quebec, but a French Canadian from Ontario." He was proud to be a Franco-Ontarian.

As a distinguished historian, he pointed out that the efforts to get rights and privileges for Franco-Ontarians in matters of education were not something of recent date but went back a very long way. In fact, his historical research had brought to light a text dating from the year 1852, that is, 15 years before Confederation, when Bishop de Charbonnel wrote to Dr. Egerton Ryerson, the founder of the present school system of Ontario, saying, "We must have and we will have the full management of our schools, as well as Protestants in Lower Canada." In other words, the French Canadians in Ontario should be treated as English Canadians have been treated traditionally in Quebec.

"Bishop de Charbonnel," says Dr. Marion, "claimed he wanted 'no exclusive' privileges, but only 'that the law which governs the separate schools in favour of the Protestants of Lower Canada may be put in force in favour of the Catholics of Upper Canada."

En ces tristes circonstances, je voudrais simplement dire que le Nouveau Parti Démocratique rend hommage à ce distingué représentant des Franco-Ontariens, et qu'il fera tout ce qu'il pourra pour assurer que le rêve de cet homme d'une véritable égalité pour les Franco-Ontariens dans tous les domaines, surtout celui de l'éducation, devienne une réalité dans la province de l'Ontario.

Hon. Mr. Wells: Mr. Speaker, on behalf of the government, I would like to associate myself with the remarks that have been made by my two colleagues in the House and express our sympathies on the passing of this great Canadian and noted historian, Dr. Marion.

MINISTER'S RESPONSIBILITY

Hon. G. W. Taylor: Mr. Speaker, I have a point of clarification or point of order, or whatever classification you want to put it in. In the Globe and Mail on Wednesday, November 30, 1983, the columnist Orland French indicated, and I paraphrase, that after the questioning of last Tuesday the Provincial Secretary for Justice (Mr. Walker) was fielding questions on the matter, then: "Although other members of the Legislature found the issue absorbing, the Solicitor General, the man in charge of Ontario's police forces, the province's top cop, wasn't paying attention. He missed the question."

If I might correct the matter, I did not have the question put to me but I was paying attention, as I always do in this Legislature. Maybe if the columnist paid attention and knew the rules of the House he would know that if a question is not referred to a minister or if a member asks the question of the wrong minister, the minister does not have to answer. That is just a point of information.

STATEMENTS BY THE MINISTRY

PAUZE LANDFILL SITE STUDY

Hon. Mr. Brandt: Mr. Speaker, I would like to announce completion of the hydrogeological study of the Eric Pauzé Construction Ltd. waste disposal site in Tiny township and inform the members of the actions my ministry will take based on the study. The study was ordered by my ministry with the concurrence of the municipality and conducted by Gartner Lee Associates Ltd., a firm of consulting engineers, geologists and hydrogeologists, with a worldwide reputation.

The report concludes that Georgian Bay is not endangered by the plume from the Pauzé site. The contaminant levels found in the plume from the landfill site are being reduced by normal ground action and the consultant predicts this contamination should be virtually indistinguishable within nine years, long before the ground water reaches the bay. The consultant estimates that ground water travelling 230 feet per year will take about 50 years to reach the bay, which is 3.6 kilometres or 2.2 miles from the landfill site.

2:10 p.m.

Another conclusion is that with the exception of one well, the Therrien well, all other wells in the community of Perkinsfield will be safe from the landfill plume.

The Gartner Lee study found that elevated levels of the chemical compound trichloroethylene, or TCE, found in three Tiny township wells do not come from the Eric Pauzé Construction Ltd. waste disposal site. The source of this trichloroethylene is undetermined, but the study notes that the sources could be spills, road oiling, or domestic or commercial users.

In the study, Gartner Lee determined that a plume of chlorides has travelled about 700 metres from the landfill site. A weak plume of trichloroethylene from the site was also detected but it had travelled only about 300 metres.

My ministry will act on the conclusions and recommendations contained in this independent hydrogeologic study on the landfill site. Our action will deal with both the leachate produced by the landfill site and the unrelated and unknown sources of trichloroethylene contamination in the three area drinking wells, the wells on the Therrien, Posey and Kramer properties.

For the immediate future and to ensure that the three families with contaminated wells have a clean and safe water supply, my ministry will continue to provide hauled water.

The consultant has reported that it would be extremely difficult and probably impossible to remove the leachate plume from the ground water. My ministry will have the landfill site owner place a water-resistant cap to limit rain water from carrying contaminants into the ground water on the site itself.

The site owner will be directed to immediately cap that part of the site which has been graded to its final contours. About 70 per cent of the site is now ready for capping. The site will be closed at the end of October 1984, as previously ordered by my ministry.

My ministry's current monitoring program, which began in 1978, to ensure the protection of area ground water will be altered to reflect the changes recommended by Gartner Lee. This monitoring program will include the three contaminated water wells, 25 other monitoring and drinking water wells in the immediate area and a local community school. My ministry also recommends and will assist in the formation of committees representing area residents to discuss and review the program on an ongoing basis.

My ministry will continue its detailed investigations into the possible source of trichloroethylene found in the three area wells. Further action will be based on the results of this investigation.

This morning my colleague the member for Simcoe Centre (Mr. G. W. Taylor) and I travelled to Perkinsfield. There we met with the Tiny township council and, for the second time, area residents and the North Simcoe Sanitary Landfill Committee. We discussed the study and our action plan which is based on the report's conclusions and recommendations.

I believe this type of two-way communication is essential in this matter. The area residents and cottagers will be receiving a ministry special report on the consultant's study which was mailed to them yesterday.

My ministry's site support team and a representative of Gartner Lee Associates Ltd. will be holding a two-day open house in Balm Beach beginning tomorrow and running most of Saturday to explain the study and my ministry's action plan to area residents. My ministry's site support team is a group of specialists in environmental matters related to landfill sites.

My ministry will continue to co-operate with the North Simcoe Sanitary Landfill Site Committee as it carries out its responsibilities to find a new waste disposal facility.

Last month I proposed to the committee that it employ a new technique, environmental mediation, in resolving conflicts regarding landfill sites. The committee has expressed strong interest in the proposal. I also made a commitment that my ministry would help both technically and financially in the establishment of a waste recycling facility for that area, should my ministry's review prove the project feasible.

I want to give the House every assurance that my ministry will move quickly in implementing the results of the Gartner Lee study.

CONTEMPT OF COURT ISSUE

Hon. Mr. McMurtry: Mr. Speaker, I have a statement to make on the circumstances of a contempt of court sentence and an allegation of rape before the Supreme Court of Ontario earlier this week in Ottawa.

I am not sure if copies of the statement have yet been delivered to the press gallery. There was a little bit of a problem with the printing. The opposition leaders and the Justice critics have copies of the statement and I am told that the press gallery and other members will have copies within a very few moments.

I know that members on both sides of the Legislature are very concerned and troubled by this case, as am I. Accordingly, I have a statement that is more lengthy and detailed than is usual. There are some fundamental principles of justice involved in this very complex matter. Therefore, I hope we can proceed with a minimum of partisanship.

Few issues in my eight years as Attorney General have become so clouded and, I believe, misunderstood as this one. Therefore, I want to take a moment to set out the key events leading up to this week's court hearing in chronological order. Then I will set out the circumstances under four broad subject headings.

This matter began when the complainant reported to the Ottawa police department on January 21, 1982, that she had been raped. Later that day, as a result of her complaint, one accused was arrested and charged with rape. A warrant was taken out for the arrest of a second accused.

The charge against the first accused was proceeded with in the provincial court, criminal division, and a preliminary inquiry held on November 23 and December 5, 1982. The complainant testified at this inquiry and the accused was committed for trial.

On December 22, 1982, the second accused surrendered to the police and subsequently a preliminary hearing date was set for May 5, 1983. On that date the complainant refused to give evidence, saying she was upset and frightened. She did not claim to have received any threats.

A motion brought by counsel for the complainant to quash her subpoena to appear as a witness was dismissed by Mr. Justice Linden in the Supreme Court of Ontario on May 13, 1983. On May 16, 1983, the preliminary inquiry resumed. However, the complainant still refused to testify and at the request of the crown the preliminary was adjourned to October 20, 1983.

It was the hope of the crown attorney that the complainant would testify in the Supreme Court trial of the first accused, which at that point was set for June 6, 1983, and, having so testified, would change her mind --

Mr. Speaker: Order, please. I am sorry for interrupting, but I would like the honourable members not to carry on their private conversations in the chamber. It makes it very difficult to hear what the Attorney General is saying.

Hon. Mr. McMurtry: Mr. Speaker, it was the hope of the crown that the complainant would testify in the Supreme Court trial of the first accused, which at that point was set for June 6, 1983, and, having so testified, would change her mind with regard to the preliminary hearing of the charge against the second accused.

The first accused had been committed for trial on December 5, 1982. He appeared in assignment court in January 1983 and a date was set for trial of June 6, 1983. The case was set that far in advance to allow the preliminary hearing of the charge against the second accused to be completed in the hope that both accused could be tried together. On June 6, 1983, the original lawyer for the first accused himself faced a criminal charge and an adjournment was granted at the request of the new counsel in order that he might properly prepare his defence.

The matter was accordingly adjourned to November 21, 1983, for trial over the strong objection of crown counsel, who urged a much earlier trial date. The preliminary inquiry involving the second accused was resumed on October 20, 1983. On that date John Cassells, QC, the crown attorney for Ottawa-Carleton, met with the complainant, her lawyer and a Rape Crisis Centre worker in an attempt to persuade the complainant to testify. Mr. Cassells offered the complainant relocation and police protection.

2:20 p.m.

I will deal in a moment in detail with the discussions held regarding the safety of the complainant. For the purposes of this chronology, I will note that the complainant stated she had received no threats, that it was apparent that reasonable offers of protection offered her would not be accepted, and that she simply would not testify. In the face of her refusal to testify, the crown was left with no evidence to offer the court and so the second accused was discharged.

On November 21, 1983, the first accused came on for trial in the Supreme Court before Mr. Justice O'Brien. The complainant again refused to testify and was cited for contempt. November 28, 1983, was set as the date for her to show cause why she should not be held in contempt. The trial continued. The evidence given by the complainant at the preliminary was read into the record and on November 28 the accused was acquitted.

That concludes the chronology, and I will now detail the facts under five headings as follows: the safety of the complainant; the necessity of the crown to proceed with a prosecution in these circumstances; the number of court appearances required of the complainant; the role of the Attorney General at this point in the matter; and the actions of the assistant crown attorney in the case.

First, the safety of the complainant: The question of the safety of the complainant is obviously of very deep concern. I believe that if I set out in detail the situation, quoting both from internal reports and public court records, members will have a better understanding of it.

It must be emphasized that there is absolutely no evidence of direct threats against the complainant. She has never claimed to have received any threats, although she indicated obvious upset about the possibility of harm coming to her, and nothing I say here today is intended to minimize her feelings in that respect.

Let me quote from Mr. Justice Linden's decision on May 13 when he heard and rejected arguments to quash the subpoena to the complainant: "There was no direct evidence of any actual threats by any individual, although certainly it does appear that she feels threatened." Mr. Justice Linden noted that when the complainant testified at the preliminary inquiry, "she did so without any apparent difficulty."

On October 20, 1983, the complainant, her lawyer and a Rape Crisis Centre worker met with Mr. Cassells, the crown attorney. The complainant indicated that she had received no threats, but that her telephone was monitored at her request by the phone company after she had received a number of calls in which she would pick up the phone and no one was there. This occurred following the laying of the charges. One call was a request for her to model in the nude. As far as Mr. Cassells could determine, none of the calls represented any direct or indirect threat. The police, in fact, had conducted an investigation and supervised the monitoring of her telephone.

When asked what kind of protection she thought appropriate, the complainant said she would need police guards for herself, her mother and her sister on a 24-hour basis for a minimum of 20 years. She said this would involve a personal police car standing guard outside her front door and going with her, her mother and her sister whenever they went to work or anywhere else.

I want to stress what was offered in the hope of easing the complainant's apprehension. She was offered a reasonable level of protection by police, a new identity for as long as she wanted, and relocation assistance. Protection, a new identity and relocation are available to witnesses as a service from my ministry and police departments. We have developed experience in dealing with such matters over the years and the program has been a success.

In the end, however, it became apparent to Mr. Cassells, as it did to others involved, that nothing could be offered to her by way of protection that would satisfy her.

I will turn now to the second subject, the necessity of the crown proceeding in this or similar cases. At the very base of our criminal justice system is the principle that the crown must have carriage and control of criminal prosecutions. The Canadian text, Criminal Law, sets out the fundamental differences between civil and criminal law:

"There are many legal wrongs that are not crimes, such as torts or breaches of contract, and the essence of a civil action for one of these wrongs is that the harm caused by the defendant is shifted from the shoulders of the plaintiff on to the shoulders of the defendant in so far as money is able to do it. In some cases, the defendant can be ordered to rectify the wrong he caused.

"The criminal process is totally different. For example, if a victim has been raped, she must decide for herself whether to sue the rapist in tort for assault and recover damages from him. The damages awarded will be assessed according to the harm he caused the victim, but it is not the victim's choice as to whether he is prosecuted or not. She is frequently, but misleadingly, called the 'complainant.' But that is an evidentiary term, not a procedural one. She may be the informant.

"But any person, having reasonable and probable grounds to believe the guilt of the accused, may swear out an information and the victim may be compelled to testify whether she wishes to or not. Of course, if the victim does not tell anyone of the rape, it is impossible that rapist would ever be prosecuted, but this does not affect the theoretical position. Indeed, in practice, it will not be the victim the complainant, so-called -- who initiates the prosecution as the informant but a police officer.

"Thus, a criminal prosecution is launched by anyone at all or by someone representing what is loosely called the state, and the victim is merely in the position of being a voluntary or even reluctant witness for the prosecution. Furthermore, in many criminal offences, there is no victim at all, such as in speeding offences or in many possession offences, but this does not stop the act from being categorized as one involving actual or potential public harm and susceptible to the criminal process.

"Thus, the essence of criminal law is its public nature. A crime is, in fact, not a wrong against the actual person harmed, if there is one -- the victim as he may be called (although it may also and coincidentally be a civil wrong against him) -- but a wrong against the community as a whole. The prevention -- or lessening, since total prevention is not possible -- of crime cannot be left to an individual's choice but is the responsibility of any member of the community and, in particular, those who represent the state the police or the prosecuting authorities."

Mr. Stewart, the assistant crown attorney who handled this matter, in his submissions to Mr. Justice O'Brien, pointed out the decision to prosecute is one to be made by the crown and not a victim or a witness. He noted that this allows the crown to act as a buffer between the victim and the accused. If it were otherwise, we would be encouraging persons who are facing criminal charges to intimidate and threaten their victims in order to get them to drop the charges. He stated that we would be creating an open season on victims, once accused persons realized the decision to prosecute is in the hands of the victim.

It is of vital importance to our criminal justice system that accused persons realize that pressure of any sort brought upon victims and witnesses will have no effect upon the decision to prosecute.

2:30 p.m.

There is a legal theory at the root of this position that is fundamental to the administration of justice and to our functioning as a free society based on the role of law. Because of its importance, it is worth some consideration and reasonable discussion here and elsewhere when people consider this case.

Let me stress that we must always demonstrate concern for the victim in any particular case. In terms of sexual offences, we have taken a number of important steps to assist victims and witnesses, and I can detail them later. I acknowledge that there is still progress to be made in this regard.

I can tell members that in sexual offence cases, where the victim has been traumatized by the events and where there is medical evidence that court proceedings would cause serious harm, we have indeed halted prosecutions. Obviously, in such cases it would be improper to proceed and to punish further a victim or witness.

While we must demonstrate concern for victims and witnesses, we must also stand on guard for the rights of accused, whatever the allegation against them. All accused are entitled to confront the facts against them in an impartial forum beyond the reach of vigilante attitudes.

As well as guarding the needs of victims and the rights of accused persons, we must also not forget that society as a whole has rights, has a stake in the proper administration of justice. This point was well put in Regina versus Strong, a case in the appeal division of the Supreme Court of New Brunswick, when it was stated:

"A crime is an offence against the state and not merely a wrong done to an individual. Hence, no private party can, by condoning or forgiving a personal injury done to himself in the commission of crime, thereby condone or pardon the offence against the King -- that is to say, against the state -- which is an essential element of all crime."

When he examined this very set of circumstances, Mr. Justice Linden had a number of observations that are also worth noting. Counsel for the complainant had argued that requiring her to testify would have breached section 7 of the Charter of Rights and Freedoms, which guarantees the right to life, liberty and security of the person. Mr. Justice Linden wrote in his judgement:

"There is no doubt that the applicant is under considerable stress and that she views her continued involvement in these proceedings with foreboding and even fear. She is deserving of sympathy and empathy from her fellow citizens. This court is most sensitive to her difficulty, as it is to that of all witnesses who must testify in criminal and, indeed, other trials, particularly when these witnesses are the victim of those crimes. It is rarely a pleasant experience for witnesses or victims to testify, especially those who are victims of this particularly vicious type of offence.

"Nevertheless, I am unable to hold that the security of the person of this particular applicant had been interfered with by the state in requiring her to testify at the preliminary hearing in this case. Although it is clearly a stressful situation for her to testify, and it would certainly be to her emotional detriment, the evidence is not strong enough for me to conclude that her security of the person would be interfered with. Anxiety and stress, as real and as unpleasant as they may be, are not enough to qualify as infringements of the security of the person. It is hard to differentiate the applicant's distress from that of many other rape victims, who often suffer emotional trauma in giving evidence, yet still proceed to do so as their public duty."

Mr. Justice Linden went on to say, "If a person has relevant and vital evidence to give in a most serious trial, to subpoena her to attend a court in the appropriate way does not violate any principles of fundamental justice."

Later in his judgement Mr. Justice Linden said: "It is a sensible, necessary rule of our society to require the giving of testimony, if needed, even where the emotional tranquility of the individual must suffer as a result, and even if it puts them at some risk of retaliation. To testify in court is unpleasant for many witnesses, but it is nevertheless necessary for the proper administration of justice. The courts are aware of the anguish caused to many witnesses. We admire them for performing their duty. We are grateful for their assistance. Without them the work of the courts would be greatly impaired and, indeed, might be rendered largely ineffective."

With respect to the broad principles and the issue of safety, Mr. Justice Linden had this to say about the course of this particular case:

"The state requires individuals to give the courts any evidence they have to give. These individuals include both the ordinary people as well as the most powerful in our society. In return for this, of course, the state is obligated to these witnesses to minimize their anxiety and furnish them with as much protection as possible, for they may be in peril.

"If we were to permit anyone who is frightened or apprehensive of giving evidence to refuse to do so, desperate and dangerous accused persons would be encouraged to make these threats in the hope of discouraging witnesses from testifying. It could produce a situation where the very worst offenders could avoid conviction by threatening the witnesses who have the evidence to convict them. The legal system cannot tolerate that. Hence, the courts are unable to excuse witnesses from giving their testimony, even when it is fraught with danger and emotional trauma for the individual."

As an aside, I might make note that Mr. Justice Linden, one of our very able judges, was recently appointed to chair the federal law reform commission.

In dealing with the contempt issue earlier this week, Mr. Justice O'Brien made observations which will also be of interest to members. In his reasons for sentence, Mr. Justice O'Brien stated:

"The information given by the complainant to the police and on the preliminary hearing led to the institution and processing of very serious criminal charges. The refusal of the complainant to testify made it difficult for the crown attorney and this court to deal adequately with those charges.

"The refusal to testify or give information to the investigating police officer about the threats made it very difficult for the police to deal with those threats or to provide any protection to the accused, if such threats were made. If this complainant was raped, as she told the police, it would appear very unfair, on the face of it, that she should be punished by this court for her refusal to testify, if in fact she had been threatened. I must keep that in mind. However, it is essential for the successful operation of our court system that the procedures, particularly those dealing with the attendance of witnesses and the compulsion of testimony from those witnesses, be enforced and complied with.

"In my view, our courts cannot permit witnesses to ignore those procedures or to permit persons charged with serious criminal offences to threaten witnesses and thus avoid criminal charges or make it difficult for the courts to deal with such charges. I note there are procedures available to investigate and deal with threats, and police protection was available in this case."

I want to deal very briefly with the number of court appearances. A search of police records shows that the complainant was required to appear in court as a witness at the most on two occasions prior to her refusal in May to give evidence. Subsequently, she was required to appear on a number of occasions, primarily as a result of her refusal to testify. One of the reasons for delaying the proceedings against the accused was so that both could be tried at the same time, thereby saving the complainant several court appearances and the repetition of her testimony.

Next I would like to turn to the role of the Attorney General. There have been repeated demands by members opposite for my intervention in this matter at this point. Let me assure members there is absolutely no basis whatsoever for me to appeal. My senior crown law officers have explored this suggestion and have advised me that I have no basis for appeal or any possible remedy under the Charter of Rights and Freedoms. I am prepared, if members wish, to provide the detail in support of that opinion.

Mr. Speaker: Order, please. As all honourable members are well aware, according to standing order 63, the time for ministerial statements on a Thursday afternoon must be limited to 30 minutes. If the minister wishes to continue, may we have the concurrence of the House to do so?

Agreed to.

Hon. Mr. McMurtry: Mr. Speaker, it should be remembered that the complainant herself, after discussing it with her counsel, decided against any appeal remedies that were and are open to her. I wonder why members opposite press me to intervene, even though I have no authority to do so, to assert a remedy for the complainant when she, after consideration and legal advice, has freely chosen not to assert her rights in this regard.

2:40 p.m.

The final subject is the role of the crown attorney and assistant crown attorney in this matter. I have already mentioned the activity of Mr. Cassells, the crown attorney who dealt with the complainant personally and made the proposals to ensure her safety.

It should be noted that Mr. James Stewart, assistant crown attorney, reports that when he met the complainant on April 29, 1983, when she first indicated a reluctance to testify, she stated she had not been threatened but she was just tired of the case. Mr. Stewart, at the time of sentence, made it clear that he was not asking that the complainant be incarcerated. He stated clearly his understanding and sympathy for her. When she was sentenced, he offered to assist her lawyer in expediting an appeal and her release on bail. His offer was refused and he was informed there would be no appeal.

I want also to advise members of what transpired since the complainant was sentenced on Monday for the contempt. The complainant, like all new arrivals in detention centres, was advised by staff of the Ministry of Correctional Services of various early release programs available to her, including temporary absence projects. She told the staff she did not want early release and wished to finish her sentence to its normal release time on Friday morning.

By way of summary, I think these points are clear:

1. The crown offered police protection. The offer was refused.

2. The crown offered to relocate her as part of a protection program tailor-made to her needs and her security. The offer was refused.

3. The crown offered to assist in expediting an appeal of her sentence for contempt of court. The offer was refused.

4. The crown offered to assist in an application for bail pending appeal. The offer was refused.

5. The authorities offered to assist in obtaining her release from jail to a community resource centre. The offer was refused.

I am sure all members of this House share a very deep concern about the anguish and the difficulties faced by this young woman. We have done everything in our power to assist her. She is entitled to the protection which we offered her and which she refused.

We must be concerned about potential victims and the right of every citizen and every member of the community to be protected against the commission of offences. If the courts cannot deal with these cases on the merits, then the victim is not protected. No one is protected. No one is safe unless the courts have the ability to ensure that rape cases are tried on their merits and that the evidence against a person accused of rape is available for the ultimate protection of the public.

In conclusion, I should make the point that attached to my statement are transcripts of all the court proceedings in relation to the quashing of the subpoena and the contempt proceedings. which are a matter of public record but which may be of interest to the members.

VISITOR

Mr. Speaker: With the indulgence of the House and before proceeding, I ask all honourable members to join with me in recognizing and welcoming in the Speaker's gallery Mr. Jean-Robert Gauthier, member of Parliament for the riding of Ottawa-Vanier and representative of the International Association of French-Speaking Parliamentarians of the Americas.

Mr. Gauthier is visiting Queen's Park for discussion meetings with other members of the Ontario section of the association.

ORAL QUESTIONS

CONTEMPT OF COURT ISSUE

Mr. Peterson: Mr. Speaker, I have a question for the Attorney General about his statement, which I followed with great interest. We too have prepared a chronology that would have included many facts the Attorney General did not include and would have excluded some of the facts he did include; for example, the gratuitous statement about modelling in the nude. I do not think that is constructive to this debate.

Would the Attorney General not agree that this is not the ordinary kind of case to make an argument about compellable witnesses? We are dealing with a traumatized victim of a rape. The alleged rapists are not exactly the Boy Scouts of America. The net result, after the Attorney General's 24-page statement, is that we have the victim in jail, the alleged rapists are at large and it appears justice will not be done in this case.

Mr. Speaker: Question, please.

Mr. Peterson: The Attorney General indeed had a role, as did his crown attorney, that he did not include. It was his crown attorney who proceeded in court to try to develop the citation for contempt of court. He was aware of that application on November 21. He had time between November 21 and November 28 to ask his crown attorney not to proceed to have this young lady cited for contempt. Why did the Attorney General not use the powers he had to not proceed with that citation for contempt in this most difficult case?

Hon. Mr. McMurtry: Mr. Speaker, we have attempted to set out in 24 pages the reasons the crown attorney did not decide not to proceed. It was clearly in the public interest to do so, and I think for any reasonable observer the reasons are adequately set out in the statement I have just read.

Mr. Peterson: To be very clear, it was the Attorney General and his crown attorney who proceeded with the citation for contempt. It was at the Attorney General's initiative, and that is not laid out in his statement of 24 pages giving all the facts. So the Attorney General does have a role.

Mr. Speaker: Question, please.

Mr. Peterson: The Attorney General had the power under the Ministry of Correctional Services Act regulations to have this young lady paroled immediately in conjunction with his colleague the Minister of Correctional Services (Mr. Leluk), had he so desired. I refer the Attorney General to part II, section 40, subsection 2, which says: "Notwithstanding subsection 1, the board may parole an inmate at any time where, in the opinion of the board, compelling or exceptional circumstances exist that warrant the inmate's parole."

Would the Attorney General not agree with me that these are compelling and exceptional circumstances and that, having made the original mistake, he and his colleague should have used their good offices to parole this young lady immediately and get her out of jail?

Hon. Mr. McMurtry: Obviously, as far as the Leader of the Opposition is concerned, by reading very extensively from what I think is the very wise and eloquent judgement of Mr. Justice Linden as to the importance of this witness testifying in these particular circumstances -- reasons that were endorsed by Mr. Justice O'Brien -- we know the chronology of events, and we have stated to the Legislature what representatives of the crown and the government did to assist in the circumstances. As far as I am concerned, everything reasonable was done that should have been done.

Mr. Rae: Mr. Speaker, I think it is important to establish for the record that the Attorney General has changed the grounds from what he was saying previously. He was saying previously, not in this place but outside, that there was nothing he could do. The whole thrust of his statement today is not that there is nothing he can do but that what has happened is in his view the right thing to have happened.

Mr. Speaker: Question, please.

Mr. Rae: He had a 24-page justification of the jailing of this woman for a week, which I find to be an absolutely astonishing statement by the Attorney General when the liberty of a subject is affected in this way.

I would like to ask the Attorney General, as the chief law officer of this province, whether he has considered the impact that the jailing of a woman, a victim of rape, is going to have on the willingness of other people who are also the victims of this horrendous crime to come forward and take their case to the police. Has he considered the impact this is going to have on these people?

Hon. Mr. McMurtry: Mr. Speaker, it is quite clear that both judges who dealt with this matter considered all of the issues related to the public interest. My position, which I stated outside the House when questioned yesterday -- I mentioned it briefly in the House on Tuesday night -- was that there were no grounds upon which the crown could intervene so far as an appeal was concerned, and we have repeated this in greater detail in the statement.

I am sure these issues were of great interest and great concern to the distinguished trial judges who were involved in this matter, and obviously they must have weighed all of these issues related to what is the greater public interest. Mr. Justice O'Brien has so indicated, and a full transcript has been provided of the proceedings in front of him.

2:50 p.m.

I have to say to the leader of the New Democratic Party, and I say this more in sorrow than in anger, I wish he had been here Tuesday night; he might have restrained some of his members with respect to the totally vicious and unprincipled attack that was made on the judiciary in Ontario.

Mr. Renwick: Mr. Speaker, on a point of order: The Attorney General has at this particular point in time made serious allegations against my colleagues in the New Democratic Party. I was here Tuesday afternoon but not in the evening. The Attorney General was not here on Tuesday afternoon but was here Tuesday evening. That is not the point.

Let me draw to the Attorney General's attention the statement made in the British House of Lords on this very question of the right of persons to criticize the judiciary. I want to put this to the minister. Mr. Speaker, in response to the allegations made against my colleagues by the Attorney General and in the light of my remarks to ask you to have him withdraw those remarks. I quote from page 60 --

Hon. Mr. McMurtry: Mr. Speaker, on a point of order --

Mr. Stokes: He's on a point of order. Sit down.

Mr. Speaker: Order, please. The member for Riverdale has the floor on a point of order.

Mr. Renwick: I quote from page 60 of the 1973 3 All England Law Reports in the case of the Attorney General of England versus the Times Newspapers Ltd., from the comments of Lord Reid with respect to freedom of speech and criticism of the judicial process. He in turn quotes from the case of Ambard versus the Attorney General for Trinidad and Tobago and the comment of Lord Atkin in 1936 in that case. This is the whole of that quotation:

"But whether the authority and position of an individual judge or the due administration of justice is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticizing in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrongheaded are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men."

On the basis of that statement, I ask the Attorney General to withdraw the imputations and allegations he made against my colleagues a few minutes ago. I ask you to so direct him, Mr. Speaker,

Hon. Mr. McMurtry: Mr. Speaker, if the honourable member wants to debate this, I would be interested --

Mr. Renwick: I do not want to debate it --

Hon. Mr. McMurtry: I would be interested to know --

Mr. Renwick: Mr. Speaker, on the point of order --

Mr. Speaker: Order, please.

Mr. Renwick: The Attorney General plays fast and loose with the rules of the House. I am asking you, if necessary, to recess this House until the transcript is available, and on the basis of the Attorney General's remarks and my remarks about the right in this assembly or elsewhere to criticize the judicial system, I want you to rule whether or not he should withdraw his remarks. I do not want him to perpetuate this nonsense.

Interjections.

Mr. Speaker: Order, please. I heard the remarks of both honourable members very clearly. I have to say that I agree with and am sympathetic to the issues raised by the member for Riverdale. I ask the Attorney General to withdraw his remarks.

Hon. Mr. McMurtry: Mr. Speaker, the point that I would make --

Interjections.

Ms. Copps: You are wrong.

Mr. Rae: There is one rule for all of us -- one rule for everybody. You either have rules for everybody or you do not.

Hon. Mr. McMurtry: Surely, Mr. Speaker, one should have the opportunity --

Mr. Speaker: Order. I have to advise the Attorney General that I did listen very attentively and carefully to those remarks Tuesday last. I am of the opinion that the remarks which were just made were somewhat uncalled for. I ask the Attorney General to withdraw the remarks, please.

Hon. Mr. McMurtry: At your request, sir, I withdraw them.

Mr. Peterson: The whole thrust of the Attorney General's statement, Mr. Speaker, is to support the judges' decisions and at the same time to deny any personal responsibility or the responsibility of the Attorney General and his various agents.

Mr. Speaker: Question, please.

Mr. Peterson: Why would he now not at least use his offices, in addition to those of the Minister of Correctional Services, to arrange for immediate parole of that young lady? Surely he has the right. He has the responsibility and he could do it in five minutes if he issued the order, it could have been done three days ago. Why does he not now at least do it to send out the proper signals, or at least try to repair some of the damage that has been done in this case?

Hon. Mr. McMurtry: I just repeat what I said in my statement about the initiatives that have been taken and the refusals with which they were received.

Mr. Peterson: Mr. Speaker, I have a new question of the Attorney General.

It is obvious that the Attorney General, in his statement, did not create the entire atmosphere that surrounded this case. As I said, the chronology was rather selective. He did not report, for example, that one of the co-accused had been shot and that there was a variety of rumours about why he was shot. Indeed, of the three co-accused, one had pleaded guilty to an assault charge. There was a whole atmosphere around this case that I suggest would traumatize anyone, including anyone in this chamber, had it happened to him personally.

Mr. Speaker: Question, please.

Mr. Peterson: That is why I am asking the Attorney General this question. Would he not agree that as a result of this decision we are sending a signal from this Legislature, and indeed from those courts, that it is going to be the traumatized victim who is going to pay and not the alleged offenders? Are we not sending out the wrong signal from the justice system in this province? Do we not have to rectify that immediately?

Hon. Mr. McMurtry: First of all, Mr. Speaker, as I have already said, the police tried very hard to find out whether or not a threat had been made. They were unable to achieve any success in that regard.

I was going to refer simply again to Mr. Justice Allen Linden's judgement when he talks about the rights of victims generally and that if the court had not taken a serious view of the refusal to testify, in the court's view, the signal that would have been sent out to the community as a whole, and particularly to rapists and would-be rapists, would have been that it is relatively easy' to intimidate a witness. What that would have done to protect the rights of women in the community was obviously of great concern to both Mr. Justice Linden and Mr. Justice O'Brien.

Mr. Peterson: Are we not sending out an even stronger signal to women who are raped in this province? As the Attorney General knows, the reporting figures are abysmally low as it stands now. Roughly only 10 per cent of the rapes get reported now, and the conviction rate is substantially lower than that.

Are we not sending out the wrong signals to those people who are humiliated, traumatized and embarrassed by this kind of situation, that they now run the risk of being victimized and going to jail as well? Surely the system is not sensitive in this regard and the Attorney General, as the chief law officer, has the responsibility to correct that immediately. Why does he not stop defending this whole bizarre, unjust case and start doing something to send out the proper signals?

Hon. Mr. McMurtry: First of all, it is quite clear that the assistant crown attorney, in his view of the case, did not request the incarceration. Citing the complainant for contempt, hoping that she would testify, obviously, as far as I am concerned, was quite a proper course of action.

If the member were really concerned for one moment about the rights of victims of sexual attack, he would appreciate, obviously to a far greater extent than he does, the signal that would be sent out if it was felt that any apprehension of harm would simply end a case.

3 p.m.

Of course we are tremendously sensitive to the rights of these victims. There is no doubt that having to go through court, as both Mr. Justice Linden and Mr. Justice O'Brien have stated, is obviously an unpleasant experience. No one likes to see any victim go through the necessity of appearing in court, but under our system, as the member well knows, that is the only way people who have committed rape are going to be convicted.

If the signal goes out that all victims have to say is that they have an apprehension of fear -- and I do not belittle that apprehension for one moment -- if the signal goes out, as Mr. Justice Linden stated in the passages I have quoted, that a witness undoubtedly has some apprehension of fear notwithstanding offers of police protection, this apprehension of fear will, in effect, automatically terminate any prosecution. In my view, the message that goes out to the community can only be a message of encouragement to rapists and would-be rapists.

Mr. Cassidy: Mr. Speaker, I am extremely concerned about this case and I am very concerned about the signals that go out. I am also concerned that the crime of rape goes largely unpunished in our society and I am concerned that the Attorney General had nothing to say about that at all in a statement that was notable for its lack of feeling for the victim in her particular plight.

Is the minister not aware that an estimated 90 per cent or more of rapists go unpunished because their cases never come to court? They do not come because of the fears, traumas and problems rape victims have in terms of being prepared to go through the ordeal the woman in this case had to go through.

Is he not aware as well that for a full year this woman was prepared to testify but the delays in this case were such that it was almost two years before the trial finally occurred? That is an unreasonable kind of pressure to put any person under, given the nature of a sexual assault.

Will the minister explain as well why he has said nothing about the fact that no action has been taken about the 17-year-old boy, only two years younger than this woman, who was so afraid he simply made himself scarce every time the police went out to try to find him with a subpoena?

In return for seeking to find legitimate and above-board ways of being freed from the traumatic pressures of having to testify in this case, this woman has been jailed for seven days. The message to the one woman in nine who actually is raped and then takes a case into the courts is very clear: "Join the 90 per cent of your sisters and do not talk about it because you are going to be made the victim once again." What is the Attorney General's comment?

Hon. Mr. McMurtry: Mr. Speaker, I understand there is a resolution on the order paper for an emergency debate which may follow. I would be very happy to take the next half an hour, as would the Solicitor General (Mr. G. W. Taylor) and the Provincial Secretary for Justice (Mr. Walker), to outline the very many initiatives that have been undertaken by this government and by police forces across the province to ease this problem that is faced by victims of rape and other sexual assaults.

A great many initiatives have been taken and the problem has not been eliminated, but for the member to stand there and suggest there is not an enormous degree of sensitivity in the ranks of police officers, in the ranks of the crown attorney system and in the ranks of the various ministries that have been invoked in this problem is simply to misrepresent the record, that is all.

Ms. Copps: Mr. Speaker, with respect, I think the point, certainly as far as this woman was concerned, is that she did not feel the sensitivity of the people involved was enough to carry her through the process. In the minister's chronology game he has failed to identify the key point, that between her original testimony at the preliminary inquiry in November 1982 and March 1983, when there was an apparent turnaround, one of the co-accused was shot.

I also cannot understand -- perhaps the minister could clear this up -- why in his statement he states, "For purposes of this chronology I will note that the complainant stated she had received no threats." I hand-delivered a letter to the Attorney General last June in which, in a first-person account, the victim stated for purposes of the record, "I decided I no longer wanted to testify for two reasons: the fear of retaliation and the emotional wear and tear of going to court."

The minister will also know that the police ordered a wiretap on her home as early as February 1983 simply because of the fear she had expressed to the police.

Mr. Speaker: Question, please.

Ms. Copps: Why does the minister not believe this woman's own expression, in a letter to him that I hand-delivered last June, that she feared retaliation and that it was this fear that presented her from carrying on through the full testimony?

Hon. Mr. McMurtry: Mr. Speaker, no one has ever said that she did not have a genuine apprehension of fear or that she did not fear retaliation. The statement I made is on the record, if the member had listened, that in the meeting she had with Mr. James Stewart she said she had not received any threats, and that, of course, is quite a different thing from apprehension of threats or retaliation.

Mr. Cassidy: On a point of order, Mr. Speaker: The minister accused me of misrepresenting the record when I said that he was unfeeling and unsympathetic to the plight of this victim. That is a matter of judgement. But he seemed to imply that I was referring to attitudes of the agencies or departments of the government to which I had not referred at all, except to point out that this case has been in the works for two years and that is too long to make a rape victim suffer.

Mr. Speaker: Order. As you said or implied, it is not a point of order; it was a judgement.

Mr. Rae: Mr. Speaker, I would like to read a quotation to the Attorney General, which comes again from the House of Lords, from Lord Reid, in a criminal contempt case in 193. He says: "The Attorney General is not obliged to bring before the court every prima facie case of contempt reported to him. It is entirely for him to judge whether it is in the public interest that he should act."

We are not asking Mr. Justice Linden and Mr. Justice O'Brien in this House. We are asking the Attorney General of this province how, when he was fully aware of the circumstances and fully aware of the fact that somebody who is cited for contempt can go to jail and can be incarcerated, he can justify having taken that decision and having allowed it to go forth in the court. The contempt citation did not come from the judge; it originated with the crown attorney in the case,

I would simply like to go back to the fundamental question. Why did he and his law officers exercise their discretion in bringing this contempt application before the court when they knew or must have known full well that the implication of bringing that application before the court was that the woman involved stood a very good chance of going to jail? Why did they do it?

We are not asking Mr. Justice Linden and we are not asking Mr. Justice O'Brien. We are asking the Attorney General of this province to justify a political decision that was taken by him, exercising his discretion in the broadest sense with respect to his functions as a law officer of the crown. Why did he not exercise it on behalf of the liberty of the subject in this case?

Hon. Mr. McMurtry: Mr. Speaker, I am saddened at the fact that the leader of the New Democratic Party would attempt to turn a debate over a very complex and difficult issue into a sort of partisan battle. The fact of the matter is that the crown attorney who made the decision, a decision with which I concur, did the right thing in asking that the witness be cited for contempt when she refused to testify at the opening of the trial.

Given the decision of Mr. Justice Linden -- and one has to look at his decision in the context of what he thought of the importance of her testimony -- given the fact that she had testified at a preliminary inquiry, given the fact that an accused had gone through a preliminary inquiry on a very serious charge, I think it would have been irresponsible of him not to proceed in that manner.

3:10 p.m.

As I understand the case, he made his application. First of all, given Mr. Justice Linden's decision, in my view it would have been irresponsible for him not to do so; and he also had to lay the foundation for requesting the court to receive the transcript of the preliminary hearing in the absence of her evidence.

If the member will read the transcript which I provided to him he will see that the crown attorney stated at the end of the accused's case for the defence that the alleged victim would have the opportunity to purge her contempt. It was hoped at that stage, given the fact that the accused adduced some evidence, that she would have, the motion having been made -- and I might say that her own counsel, who was in court, did not quarrel with the citation of contempt -- the opportunity to purge her contempt by giving evidence which would clearly be in the public interest. The manner in which he conducted himself was entirely proper. Certainly, he was going to use any appropriate procedural methods to try to influence her to testify in the public interest.

Mr. Rae: Mr. Speaker, it must be one of the few cases where it is the victim who needs to have a defence counsel.

I have a question to ask the Attorney General. He mentioned the evidence at the preliminary inquiry and the evidence that was read into the record. I will quote from the Ottawa Citizen of November 22.

The evidence that was given at the preliminary inquiry and read into the transcript of the trial says as follows: "The man" -- that is one of the accused, whom I will not name in this assembly -- "then got her male friend and brought him to the bedroom, where he told him to perform a similar act, at which point C had sexual intercourse with her against her will.

"When they finished, B forced her to have sexual intercourse with him, she said." That is reading from the testimony at the preliminary inquiry.

I would like to ask the Attorney General why there has been no mention made in the course of his entire statement about the fact there was a male friend who was a witness to the events, who appears, according to the evidence at the preliminary inquiry, to have been in the same room at the time one of the acts occurred?

Why was there no mention of that in the Attorney General's statement at all, so far as I can recall, and why was that witness not called? There is no mention of that. Why have there been no proceedings brought against this individual, if it is so important that justice be seen to be done in this instance -- and we all agree that it is; why is it that it has only been brought to bear against the complainant and not against anybody else?

Mr. Speaker: Order, please. Just before you answer that question, I would ask the member or York South to withdraw his remarks where he suggested the Attorney General made a political decision. As you know, that is imputing motives.

Mr. Rae: I do not think "political" is a pejorative word. I have never used it in that context and I certainly did not intend it in this context. I intended it referring to the broad exercise of the Attorney General's discretion. If you are insisting that I withdraw the use of the word "political," although I insist I meant nothing pejorative by it -- I am proud to describe myself as a politician -- I would certainly be pleased to do so.

Hon. Mr. McMurtry: Mr. Speaker, I hope the member for York South is not suggesting that the crown attorney did not do everything within his power to successfully prosecute without having viva voce evidence of the complainant, as the victims are frequently referred to. The fact of the matter is, any way he could have established this case without her evidence is obviously the manner in which he would have proceeded.

I cannot tell the member at this time what witnesses might have been called, other than that I have been given the assurance that all witnesses who were available who could give relevant evidence were, in fact, called.

Mr. Peterson: Mr. Speaker, a simple question for the Attorney General. Does the Attorney General agree with the sentence that this young lady spend a week in jail?

Hon. Mr. McMurtry: Mr. Speaker, I simply adopt the position that was adopted by my agent, the crown attorney. The manner in which he handled the matter cannot be criticized. He submitted that in his view it was not necessary that she be incarcerated. I am not going to quarrel with his view in that regard.

Ms. Bryden: Mr. Speaker, is the Attorney General not aware that a woman is assaulted sexually in Canada every six minutes and studies show that only one in eight now reports the crime to police? Is he not aware of the extreme trauma experienced by victims of this heinous crime and their very real fear of reprisal?

In this case, the victim phoned the Ottawa Rape Crisis Centre 85 times in the three months before the preliminary hearing, which indicates the trauma.

In view of these statistics and this trauma, does the Attorney General not agree that the methods of dealing with this type of crime in the court procedures require a complete overhaul? Will he immediately ask an all-party committee of this Legislature to bring forward proposals which will propose special court and police procedures for dealing with victims of these crimes and which will protect the victims and help them overcome their very severe reluctance to report an assault?

Hon. Mr. McMurtry: Mr. Speaker, I can only reiterate what I stated before. A large number of hours is spent every week by a large number of people in the crown attorney system, the law enforcement agencies, the various ministries of the government and by the Provincial Secretary for Justice. They are looking for initiatives in order to improve the system. Nobody questions that the system needs to be improved. No one questions for a moment the seriousness of this crime or the personal anguish that is suffered by victims of this heinous behaviour.

THUNDER BAY RAPE CASE

Mr. Rae: Mr. Speaker, last week another case came to my attention and I know it has come to the attention of the Attorney General. It concerns an event that allegedly occurred on March 4, 1983, near Thunder Bay.

It concerns a victim of a gang rape who made a statement to the police on March 5, 1983. On May 3, 1983, she met the assistant crown attorney. Charges were laid and on May 9, 1983, the first preliminary hearing was held. There were many remands and on August 8 the preliminary was set to continue.

Throughout, the woman was prepared and in fact adamant to testify, determined to testify. One of her friends was afraid; in her own words she was petrified. She said the men were animals. She was very frightened and was not prepared to testify at the hearing on August 8.

On August 8, the victim was advised by the crown that he was withdrawing the charges. He did so one hour later. The explanation given to her was that once she had been raped by several men it might be argued she had consented. The victim insists she never did.

Mr. Speaker: Question, please.

Mr. Rae: She was also told her alcohol level was high and the facts would make her look had on the witness stand. She says, and says to this day as the Attorney General is fully aware, that she does not care about the previous evidence or any other attempts that may be made to destroy her character on the stand, she wants to go ahead. She is determined to go ahead and is prepared to testify in this case whatever may come.

Mr. Speaker: Question, please.

Mr. Rae: I am raising this today because the discrepancy between what the crown did in this case and what it did in the other case seems so enormous. Is the minister prepared to investigate the case? Is he prepared to see that justice is done in this instance with respect to this victim of what would appear to be an extremely violent crime?

Hon. Mr. McMurtry: Mr. Speaker, I cannot honestly state at this moment whether I have been advised of the circumstances of this case but I certainly will look into it and advise the honourable member opposite as to any views I might have in relation to the conduct of the case to this time.

Mr. Rae: The victim wrote to the senior crown attorney three times. She received no acknowledgement. She wrote to the Attorney General on September 29 outlining the facts of her case and she received the following reply on October 6. The letter said: "I wish to acknowledge your letter of September 29 regarding your concerns with respect to the withdrawing of criminal charges in a case in which you were the victim involved. I am looking into the matter and will write to you again when my information is complete."

3:20 p.m.

It is now nearly two months since that letter was written from the minister's office. Again, it was about somebody who was a victim of a crime in March of this year. Does the Attorney General not feel it is essential that justice not only be done but be seen to be done, and be seen to be done with some attention and alacrity in those instances where people are prepared to testify and where it does, obviously, cause such extreme trauma to the victim?

Hon. Mr. McMurtry: I have absolutely no quarrel with that statement. I will certainly investigate immediately to find out what is causing the delay in our response.

Ms. Copps: Mr. Speaker, the minister will no doubt be aware that in the discussions we have had on this issue over the last couple of days there are many instances across the province where women who are victims find themselves in difficulty either in terms of testifying or not proceeding to testify. I wonder if the Attorney General would give us an assurance today that he will follow the suggestion made by the executive director of the Ottawa Rape Crisis Centre, Cindy Moriarty, that a high-level group of people across this province from the judiciary and the police, as well as people working in the field of rape crisis, convene a discussion group to look at ways of changing the system to afford more protection to the victim as she or he works his way through the system. Will the minister give us that assurance today so that the kinds of incidents that have been raised in the House today and on Tuesday will not be repeated in the future?

Hon. Mr. McMurtry: Mr. Speaker, I can assure the honourable member opposite, simply, that this matter is under constant review.

Mr. Rae: One of the disturbing features of the transcript the Attorney General has given to us is a statement from the assistant crown attorney, who said in response to a question from Mr. Justice O'Brien, "If you could perhaps direct that comment to Mr. Greenspon, since I haven't talked to the complainant for some time." That was the statement by the assistant crown attorney who was responsible for taking the complainant through the very difficult and traumatic evidence she was expected to give at a trial with respect to a particular accused.

Now we have an instance of a problem with a crown attorney deciding, in the space of a very short time, that he is dropping the case, where the complainant is ready to appear, wants to appear and is ready to provide evidence and see that justice is done.

Mr. Speaker: Question, please.

Mr. Rae: Will the Attorney General please consider the impact the lack of discussions among his crown attorneys and officers of the crown and the victims in this case has on the outcome and conduct of these trials and these matters? It is clearly raising a problem.

Hon. Mr. McMurtry: In this case, I do not know how much contact there was. At some point in the proceedings -- I cannot be precise about exactly when that was -- it was made clear to the crown attorney that the victim would meet only in the company of somebody from the Rape Crisis Centre and a lawyer, which was her right, but it inhibited communication to some extent.

I am not quarrelling with her right to insist on the presence of these other people, but I want to indicate that some sears ago I instructed the crown attorney system to ensure, as best as is humanly possible, that one crown attorney follow the case through from the beginning to the conclusion of the trial. In some of the larger centres, we were concerned that different crown attorneys were being involved. The issue I raised and pressed home at that time was that there were victims of sexual assault who understandably regarded as a stranger the crown attorney conducting their case and often asking very personal questions. In my view, this is totally unsatisfactory.

Certainly, the instructions have gone throughout the system continuously that one crown attorney, wherever possible, should follow the case through from the beginning to its conclusion and that he should establish a relationship with the victim that will allay, to the extent it is humanly possible, apprehensions and fears, and enhance the confidence she will have both in the crown attorney conducting the case and in the justice system as a whole. Obviously, that is an important issue.

TENDERING PRACTICES

Mr. Conway: Mr. Speaker, I have a question to the first minister. The first minister will recall that a week ago today he encouraged me and other members of the public accounts committee to await the testimony of Mr. Robert Carman, Secretary of Management Board of Cabinet, with a view to clearing up some of the unanswered questions about the Provincial Auditor's report of November 17 with respect to four items in the Ministry of Government Services.

The first minister should know that this morning Secretary Carman indicated that, in so far as the critical question of the compliance of the ministries of the Ontario government with the Ontario Manual of Administration is concerned, the trail of responsibility leads quickly and directly to the Premier's office. That being the case, what is the Premier prepared to announce in this House this afternoon by way of new initiatives to guarantee that there is vigorous and widespread compliance by all ministers of the government with the Manual of Administration?

Hon. Mr. Davis: Mr. Speaker, I am really not aware that the secretary -- a very able person; I am sure he impressed the members of the public accounts committee -- suggested that was the case. I cannot tell members that because I was not there.

From listening to and reading some of the observations made at the public accounts committee and from my own knowledge of government and how it functions, while I do not expect the member or his colleagues to agree with me -- and I understand that -- in terms of the guidelines for the administration or management of this government, not necessarily supported by but from any critical analysis of the Provincial Auditor's report over many years -- and I have not read this year's yet, obviously -- I would be surprised, when one takes into account the amount of administration, the degree of expenditure and the degree of approvals, etc., if one did not find that the system in this province has worked, on balance, extremely well. I do not think there is any question about that if one looks at it objectively and compares it to just about any other government in this country.

Mr. Cooke: How about answering the question?

Hon. Mr. Davis: Well, if you want to provoke me --

Mr. Speaker: Never mind the interjection, please.

Hon. Mr. Davis: I am trying to deal with this in a rather reasonable fashion without provoking the member for Renfrew North (Mr. Conway). I sat here and listened very carefully to the discussion on what I think is a very important matter in the earlier part of the question period. I did not interrupt the member for Welland-Thorold (Mr. Swart) or anyone else when I listened to something other than questions, when members opposite were expressing a point of view. On the matter we were addressing earlier, I do not quarrel with that, as a matter of fact, because I think it is important. If the member will extend to me the courtesy of trying to relate, having never been present at the public accounts committee --

Mr. T. P. Reid: You refused to come.

Hon. Mr. Davis: Eh?

Mr. Speaker: Order. Never mind the interjection.

Hon. Mr. Davis: Mr. Speaker, I think it is quite clear -- and I am not objective, but I believe I am relatively so -- in terms of the existing procedures, that the procedures and the final review by the auditor provide a very excellent control mechanism. I do not say for a moment there will not be examples in the auditor's report of how things could and should be improved or where errors in judgement were made; that is why we have the auditor's reports.

I think that in the existing system there can be those occasions, because there is some discretion in the ministries, where there may be some difference of opinion as to whether the manual was followed or not. I think this is the case in one or two of the matters before the public accounts committee. Those are grey areas where judgements have to be made.

I think it is also fair to state that I am concerned that perhaps the Manual of Administration or the way it is administered may not include all of those situations that could conceivably emerge in the functioning of government. I shall be asking the Treasurer (Mr. Grossman) and the Chairman of Management Board of Cabinet (Mr. McCague) to review it and see whether any alterations should be made to the system to create any measure of improvement.

3:30 p.m.

However, I reiterate, and I say this objectively, that when one looks at it in balance -- the control system, the functioning of Management Board, the approval process -- it has worked very well. I read the Auditor General's reports and I read reports from other provinces and, on balance, I think we do very well here in this province. That does not mean there cannot or should not be some alterations or improvements. I am as interested as anyone in finding ways to improve the system.

Mr. Conway: What remains abundantly clear is that we have in this province, under the Premier's guidance and employ, a senior mandarin, the Deputy Minister of Government Services, who, according to the Provincial Auditor, has wilfully violated the provisions of the Manual of Administration, which he has a central responsibility to administer for his department.

This is a senior deputy minister who, in addition to the auditor's suggestion of wilful violation of the Manual of Administration, has now gone further and charged that his former boss, the Premier's parliamentary colleague the member for Lanark (Mr. Wiseman), has not told the truth about what he knew about contracts involved in this controversy.

This is a deputy minister who has wilfully avoided the sanctions of the Manual of Administration and who has called his former boss, our parliamentary colleague the member for Lanark, a liar.

What disciplinary sanction is the Premier prepared to take in view of the fact that Secretary Carman told the public accounts committee this morning that the responsibility clearly and finally is the Premier's?

Hon. Mr. Davis: I am not sure what Mr. Carman said; I was not there. I do not recall the exact wording of the auditors report to the public accounts committee. I do not know whether he used the word "wilfully" or not. Perhaps the chairman of the public accounts committee, who looks at these things pretty fairly and pretty objectively in most cases, can help me as to whether the Provincial Auditor said that Mr. Gordon wilfully, intentionally -- whatever terminology, I am not certain --

Mr. T. P. Reid: I believe the word "intentionally" was said.

Hon. Mr. Davis: Did he use the word "wilfully" or not?

Mr. Wildman: It is not a joke.

Hon. Mr. Davis: Of course it is not. I do not think one uses words that were not there. I am just asking --

Mr. Conway: The Premier fired the member from Lanark. Why does he not fire the deputy minister?

Hon. Mr. Davis: Oh, come on, sit down.

Mr. Speaker: Will the member for Renfrew North please resume his seat?

Mr. Conway: The Premier hired a deputy minister who called one of our colleagues a liar. If he wants to read it, there it is; he can read it himself.

Mr. Speaker: Order. The member for Algoma (Mr. Wildman).

Mr. Wildman: Mr. Speaker, I have a supplementary question for the Premier. In his statement this morning, Secretary Carman did, in fact, say that the final responsibility lay with the executive council and the Premier. He pointed to and quoted from the letter that was sent by the Premier to all ministers in mid-November, which stated, "I expect that everyone will adhere to the provisions of the manual without exception."

Is that not an indication that the Premier is taking responsibility? If he is taking responsibility, what action does he intend to take to monitor the compliance with the request in his letter to ensure that there will be sanctions taken against those senior members of the administration if they do not comply?

Hon. Mr. Davis: Mr. Speaker, I tried, before the outburst of the member for Renfrew North -- no, I will not comment.

I think that letter made it abundantly clear I expect the deputy ministers to comply with the guidelines of the manual -- whatever terminology one may wish to use. I think it is fair to state that in the literally thousands of administrative decisions which are made that would relate to the manual, 99 per cent -- whatever per cent -- are within the spirit or the rules of the manual itself.

As I have said, it is obvious to me that there may be some areas for improvement of the manual, although I happen to think it is probably the best in Canada, or if the manual is not complied with, what improvements might be made. I can only say to the honourable member that I am as interested as he or anyone else is in how the Manual of Administration or its impact is administered. I think we have made very real progress, if one looks back over the history of the auditor's reports, in the way the affairs of this province have been managed. I am not going to say one will not find examples of where it can be improved. We are looking for improvements every day of the week.

As I said, I will be asking the Treasurer and the Chairman of Management Board to see where there could be needed improvements made in the existing system. I have never suggested to anyone in this House that in any system involving human beings where judgements are made we are going to achieve perfection. I know some of the member's colleagues think they have achieved perfection in their own way.

I know the member for Algoma is too humble ever to put himself in that category. The member for Renfrew North is not. I understand that; I am making it quite clear that humility will never be one of the member's virtues. That is the member for Renfrew North, not the member for Algoma.

Mr. Eakins: It is funny to you, isn't it?

Mr. Speaker: Order.

Mr. Conway: For a guy who fired and crucified Donald MacAlpine --

Mr. Speaker: Order, the member for Renfrew North.

Mr. Conway: Why don't you treat him the way you treated Donald MacAlpine or Morley Rosenberg? Why don't you fire those who lie?

Hon. Mr. Davis: How about Leonard Rosenberg?

Mr. Speaker: Order. The member for Renfrew North will not be cautioned again.

Mr. Cunningham: He bought two tables at your dinner.

Hon. Mr. Davis: I was the mayor of Vancouver. They are delighted with the transit system.

Mr. Speaker: Order.

Mr. Philip: Mr. Speaker, I have a new question on the same topic to the Chairman of Management Board.

This morning Robert Carman, Secretary of Management Board, admitted that in the fall of 1982 he knew the Telepac data base developed by the Ministry of Government Services was done without the approval of Management Board as required in the Manual of Administration.

He further stated publicly that he informed the Chairman of Management Board of that at that early date. Was the minister informed and, if so, did he inform the Premier or the then Minister of Government Services, the member for Lanark, or the cabinet that there was a violation of the Manual of Administration? What action did he take to correct that violation of the Manual of Administration?

Hon. Mr. McCague: Mr. Speaker, I did not take any action.

Mr. Philip: By the minister's answer, I assume he says that as early as the fall of 1982 he was informed and did have that knowledge.

If, as Chairman of Management Board, he does feel he has a responsibility, does the minister not then feel that as a member of this Legislature or as a citizen of this province he has a moral obligation, knowing there is a violation of the taxpayers' interests, to report it to the appropriate authorities, be it the minister, the cabinet or the Premier?

Why did he not take on that responsibility which is his, not only as a minister and a member of cabinet, but also as a citizen of this province?

Hon. Mr. McCague: I never felt it was my responsibility to inform the auditor of that.

Mr. Wildman: What is the minister's responsibility?

Mr. Speaker: Order.

Mr. Conway: Would the Chairman of Management Board not agree with me that it is truly passing strange that the operative word on compliance with the Manual of Administration that now governs the new behaviour within the government of Ontario is a letter written by the first minister and, according to his secretary, Mr. Carman, written on November 16, the very day that the auditor's damning indictment of the conduct of Alan Gordon on the cases mentioned in the committee was made public? Is that not only passing strange, but perhaps just too much to believe is coincidence?

Interjections.

Mr. Speaker: Order.

3:40 p.m.

ASSISTANCE TO FARMERS

Mr. Riddell: Mr. Speaker, I will put my question to the Treasurer in the absence of the Minister of Agriculture and Food (Mr. Timbrell) and in the absence of the Provincial Secretary for Resources Development (Mr. Sterling). I know the Treasurer is most interested in the concerns of farmers, as he told the Ontario Federation of Agriculture delegates the other day that he was going to pump more money into agriculture.

Mr. Speaker: Now for the question.

Mr. Riddell: If the Treasurer is going to help the farmers, I wonder whether he is aware that last week Niagara Grain and Feed Ltd., an elevator company in Smithville, went into receivership. Is he aware that up to 100 farmers have money or grain owing to them by this company, with some individual farmers reported to have anywhere from $40,000 to $100,000 owing to them? They stand to lose this money.

Because of the lack of protection offered by the Grain Elevator Storage Act to farmers in situations such as this -- a point that my colleague the member for Kent-Elgin (Mr. McGuigan) and I brought out when we debated that bill in the Legislature -- some farmers are now stuck with worthless cheques and others with receipts for grain that simply does not exist. It is reported that 35 per cent of the grain in storage for the farmers has now left the storage facility and gone elsewhere.

In view of all this, can the Treasurer tell us what recourse is left for the farmers to recover their money and their grain in this case, particularly when we consider that they have very little control over the price structure or anything that happens in the marketplace? How are these farmers going to get their money? Or is it going to be another case of farmers going into bankruptcy?

Hon. Mr. Grossman: First, Mr. Speaker, I am glad the honourable member had an opportunity to read the government's reaffirmation of its extraordinary commitment to the agricultural community as outlined first by my colleague the Minister of Agriculture and Food on Tuesday and again by me yesterday.

I should also indicate that having spent the morning here yesterday, it was reported to me that the Minister of Agriculture and Food did a darned site better than the agriculture critic for the Liberal Party last Tuesday at the OFA.

Hon. Mr. Davis: That is the report we get.

Hon. Mr. Grossman: Then again that is just carrying on --

Hon. Mr. Davis: His colleague the member for Renfrew North (Mr. Conway) is laughing because he knows it is true.

Mr. Speaker: Back to the question, please.

Hon. Mr. Grossman: That is just carrying on an old tradition --

Hon. Mr. Davis: You should try it. It would be a new dimension.

Mr. Kerrio: Putting boots on Timbrell doesn't make him a farmer.

Mr. Speaker: Order.

Mr. Peterson: Who's more rural? You or Timbrell?

Hon. Mr. Davis: Me.

Hon. Mr. Grossman: All of us on this side are in touch with the people no matter where they are located, I can say.

Mr. Speaker: Thank you very much, Treasurer.

Hon. Mr. Grossman: I have not answered the question yet.

Mr. Speaker: The member for Huron-Middlesex (Mr. Riddell); supplementary.

Hon. Mr. Grossman: He cannot have a supplementary; I have not answered the question.

Mr. Speaker: Order. The member for Kent-Elgin (Mr. McGuigan).

Mr. McGuigan: Mr. Speaker, the minister has not answered the question, but would he agree as we pointed out a few months ago that this is show-window legislation, which really does nothing to solve the farmer's problem when he is caught in a bankruptcy?

Will he assure us that the farmers who are affected in this receivership will be paid for their products? Furthermore, what will he do to ensure other elevators that may be in the same category this very day are not taken over by the banks and the farmers again left in the lurch? What will he do to ensure that payment is made to the farmers and that other elevators do not do the same thing?

Hon. Mr. Grossman: We did not get a chance to complete the entire answer.

Mr. Riddell: Well, forget it. I pretty well know what to expect from you anyway.

Mr. Speaker: Order.

Hon. Mr. Grossman: The member did not want the answer; he wanted to ask the question.

Mr. Riddell: You are not serious. You do not care about the farmers. Sit down.

Mr. Speaker: Order.

Hon. Mr. Grossman: I ask the member, is it not the case that the situation is in the hands of the receiver, who is running the affairs of that enterprise in such a way that all those interests would ordinarily be protected? I think it is in the hands of the receiver. If that is the case, then I am sure the receiver under the laws of the province is acting in an appropriate way.

None the less, obviously my colleague the Minister of Agriculture and Food, who is monitoring those situations, even those where the receiver has been put in place, will review that circumstance and satisfy himself with regard to the very concerns the member has raised. This has been the history in the past, and I am sure it is the case in this one.

PETITION

CONTEMPT OF COURT ISSUE

Mr. Rae: Mr. Speaker, section 40 of the Ministry of Correctional Services Act says:

"Nothing in this act shall be construed as affecting or impairing or as intending or purporting to affect or impair the powers of the Governor General of Canada or the Lieutenant Governor of Ontario to grant a reprieve, pardon or commutation of sentence in any case."

I would like to submit the following petition to the Lieutenant Governor and the Legislative Assembly:

"Your Honour, the undersigned members of the Legislative Assembly of Ontario deplore the imprisonment of the complainant by Mr. Justice O'Brien of the Supreme Court of Ontario for contempt of court and urge you to review all possible ways to remedy this injustice and that this conviction be expunged from her record."

It is signed by the members of the New Democratic Party caucus.

PROVINCIAL AUDITOR'S REPORT

Mr. Philip: On a point of privilege, Mr. Speaker: I and other members of the standing committee on public accounts were anxiously awaiting the annual report of the Provincial Auditor this afternoon. When my assistant went to the post office and asked why it was not in my box, she was informed she could not receive it. I then telephoned the post office and was informed that the post office had instructions not to release this report. However, I was able to obtain a copy from the press lounge.

What instructions were issued to the post office, and why did some people have access to the report before other members of the committee and other members of the House were able to have access to this report?

Mr. Conway: On the same point, Mr. Speaker: As a sometime member of the standing committee on public accounts, I too was anxiously awaiting the arrival of the report. In my case, it did arrive. Some nice courier brought it in to the leader, but not to the membership at large, which I think might be more useful. However, through our leader, we received a hand-delivered copy around 2:30 p.m.

Mr. Speaker: Various members, including the member for Etobicoke (Mr. Philip), have sent me a note drawing this to my attention. I am not sure whether procedure has got out of step or whether somebody put the cart before the horse. However, I will be tabling that report this afternoon at the appropriate time. I want to emphasize that I have not seen the report myself, nor have I issued any instructions as to its distribution.

REPORT

STANDING COMMITTEE ON RESOURCES DEVELOPMENT

Mr. Barlow from the standing committee on resources development reported the following resolution:

That supply in the following amounts and to defray the expenses of the Ministry of Natural Resources be granted to Her Majesty for the fiscal year ending March 31, 1984:

Ministry administration program, $52,365,000; lands and waters program, $114,855,500; outdoor recreation program, $74,574,000; resource products program, $142,010,000; resource experience program, $9,159,000; and

That supply in the following supplementary amount and to defray the expenses of the Ministry of Natural Resources be granted to Her Majesty for the fiscal year ending March 31, 1984:

Lands and waters program, $9,925,000.

3:50 p.m.

MOTION

COMMITTEE SITTINGS

Hon. Mr. Wells moved that the standing committee on social development be authorized to meet tomorrow, Friday, December 2, 1983, and in the afternoon of Thursday, December 15, 1983.

Motion agreed to.

INTRODUCTION OF BILLS

IMMUNIZATION OF SCHOOL PUPILS AMENDMENT ACT

Hon. Mr. Wells moved, seconded by Hon. Mr. Grossman, first reading of Bill 134, An Act to amend the Immunization of School Pupils Act.

Motion agreed to.

Hon. Mr. Wells: Mr. Speaker, as members of this House will recall, the immunization legislation passed a short time ago was designed to protect our school children from the spread of six dangerous diseases. The legislation empowers the medical officer of health to order the suspension from school of pupils who are not immunized or in the process of being immunized, subject to exemptions on religious or medical grounds.

The amendment I am proposing today concerns the appeal mechanism. The current law provides that an order of a medical officer of health may be appealed to the Health Facilities Appeal Board, which has been established under the Ambulance Act. This amendment redesignates the board that will hold the hearings as the Health Protection Appeal Board, to be established under the Health Protection and Promotion Act, 1983. This latter act is to be proclaimed very shortly.

The Health Protection Appeal Board, which will have jurisdiction over other public health matters, is clearly the most appropriate forum for appeals under the immunization statute. Parents will have 15 days to file an appeal. The amendment will require the board to hold a hearing within a further 15 days of receiving such a request. Therefore, hearings will normally be held by the end of the initial suspension period of 20 school days or four weeks.

MALTON MEMORIAL RECREATION ASSOCIATION ACT

Mr. Robinson moved, on behalf of Mr. Jones, seconded by Mr. Shimko, first reading of Bill Pr30, An Act to revive the Malton Memorial Recreation Association.

Motion agreed to.

CONSTRUCTION LIEN AMENDMENT ACT

Hon. Mr. McMurtry moved, seconded by Hon. Mr. Wells, first reading of Bill 135, An Act to amend the Construction Lien Act.

Motion agreed to.

Hon. Mr. McMurtry: Mr. Speaker, members will recall that on January 27, with the unanimous approval of this assembly, the Construction Lien Act was enacted. It came into force on April 2.

A problem subsequently arose in connection with mortgage loans to home buyers. In part because of confusion by lenders about the new legislation and in part because of the priority given to lien claimants over mortgagees to the extent of deficiencies in the owners' holdbacks, mortgage lenders began withholding from home buyers on closing approximately 10 per cent of the value of the house.

House builders refused to close without receiving full payment. Therefore, as a practical matter, to obtain possession of the house, the home buyer was forced on closing to arrange interim personal financing until the lien period expired. The costs of the additional financing, though small, occurred at a time when a home buyer was ill prepared for the costs or the additional worry.

To avoid harm being done to home buyers and to the residential housing sector, and having been asked to take action by members of each of the political parties represented here, including, I recall, the member for Oshawa (Mr. Breaugh), I made a statement in the Legislature on May 20 to the effect that I intended to introduce amendments to protect home buyers and those lending to them. I also said I intended that the amendment is be retroactive to April 2.

In that statement, knowing that the members of this assembly wanted corrective action, I asked the lenders to trust that the amendments would be made and to act on my statement of intent. I am pleased to say that most lenders altered the practice of withholding from home buyers on closing.

The primary purpose of this bill is to amend the legislation to protect home buyers and those lending to them. In addition, the bill clarifies certain other provisions of the act and corrects a few technical errors.

Drafts of the proposals have been revised by many, and I have received letters acknowledging their approval from the Canadian Bankers' Association, the Council of Ontario Contractors Associations, the Housing and Urban Development Association of Canada, Ontario branch, and a significant number of lawyers involved in conveyance

PROVINCIAL JUDGES AND MASTERS STATUTE LAW AMENDMENT ACT

Hon. Mr. McMurtry moved, seconded by Hon. Mr. Wells, first reading of Bill 136, An Act respecting the Benefits of Provincial Judges and Masters.

Motion agreed to.

Hon. Mr. McMurtry: Mr. Speaker, this bill is intended to clarify the extent of the power of the Lieutenant Governor in Council to make regulations concerning the benefits of provincial judges. The Ontario Provincial Courts Committee, which makes recommendations concerning judges' benefits, currently has pension and survivor benefits under review. The committee has requested that the regulation-making power be clarified to ensure that the government is able to respond quickly once the committee completes its consideration of the issues and submits specific recommendations.

The bill also provides a statutory foundation for the Ontario Provincial Courts Committee. This represents a commitment on the part of the government to a process that guarantees an independent review of the benefits to which judges are entitled. The bill requires recommendations of the committee and an annual report to be tabled in the assembly. These features of the bill also implement a recommendation of the committee.

Mr. Speaker: The member for Essex South.

Mr. Mancini: It is helpful if you look at both sides of the House, Mr. Speaker.

Mr. Speaker: I always do.

Mr. Mancini: Thank you. After you finish that one particular side.

TOWN OF HARROW ACT

Mr. Mancini moved, seconded by Mr. Ruston, first reading of Bill Pr50, An Act respecting the Town of Harrow.

Motion agreed to.

Mr. Mancini: My plurality in Harrow is quite extensive, Mr. Speaker, and I hope the bill will add to it.

Mr. Speaker: That sounds like a political statement.

PROVINCIAL AUDITOR'S REPORT

Mr. Speaker: Before proceeding with the orders of the day, I beg to inform the House that I have received and am laying upon the table the report of the Provincial Auditor for the fiscal year ended March 31, 1983.

4 p.m.

Mr. Breaugh: Mr. Speaker, on a point of order: I would like to have you take into consideration the fact that members previously raised the matter of the report of the Provincial Auditor and its availability. Would you make a ruling about how some of those reports were available before they were tabled in the Legislature? I know you have been asked to look into the matter of distribution; however, while you have that matter under consideration, would you also take a look at the tradition that documents such as that are not released until they are tabled in the Legislature?

Mr. Speaker: I can only say that is not within my jurisdiction. However, I was just as surprised as you. It is my understanding that what you have said is true and I shall endeavour, from a personal point of view, to find out what happened.

MOTION TO SET ASIDE ORDINARY BUSINESS

Mr. Mitchell moved, seconded by Mr. MacQuarrie, that pursuant to standing order 34(a), the ordinary business of the House be set aside in order to debate a matter of urgent public importance, namely, the incarceration, on Monday last, of a female complainant of rape, by Mr. Justice O'Brien in Ottawa, Ontario.

Mr. Speaker: I shall listen to the member for Carleton for up to five minutes as to why he thinks that the ordinary business of the House should be set aside this afternoon.

Mr. Mitchell: Mr. Speaker, I have tabled a motion pursuant to the particular standing order because I can assure you, sir, this matter is of urgent public importance. I have not taken this step without giving the matter due consideration.

No member of any party would wish to delay or obstruct the orderly conduct of the business of this House by introducing a motion on a trivial or frivolous matter. I am confident the members will agree the questions which have been raised because of the incarceration, last Monday in Ottawa, of a woman complainant of rape are neither frivolous nor trivial.

It is in the interests of the House and the citizens of Ontario that we take this occasion to debate and discuss some of the issues raised by this event. Such a debate would, I hope, help to clarify some of the questions about the administration of justice in this case and perhaps would resolve any misconceptions the public might have about the integrity of the criminal prosecution system in this province.

The issues raised by the case mentioned in the motion extend beyond the case itself. I am convinced this debate is necessary because if our system of justice is to work and to continue to he regarded as an effective and legitimate means of protecting and furthering the public interest, it is essential that it must enjoy the support of the citizens.

There are indications, with which I am sure all members are familiar, that this public support is decaying. People are becoming cynical about the ability of our courts to dispense justice, about the fairness of sentencing and the operation of the parole system. They are frustrated by the long delays and backlog in our courts; they are concerned about the treatment of victims of crime and, on the whole, worried the justice system is no longer capable of doing the job it was established to do.

People who perhaps for the most part do not understand the judicial system are confused and angered by decisions such as the one delivered in the Ottawa case, decisions which on the face of them appear to bring the administration of justice into disrepute. If we do not take every opportunity to discuss these decisions openly, to attempt to explain the actions and workings of our courts, then we can only expect that the public cynicism about our system of justice will continue to grow.

It is imperative that we as legislators do not allow this to happen. We must encourage and participate in open debate on the justice system. We must also be ready to take whatever action is necessary to protect the integrity of that system and of the people who serve it. We must also be ready to make any changes that would improve the administration of justice in our province. I hope this debate will be a first step in that direction.

In closing, I want to make it perfectly clear that in introducing this motion I intend no criticism of the judge involved. The law is the law and he has served the law. However, his decision has been the cause of considerable public concern, which in my opinion this House must address. I hope all members will support this motion.

Ms. Copps: Mr. Speaker, I and my party rise in support of the motion.

First of all, may I say how happy I am that the motion came from two members on the government side of the House, one of whom, the member for Carleton East (Mr. MacQuarrie), is the parliamentary assistant to the Attorney General (Mr. McMurtry). I am happy they have seen fit to recognize the very difficult situation we have seen expressing itself, not only over the last week and not only over the judgement that was exercised but also over the past two years in the life of this woman who now finds herself in jail.

I was particularly distressed and indeed disappointed in the statement we heard from the Attorney General today when, in a very cheap and disgusting way, he pointed out that on the wiretap the victim had received calls about so-called nude dancing. I think that was completely inappropriate. Unfortunately, it is a microcosm of the kind of mentality that has allowed this woman to end up in jail for a crime she did not commit.

It is certainly an indication of the kind of mentality we see when the Attorney General, in the course of debate in this Legislature today, inadvertently called the woman "the defendant." The fact of the matter is that because of the difficulty of the justice system in providing this woman the protection she needs to carry through and the fact that she was found in contempt by the judge, this woman has become the defendant in this case. The whole system has turned its back on this woman and the difficulties she has suffered over the past two years.

It is Imperative that we put on the record in this House the series of events that led up to her decision not to testify. I find it particularly disconcerting that in his 26-page statement to the Legislature. in which the Attorney General apparently attempted to put all the facts on the record, he suggested the victim was not the subject of threats but neglected to mention the fact that one of the co-accused in the case -- after the woman's testimony at the preliminary hearing and before she was to give her testimony at the trial -- was shot and wounded. That same co-accused, in the course of justice, subsequently pleaded guilty to a lesser charge of common assault and was allowed to go free.

It seems to me that what we have to look at is not only the deep injustice that was perpetrated on this woman, who has herself become a victim of our justice system, but also how this situation will impact on women all over this province who find themselves in the difficult position of having to carry through and follow up with the testimony and evidence following a rape.

The crime we are talking about is a crime against society, but it is also a very individual, personalized crime. It is imperative that we recognize that this individual should not be further victimized following the horrendous situation in which she was gang-raped by three individuals.

4:10 p.m.

The comments by the honourable member who put the motion are very clear. It is not a question of whether this incident did occur; what is called into question is why our justice system could not have supported this woman through the two years that led up to her refusal to testify and how the crown persisted in the face of evidence that this woman was unprepared to testify out of fear for herself, fear for her family and indeed out of the whole trauma that was evidenced by testimony from the Ottawa Rape Crisis Centre. What is called into question is how this woman can find herself in jail and how the rapists can walk free.

It is that question which has not been answered to our satisfaction by the Attorney General who, in his statement today, attempted to minimize the threat that was faced by that woman, who attempted to minimize the very real fear that she felt -- fear for her safety subsequent to the shooting of one of the co-accused and it is this very fear which haunts every woman who has to carry her concerns through the judicial system on a rape case.

When I asked the Attorney General in question period whether he was prepared to convene a think-tank of experts in the field, I was not being facetious and I was not being political. I was joining with some members on the government side of the House and the members of the third party who recognize that this particular incident is not an isolated one. It occurs in many instances in many communities across Ontario. What this situation has done is highlight the need for an overall, long-term strategy which should be initiated at the level of the Attorney General and at the level of the government of Ontario; when instead, we have an Attorney General who simply minimizes her concern and minimizes the very real fears that she felt which led her to a very difficult decision.

I rise to join with the members on the government side and I am sure we will be able to participate in a very full debate on the subject.

Mr. Renwick: Mr. Speaker, I rise to speak briefly in favour of the motion. I support the motion put forward by the member for Carleton, seconded by the member for Carleton East, and to which the member for Carleton has spoken and the member for Hamilton Centre has spoken.

I want to direct m remarks purely and simply to that portion of the rules that indicate that the discussion must relate to a genuine emergency calling for immediate and urgent consideration.

I think the emergency is apparent. A complainant in a case before a court of justice in this province is now in jail and I think the liberty of the subject must be a primary and always a first concern to members of this assembly when there is any semblance whatsoever of improper detention of such a person.

I think that in itself would persuade me, and I submit, sir, should persuade you, that this is a matter of urgent public importance. It is more so a matter of such importance because the Attorney General has very clearly in his statement today and in his comments earlier indicated that there is no basis for him to have dealt otherwise with the question of the contempt and the question of the sentence.

I, sir, believe it is important that members of the assembly, feeling as strongly as they obviously do on this issue, must have an opportunity to place before the Attorney General and their colleagues in the assembly the reasons he should have taken action to release the person imprisoned.

A further matter which I think is of importance to me, indicating the emergent nature of this matter, is that the court gave a very clear single signal in acceding to the citation for contempt and awarding the punishment which the court did award and which has to be debated because it becomes a matter of public policy. The signal was very clear: If women subjected to sexual or other assault find themselves in a position of fear, psychological or otherwise, they run a very severe risk of being imprisoned if they bring forward a complaint against a person who has caused that.

I think it is important that this House, therefore, register its view of what public policy should be on this matter so that, at the earliest possible moment, no false signals be given to the public of this province or to the other members of the judiciary as to the position which this House takes on a matter not just of legal policy but of important public policy.

It is also very urgent for this House to express its views because the term "contempt of court" which is so compendiously used by people has immense ramifications, and it does mean that a person can go to jail on citation for contempt without a trial of any kind and suffer imprisonment without the kind of due process to which we are entitled.

It is important that this House attempt to make some effort to understand the nature and content of the concept of contempt and the severe limitations that the administration of justice over the years has, in its wisdom, imposed upon itself in the use of that power to find contempt and punish for contempt.

It is my submission that there are very serious questions that the judge aired as a matter of law in the decision he made in this case. It is important, therefore, to me and I believe to other members of the assembly, that this is a matter of urgent public importance and must be debated today in this assembly at the earliest possible opportunity.

Mr. Speaker: I have listened carefully to the submissions put forward by members of all parties. Obviously there is a unanimous feeling among the members that this should go forward. The motion is in order and in my view it does represent a matter of urgent public importance. Therefore, the only question before the House is, shall the debate proceed?

Motion agreed to.

CONTEMPT OF COURT ISSUE

Mr. Speaker: Before you start, I would just point out that you have 10 minutes for your submission.

Mr. Mitchell: Mr. Speaker, it is really difficult to know where to begin in the discussions today. First, I want to reiterate what I said earlier in my five minutes. I am not attacking the judge, nor am I in all honesty attacking the chief law officer of the crown, but rather a perception that is happening out there that our justice system is decaying.

My comments relate as much to the degree of public confidence in the justice system as they do to the case in question. I think public concern with the state of the justice system was summed up by a constituent of mine in a letter to me some weeks ago. She was writing to express her dissatisfaction with the justice system. Her concluding remarks are worthy of note. She said it was her impression that justice has become a of the justice system. I suggest to the members the view that justice has become as victim of the justice system is one that is shared by many of our citizens.

I understand a similar view had been expressed by the chairman of the Federal-Provincial Task Force on Justice for Victims of Crime. The chairman of the task force noted last August that Canadians were growing increasingly disillusioned with the justice system in our country.

4:20 p.m.

The danger is that decisions such as the one delivered in the case before us will hasten that loss of faith unless they are properly explained to the public. It is important that the public be aware of the reasons for judgement and for the principles which inform of the operation of the criminal justice system.

I am sure the reaction of any citizen upon first reading of this case was one of outrage. That is why this constituent was writing to me. She was writing to me specifically about this case but not of recent days. The date of this letter to me is October 24. The writer had attended some of the preliminary hearings.

I quote from her letter: "Some blame for the refusal of the victim to testily has to be placed on two factors: first, the delay in bringing the case to trial and, second, the apparent inability of the crown to convene a meeting with the victim prior to the hearing." This lady also says that the particular day she was there was in her opinion "a sad day for women, and, as a concerned individual, I wish to express my dissatisfaction with the judicial system."

I think this particular case is an instance in which our system has run amok. Certainly, our reaction has been amplified by the nature of the despicable crime which was alleged to have occurred in this case. I know I personally have a number of questions about this case, questions which I am sure many members have been asking themselves as well. For example, I wanted to know what the crown had done to protect this young woman. I wanted to know about her rights with regard to the law on contempt.

The Attorney General (Mr. McMurtry) in his comprehensive statement earlier today has attempted to answer some of these questions. I say quite honestly that it is clear from his statement that protection was offered by the crown and that the crown did offer assistance with respect to appealing her sentence. It would appear then from the minister's statement that the crown acted in a fair and sympathetic manner towards this young woman.

All members are aware that only a very small percentage of rapes is ever reported to the police and even a smaller percentage is successfully prosecuted. One reason so few victims of rape come forward is that having suffered a dehumanizing and violent assault, they do not wish to subject themselves to what can be -- I really cannot affix a word to it -- a traumatic legal process. Perhaps that is the word.

Some progress has been made through legal reform in this area and also social attitudes have changed. No longer is a rape charge regarded as a charge most likely to be laid by a woman who has changed her mind.

As for the question of whether or not the judge should have handed down the sentence he did, I do not think it is the responsibility of this House to second-guess judges. I believe the politicization of our courts is something we must avoid at all cost. If we in this House object to the decisions which result from the application of our laws, then we should change the laws.

Earlier I made mention of the growing disenchantment with our legal and judicial system. There can be no question that part of this problem can be attributed to the treatment of the victims of crime in that system. In no other case, as evidenced by the matter before us today, is the treatment of the victim of crime by our system a more emotional and sensitive issue than in the case of a victim of rape.

As I have said, I am not pointing fingers in any particular direction. Frankly, I guess I do not have the wisdom of Solomon, as I mentioned to the newspapers and all those others when they queried me as to why I was putting this motion forward. I am a husband and a father, three of my children being girls. Should something such as this have happened to any one of them, either my wife or my daughters, I am not too sure that I, as a father, would necessarily support their even coming forward and laying a charge. I know those are harsh words; none the less, it is the way I feel.

This particular case is not one which has appeared on the scene since the incarceration of the young lady. This case has been going on for quite some time. It has been a major issue in the newspaper in Ottawa for quite some time. In fact, I had a telephone call today from a teacher in Haliburton expressing her concern about what is going on and supporting the move I am taking.

There is a very grave perception out there of the judicial system. Some way has got to be found to improve on that. We have people in our ridings who are concerned about the type of sentence given down for specific cases and who contact us as members. People see this one and wonder where the justice is.

I guess what I am attempting to express to each and every one of us here today, along with drawing to the attention of those with power to change the laws and make the laws, is not only the concern of my constituents out there about this particular case but also the more personal concern I have, namely, would I let my family go through that process?

Mr. Peterson: Mr. Speaker, I am happy to rise and talk about this situation. I find that it not only deeply personally disturbs me, but it is so bizarre in so many ways. For example, it is the first time I remember that a government backbencher has proposed an emergency debate. I am not against that. I find it interesting that one of the seconders on the motion is the parliamentary assistant to the Attorney General. That is bizarre.

I tried to determine from my colleague the member for Carleton (Mr. Mitchell) the sense of urgency about this debate today. I could not find it from his remarks particularly, even though I and my party -- and I am speaking for my party -- welcome the opportunity to talk about it.

We have an actually incredible situation in front of us where, when one cuts it all down -- all the legalese, all the rationalization, through all the precedent books and through all of the Mr. Justices this, that and the other thing -- we have a case, in my view, of simple justice. It is a case where the victim has been incarcerated and where the alleged rapists have gone free.

I recognize there are legal complications. I was a lawyer once. I can understand that and I know what the precedent books say. However, I also know that institutions were put here on earth by man to serve man. If we get into the perverted sense where now -- for some ridiculous reason, precedent or whatever -- we have to sacrifice a young lady to serve the precedent books or serve the justice system only because it is there, then I say to the House we are all derelict in our responsibility.

It is an opportunity to discuss the decaying judicial system, the lack of respect which perhaps is developing, as spoken to by my friend the member for Carleton. Surely to God we have some responsibility in that diminution of respect by allowing this kind of flagrant injustice to go on right under our noses and not responding.

4:30 p.m.

It seems to me the example we set, the signals that go forward from us in this Legislature as well as from the courts, are key in this matter. Contrary to my friend the member for Carleton, I believe we do have a right -- and I would agree, I think, with my friend the member for Riverdale (Mr. Renwick) -- in this House to assess any judge and pass judgement on any judgement made, because we are charged with being the lawmakers of the land and we have failed in this case.

I believe Mr. Justice O'Brien could have come to an opposite conclusion within the precedents of the law. He exercised his discretion and, in my view, he was wrong. He has sent out the wrong signals and has not served this province well. I do not like to say that, but that is my view of the situation and it is my right as a lawmaker to make that judgment, as my friend the member for Riverdale will agree.

I am obliged to talk about the roles played by people in this House as well as their various emissaries. I believe the Attorney General was fundamentally wrong in this case. I remind you, Mr. Speaker, that it was the crown attorney who moved for contempt. It was not brought on by the judge. The judge did not take that discretion on himself and he could have. It was on the invitation of the crown attorney in that case. Even though he did not argue for incarceration, he prompted the order, the citation for contempt.

That occurred on November 21. I am sure the Attorney General knew about it. When the judgement was made on November 28, he could have intervened. He could have retracted that request in that period. As my friend the member for Carleton said, there was a great deal of publicity about this case for a long period of time. My esteemed colleague the member for Hamilton Centre (Ms. Copps) has been very involved from the beginning, having recognized the difficulty. I believe the Attorney General was wrong.

In the House today, in response to a question of mine, "Do you believe she should have been jailed?" he said no, he agreed with his crown attorney. Then why did he not take the opportunity, immediately upon hearing of the contempt order and the order for incarceration, to use the powers he has, along with the Minister of Correctional Services (Mr. Leluk), at least to rectify that injustice and have her paroled immediately?

Surely that would have shown a caring system, an Attorney General who is not prepared to see this stain on our precedent books. Even if one could make a legal argument, as understandably one can, that she should be cited for contempt, she would not have to have the added indignity of a week in jail. I am not trying to be overly partisan, but I do so fundamentally disagree with the way the Attorney General handled this matter, I have to bring this matter forward for the consideration of my colleagues in the House.

Let me try to give the members a little different perspective on the chronology. A variety of colleagues has been in close touch with the people involved in this case. It is, like many other cases, inordinately complex. The chronology as I read it, as presented by the Attorney General, in my view did not fairly represent all the aspects of this case. There were some very unfortunate gratuitous remarks about the phone call in there, and I mentioned that earlier. I think that paints a different picture than we would want to paint when we are trying to figure out this situation objectively.

Let us be realistic. What we are dealing with, the alleged rapists in this case, is members of an outlaw motorcycle gang. I do not know about the members, but when I am driving down the highway and see five or 10 of those guys on their motorcycles coming towards me, the flesh just starts to crawl up my back, and I am inside my car. There is nobody in this room who would not be intimidated by one or two or three of them.

Let us remind ourselves about the alleged facts of the case. They came in and repeatedly raped this young lady and a young man who was there, a young man who has disappeared. We are not dealing with the Boy Scouts of America. There were three different charges. One pleaded guilty to an assault charge and one of them was shot in the middle of all this. This young lady was not unfamiliar with that kind of a life, but that is relevant only in saying that her perception of potential harm to herself was not ill-founded.

It is not a question that the police could not tap three or four threatening phone calls and say, "Gee, we have no proof you are being intimidated." Surely, as sensitive members, we all know the kind of intimidation and trauma she went through.

It is common knowledge that the police obviously wanted to prosecute that motorcycle gang, and justifiably, but she became the pawn in the middle. She was, on the one hand, necessary to a successful conviction, receiving, shall we say, pressure. I am not suggesting in any way that it was undue or unfair, but obviously she was fundamental to the police case. On the other hand, she knew the habits and the predisposition of this group and she was caught in the middle alone. Thank God for the Rape Crisis Centre, because she had a little bit of support from Cindy Moriarty and some of her people, but it was her only friend in the world.

She came down to a judgement. Maybe members disagree or maybe they agree. I do not think that is the point. I think we all can understand the difficulty of her position.

Now she is in jail. Now we have sent signals to other young ladies in similar situations that they cannot count on the sympathy and the humanity of the justice system because they too, through no fault of their own, can become other victims. That is where we have all failed. The system has failed.

As my colleague the member for Carleton says, if the system fails us, it is our responsibility to change it. I wish the Attorney General today, right now, within the next two minutes would phone the parole board and get her out of jail, at least to send out a signal that he as the Attorney General and we as legislators disagree with the incarceration. He has that power. I recognize that she will probably be out tomorrow anyway, but at least that would be an important step.

People are watching this case. Members know the attention that is being received by the member for Carleton. All of us have been involved in this situation. But it stands as it does. It is a complicated case, but an important symbolic case and, like it or not, we have to respond as legislators. I would call on the Attorney General to do that. I would call on other judges viewing this situation in the future never to allow those kinds of signals to go forward.

The Deputy Speaker: The member's time has expired.

Mr. Peterson: Mr. Speaker, I wish I had more time; my colleagues will speak at further length. I feel so terribly strongly about this. I am glad it came forward and I hope this will be the beginning of a number of discussions on this issue.

Mr. Renwick: Mr. Speaker, I do want to speak on this matter with as much coolness and articulateness as is possible for me in a situation about which I feel very deeply. Questions of liberty are the subject that, for all sorts of reasons, has led me to be a person who feels so strongly and warmly or deeply about them that I sometimes have difficulty in marshalling my arguments.

I was struck by a comment about public police as it appears in the case to which I referred earlier this afternoon, where it states, as in so many other matters, that strong feelings are based on one's general experience rather than on specific reasons, and it often requires an effort to marshal one's reasons. But public policy is generally the result of strong feelings commonly held rather than of cold argument.

I think that is exactly the position we are engaged in this afternoon, and I hope the debate in this assembly will formulate the public policy that will be respected in the administration of justice as a result of this case.

I am upset that the actual imprisonment of the person involved in this case, the complainant, the innocent party, was not relieved last Monday when, in my view, the incarceration was not the proper way in which the judge should have dealt with that case. In a minute or two I want to deal with that matter.

I am anxious and pleased we are having this debate because I was concerned that by tomorrow, as I understand it, the complainant would be released and I thought it would pass into history and there would be no strong registration of our feeling in this assembly about what was wrong and what caused the member who introduced the motion and others who have spoken in this House to realize the importance of the issue in front of us.

4:40 p.m.

Very briefly and without repetition, I want to talk about two or three documents that are important in the case. I am dealing strictly with the question of contempt and the question of the punishment. I do not pretend to be an expert on all the long, drawn-out ramifications of the trial. That can be dealt with on another occasion, and must be dealt with, because obviously there were serious problems in the way that case was handled from beginning to end.

Strictly on the question of the liberty of the subject, I draw attention to section 7 of the Charter of Rights, which I referred to in question period last Tuesday. I also draw attention to section 10 of the Charter of Rights, which is the governing law of the province and the country and to which the Criminal Code, the administration of justice and the judges must give way.

I am not going to repeat those sections. They are available to all of us. I want to draw to the attention of the House a document which many people do not realize exists. Tucked away in volume 9 of the Revised Statutes of Ontario, as it has been for many years, is a reproduction of chapter 322 of the revised statutes of 1897 which is part of the law of Ontario but is not consolidated. It is entitled An Act respecting Certain Rights and Liberties of the People.

It recites as part of the law of the province the Magna Carta. Again, it is available to anybody who wants to look it up in volume 9 of the revised statutes. It deals with the questions of the King's justice and the King's responsibility to see that justice is done. The Attorney General, whether or not he likes it, is, in language that has been used on other occasions, the fountain of justice; he is responsible for the administration of that justice. In this case, he did not take the course that was open to him. Let me make the distinction before the time runs out.

There are two questions which anyone must ask in matters related to these issues. Those two questions must be put very clearly. First, was there any contempt at all? Second, was it sufficiently serious to require or justify the court in making an order against the respondent? I take issue with the Attorney General. I am prepared to accept that one could put a citation for contempt to the court in a situation such as this because of the one principle of public policy which is at the core of the defence of the Attorney General. But when his agent did so and therefore foreclosed the Attorney General from arguing the question of the contempt citation in any appeal proceeding, at least he could have dealt with the question of sentence.

The Attorney General's agent spoke against the sentence, defence counsel spoke against the sentence, and he has the right under the Criminal Code, let alone the supporting arguments of the overriding right of the charter, to deal with questions of liberty of the subject and the writ of habeas corpus, to argue the case. He could have appealed the sentence.

There is ample indication in the matters before us that the judge erred in law in the way in which he dealt with this case. I quote from Halsbury's Laws of England, fourth edition, volume 9, page 60:

"In deciding whether a contempt is serious enough to merit imprisonment, the court will take into account the likelihood of interference with the administration of justice and the culpability of the offender. The intention with which the act complained of is done is a material factor in determining what punishment, if any, is appropriate."

In my view, a supportable view which makes me believe the imprisonment of that person was unlawful is that the judge erred in law with respect to his failure to take into consideration the reasons a sentence of imprisonment should not have been passed. One of the signals he has issued to the public is that there is a strict rule of liability on contempt. The reason for the contempt or the conduct that is labelled contempt is irrelevant. That is known as the strict rule of liability. There is no supporting law anywhere that allows the court to have that view of contempt. One need only refer very briefly to any number of cases in the courts.

On the other hand, when one is considering the nature of the penalty, one must consider the personal culpability of the person. In this instance, the court has come to the conclusion that it is quite unnecessary to impose a sentence of imprisonment or, in the circumstances of this case, any penalty whatsoever. Those are matters which were obviously not of concern to the court in its considerations related to this question.

Having dealt with two or three requirements of a case that was before him in the courts in England, Lord Justice Donovan went on to say:

"Over and above these two requirements, there may be other considerations impossible to define in advance but arising out of the infinite variety of fact and circumstances that a court encounters which may lead a judge to conclude that more harm than good would result from punishing a refusal to answer."

For these reasons, I think it would be wrong to hold that a judge is tied hand and foot in such a case as the present one and must always punish a refusal to answer a question. The courts have been very careful to indicate that the discretion they have inherited as part of their inherent authority is a discretion that must be exercised with immense care. It is my submission that this kind of care was not exercised. There was not a proper presentation to the court of the factors that must be involved before there is any conclusion by anyone that a contempt has been committed or that the punishment should be awarded.

In my view, the Attorney General should hose appealed immediately; he should have moved by way of habeas corpus to produce the body of the person. The Attorney General says in substance that there is no basis for an appeal. I say with great respect that he is wrong. He says in substance that he had no process by which he could appeal. I say again, with great respect, he is wrong. He could have appealed. He also could have moved expeditiously to have that person released until the issue of the lawfulness of that imprisonment and the degree and duration of that imprisonment were properly tested in the court.

For that reason, it is important that this assembly give a very clear indication, by the depth of its feeling, of the kind of public policies that should be reflected in the administration of justice in cases such as these.

4:50 p.m.

Mr. MacQuarrie: Mr. Speaker, I am pleased to be able to participate in this debate. I am particularly pleased to have heard the member for Riverdale refer to the two aspects of contempt, one being culpability and the other being the interference with the course of justice.

In this particular case in Ottawa -- and I do not want to dwell on it at any length -- we had a material witness who refused to answer. In our society, the rule of law still prevails. The Attorney General gave a full and detailed account today of everything that transpired in that matter.

The main question we should try to look at as constructively as possible today is the position of a victim of rape or sexual assault in our justice system, how that position can be improved and how complainants can be encouraged to come forward.

As one who many years ago had some professional experience in these matters, I find that rape and sexual assault have a tremendous traumatic effect on the victim, both the occurrence itself and the prospect of going into a court of law as a complainant. Something must be done to change that approach and give such persons some encouragement to come forward, as has been said by the member for Hamilton Centre.

Out of all the complaints of sexual assault or rape, very few come to prosecution, and the Attorney General really has been doing quite a bit in this respect. It is my submission that more could be done.

One of the things that was done in the late 1970s was to assign a particular crown attorney to every case of sexual assault or rape so the complainant would not be handed around from crown counsel to crown counsel.

Another instruction that went forward to crown attorneys emphasized the paramountcy of the protection of women and indicated that maximum penalties should be sought in cases of sexual abuse or rape and particularly heavy penalties when weapons of one sort or another were used.

I have been advised that the crown attorney's office has made members available to speak to local rape crisis centres.

One unfortunate incident happened some time ago when a hospital turned away a rape victim with regard to the required forensic rape examination. The Attorney General immediately directed that a review of that incident be carried out and then that steps be taken that it not be repeated. The problem does not appear to be widespread and the senior criminal law advisers are in the process of making proposals to the cabinet committee on justice so that situation will never recur.

With respect to forensic examinations of rape victims, the Ministry of the Attorney General in consultation with other ministries has come forward with a forensic rape examination kit to facilitate examinations. It is my understanding that this has been well accepted and is regarded as a model.

Funding has been provided to the rape crisis centres. The Attorney General's ministry, in pressing the federal authorities, has ensured that amendments be made to the Criminal Code with respect to evidence adduced at rape trials and with respect to the cross-examination on a complainant of her past life and her associations. As you know, Mr. Speaker, consent is one of the major defences in this type of offence, and this tends very much to limit the range of cross-examination normally available in a criminal trial.

To my mind, changes have to be carried out. First of all, cases of sexual assault have to be expedited as priority items. On any trial lists, cases should be bumped and these cases should assume priority.

Another thing, which I recognize is a federal matter, is that the Criminal Code should be changed to create an offence which would restrain an accused from communicating either directly or indirectly with a complainant. I realize this is sometimes a term of bail and technically could fall under the obstruction of justice provisions in the code, but if we made this a specific offence, with a fairly stiff penalty, I think the prospects of instilling a certain amount of fear of retaliation in a complainant would be substantially eliminated.

I look forward to other members coming forward with other suggestions, because I think the time is right that suggestions for improvements in this particularly difficult area of the law should be made.

Ms. Copps: Mr. Speaker, just for the clarification of the debate and for the edification of those who have not been involved in the incident for a very long time, I would like to review, with your permission, the sequence of events as they are known to us in order that we might shed some light on the decision that was made by the victim not to proceed to trial.

The rape incident occurred on January 21, 1982. As was stated by other individuals, the individual in question was babysitting with a young man. They were both repeatedly raped by three individuals who came to the home while they were babysitting. Threatening phone calls to the victim began in February 1982.

November 23, 1982, was the date of the preliminary inquiry of Wayne Carson, one of the three who had been called to appear on the basis of the rape, at which the victim testified. Carson was committed to trial on the charge.

On December 23, 1982, another co-accused, David White, was apprehended. On December 29, 1982, David White was released on bail. I think this is a very critical point. Between this time and March 1983 the co-accused Brian Laguff is shot and wounded. The suspicion -- and I repeat it is a suspicion -- is that he was shot by a member of the Outlaws because he gave police information as to the whereabouts of co-accused David White. No doubt the House will know that David White was at large and it was not until December 23, 1982, that David White was apprehended.

On March 8, 1983, Brian Laguff pleaded guilty to a lesser charge of common assault. Again there has been a discussion that the White sentence and the charge were parts of a bargain for information leading to the apprehension of one of the co-accused, specifically Mr. White.

This, I must stress, marked the turning point for the victim. She then communicated her reluctance to testify at White's preliminary hearing. To set the record straight and to clarify, her reluctance to testify came about directly as a result of a series of events which included one of the co-accuseds being shot, that same co-accused being found guilty of a lesser charge of common assault and basically the suspicion that the lesser charge of common assault came about as a result of a deal that was made between the crown and the co-accused to determine the identity of the third co-accused.

The preliminary hearing of White, on May 5 and 6, was adjourned pending the outcome of an application in the Supreme Court. Then there was an application to quash the subpoena. They were set aside.

Carson's trial resumed on June 6, 1983, but it was adjourned to November 21.

On October 20, 1983, the White preliminary hearing resumed. The victim refused to testify and the charges were withdrawn.

5 p.m.

It was at this stage, in October 1983, fully a year and a half after the alleged rape took place, that protection for the victim was loosely discussed. The crown said at that time he would have to check with authorities in Toronto to be able to make any kind of protection available. However, after charges against White were withdrawn, the victim and counsel felt a similar disposition would result in the Carson trial and the matter of protection was not pursued.

It is important to stress that in the intervening year and a half the victim lived in fear. This was communicated to the police as early as February and communicated to the Attorney General in this House as of last June and July. The issue of police protection did not come up until October 1983. I am curious as to why in his statement in the House today the Attorney General talked about protection but did not leave us with many details.

We know that on November 21 the Carson trial resumed, the victim refused to be sworn, the victim was cited for contempt and the hearing on the citation for contempt occurred on November 28, when the victim was sentenced to seven days.

This issue, which has troubled members on both sides of the House, has to be addressed today. I am glad the Attorney General was here for part of the discussion. Although the victim is going to be released from prison tomorrow, it is incumbent upon us as a Legislature, and it is incumbent upon the Attorney General and the Minister of Correctional Services to make haste today to call a parole hearing so that this individual may be freed at least one day short of the sentence she would have completed tomorrow.

This would send a message to those people across this province who are expressing serious concerns and asking very real questions about a justice system which, apparently in pursuit of justice for all, has sentenced a victim who has had the courage to report a complaint and has subsequently undergone serious reservations because of, among other things, the shooting of one of the co-accused.

It is important that these people across this province recognize that our administration of justice has taken into consideration the difficulties faced by this victim and that we as a Legislature and as a government do not want to be party to further victimization.

The contempt issue and the other avenues vis-à-vis the Charter of Rights and Freedoms have been well outlined by my leader and by the member for Riverdale. If there is a message that can be sent to the people of this province, it is in the hands of the Minister of Correctional Services and the Attorney General today to take quick steps to make sure that this woman does not spend another night in jail.

It is clear to all of us that this is a very complex issue and that is why I ask the minister in the House today to convene a think-tank of experts in the field, including experts from his ministry, from the justice system, from the police and from those people working in the area of rape crisis.

Frankly, I felt the minister's response, "We are constantly in review," was not sufficient. We are talking about special and extenuating circumstances. If this horrible incident has served to outline one thing, it is that the victims across this province are not getting the kind of protection they feel would allow them to carry through the decisions involved in coming to the authorities on the issue of rape crisis.

The minister has a responsibility to the people of this province to make this committee his top priority so that we can get together the best brains in the province. I am not talking about only those who are working in the judicial system, but in particular those people who are counselling in rape crisis on a regular basis, including the executive director of the Ottawa Rape Crisis Centre and others across the province who have been involved on a daily basis in counselling -- in her particular case, more than 1,000 rape victims.

The minister must do those two things and achieve those two aims: first, early release of the victim and, second, the immediate convening of an apolitical, independent think-tank that will bring together the best minds of this province to deal with the very difficult issue of what happened in those intervening two years from the time of the original rape to the actual contempt citation. What happened in almost two years which left the victim in the very difficult position that she was so fearful of bringing forth testimony that she chose jail rather than coming forth with testimony?

We put her in that position. It was the justice system which put her in that position. I ask the Attorney General to consider immediately convening the kind of high-level think-tank which would begin to address these issues. We know the Ottawa situation is not an isolated incident. We know that, depending upon which statistics are used, only one in 10 women -- or only one in 17, according to the Winnipeg study -- reports her rape to the authorities.

This is a situation which has to be rectified. The Attorney General is in a position to do that. I would urge him to secure her freedom immediately by using available methods of which he certainly is fully apprised. Second, I would urge him to convene immediately a high-level discussion group to take a long-term look at the strategies and at the difficulties which face victims across this province, one of whom has been further victimized by our inability to act.

Ms. Bryden: Mr. Speaker, I think this deplorable action of jailing a victim of rape for refusing to testify shows an appalling misunderstanding of the effects of rape on women and how traumatic the experience is. It is a very personal attack on the human person. It is often associated with violence and with the use of drugs which may make the attacker particularly violent.

Also, it is often associated with fear of reprisal and fear of what has happened to other women who were raped and subsequently murdered. This kind of trauma is very different from the ordinary anxiety of a person facing a court case. Therefore, I think it calls for a very special consideration of the procedures.

I think this action has highlighted the need for an overhaul of our court system. It has highlighted the need for a review of our procedures.

In considering new ways of dealing with this kind of crime, I think we have to go back to fundamental principles. The first principle is that our justice system must be fair to both victim and accused. Second, however, our justice system must be fair in all aspects: trial procedures, the collection of evidence, the role of the crown attorney, sentencing procedures, and so on.

If our court system puts any person in a disadvantaged position because of the special circumstances of a particular kind of crime, then I submit that our court system must be modified to remove that disadvantaged position. If the deprivation of liberty is at stake, all the more reason to consider whether the present procedures are fair and whether due process has been observed in this kind of crime.

This is why I call on the Attorney General to appoint immediately not just a high-level committee, an internal committee, but to appoint an all-party committee of this Legislature to review this case and the handling of other rape cases in this province. The committee should consider the way in which the shortcomings of the court system work against justice to victims of rape. The long delays, the postponements and the lack of understanding of the process by the victim are part of the shortcomings which must be overcome.

5:10 p.m.

However, there is another shortcoming: the lack of knowledge of this kind of crime and its effect on the victims. I read recently that a handicapped person was required to go through a four-hour lie detection session before the crown would accept her claim that a rape had occurred. This is the sort of thing that is completely unacceptable. Putting that kind of person through that kind of test indicates a lack of understanding.

The trial also highlights the need of rape victims for support in advocacy services. The rape crisis centres are attempting to provide this, but we do not have them in all areas of the province and they are mainly manned by volunteers.

The government's assistance to them came this year only after a great deal of pressure from people in this party and from women's groups. What we got was $200,000 for this year for rape crisis centres which belong to the Ontario Coalition of Rape Crisis Centres. For a variety of reasons, not all rape crisis centres belong to this coalition and presumably they are getting no assistance at all. This is promised for only three years, whereas there should be funding that will encourage the establishment of rape crisis centres in all sections of this province and a long-term funding program which would leave the centres free from having to spend half their time in fund raising.

One of the problems with the lack of recognition of rape crisis centres by the government is that the testimony of counsellors from the rape crisis centres is often not accepted by the courts with any particular degree of consideration because they consider that the people testifying are not professionals. They probably know far more about how the victims regard this crime and the kind of anxiety and trauma they are suffering, but, partly because they are mainly volunteers, they are not considered professionals. There are some very highly qualified volunteers and there are some people who are very experienced in providing the support services for the victim. But that is an area where we also need government action.

The main reason we need special treatment and special court procedures in this area is the fear of reprisal. I do not think there is any other area where the victim of crime fears reprisal as much as in the case of rape, particularly gang rape. Because of that very high degree of fear, the figures are that only one in 17 reports these crimes. There will be no greater deterrent to the reporting of crime than further action of the sort that has been done this last week in the jailing of this woman who, quite genuinely and honestly, was concerned about reprisals and who did not feel she was being offered sufficient protection against possible reprisals.

In fact, the Ottawa Rape Crisis Centre tells us that she called a total of 85 times over a period of three months to consult, sometimes more than once a day, regarding her concern about testifying in the preliminary hearing. She had, as we all know, agreed to testify in an earlier hearing, but she had a period of over a year in which she changed her mind. I think that was mainly due to the realization that her attackers were still in the community -- or she felt they were -- and that there was still a danger of reprisals. Therefore, she had a particular degree of anxiety that should have been recognized by the judge and the crown attorney, and the kind of action taken should not have been taken in this sort of crime.

I think we have to realize also that one of the other reasons for women not coming forward is part of the system as sell. It is the same as the way hospitals treat victims who report a rape by giving them a low priority in the emergency ward, or by doctors saying it takes too much time to use the kit that the member opposite mentioned had been developed.

I understand the use of the kit takes about an hour. Some doctors are afraid they might be called as witnesses so they do not co-operate for that reason. We have to correct all those areas as well. We also have to educate the crown attorneys to give more attention to a victim of this kind because a lot of them treat it very quickly and do not interview the victim sufficiently beforehand.

All of those barriers to the reporting of the crime have to be overcome. This is one of the greatest barriers that has been thrown up at the present time, which certainly must be removed.

Hon. Ms. Fish: Mr. Speaker, I join this debate today with a feeling of considerable anger as well as deep regret that it is even necessary for us to have a debate on this subject today in Ontario. I do that because concerns about violence against women are not new in our society, but they also are not new before all of us in our individual capacities as legislators or as citizens of this province.

As recently as a few short months ago, I sat with colleagues in a series of hearings that dealt with violence in the family. Key and foremost in that discussion was violence against women.

I participated in an informal way, because I was not a formal member, in the work of the Task Force on Public Violence Against Women and Children, established and chaired by Jane Pepino, a commissioner with the Metropolitan Board of Commissioners of Police.

I have been with women of all ages in this city who have stood up to be counted in public after the tragic, violent crime and sex murder of Barbara Schlifer in April 1980; of a similar circumstance of a violent sex crime leading to the death of Jenny Isford in May 1982 and, most recently, Christine Prins in June 1982.

On the streets then women said, "Take back the night," because it is not tolerable in our society that women should walk in fear and that a perception be left abroad that indeed the streets are not safe and that our women cannot go out.

I do not hesitate in rising and expressing a very strong difference of opinion with the judgement that led to the jailing of this woman in Ottawa.

One of the key findings at the top of the list of the criminal justice committee, in the preliminary report of the task force I referred to -- found on page 65 in the event that anyone happens to have a copy here -- reads, "The committee believes that the prompt reporting of criminal offences by the victim is one of the most important factors in deterring public violence."

5:20 p.m.

I would be inclined to agree and I believe everyone who is involved with our criminal justice system would be inclined to agree because the reporting is the very first step. It is particularly the first step in matters of violent sexual crimes.

I note that crimes that are reported are not always the same following investigation as crimes that are, I think the term is, deemed to be founded by the police. They are not necessarily all the same as cases in which charges would be laid. But they are the first step in what is a long and difficult process for the victim who comes forward in reporting. It is a long and difficult process most particularly where the investigation deems the case to be founded, where charges are laid and where the matter proceeds through the various court levels.

I am concerned because a failure of women to come forward and report has been identified as one of the chief problems in this area. I would like to quote the findings of that committee, which I quoted earlier. They list five reasons for the common failure to report violent sexual crime in our society.

The first is a fear of publicity; second, a fear of not being believed; third, a fear of the court ordeal; fourth, a fear of reprisals by the victims assailant; and, fifth, a belief the offender will in most cases be acquitted.

We have worked in a number of ways in our society to try to put these fears to rest, but I do not think we have done enough. I also do not hesitate to join with those in other areas of the law who speak out when they feel the pattern of conviction and sentencing has been inadequate for the crimes that have been brought before the court. I note in fiscal 1982-83 that of the 327 convictions of violent sexual offences in this province, some 220 were sentenced to less than two years. Statistics such as these do not encourage victims of violent sexual crime to come forward and report in the first place.

Let me add a particular concern in work I have done over the years, culminating in work that I do now as the Minister of Citizenship and Culture. That concern is to deal as well with the women and girls in our society who come from other cultures, who are newcomers here, who perhaps, in addition to many other adjustments, do not have facility in our languages.

They are young girls and women who are adjusting to a society and making use of our newcomers' services and orientation, our language classes, our community information centres which we fund and various other counselling and assistance services. Often they come with less education and with less confidence in standing up, speaking out and making use of the forms of protection and the patterns of authority in this society.

One of the key things we do when we are reaching out through Welcome House and working through the immigrant aid service OCASI, the Ontario Council of Agencies Serving Immigrants, and so forth across this province, is to break down that hesitancy, to work with people and let them understand there are different ways of doing things here. One of the key difficulties we find is in encouraging all our people to make use of the services, to avail themselves of the protections found in our society.

I return to the fundamental concern expressed by the committee of the metropolitan task force dealing with violent crime, and that was failure to report. I look at the variety of reasons a woman or a young girl might fear the process of contacting authority and the initial reporting so fundamental to initiating the entire process that results in a cleaning up within the society of those who would perpetrate such crimes. I read down the list once again: fear of publicity, fear of not being believed, fear of the court ordeal, fear of reprisals by the victim's assailant and belief that the offender will in most cases be acquitted. I do not want added to that list, in Metropolitan Toronto or in Ontario, fear of being jailed.

Mr. Wrye: Mr. Speaker, I rise to make a few remarks in this case, one which has obviously moved a lot of members of this Legislature from all parties. It is a case which, in many ways up to now, has been a single and signal failure on the part of all of us to understand and play our part in ensuring that we move forward in dealing with the very vicious crime of rape in a sensitive and meaningful way, so that ultimately we can begin not only to deal more appropriately with this crime, but over time to reduce its occurrence.

My leader said in the House today that what was most disturbing and distressing about the case of this woman who sits in jail at this hour was the signals sent out. The signals that have been sent out to society at large, to men and women, have shown us as being of no help to the victim, no help to society, no help to the women in our society, and indeed a hindrance and a harm.

I appreciated the remarks of the Minister of Citizenship and Culture (Ms. Fish) which preceded mine because she spoke of some of the gains we have made over the years, gains which I fear will be lost by this one single action of Mr. Justice O'Brien.

Over the last few years we have moved ahead in understanding that this particularly vicious crime is a very personalized crime in the truest sense of the word. It is a crime against the very physical being of a person. We have attempted to put into place systems within our courts, our police and outside through various rape crisis centres to show the women of this province that we as legislators, as law enforcement officers and as people involved in the administration of justice can become sensitized to it and that women need not fear to come forward out of fear of publicity, fear of not being believed, fear of the courts, fear of reprisals and, ultimately, fear of the defendant being acquitted, as my colleague, the member for St. George, pointed out.

Yet, with one stroke, we have set back all the good work we have done in the last five to 10 years. It has been brought forward in the last two days, since this issue had come before the Legislature, that even with the progress we have made -- and we had made some progress -- no more than one in eight, one in nine or perhaps as few as one in 10 of those victims of rape still feel they will get sensitive enough treatment that they will come forward.

5:30 p.m.

We have now laid before them the possibility that we have added a new dimension to their fear and their trauma. If at some point in the judicial process they feel, for any number of reasons, because of fear of reprisals or because the event is so personally traumatic -- perhaps for that reason alone -- they cannot withstand the months of personal agony before the courts and waiting for the courts to act, if they fear they can no longer go forward, they are now faced with the possibility that because of that fear they may go to jail. The victim becomes the defendant.

I have listened to the debate, to my colleague the member for Hamilton Centre and to others and I guess in some way I do not really have a grasp of the enormity of this crime because I am a male and I really do not have a grasp of the kind of trauma, of the rape, of the aftermath, of dealing with one's friends and family in this situation after having come forward and then having on top of that the fear of retaliation.

We have now laid a new fear, a new trauma, in front of those who will be perhaps raped this very evening, and that is the fear that, having come forward, and then at some point feeling they can no longer go ahead, the fear they may go to jail.

I think it is important -- and I do not wish to be partisan because this is not a partisan issue -- to review in some brief way some of the things that were said by the Attorney General in his statement today and some of the things that were not said so that we have an understanding and a grasp of what went through the mind of this woman in finally refusing to press forward in this case.

I might note that the Attorney General himself pointed out that it was not until October 20 of this year that the complainant and her lawyer, a rape crisis centre worker, met with Mr. Cassells on the kinds of threats or fears of retaliation, whether they were threats by word or simply a fear of retaliation brought out by some of the side circumstances that had occurred. It was not until October 20, long after this woman had indicated her fear of proceeding any further, that she was brought to a meeting and offered the protection of society if she were to go forward.

It seems to me that was far too late. At that point, the woman had made a fundamental decision that she could not, for whatever reason, go forward. I think it would have been appropriate for the Attorney General in his long statement today -- a statement that ran to some 24 pages -- to have talked about the other victim of this brutal rape, not by one individual but by three individuals whose societal backgrounds are the nature of their membership in the Outlaw motorcycle gang and obviously open to the suggestion that they are not, as my leader said, the Boy Scouts of our society.

I think it would have been useful for the Attorney General to have pointed out that there was a shooting as a side incident to this whole, long chronology of events in a very real way. The shooting incident appears to have been the breaking point for the victim of this rape, because it was the shooting incident, I guess, that made it clear in her mind that there was a very real threat to her being, a threat much deeper than rape, a threat to her very life perhaps.

This woman said, "I can go no further. I fear for myself. I fear for my family." She indicated to the crown that she would not be prepared to move forward and testify. It is very clear to us, or ought to be, that she felt strongly enough to bring this matter to the attention of the police originally and through that action to the crown. There must have been a very important change in her mental attitude which forced her, obviously reluctantly, to withdraw from her desire to have justice done.

Again, I go back to the point that this is a very personal act of violence against an individual. Her decision to withdraw her support was also a very personal act and should have been viewed that way. I cannot tell the Attorney General how distressed I am to know it was the law officers of the crown who pressed the contempt citation. Perhaps it would have been pressed by Mr. Justice O'Brien in and of himself, but it was the crown that pressed this issue, long after this woman had indicated she would stand aside and not press this matter herself. I think we have made a grave mistake against this woman, first and foremost, and against all women.

I can only hope, and I will close on this with the Attorney General here, that as we conclude this debate this afternoon, the Attorney General will see fit to do what he has not done for three days, and that is to seek the immediate release of this innocent victim who, in effect, became a defendant.

Mr. Cassidy: Mr. Speaker, I apologize for not having been here during the course of the earlier part of the debate since it affects people who are residents of Ottawa where I come from. Unfortunately, I have been concluding my leadoff in the Ministry of Consumer and Commercial Relations matter, but I have had some information about the other contributions in this important emergency debate.

The minister began his statement this afternoon by saying he was troubled by the case. Then he proceeded in 24 pages to reveal he was troubled by the suggestion that the law erred in victimizing a woman who had been a rape victim already, but not that he had any sensitivity to the plight in which she found herself. I am troubled by the way the minister has acted in this case and by the way he has sought to protect his own people rather than accepting this unfortunate, regrettable, deplorable incident which culminated in the jailing of this woman who was a victim of rape.

The one thing we can draw from this, and perhaps the one good thing that will come from it, is that the question of the treatment of rape victims has become front-page news and it is on television. People are talking about it and perhaps, constructively, we can do better in the future. Certainly, we should be doing better than what is happening here, with the minister concentrating in a legalistic way on trying to ensure that the legal system is maintained without paying any regard to the fact that for 90 per cent or more of rapists the legal system is irrelevant because they are never brought to book.

That is not to talk about the percentage of convictions that are achieved when rape charges are actually laid. Even there the success rate is relatively limited. None the less, something like 90 per cent of rapists go free because they are never brought before a court. The minister, therefore, has his eyes on the wrong target when he looks at the law system.

We should be looking at the overall justice and social systems and trying to find some way of ensuring that if rape occurs, there is a far greater chance that the perpetrators of the rape will be brought to justice and dealt with through all the severity the law provides. That does not occur right now.

The minister knows perfectly well that a law under which people know the chances of being caught or of being convicted are minimal is a law that is often held in disrespect or at least ignored. People drive at 70 miles an hour on our highways in Ontario because they have a fairly good idea they are not going to get picked up for speeding by the Ontario Provincial Police. People commit rape in Ontario, and one of the reasons is they know they have a fairly good chance of not going before the police, or even if they go before the police, of not getting convicted.

The Attorney General completely omitted in his statement to talk about the 17-year-old boy. I cannot explain all the reasons for that, but the lesson is quite clear. If people do get into the situation of the young woman in Ottawa, then for goodness' sake, they should not try to work it out with the crown. They should just make themselves scarce until the police give up, go ahead and have a case without them. Then they can show up again.

5:40 p.m.

The minister forgot to mention that the complaint was originally laid by the mother of the child who was being baby-sat. There is mention of the justice saying the woman had not done anything but clean the place up after she had been raped. For goodness' sake, considering the trauma involved in what had happened there, at least that was something simple and secure; she knew what she was doing, and this tended to empty her mind of the horror of what had happened for the previous two and a half hours while those men were in the apartment.

The minister did not mention the fact that it was after the second accused came along that the woman lost her confidence. For a full year she was prepared to testify, but the Ministry of the Attorney General, the crown and so on could not get their act together to get the trial of Carson -- who was known to them; they knew where to find him -- actually to take place.

I think it is clear, if we are looking at ways of ensuring the justice system works better, that one of the things we have to look at is the time it takes. The trauma of being raped is bad enough, but to spend two years of life waiting until the matter is settled is intolerable. That is what it took in this case. I am told that a year in the courts in Ottawa is considered to be fast and efficient and that there are other cases which are taking two years or more in the courts in my city.

If a suspect is in jail and not out on bail, they can work wonders in terms of getting quick trials in the courts in Ottawa; but since rapists tend to be put out on their recognizance or on bail, those cases tend to drag on. I suppose it is in the interest of defence counsel for the accused rapist to let it drag on until memories get dim or until people's confidence falters. That administration of the courts is in the hands of this minister and of his colleagues in the government.

There have been training sessions for police and doctors, and they are certainly more sensitive about rape matters than they were a few years ago. But what about the crown attorneys? Are they more sensitive? I do not think so, if the behaviour of the people involved under Mr. Cassells in this case is any kind of guide. It appears the crown did not sit down with the lady -- I do not know her name -- to go through the questions that were going to be asked to ensure she had some idea of the areas on which she would be expected to testify. I do not even know whether she was aware of the fact that her testimony was privileged and would not be printed in the papers.

I cite as well that at the trial held a week and a half ago, the director of the Ottawa Rape Crisis Centre, Cindy Moriarty, was brought up as a witness by the crown. The crown had a full year to prepare for this case -- virtually a year, maybe two, if we go back to the time of the rape. Ms. Moriarty was told vaguely that she might be called a few days before she was called, and then she was told specifically that she was going to be called an hour before she appeared in the witness box. There was no effort to work out with her the areas on which she might be asked questions and therefore no forewarning so she could check into her notes or files for information that might be germane.

The defence successfully challenged her expert credentials because the crown was not bright enough to have found out Ms. Moriarty's qualifications. The defence said: "Look, you say you have interviewed a thousand people who are rape victims. Do you know they are rape victims?" Ms. Moriarty had to say, "No, they are alleged rape victims," because in most cases convictions did not ensue.

The crown never established the fact that she had lectured to the Canadian Police College and at other places that acknowledged her expertise in the matters dealing with the victims of rape. Therefore, her expertise was never accepted by the court in terms of testifying as to the condition of the woman concerned or other matters in connection with this case.

The attitude the Attorney General takes is that once the decision is made, the carriage of a rape case has to be in the hands of the crown. That is the case in other criminal matters, but the decision to go or not to go is customarily made at the time the woman makes her case known by lodging a complaint with the police; that is, within 12 hours of the rape. That is a hell of a time to make that kind of decision, right after that has been done to a person. The sense of personal integrity is violated by being raped and all the other degrading incidents that have occurred.

In this case that is what happened. The woman originally did not want to testify, and then she was persuaded by a sensitive and good police officer that it would be okay. After that, the crown had charge of it and she was told she could not do anything about it.

I am told that in Ottawa now, the rape kits prepared by the Ministry of Health are in the Ottawa Civic Hospital but can be used only if the police say to go ahead and use them. A woman cannot go in, have the rape tests done in a scientific and objective kind of way, then postpone, until she has had a day to cool off, the decision about whether to actually lodge the complaint or proceed with the charge to the police.

It is like the Susan Nelles case; the police went in for a weekend and launched a tremendous $1-million trial on the basis of a couple of days of evidence.

After the police get the complaint, the woman has no chance to take it back. As this case indicates, all her pleas are going to be ignored.

The minister says relocation was offered. Yes, it was offered. But why should this woman have to move, change her life, change her school and leave her family? She was the victim, not the perpetrator of the crime.

The minister says reasonable protection by the police was offered but significantly, I think, never specifies what that was. Perhaps what the woman was asking for was unattainable or unreasonable. However, I think the question of protection should have been elucidated here; it has to be faced.

The Deputy Speaker: The member's time has expired.

Mr. Cassidy: In all, this case shows that we need a much more sensitive and effective approach to the crown's dealing with rape cases. If five or 10 per cent of the women who lay complaints in the end say, "Look, it is too much; I can't go on with it," I think we have to accept that rather than give the message to women that if they complain, they will be victimized twice and thrown into jail for not proceeding.

Hon. Mr. McMurtry: Mr. Speaker, the 10 minutes allotted does not allow me sufficient time to deal adequately with all the very interesting remarks made by members of the Legislature in this important debate. However, there are several areas I would like at least to attempt to clarify.

The Leader of the Opposition (Mr. Peterson) and others have stated that the Attorney General, together with the Minister of Correctional Services, could have convened a meeting of the parole board to release this individual. This matter was discussed by the Deputy Attorney General and senior officials in the Ministry of Correctional Services.

If one reads the regulations enacted under the Ministry of Correctional Services Act, one will see that cannot happen without an application being made on behalf of an inmate. In this case, members will recall my earlier statement that the inmate refused to make any application to alleviate in any way the terms of her incarceration.

I think it is clear for the record -- and I am saying this as the senior law officer of the crown in Ontario -- that such action cannot be taken, under the law as it exists, without an application from the inmate. I hope we have clarified that.

Mr. Cassidy: Mr. Speaker, on a point of order: I would just point out for the record that it was five days' jail and the matter was over, as opposed to the possible delay of a further four or five months before the matter could go to appeal. That was one of the reasons the victim finally decided not to proceed.

The Deputy Speaker: That is not a point of order. You are entering the debate.

Incidentally, I might just comment that each of the speakers this afternoon has had a minute or so more than the limit. This has been the case with all three parties. Having allowed that likewise to the member, the Attorney General will proceed.

5:50 p.m.

Hon. Mr. McMurtry: The other issue that has been raised is the status of the Attorney General to bring an appeal. "Does the Attorney General of Ontario have a right of appeal with respect to a punishment (i.e., sentence) imposed following a conviction for contempt of court by way of summary procedure?" That question was put to the law officers of the crown. The response was, "Where the contempt proceedings are summary in nature, only the person convicted may appeal from the punishment (i.e., sentence) imposed."

The law officers of the crown also reviewed the question of whether the Attorney General would have status or standing to bring an application pursuant to the Charter of Rights and Freedoms. It was the view of all the senior law officers of the crown that the Attorney General does not have any such status or standing. While the member for Riverdale has every right to disagree with the opinion of all the senior lawyers in the ministry, it is important, for the record, for the members to know that this is the view of the senior law officers of the crown in this province and all the senior members of the criminal law division.

There has been a great deal of comment with respect to the activities of the crown attorney and suggestions that he acted in an insensitive fashion in his dealings with the young woman in question. I have been given a memorandum following my statement that would indicate that the crown attorney indeed, in my view, showed a great deal of sensitivity with respect to this very difficult case.

Appreciating the anxiety and concerns of the young woman involved, including before the preliminary hearing at which she gave evidence, after reviewing the evidence he took the young woman to the courthouse and gave her a tour of the courthouse, including putting her in the witness box, in effect giving her a dry run of the proceedings in order that she might be quite familiar with the process. As has been commented on, she gave her evidence at the preliminary hearing without difficulty.

The crown attorney maintained his contact with her throughout this period of time, and up until April 1983 there did not appear to be any problems. In the week of April 29 the crown attorney for the first time was advised of the problem. There were subsequent meetings, during which she was questioned about the threats, and again I repeat that at no time did she advise the police --

Ms. Copps: The police placed the wiretap in February.

The Deputy Speaker: Order.

Hon. Mr. McMurtry: I did not interrupt the member for Hamilton Centre. There were many things she was saying that I certainly did not agree with, but I showed her a little courtesy and I think on occasion she might demonstrate a little common courtesy when somebody else is speaking.

There is no question, in my view, that the crown counsel demonstrated a high degree of sensitivity in dealing with what was admittedly a very difficult issue. There is no question that all of us in this House agree that this is a most heinous crime; no one has been convicted of this particular allegation, but obviously the allegation is one of a very heinous crime. It is quite clear not only that these matters have to be dealt with sensitively by the court in assisting the complainant to give evidence but also that the punishments meted out by the court must be treated very seriously.

I want to make very clear to all members that if any complainant at any time suggests to the police or to the crown attorney that a threat has been made directly or indirectly, that matter will be given the highest priority by the police and the crown attorney's office, because nothing can be more potentially destructive of the justice system in this province than for it to be thought that any threat to anyone, particularly a victim of a serious assault, will be tolerated. I want to make it clear that this has been the attitude in this province and will be for some years to come. Many cases involving sexual assault or other cases involve police protection, and that in itself has never been an issue. There is absolutely no question that the issue of a threat or a possible threat will always be given the highest priority by our law enforcement agencies and treated with the utmost seriousness by the Ministry of the Attorney General.

In conclusion, in attempting to put this into context -- and whether members agree with the decision of Mr. Justice O'Brien or not, of course, is their privilege -- it is important again to remind the members, particularly in the course of this debate, that the issue that was of greatest concern to both Mr. Justice Linden and Mr. Justice O'Brien was the protection of victims of sexual assault generally. If one reads their comments in attempting to balance the complex issues in this case, one sees that is certainly the highest priority in their case.

I will repeat once again what Mr. Justice Linden had to say in relation to the importance of individuals giving evidence, particularly after a preliminary hearings when serious criminal charges have been laid. I quote Mr. Justice Linden:

Ms. Copps: So where are they now? She's in jail and they are at large. How dare you? How can you say that?

The Deputy Speaker: Order.

Hon. Mr. McMurtry: It is really curious that in a democratic institution such as this, the members opposite would feel that participating in a useful debate is to attempt to drown out the words of a distinguished judge of the Supreme Court of Ontario. The honourable member should be a little embarrassed by her conduct.

Ms. Copps: How can you cite this as justice when she is in jail and they are at large? It is absolutely ludicrous, and you know it.

The Deputy Speaker: Order.

Hon. Mr. McMurtry: I say to some of the members opposite -- I am only talking to two or three who refuse to look at this matter in any proper context -- if they were really concerned about the victims of these assaults --

Ms. Copps: Your own parliamentary assistant was the one who called for this emergency debate --

The Deputy Speaker: Order. This is deteriorating into a yelling match.

Hon. Mr. McMurtry: If they were really concerned, they might pay a little attention and give a modicum of respect to the comments of Mr. Justice Linden. The sad thing is that the member is not interested in dealing with this in a rational manner.

Ms. Copps: Your own parliamentary assistant insisted on calling for this emergency debate, and you don't want to deal with it. You call that justice?

The Deputy Speaker: Order.

Mr. Cassidy: Mr. Speaker, if the minister would like a few more minutes, I am sure that by unanimous consent we would allow him to continue.

Some hon. members: Agreed.

The Deputy Speaker: Does the minister have any final comment as he is concluding his remarks?

Ms. Copps: What about the shooting? What about the lack of police protection until October 1983? You haven't answered any of the questions raised --

The Deputy Speaker: It being six of the clock --

Mr. McClellan: For the record, it isn't six o'clock.

BUSINESS OF THE HOUSE

Hon. Mr. Wells: Just before you leave the chair, Mr. Speaker, I would like to indicate the business of the House for the remainder of this week and for next week.

Tonight, we will do third readings of bills on the order paper, second reading and committee of the whole House on Bill 113 and, if time still is available, we will go budget debate.

On Friday, December 2, we will do supplementary estimates of the Ministry of Revenue and concurrences of the Ministry of Transportation and Communications and the Ombudsman.

On Monday, December 5, in the afternoon we will have the estimates of Office of the Premier, and in the evening we will have the estimates of the Ministry of Northern Affairs.

On Tuesday, December 6, we will deal in committee of the whole House with Bill 111, if it is reported back.

On Wednesday, December 7, the usual three committees have permission to sit in the morning.

On Thursday, December 8, we will have private members' business in the afternoon, standing in the names of the member for Essex North (Mr. Ruston) and the member for Welland-Thorold (Mr. Swart). In the evening we will have legislation: Bill 111, if not completed, Bills 132 and 133 and the immunization amendment bill, which was introduced today -- all of these for second reading and committee of the whole House -- then Bill 42 in committee of the whole House.

On Friday, December 9, we will have the estimates of the Office of the Premier.

The House recessed at 6 p.m.

December 1, 1983