The House resumed at 8 p.m.
House in committee of the whole.
CHILD AND FAMILY SERVICES ACT
Consideration of Bill 77, An Act respecting the Protection and Well-being of Children and their Families.
Section 1 agreed to.
On section 2:
Mr. McClellan: Mr. Chairman, if you will just bear with me for a moment, I will make available to the minister and my Liberal colleague the copies of my two additional amendments.
Mr. Chairman: Mr. McClellan moves that subsection 2(1) of the bill be amended by deleting "where appropriate" from the first line.
Mr. McClellan: Mr. Chairman, I have a comment, it is not that I am unprepared. I do not think I will be long with most of these amendments. I did want to move this one again.
This is a section of the bill that I think is very important. It states that services in the French language shall be made available by service providers where appropriate, and I emphasize, "where appropriate."
I want to remind members of the assembly that today in the standing committee on social development we were dealing with Bill 119, An Act to amend the Education Act. It states that every single French-speaking person in this province has the right to a French-language education. That is every single student, not "where appropriate," not "where numbers warrant." Bill 119 says, "every French-speaking person."
I think that is an amendment that has been applauded on all sides of the House by all parties and throughout the province as an historic step forward. We applaud and commend the government for taking it.
I think it is not more than a year ago that the Attorney General (Mr. McMurtry) brought in similar legislation guaranteeing every single person in this province the right to judicial hearings in the French language.
I do not understand why child welfare services should not be available on exactly the same basis. We are not talking about optional services; we are talking about mandated services -- mandatory child protection services, mandatory services for the protection of children in this province.
I cannot understand why the phrase "where appropriate" is being inserted. I hope the drafters intended it to mean that every single French-speaking child or family in need of child welfare services will have, as a matter of right, French-language child welfare services. However, I do not believe that is the way the section is going to be interpreted. I do not think it reads that way. I think that is a qualifying clause which will excuse children's aid societies from any obligation to provide child welfare services.
It is certainly nowhere as clear and unequivocal as the language in Bill 119 which I read because it is so clear and precise. "Every French-speaking person...has the right to receive elementary school instruction in a French-language instructional unit..." There is no ambiguity there. Nobody can weasel out of that obligation; it is a statutory obligation, period.
What we have in section 2 is not a statutory obligation. It is a statement that they shall provide, with the qualification "where appropriate." I do not know what "where appropriate" means.
I am sure the minister is looking at me quizzically, but I can tell him that it will mean what service providers say it will mean. I do not know why it is there. If it is the minister's intention to guarantee as a statutory right that every francophone child and family will have the right to receive child welfare services in their own language, he should say so in the bill by accepting this amendment and deleting "where appropriate."
Mr. Wrye: Mr. Chairman, I hate to start the evening on a down note. There are a number of amendments from my friends on the left that I support, but our party shall not support this amendment. We shall not support it for the reasons all three parties indicated in committee in February and when we wrote the report, after proper representations from l'Association canadienne-française de l'Ontario, that the "where appropriate" phraseology would adequately cover the needs of francophone children in Ontario.
That was the suggestion that organization placed before the members of all three parties in committee. I remind my friend that the members of all three parties in their report to the Legislature, and this was adopted by the minister in this case, urged that the "where appropriate" phraseology be put in.
I am not certain of the original phraseology, the minister may remember, but this is the phraseology that was proposed to the minister and to the government, not by a unanimous vote, but in a sense as committees work by consensus of the committee.
Our party feels we will continue to be consistent on this matter and we will support subsection 2(1) as it is written in the bill.
8:10 p.m.
Hon. Mr. Drea: Quite frankly, I do not understand the confusion of the member for Bellwoods (Mr. McClellan). This was very well discussed on October 15 in the standing committee on social development. I will point out by quoting myself on page 36 in the Instant Hansard:
"I think that 'where appropriate' is the broadest possible designation. It gets away from the numbers game of saying 'where numbers warrant' or 'where individual service is required.'
"You are not talking about the ability of the individual service provider. You are talking about the ability of the ministry itself, because if you have primarily an English-speaking service, then the ministry, in conjunction with a number of transfer agencies, is going to have to find the French-language service.
"If you are going to say and if you want to argue that all services at all times should be available in the French language to anyone who requests them, which is what deleting those words would really mean, then that is another matter."
The member for Bellwoods replied, "Absolutely." The intent of this motion is to make Ontario bilingual by virtue of a clause in an act. When I raised that in committee, Mr. McClellan nodded that yes, that was one of the reasons.
Therefore, we reject the motion for the second time, as the committee did on October 15.
Mr. Chairman: All those in favour of Mr. McClellan's amendment to subsection 2(1) will please say "aye."
All those opposed will please say "nay."
In my opinion the nays have it.
Shall the vote be stacked until 10:15 pm?
Vote stacked.
Section 3 agreed to.
On section 4:
Mr. Chairman: Mr. McClellan moves that subsection 4(3) of the bill be amended by deleting "two years" in the fourth line and substituting therefor "six months."
Mr. McClellan: Mr. Chairman, the purpose of this amendment is relatively simple and straightforward. It is based on submissions that were made to the standing committee on social development, I believe principally by Dr. Barbara Landau. Dr. Landau is a psychologist and also a lawyer.
It was pointed out to the members of the committee that it is possible for there to be tremendous changes in the cognitive development of children and that two years is too long a time for an assessment of a child's capacity to make decisions to be allowed to stand. In other words, a child can develop cognitive or decision-making capacity in a period of time much shorter than six months.
Second, children can have varying levels of decision-making capacity. For example, a child could be perfectly capable of deciding where he or she wants to live. That may be an area of decision-making totally within a child's capacity, whereas other kinds of decisions put before the child may be beyond the child's reach.
For example, I think of the case of Justin Clark. Justin Clark was perfectly capable of making the decision about where he wanted to live. That capacity was disputed. I do not know; I am being hypothetical, but there may have been other areas of decision-making in which Justin may not have had the same kind of capacity as he did with respect to the question of where he wanted to live.
I think more leeway, more latitude ought to be given to the human potential of the child to grow, to develop and to change from a position of not being able to make decisions to in fact being able to make decisions and that two years is quite frankly too long. Six months makes more sense.
Again what we are talking about is whether or not an assessment that is two years old be allowed to prevail, notwithstanding whatever growth and development has taken place in the individual child. I am simply suggesting to the ministry that we give more leeway, more latitude to the developmental factor, to the potential of children to grow, to develop and to enrich their own capacities to make decisions that affect their own choices.
Mr. Wrye: Mr. Chairman, we were also made aware of the amendment, and our party will support it for the very reasons the member for Bellwoods has outlined. We believe that for the individuals we are talking about here two years is a very long time in these persons' development of capacity, and we hope the minister will agree. It is not a major matter, but we think six months may be more appropriate and we hope the minister will support the amendment.
Mr. Chairman: Are there any other comments? The question is an amendment by the member for Bellwoods.
Hon. Mr. Drea: Mr. Chairman, you asked for other comments. I presume you are asking them from this side, too.
First of all, just to clear up the record, the Justin Clark example, I think, was a very poor one in the light of this, because there was a competency test that had to be done in the first instance. I do not think you would have many like that case under this subsection.
I can be persuaded that two years is a long time but I think six months is too short. If I could have a change, could we agree on one year? I think two years, because of the fact that a child of 10 may have been assessed when he or she was eight, is a little bit long. But I think with six months we would be prone to have an awful lot of assessments, and I am not sure that an awful lot of assessments are necessarily good in a treatment or assessment milieu. If the member would --
Mr. Piché: One year is acceptable.
Hon. Mr. Drea: Thank you.
Mr. Breaugh: The member for Cochrane North (Mr. Piché) is on side.
Mr. Foulds: Sometimes it is behind that; you have to look.
Hon. Mr. Drea: I am being very friendly because, in the search for a new leader, you never know who it is going to be.
Mr. Piché: You mean you would accept a francophone as a leader?
Hon. Mr. Drea: I will accept you as --
Mr. Chairman: Member for Cochrane North, if you have any announcements, make them outside the chamber.
Hon. Mr. Drea: If the member would change the time frame in the amendment to one year, we will accept it.
Mr. McClellan: If I may, Mr. Chairman, I think that is a very reasonable suggestion and I would be happy to withdraw my amendment and move it again.
8:20 p.m.
Mr. Chairman: Mr. McClellan moves that subsection 4(3) of the bill be amended by deleting "two years" in the fourth line and substituting therefor "one year."
Motion agreed to.
Section 4, as amended, agreed to.
Sections 5 to 21, inclusive, agreed to.
On section 22:
Mr. Chairman: Mr. Wrye moves that subsection 22(8) of the bill be amended by inserting after "may" in the second line the words "with the approval of the Lieutenant Governor in Council."
Mr. Wrye: Mr. Chairman, as the minister and members who sat on the committee know, we have had a very long debate over this matter, not over this section per se but over this whole matter of revocation and takeover powers. The minister knows it was a matter of very serious debate during clause-by-clause discussion. We proposed a number of amendments. A couple may be reflected in the final bill, but I am not certain. We certainly had some very lengthy discussions.
One of the crucial amendments we proposed was the setup of the panel in terms of the review. We have not proposed that amendment again because we acknowledged at the time, and we acknowledge now, that it was flawed. I still believe it was preferable to the proposal we have before us in the bill. The minister knows, and the House should know, there is a legitimate concern, not aimed at any particular minister of the crown but in general at government, that all actions be taken that are reasonably possible to protect the legitimate rights of societies and agencies.
We have sought to ensure that the societies and agencies that are concerned about these revocation and suspension powers -- because they are very extreme, although they may be justifiable -- are protected in as reasonable a way as possible all along the route.
Consequently, I am proposing this amendment to the House tonight. After the persons who hold the hearing report to the minister, the bill now suggests that the minister considers the report and then carries out the proposals in whatever way he wants. He may reject the report or accept it, but he carries out the proposals and lets the agency or society know what he is doing.
This amendment is fairly minor but we believe it is appropriate at that point, should the minister wish to carry out a proposal, it should be required that he go to the cabinet, to the Lieutenant Governor in Council, and obtain the necessary approvals. Very simply, that is what this amendment suggests. It is not an inappropriate change to the very sweeping and at times necessary, as we in this party will concede, revocation and suspension powers the minister must have.
I see the minister nodding. He knows full well this party has never suggested his ministry should be impotent to act where it is necessary. That is why we have put in what I would call one minor additional safeguard for agencies and societies. If they oppose strenuously an action of a minister, this provides a small additional safeguard for them. I commend it to the House for passage. It will make the societies and agencies caught by this section a little more secure in the feeling that all along the way and even at the end of the process there must be very wide acquiescence to actions the minister wishes to take.
Mr. McClellan: I have a question on this. Are we talking about approved agencies only, or are we talking about approved agencies and children's aid societies?
Hon. Mr. Drea: Both.
Mr. McClellan: Both? I have a bit of a problem with this because I think there is a difference between the status of approved agencies and the status of children's aid societies. I am not sure it should be necessary to obtain cabinet approval with respect to revocations under clause 22(1)(e).
Hon. Mr. Drea: This is a very minor, insignificant matter. In committee, the attempt to do this was in section 23, which captured only one of the groups, the agency, and not the children's aid societies. This is an attempt to have both -- and I suspect particularly the society -- dealt with by order in council.
The section is quite clear as it stands. After the minister considers the report he has his options. He may carry out, or he may not, and he "shall" give notice of his decision to the agency, with reasons. That is very straightforward. Why does the member want an order in council? The agency can then sit around and read the notice board here for two or three weeks to see if the order in council went through. I do not understand the great fascination with orders in council.
It was my understanding that people wanted decisions with proper and reasonable notice and reports that led to decisions being made in public, with reasons given. The moment we go with an order in council it goes behind closed cabinet doors. It is not done publicly. No reasons need be given. All we have is a bulletin board where, on certain Fridays, the order in council is posted.
I do not think it adds anything to the section; indeed, it begins to slow down the process and in my view takes away the very protections we wanted to put in. These were that the proposal be dealt with openly, that reasons be given and decisions be made in the open where they can be discussed. As the member knows, an act of the cabinet, an order in council, cannot be discussed.
On that basis, we reject this amendment to section 22, just as we rejected the amendment to section 23 on October 16 -- and as the committee did, to the best of my knowledge.
8:30 p.m.
Mr. McClellan: I just wanted to make it clear, if I did not, what my problem is with it. I think it is appropriate that an order in council be the means to exercise the government's powers with respect to clause 22(1)(f); that is to say, the takeover of a children's aid society. I think this is a legitimate procedure. The problem with this amendment is that it also deals with revoking or suspending approval of approved agencies, and I fail to understand why it should be an order in council with respect to the revocation or suspension of a purchase of service from an approved agency.
I would suggest to the minister that it would be wise to maintain what I understand to be the present regime, if I am not mistaken, that before a minister intervenes to take over a children's aid society -- that is, to remove any or all of the members of the board of directors and appoint others in their place -- he requires an order in council.
Let me put that as a question to the minister. That is the way things are now under the 1978 Child Welfare Act. Is that not true?
Hon. Mr. Drea: No, the Child Welfare Act is not quite that specific. In the situation in Kenora, the Child Welfare Act was not used; the ministry act was used.
In order to clarify the takeover powers and to be able to give reasons, we deliberately went away from the order in council procedure. We wanted it done openly. I do not understand why there is such a demand to take it behind closed doors again, because once it goes to the cabinet for an order in council it is behind closed doors. Indeed, there is an oath of the executive council that the matter cannot be discussed outside the cabinet room.
Surely in the case of having to take over a mandated service for justified reasons, replace the board of directors and so forth, I would reasonably think everybody would want this done as openly as possible so the society could defend itself, make representations and state its case in public if it chose to do so. Why the demand to have it behind closed doors? I have always had difficulty understanding that.
Under the amendment we are discussing now, I would virtually have to get an order in council behind closed doors if for any reason I decided I was not going to purchase a service from an agency, which is going pretty far.
Mr. Chairman: All those in favour of Mr. Wrye's amendment will please say "aye."
All those opposed will please say "nay."
In my opinion the nays have it.
Motion negatived.
Section 22 agreed to.
Sections 23 to 27, inclusive, agreed to.
On section 28:
Mr. McClellan: Mr. Chairman, I have an amendment to section 28, the section that authorizes the provision of counselling services to children over 12 years of age.
Mr. Chairman: Mr. McClellan moves that section 28 of the bill be amended by striking out "consent" in the third line and substituting "agreement" therefor.
Mr. McClellan: Mr. Chairman, a number of people have been in touch with me since we completed the clause-by-clause discussion on this bill in the standing committee on social development in October, and they have called attention to the use of the word "consent" in section 28.
They have pointed out it would be much more helpful -- let me put it that way -- if "consent" were not in the bill because as soon as one uses the word "consent" one is obliged to get into the whole issue of informed consent and capacity as set out in section 4 of the bill.
People have convinced me it would be much more useful to avoid this issue entirely. In everyday language, somebody ought to be able to talk to a disturbed kid without having to get into the whole issue of consent, capacity and all the rigmarole that is involved in assessing consent and capacity under section 4 of the bill.
If one uses the word "agreement," one avoids this whole legalistic quagmire and kids 12 and older who are in need of counselling, who are in need of somebody to talk to, can obtain that counselling without making a federal case out of it. People in the field are concerned this will pose a real barrier to disturbed kids having access to a counsellor, unless a whole other set of procedures is gone through first. People have convinced me that is not really necessary. We can solve the whole problem if we change the word "consent" to "agreement."
Mr. Wrye: Mr. Chairman, we will support the amendment. I think my friend the member for Bellwoods makes a good point. A number of agencies and individuals have been in contact with us. I do not view this as a major change and it may alleviate some problems.
Hon. Mr. Drea: Mr. Chairman, it is my view and my people's view that substituting "agreement" for "consent" does not do anything one way or the other. Some professionals feel that when they have to exercise their judgement when a child is not in a position to give consent they may be facing litigation. We think they fear a little too much. If they are using their professional judgement and have made a proper judgement, there is not that much difficulty.
Any type of counselling service requires consent just like other services. One of the purposes of this bill is to try to help older children in crisis to access these services. On that basis, we do not see any need to amend the present wording of section 28.
Mr. Chairman: All those in favour of Mr. McClellan's amendment to section 28 will please say "aye."
All those opposed will please say "nay."
In my opinion the nays have it.
Motion negatived.
Section 28 agreed to.
8:40 p.m.
On section 29:
Mr. Chairman: I believe Mr. McClellan has an amendment to subsection 29(3). We heard earlier "two years"; it seems it is "six months."
Mr. McClellan: This is true. The question is where is it?
Mr. Chairman: Perhaps I could help the member. We have one at the table.
Mr. McClellan moves that subsection 29(3) of the bill be amended by deleting "two years" in the second line and substituting therefor "one year."
Mr. McClellan: This is exactly the same as the amendment we carried on subsection 4(3). It has to do with the same issue, whether an assessment of capacity should last for two years or one year. I assume the ministry will be willing to accept it.
Motion agreed to.
Section 29, as amended, agreed to.
Sections 30 to 33, inclusive, agreed to.
On section 34:
Mr. Chairman: Mr. McClellan moves that subsection 34(1) be amended by adding at the end thereof, "but includes a placement in an institution licensed or approved under the Nursing Homes Act or the Homes for Special Care Act."
Mr. McClellan: I want to point out that the copy of the amendment I gave to the chair, and perhaps to the minister, included the Education Act, but I am not moving anything other than an amendment to cover the Nursing Homes Act and the Homes for Special Care Act.
I would like to speak to this amendment. I regard it as very important. We are dealing in this section with the residential placement advisory committee, which I believe is one of the most progressive features of the child and family services bill. All of us have accepted the principle of the bill set out in section 1, that one purpose of the act is to recognize that the least restrictive or disruptive course of action that is available and is appropriate to help a child or a family in a particular case should be followed.
The bias of this legislation is intended to be anti-institutional. The bias of this piece of legislation is supposed to be against institutional incarceration, against residential care where anti-institutional alternatives can be found, made available and provided to the children and their families. That is a very important principle.
I see the residential placement advisory committee as the main means of implementing that principle. Its purpose is to screen each and every residential placement -- I hope before the placement takes place, but that is the subject of another discussion -- and to canvass all the options to see whether there is a noninstitutional alternative, a less disruptive alternative, a less restrictive alternative; and having canvassed all the options, to make that information available to the social agencies, to the family, to the child and to the Minister of Community and Social Services.
The problem I am trying to deal with is that we have left out a whole part of the service system. We have left out homes for special care and nursing homes. We have left out the hundreds of developmentally handicapped children who through no fault of their own have ended up in the wrong system. I have talked about this before many times when services for the mentally retarded were transferred from the jurisdiction of the Ministry of Health in 1974 to the Ministry of Community and Social Services.
A whole lot of people -- almost 3,000 -- were left behind. They were not left in schedule 1 and schedule 2 facilities, the Ontario hospital schools for the retarded, which were transferred to this ministry. Instead, they were left behind in nursing homes and homes for special care that remained under the jurisdiction of the Ministry of Health. They were left behind because nobody could figure out, because of the mix of population in the homes for special care and nursing homes, how to transfer them over.
They were left behind and were forgotten for a long period of time. They were neglected; they were ignored. None of the services that were laid on from 1974 until 1980 in the Ministry of Community and Social Services was available to these people. The many programs for normal community living for the developmentally handicapped were not made available to those 3,000 people who were left behind in the homes for special care and nursing homes.
In 1980 the ministry brought in the triministry project to try to redress the fact that we had a first-class system and a second-class system for mentally retarded people in this province. If one won the luck of the draw, he or she ended up in a Community and Social Services facility. Perhaps one went to the Rygiel Home in Hamilton if he or she was really lucky. One got first class-service and was helped to achieve normal community living, even despite having a severe and profound handicap.
If one did not win the luck of the draw, he or she ended up in a hell-hole like the Good Samaritan Nursing Home in Alliston or the Ark Eden Nursing Home in Barrie. We are all familiar with the story of the Ark Eden Nursing Home. This year about 40 kids were rescued from that home and given a new lease on life. They were put into various group homes through the combined efforts of the Ontario Association for the Mentally Retarded, the Ministry of Community of Social Services and the Ministry of Health. They were a part of that group of 3,000 people who were left behind.
To make a long story short, I am simply trying to propose an amendment that would ensure no other kids end up in homes for special care or nursing homes because their parents are not made aware of the alternatives that are available. I want to ensure that not a single other child is shuffled off into the back wards of these homes for special care because a sober second thought has not been taken.
I have talked about the long-term solution many times as well. This would involve moving the homes for special care and nursing homes into the jurisdiction of the Ministry of Community and Social Services. It would involve rescuing each and every developmentally handicapped person in one of these totally inappropriate places and making sure they get first-class placement and support services.
Until that happens, we have an obligation and an opportunity, since the bill is in front of us now, to make the scrutiny of the residential placement advisory committee available to any proposed placement of a child in a home for special care or a nursing home. This is the least we can do. I do not believe there can be any excuse for not accepting this amendment.
I know the minister argued in committee that he did not think it advisable to intrude on the jurisdiction of another ministry. He argued that it would be better to amend the Homes for Special Care Act and the Nursing Homes Act so this kind of a screening mechanism would be in place to keep kids out of it.
8:50 p.m.
I do not disagree with that except that the Homes for Special Care Act is not before the Legislature and The Nursing Homes Act is not before this assembly. Neither of those statutes is going to be before this assembly in the foreseeable future. When the government brings them forward, we can move the screening mechanism from the jurisdiction of this legislation to the jurisdiction of whatever legislation the government chooses.
Our responsibility now, I believe, is to make sure the residential placement advisory committee protections are available to each and every child in this province faced with the threat of an improper residential placement. I do not accept for a moment the argument that it is not our jurisdiction, it is some other ministry's responsibility, it belongs in some other statute, somebody else should do it, let George do it. The jurisdictional entanglements are too complicated and one cannot possibly cut through them. We have been listening to those arguments since 1974.
In the meantime, I believe there are still about 2,500 developmentally handicapped citizens who are in homes for special care and nursing homes. I understand admissions of children are still taking place.
I simply want to say it is time those admissions were stopped. I think we have an opportunity to achieve that end by accepting a very simple amendment, which as I understand it is not objected to by the Minister of Health (Mr. Norton). He does not regard this as an unwarranted intrusion into his jurisdiction.
We are not talking about a body that has real, authoritarian power. We are talking about an advisory body, the function of which is to make informed options available to parents as children's service providers. It is intended that this advisory committee perform an informational service. I believe any family that is given a range of options and alternatives will act in the best interest of its children. I think it is unfair to deny families precisely that set of informed options.
I urge the minister to permit families to have the full range of opinion, information and options that are available for their kids and not to continue this kind of jurisdictional impasse that has been going on for a full decade. I think we have an opportunity tonight to put a halt to it.
Mr. Wrye: Mr. Chairman, I agree with my friend the member for Bellwoods that, among the amendments both parties have, this is one of the important ones.
I want to remind the Legislature, and I do not need to remind the minister because he has been very intimately involved in this legislation, which is now in its final stages, that this amendment should carry for the high principles that are set out in clause 1(a) and clause 1(c).
We say this act has "as a paramount objective, to promote the best interests, protection and wellbeing of children." Then we talk about "the least restrictive alternative" being appropriate.
The areas with which I am most pleased in this legislation are the sections that begin with section 34, the establishment of these residential placement advisory committees.
As the minister knows, there is another amendment coming forward that my party and I believe would really put the cap on a section that is a good step forward. There is no doubt it is a good step forward that is going to promote the wellbeing of all children in Ontario.
I say to the minister that my friend's amendment does address an anomaly. From section 34 onward, for a number of sections we have addressed the vast majority of children in Ontario and the methods by which professional people and other community people -- those who have a special interest and a special knowledge -- can provide for children and for their families what is called the least restrictive alternative, an alternative that is best for the child, that is in the child's best interest.
Because we have in effect a jurisdictional difference with two other acts, we have somehow shuffled to one side in a very real way a small number of children who right now are or may be in institutions which are not, captured by the definition of residential placement.
I think my friend put it well. It seems to me that at a point where the appropriate acts come up for amendment we could move out the sections we propose to amend tonight. However, my friend is correct. For example, the Nursing Homes Act and the Homes for Special Care Act are not up for debate tonight. They are not on the floor of the Legislature tonight. They will not be next week or next month or perhaps for another year or two.
Until that point, surely it is reasonable to make sure we capture every child in this province. It seems to me and to my party that to make the act the very best act we can, to protect every child we can, to promote the wellbeing of every child we can, we should do no less.
We will support the amendment and we urge the minister most sincerely to add to a bill which has got much better over time by adopting it, understanding as we do that at some point it is more appropriate in another act. That is surely an action this Legislature can take on another day.
Mr. Sweeney: Back in 1977 and 1978 the present Minister of Health was the Minister of Community and Social Services. The present minister will recall that was the first time we really took a crack at trying to pull all of these things together.
On behalf of my party, I was responsible for helping to move through the earlier major changes to the Child Welfare Act. At that time we thought we had gone quite a long way in pulling together a number of acts. I have forgotten how many acts we pulled together. I remember we were trying to pull together under one umbrella references to children's services that appeared in other ministries.
Quite frankly, I was relatively proud of the changes that were made back in 1977 and 1978. It was made very clear to us then that the job was not finished; there still needed to be another step. Here we are six years later, trying to complete the picture, trying to put the last stones into place.
It is precisely for that reason I stand now and speak to this particular section. The minister will notice that I have not risen up to this point, for two reasons. First, I see in this particular section and with reference to the amendment being proposed an opportunity really to close it up. It highlights the fact that there are a group of children who are not being adequately protected, who are not being protected at least in the same way as others are. This is one reason I want to support it.
Second, as the minister probably knows, I am now the critic for the Ministry of Health under which comes the jurisdiction for nursing homes and homes for special care. I, too, get the impression the minister who is now Minister of Health, remembering the kinds of comments he made back in 1977-78 and the kinds of comments Judge George Thomson, who was then the deputy minister, made back in 1977-78, would not be opposed to this.
I also want to highlight the fact that we are talking about a review committee here, we are talking about an advisory committee. We are not talking about a committee that has a right to make a final decision, but rather one that ensures that all possible information is made available; and second, that does not end up institutionalizing young people when it may not be in their best interests or does do not get them in the wrong place.
9 p.m.
We have no guarantees, even with this amendment, that we will be able to do what we want, but at least we have some sense that under this amendment we are going to have a better opportunity to make fewer errors.
One of the difficulties parents face when they have a child who needs attention of this nature is a sense of uncertainty, in some cases even a sense of guilt, because they are not sure they are doing the right thing, that maybe they should be looking after the child themselves.
There is a sense of wanting to do their best and of listening to the advice that is being given to them, because they often have reached the point where they do not know what to do themselves. All we are suggesting here is that they be given this one little bit of extra help, that this advisory committee, this review committee, be made available to them.
I fully appreciate the jurisdictional problem here, that we are talking about two ministries. I appreciate that fact, but it is my understanding that because we are talking about a review mechanism, an advisory mechanism; because we do not have any indication that the present Minister of Health would not actively co-operate; and because we clearly get the message from this minister that he wants absolutely the least restrictive care for these children, that we want to do what is in their best interests and that we are really trying to pull together everything we possibly can, weighing all these things in the balance, it would seem to me, at least, and to my colleagues who have already spoken, that this would be in the best interests of children until we can find something better to do.
Hon. Mr. Drea: Mr. Chairman, as in committee, I am not going to accept this amendment. First of all, I do not see what contribution I can make by imposing a toothless advisory committee, a quasi-information service, under the guise of intruding upon the jurisdiction of another minister.
Second, in the years I have been here -- and I have handled a lot of legislation on this side, probably more legislation than any other minister because of the portfolios I have held -- I have never before heard a suggestion that legislation is inappropriate but that we should put it in until something better comes along. I have never heard it in committee; I have never heard it on second reading; I have never heard it on third reading; I have never heard it anywhere, and yet I have heard it twice tonight.
I commend the member for his honesty, but to ask me to do this when there is an admission that it is not appropriate -- I do not care who favours it. If there is so much demand in other ministries and other jurisdictions for this type of legislation, then I humbly suggest they bring it in.
The real intent of this amendment is that under the terms of providing information I would be in a position to veto what a parent wants. While this Legislature may not agree with what a parent wants and this minister may not agree or might have done it differently if it were his child, the member is asking me to take away the right of a parent to decide how his child, developmentally handicapped though he or she may be, is placed.
Mr. McClellan: No, we are not.
Hon. Mr. Drea: That is what you are telling me. I have sympathy for what the member for Kitchener-Wilmot (Mr. Sweeney) says about the situation that parents often find themselves in. They consult a physician and the physician says this person can receive extended care in a nursing home.
The parents go out and place the child in a nursing home or in a home for special care -- a particular part or all of a certain type of nursing home.
What the member is saying is, "The minister should not allow it." The truth of the matter is the member does not want me to give advice; he wants me to give advice with a sanction. With regard to some of the concerns I have about homes for special care and other placements that might make my role a lot easier, but it is not one I want.
If I am placing a child or agreeing to a placement, I am invariably paying the cost of that child's care. In the case of a home for special care and a nursing home, I am not paying anything, nor do I have any more control than any other citizen over what goes on in that place. If the nursing home or the home for special care is licensed or approved by the Ministry of Health, unless I can show there is something that places the child at risk or in danger, I have absolutely no say in basic care and provision for that child. Under the triministry project, I have some authority in regard to programs for the individual, but not for the individual's basic care.
The second thing I want to point out is that protection is not an issue here. If the member is saying that a child who goes into a nursing home is in need of protection and he wants to name the nursing home, then he should stand up and say it. Then we can together bring to the attention of the Minister of Health and all his regulatory authority that there is a question of a child being in need of protection.
What he may be talking about is a child who in his view may have more opportunity in one place than in another. That is far different from protection. Undoubtedly I will agree with the member, but by the same token the parent does have some rights even when he disagrees with the minister or with the opposition parties in this Legislature.
It is my concern that if a doctor -- I hope we do not get into all the things said about doctors when this was discussed in committee -- places a child in a nursing home, how can I as the Minister of Community and Social Services have an information-gathering committee sit in judgement on a physician's decision when it is not in my jurisdiction.
9:10 p.m.
I am not raising the jurisdictional line as an excuse, as a barrier to any involvement by this ministry or for the perpetuation of a system there have been some concerns about, some of which are valid. What I am saying is that this amendment would not enable me to do one single thing to come to grips with the very real problem of the homes-for-special-care system.
When a parent chooses not to place a frail, developmentally handicapped child into what are acknowledged to be the finest of care facilities -- and each and every one of my schedule 1 facilities for the developmentally handicapped in this province and each and every one of my schedule 2 facilities for the developmentally handicapped that are operated by community boards are the finest anywhere in the world -- then I fail to see what effective role any information service, which is all the residential placement advisory committee is in the final analysis, can play in the matter.
On that basis, I am not going to accept the amendment, although I want to say that having been slightly critical about some of the reasons put forward by the mover and the two supporters of the motion, I understand from where the amendment comes. I understand and applaud their very deep and valid concern in this matter.
The Deputy Chairman: All those in favour of Mr. McClellan's amendment will please say "aye."
All those opposed will please say "nay."
In my opinion the nays have it.
Vote stacked.
The Deputy Chairman: Mr. McClellan moves that subclause 34(6)(a)(i) of the bill be struck out and the following substituted therefor:
"(i) before the child is placed in the institution, unless in the ministry's opinion the child's placement in the institution is urgently required, in which case the review shall take place within the 21 days immediately following the placement."
Mr. McClellan: This is quite straightforward. The issue is whether the advisory committee should review a residential placement in an institution before the child is placed in the institution or after the child is placed in the institution. For the life of me, I cannot understand why the ministry would bother to set up the advisory committee in the first place if it were not given the responsibility to make preplacement reviews.
If the ministry is serious about the first part of the bill, where it says one purpose of the bill is to recognize the least restrictive or disruptive course of action, then the responsibility is on the ministry to make sure that has some means of implementation. It is too late to have an advisory review after the child is placed in the institution.
We have acknowledged there will be emergency situations when the child will be at risk if not placed in a secure facility quickly. That is incorporated in the amendment. I cannot understand why the ministry would not accept the principle that placement reviews ought to be done before the placement. Surely it is not an outrageous proposition that placement reviews should be done before the placement. That may be the ministry's intention, but that is not what it says in the bill.
I would like to ask the minister if he is prepared at this point, upon reflection, to accept this amendment.
Mr. Wrye: Mr. Chairman, as I am sure the minister knows, the committee, particularly in our hearings in February, struggled long and hard with these sections of the bill, and with this section in particular, because it is one of the key components of the legislation.
One of the matters that we heard time and again was a plea for a preplacement review wherever possible. The reasons we heard were varied, but I want to put before the House and the minister one of the aspects we heard that struck me as being very logical and important in finding what we keep calling the least restrictive alternative, which may, of course, be a different kind of placement or may be no placement at all.
The point that was put to us, certainly with some passion and, I believe, with some logic, was that before entering into these placements, before institutionalizing a child, the family may agonize and may have agonized for a period of weeks, months or even longer. Having agonized and having decided, with or without the full review that these advisory committees can engender, to place a child, the very act of placing that child may in a sense lift the burden off the parents.
The thought of at that point involving a residential placement advisory committee, which may come up with a less restrictive alternative that may include either no placement whatsoever or a less restrictive placement, may be greeted in a negative fashion by those parents who have struggled so long and hard in trying to wrestle with the decision that has led them to have their child institutionalized in the first place.
I think that is a very real problem. There is no doubt, and the amendment my friend has proposed speaks to this issue, that there may be an urgent need to place the child in an institution without this preplacement review. I hope that as the residential placement advisory committees come on stream and as the system begins to work effectively and smoothly, as we all hope it will, we could as a matter of legislated policy move to a preplacement review.
For those reasons our party will support the amendment, and we hope the minister will adopt it.
9:20 p.m.
Hon. Mr. Drea: Mr. Chairman, I have not changed my mind in two weeks. This matter was discussed in committee on October 17. Many of the points that have been made tonight were made on that occasion. Perhaps I should review this item and the reasons we are not going to accept this amendment.
First, as a ministry we searched out this matter very thoroughly. We should point out that the placement review is for all children who have a problem, whether it is children's mental health, the developmentally handicapped, learning disabilities and so forth. It is not just for the developmentally handicapped who tend to be the long-term placements. The others tend to be short-term placements, particularly in children's mental health.
One of the problems with this amendment is to discover or define what an emergency is. Is the child threatening or attempting to commit suicide? Is there reasonable thought that he or she is suicidal, dangerous to himself or herself, to others or to the community? In fact, what is an emergency?
Since the role of the parent has been raised here tonight, one of the difficulties is that the parent's view and the professional's view of what constitutes an emergency are quite often different and distinct.
For those children who require mental health services, we do not feel we should preclude the ability of a medical practitioner, whether it is a family practitioner, specialist or psychiatrist, in concert with the parents to place the child in an institution for normal and regular observation, to assess the child and find out what problems there are. Some professionals prefer to do a short-term placement because one of the problems, through no one's fault, may be the home environment and they want to see whether the person improves if he is removed from that environment.
Regarding the developmentally handicapped or the long-term placement, there are loads of protections in this act. The long-term reviews kick in after 90 days. The short-term placement and the placements in the children's mental health area usually last between five and 21 days and are mostly for assessment and observation, as I have pointed out. We think it would take away from the right of the practitioner or the family to seek treatment if there had to be a prescreening type of operation.
Indeed, in our long-term facilities we have virtually blocked off long-term admissions automatically and are constantly reviewing any long-term placements.
We do not believe prescreening, which is what this is, is really needed in terms of long-term placements, because there is already in our view a very effective review procedure. Indeed, we do not think prescreening would be of much use except as a barrier to the short-term placement. On that basis, we are going to reject this amendment.
The Deputy Chairman: We have an amendment before us. All those in favour will please say "aye."
All those opposed will please say "nay."
In my opinion the nays have it.
Vote stacked.
Mr. Foulds: Let's vote on this one.
The Deputy Chairman: Moving right along --
Hon. Mr. Drea: We made an agreement to stack all votes.
The Deputy Chairman: Yes, we just agreed to do that.
Hon. Mr. Drea: No, on everything, Mr. Chairman, there is an agreement.
The Deputy Chairman: I was not here when the agreement was made and I would like to keep things going.
Mr. McClellan: We have an agreement to stack all the votes to 10:15 p.m.
The Deputy Chairman: I appreciate the guidance.
Mr. McClellan: Before we proceed apace, I have a fallback position.
The Deputy Chairman: Mr. McClellan moves that subclause 34(6)(a)(i) of the bill be struck out and the following substituted therefor:
"as soon as possible and no later than 21 days after the child's placement in the institution."
Mr. McClellan: Mr. Chairman, I will not belabour the point. We have had the discussion. This replaces the subclause that reads "within 90 days of the day on which the child is placed in the institution." As the act stands now, the advisory committee is required to review a residential placement in an institution which is a long-term placement intended to last more than 90 days, but it does not have to review it until a period of 90 days has elapsed.
That is appalling, because 90 days is a very long period for a child to be institutionalized and not have the benefit of the advisory committee's review. It would be much more helpful if there were an instruction that the review take place as soon as possible. That means it could be pre-placement or post-placement, but at any rate it would take place quickly so that the damage from an unnecessary long-term institutional incarceration would be minimized.
I do not understand why 90 days is required. There are other sections where there is a shorter time frame. I would hope the minister would be open to the operative part of the amendment that says "as soon as possible." If 21 days is not realistic, perhaps there is something between 21 days and 90 days that the minister could suggest to us. I think 21 days is good and the minister thinks 90 days is okay. Perhaps we could do some horse-trading on the floor; perhaps not.
It would be genuinely helpful to have the phrase "as soon as possible" inserted into the statute as an instruction to everybody as a target we would try to achieve, including pre-placement, and to shorten the period of 90 days by as much as it is possible to shorten it. Perhaps the minister needs an opportunity to consider that. If he needs a little more time, we could stand the section down, or he could make me an offer.
Mr. Wrye: Mr. Chairman, I will give the minister another minute or two to consider it. I am tempted to start by saying that if he does not like 21, how about 30, could he buy 45 and would he agree to 60?
Hon. Mr. Drea: Can he not make up his mind?
Mr. McClellan: I like 21.
Mr. Wrye: I will make any of the above offers to the minister. The point my friend is making is that we on this side -- I think we have been consistent throughout -- would prefer the mandatory pre-placement other than in emergency situations, but we are saying to the minister, and he knows we are saying it quite genuinely, we are concerned that 90 days is a long period. I know it says "within 90 days," but that certainly allows the flexibility to go right to the end. I think the minister understands that.
9:30 p.m.
Perhaps horse-trading is not the right word, because there has been an attempt on all sides to reach a reasonable compromise, a reasonable middle ground. My friend and I are certainly not involved in the delivery of these services and we are willing to hear, in a sympathetic way, from the minister if he wishes a period somewhat longer than 21 days.
I hope he understands the reason for this motion is our very sincere feeling that 90 days is somewhat long. Perhaps this is not the place or the time, but we are on clause-by-clause. If the minister would like to consider a shorter period than 90 days but a longer period than 21, I agree with my friend that we would certainly be willing to stand down this amendment. If the minister has some idea he would like to place before committee for some period between 21 and 90, he should feel free to go ahead. We would agree with, and be willing to support, any reasonable shortening of the period.
Hon. Mr. Drea: Mr. Chairman, I would like to point out that it is not "90 days," it is "within 90 days." In view of the fact that we are dealing with long-term placements, I do not think that is too long, but I can be persuaded. The important thing is a very clear statement as soon as possible. I think "within 21 days" is far too brief because we might not be able to get a proper review committee in place. That might be worse than the remedy the member is trying to bring about.
I would be prepared to accept wording that says "as soon as possible and within 45 days," rather than "no later than." I think "no later than 45 days" might create the situation the member talked about, that "within 90 days" took it right to the limit of 90 days. I think the words "as soon as possible" put on an onus and the words "within 45 days" give a reasonable time no matter what the difficulty is in a case of getting a proper review committee.
If that number is acceptable, and a change in wording is acceptable to the member for Bell-woods, perhaps he would like to withdraw this amendment and substitute another.
Mr. McClellan: I would be delighted, Mr. Chairman.
Mr. Chairman: Mr. McClellan moves that subclause 34(6)(a)(i) of the bill be deleted and the following substituted therefor:
"as soon as possible and within 45 days of the day on which the child is placed in the institution."
Hon. Mr. Drea: I will accept that with the proviso that it will be subject to draftsmanship. It sounds a bit rough in the last sentence. I think it should be, "after the child's placement in the institution" or whatever.
Mr. McClellan: I was using the language of the bill, which now reads, "within 90 days of the day on which the child is placed in the institution." That is the way it reads in the bill. What I suggested was, "as soon as possible and within 45 days of the day on which the child is placed in the institution."
Hon. Mr. Drea: I will accept that. I said it would be provided and subject to draftsmanship without affecting the principle. I think the introduction of the phrase "as soon as possible" tends to create a little bit of a grammatical problem. Just so there is no question about it, it is "as soon as possible and within 45 days after the date." Maybe "date" is a better word than "placement."
Mr. Chairman: Perhaps the member could supply the chair with a copy.
Mr. McClellan: That is very reasonable. It is reasonable in the extreme.
Mr. Chairman: Perhaps if the member has an opportunity, he can share with the chair a written note of the amendment and we can read it from the chair.
If you wish, we can stand it down. Is it agreed that we stand this down so there is a chance to draft it? So agreed.
Sections 35 to 46, inclusive, agreed to.
Hon. Mr. Drea: What happened to section 34?
Mr. Wrye: We are standing section 34 down, subject to drafting.
Mr. Chairman: It is to give an opportunity for drafting.
Hon. Mr. Drea: Fine.
On section 47:
Mr. Chairman: Mr. Wrye moves that section 47 of the bill be amended by adding thereto the following subsection (2)(a): "The reasonable terms and conditions relating to the child's supervision referred to in clauses (2)(b) and (c) may include a term restraining or prohibiting a person's access to or contact with the child."
Mr. Wrye: Mr. Chairman, I note that my friend has a different amendment, which I think sets out to accomplish the same purpose.
The amendment we are proposing has been brought to our attention most particularly by the Metropolitan Chairman's Special Committee on Child Abuse. Though I acknowledge that clauses 47(2)(b) and (c) may be adequate, there is a concern that they are not. This seeks to clarify quite specifically the concern this special committee had that in cases of child abuse, particularly under clause 47(2)(b), where the child is back at home, there needs to be a definite statement that access and contact with the child may be denied to some persons.
That is all it seeks to do. It seeks to specify in a very real way what is suggested in clause 47(2)(b). While it is not major in its effects, I think in this legislation it is sending out the right messages. I hope the ministry will support the amendment. It is a fairly minor amendment that follows from clauses 47(2)(b) and (c), but I think it would be a useful one.
Mr. McClellan: Mr. Chairman, I am quite happy to support my colleague's amendment to section 47. I had a proposal for amending the same section; his is perhaps clearer and less arcane. But I am advised by practitioners in the field that there is a concern about section 47, and that concern is whether or not the judges have a clear and unequivocal right to issue an order restricting the right of access to a child.
I am sure the minister agrees this is a matter of enormous importance when we are dealing with a child abuse case. It is essential that the court have a clear right to order no access to anybody who may have been involved in the abuse incident.
9:40 p.m.
We have been advised by a number of people that it is not perfectly clear. I do not know how to put this without being disrespectful to the judiciary, but I gather it is open to an interpretation by certain judges of the court that they would not have the power to issue no-access orders.
Hon. Mr. Drea: No, it is not correct.
Mr. McClellan: Not correct? It is correct. The minister's legal people are advising him that judges do have the power. People who are involved in trying to obtain the orders from all the judges who practise in all the courts have expressed a real concern that some judges will hang their hats on the excuse.
We bring this to the minister as a concern which has been expressed by people who have to deal with this on a daily basis. The amendment is moved in that spirit, to make it clear to all the judges they do have the power to restrict access.
Hon. Mr. Drea: First, may I commend the lobbyists for the Metropolitan Toronto chairman's Special Committee on Child Abuse who made all of the telephone calls today. I think this is pretty fair for a professional lobbyist to have two amendments on different sections of the act by --
Mr. McClellan: That is their job.
Hon. Mr. Drea: Personally, I think it shows the accessibility of those with an interest.
First, in clause 47(2)(b) the court can impose terms and conditions upon the supervision order. That gives the court all the powers it needs; it gives the judge all he needs. Let us look at this a little realistically.
If there is a real problem in the home where a child has been a victim or a suspected victim of child abuse, then one is really asking the judge to cop out by suggesting that he or she can send the child home and all the protection that is necessary is a limiting of access to a person or other persons.
If there is real danger or the child is in need of protection from a particular environment, for which the member is so interested in having the access limited, then I suggest the child should not be sent home. In a minor matter, if indeed this is minor, the court does have the right to impose terms and conditions. Second, if it is a major and very significant matter, the court does have alternatives.
Under section 54, the court may make access orders with respect to any order made under any part of this bill. In essence, the matter is already covered. I do not think putting this in provides any additional protection for the child.
If the member thinks the judiciary is unaware of its powers, I would be glad to send the chief family court judge a copy of tonight's Hansard.
Mr. Chairman: All those in favour of Mr. Wrye's amendment to section 47 will please say "aye."
All those opposed will please say "nay."
In my opinion the nays have it.
Motion negatived.
Mr. McClellan: Mr. Chairman, do you want to go back to section 34 and finish that off?
Mr. Chairman: Sure.
On section 34:
Mr. Chairman: Members will recall we stood down subclause 34(6)(a)(i) by Mr. McClellan until we could have the wording.
Mr. McClellan moves that subclause 34(6)(a)(i) be amended to read, "as soon as possible, but in any event within 45 days of the day on which the child is placed in the institution."
Motion agreed to.
Sections 47 to 52, inclusive, agreed to.
On section 53:
Mr. Chairman: Mr. McClellan moves that subsection 53(1) be amended by adding thereto the following paragraph:
"5. Where the court makes an order under this section, the court may also by order direct that
"(a) the child and/or
"(b) a parent, or
"(c) a person except a foster parent in whose charge the child has been or may be,
"undergo a specific treatment program."
Mr. McClellan: Again, this is a fairly straightforward amendment. It would empower the court to make an order for treatment once the court has found that a child is in need of protection. There is a mandate on the court that it direct a specific treatment program. It makes that power one of the courts options. I assume this is something that has been debated within the ministry and the ministry understands precisely what the issue is.
My own experience in the past, during the time when the court was making orders directing specific treatment programs, was that it was a useful thing for children in this province. Many a time the only thing that kept a child from bouncing around within the service system or falling between stools was the fact that the courts were issuing orders for children to undergo specific treatment programs.
Again, I happen to feel it is a useful thing to retain in child welfare legislation and I assume the minister will either support it or not.
Hon. Mr. Drea: First of all, this will fundamentally change the role of the court. It will put the court in a clinical position. It would be ordering treatment or be in a position to order treatment for all kinds of people, some of whom might not even be before it. Indeed, it is not the role of the court to order treatment for people.
I would point out to the member that with young offenders, a young person over 12 must consent to the treatment order and, as we pointed out not too long ago in tonight's debate, under the present law the court can order terms and conditions to attach to a supervision order.
9:50 p.m.
We do not think the amendment would really accomplish what it is intended to do. It puts the court in a brand-new position where it is practising medicine. As I pointed out, in the case of a young offender, consent is still required. Presumably, the main thrust of the subsection is the direction that the child undergo the specific treatment program. The necessity for consent would appear to nullify that.
Mr. Chairman: All those in favour of Mr. McClellan's amendment to subsection 53(5) will please say "aye."
All those opposed will please say "nay."
In my opinion the nays have it.
Motion negatived.
Section 53 agreed to.
Sections 54 to 67, inclusive, agreed to.
On section 68:
Mr. McClellan: Mr. Chairman, I would like to raise a concern about the amendment that we passed in committee with respect to youth and recreation workers. There have been a number of representations made since we passed the amendment to section 68, which exempted volunteers from the duty to report child abuse. Many agencies use volunteers to provide mandated services or to provide a kind of residential service, such as a summer camp.
In retrospect, I think it was a mistake to exempt volunteers from the obligation to report these cases and from the sanctions for failing to report. It was done because of the essential and integral role many volunteers play in the core services of many agencies, including many under the jurisdiction of this legislation. I suggest we take a sober second look at that.
In trying to balance things out, we have to come down on the side of the protection of children. The Boy Scouts and other agencies may argue that if there is an obligation with sanctions upon their volunteers, they may suffer some loss of volunteers. However, we have to balance that against our responsibility to make sure that the obligation affects everybody who has a major responsibility for contact in a professional or semi-professional way with kids. Unfortunately, because of the way our services are structured, that happens to include a lot of people who are serving in a voluntary capacity.
In weighing the balance of interests, I think we erred in committee. I think we ought to take another look at that and come down on the side of tough duty, tough obligation and tough sanctions. We cannot pretend, even in 1984, that we have begun to cope with the phenomenon of child abuse in our society. The duty to report with sanctions is one of the most important weapons in our approach.
Mr. Wrye: Mr. Chairman, I am sorry my friend raised this because this it forces us to come to grips with the sort of issues that with our imperfections we sometimes wish to avoid.
I agree with the member for Bellwoods. As a committee, we looked at the matter over a period of time, and I know the ministry did. We all know the concerns that were expressed to the committee and the ministry in the summer of 1984. I acknowledge the concerns were then and are now quite genuine.
In reducing a volunteer to the provisions without the sanctions of subsection 68(2), we have erred in the very real import of the legislation, which is captured in the principles. So that the minister understands very clearly, I will say the erring is not aimed exclusively at the minister or the ministry. In a sense, this is my mea culpa of the evening, as it is my friend's.
We should rethink this. I am bothered and I suppose I was almost from the time we agreed to the new subsection 68(5). The concern was brought to my attention by a few phone calls. I acknowledge those who called; I regret I did not receive them before we did our act in committee.
I was rereading the Hansard of the committee deliberations and particularly the questions I asked the minister, given the strong statement of the ministry officials in July that the burden on a volunteer to report abuse where he has reasonable grounds to suspect that a child has suffered or may be suffering abuse, while it would be somewhat greater than that of any person out there because it would have sanctions, would be very different from the reasonable grounds for suspicion that might be expected of a physician or other health care professional as captured under clause 68(4)(a).
At that point the ministry said: "Yes, that is exactly the point. We would have various standards of reasonable grounds." That point was made to those who came in as witnesses in July. Our own sense of it then was that everyone went home satisfied, but the pressure has continued, and I acknowledge that it continued not just on the minister and the ministry, but on members from all sides of this Legislature.
10 p.m.
Ultimately, what we did was to respond to pressure rather than the import of the legislation. I agree with my friend in suggesting to the minister that perhaps, as we go by section 68, now might be the time to think again whether subsection 5 is appropriate.
Mr. McGuigan: Mr. Chairman, we went through this discussion once before. It seems to me the whole thrust of this act and the reason we spent those months working on it is the protection of children. It is not for the protection of other people, but for the protection of children. We have listened to many witnesses for many hours, with a great deal of thought. I know the minister has put in a great deal of thought. I am willing to stand four-square that we want to protect children.
We all agree we are dealing with perception in this matter. The minister says there is a perception among volunteers that they might be subject to some penalties. When we examine that and look at how a judge might look at a case brought before him, I submit there will probably never be a case brought before a judge, but if there was, any reasonable judge would look at the circumstances. Children when seen by a volunteer are wearing clothes and if they have bruises on their bodies, he is not going to see those bruises. No reasonable person would expect a volunteer to know the child was abused.
If it was a swimming class and a child was in trunks and had massive bruises -- and perhaps "massive" is too strong a word -- that would arouse suspicion. If a volunteer did not do something about that, I think perhaps a judge would look unkindly at that situation.
The judge would also take into consideration the volunteer's experience. Are we dealing with a 16- or 18-year-old child who is a volunteer or are we dealing with a person who has been doing volunteer work for a long time and has had a good deal of experience?
We might consider for a moment the child-care worker, the person who works for the children's aid society or any other job to do with children, who was well trained and recognizes things we might not see. In that case a judge might take a more serious view, but I think we are largely talking about an academic situation as far as a person being charged is concerned.
I do not want to miss the perception we want to create among all people that we are serious about the matter of child abuse. This sin, this blight on our society, has been spoken of in every religious precept. The Bible and the Koran talk about what a terrible crime child abuse is. It is not something that has suddenly appeared upon the scene in the last few months or years. What has appeared is the realization that it goes on. I am willing to take my chances as a legislator and come down on the side of making it apparent to everyone that we are really serious about this.
I am not suggesting a remedy or a situation I have not experienced myself. Long before I came into this Legislature and knew anything about children's aid societies or child welfare acts or things of that sort, I perceived a child who was in my Sunday school class who I thought was subject to abuse. I did not know what to do about it, but I did have sense enough to go to speak to my minister. The minister had a good deal of experience in these matters and told me what to do. In this case, it was not so much a matter of physical abuse as emotional abuse.
I always remember the advice he gave me. He said sometimes one simply has to stand there and be ready to help that person when he falls. One cannot prevent everything. He gave me the advice that this is a situation that not he, I or anyone else could prevent, but we should stand by ready and willing to pick up the pieces if and when it happens. It did not happen in the particular case, but I want to point out I am not suggesting that other people be subject to a rule I have not applied to myself.
I do not think there is much more to be said on this. In summary, we certainly want to indicate to everyone that it is not acceptable either to abuse children or to stand aside knowingly and see children being abused without taking some proper steps. Of course, it would be only in extreme circumstances that one would take steps oneself, but there are steps that can be taken such as going to the minister, the police, a children's aid worker, whatever.
Hon. Mr. Drea: Mr. Chairman, I must admit I am a bit confused by all this. First, we did not exempt any volunteers from a duty to report. Second, I really do not understand. We had a committee; a lot of letters were written to that committee and people have spoken to me. I bring in, or accept, an amendment -- let us go the whole route.
Somebody else may have introduced the amendment, but in essence I drafted it and the committee accepted it. Now honourable members are sitting here in the House and telling me to remove the Boy Scout amendment. Is that what the members want? Is that what I understood? Why does one of the members not stand up and move an amendment? We will let the Boy Scouts know what is going on, because I am not going to drop it.
Mr. McClellan: The only way we can proceed is to vote against the subsection. I am not trying to hide anything.
Mr. Shymko: The NDP is against the Boy Scouts.
Mr. McClellan: Right on. Yes, I say to the member for High Park-Swansea, that is very distinguished. We are saying we intend to vote against subsection 68(5).
Mr. Chairman: The question is on an amendment by Mr. McClellan to section 68. Shall the amendment carry?
Mr. McClellan: No; what you have to do is call the vote on subsection 68(5).
Mr. Chairman: I thought it was subsection 68(9) and subsection 68(10).
Hon. Mr. Drea: No, Mr. Chairman, they want to vote against subsection 68(5).
Mr. Chairman: Shall subsections 68(1) to 68(4), inclusive, carry? Carried.
Mr. Chairman: Shall subsection 68(5) carry?
All those in favour will please say "aye."
All those opposed will please say "nay."
In my opinion the ayes have it.
Vote stacked.
Mr. Chairman: Shall subsections 68(6) to 68(8), inclusive, carry? Carried.
10:10 p.m.
Hon. Mr. Drea: Mr. Chairman, in view of the fact that we are not going to finish tonight, I would like to draw the attention of the House to two rather magnificent victories. One was in Nova Scotia, where Mr. Buchanan was elected bigger and better than ever. Obviously the Progressive Conservative Party in eastern Canada is stronger than ever. Second, there is a rather mammoth sweep going on in the United States by someone very close to the chairman. Mr. Reagan is winning very handsomely.
Mr. McClellan: I am glad the Conservatives are on record as favouring the second American revolution, the new Reaganite right wing. Is this Jerry Farwell rides again? Is that the new regime for Ontario too? I am shocked and appalled.
Mr. Foulds: There are some of us who want to clearly dissociate ourselves from those remarks of the minister.
Mr. Breaugh: It must be just an oversight on the part of the minister but I am sure he would want to note the tremendous victory, the tripling of representation, by the New Democrats in the Nova Scotia Legislature.
Hon. Mr. Wells: Let us hear from the Liberals.
Mr. Nixon: Mr. Chairman, we do not have anything to report.
Mr. Breaugh: We also want to join in commiserating with the troop to our right here, who lost their party leader's seat in Nova Scotia tonight.
Mr. McClellan: I am just shocked and appalled. I am overcome with grief and desolation that the Liberal Party has been wiped out in yet another jurisdiction.
Mr. Breaugh: Can we have a moment's silence or is that premature?
Mr. Chairman: Order. Can we continue with this bill.
Mr. McClellan: Maybe we could try to complete this amendment before the vote.
Mr. Chairman: Mr. McClellan moves that section 68 be amended by adding thereto the following subsections:
"(9) Despite the provisions of any other act, a child protection worker investigating a report of physical harm, sexual molestation or sexual exploitation may examine and interview a child alleged to be sexually molested or exploited without the necessity of obtaining any consents or without the necessity of apprehending the child.
"(10) No action shall be instituted against any person who provides access to the child for the purpose of the examination or interview described in subsection (9) unless such person acts maliciously or without reasonable grounds for the belief that an investigation is occurring."
Mr. McClellan: It has been brought to our attention by the Metropolitan Chairman's Special Committee on Child Abuse that some school boards are requiring the consent of parents before a child protection investigation can take place. I am not sure why this is happening -- whether there is some directive from the Ministry of Education or whether school boards have a concern about being liable for action if they do not obtain consent. I am sure the minister will agree this is not a particularly helpful state of affairs.
The amendments are designed to make it possible for a child abuse incident to be investigated in a school setting by a child protection worker without the prior necessity of a parental consent being obtained. That is to say, prior consent need not be obtained before any discussion can take place with the child. People who are working day-to-day in the field with this concern have expressed the view that the requirement of school boards that the parents be notified before the child can be talked to will in effect thwart the protection investigation.
I believe this is a reasonable amendment. Access to the child without parental consent or knowledge may be necessary in order to conduct a successful investigation, and I would ask the minister if he is prepared to accept that suggestion.
Hon. Mr. Drea: No, the minister is not prepared to accept it. First of all, with regard to an interview of a child to whom there are reasonable grounds to believe that something has happened, you do not need consent. You do not need any parental involvement; it can be done. What the member is asking for is the right to conduct physical examinations on children without anybody's consent.
If there is the concern that the parent or somebody else in control may have perpetrated physical harm, sexual molestation or sexual exploitation and is therefore not going to consent to any physical examination that will prove it, there is a procedure whereby the child can be apprehended and the medical examinations provided.
What the member is asking for, and what somebody phoned about, is that anybody in a school system can suddenly decide if he wants to that there will be a physical examination of a child without parental consent. This really is not a question of a board of education not wanting to respond to allegations of some wrongdoing. It violates some pretty firm principles.
Mr. Chairman: The amendment before us is that of the member for Bellwoods adding subsections 68(9) and (10).
All those in favour will please say "aye."
Al] those opposed will please say "nay."
In my opinion the nays have it.
Motion negatived.
Mr. Chairman: While we are here, may we deal with the sections through to section 130? Agreed?
Mr. McClellan: Mr. Chairman, I have some questions about sections 128, 129 and 130, so it would be a good time to rise and report.
Hon. Mr. Drea: Mr. Chairman, there is a technical amendment to section 71.
10:20 p.m.
Mr. Chairman: We are dictated to by the clock. We have an agreement to vote at 10:15.
10:28 p.m.
The committee divided on Mr. McClellan's amendment to subsection 2(1), which was negatived on the following vote:
Ayes 14; nays 59.
Section 2 agreed to.
The committee divided on Mr. McClellan's amendment to subsection 34(1), which was negatived on the following vote:
Ayes 25; nays 48.
Mr. Chairman: Mr. McClellan, I think you wanted to withdraw your motion on subclause 34(6)(a)(i).
Mr. McClellan: The amendment to subclause 34(6)(a)(i), which was defeated, should be withdrawn.
Section 34, as amended, agreed to.
The committee divided on whether subsection 68(5) should stand as part of the bill, which was agreed to on the following vote:
Ayes 48; nays 25.
Section 68 agreed to.
On motion by Hon. Mr. Wells, the committee of the whole House reported progress.
The House adjourned at 10:33 p.m.