Assemblée législative de l'Ontario

The House resumed at 8 o’clock, p.m.

OMBUDSMAN ACT (CONCLUDED)

Hon. J. T. Clement (Provincial Secretary for Justice): Mr. Chairman, everything is in order now; I think we are arguing on the name of the bill.

Mr. Chairman: Prior to adjournment we were dealing with section 20, subsection 5. Somebody had some suggestion that they were going to talk about over the dinner hour --

Mr. M. C. Germa (Sudbury): Underneath the bench.

Mr. Chairman: -- I don’t know whether or not the hon. member for Riverdale (Mr. Renwick) and the hon. minister have come up with a compromise.

Hon. Mr. Clement: I didn’t speak to the member for Riverdale over the supper hour but I undertook to report back to the House on what the impact was of section 20, subsection 5 which reads, “Every person has the same privileges in relation to the giving of information, the answering of questions and the production of documents and things as witnesses have in any court.” At that time I touched the privilege which exists between a solicitor and his client and while I can’t speak for the member for Riverdale, I think he agreed with that. I think that’s a fair assessment.

There are other privileges which exist between solicitor and client, Mr. Chairman. Right now I should say that under the law in this province, as far as the pure law is concerned, the privilege only exists between a solicitor and his client. I should point out that there are reported cases of privilege being extended. While it is not acknowledged to be, let’s say, the law of the province, it is acknowledged that privilege does exist between patient and psychiatrist.

I refer to a judgement some years ago of Mr. Justice Stewart who refused to order a psychiatrist to disclose the information which came to his attention from the patient. It is a very well-worded judgement and the late Mr. Justice Stewart was very careful to say that while this wasn’t the law of the land, in this particular instance he did not order the psychiatrist to disclose a great confidence which had been reposed in the psychiatrist by his patient.

I believe there is one more case unreported which extends that privilege almost as far as the patient and his physician. These are the only privileges -- and we use the plural -- that the matter refers to. I am not forecasting that it will happen but should it happen -- and it will, eventually, some day in this province -- that in a judgement of the court, privilege is extended by case law to a general practitioner, between him and his patient, or a specialist and his patient as it is between a psychiatrist and his patient -- I refer to the judgement of the late Mr. Justice Stewart -- this is intended to catch that. In other words, not to say that is fine in the Supreme Court of Ontario but it does not apply in matters before the Ombudsman.

I can look anybody in this House in the eye and say we want to keep current with the law as it develops in the Supreme, county and district courts of this province. As it is extended, if that is the way it seems to be developing, we want to extend the same privilege to a witness before the Ombudsman as he or she would have before a judge of the Supreme, county and/or district courts of this province.

Section 20 agreed to.

Sections 21 to 25, inclusive, agreed to.

On section 26:

Hon. Mr. Clement: On this one I find myself in a peculiar role.

Mr. R. Haggerty (Welland South): You are talking to yourself. You will get two years for that.

Hon. Mr. Clement: Yes, I am arguing with myself.

Mr. Haggerty: You will get two years for that.

Hon. Mr. Clement: You have to find the Crown attorney in this province who would prosecute the charge. I direct those remarks to the member for Welland South.

Mr. Haggerty: I’m surprised you haven’t been committed.

Hon. Mr. Clement: I am sure there would be many who would be more than willing to undertake it. I am keeping the door open for the member for Riverdale because we are talking about section 26. I must say to the member for Riverdale, if I have any hope whatsoever of mellowing him, that we had had a discussion earlier today on this particular section, referring to section 26(3).

Mr. J. A. Renwick (Riverdale): Mr. Chairman, on a point of order; how could you possibly have got to 26?

Mr. Chairman: It wasn’t hard. We could have gone right up to 30, if you hadn’t come in.

Mr. Renwick: Did the minister introduce his amendments on section 20?

Mr. Chairman: No, that’s been carried as in the bill.

Mr. Renwick: He didn’t amend it?

Mr. E. R. Good (Waterloo North): If it hadn’t been for the minister, we would have had 26 too.

Mr. Renwick: I think it’s ridiculous. I had questions on a number of the provisions -- but I guess it’s my fault.

Hon. Mr. Clement: Mr. Chairman, I know the member for Riverdale will accept my word on this. We really had proceeded through the sections up to 26, which I think probably found no objection in anybody’s mind. I was just on my feet pointing out that we had a discussion earlier today touching on this section.

Mr. Renwick: I had no objections to them. I can understand that when I’m not here the world doesn’t have to come to an end, but when I left the assembly -- and I had a chore to perform -- we were talking about section 20. There were to be amendments introduced. It’s six minutes past 8 o’clock and we’re at section 26. There are serious problems with section 22 -- very significant problems involved in section 22 -- and there are other questions on sections 24 and 25.

Mr. Good: There are rules and procedures.

Mr. Renwick: Yes, there are rules. I understand the rules.

Mr. E. J. Bounsall (Windsor West): Maybe you could revert, Mr. Minister.

Hon. Mr. Clement: Mr. Chairman, I’ve been in this House nearly four years, and the member for Riverdale has never been right -- except within the last two minutes. I must confess that I had forgotten it, but I had undertaken to provide an amendment to section 20 dealing with the Canada Evidence Act. I think were ad idem on that.

Mr. Renwick: That’s right.

Hon. Mr. Clement: I’m sorry, I had forgotten that -- and I do have an amendment for that.

Mr. Good: Leave it until next year.

Mr. Bounsall: Revert all the way back to section 20.

Hon. Mr. Clement: No, I don’t want to bring it in next year, because I cannot ignore the discussion we had earlier. Really, it’s a very important matter. The amendment reads as follows, if I may have the consent of the House --

Mr. Bounsall: All the way back.

Mr. Renwick: Mr. Chairman, on a point of order, I will agree to revert to section 20 on the assumption that I can make some comments on section 22.

Mr. Chairman: That’s very generous of the member for Riverdale.

Mr. Renwick: I thought it was.

Mr. Chairman: I would have to have the concurrence of the rest of the members of the House before we can even revert to this section.

Mr. Bounsall: Agreed.

Mr. Chairman: Is that agreed? Shall we deal with 20?

Mr. Good: We’d like to hear what the minister has to offer before we agree to revert.

Mr. Chairman: I’m only asking you to agree to work back, not to agree to his amendment.

Mr. Renwick: We’ll agree if it includes section 22.

Mr. B. Gilbertson (Algoma): Give him a chance to finish.

Mr. Chairman: As chairman of this committee, I gave the minister ample time to move his amendment at that time; but he never suggested that he had an amendment. It puts the chairman in a very awkward position when a minister wants to revert to move an amendment which he thinks is good for the people of Ontario and the laws of this country. I have to have the agreement of the House before I can revert. If you don’t give me that agreement we carry on.

Mr. Bounsall: He is a flexible person.

Mr. Chairman: But no provisos that we have to go into sections 22 or 23. We’ll revert to the amendment on section 20, then we’ll carry on with section 26.

Mr. Renwick: Oh, I’m sorry. The people of Ontario are going to have to do without the rest of the amendment which I raised in section 20, because I’m not going to consent.

Mr. Chairman: We’ll receive the minister’s amendment on section 20.

Hon. Mr. Clement: Mr. Chairman, may I put it this way? I would just love to move on to section 26, which we’re dealing with, but I’ll tell you what I’ll do --

Mr. Chairman: I will tell you that it doesn’t make any difference to the chairman. I just get paid the same money for waiting as I do for talking.

Hon. Mr. Clement: Oh, you don’t get anything extra for night work? I see. Because if you don’t, I’m going to come forward next week with an amendment to the Act under section 20.

Mr. J. R. Smith (Hamilton Mountain): Phone us on the amendment day.

Hon. Mr. Clement: No, I undertook it, and it must be done. I hope the members of the House will unanimously support me on this amendment.

Mr. Bounsall: Agreed.

Hon. Mr. Clement: I will take my risk with the member for Riverdale on the other sections afterwards but it really has to be done.

Mr. Renwick: I would like an understanding that I can debate section 22 because it was inadvertent that I wasn’t here.

Hon. A. Grossman (Provincial Secretary for Resource Development): The member for Riverdale is trying to cop a plea and I understood he was against that sort of thing.

Mr. Bounsall: A unanimous agreement.

Mr. Good: Mr. Chairman, as far as we are concerned, after dealing with the minister’s amendment we can revert to section 20.

Hon. Mr. Grossman: No deals.

Mr. Good: The other sections have carried but we will reconsider section 20, only. We will consider section 20.

Mr. Renwick: I don’t consent to the amendment of section 20 even though I proposed it because if the opposition in my absence -- that is the official opposition, so-called, in quotes -- didn’t have enough brains to understand the problems in section 22 that’s too bad.

Mr. B. Newman (Windsor-Walkerville): What about yourself?

Mr. Renwick: That’s right, you have never been in the House during the course of this debate.

Hon. Mr. Grossman: Did you hear what he said about you?

Mr. Chairman: Okay, we will revert to section 20 and we will deal with the problems as they come up.

Mr. R. F. Ruston (Essex-Kent): They didn’t say anything; they are all for it.

Mr. Renwick: Mr. Chairman, I do not give my consent to reverting to section 20; it is just that clear. If the minister has to introduce an amendment, that’s his problem. I will consent to deal with section 20 if I am permitted to raise and reopen -- if we can revert briefly to section 22 in which there are serious problems.

Mr. Chairman: I think the members would yield to discussing section 22 briefly.

Mr. Good: Briefly. Was it the intention to introduce amendments to section 22?

Mr. Renwick: I am going to discuss the matter and if my friend, the member for Waterloo, feels my arguments have any importance I am sure he will introduce the amendments on my behalf.

Mr. Ruston: This is a precedent you are setting, Mr. Chairman, you realize that?

Mr. Good: If the amendments are that important you should have been here.

Mr. Renwick: I am not going to introduce amendments unless in the course of the discussion they are merited, in which case, as I understand it, you would introduce them.

Mr. Chairman: Okay. Would the minister read his amendment on section 20?

Hon. Mr. Clement: At the time we arose for the supper hour adjournment it was patently obvious, I think, to all of us in the House who were discussing this point that there should be protection.

Mr. Ruston: I wonder if I could have a point of order, Mr. Chairman. Pardon me for a minute. I wanted to stress that in the future if someone comes in five minutes late and we have passed sections of the bill, now the precedent has been set we will be able to go back. Is that correct?

Mr. Renwick: I will certainly speak to that point of order. If any member of the assembly has been in attendance in the course of the discussion of the bill, throughout the whole of the discussion of the bill --

Mr. Good: That’s irrelevant.

Mr. Renwick: -- and happens to come in four or five minutes late and the official opposition hasn’t had the wit or intelligence to participate in this debate during the course of it, I would agree with the point of order you made -- that I would be entitled to speak; otherwise I would not.

Hon. Mr. Grossman: What about yours?

Mr. Ruston: I am just thinking of the precedent you are setting, Mr. Chairman.

Mr. Renwick: You always are.

Mr. Chairman: We are not setting a precedent at all tonight.

Mr. Ruston: I have nothing against the member for Riverdale at all. I am sure he is bringing in good amendments. It is just the precedent you are setting, that’s all, Mr. Chairman.

Mr. Chairman: We are not setting a precedent tonight. These matters will have to be dealt with by the chairmen and the members of the Legislature as they come up in the future.

Mr. J. E. Stokes (Thunder Bay): You are so bloody efficient.

Mr. Chairman: Okay. We are trying to get one of the best bills possible for the people of Ontario and it is a new bill.

Hon. Mr. Clement moves that section 20 be amended as follows:

A person giving a statement or answer in the course of any inquiry or proceeding before the Ombudsman shall be informed by the Ombudsman of his right to object to answer any question under section 5 of the Canada Evidence Act.

Mr. Chairman: Shall this amendment carry?

Motion agreed to.

Section 20, as amended, agreed to.

On section 22:

Mr. Renwick: Mr. Chairman, I appreciate the courtesy which you in the chair and the other members of the House have extended to me in permitting me to raise some questions in connection with section 22.

If one were to consider the bill and had to state which sections of the bill were in order of priority the most important, section 22 follows immediately after section 15 in importance. I appreciate the courtesy which the members have extended to me and I am glad of the opportunity to be able to comment on these sections.

I have only two comments and the second one will perhaps be more extended than the first. It seems to me in subsection 4 of section 22, which is a very operative section of the Act, that if within a reasonable time after the report is made, no action is taken which seems to the Ombudsman to be adequate and appropriate, the Ombudsman, after considering the comments and so on, may send a copy of the report and recommendations to the Premier. I think the balance of that clause should be obligatory.

If the proceedings, the stages of the investigation, the inquiry and the report, the recommendations that are made and the implementations of the recommendations have got to the point, after the course of those proceedings where the Ombudsman is satisfied that those recommendations are not going to be implemented and if he has then gone ahead and sent a copy of the report to the Premier, it seems to me that at that point it should be obligatory on the Ombudsman to make such report to the assembly on the matter as he thinks fit.

I want to make the distinction quite clear. Even in the way the bill has been introduced for us to consider you have got to go through the procedure of making the recommendations as to what should be done. It’s only as a last resort, if no action is taken which seems to the Ombudsman to be adequate and appropriate, that he then can go through certain other rituals. He then may lay it before the Premier. All we are saying is that if he lays it before the Premier, then he must lay it before the House. We are not saying that he can come through the House without going through the Premier, but we are indicating that it appears to us to be significant that after giving it to the Premier he should be obliged to make such report to the assembly about the matter as he thinks fit.

The way the bill is drafted at the present time would indicate that somehow or other there is an intervening step, that is, that having made the report to the Premier something may happen and that, therefore, there is no obligation to report to the members of the assembly. I think it should be the other way, that there has already been ample time. I can’t conceive for one single moment that a minister of the Crown, receiving recommendations from the Ombudsman as to appropriate action that should be taken, would not have already discussed it with the Premier. Once the point in time occurs at which the Ombudsman goes through this ritual, understands that no action is to be taken and gives the Premier a copy of it, then it seems to me the game has got to be called to a halt and he must be able to make to the assembly what report he sees fit.

My second comment relates to the draftsmanship of subsection 3. I think they are strictly errors in draftsmanship unless I misunderstand what the bill is about. The bill is about four words: decision, recommendation, act or omission. That’s what the investigation which the Ombudsman can carry out is about. “The function of the Ombudsman is to investigate any decision or recommendation made or act done or omitted.” That is what he is talking about in section 15 and, of course, that is carried forward in section 22: “This section applies in every case where, after making an investigations under this Act, the Ombudsman is of the opinion that the decision, recommendation, act or omission, which was the subject-matter of the investigation,” appears to be so and so and so and so.

So what we are talking about is whether or not in the operative section, subsection 3, we deal with the four words: decision, recommendation, act or omission. I have no quarrel with item (a). I think item (b) is probably simply a problem with the English language. I don’t know how you rectify an omission, but I’ll skip that part of the problem, that’s one of English language.

But I think item (c) should have inserted in it the words “or recommendation,” so that it would read: “That the decision or recommunication should be cancelled or varied.” I’m not certain about that but it may well be that it deserves comment. The rest reads:

“(d) That any practice on which the decision, recommendation, act or omission was based should be altered; [That’s all right] (e) that any act on which the decision, recommendation, act or omission was based should be reconsidered; (f) that reasons should have been given for the decision; or (g) that any other steps should be taken.”

It seems to me that throughout the references in that subsection the words “or recommendation” should have been added to the word “decision,” and I think that’s my --

Hon. Mr. Clement: Is that the actual recommendation?

Mr. Renwick: I am going back to section 15: “The function of the Ombudsman is to investigate any decision or recommendation made or net done or omitted in the course of the administration,” etc.

Maybe the answer that you are going to give me is it says “that the decision should be cancelled or varied,” and how do you cancel or vary a recommendation which hasn’t been implemented? I don’t know whether that is the answer. It may well be. Item (f) might read: “That reasons should have been given for the decision or recommendation.” I don’t know whether that is necessary but that is my question; that the word “recommendation” does not appear in the operative parts of subsection 3, except in items (d) and (e).

Item (g) gives me some concern: “That any other steps should be taken.” I would like to ask the minister whether or not any other steps being taken would include a recommendation for compensation? In other words, is it clear from the language of subsection 3 that the report of the Ombudsman, if he is of the opinion that any other steps should be taken, can include a recommendation that monetary compensation be paid to rectify the error of the government in its administration? I would hope that the words would be broad enough, but whenever a report is to be made about money, I think there is always a warning sign that maybe the Ombudsman would feel he doesn’t have that authority. I would hope he would feel that in a legitimate case he could, in his report, recommend that compensation be paid.

Those are the only three points that I have on section 22 and I appreciate the chairman allowing me to raise them.

Hon. Mr. Clement: Mr. Chairman, dealing with section 22, subsection 3, subclause (c), as I understand it, the suggestion made by the member for Riverdale is that perhaps the section should be amended to read that the decision or recommendation should be cancelled or varied. I have no objection to that.

Mr. Renwick: Similarly in item (f).

Hon. Mr. Clement: And similarly in item (f). I have no objection to that whatsoever because it does specifically deal with recommendations. I can’t ignore that. If it ties in to be language-wise in the best interest of what I think we are both saying, then I have no objection to that whatsoever. I will amend it.

Mr. Renwick: If the minister would so move.

Hon. Mr. Clement moves that section (c) read, instead of as indicated, “that the decision or recommendation should be cancelled or varied.”

Mr. Renwick: And item (f).

Hon. Mr. Clement moves that item (f) read, “that reasons should have been given for the decision or recommendation” because there is a difference.

Motions agreed to.

Hon. Mr. Clement: I would like to make the following observations with reference to the first point made by the hon. member for Riverdale that the word “may” in the second to the last line of subsection 4 be changed to “shall” to make it mandatory. I refer now to an article written by an author described as S. A. deSmith called, “Foundations of Law re Constitutional and Administrative Law,” an English publication. It is an article on the office of the public commissioner in the United Kingdom.

On page 627, he stresses this point twice, and I bring this to the member’s attention. I am omitting some of the lead into it. He says: “His inquiries would not take place in the glare of publicity.” This is dealing with the rationale and setting up the office in the first place. On page 628, he deals with the fact that he cannot under the UK legislation deal on his own initiative but it must come through a member of Parliament with the consent of the complainant. Then he goes on:

“His investigations must be conducted in private and the official head of the department concerned and any other official implicated in the complaint must be notified and given the opportunity of commenting on the allegations.”

Then it goes on.

I think the thrust of the legislation is to assist the citizen. I can foresee where citizens who feel themselves aggrieved will come forward and on the investigation of the Ombudsman will indeed be found by him in his estimation to have been aggrieved. Let’s hope that it’s not an aggrievement that has arisen because of bad faith or an arbitrary attitude on the part of the civil servant but an error made really in good faith.

Let us say in the conjectural picture that I am attempting to paint that it’s referred to the minister and for one reason or another, let’s say just the oversight of the minister, it doesn’t get to his attention on time or he doesn’t do something quickly enough and it’s reported to the Premier and properly so. In most of the other legislation, without detailing it, and I can, it goes to the executive council but in this instance it goes to the Premier.

The Ombudsman says in essence: “Mr. Premier, here’s what happened. I have drawn it to the attention of the minister. It’s an oversight on his part or something, but he hasn’t reacted and I want something done about it.”

Under the present legislation before the House, theoretically he need only send it to the Premier and then report to the House with it. I think the practical aspect of this matter is he won’t do that. He will send it to the Premier.

Let’s assume the Premier reacts. The citizen recovers what he seeks; justice has been done. If the Premier doesn’t react, and this is a decision the Ombudsman is going to have to make -- and it will probably be a subjective decision in the instance or the case of each different person who occupies this high office. If the Premier doesn’t react within a day, an hour, a minute, a month, a week, he then is at liberty at least to bring it before his employer, i.e. this House.

I would hate to think that it was mandatory that he had to come in and that we had before this House, the disrobing of a civil servant who perhaps misinterpreted his role, and since had it demonstrated to his satisfaction that he was wrong -- or a minister, because it can inquire into a ministry. I would hate to think that it’s just mandatory. I direct my remarks to the member for Riverdale; I say to him, as a fellow solicitor, how would you like to practise law in this province under the obligation of having to report any error in judgement that you have made over the 25 or 30 years you have practised law and you must report that to the secretary of the Law Society or face disbarment?

Mr. Renwick: I have enough trouble with those that my clients report.

Hon. Mr. Clement: I mean, if it’s done in bad faith, let’s strip the person naked right here and let the world see him. But in an error that’s made mistakenly, but in good faith, where no arbitrary decision is made. I don’t think that this is the place where it should be debated.

I can’t defend the minister who, for one reason or another, doesn’t do something to correct it; but I don’t think that two wrongs make a right. I would suggest that it’s a wrong to bring somebody figuratively before the bar of this House, even though he isn’t physically present, and say, “Well, the Ombudsman said I had to do this because it’s mandatory under the section.” I think this is a discretion that has to be left to the person occupying that office.

If the official and the minister and the Premier don’t do anything about it, then it should be brought before this House, and this provides a vehicle for it. I don’t think it must be brought before this House, because the whole exercise is looking after the complaint of the citizen; and if it’s corrected, that is it.

I am very, very strong on people preserving their dignity. If we’re going to bring somebody figuratively before this House, who says, “Yes, I made a mistake. I’m sorry, it was bad judgement on my part. I just didn’t get around to correct it; was busy or I was sick,” and he has to stand before this House with his head bowed, I’ll tell you, I just don’t think that it’s in the best interests of the civil service, of the public of this province or really, in essence, of justice. Those are the only observations I have.

Mr. Renwick: Mr. Chairman, I accept what the minister has said. I would have been reluctant to have moved an amendment to say that if, after the Ombudsman having made the report and recommendations to the Premier, no action is taken within a reasonable time which seems to the Ombudsman to be adequate and appropriate, that he shall thereafter report to the assembly on the matter. That would have been the ultimate straitjacket.

I was most anxious to have clearly on the record the understanding, within the limits of the flexibility which is involved, that what this provision of subsection 4 is designed to do is to give a degree of flexibility so that when the report is made to the Premier, it will be unmistakably clear that the Ombudsman considers it to be of immense importance that the Premier is given an opportunity to rectify the matter, either in whole or in part, or substantially, and that we must then rely on the Ombudsman, as an officer of this assembly, that if he is not satisfied with the response of the Premier he can make such report as he sees fit. I think that is proper and appropriate, and I think it is important that the history of this debate so show the explanation which the minister has given.

We are in the very interesting situation where -- since nothing which the Ombudsman does can be reviewed by a court of law, if the privative clause which we have passed is effect and is the intention -- then we are not bound by the rule of interpretation which says that the Ombudsman can’t look at the debates of the legislative assembly as to what the intentions were when the bill passed, as to its operation and the effect which it has on an officer of this assembly, which the Ombudsman is going to be, Therefore, it seems to me, and perhaps the minister will understand why I have been, as my colleague from Thunder Bay says, perhaps overly tenacious -- I put in the word “overly.” He just said I’ve been tenacious about this bill. It is because I think that the record of what we are talking about as we try to understand the implications of these sections, is a matter which will be perhaps of receding importance but certainly, in the initial days of the office of the Ombudsman in the province, of significance to the Ombudsman in the interpretation of the sections, and particularly so because what the minister who introduces the bill and has the responsibility for it says will have a great deal of weight, I think, when the Ombudsman comes to interpret the authority which he has.

Therefore, having said that, and having accepted in the usual spirit of amity that is customary in the assembly, I would like very much to ask him to comment on item (g) of subsection 3 of section 22, “that any other steps should be taken.” I would like the record clearly to show that if the Ombudsman feels that a monetary award is the only way in which an aggrieved citizen can be compensated for the damage which he has suffered, that, yes, he has the authority to give his opinion about that matter in his report; not necessarily that the government will implement the report, but that the recommendation for a monetary award by way of compensation, will not be something that will be subject to question, but will have to be seriously considered by the government as to whether it is justified in making the recommendation to this assembly that moneys be appropriated in order to provide compensation for a person who may have been aggrieved by the maladministration of the province.

Hon. Mr. Clement: I think we could overcome the problems raised by the hon. member by amending (g) to say “any other steps or recommendations.” If that was his initial recommendation, then it would be caught in that section, and that would overcome it. If the member agrees with that, then I would so move.

Hon. Mr. Clement moves that subclause (g) of subsection 3 of section 22 be amended to read: “That any other steps or recommendations should be taken”.

Hon. Mr. Clement: This is consistent, Mr. Chairman, with those amendments I have made to subsection (c) and (f) of section 22, subsection 3.

Motion agreed to.

Section 22, as amended, agreed to.

Mr. Renwick: Mr. Chairman, I again express my appreciation to the House for having been allowed to intervene on section 22, but I think it was important and I appreciate the courtesy that was extended to me.

On section 26:

Mr. Renwick: In section 26, I do not know whether the minister had commented about section 26. I assume he had not, in the 4½ minutes that elapsed from 8 o’clock until 4½ minutes after.

Hon. Mr. Clement: I explained it fully. Everybody was satisfied with it.

Mr. Renwick: Yes. I think it is extremely important that the power of the Attorney General to preclude the Ombudsman from exercising his right to enter premises of the government should be subject to a qualification if you are talking about an institution in which a citizen of the province is confined involuntarily -- and for practical purposes we’re talking about psychiatric or mental institutions or training schools.

The very nature of the institution is such that the office of the Ombudsman is going to be an immensely important avenue for persons within these institutions, because they are the only citizens whose liberty as institutions is calculated by virtue of Acts of the assembly.

Therefore, I would be very upset if the Ombudsman, having received a letter from someone in a mental health clinic, a provincial correctional institution or a training school, found that the Attorney General had, by general or specific notice to the Ombudsman, named those institutions as ones that the Ombudsman could not enter, because the very substance of a complaint by a person within one of those institutions is likely to be directed toward something which is going wrong or which he feels is wrong within those institutions. It’s the environment which will have produced the complaint.

It may well be that the extraordinary situation will arise where we’re talking about habeas corpus, and that the person doesn’t think he should be there at all.

Mr. Stokes: How could his presence be prejudicial to the public interest?

Mr. Renwick: But the Ombudsman can deal with those sorts of situations by not necessarily going to the premises, because there’s an established ritual about the writ of habeas corpus and the procedures to be followed; he could probably handle a legitimate complaint from the record under which the person had entered the institution in the first place, without physically visiting the institution.

I’m quite sure that occasions will arise when the Ombudsman is going to have to intervene by arranging for counsel to take a writ of habeas corpus, or the appropriate procedure, to question whether or not the person should or should not have been incarcerated or confined in the institution.

I think those things generally have their own way of working out, even tinder our system. The bulk of the complaints that are going to come from persons within that kind of institution under provincial control are going to relate to something within the institution.

It seems to me that the peculiarity of the Ombudsman role, if it has any degrees of importance, is that its highest degrees of importance will be related to those persons who are involuntarily confined in institutions under our control -- and I recognize that we don’t have all that many, but they are significant and important to the person who is confined -- and he’s going to say that there’s something wrong within the institution.

I would hate to think that section 26(3) would inhibit the Ombudsman from going into that institution to investigate the kind of complaint that may well have been raised by the person under the provisions of the preceding section, which we had passed, section 17(2).

It seems to me that that touches so much upon the whole guts and purpose of the Ombudsman that I personally would like to have an amendment to section 26(2), to say that the Attorney General may give notice that it is prejudicial to the public interest for the Ombudsman to go into those premises, but subject always to his right to go in to investigate a complaint, by a person who is confined there, made pursuant to section 17(2). I find it immensely contradictory to think that that would not be possible.

I can’t conceive of a situation where the Ombudsman has received an individual complaint from someone in a mental health clinic, a training school or a provincial correctional institution, which by the nature of the complaint requires an investigation of the premises by the Ombudsman, where the Ombudsman would find himself barred from entry into that particular institution because the Attorney General has given him notice that it may be prejudicial to the public interest. That’s the problem, as I see it. I may not have expressed it too well, but I would ask very seriously that an amendment he made to subsection 3 of section 26.

Mr. Chairman: The hon. member for Grey-Bruce.

Mr. E. Sargent (Grey-Bruce): Mr. Chairman, I’m sorry I missed the majority of this bill. But I think this section 26 is one of the key parts of what we are talking about insofar as a public defender is concerned, in that we have seen Watergate in full flight in America. We saw this thing unravel. But how could it happen? The first citizen of the land permitted many things that were prejudicial to the public interest. Every area of government was controlled from the White House.

This subsection 3 of section 26 is a very dangerous area, Mr. Minister. The Premier could suggest to the Attorney General that anything damaging to the party he considered as prejudicial to the public interest. He could say to the minister: “This is hands off for everyone.”

This bill will probably be in effect many years when we pass it this week. Going back to clause 2 of the same section it says:

“Before entering any premises, the Ombudsman shall notify the head of the governmental organization occupying the premises of his purpose.”

Forewarned is to be forearmed -- and it is a very useless thing to have happen when a department head knows that the Ombudsman is going to be on the scene. He immediately takes steps to cover his tracks.

I must apologize to the minister if I am suspicious of government. I have been in this business all my life. From what we have seen happen in this Legislature in the past 10 years, we know we need a public defender, the Ombudsman -- a man for all people. Ontario’s Premier (Mr. Davis) will take any steps possible to gain political favour with the public. He will waste $141 million on the Spadina expressway; he will do anything to gain votes. And this legislation is political.

This legislation is strictly political, and comes on the scene at a time when an election appears on the horizon. We have been talking about the --

Mr. Chairman: Order. Will you speak to section 26?

Mr. Sargent: Yes, I am getting to the point. This section is political, Mr. Chairman, in that the Premier can designate to the Attorney General a matter he considers prejudicial to the public interest.

I would say this -- and it is right on target, Mr. Chairman -- that when I was a boy I was told that anyone could be Premier; and now I am beginning to believe it, from what I have seen here.

I think it is very dangerous, as in clause 2, to forewarn a department that they are coming to make a check. That has got to be amended in my books. And, as in clause 3, to let the Premier define what is “prejudicial to the public interest” is very dangerous. I earnestly request the Attorney General to revise this in his fairness, to what is good in the long run for people, for the science of government, and for the democratic process. We have seen enough of this control. It almost ruined the greatest nation in the world. And it was only by accident that we found out what happened. How one man had complete control.

The minister knows the centralized control we have in this province now. Of the investment in the outlying parts of this province only 15 cents on the $1 do we run ourselves now. Now you’re going to say here that the Premier can decide what is important to be investigated. That is the key, I think, in this whole Act. It is one of the grey parts of it. I earnestly request you to take that out of there.

Mr. Chairman: Which section are you alluding to?

Mr. Sargent: Section 26, subsections 2 and 3.

Hon. Mr. Clement: I share the concern of the member for Grey-Bruce about the man named Nixon. I think he’s dead on in many ways.

I would like to point out two or three historical things, if I may. The British North America Act, when it deals with the provinces, deals only with two specific offices in each province, the office of the Premier of that province and the office of the Attorney General because the office of the Attorney General predated Confederation in Upper Canada.

The role of the Attorney General is a peculiar one. He has to be political in order to achieve that office. There is no question about that. But once he achieves that office, I guess he is supposed to be something like Caesar’s wife in terms of taking off or doffing his political hat because of the overriding interests of justice. As chief law officer in the province that has to be his No. 1 priority; that is his oath. Okay, enough said on that.

The Premier does not dictate -- and I must make this very clear -- under that section or any other section, the role of the Attorney General. Let’s get subjective now. The Premier might say to me: How would you, as one of my ministers, like to go to Owen Sound on Saturday night and perform a political chore?” That’s fine.

Mr. Sargent: You would be welcomed.

Hon. Mr. Clement: If I was clear I would be pleased, because I would look forward to staying at a particular set of premises in Owen Sound.

Mr. Sargent: Take your wife too.

Hon. Mr. Clement: I would hope that now that I am a minister of the Crown I wouldn’t continue to be ripped off by the proprietor of that place.

I say this here -- and I don’t have to say it because those who practise law would agree -- if the Premier said to me: “I would like you to interfere in the administration of justice somehow for political purposes,” I would have no other obligation but to say: “Mr. Premier, goodbye, I cannot do it.” What’s he asking me to do? He’s asking me to take about 22 or 23 years of my life in the educational system in which I was involved at that time and throw it all down the drain for a political purpose. I say it’s not impossible, but I will tell you it’s impossible with me. This was the great shock that came to many of us who watched Watergate, as I know the member for Grey-Bruce did, with great interest -- that people would take a lifetime of integrity, training and all those things that vent into it and lay it on the line for the leader of a nation, much to their chagrin as it turned out.

With that background in mind, I now turn my attention to section 26. The key element here is the public interest, not the interest of the Attorney General as an individual or the Premier of this province or the executive council of this province or any political party of this province. The ultimate is the public interest. The Attorney General who occupies that post, if he’s called upon to make a decision under this section, has to stand in this room before the province, in essence, and explain at some time why the public interest prevailed.

Let me give you a subjective situation as to where it might prevail. I think the ultimate would be to give the keys to every institution -- and I’m not being facetious at all -- to the Ombudsman. I think he should have access to them, because if you don’t let him have access then the prior section 17 doesn’t really mean anything.

Mr. Sargent: Why clause 2 then?

Hon. Mr. Clement: Why clause 2? I will tell you why. There are situations which develop that are sometimes known to people involved in the administration of justice that aren’t known publicly and shouldn’t be known at that time. A week ago, Monday, Tuesday and Wednesday, I happened to be involved in a conference in this city with your federal colleague, the Solicitor-General of Canada, and on the Monday morning he found himself in the most difficult situation we have read about. I played no role in that and I don’t insinuate that I did, but I was on the fringe, because I was in the same building and at the same conference as a decision was being reached; a decision that involved international communications and I don’t know what else it involved because I played no role in it.

Let’s say for a minute that intelligence came to my mind, my attention, that there was about to be a tremendous riot in a provincial penal institution and, lo and behold, just prior to the moment of the riot there appears, in essence, at my doorstep, the Ombudsman, who says, “I want to see a fellow who thinks he got a bad rap in Owen Sound or Niagara Falls.” Now, I don’t think it is incumbent upon me, if I was seized with that information, to say, “Well now, Mr. Ombudsman, come in and sit down. I want to tell you about the riot we are going to have at XY reformatory within the next 24 hours.” We won’t worry about the interest of the Ombudsman in terms of his safety, but in terms of public safety I may not want -- because of the advice I get, not because of my own innate wisdom -- people of prominence to be in that institution when we think the thing is going to break open, so I would just say, “You are not going to be in there for the time being.”

I think if you are going to have the responsibility for running an institution you must also provide for the protection of those who would go into it. Forget the Ombudsman for a minute. Let’s say a woman had travelled X number of miles to see her son or husband in that institution, and the information that I had and that I accepted, was that a riot was about to blow up in that institution within the next four or five hours. Do I stand at the door and say, “I must tell you, as a citizen and a taxpayer, because that’s what you are, that there is going to be a riot here in the next few hours and therefore that is why I don’t want to let you in”? Through my agents I say, “Madam, I’m sorry -- “

Mr. Sargent: That isn’t what clause 2 is about; talk about the Ombudsman.

Hon. Mr. Clement: The Ombudsman? All right. He writes and says, “I am going into that institution.” We don’t want him at the door, because in some situations the very presence of the man, because of intelligence known to the people within the institution, might mean that it is not in his interest and certainly not in the public interest that he be admitted at that time, and he’s turned away. That may trigger the situation that we are so fearful of.

I am just telling you, this is how these things happen. I have had no experience in it and I don’t profess to have any.

Mr. Sargent: These aren’t institutions, John. These are government organizations.

Hon. Mr. Clement: No, I am telling you it is everything. I am thinking of the psychiatric hospitals, which really have no history, as I know it, of riots, but I am concerned with penal institutions that do have a history of riots.

Mr. Sargent: We are talking about the department of highways, Treasury -- we’re talking of departments.

Hon. Mr. Clement: Okay. Let’s talk about T and C, because my friend the minister (Mr. Rhodes) is not here and we can both kind of take a swing at him and have a little fun in his absence.

The Ombudsman sends a notice saying, “I am coming up to visit the right of way branch.” What do you think they do up there, shovel the documents out the window? I couldn’t think of anything that would help the complainant more. I would think that those up there who were in charge of those documents would take every effort to make sure that everything is just fine -- “Come on in; here they are; this is the way we operate” -- because there isn’t anything better -- and I tell you this as somebody who has had some experience in this -- there isn’t anything better than a witness who doesn’t remember, or can’t recall, or doesn’t just seem to have the documents available today. He’s the greatest witness you can ever have on your side of the lawsuit even though he is on the opposite side. Because the jury sitting there doesn’t boy it, nor does the judge if it is tried by him alone. He can’t believe that you don’t remember, you can’t recall, you just don’t seem to have the documents; but everything that’s in your favour is available, it just happens that he has them here in triplicate for the benefit of the jury and the judge. So, I don’t think you really have anything to fear.

If we are going to open the doors to the Ombudsman -- and I think they should be open; I subscribe to that theory 100 per cent, except in those particular or peculiar circumstances where he comes up to the door and says, “I want to go in,” and the people in the institution and the Attorney General are seized with the knowledge --

Mr. Sargent: What is the plus in advising them? What is the plus in advising we are coming in in two weeks’ time, or 10 days or tomorrow? Why tell them at all we are coming in?

Hon. Mr. Clement: So that they will have the documentation of the thing, and the police --

Mr. Sargent: Come on. You don’t believe that.

Hon. Mr. Clement: You don’t think that will happen?

Mr. E. W. Martel (Sudbury East): No.

Hon. Mr. Clement: You don’t think that will happen? You think they will say, “Everything is down at the auditors’ office. We got your notice two weeks ago and it’s down at the auditors’ office”?

Mr. Martel: Too much so.

Hon. Mr. Clement: That makes it even greater because he can walk into the auditors’ office under the Act and he can’t be barred.

Mr. Sargent: You are saying, “Get your best Holt, boys, we are coming in.”

Hon. Mr. Clement: No, I tell you if you give the Ombudsman a key to every institution in this province --

Mr. Martel: Greatest housecleaning ever going.

Hon. Mr. Clement: -- some day, when you run into a situation in this province as they did in BC 10 days ago --

Mr. Sargent: We’re not talking about that.

Hon. Mr. Clement: -- people will look and say, “Why in the name of God did you let the man walk in there when you knew from your intelligence there was going to be a riot and they held him as a hostage? Why did you do that?” And we say, “Because Eddie Sargent, in the Legislature five years ago, said it would be a great thing.” They say, “Who is he?” and we say, “The fellow who ploughed into a mountain one night up at Tobemory.”

Mr. Sargent: We are not talking about that at all. You know that.

Hon. Mr. Clement: I tell you it simply doesn’t hold water.

Mr. Stokes: He missed the runway at Centre Island.

Hon. Mr. Clement: Do you know who has to pay the ultimate price? I’d love to have him have a key. I’ll tell you, if I am occupying this position and I have to make that judgement and I have to look across the floor of the House at my friend from Grey-Bruce -- sorry, I didn’t mean to point at you; I was trying to get him.

Mrs. M. Campbell (St. George): Thank you.

Hon. Mr. Clement: And you say, “Why did you make that judgement call?” I have to stand here and make that judgement call and justify it before the people of this province. With the media present and 116 other members -- or 124 at that time -- I would have to take the responsibility. Quite frankly, as an individual, I don’t want it but I can see the value of having it in those odd instances when it must be there. I’d love everybody else to take the blame.

We had some good amendments here this afternoon which I moved. The member for Riverdale will take credit for them; I know he will. If they go over, as I told him earlier, I’ll take credit; if they don’t go over, I’ll point the finger at him. Seriously, I tell you I am the one, or whoever occupies this office -- who has to justify it in this arena, not up at Guelph or up at Burwash or wherever they might be. It’s right here and it has to be a judgement call.

The key is the public interest not the interest of the Ombudsman because his interest isn’t that big at that moment. The public interest overrides it, not the interest of the prisoner or the patient.

Mr. Sargent: Mr. Chairman, I fully believe everything the minister says if he is on the scene. But he will not be on the scene.

Hon. Mr. Clement: I’ll be here for years. If you form the government across the floor I’ll be the only one with any experience who can help.

Mr. Martel: You’ll be here as a backbencher.

Hon. Mr. Clement: I’ll take you up on that. Not with you.

Mr. M. Gaunt (Huron-Bruce): We’ll hold you to that.

Mr. Sargent: Mr. Chairman, the minister, with his charm, is evading a very important factor -- two very important factors. Going back to parallel again, John Mitchell was a man of great integrity in the States.

Mr. Renwick: For heaven’s sake!

Mr. Sargent: He was supposed to be.

Interjection by an hon. member.

Mr. Sargent: Hold on. He was supposed to be a great --

Mr. Renwick: Come off it.

Mr. B. Newman: He was Attorney General, wasn’t he?

Mr. Sargent: He was Attorney General anyway.

Interjection by an hon. member.

Mr. Sargent: And 250 million people thought he was Mr. Integrity.

Hon. Mr. Grossman: He had a big-mouthed wife, that was his problem.

Hon. Mr. Clement: He had a wife who caused him a lot of trouble.

Mr. Martel: She didn’t think so highly of him.

Mr. Sargent: He fooled a lot of people. I am not saying that could happen in your short tenure of office here but we will have to live with this bill and we will have to amend it -- shortly, I hope. The fact is you must agree the Attorney General is a political appointment and you have to adhere to party lines regardless of what you say here tonight. It sounds good but we know what actually happens.

Hon. Mr. Clement: No, I will not, not when it comes to the administration of justice. I will not.

Mr. Sargent: I believe you; what you say you believe and we trust you; I think most of us do. I do anyway.

Mrs. Campbell: I think?

Hon. Mr. Clement: The member for St. George is sure but you are not too certain.

Mr. Sargent: You are wandering off a lot, talking about getting into institutions and jails; I am talking about subsection 1, “The Ombudsman may at any time enter upon any premises occupied by any governmental organization and inspect the premises and carry out therein any investigation within his jurisdiction.” But before entering the premises, “the Ombudsman shall notify the head of governmental organization occupying the premises.” I say it again, it is a known fact that if you give them time to prepare their case and to get rid of the damaging evidence, it’s going to happen. Why you go along with that nonsense, I don’t know. Why do you have it in there in order to give them a chance to get their ship in order?

Hon. Mr. Clement: Why? Our bill is patterned after the New Zealand legislation. There is nothing unique about that. Your colleague from Downsview, who devised a private bill which was presented for a number of years, patterned it after the New Zealand legislation. I tell the hon. member that the New Zealand legislation, under section 23(2), is almost word for word. I haven’t looked at the other bills I have before me here but if you give me a moment, I’ll look. I have Nova Scotia, Saskatchewan, Alberta, Manitoba and the private bill of Mr. Singer, as well as the bill of New Zealand, which was introduced in 1962 and that has been their experience out there.

I make this submission, Mr. Chairman, that until such time as it is abused, I ask the members of the House seriously to consider accepting it in the form in which it is presented. If it is abused by anybody occupying this office, I will join those who would oppose it; because I think he should have access, except under extraordinary circumstances in the public interest.

I suggest with the greatest respect that that’s the criterion in this section right now. If it’s in the Tory interest or Grit interest or socialist interest, that is not necessarily the public interest. We are talking on a much higher plane than that.

I think it must be preserved, the right to preclude the person from entering because of extraordinary circumstances that prevail at that time. If it’s a blanket thing that he can never get in, why of course it’s an abuse of the office of the Attorney General to prohibit the man from entering; and you will hear of it right here from the Ombudsman whoever he or she might be.

Mr. Sargent moves that subsections 2 and 3 be deleted from section 26.

Mr. Sargent: And I’ll divide the House on it.

Mr. Haggerty: How are you going to divide the House?

Mr. Sargent: You are here. You can do it through the whip.

Mr. Renwick: Mr. Chairman, I know the problems involved in subsection 2 of section 26. I tend to think that in this kind of an Act, and I say this quite advisedly, I would assume that if we were the government we would expect, if the Ombudsman was going to enter one of the institutions or the premises under the control of any minister of the Crown, we would take the same position as the government has taken, despite the experience which the member for Yorkview (Mr. Young) and I had in those ancient days when the present Provincial Secretary for Resources Development was in charge of the Ministry of Reform Institutions, as it then was. That was almost as if it was in such ancient historic times that it’s not worth talking about, because there is no doubt that at that time the minister of the Crown took totally and solely defensive actions and did not and was not forthcoming about the problems which were involved in the institution which the member for Yorkview and myself exercised our right as members to enter.

Mr. Stokes: Are you talking about the Provincial Secretary for Resources Development?

Hon. Mr. Grossman: It was a very shameful exhibition.

Mr. Renwick: The Provincial Secretary for Resources Development.

Hon. Mr. Grossman: I thought you would want everybody to forget about that. It was such a shameful exhibition.

Mr. Renwick: No, it wasn’t. It was exactly the kind of problem the Ombudsman is designed to overcome. I am saying that despite the fact there will always be ministers of the Crown who react as that minister did at that time to preclude any investigation and --

Hon. Mr. Grossman: The correctional people didn’t agree with you.

Mr. Renwick: -- barrack any investigation, I think we have moved into a new plateau. My guess is, after the example which has been set by other ministers who succeeded him, that if the Provincial Secretary for Resources Development would become the Minister of Correctional Services now, he would be an entirely different minister than he was at that particular time.

Mr. Stokes: More enlightened, eh?

Mr. Renwick: I think so. I think even the Provincial Secretary for Resources Development has moved into a different era in his attitude toward the problems with which he is faced. He must have, because he hasn’t reacted at all, and he usually does.

Hon. Mr. Grossman: I am about to. I like the way you said that.

Mr. Martel: It’s a time bomb, is it?

Mr. Renwick: I can understand the feelings of my colleague from Sudbury East and, I am certain, of my colleague from Sudbury and from Nickel Belt regarding the relations of this government to the International Nickel Co. and the tipoffs that were always involved in any investigation that was made of any mining operation in the Province of Ontario in order to ascertain the working conditions; I can understand the scepticism with which they would vie\v such a provision.

I think we are talking in a different era and a different time and I am sufficiently hopeful -- although I could readily change my mind on the subject in the course of time, depending on how the Attorney General exercises this power and how the government responds to the office of the Ombudsman -- to give them the benefit of the doubt.

To return again to the vexed problem of the Attorney General precluding -- let me grant him for the moment that in the Province of Ontario there may be some premises from which the Ombudsman should be excluded for reasons in the public interest; I can’t conceive of any institutions, other than those in which people are held in custody, against their will, and that jurisdiction is limited, so we are talking about jails, mental health clinics, psychiatric hospitals, training schools and the provincial correctional institutions --

Hon. Mr. Clement: Not always necessarily against their will though, but where they are held.

Mr. Renwick: Well, involuntarily. They didn’t voluntarily enter the place -- well, put it the other way. They may have entered under various degrees of voluntariness or involuntariness, but they would have trouble getting out --

Hon. Mr. Clement: Okay.

Mr. Renwick: They can’t sort of go to the gate and walk out, without somebody intervening.

Mr. J. R. Breithaupt (Kitchener): One would hope.

Mr. Renwick: My friend thinks there are some of our fellow citizens who should be incarcerated. I would be inclined to think that a couple of articles by Garry Wills, written recently in the New York Review of Books, would at least open his mind to the suggestion that there are more people confined than should be confined.

Mr. Breithaupt: Hear, hear.

Mr. Renwick: Thank you. So that’s what I am talking about when I am talking about this section. The executive power has always been able to assert the public interest over the private right and generally the courts and people like the Ombudsman have bowed to it. They have got to; you know that somehow or other there is this immense public interest.

If this were the government of Canada or the government of the United States, you know, it wouldn’t be public interest; it would be the security of the nation. That was the great cloak under which it was done. The minister knows goddam well -- excuse me, I withdraw that phrase --

Mr. Breithaupt: The minister is aware.

Hon. J. P. MacBeth (Minister of Labour): You were very eloquent up to then.

Mr. Renwick: The minister is aware --

Mr. Stokes: Shame on you.

Mr. Renwick: I thought for a brief moment I was having a quiet drink with the minister.

The minister is aware, of course, that if he brought in a bill which might be prejudicial to the security of the Province of Ontario, he couldn’t have gotten away with it, but that’s what he is trying to say in his own way about things prejudicial to the public interest. It is somehow involved in disruption and police operation and all of those kinds of things. I don’t know the final answer to it, I guess nobody ever does, because there is no final answer as to what point the public interest of the private citizen overrides the private interest of the private citizen.

I suppose that’s really what we’re talking about because every private citizen has a vested interest in the public interest. It’s very difficult for some private citizen sometimes to understand that his, the private citizen’s, private interest in the public interest must override the private interest of the private citizen in his private interest or, as W.H. Auden said “Private faces in public places are finer and nicer than public faces in private places.”

Mr. Martel: Did you get that, Allan?

Mr. Breithaupt: It’s like “Tomorrow Starts Today.”

Mr. Renwick: It’s very much like our motto for the next election. As a friend of mine said to me today, it’s very confusing. It’s like that saying, “I’ll love you less tomorrow than I did yesterday.” You can get quite confused as to how you express those things and you can get into an immense amount of trouble. In an endeavour to solve the problem the minister has raised, I would like to propose the following amendment for discussion.

Mr. Renwick moves that subsection 3 of section 26 be amended by adding thereto the following:

Provided, however, that if the notice precludes the Ombudsman from entering any premises which in his opinion he considers necessary to enter for the purpose of investigating any complaint made by any person referred to in subsection 2 of section 17, the Ombudsman may apply to the Supreme Court for an order permitting such entry.

Mr. Renwick: I regret I haven’t got copies of it but perhaps you would give this to the chairman and perhaps the chairman would move the amendment and then be good enough to show it to the Attorney General because I haven’t written it out.

Mr. Chairman: This would be a subamendment?

Mr. Renwick: A subamendment to the amendment by my friend.

Hon. Mr. Grossman: Mr. Chairman, I rise at this time in case my colleague should be tempted to provide poor law on a bad case. I think the lawyers say bad cases make poor law. I know the particular instance which the member for Riverdale brought out today as an example of why you should be able to walk into an institution without any warning has been rankling him ever since that occasion. I can understand why because he was castigated by even the correctional organizations in this province.

Mr. Renwick: That wasn’t what bothered me.

Hon. Mr. Grossman: I should remind him -- many people forget and they are wont to forget across in that party -- that the Minister of Reform Institutions at that time, without any prodding from anybody and very early in his career as minister, voluntarily established the policy -- there was no basis for it in legislation or anything of that nature -- that any member of this Legislature at any time, without warning, could go into any of the correctional institutions in this province. There was no attempt at all to hide anything.

What the member is referring to -- and the Ombudsman would be up against the same thing -- is they went into an institution and they had apparently been tipped off that drugs had been hidden in some furniture. When they got there, they ripped it all apart; they asked for a knife and ripped it all apart but found none. They took it for granted that somebody had warned them in advance. Who would have warned them in advance we don’t know because we knew nothing about the occasion when they were there.

The fact is, they probably got a tip from somebody who was trying to create trouble. There was no such thing but when they got there they took it for granted that somebody had tipped them off. Even if that had happened and even if there had been an ombudsman at the time the Ombudsman or one of his officers had walked into the institution, there is nothing to keep somebody from so-called tipping somebody off if they know about it. Or, if they didn’t know about it and they got a bad tip and it didn’t work out that way, the Ombudsman would be in the same position.

I wanted to make that clear because on a number of occasions over the past few years, I’ve been sitting here listening to a repetition of that particular case. An incorrect impression is being put on the record as to what occurred at that time. I see the member for Wellington South smiling because he remembers that occasion very well. I think he will bear out and confirm everything I’ve said on my feet tonight.

Mr. Renwick: He certainly could because he was in default for not investigating.

Hon. Mr. Clement: I would like to hear the amendment read again, as proposed by tile member for Riverdale.

Mr. Chairman: I think we should deal with Mr. Sargent’s amendment first, and if it carries we won’t need the amendment at all.

All those in favour of the amendment proposed by Mr. Sargent will please say “aye.”

Those opposed will please say “nay.”

In my opinion, the “nays” have it.

I declare the amendment lost.

We will now vote on the subamendment proposed by Mr. Renwick.

Mr. Sargent: Mr. Chairman, speaking against this amendment, I feel there is no need to get the Supreme Court involved in this. I want to say that I have the greatest admiration for the new Ombudsman and I congratulate the Premier for his vision in the choice. I think Arthur Maloney, without a doubt, is one of the finest jurists in Canada. I would say he is a man for all seasons in this particular job.

For us to say to him that he cannot have access to any place he wants to go in Ontario, and it has got to be qualified by such a clause as “prejudicial to the public interest,” waters down his powers. Then, to further emasculate him, you are going to say to him: “You have got to go to the Supreme Court if you want to get your wishes.” I think this is a totally negative approach to it. I think we should vote against the amendment and leave it as it is now.

Hon. Mr. Clement: Mr. Chairman, I am just reading the amendment proposed by the member for Riverdale. I have absolutely no aversion to the discretion of the Attorney General being scrutinized by the Supreme Court of this province on a motion properly brought with the proper orders and directions insofar as the press or media are concerned. I have no aversion to it whatsoever.

I thank the member for Grey-Bruce. I don’t think he is being supportive, but I suppose I could lay behind him and say: “Well, I oppose it too.” I think I must take this position and state it very, very clearly, Mr. Chairman. In view of the discussions we had prior to the supper hour about the Ombudsman not being an alternative, I am prepared to stay with the court system. I want to stay with the court system -- and I would be supportive of the amendment.

Mr. Renwick: I am pleased to hear that you would support the amendment, because I wasn’t really talking about sort of a head-on confrontation between you and the Ombudsman. Those things don’t really happen particularly often. I am quite certain that if a complaint came in from an inmate in an institution, and the Ombudsman had an order about that, he would have to consider the question. I am quite certain it would only he where he felt that his obligation to investigate the individual complaint was perhaps an exception to the general prohibition which the Attorney General had put upon him. In other words, I can’t see a situation where the Attorney General is suddenly going to say, “Because you have got a complaint from inmate A, I’m issuing an order that you can’t go into the premises where inmate A is.” I don’t think that happens in the sense of trying to retaliate against inmate A. That is not the problem.

The problem is that the section refers to a notice to the Ombudsman excluding the application of subsection 1 to any specified premises or class of premises, if he’s satisfied that the exercise of the powers might be prejudicial to the public interest.

We’re not talking about the Attorney General dealing as against inmate A. We’re talking about his sense of public interest in that general situation about that institution, because of information which he has and all of that; and we can’t put our heads in the sand about it. I think the Ombudsman may very well find himself in a position where he may say, “Well, look, what I have to investigate is not of the nature that can affect that, and I think my obligation is to investigate it. What I’m saying is that my right of entry should be an exception to the Attorney General’s prohibition about that institution or class of institution because the Attorney General didn’t know about this particular complaint.”

I take it as being read that the Ombudsman is not in a confrontation situation or a person who is engaged in undermining the public interest or the public security. I would like him to feel that he did have an avenue, if that situation arose, of having the matter decided. I understand, and I have the same question in the back of my mind, as to how a court resolves that kind of problem. That’s why I said I put the matter forward more for discussion and to raise the problem than to force a division on the issue or, indeed, to require a vote to be stacked on the amendment. I’m not really saying that.

I’m simply pointing out that in the absence of some such proviso, however it’s worded, it seems to me that the inmate of such an institution is at a disadvantage. The Ombudsman is kind of at a disadvantage because he has difficulty going behind a declaration of the Attorney General that it’s in the public interest, not that everybody be excluded, but that the Ombudsman be excluded from that institution. I don’t know what you do about the unwritten tradition that we as members can walk into that institution. I suppose we’d have to await the event if we walked up to the door and we were refused admittance. We could go to the press or the media or whatever it is and take our chances that our right would be upheld. So I’m not thinking that there’s going to be any arbitrary exercise of the power.

It may well be that you almost have to take it in two steps. You’ve almost got to say to the Ombudsman, “If you feel that your rights require something, maybe you’ve got to go back to the Attorney General and ask that he make an exception in a particular case.” Then, if the Attorney General says, “No, I can’t; he’s got to accept that as being in the public interest, recognizing that the public interest is the obligation of the Attorney General,” I think that a court would be in a very difficult position to decide the question as between the Ombudsman and the Attorney General in a particular instance, and override the Attorney General; therefore, I recognize what the minister said, that he’s quite prepared to throw himself on the mercy of the court.

I really raised the amendment to raise the problem. I don’t think the courts are the proper place to decide that issue. I just hope the record will show that this is a problem, that it must be exercised with immense discretion, that even a general prohibition, by way of notice given by the Attorney General to the Ombudsman, would leave itself open to the Ombudsman going to the Attorney General and saying, “Look, I’ve got this complaint. Will you make an exception in this case so that I can go into that institution to investigate it? Or will you, the Attorney General, investigate it for me since you prohibited me from going in there?”

It’s an utmost good-faith operation, I think, in any situation where the private interest of a private citizen comes in conflict with the public interest. Therefore, I’m not going to withdraw the amendment, but I’m certainly not going to ask that it be placed for a vote. I would like it simply to be on the record as a very important and significant problem.

Hon. Mr. Clement: Mr. Chairman, I don’t think it will happen very often. I hope it will never happen at all. The reason I am very supportive or receptive to the suggestion is that very often it appears in the minds of the public, and certainly in the minds of those who are more partisan than the bulk of the public, that decisions are made, particularly I will say by the Attorney General and the Solicitor General, that really are made for partisan reasons and without any reason whatsoever. I found myself on more than one occasion in this House having to decline to answer what would appear to be a very proper question coming across the floor of this House. Because of certain information, of which I was presently seized, it was in my opinion -- and I have to wear the hat at the present time -- not in the public interest that we have a discussion across the floor of this House because it would actually frustrate the investigation of a certain matter.

It is not very easy to sit here and see this thing happen from time to time. I think if the situation did arise under section 26 the then Attorney General might find it somewhat supportive to make his submission to a justice of the Supreme Court of this province and see if in effect he is acting in the public interest in a judicial sense, because that really is the test -- the judicial sense, I hope, being the public sense. If he is not, then fine, the Ombudsman goes in.

If he fell victim to something that was going on in there, then I think the Attorney General could say: “I didn’t want him to go in. We will get the man who made the order.” I am being a little facetious when I say that, but I think it is not a bad idea to have the type of scrutiny that the court is able to provide, subject to all of the sanctions and conditions the court can impose on the media under the conditions.

Mr. Renwick: Mr. Chairman, if the minister accepts the amendment, who am I to object to it?

Hon. Mr. Clement: It must be right.

Mr. Sargent: Mr. Chairman, finally on this, can the Attorney General be completely sure that this exclusion will be non-political? I notice he wants to include the justice of the Supreme Court to give it further backup value. If you are completely sure that you are on safe ground as being non-political -- and I have made my point that I know that your appointee is non-political -- why not let it read “the Attorney General may by notice to the Ombudsman and the Leader of the Opposition”? He is a man who was voted for by two million Ontario people. He should have some input here as to the value of it. He will never use it, probably. But if you want to be non-political about it, be safe. In order that we all know what is going on, that there is no hanky-panky in the legal process and that it is not part of the political arena, why wouldn’t you include the parallel they have had in England for years past that they have had a member of the opposition sit in the cabinet to know what is going on?

That would never happen in this operation here in Ontario. But in the area of justice, if you want to be non-political and very sure of yourself, why can’t you include “and the Leader of the Opposition or the leaders of the opposition parties”? This might never happen, but that would convince me that this is not a political thing for the election.

Hon. Mr. Clement: I recognize the observations made by the member for Grey-Bruce and I point out to him that the government of this province has been a lot more stable than that of the UK in the last 32 years.

Mr. Sargent: Twice nothing is still nothing.

Hon. Mr. Clement: Perhaps we might consider notifying the leaders of the opposition parties five or six months after the event, because you see you are trying to make it political now by bringing in the political personalities. I am quite prepared to take it out of the political arena completely by a neutral individual, i.e., a judge of the Supreme Court, having the opportunity to review it, and I say that very seriously. This is why I’m somewhat in support of it; not more than somewhat. The more I think about this, I think it’s all right; but I want somebody responsible to review it; someone who is not political, and I’m not being partisan when I say this.

There is an onus on the Attorney General at that time to demonstrate it’s in the public interest because that’s the key. If he found it was political or anything else, he would order the AG to let the Ombudsman go into that institution, fine. Then there has been a responsive action.

People think that those who possess some power would like to assume more. What little power I’ve been exposed to sometimes I would like to share it with a lot more. I’ll share it with a judge of the Supreme Court before I would share it with a member of an opposition party. I’m not really being partisan when I say that, because he might be motivated politically; I would know a judge of the high court would not be motivated politically and I say that in all sincerity. He’s making a legal decision and there would be an onus on me, if I was then the AG, to demonstrate that it was in the public interest.

I think the check and balance is really what you’re looking for. You’re really looking for somebody to veer in on the decision made by the Attorney General who says it’s in the public interest. You say: “How do I know?” I say: “Because I tell you it’s so. We can’t really buy that, maybe, in all instances; but if you have a judge of the Supreme Court of Ontario saying: “I tell you, Mr. Member for Grey-Bruce, that it’s so;” there has to be a point where you draw the line. I suggest that’s a pretty good point.

Mr. Chairman: All those in favour of Mr. Renwick’s amendment to subsection 3, section 26, please say “aye.”

All those opposed will please say “nay.”

I declare the amendment carried.

Section 26, as amended, agreed to.

Mr. Chairman: Is section 27 carried?

Section 27 agreed to.

Hon. Mr. Clement: Everything else is in order, Mr. Chairman. I give you my word.

Mr. Chairman: Does section 28 carry?

Mr. Renwick: Section 28, Mr. Chairman.

On section 28:

Mr. Chairman: The hon. member for Riverdale.

Mr. Martel: Why doesn’t the minister surrender?

Mr. I. Deans (Wentworth): Why don’t you write it?

Hon. Mr. Clement: Not with him.

Mr. Martel: Why don’t you surrender?

Mr. Renwick: I’m curious, particularly about section 28, but also generally about the procedure we often follow of imposing these penalties and then never quite finding anybody to lay the charge for enforcement.

We seem to take the penalty provisions of so many statutes as an automatic barrier to anybody ever breaching them. When anybody ever breaches the statutes we throw up our hands in honor because we can never find anybody who will take the action to impose the penalty.

Presumably here the Ombudsman would if he found himself obstructed in the course of what he were carrying out. He would be the one who would lay the information or the complaint or issue the summons or whatever the appropriate procedure would be to have the person who was in breach brought before the court for determination of the question; and, if guilty, the fine would be imposed.

We’ve so many statutes which have these monetary penalties but when the chips are right down you can never quite persuade the Attorney General or any of the Crown attorneys or the assistant Crown attorneys to get around to laying the charge. They always say to the individual citizen “You must lay the charge.” The individual citizen says, “This isn’t a civil dispute. This is a public interest dispute. I’m not suing somebody. I’m coming to you with a complaint. You’re the officers responsible. You investigate it and if, on reasonable and probable grounds, you think a charge should be lad, you should go ahead and do it.”

I refer in that connection, of course, to the penal provisions of the Landlord and Tenant Act under Part IV dealing with residential tenancies. For practical purposes, it’s impossible to get an assistant Crown attorney or tile Crown attorney to lay a complaint under that Act for the purpose of enforcing the penalties against landlords imposed by that statute.

That’s a long roundabout way of coining to why it is the government of Ontario -- please don’t tell me -- apart from copying the New Zealand statute or the Alberta statute or the Saskatchewan statute or some other statute; would you please tell me why it is you departed from the provision which is in the English statute with respect to obstruction of the Ombudsman in the performance of his obligations? Again in this instance I am not moving any amendment, and the minister and the other members of the assembly may be very glad to note that this is likely to be my last comment on the bill, other than a minor one on section 29.

The English Act takes the other course, and the other course seems to me to be a much better course. It states that if any person without lawful excuse obstructs the commissioner or any officer of the commissioner in the performance of his function under this Act or is guilty of any act or omission in relation to an investigation under this Act which, if that investigation were proceeding in the court, would constitute contempt of court, the commissioner may certify the offence to the court. Where an offence is certified under this section, the court may inquire into the matter, and after hearing any witnesses who may be produced against or on behalf of the person charged with the offence, and after hearing any statement that may be offered in defence, deal with him in any manner in which the court could deal with him if he had committed the like offence in relation to the court.

I know very well there is a great uproar every now and then whew the courts exercise their power with respect to contempt, but in a strange way the exercise of that power is a much greater protection to the public, both in its private capacity and in its public capacity, than the actual penal provision such as this because so many times these penal provisions are honoured by never being enforced in most of the statutes that we pass, regardless of the breaches which take place.

I would like to think it may be that peculiarly the office of the Ombudsman lends itself to saying that the proper way to deal with wilful obstruction of the Ombudsman in the performance of his office is better dealt with through the facility or through the avenue of the contempt proceedings in the court, rather than by the traditional method of saying he is guilty of an offence and liable on summary conviction to a fine of so many dollars or imprisonment for a term of not more than three months, or to both.

First of all, you avoid the quantum problem. Who can tell whether or not $500 or imprisonment for a term of not more than three months, or both, is an adequate penalty in relation to the job which the Ombudsman has to perform and the obstruction to which he may be faced? Those things must be numbers games. I am quite certain they must have either a roulette wheel or one of those baskets with the balls in them to decide which particular dollar amount they are going to put on any of the penalty clauses in a particular statute, because the variation is immense.

My question, and I am not going to pursue it other than to ask the minister why do you follow that course rather than the certification to the court for consideration by the court as to whether or not this is equivalent to contempt?

Hon. Mr. Clement: I don’t know, Mr. Chairman, other than probably in the interest of expediency it is sent before a summary conviction court and dealt with, presumably at that particular point. I note that the New Zealand legislation dealing with offences only deals with the fine not to exceed £50. Our colleague from Downsview deals with a fine only, not to exceed, as I recollect, $500. He doesn’t deal with any incarceration. The Province of Saskatchewan, in its 1972 legislation, deals with a fine and/or imprisonment under section 32 of its Act; it’s $500 and/or not more than three months. Alberta is the same; and Nova Scotia is a fine not to exceed $500.

There are, I am advised, many other situations in connection with investigations than the situation to which contempt usually applies. For that reason, and in looking and perusing and studying the legislation of others who have followed the route of the office of the public commissioner or the ombudsman, we have opted to have the two; i.e., not more than $500 and/or not more than three months imprisonment.

What we are trying to do, Mr. Chairman, is just save a step in the procedure, as opposed to stating in effect a case for consideration of a higher court on a contempt type of offence.

Mr. Chairman: Shall section 28 carry?

Section 28 agreed to.

On section 29:

Mr. Renwick: On section 29 -- this is my last comment -- I think it’s very important, in light of the discussion we had earlier today about the question of exhausting remedies before you could go near the Ombudsman and the problem that raised, that the amendment which we proposed and which was defeated by the government in the vote which was taken about 5 o’clock this afternoon, has got to be reconsidered by the government. It has to be reconsidered because section 29, as a matter of interpretation, reinforces the prohibition imposed on the Ombudsman by section 15(4), which precludes the Ombudsman from dealing with any matter “until that right of appeal or objection or application has been exercised in the particular case, or until after any time for the exercise of that right has expired.”

Section 29, which appears to be additional, enlarging the rights of the citizen, as often is the case stated in that kind of glowing language, is indeed reinforcing the prohibition imposed on the Ombudsman under section 15(4).

Disguised as saying that this is in addition to any other right which he has, it reinforces the proposition that the Ombudsman can’t come anywhere near him or her, or he or she to the Ombudsman, until such time as the rights have been exhausted, because this clause says:

“The provisions of this Act are in addition to the provisions of any other Act or rule of law under which any remedy or right of appeal or objection is provided for any person, or any procedure is provided for the inquiry into or investigation of any matter, and nothing in this Act limits or affects any such remedy or right of appeal or objection or procedure.”

The language is inconsistent with section 15(4).

Anyone reading that would say, “Why, as a citizen, the government has granted me some additional rights and protections that I didn’t have before.” But it’s got to be read in the light of the fact that so long as subsection 4 does not have the benefit of a proviso similar to the one we tried to have passed this afternoon, all it does is preclude the citizen from approaching the Ombudsman until he has exhausted his remedies at law. And when I say at law, I mean not just at the common law, but the remedies provided in the various remedial statutes which were passed as a result of the McRuer report, and particularly the one which I emphasized this afternoon, the provisions of the Judicial Review Procedure Act.

I may say that the particular case I referred to of the boy with the learning disabilities, I think, I hope, will be studied by the government because of the appeal to the court which had to be taken there, the understanding that the Ombudsman couldn’t have intervened in that case, and because substantially similar cases will come again.

Really, as this debate draws to a close, on behalf of my colleague from Lakeshore (Mr. Lawlor) and myself -- my colleague from Lakeshore hasn’t been here to participate in the last couple of days or undoubtedly we would have been finished much sooner with the debate -- I think what we are really saying is that subject to the defeat of our amendment with respect to reporting; subject to the defeat of our amendment with respect to the limitation imposed on the Ombudsman by the oath which this assembly is going to impose; subject to that amendment which we lost this afternoon at 5 o’clock; and because the Attorney General has accepted some of the other amendments which we have proposed not on the basis of partisanship but on the basis of what the debate in this assembly is all about, we think, subject to those three things and with the openness of the Attorney General to those other matters, that the bill, for a starter, is a substantial improvement on other bills.

If the assembly chooses the route of a select committee for the working out of general rules, and if there is a select committee as a continuing operation to whom the Ombudsman reports -- not for the purpose of appropriation -- and if the select committee reports to the assembly and if the government feels under an obligation to respond, I think the bill will be an immense advantage to the people in the province. Thank you.

Mr. Chairman: Shall the section carry?

Section 29 agreed to.

On section 30:

Mr. Stokes: I have a brief comment to make on section 30; it seems to be the only place where one is given an opportunity to ask. Once it is passed and proclaimed by the Lieutenant Governor, how do you see the office of the Ombudsman working for people in areas of the province which are very remote since all inquiries must be in writing? Do you see a branch office in certain areas of the province?

How are you going to overcome the great distances with regard to statutes of limitations and things of that nature? Do you see any problem arising or is it too premature even to suggest that you have your mind made up with regard to the logistics of operating the duties of the office of Ombudsman under all circumstances?

Hon. Mr. Clement: Mr. Chairman, there were discussions here, perhaps as long ago as a week, and even today, about area or regional offices and a mobile office or offices. I said on both of those occasions and I must take the same position now, this is a decision the Ombudsman is going to have to make as he sees matters unfold. He is really going to have to make ad hoc decisions.

There may be a terrific demand in a certain geographic area for his services over a rather short span of time and, lo and behold, in six months’ time it may diminish if not disappear and transfer to another geographic area. These are things the Ombudsman is going to have to decide on as he sees it unfold with the experience that comes Isis way.

I don’t think we can overlook the fact that as he takes his office there will be a tremendous surge on his resources -- physical, financial and personnel-wise -- by those individuals who have been harbouring rightly- or wrongly-conjectured opinions as to how they have been dealt with by some agency or level of government. When that initial surge disappears or starts to level off, I think the Ombudsman will be able to perceive almost a pattern and he will have to react.

When he comes in here for his resources through the request of the Office of the Speaker, I am confident this assembly will be very supportive, because who is going to oppose it? He has to demonstrate his case and say: “I need these resources, ladies and gentlemen of this Legislature, and you are going to have to support it. If you don’t then the office won’t function.” I think it is going to have to be based on his experience as he sees it unfold.

Sections 30 and 31 agreed to.

Bill 86, as amended, reported.

Hon. Mr. Clement: Can I say what I really think now? I am glad that both parties were very supportive of the bill. I refer back to a week ago tonight as I heard the tributes paid to the office of Ombudsman and I am only glad it wasn’t opposed, Mr. Chairman. It moved through very expeditiously and I thank you for your assistance, too.

Hon. Mr. Clement moves the committee rise and report.

Motion agreed to.

The House resumed, Mr. Speaker in the chair.

Mr. Chairman: Mr. Speaker, the committee of the whole House begs to report one bill with certain amendments and asks for leave to sit again.

Report agreed to.

FAMILY LAW REFORM ACT

Hon. Mr. Clement moves second reading of Bill 75, An Act to reform certain Laws founded upon Marital or Family Relationships.

Mr. Speaker: The hon. member for St. George.

Mrs. M. Campbell (St. George): I wondered whether in the first instance the member wished to make any opening comments on this.

Hon. J. T. Clement (Provincial Secretary for Justice): I will make a brief comment, if I may. Mr. Speaker, I believe about one year ago my predecessor introduced into this House a bill and made a rather lengthy statement at that time, indicating that he was putting forward the bill in an effort to attract criticism, comment, argument and so on. The bill was introduced June 25, 1974, and bore the number Bill 117. He said at that time, as I recall, that he was going to let it die on the order paper.

Between that point and until the introduction of this bill, my ministry received many comments and observations and had some personal meetings with different interested groups, which is exactly what the bill was set out to do. After meeting with these groups and reading their briefs, observations, criticisms, critiques, arguments and so on, the bill was redrafted and is now Bill 75.

I hope that I make this perfectly clear because it was felt that some of those observations offered by interested individuals in the past could not really be developed until we had in our possession at least the recommendations of the Ontario Law Reform Commission, really on the supportive role. That set of recommendations was received by me from the printers some five or six weeks ago -- not more than that -- and has been filed in this House.

In the meanwhile, we wanted to go forward with this bill which is now before us and study the observations of the Ontario Law Reform Commission which are now public. Again I am sure we will receive comment and indeed we have received some. Then we can go on with it in the fall. I just wanted to make this clear. I know the member for St. George understands this because we have had private discussions in the past.

It’s an ongoing thing. It is not being chiselled in stone forever. It has to be an ongoing thing, taking into consideration all those components and facets which must be considered when dealing with family assets and the rights of the members of the family to participate in them. Thank you.

Mrs. Campbell: Mr. Speaker, yes, indeed. I have discussed this matter from time to time with the Attorney General. It is a very difficult thing. Whenever we are called upon to discuss legislation as it may pertain to women, that one is always faced with what I can only call the perversity of this government.

Mr. F. Laughren (Nickel Belt): Right on. She has said it all.

Mrs. Campbell: Whenever we have a question dealing with the very obvious matters of discrimination as they apply to women, we have the same limited, niggardly kind of approach which can only create problems. I don’t understand why for once we couldn’t at least come forward -- and it’s unfortunate, Mr. Speaker, that on the government side, there really are no spokesmen for the rights of women. It’s to be hoped that after the next election that will be changed.

Mr. J. R. Breithaupt (Kitchener): It will be.

Mr. Laughren: It certainly will.

Mrs. Campbell: In the first place, Mr. Speaker, this bill falls under the same criticism which I feel has to be levelled at the commission report itself. It dodges the basic issues. We’re apparently not concerned with what legally constitutes a marriage. We really are only concerned with what happens in trying to sort out the pieces after it has fallen apart. In my submission this is a very dangerous way to approach this situation because flowing from that sort of approach, we get the kinds of disabilities that continue in this legislation.

We could have, in other words, attempted greatness. Instead of that we go fumbling along, lead-footed, trying to meet the problems of today in today’s society.

Well, what has this bill done? I have to give it some credit, of course. First of all, it has apparently realized -- I trust it means what it says and I trust that all of those in the financial arenas of the community will now understand it -- that a married woman is a legal personality, independent, separate and distinct from that of her husband. In other words, presumably we have now lost that barrier to married women which has precluded her from establishing credit and doing all sorts of other financial transactions which are a bar to her today, particularly if her husband happens to have a bad credit rating. So I suppose, in that halting way, we’ve taken one step forward; but interestingly enough, she is independent, separate and distinct -- almost, and this is what I cannot understand.

The federal government didn’t have the kind of barriers that are in this bill. She is independent, separate and distinct except that she must continue to maintain the domicile of her husband. I look at what was done in the employment standards legislation, and here is this same halting, picayune, niggardly philosophy. “There,” the government said, “We cannot give full equal opportunity. Heaven forbid; that’s too tough for us to do. But, meanwhile, what we will do is take away your tights to protection.”

This at a time when one of the Tory back-benchers says we are into one of the worst times in our history for violence and everything else. There was no plea from that back-bencher on behalf of women to be protected when they had to work late hours. That was just fine in this philosophy.

Hon. Mr. Clement: Tell me why she should have her own domicile. I would like to hear some argument or debate on that if I may.

Mr. E. J. Bounsall (Windsor West): The minister will.

Mrs. Campbell: Because she is an independent, separate and distinct human being.

Hon. Mr. Clement: What about the children?

Mrs. Campbell: What about the children in the divorce action?

Hon. Mr. Clement: No, tell me their domicile. I want to hear the member’s argument on that.

Mrs. Campbell: All right I think that can be arrived at in exactly the same way as one does in matrimonial causes. The wife can establish her own separate domicile and for purposes of tort action or for any other type of action, she should still be able to sue; she should still be able to retain her own domicile; and she shouldn’t be required to defend whenever a husband chooses, for example, to sue. This is an interesting sort of thing.

Hon. Mr. Clement: The member and I are going to have some argument on that.

Mrs. Campbell: All right, I’m with the minister.

Hon. Mr. Clement: Good.

Mrs. Campbell: The thing that is important is that as long as the minister says she is independent, separate, and distinct, that she is to be in the same position as an unmarried person, he has to follow through all the way. Otherwise, he is going to have the woman getting no benefit in credit or anything else on this particular clause which I thought he was trying to overcome with it.

I thought he was saying a woman can take legal responsibility for her actions and therefore no one should be in a position of denying her the same opportunities, for example, of establishing a line of credit or any mortgages or anything else which is precluded to her today. But if he has the same situation in that he has her domicile as that of her husband, I invite him to resolve the problem in our mutual debate. I would be interested to hear.

Of course I have to give credit that this bill does attempt to meet the confines, if one likes, or one of the specific aspects, of the Murdoch case. I think probably a court would come to the conclusion that that is the meaning of the provisions of this statute. But one of the things this bill does not deal with is the very tortured and tortuous question of the matrimonial home.

Mr. Speaker, I have some sympathy with the Attorney General in this matter because I attended the conference at which women were gathered together to discuss the matter of the matrimonial home. By the way in which the conference was set up, women lawyers were precluded from participating except as observers. That was interesting because the women lawyers probably had something useful to say.

But again some kind of perversity in this government said: “Oh, we mustn’t let women lawyers in on this kind of a deal. They may sit and advise. They may open their mouths if they’re requested.” Most of them walked out in a great deal of resentment and the matters proceeded without the kind of advice that I think ought to have been available.

With that in mind, certainly the resolutions which came forward were really very remarkable. I couldn’t really blame the Attorney General too much if he didn’t know just what the trend of it was, partly because a great many of the resolutions were not permitted to be put. One of the most interesting resolutions coming out of that -- and I say it perhaps with prejudice because it happened to agree with my own thinking -- was that basically there shouldn’t be any special treatment accorded to the matrimonial home, but rather the total assets should be looked at; that if one were discussing the matrimonial home, one certainly ought to provide that the home, in effect, was a home provided for the children basically and that their rights were the rights which ought to prevail if they were issue of the relationship. That wasn’t put to that great conference, so undoubtedly the minister never saw it as a resolution.

Surely if we review what a marriage is at its inception, it is much easier for us to follow a line of logic to the conclusion as to what should happen to assets of a marriage. We should not simply try to distort this long-awaited piece of legislation into some oversimplification of an answer to the Murdoch case. I think the minister has fallen, with respect, Mr. Speaker, into the same trap as the commission itself did. It was one of the least happy reports of a commission which on the whole, it seemed to me, was great. The fact of the matter is that it didn’t come to grips with the marital relationship.

Some of the provisions here are provisions which are useful. I think at this point in time the right of a wife to pledge her husband’s credit for necessaries is probably something which will have to be retained for the time being, until this government is prepared to accept a different type of formula for the very real rights of a wife who maintains a home and a family and contributes in that fashion to the welfare and success of her spouse.

One of the things which really bothers me deeply in all of this is that apparently the minister is so afraid of dealing with the woman’s issue in this International Women’s Year that you must now turn and try to drag in -- and in an inappropriate way, in my submission -- the matter of the rights of children. Let me hasten to say, Mr. Speaker, that I have been one of the strongest proponents of a bill of rights for children and of adequate and proper legislation to protect those rights; and I think you are aware of some of the steps which I have taken to try to protect rights which are not presently protected in the courts.

It seems to me that to bring in this type of an issue in this kind of a bill may well create a distortion in what are called family relationships. There is no question that the royal commission recommended a right of action for pre-natal injuries and so on; and I am certainly not standing here in opposition to that. But it seems to me that we should first get the marital relationship or the family relationship of husband and wife into some kind of context. And, of course, we should be dealing in depth with the rights of children. One of the things that bothers me is that when you do it in this haphazard way, you really don’t resolve anything and may, in fact, create more problems than you resolve.

I wrestled with the earlier bill and the earlier types of mathematical exercise, and I have to admit that I found them less than satisfactory. But it was really because of the same reason, that you were dealing with a situation as it broke up and not with the situation as it started out.

Mr. Speaker, there is so much today and there are so many forces today at work to destroy the family, that surely this is a golden opportunity instead to strengthen that relationship at its inception by letting both parties know what the meaning of this marriage is in legal terms, quite apart from the spiritual or religious connotations; to understand and to give dignity to those women and the role they play, where they do not go out into the marketplace but where they maintain a home. There is no such concept here at all. None at all, really. You would have to distort the Murdoch section, if I may call it that, to really get it to have that kind of meaning.

I am in this awful position because in general it does do the niggardly things -- in fact, isn’t it great, at long last a married woman may act as guardian ad litem or next friend? You know that has really taken us out of the dark ages, I guess. What a magnificent reform that is. Let the bells ring out, surely.

Hon. Mr. Clement: There should be a lot of celebrations over that one.

Mrs. Campbell: Yes, I can see it could be. But why the littleness? What is this government afraid of? I can’t think of anyone less afraid of public opinion than this Attorney General. I’m sure, Mr. Speaker, that he is not a person who can’t go to his best friends, who may be male, and say: “Look, I had to do something about it, now d-d-d-don’t criticize me.” I can just see him getting around the chauvinist criticism with one of his charming smiles.

Why doesn’t he do it? Why doesn’t he really say what he means about this relationship in law and provide for women to have a sharing of the assets of the marriage? But there really isn’t that. “Where a husband or wife contributes work, money or money’s worth in respect” etc. etc. The minister really does have the excuse, because never was there a time in history when there were more women putting their husbands through college and university, and all the rest of it, to really give a man a break on this section. Does he know that? Does he realize that?

He can give them a great break. What he really is doing, of course, is simply that. But let him go all the way. Let’s look at all of the assets of the marriage. Let’s look at that kind of contribution which a wife makes, in educating her husband through university, and not thinking in any other terms.

Hon. Mr. Clement: He becomes the family business, so to speak?

Mrs. Campbell: Yes, but does it under these terms?

Hon. Mr. Clement: I’m asking the member, is that what she’s saving, that he becomes a family business.

Mrs. Campbell: It seems to me that that is important aspect, if one deals only with the breakdown of the marriage. If the minister was in the family court --

Hon. Mr. Clement: If I hadn’t had estimates I might have been there.

Mrs. Campbell: -- it’s an interesting thing to see how many times a woman will go through this exercise and then, once the husband has achieved his profession, he takes off and that wife has no recourse.

I don’t know what recourse she would have even under this bill. I really don’t know how one would sort out that contribution which occurs prior to the time when he becomes a professional person. I don’t see that that kind of thing is provided for either. I suppose that if he gets through law and opens an office and she goes in and works in the office, that can be contemplated under this bill.

But what about those cases? I don’t know how many there are but there are a great many of them. There have been a great many of them, I guess, almost ever since the second war. But the minister hasn’t provided for that. I think she would still be in the position of going laboriously to family court and trying to get an order for maintenance.

I’d like to have the Attorney General clarify that, because I’m not sure. If he thinks it’s covered, I would like to have his advice as to how and where in that section.

Mr. Speaker, we will be discussing this clause by clause as it goes forward. As I say, we’ve gone some baby steps forward, and it’s not a case where I believe that by opposing this bill I’m achieving any possible reform, or any possible change. As so often happens with us, we are in the position where it is better to take a little than to take nothing. I would have liked to see this Attorney General rise to the great heights to which I feel sure he might have done, perhaps, if left alone in the cabinet.

Hon. Mr. Clement: If I didn’t have estimates, I might have been there.

Mrs. Campbell: Mr. Speaker, may I then invite the Attorney General to take another look at this bill, if there is a chance of rising to those great heights.

Hon. Mr. Clement: I will this summer, I promise the member for St. George. You and I in my airplane.

Mr. J. A. Renwick (Riverdale): Don’t pay any attention to him.

Mrs. Campbell: That is just the trouble. This bill, in effect, will cast in concrete the role of a married women for another 100 years.

Hon. Mr. Clement: There is no fear of that.

Mr. Bounsall: The minister’s pace is slower than a snail.

Mrs. Campbell: All I can say is that even at that risk I probably and reluctantly am going to support the bill with all of the amendments which we well know the Attorney General will accept. Thank you, Mr. Speaker.

Mr. Speaker: Do any other members wish to speak on this bill?

Mr. Bounsall: I wonder, it being the hour that it is, if we couldn’t move the adjournment of the debate?

Mr. Speaker: I was just going to suggest that.

Mr. Bounsall moves the adjournment of the debate.

Motion agreed to.

REPORTING OF COMMITTEE

Mr. I. Deans (Wentworth): Mr. Speaker, before we move the adjournment of the House, there is a matter I want to raise with you.

On Tuesday evening unanimous consent of the House was given for the committee studying Bill 100, in accordance with a report of the procedural affairs committee, to record the proceedings of what we consider to be a bill of special importance.

I want to read to you, if I may, from page 2947-2 of the Instant Hansard, in which I said:

“Well, I may, just before you move the motion I want for clarification purposes, to make it clear that that would dispense with the need for the committee to return to the House to receive unanimous consent, that in essence the members present are in effect giving unanimous consent to the committee, if it is the committee’s wish to have the hearings recorded.”

We went on for some length. The member for Riverdale spoke; and then I asked the House leader the following, which I am taking out of context, but it is the only part I am interested in:

“I think we all agree that this is a bill of special importance and that this particular phraseology that’s contained in that particular section of the proceedings was intended to be used on just such an occasion. [Referring to the report of the committee previously].

“What we are doing is obviating the necessity of the committee coming back to the House but rather we are saying to them in advance that it would be our wish that you would record the hearings and that there is a way it can be done and you don’t have to come back to ask for permission. It is already given to you. Is that right?”

The House leader, the Chairman of the Management Board (Mr. Winkler), then said:

“Exactly correct, as we discussed it, Mr. Speaker; and that the committee will be informed of our consent.”

I don’t want, any more than anyone else, to start directing committees on all things pertaining to their deliberations. But there are times when this House must surely say to a committee that those matters should be recorded in order that all of us, every single member, can have available to him or to her the words that are spoken in the committee. not only by members of the House but by outside groups appearing at the committee for the purpose of making known their desires with regard to legislation. It isn’t possible for every member of the House to sit in the committee, yet it is absolutely essential for every member of the House to have access to all of the presentations. The presentations are not necessarily written, and therefore it is entirely possible that much of what is said by many people who have a deep concern about education and that particular bill will not be available to those of us who are unable to take part in the deliberations because of the decision of that committee.

I am asking you, sir, as the Speaker, acting on behalf of the interests of all of the members of this House, that we should make it clear through you, and you on our behalf to the committee of the House, that we would want that committee’s deliberations to be recorded. It is simple and it is not infringing on their rights to conduct a hearing in whatever way they wish. It is simply ensuring that whatever is said about the legislation, in favour or opposed, and whatever is said about it in terms of amendments, will be there for all of us to see and to refer to as we go about talking about the education of the Province of Ontario. I would ask that you do such a thing on our behalf.

Mr. Speaker: On a point of clarification, it is my understanding that the matters are being recorded.

Mr. Deans: They are not.

Mrs. Campbell: No, they are not.

Mr. Speaker: Oh, is it a physical limitation?

Mrs. Campbell: No.

Mr. Bounsall: The recording equipment was there.

Mr. Speaker: The committee voted not to do so? Well, this is the first I have heard about it.

Mr. Deans: We did say we wanted it done.

Mr. Bounsall: And we had agreements.

Mr. Speaker: The House gave permission --

Mr. D. M. Deacon (York Centre): Mr. Speaker, could I say something on this matter? During the discussion in the committee the concern of the committee was, with justification, I think, that we were spending a lot of money on the extra Hansard for this and unnecessarily because it wasn’t of value.

When the whole suggestion for recording first came up, I think some of us pointed out the value that we found in select committees of having available to us for reference at some time, not in printed form but simply in typed form, what had been said by those who were presenting their arguments in discussion. In this particular situation, some of us have expressed the concern about our standing committees, as the previous speaker mentioned, that we haven’t had those arguments available to us as we consider these matters in the House here; and since many of the members can’t be present at the standing committees, then we should have these matters recorded. That was the understanding, I thought, for the procedural affairs committee in bringing in their recommendation that there be available, if the House so decides, a recording of the events and whatever went on in that committee.

I am certainly disturbed by the events today, and I think the decision might have been different had we indicated to certain of the members of the committee that we weren’t insisting on a printed Hansard but that we did want to have a record of what went on. I would urge the House to indicate to the committee that this record would be useful in the later consideration of the committee’s report.

Mrs. Campbell: Mr. Speaker --

Hon. J. P. MacBeth (Minister of Labour): Mr. Speaker, if I may --

Mr. Speaker: May I ask further, when you talk of just a recording on tape, do you mean you don’t want it transcribed?

Mr. Deacon: Just typed and available to us.

Mr. Deans: Rough copy.

Mr. Speaker: Oh, I just wanted to clarify that. The hon. minister.

Hon. Mr. MacBeth: I just want to speak to the matter briefly, Mr. Speaker. My understanding of the discussion last evening was along the line that the committee was free to make its own decision as to whether or not recording should be done.

Mr. Deans: Not in the end.

Hon. Mr. MacBeth: Now, there was certainly no direction from this House last evening that the proceedings should be recorded, but if the committee decided it wanted it recorded, then it was free to do so. It was left up to the committee. There was some indication given here that it was thought the proceedings were important, and on that basis the committee was free to make that decision. However, I understand the committee decided not to record, and I think that was the way it was left last night; they were completely free to decide whatever way they wanted.

Mrs. Campbell: That isn’t the way it was.

Hon. Mr. MacBeth: I think the House leader’s own thought in this matter is that the committee should be free, if possible, to make their own decisions as to procedures. So, I think that we should stick with the decision that was made last night, sir.

Mrs. Campbell: Mr. Speaker --

Mr. Speaker: Order, please. It’s just a little unclear to me. Permission was granted by this House. Now, in the orders, as I recall them from some months ago, the instructions as laid down -- I think the hon. member for Riverdale read them the other night -- it’s unclear as to who shall direct, whether it’s the House or the committee. If you just leave it with me overnight we’ll try to resolve this difficulty. I understand the wishes of those who have spoken and those who I think were about to speak. If you just leave it with me, we’ll arrive at some procedure to accomplish the wishes of the House.

Mr. Renwick: Could we discuss this in the morning, Mr. Speaker, before you come down on the wrong side?

Mr. Speaker: There won’t be anything going on between now and tomorrow morning, I expect, is that right? If you will leave it with us, we will work out a procedure to clarify this tomorrow morning.

Mr. Breithaupt: I was going to suggest, if I might, Mr. Speaker, there seemed to be a matter which had come before the House and which was considered by the House at that point to be of special interest. I think it may well be that consideration should be given within the procedural affairs committee to review this second portion of that earlier recommendation. There may well be some members of the House who feel, consent having been given by the House, the committee should then proceed without question to record these matters.

I think, on the other hand, what has happened is that while the intention of the House has been suggested, the committee, of course, has remained free to do as it wished. If we are at some possible cross-purposes in this matter it may well be that this word “consent” may have to be reviewed so that it will be either a matter of the direction of the House sitting as a body or it will be the decision of the committee with only an encouragement from the House.

It may well be that this will have to be reviewed, because I would think there is without question, at least in my mind, a most important bill now being discussed and one of special interest in the terms of that resolution. To think that as a result the deliberations are, unfortunately, not going to be available to us in some permanent form is regrettable. I would think we would do well, using this example of a bill which I believe is of special interest, to resolve this difficulty.

Mr. Speaker: That’s exactly what I tried to say in a few words. We will report in the morning before we start.

Mr. Renwick: Before the adjournment of the House, are we continuing with this bill tomorrow and then the Minister of Labour’s bills?

Hon. Mr. MacBeth: It is my understanding we will proceed with the bill that was being discussed before.

Mr. Renwick: And then the minister’s bills or the bill of his colleague, the Minister of Consumer and Commercial Relations (Mr. Handleman)?

Hon. Mr. MacBeth: Subsequent to that, I have the Liquor Licence Act. I am prepared to proceed with my bill and will be here, but the order I have is the Liquor Licence Act, so I think the minister will be prepared to proceed with that.

Hon. Mr. MacBeth moves the adjournment of the House.

Motion agreed to.

The House adjourned at 10:40 o’clock, p.m.