PROVINCIAL OFFENCES STATUTE LAW AMENDMENT ACT
PROVINCIAL COURTS AMENDMENT ACT
UNIFIED FAMILY COURT AMENDMENT ACT
PROVINCIAL OFFENCES AMENDMENT ACT
PROCEEDINGS AGAINST THE CROWN AMENDMENT ACT
SUPPLEMENTARY ESTIMATES, MINISTRY OF THE ATTORNEY GENERAL
CONCURRENCE IN SUPPLY, MINISTRY OF THE ATTORNEY GENERAL
The House met at 10:02 am.
Prayers.
Mr. Nixon: Mr. Speaker, it might help if the government House leader (Mr. Wells) were to remind his colleagues that we do not have prayers at two o'clock and that we dive right into the important business of the day. I think that is what kind of messed things up yesterday.
Mr. Speaker: Was there some doubt?
Hon. Mr. Wells: Mr. Speaker, I thought it might have been nice if we just sat through lunch, but we decided it was better to have an hour's respite from the heavy duties here. We will certainly be sure everyone is here at 2 p.m.
PROVINCIAL OFFENCES STATUTE LAW AMENDMENT ACT
Hon. Mr. McMurtry moved second reading of Bill 140, An Act to amend certain Statutes relating to the Commission of Offences by Young Persons.
Mr. Speaker: Do you have a statement?
Hon. Mr. McMurtry: I have no opening statement other than what I said when I introduced the legislation, Mr. Speaker.
Mr. Breithaupt: Mr. Speaker, we certainly will support Bill 140 on second reading.
As the Attorney General (Mr. McMurtry) explained when he introduced the bill, it is necessary to have certain legislation that will attend to those charged under provincial offences at the same time as the new Young Offenders Act will apply to those persons who are charged under both the Criminal Code and other federal statutes.
The act before us today is going to apply to young persons as modifications to the Provincial Offences Act for those who have been alleged to have committed provincial offences; but, of course, the trials will be held by judges of the provincial court, family division, and of the unified family court.
It is interesting to note in the discussion paper sent around by the Attorney General that the numbers of people involved in these kinds of matters are fortunately quite small by proportion. The examples he has given of careless driving, driving a motor-assisted bicycle under the age of 14, trespass and certain liquor offences are the kinds of events which, unfortunately, a number of our young people do get involved with from time to time.
It was of interest to me that in the past several years, in 1980 particularly, there were almost 600,000 people in that 12 to 15 age group. In fact, the figure provided was 581,500. On the other side of the coin, some 2,600 charges were laid for various provincial statute violations, or one charge for every 223 people. One third of those charges, it so happened, were dismissed.
More than eight times as many charges, some 20,000, are laid in Ontario annually under the Criminal Code and other federal statutes. As a result, we are dealing with only one tenth the volume of these matters and similarly. I suppose by proportion in terms of the number of charges dismissed, a population that is fortunately very small in these matters.
I realize this statute and several of the others we will deal with today are required because of certain technical changes and the implementation of the new federal legislation. We accept the proposals that have been made by the Attorney General to bring all of these matters into one pattern before the new Young Offenders Act is in place.
As I have said, we will support the bill on second reading.
Mr. Renwick: Mr. Speaker, we will support the bill. However, I want to express a concern we have in this caucus with regard to what appears to be an unco-ordinated, haphazard and piecemeal introduction of legislation related to the Young Offenders Act.
The impetus to the government to take any action to prepare the province for the transition to the Young Offenders Act seems to be totally lacking. Control is exercised entirely by the whim of the Solicitor General of Canada as to which day he wants to proclaim the act. We are being asked, in the dying days of this session, to deal with Bill 140 and two other bills later on this morning simply because the Solicitor General of Canada has said the Young Offenders Act will come into force on April 1, 1984.
I would he interested in knowing what response the ministry received to the discussion draft circulated in August 1983. I would like to know who responded and to what extent there was an attempt to get some ongoing consultation among those concerned about the substance of the bill before us.
I would like also to ask the Attorney General what his intentions are with respect to the effect of the legislation when the 16- and 17-year-old persons come under the Young Offenders Act a year later, on April 1, 1985.
It seems to me there has to be some information available from the Attorney General as to the impact on the provincial courts, family division, and the courts that are going to deal with the young offenders for offences under provincial statutes. We must know that the capacity of those courts -- we will be designating them as youth courts later this morning -- will be able to cope with the additional influx of persons into their jurisdiction.
After those cursory remarks on this topic, our caucus will support the bill. We have no other alternative. Perhaps the Attorney General would care to comment about some co-ordination of the impact of this legislation on the court system when those 16- and 17-year-olds will come under the provisions of this new part of the Provincial Offences Act.
10:10 a.m.
Hon. Mr. McMurtry: Mr. Speaker, I share some of the concerns expressed by the member for Riverdale (Mr. Renwick). I think it is unfortunate that it is necessary to introduce this bill in the dying moments of this session, as he puts it, because given the lack of meaningful consultation that was taking place between the federal Solicitor General and the provinces, we had reason to believe that the April 1, 1984, date was an unrealistic date.
Given the commitments in relation to adequate funding that had been made some time ago when this young offenders legislation was introduced and the fact that these commitments simply have been largely ignored, we were rather surprised when the federal Solicitor General stated they were not going to budge from the April 1, 1984, date so far as young offenders up to the age of 16 are concerned.
In any event, our discussion draft, several hundred copies of which were distributed in August, seems to be have been quite favourably received. We have had a number of favourable replies. I do not recall any specific opposition to the draft.
As the honourable member points out, the April 1, 1985, date does present some interesting challenges with respect to the designation of the youth court for the 16- and 17-year-olds. It is fair to say, and I think I stated this in my statement on introduction of Bill 140, that no decision has been made with respect to which court is going to be designated as the youth court for 16- and 17-year-olds. There may be some expectation that the family court will be designated as a youth court for 16- and 17-year- olds, but I have to state frankly that no decision has been made in relation to that designation. Obviously, if the family court were to be designated, this would represent a very significant increase in the work load; an increase that would come directly from the provincial court, criminal division.
I expect to be discussing this issue in some detail with my Justice critics during the spring as we wrestle with the decision as to what should be the proper designation as of April 1, 1985. This legislation really is interim or bridging legislation pending the decision that has to be made and legislation to be introduced prior to April 1, 1985. I will once again welcome the views and advice of my Justice critics with respect to this important decision that has to be made in the relatively near future.
Motion agreed to.
Bill ordered for third reading.
PROVINCIAL COURTS AMENDMENT ACT
Hon. Mr. McMurtry moved second reading of Bill 149, An Act to amend the Provincial Courts Act.
Mr. Speaker: Do you have a statement?
Hon. Mr. McMurtry: No, Mr. Speaker. I have nothing to add to the statement I made when I introduced the bill.
Mr. Breithaupt: Mr. Speaker, I presume once again the Attorney General will not have a statement in that he did give us the explanation of these particular matters on the introduction of not only Bill 149 but also Bill 150. These two bills make the designation with respect to the youth courts, as has been explained by the Attorney General.
I acknowledge that this is, in effect, a form of bridging legislation that is going to deal with these matters immediately and that this will be reviewed before April 1, 1985. We will support this bill; and I do not think there is any requirement to make any remarks on Bill 150, we will also support that in principle.
Mr. Renwick: Mr. Speaker, my comments will also deal with both Bill 149 and Bill 150, because they are substantially for the same purpose, and it is only because we have the unified family court operating in one area of the province on a transitional basis to a more permanent extension of that system that we have the two bills before us today.
The concern I intimated when we were speaking on Bill 140 a few minutes ago is uppermost in my mind. I can well understand that this interim arrangement has to be made. However, I am concerned that I did not have any indication that I can recall from the Attorney General about what the thinking is and what process the ministry is going through to come to some conclusion, a year from now or in the spring or the fall of the coming year, so that we to be prepared to deal wholeheartedly with the different philosophy embodied in the Young Offenders Act as it relates to not only the provincial offences which we dealt with a few minutes ago but also the offences under the Criminal Code which will be tried in the youth courts under the Young Offenders Act.
I draw to the attention of the Attorney General, in case he had not noted it, that I had asked during consideration of the estimates of the Ministry of Correctional Services, for some information about the numbers of 16- and 17-year-old persons entering into the system. Dr. Birkenmayer provided the committee at that time with the admission statements. The particular data he supplied to us showed that 3,292 16-year-old males and 4,506 17-year-old males entered into the system in the fiscal year 1982-83. A significantly smaller number of females entered into the system.
My point is that the provincial courts, family division, and the unified family court are already burdened with a significant case load. Now we are saying that on an interim basis those persons who are now 16 or 17 years old, who were dealt with under the Juvenile Offenders Act, are going to be dealt with a year from now under the Young Offenders Act. We have no knowledge on this side of the House about the concept of the youth court.
10:20 a.m.
Again, with reluctance, our caucus is going to support these two bills. We see no need for them to go to committee, but we would like to have some sense of participation in the ultimate decisions of the ministry with respect to the nature, the structure, the location, the staffing and other matters related to the youth courts. Are they going to be definitively separate and distinct from the other courts so that the philosophy behind the Young Offenders Act will have some hope of being implemented in this province?
Hon. Mr. McMurtry: Mr. Speaker, with the new young offenders legislation coming into effect in Ontario as of April 1, 1984, with respect to young offenders up to the age of 16, we expect the experience we will witness during the spring, for example, will be of some assistance in relation to determining what would be the appropriate designation so far as the 16-year- olds and 17-year-olds are concerned.
As I indicated earlier, if it were to be the provincial court family division, the additional resources would be quite significant, but we are hoping, even with the relatively brief experience over the spring and up until next fall, when we will be introducing legislation in relation to the designation for the 16-year-olds and 17-year- olds, this will give us some experience in dealing with the philosophical issues that have been raised.
We certainly expect to be consulting very closely with members of the provincial court judiciary before any decision is made. We also expect to be consulting with interested members of the profession and the public. I will do my best to apprise the opposition critics and other interested members, of the steps that will be taken in this regard. As I said a few moments ago, I will welcome their views as we work towards the decision that will be made relatively early next fall I hope, but certainly not as late as the introduction of this transition legislation for the April 1, 1984, date.
I thank the opposition members for their co-operation and assistance in expediting the passage of this legislation which is absolutely essential, given the April 1, 1984, date.
Motion agreed to.
Bill ordered for third reading.
UNIFIED FAMILY COURT AMENDMENT ACT
Hon. Mr. McMurtry moved second reading of Bill 150, An Act to amend the Unified Family Court Act.
Motion agreed to.
Bill ordered for third reading.
PROVINCIAL OFFENCES AMENDMENT ACT
Hon. Mr. McMurtry moved second reading of Bill 151, An Act to amend the Provincial Offences Act.
Mr. Breithaupt: Does the Attorney General wish to make a brief comment on the bill? I do not think it will require any further debate on second reading.
Hon. Mr. McMurtry: I made my opening statement on Bill 151 on Friday last when I introduced it and I attempted to explain in some detail the reasons for this legislation. I do not have anything to add to that statement.
Mr. Breithaupt: We have read with interest the whole problems of the legality of parking fines after a ruling was made by Judge H. W. Allen. The legislation before us follows from the explanation the Attorney General brought on the introduction of the bill.
It is worth while, at least briefly, to refer to the explanatory notes so that anyone reading our comments will understand what we are talking about. As the explanatory note advises: "The amendment clarifies the intention that the Summary Convictions Act is to continue to apply in respect of parking infractions until part II of the Provincial Offences Act is proclaimed in force. The amendment would not affect appeals on the questions that are already under way or appeals from past decisions in which the question was raised. Otherwise, the amendment is backdated to the date when the Revised Statutes of Ontario, 1980, came into force."
It is clear that certain protections are available for those who have noted this problem and this does not in any way affect those matters that are already before the courts. Accordingly, we will support the bill on second reading.
Mr. Renwick: Mr. Speaker, I was just saying to my colleague the member for Bellwoods (Mr. McClellan) how efficiently everything goes when one leaves it to the lawyers on a Thursday morning.
Mr. McClellan: I expressed my profound alarm.
Mr. Nixon: The bill goes quickly and the people suffer.
Mr. Renwick: I have a certain ambivalence about the bill. I am afraid my colleagues in the caucus want to support the bill and do not see there is any need to debate second reading. I have some solace in that. There are always some of us who have a momentary sense of exhilaration when somebody beats city hall or breaks the bank at Monte Carlo.
We had that sensation when the victor in a case was Malcolm Ruby, the 27-year-old law student at Queen's University who turned a $10-parking ticket into a test of his skills in legal research and argument. He ended up with the support of Judge Allen. There would be something to say about throwing the province into a state of confusion about parking tickets that could perhaps be resolved by the Supreme Court of Canada, but saner views in the caucus overwhelmed me.
Therefore, I am simply going to succumb and say this glaring error on the part of the Ministry of the Attorney General, which he is correcting in the last days of the session and making retroactive in order to defeat Mr. Ruby's case, although it will not affect Mr. Ruby himself --
Hon. Mr. McMurtry: It will not affect his case or any other cases before the courts.
Mr. Renwick: I see. Perhaps if the Attorney General has any private knowledge of it, he could tell us whether this Malcolm Ruby is related to Clayton Ruby and had the benefit of Clayton Ruby's assistance in defeating the Attorney General in the courts on this issue?
Mr. Roy: Mr. Speaker, I have not had the benefit of reading the comments made by the Attorney General last Friday. Of course, he made it on a day when he knows full well -- I am usually a week behind in catching up and I have not had the opportunity of reading Hansard of that date. However, I suspect our party's critic has explained what this legislation is all about.
Mr. McClellan: Is there a discount for lawyer's services when they do not read the bill?
Mr. Roy: In going along with the rest of my colleagues in supporting the legislation, I do so with a certain amount of caution. Like the member for Riverdale, I think one must observe it with a degree of enthusiasm when one sees a young man who does his research, goes to court and is successful.
I might explain why I have this sort of exhilaration from a personal point of view. When I was a law student, in the first case I had occasion to plead before the civil courts, the darned thing was supposed to take an hour and it ended up taking three days. There was a senior counsel on the other side and the trial judge -- without being too offensive, we used to call him Rocket Richard and not because he was fast -- ruled against me.
10:30 a.m.
I thought this was terrible. I went back, and after getting an admonition from the senior partner for taking three days on a $250 case, I convinced him we should go to appeal. We did so, and at that time the appeal judge was Mr. Justice Laskin. He reversed the trial judge and we won on appeal. So I had some satisfaction in going back to Judge Rocket Richard and saying, "Did you know that case was reversed on appeal?"
Understandably, when one is a student and gets that type of success, one is inclined to get a swelled head. Things have changed since that time and we have become much more modest.
When I look at this legislation, I agree it should certainly not affect any cases that are now on appeal or before the courts. But is the Attorney General not coming close to challenging some of the provisions of the charter by enacting legislation now that will apply to traffic tickets that have been processed or given out before the passage of this legislation? Will this legislation not do that?
I do not have the charter in front of me, but I recall one section prevents an individual from incurring any penalties as a result of an offence which took place when the legislation was not existing. When one challenge has been successful, I wonder whether somebody else might not be encouraged to try it. In view of that section of the charter, is the Attorney General satisfied he is not going to run into problems with this legislation?
Now that we have the charter, one must be cautious with any retroactive legislation. I do not have the benefit of the minister's comments and I do not have the charter in front of me, but I am sure the law officers of the crown have reviewed that situation and are satisfied. They must have some confidence that this legislation will not be challenged under that section of the charter.
Mr. Speaker: Does any other member wish to participate in this debate?
Hon. Mr. McMurtry: Mr. Speaker, I certainly congratulate the law student for his ingenuity and his determination to fight city hall, as the member for Riverdale (Mr. Renwick) calls it. I do not necessarily wish him well on the appeal of his case, and I must admit I cannot enlighten my colleagues as to whether or not he is related to our colleague Mr. Clayton Ruby.
As it is the Christmas season, I will refrain from suggesting to the member for Ottawa East (Mr. Roy) that his enthusiasm is in any way related to his traditional affection for anarchism of one kind or another. I can assure him that this legislation does not offend the charter. We are not talking about a matter of substance nor about a change of penalty. We are talking about legislation introduced to clarify the intention of the Legislature as expressed by its members some time ago. It was unfortunate that the clear expression of intention, at least for the moment, seems to have produced some ambiguity.
Some ambiguity seems to have followed the clear expression of the Legislature when the drafting commenced and, in my view, in the public interest it requires an amendment to clarify the intention of the Legislature. I am confident such legislation would in no way offend the charter.
Motion agreed to.
Bill ordered for third reading.
PROCEEDINGS AGAINST THE CROWN AMENDMENT ACT
Hon. Mr. McMurtry moved second reading of Bill 152, An Act to amend the Proceedings Against the Crown Act.
Mr. Breithaupt: Mr. Speaker, on the introduction of the bill, the minister explained quite succinctly just what it is to accomplish. I am prepared to recommend, and have to my colleagues, that it be supported on second reading because this will give crown employees the same protection of the Wages Act which is currently enjoyed by other employees. We will support the bill.
Mr. Renwick: Mr. Speaker, we will support the bill and I certainly do not see any need for it to go to committee. I am interested in this instance as to what motivated the Attorney General to bring this bill in at this particular time. After all, the report of the Ontario Law Reform Commission -- I think it is volume 2 of a five-volume report -- was published in 1980, if my memory serves me, recommending specifically this kind of amendment. I am not quite certain what the processes are within the ministry that would indicate it should take so long to bring this bill into the assembly and, secondly, that we would see it in the dying days of this session.
It is totally consistent with the recommendations, as I understand it, and perhaps the Attorney General would confirm that statement to me, and totally consistent with the logic, the jurisprudence, the thinking and the conclusions set forth in the law reform commission report in part 2 on the enforcement of judgement debts and related matters, which has been available to members of the assembly for some considerable period of time.
In brief, I do not believe that anybody in this day and age can do other than agree with the basic proposition that the rights of garnishment and the correlative obligations of those who must respond to garnishee orders should be the same for everyone in the province and that there should not be a different set of rules or a different set of principles or a different set of discretions available for crown employees or for the crown itself.
If one accepts the principle, as far as employees are concerned, that wages should be garnished up to the limit that we provided recently in the Wages Act amendment which was before the House of up to, I think, 20 per cent in nonfamily matters and up to 50 per cent in family matters, then I do not see how anyone can quarrel with the bill or do other than support it on second reading. We do not see any need for the bill to go to committee.
Mr. Roy: Just briefly, Mr. Speaker, I think in 1983 in Ontario such legislation is not only practical, but certainly necessary. It follows what has happened as well at the federal level where crown employees have become subject to garnishment and so on. I think it is right as well that when goods and services have been supplied by the crown that there be some measure of garnishment at least for that limited process.
At the federal level they encountered a particular problem, and the Speaker would be interested in this, where the crown employees were considered to be subject to garnishment and so on, but then there was apparently a lapse somewhere in the legislation whereby the employees of the House of Commons were deemed to be not subject to that legislation. It required some further amendment in the federal legislation to bring them in.
I do not know whether that sort of a problem exists here. I do not have the definitions here, but I suspect when the bill refers to crown employees it must refer even to the employees of the Speaker's administration, the Legislative Assembly, and that when we are talking about crown employees there are no exceptions to this; it involves people working here. Also, does it affect people working for Ontario Hydro and other crown corporations?
10:40 a.m.
Hon. Mr. McMurtry: Mr. Speaker, this legislation does reflect the recommendations of the law reform commission. The member for Riverdale is quite correct in suggesting this legislation might have been introduced earlier. I think our recent amendments to the Wages Act have helped to move this legislation along because it is perhaps somewhat overdue.
Also, this legislation does apply to employees of crown corporations as well.
Motion agreed to.
Ordered for third reading.
House in committee of supply.
SUPPLEMENTARY ESTIMATES, MINISTRY OF THE ATTORNEY GENERAL
On vote 1401, law officer of the crown program; item 5, royal commissions; and vote 1402, administrative services program; item 1, main office:
Mr. Breithaupt: Mr. Chairman, the supplementary estimates probably could be attended to fairly quickly if under each of these items the Attorney General would simply give us an explanation as to the requirement for the increase of funds. Then I would think we could deal with that in fairly short order.
The Deputy Chairman: Would the Attorney General care to respond to that request? Or is he able to?
Hon. Mr. McMurtry: I am not able to respond at the moment, Mr. Chairman, because I do not have a copy of the supplementary estimates. As I understand it, they are all related to legal aid.
This additional funding is necessary to curtail the delay in paying the certificate lawyers, which could increase from 10 weeks to as much as 30 weeks. In our view, 10 weeks is already too long.
Despite the lack of affection that is occasionally demonstrated by some members of the House for lawyers, I would think we would all have to agree the current 10-week delay period is already too high when compared with the five-week delay, for example, for doctors under the Ontario health insurance plan. Obviously, ongoing delays and any increase in delays could only serve to discourage lawyers from participating in the certificate program.
There is already some degree of unhappiness about the current level of remuneration provided under the legal aid tariff, which in our view is too low. We hope to see an increase in the tariff in the not too distant future.
I believe also included in the supplementary estimates is some funding in relation to the royal commission inquiring into the deaths at the Hospital for Sick Children.
Mr. Breithaupt: Perhaps we could deal with that latter item first. Under vote 1401, item 5, there is an increase of $2,730,700. The expenditure of this amount is entirely a commitment to the Sick Children's inquiry; is that correct? Or are there other items as well as that inquiry; is some of this amount for the requirements of other royal commissions' expenses?
Hon. Mr. McMurtry: This is entirely for the Grange commission.
Mr. Breithaupt: Then perhaps the Attorney General could advise us as to whether he expects this amount before us will be sufficient to cover the entire cost of that commission; or is this an educated guess at the moment as to what further requirements will be before us at least within this fiscal year?
Perhaps we could take a moment while the Attorney General's assistants come forward.
Hon. Mr. McMurtry: It is very difficult to predict what the future costs will be. I am advised this amount should represent what is required for this fiscal year. We cannot predict just how long the commission as a whole will take, given the complexity of the issues that are before it.
Mr. Breithaupt: Once the commission has completed its work will it be the intention to provide a summary of its total costs and a division into the various categories of fees and disbursements so we will have some general financial overview as to how these funds have been disbursed?
Hon. Mr. McMurtry: Yes, certainly; all of this information will be made available to the assembly. Given the nature and the scope of this commission, the administrator who has been assigned is monitoring all the expenditures.
I know the royal commissioner himself, Mr. Justice Grange, has expressed concern to avoid unnecessary expenditures, particularly given the number of lawyers who are being funded by the commission. I think it is a matter he has directed some attention to right from the beginning. Certainly the assembly will have all the particulars at the appropriate time.
10:50 a.m.
Mr. Renwick: Mr. Chairman, I have a brief comment on the additional amount provided for the legal aid plan, a $16-million additional supplementary estimate, which I recognize is needed to support the plan.
My concern in voting for this item relates to disturbing information I have that a very substantial number of lawyers' accounts are being processed without having been subjected to any accounting review. I understand a directive went out from the legal accounts officers at the governing body to those responsible for the disbursement of funds under the legal aid plan that they were to clear these accounts. They were purporting to act in accordance with a regulation, which is subject to very critical explanation.
I understand they were told there was no need, up to a certain amount in these bills, that they be processed in the ordinary way of checking the items in those accounts. I was told they were assuring the Law Society of Upper Canada, and through the law society the Attorney General and the public of Ontario, that there are no accounts being paid which have not been subject to audit scrutiny.
I am glad the minister's advisers are at the table with him, because I believe members of his staff were involved in the process, along with the deputy treasurer of the law society. Whatever the motive may be and however good the motive of clearing a backlog of accounts below a certain figure, there has been no scrutiny of those accounts and no regular audit. Instructions were given that those accounts were to be processed very quickly and paid as quickly as possible. Some form of honour system was instituted so that they did not need the kind of careful scrutiny which would be essential.
Regardless of the motives, I do not know whether that plan has been changed, I am not privy to those meetings; but I know for a fact that a significant number of accounts were processed by directive to the accounts officers under the legal aid plan without proper audit scrutiny.
I would like the Attorney General's comments on my remarks before we proceed to vote this additional supplementary estimate.
Mr. Roy: Mr. Chairman, I would like to follow up on that question from my colleague.
I, too, have watched the process of that commission and noted the early concerns by Mr. Justice Grange about the number of lawyers who would have their accounts paid out of the public purse. Certainly, we understand why that should be, if all parties are going to be adequately represented.
What is the per diem or hourly rate for lawyers acting on behalf of various groups? Does it vary depending on the experience of counsel? Has Mr. Justice Grange established a range and has he established any limits as to the number of hours per day or week by counsel?
I can recall some discussion about that. The reason many of us have some concern is that when one gets involved in a commission as complex and as serious as this one, the meter can run for a good long time. I do not want to be harsh towards my colleagues at the bar, but the fact remains that if one gets a good number of them, as there certainly is on a commission such as this one, it can become pretty expensive.
So, to follow up on the question from my colleague, I would like to know what they are being paid, per hour or per diem.
Hon. Mr. McMurtry: Dealing first with the concerns expressed by the member for Riverdale, one of our concerns in relation to our responsibilities to protect the public purse is to encourage the Law Society of Upper Canada to continue to take a very close look at the administration of the plan, because its administration does represent a fairly significant percentage of the overall cost of the plan.
The firm of Laventhol and Horwath did a very extensive study of the plan's administration, particularly with respect to its accounting aspects and the payment of accounts. While I cannot give the members all the details of their recommendations, I know that one of the firm's recommendations was in relation to expediting the payment of what it referred to as routine accounts -- I believe it was those under $900 -- to save money.
I cannot tell the member precisely about all the checks and safeguards that are still in place, but if my information is correct it is not a question of automatically paying all these amounts without any scrutiny whatsoever. It was Laventhol and Horwath's view that the method of monitoring these accounts was inefficient and costly to the plan.
In any event, the members should know that the law society and our ministry have asked the Provincial Auditor to look at the system that is in place now, including the expediting of the accounts under $900, to be satisfied that the taxpayers of this province are being reasonably well served by the existing mechanisms. I will be very happy to share with the member for Riverdale and other members the auditor's comments in relation to this matter.
So far as the Grange commission is concerned, I know that it was agreed, in consultation with the counsel for the Grange commission, that certain hourly rates would be paid certain counsel. I believe there was to be some limit on the number of hours that could be charged by counsel, but this may have varied depending on which counsel were involved.
For example, counsel for one of the nursing teams obviously have a more major role to play than perhaps counsel who are representing a particular group of parents, given the divergence of interest and involvement in the proceedings. In other words, some counsel, by reason of the interest they represent, have to be more involved in all the details of the inquiry than other counsel who may be there in relation to the cause of death with respect to a particular infant.
I know there was some displeasure expressed by counsel in relation to some of the limits. One of these counsel obviously shared his concerns with a Globe and Mail reporter, and we can recall a news report reflecting his displeasure with the amount that had been allowed him; I believe it was $130 an hour. Mr. Justice Grange expressed considerable displeasure with counsel discussing issues that he said had been discussed privately and in confidence. But that is not to suggest the hourly rates will not be made public.
11 a.m.
I must admit, and I take this occasion to say it, that I was somewhat shocked to read the concerns of this particular counsel because, as I worked it out, it would mean he would be restricted to a mere $7,200 a week or something of that extent. It is that type of comment that I think does not enhance the reputation of the legal profession in this province.
Mr. Nixon: Are you going to answer your question?
Hon. Mr. McMurtry: I thought I did. I will attempt to provide additional details as to the range of what the hourly amounts are. I believe, as I said a few moments ago, the number of hours per week varies from counsel to counsel. It may be that we can get more specific information for the member.
Mr. Nixon: Does that mean you will?
Hon. Mr. McMurtry: Yes.
Mr. Breithaupt: It certainly appears in that regard that the modest payment of $800 a day for a certain royal commission chairman is really quite a matter of restraint in these circumstances. I have nothing further to state on this first particular item. I did have some remarks I would like to make on the legal aid matter following some of the themes my friends have raised.
The Deputy Chairman: Go right ahead.
Mr. Breithaupt: Whatever you wish to do.
The Deputy Chairman: You have the floor. Go ahead.
Mr. Breithaupt: All right, Mr. Chairman. I want to comment just briefly on the legal aid matter.
Mr. Renwick: May I just finish a comment on the royal commission?
Mr. Breithaupt: Yes, certainly.
The Deputy Chairman: I thought the member for Riverdale (Mr. Renwick) was finished. Go ahead.
Mr. Renwick: I have two comments on the royal commission. I think when the Grange commission is completed it would be a very useful time to have the auditor look at the process of accounting for royal commissions. The commissioner himself in many cases is not a person skilled in the area of controlling costs. I am not certain how the process is working. I for one have complete confidence in Mr. Justice Grange and I do not in any way want to suggest that the moneys spent are not necessary because of the seriousness of the concern which has been expressed about the whole matter which is before him.
Going back to the time of the royal commission on violence in television, the Judy LaMarsh royal commission and the expenditures at that time, I do not believe there is anything in existence in the Manual of Administration or any other manual that I know of related to the process that would automatically apply with whatever changes are necessary from time to time in the total accounting for royal commissions.
My only other question is, can the Attorney General give us any indication when the report of the royal commission on asbestos is likely to be forthcoming? It is now a long time since it was originally appointed. I keep hearing the report will be available, but it has not yet seen the light of day.
Hon. Mr. McMurtry: I think the Manual of Administration does contain some guidelines in relation to royal commissions, but in any event, we are quite happy to accept the suggestion of the member for Riverdale that the Provincial Auditor be invited to look at the Grange commission when the matter is concluded in order to ensure whether or not these guidelines can be improved upon and to look into the process as suggested.
The royal commission report on asbestos, to the best of our current knowledge, should be available in February.
Mr. Roy: Mr. Chairman, I look forward to receiving that information about the hourly rate for counsel and the number of hours or restrictions, but I would like to know something else about how the process works. As I understand the minister's answer, there are varying rates per hour for counsel representing different groups. Is the amount paid to counsel as a result of some agreement by the government the total amount counsel is going to be paid? In other words, can counsel get part of his fee paid by the public purse and part of it by a client he represents?
Is that a process like legal aid? In legal aid the whole fee is paid by legal aid and none by the individual client. Could the Attorney General advise if that is the setup? Or is there some agreement counsel can make to receive an amount through the commission from the public purse and then make some private arrangement with the group he represents to be paid a further amount?
Hon. Mr. McMurtry: First of all, I should make it clear that none of this money for the Grange commission is paid through the legal aid plan. The counsel for Mr. Justice Grange, in effect, negotiated with counsel appropriate amounts, and this has been a very arduous process. I know counsel in our ministry made it very clear we were simply not prepared to go beyond certain amounts. Indeed, the amounts being sought were considerably higher by some counsel than what was agreed upon.
The member has to bear in mind that the commissioner has the overall responsibility for the conduct of the commission, which includes decisions as to whose counsel will be funded through the commission and the overall responsibility in determining what the amounts per hour will be. While we are involved in the process, the final decision is not ours. There are a number of different counsel, and it would appear the hourly rate varies from $75 to $130 per hour.
Mr. Nixon: So the man who is complaining is at the top of the list.
Hon. Mr. McMurtry: I believe so, yes.
The commissioner has indicated that when there are a number of counsel representing one nursing team such as the Registered Nurses Association of Ontario, only one counsel will be funded at any one time. They may have as many as four counsel involved. Four counsel are listed for one of the nurses, for example, Susan Nelles, but only one counsel will be compensated at a time. The hours for these counsel vary. As I say, they were the result of quite extensive negotiation between counsel for the commission and the individual counsel.
Do we have any information with respect to the hours per week? I am not sure at the moment.
Mr. Nixon: The usual instruction is not more than 10 per day. It makes for easy arithmetic.
Hon. Mr. McMurtry: I cannot say at the moment. My recollection was that there were some maximum hours per day and per week, but I cannot be certain of that at the moment. I can obtain this information.
11:10 a.m.
Mr. Roy: I just want to make this comment in jest, if I may. The Attorney General talked about the fact that legal aid is not involved in this. I can tell him that if he wanted to shorten the commission and get rid of all the counsel, all he would have to do is impose the legal aid tariff and I think that would take care of the commission very quickly.
Mr. Nixon: Mr. Chairman, I just want to ask the minister a couple of questions. I have expressed my views on legal fees in the past and I recall receiving more than one lecture from the Attorney General. I am just glad to know that a certain level of remuneration shocks even him. It is nice to know we are all really in the same boat, but he is just perhaps more progressive than I.
I have a feeling, also, that we can hardly contemplate the enormity of the subject that royal commission is reviewing. We have no idea what is going to come out of it, but we really got to the point where there was not anything to do but give it to a commissioner. The minister knows we supported that decision fully and still do.
We are talking about an entirely different level of significance now. When the other matter is finally settled and we are reviewing the books on this royal commission, the minister or his successor will have a good many questions to answer, particularly about those people who are paid $75 and $130 an hour, perhaps with a 10-hour-per-day restriction.
It is certainly our experience in attending royal commissions as witnesses and otherwise that quite often the person with a national or international reputation who commands the very high rate is far too busy to attend the parts of the hearings in which he or she is not directly involved. There must be many hours in which these people who are retained at $75 to $130 an hour are really not directly involved except, of course, that they must keep careful tabs as to what is going forward with the other evidence as it is adduced.
I understand that under those circumstances it is quite acceptable for a junior member of the firm, and perhaps a very junior member indeed, to be sent down to the commission to take notes and to check on what has actually gone on. I would certainly suggest that either the minister with his staff or the auditor with his staff keep an eye on this so that we are not paying $130 an hour to a law student -- and perhaps not one of the best law students in the office -- whom they want to get out of their hair for a few hours, who will go down and listen to what is happening at the royal commission. He would then in the future add that to his own curriculum vitae, having participated in support of one of the senior counsel in these royal commissions, and we would have perhaps participated in a very generous way indeed.
I am just warning the Attorney General. I do not want to interfere with the undoubted importance of what is going on down there, but I want to put up a small flag in the mind of the Attorney General that this, aside from that great importance, not become one of the greatest legal boondoggles that has appeared on the horizon.
We can head this off. It is not too late at least to be careful that we are not being made complete fools of up here. The very fact of somebody getting $130 an hour is giving some public complaint. The rate of remuneration is of concern to the Attorney General and it appals me. All of these things are relative. Usually people complain about their rate of remuneration when they are aware of somebody else getting more. We sometimes complain about what cabinet gets because it is more than we get. That is a normal human stimulation for this sort of complaint. I would just warn the Attorney General that he might do a service to all of us, and certainly to his successor, if he just takes some care with this.
I have something else to say unless the Attorney General --
Hon. Mr. McMurtry: I know my good friend the member for Brant-Oxford-Norfolk is not attempting to expedite my retirement from my present position with his several references to my successor.
Mr. Nixon: You will have a successor for sure.
Hon. Mr. McMurtry: I certainly wish my successor well, whenever.
As far as the costs of this commission are concerned, I can assure the member for Brant-Oxford-Norfolk that more than a little flag went up in my mind at the time we announced the commission because I have had some experience with royal commissions, having been counsel at royal commissions myself.
For that reason, we are monitoring what is going on very carefully. For example, I know the registrar of the commission keeps a very careful record of which counsel are at the commission at any given time during any given day and I know the commissioner and his counsel are monitoring the accounts that are being submitted on a regular basis. I do not think there is any question that the commissioner is very concerned, notwithstanding his very difficult mandate, about the overall costs of the commission to the taxpayer, and we are certainly monitoring it as closely as we can.
Mr. Nixon: The minister may want this reference raised in the next, more general debate that is coming along; if so, he can just let me know.
It has been proposed by the leader of the New Democratic Party that we ought to consider a royal commission on organized crime. I feel the suggestion has a good deal of merit. It may be a bit premature, but the minister knows that in the, God forbid, course of events that may occur, the pressure will come on him more and more to do something about what appears to be a growing and unacceptable problem with organized crime.
It is possible that just as in the series of events we have been talking about, ending in the royal commission dealing with the Hospital for Sick Children, the time will come when the minister can do nothing other than appoint a royal commission. Since I hesitate to question in any way the efficacy of our various police forces -- and I never do, though the minister quite often does -- he may very well find that as we discover bodies stuffed in trunks, lying in fields and so on, the people are going to demand that somebody do something. At the end of the line the only thing to do is to get a judge and say: What is going on here? Find out for us."
It does not really help very much to avoid the killing, but it really sounds some kind of warning to the community that we are prepared to commit all of our resources and powers in constraint or in control of some sort of situation. The minister may remember the Roach commission 20 years ago. The minister was not counsel in that particular instance, was he? He was not connected with that in any way? His name was not mentioned or anything like that?
Hon. Mr. McMurtry: No.
Mr. T. P. Reid: He was still in high school 20 years ago.
Mr. Nixon: He was not going to any gambling clubs or anything?
The minister was correct when he said that one of the bad things about royal commissions on crime is that everybody's name gets trotted out and moves across the front page of the Toronto Star or something, for everyone to see and speculate on. I agree that is a bad thing.
On the other hand, to the whole community and to those who from a distance are looking at this rich community, this plum sitting here in the middle of North America ready to be ripped off by organized crime even more than it is, it sends a warning out to steer away. I believe they do. I think the Roach commission did send a signal right across North America that Ontario and Toronto were not places where they could take up their nefarious activities with complete immunity.
I hope that in the back of the minister's mind a royal commission on organized crime is not stamped out entirely. If this matter goes on, every three weeks having one of these execution-style gang murders with everything that is going on, I think people are going to demand something more than we have had.
11:20 a.m.
I made a proposal that something more than just a co-ordination of the police forces, which we have had, according to the various spokesmen -- usually the Attorney General over the years -- may be necessary. We may need to have some special group advising the Solicitor General (Mr. G. W. Taylor), the Attorney General, the Provincial Secretary for Justice (Mr. Walker) and the government of Ontario so the people feel at least there is an understanding that a special threat is here.
When we have one of these terrible murders every three weeks, it simply points out what must be going on behind the scenes, the fantastic level of criminal activity draining the money out of this community that must be going on to make its control so important in the minds of the people who are causing these crimes to be committed.
All of us must give some serious consideration to the possibility of such a royal commission. Just as we experienced with the Hospital for Sick Children system, if it goes on and we can do nothing about it, a royal commission is really all we can turn to.
It should not be dismissed as simply a worse-than-useless alternative which endangers the reputation of people who should not be brought to public scrutiny. That is certainly a downside and a great deal of thought must be given to protect the citizens from that happening. On the other hand, it reassures the public and sends a very strong message to the underworld elements who are looking at this jurisdiction as just the latest ambit for their activities.
Mr. T. P. Reid: Mr. Chairman, I would like to make a few comments on what the member for Brant-Oxford-Norfolk has just said. Seven or eight years ago, I asked some questions in the House about organized crime. The answer to me at that time was the same as we have had from the Solicitor General and the Attorney General, that we have a special unit set up with the co-operation and co-ordination of all the police forces, with the Royal Canadian Mounted Police, the Ontario Provincial Police and the municipal people co-operating with the forces from the American side as well.
There were similar events at that time seven or eight years ago that led to those questions. To entertain the members' interest, as a result of the publicity surrounding those questions I had a phone call late at night. An obviously disguised voice said, "Is that Mr. Reid?" I said, "Yes." It is funny how one starts whispering when others do. He said: "I have something to tell you about organized crime. I will meet you in such-and-such a restaurant at eight o'clock in the morning and I will have my Globe and Mail upside down."
I went to meet with this gentleman, then being young and foolish. Now I would give him the Attorney General's number. He probably knows it. Anyway, I met with this gentleman and he was talking about how he had been running a business, had run short of funds and had become involved with some of the people whose names appear reasonably regularly in the newspapers and the media as being associated with organized crime.
The gist of it was that he had borrowed or used money they provided, if I recall correctly, through some kind of Swiss bank account and these people were now muscling him out of the business. They had taken over control and he had lost everything. He admitted what he had done was incorrect, if not illegal. He indicated he understood that perfectly well, but he was very upset that he was losing everything he had built. It was obvious there was some laundering of money going on.
Because he insisted I not go to the police, my only recourse was to go to the Ontario Securities Commission. I discussed the matter with the then chairman, if I recall correctly. I was assured the matter was in hand and that the gentleman in question was not exactly one of the more savoury business elements to begin with. I saw by accident in the paper about three months later that the end result was this man got sent up for five or seven years for fraud himself. The other people continued on.
Hon. Mr. McMurtry: You were not called as a good character witness?
Mr. T. P. Reid: No, I was not called as a character witness.
At that time, seven or eight years ago, I had a number of discussions with numerous people. Vic Phillips, now with CFTO, had written a number of articles about organized crime in various magazines. My concern is that organized crime is obviously on the increase. Organized crime covers a wide area, everything from the motorcycle gangs to the Cosa Nostra, the Mafia or whatever we want to say.
I might disagree with my learned friend, probably the best practising nonlawyer in the Legislature, that perhaps a royal commission is not necessarily the way to go. Perhaps it may be. The commission in Quebec seems to have been unproductive in terms of prosecuting anybody. I do not think anybody was prosecuted as a result of its inquiries. Organized crime seems to be still flourishing in that province. It would appear, from reading and listening to the media, that organized crime in the province has increased in those last seven or eight years rather than diminished, despite the efforts of this co-ordinating body.
Is the Attorney General satisfied that this group is as effective as it might be? I have asked this question of the Solicitor General and the answer was: "We do not keep track of people being convicted as being associated with organized crime. In fact, we do not keep those kinds of statistics. If somebody is up for fraud or coercion or loan-sharking or whatever it is, that is strictly a conviction. We are not keeping statistics that way."
I would like to ask the Attorney General, especially since we are talking about estimates, if he is satisfied that there are sufficient funds for the detection of organized crime operations in Ontario? Does he have sufficient funds for special prosecutors, special crown attorneys and all that sort of thing in fact to wage a war against organized crime? Is he satisfied that organized crime is on the increase, is staying level with the period of 10 years ago, or just where are we?
I noticed in one of the newspapers just today or yesterday that more drugs, $500 million worth, were seized at Toronto International Airport. In my area, where we are on the border with Minnesota, we have a problem with drugs being run across the border both ways. I wonder if the Attorney General can suggest whether or not he is satisfied with the budgets that are being provided and with the effectiveness of the same?
I do not feel it good enough for the Attorney General and the Solicitor General to stand in the House and tell us they have things under control, the old saw we get over there on almost everything we ask about, "Trust us, we have it in hand." There has to be more to this place than that. We have to assure the public more than just trusting in the Attorney General and the Solicitor General on this matter.
I wonder, along with my friend, if the Attorney General has given any consideration to some other mechanism than what is at present just questions in the Legislature on this whole matter?
The Deputy Chairman: We are dealing with supplementary estimates for the Attorney General. Questions have been asked. Are there any further questions, or would you like the Attorney General to respond to that general area of questioning and then get on to the other parts of the estimates?
Mr. Nixon: Mr. Chairman, I have one further question. We have been bouncing back and forth between legal aid and royal commissions, which is unfortunate.
The Deputy Chairman: Perhaps that is my fault. I am sorry.
Mr. Nixon: It is okay. Which one are we getting rid of?
The Deputy Chairman: Let us get rid of legal aid.
11:30 a.m.
Mr. Nixon: All right. I just want to say something on that. We are asking for an additional $16 million. I was interested in the minister's comments that this would at least reduce the delay in paying to the billers the amounts owing to them. I am not really sure I understand that, because I do not believe the fund has actually run out to the point that cheques cannot be issued. Certainly no one in this House expected that to happen. We have a yearly estimate and in this instance it has gone over by $16 million. The government has all the facilities in order to keep the money flowing in an orderly and proper way.
If this has been delayed for some time, of course the House has been in session and supplementary estimates can be brought forward. I hope the minister, who is fond of sending out to the legal community comments made in the House, is not going to send all the lawyers some sort of justification saying the reason their bills are late is because the supplementary estimate was not carried. I have seen the minister in action on these matters before and there seems to be little or no justification for that. Nobody in this House has been holding up any money for lawyers who are billing for legal aid or otherwise.
The minister has also indicated his concern that the levels of legal aid remuneration are not sufficient. Certainly I have been lobbied and I would think all the members of the House who have lawyers in their constituencies have been lobbied by people who feel this has not kept in step with the times. As I understand it, we are billing, with all the various controls and so on, something like $45 an hour for legal aid work. Is that correct?
Mr. Roy: No, the average rate is $34.
Mr. Nixon: A bit less than that, I am informed.
I am aware of the fact that even in smaller provincial centres the people who are providing this service feel they cannot do so for such a niggardly figure. I am not aware of the level of overhead but I do want to say that, certainly when I was first elected, legal aid was not supported publicly. Lawyers felt it was a part of their professional responsibility to provide this service for the people who needed it, just as in those times doctors undertook to provide their services at a reduced or no charge.
Now that we have legal aid and we have medicare, doctors, although they still talk about providing reduced-cost service, particularly those who overbill and do not accept the full Ontario health insurance plan payment as their full payment, still maintain a bit of that approach. I hesitate to call it a fiction. For lawyers it is assumed that if people cannot afford the regular tariff to go to a lawyer independently, they simply get a legal aid certificate if possible and we are supposed to pay for it.
I see nothing wrong with that. We have made the commitment to go away from charity cases and go to legal aid. I support that concept and I have no problem with it at all. It simply means in the large legal firms in Toronto or elsewhere almost no legal aid work is done.
Certainly some of the firms outside Toronto have experienced in the last two or three years a marked diminution in the requirements for their regular services. Many of them have found their normal cash flow has been seriously reduced because of the general economic reduction, land sales and so on. Property purchases have changed quite dramatically. Lawyers with certain specialized practices have found themselves very much reduced in their cash flow and in the moneys available. In these instances, a number of them, quite normally expecting a substantial and significant return for their services, have had an opportunity to turn to the acceptance of legal aid clients.
It may be that those people, having seen some reduction in their cash flow, do not find the legal aid payments measuring up to their expectations. I do not think we need have much sympathy for them. I do know that young lawyers who are trying to establish themselves may find themselves having to accept an inordinately large proportion of legal aid work, which I am sure is interesting and in many respects fulfilling, but I know it disappoints some who have said to me that they cannot move into the mainstream of legal practice in the way they would expect.
I do not know what we are going to do about increasing the amount payable. One of the last reviews of this I read indicated that about $45 an hour is payable. I am informed by my colleague. who does some legal aid work I am sure --
Mr. Roy: Very little.
Mr. Nixon: Very little; he tells me it is less than that. I know of his concern in these matters but I feel the policy of the government is somewhat shaky. Those of us who look for leadership in these matters find it lacking. It is difficult for us to determine why $45 an hour is not sufficient for lawyers to represent certain legal aid clients if those lawyers have a spectrum of practice involving clients who are paying the regular tariff.
If there is any residue of this feeling that a person professionally trained should perhaps maintain a part of a practice responding to the need for legal aid, perhaps this approach made by the chief law officer of the crown to his colleagues in the profession might be worth while. I would hope the Attorney General is taking that sort of leadership among the ever-growing number of lawyers in Ontario. While the taxpayers are prepared to support the concept of legal aid, which most people accept as a very important one, the problem may lie in the mix.
Mr. Roy: Mr. Chairman, I have a brief comment about legal aid. I think all of us here are appreciative of the restraint shown by my colleague this morning. I think with good reason, because I have said this before in this House and I will say it again, the level of remuneration for counsel doing legal aid has reached the point where it is absolutely ridiculous.
It was determined in the province a few years ago that the overhead in most law firms per lawyer is somewhere around $50 an hour. That being the case, how can counsel operate at $34.50 an hour, which I think is the present level? I think 25 per cent is even deducted from that. It has reached a point in the profession that two thirds of the 15,000 lawyers practising in this province will not touch legal aid because very simply -- I should not say they do not touch legal aid; many lawyers do legal aid cases but will not do it on the basis of legal aid tariffs. They would rather not see that certificate or fill out all those forms. They would rather just do the work and go back to the old system where they do not have --
Mr. Nixon: They do it as charity.
Mr. Roy: As my colleague says, it is a type of charity without the paperwork involved in the legal aid process. When one has to put one's staff through the process of signing and filling out forms and still one is losing, that is a problem.
I suppose to answer what my colleague the member for Brant-Oxford-Norfolk has said, of the many junior counsel who are doing a lot of the criminal work, a high percentage of that is legal aid. Obviously they just cannot make it. Not only can they not make it on the basis of what is paid but they cannot make it on the basis of having to wait months for payment of their account.
I say again to my colleagues, if any of them have any doubt about the increases in the cost of living, they should look at what the doctors have received in increases since 1967 and look at what the lawyers have obtained in increases. Since 1967, the lawyers have seen the legal aid tariff increase perhaps by 100 per cent; in the case of the medical profession, the rate has probably increased twice if not three times that amount.
I think if the process is going to work, if it is going to follow the principle that was originally established, the tariff must reach a level where it is not a disincentive to counsel. The plan should at least have some encouragement for all counsel to participate without monetary penalties as is the case now.
11:40 a.m.
In some areas of the legal profession -- and I am talking mostly about the criminal field, family law and so on, which deserve proper and adequate representation in many of those cases -- how can counsel be encouraged to do any of that work at this rate? I think it has reached a ridiculous proportion.
As many people have said, two thirds of the profession are not participating in the process. I know the Attorney General has talked about this before. It is difficult to convince the Cabinet Office, the government and the public that this is a priority because of the people involved. Lawyers' standing in the community and even in this assembly at times is quite low --
Mr. Nixon: No, not so.
Mr. Roy: The constituency that is often served by the legal aid plan is not one that receives great and wholehearted public support, but I think it has to be said again that unless something is done, the whole plan will be undermined.
The only reason it has not fallen apart is because there is a surplus of lawyers in Ontario and some have no choice but to do this type of work. They are practising out of their cars; they do not have adequate secretarial staff. I see some of my colleagues smiling about this, but it is a fact that some of them are getting involved in practices that are not nearly as efficient or effective as they should be.
Any time the Attorney General wants some assistance in upping the per diem rate, I really think it is deserved. From a practical point of view, I know it will not happen because it is not a priority. It is hard to convince the public that this is something that deserves this kind of priority, but I really think that unless something is done quite quickly, the plan is going to start to disintegrate.
It is going to become ineffectual. Citizens who are supposed to be able to take the certificate and get the counsel of their choice are not going to be able to do that because two thirds, if not three quarters, of the lawyers in this province will not do any legal aid at all, no matter what field it is in. I think that is unfortunate.
Mr. Nixon: Mr. Chairman, I would like to make one other point in case I was misunderstood, because I have listened to my colleague, the member for Ottawa East, with great attention. He is a practical person.
I just want to return to the point I made to the Attorney General. I would hope he would use his persuasive powers in the profession -- I believe he is very highly regarded in the profession -- to convince them that legal aid is not a welfare program for lawyers, because we have too many of them or because business has fallen off or certain aspects of the business have changed so their former high levels of remuneration are somehow reduced. If it were shared among the lawyers, then the problems that would be experienced would be somehow reduced. As long as it is just a group of lawyers who simply cannot get any other work and who are prepared to accept the certificate at the low level of remuneration, then I believe there are some valid complaints that could be made about the quality of professional assistance that might be received.
Twice my colleague has said that 75 per cent of the lawyers -- I forget his figure, but it was a very high percentage -- do not want to do legal aid and do not do it now. If it means that legal aid is going to be welfare for lawyers who cannot get any other work, then it seems to me that by doubling the rate -- I am not sure whether that is going to give the people at the bottom bigger incomes or persuade those really learned in the law, like my colleague and others, to participate in the legal aid program to some extent.
I would hope all lawyers who possibly could, would consider it their duty to participate to some extent. It is also their duty to complain about the fees paid. To reject legal aid out of hand because it is only $37 an hour is what is happening. but it is one of the things that nonprofessional people could and must decry.
Mr. Breithaupt: Mr. Chairman, perhaps now it is appropriate to ask why we are being asked for a further $16 million for the legal aid program. The estimates before this House in the initial ministry involvement were for a commitment of some $45 million. Those estimates were dealt with in committee. At that point, certain questions were raised concerning the general process of legal aid. This morning, some of those themes have been referred to once again.
I have asked a series of questions on this topic for some time, as have other members of the House. The most recent concern with respect to the general theme of legal aid was raised by Lorraine Gotlib, QC, the president of the Ontario branch of the Canadian Bar Association. Her speech was given on November 8 and was reported with some interest. There were comments made, from a variety of press clippings I have received, about the problems of legal aid and the matters of the higher fees that were the subject of Lorraine Gotlib's remarks.
In response to a question I put to the Attorney General, he agreed it was necessary to increase the legal aid fees generally. We have talked about the prospect of removing the 25 per cent deduction situation so the fees, as paid, would at least be increased by that differential and lawyers participating in the plan would no longer be presumed to be in a charitable situation.
Mrs. Gotlib's report suggested that some two thirds of the 16,000 lawyers in Ontario did not handle a single legal aid case during the fiscal year ending March 1982. I recognize the comments my colleague the member for Brant-Oxford-Norfolk has raised as we look at the increasing numbers of lawyers within the province, and as we consider whether 1,000 extra lawyers in Ontario each year is a useful expenditure -- not only of public time and money but also of their time -- and as we consider their prospects for an active practice in the traditional solicitor and barrister arrangements within the courts.
We noted with interest a day or so ago, the comments by Mr. Justice Evans as he referred to the number of lawyers. He came up with at least a suggestion of differentiating categories or some approach whereby the persons who are called to the bar will have a reasonable prospect of a successful professional career, whether they proceed in an active law practice or in other corporate or particular matters where the education they have received would be of use to them.
11:50 a.m.
I recognize that a simple increase in the moneys available for legal aid will not necessarily deal with the problem as to whether or not we have too many lawyers graduated within Ontario and called to the bar of Ontario.
Of some interest to me are the points made by Mrs. Gotlib in her remarks with respect to the difficulty experienced by those lawyers who are in the legal aid system and who share cases under that plan. These concerns are not new. Indeed, the secondary headline in the report that appeared in the Kitchener-Waterloo Record perhaps quite adequately sums up the attitude of the Attorney General. It says, "Legal Aid Fees Should Be Increased but There Is No Need to Panic." That is perhaps a reasonable and balanced approach. I do not quarrel with the Attorney General's response because I know he is interested in increasing, if at all possible, the total amount available and then making some substantial and progressive changes in the legal aid system.
During the estimates of the ministry a year ago, a discussion was held with respect to legal aid themes. The Attorney General commented in his opening remarks that while some persons were not as supportive of legal aid as he would have hoped, he still intended to soldier on and attempt to encourage his colleagues in cabinet and the Treasurer (Mr. Grossman) to make funds available.
I reminded him then, as I do now, that certainly that attitude on this side of the House is met with full support. If there are any members of the House who are not committed to legal aid, I do not know who they would be. As the member for Brant-Oxford-Norfolk has said, we have all been receiving comments and indeed perhaps it could be said to have been lobbied by a variety of lawyers in our own constituencies. Whatever else we seem to share in Ontario, every one of us, for better or for worse, does have lawyers in his or her constituency. There is no problem for any one of us, I am sure, in having a contact with a member of the profession of which some of us have the honour to be a part.
This involvement, the extra $16 million, is still something I do not understand as clearly as I should in this matter. From the initial comments made by the Attorney General before his staff members joined him, I understood this is in effect a catch-up payment in order to reduce the time and shorten the payment turnaround from what it has been to about a 10-week cycle. The Attorney General commented that under the medical programs, the doctors are in an approximate five-week cycle or thereabouts as to their payments.
Is that the sole reason for these funds before us? If it is, then the other concerns with respect to legal aid will have to wait for another day. We will see what the next budget brings; we will see what the comments are in the next series of estimates of the Attorney General and we will be able to discuss these themes once again at that time.
If I am correct in my understanding that this is effectively a one-time payment to allow the cycle to be shortened, then all we can do at this point is say that we agree with these additional funds.
I do not expect this amount of money would be added to the total each year, if I am correct in this shortening of the cycle theme. If the Attorney General could respond to that particular point, certainly from my point of view, the voting of the supplementary estimate can be accomplished forthwith.
Mr. Renwick: Mr. Chairman, I think it would make sense to complete the comments before the Attorney General responds. I want to be extremely specific about the matter I raised earlier on the question of the supplementary estimate for the legal aid plan, the $16 million. I was trying to arrange with the other House leaders to have a House leaders' meeting in the hope that the member for Brant-Oxford-Norfolk could attend it and we could get on with the work of the committee.
My comment is very specific. It is my understanding that as a result of the Laventhol and Horwath report, a decision was made on the basis of their recommendation by the high-level body responsible for the accounting procedures of the fund to pay all accounts under $900 without any examination of the accounts. Now $900 may appear to be a small amount of money, but it is also my understanding it was estimated that to clear those accounts and get them paid, we would be talking in terms of something in excess of 8,000 accounts. The figure I heard we would receive by way of supplementary estimates was about $8 million. We are receiving about $16 million.
The Legal Aid Act very specifically provides that: "Subject to the approval of the Lieutenant Governor in Council, the law society may make regulations respecting the establishment and administration of the legal aid plan and, without limiting the generality of the foregoing, may make regulations ... (1) providing for the settlement of accounts for professional services under this act or the regulations." It goes on to provide that the Attorney General may designate persons for the purposes of providing for the settlement of those accounts. The responsibility, therefore, is entirely on the Attorney General.
I want to ask the Attorney General: Under what authority and by what method have a large number of accounts under the figure of $500 been paid without any scrutiny by legal aid officers, the accounting officers of the legal aid plan? Why has there been a significant reduction in the number of accounting officers under the legal aid plan? Is it correct that in excess of 8,000 accounts have been processed and account for $8 million of the $16 million, or have $16 million of accounts been processed under that shorthand method without adequate scrutiny and accounting?
I support the legal aid plan. I am not here to quibble about it. I want to understand it. It is my understanding that special meetings were held, a special regulation was passed about which I would raise very serious reservations, and directions were given to those officers whose responsibility it is to process the accounts to do it without scrutinizing the accounts and to report their progress in getting rid of the backlog.
Getting rid of the backlog is admirable, but are we processing accounts respecting public money without any scrutiny of any kind? That is my understanding of it. I believe representatives of the Ministry of the Attorney General responsible for the accounting process were part of those decisions, as was the Deputy Treasurer, a former Deputy Attorney General.
12 noon
I would like to have a clear and specific answer as to how many accounts were processed under $900 without scrutiny, what the total amount is and, of the $16 million, what the extent of that account is. What is the intention, apart from having the Provincial Auditor look at the process? Is that process now going on and will it continue to go on? It represents a significant and substantial amount of public moneys, if my sense of the accuracy of my remarks is as I believe it to be.
Hon. Mr. McMurtry: Mr. Chairman, I will deal first with some of the comments raised by members of the official opposition in respect to the legal aid plan. As far as comments in relation to the suggestion for a royal commission on organized crime are concerned, it might be appropriate to hold my comments until we deal with concurrence in supply. I think that might be a more appropriate time.
We are in agreement that the legal aid tariff is inadequate and we are going to do what we can in the Ministry of the Attorney General to obtain an increase at the appropriate time. But I would like to put some of the comments on some of these issues in perhaps a little better perspective. When it is suggested the plan is falling apart because 75 per cent of the practising profession do not participate in the plan, it should be borne in mind, certainly from my own experience, that 75 per cent of the profession really avoid the courtroom in any event, with or without a legal aid plan. At best we are only going to have a minority of the profession participating in the legal aid certificate plan.
I agree to some extent with some of the comments of the member for Brant-Oxford-Norfolk in relation to the responsibility of the profession to serve the disadvantaged and to serve them for a more modest fee. The issue is as to whether or not the fee has become overly modest. Having been called to the bar in 1958, I know that I and a large number of my colleagues and peers participated in the legal aid plan for 10 years for no remuneration whatsoever before the present plan came into being in 1968. Of course, for many years before 1958, lawyers participated in a similar fashion.
That is not to suggest I am supporting a system with inadequate remuneration. It is only to reflect on the fact that there is a proud history in the legal profession of serving the public and the disadvantaged for little or no remuneration. The truth of the matter is that, notwithstanding the modest, indeed overly modest, tariff that is at present in existence, participation in the plan has not decreased significantly. I think that is a great credit and a great tribute to many lawyers who recognize their professional obligation to deliver legal services through the certificate part of the plan.
The remuneration varies from $42 to $54 an hour depending on experience, with a possibility of a 10 per cent increase on top of that, less the standard statutory 25 per cent reduction.
Mr. Nixon: What does that generally bring it to per hour?
Hon. Mr. McMurtry: About $47 an hour on average.
Mr. Nixon: That is before the 25 per cent deduction?
Hon. Mr. McMurtry: Yes. There is 25 per cent off that. So it is $47 on average, less 25 per cent, which, given the high cost of practising law in many centres, is indeed a very modest remuneration. We are really talking about approximately $35 an hour once we take the 25 per cent deduction into consideration. That is sort of a ball-park figure as to what the average remuneration is.
I certainly share the view of the member for Brant-Oxford-Norfolk that the Attorney General and other leaders in the profession should continue to remind our colleagues of the importance of this participation in the plan, of the enormous importance of the plan to the administration of justice in this province. I am confident that most of my colleagues in the profession will recognize this obligation as we struggle with the issues of tariff changes.
The member for Kitchener (Mr. Breithaupt) wanted to know specifically the reasons for the requests for the additional $16 million, which really does represent a funding shortfall. They can be categorized into four specific reasons.
First, there was the decline in the interest rates in the previous eight months to lawyers' mixed trust accounts which, as members know, form the foundation of the moneys accruing to the law foundation. This has resulted in a corresponding decrease in the law foundation contribution to the legal aid fund.
Second, the client contributions have been lower than anticipated as a result of the general state of the economy in which more legal aid recipients are eligible for full cost coverage.
Third, the average certificate account paid has risen by five per cent because of a tariff increase plus an inflationary effect relating to legal disbursements.
Fourth, the number of applications for legal aid has risen by 13.8 per cent since the 1982-83 fiscal year and the number of certificates issued has increased by about 10 per cent.
Again, these factors are primarily because of the poor health of the economy, and that is the reason for the shortfall. As I said earlier, without the supplementary estimates, the already 10-week payment time would be increased to as much as 30 weeks.
Getting back to the issue raised by the member for Riverdale (Mr. Renwick) with respect to the accounts that he states are paid without any scrutiny, my information is that, as a result of the Laventhol and Horwath recommendations, the accounts were simplified, and that was an important part of the recommendation.
12:10 p.m.
Second, they are not approved without any scrutiny whatsoever. There is a scrutiny in relation to the tariff arithmetic. I understand that with many of these bills, apart from what the member might say was less scrutiny than occurred before, there is some degree of scrutiny, and every 10th bill, I am told, is examined in some depth. I cannot give the member full particulars at this time, but I certainly am prepared to obtain any additional information that may be relevant in view of his obvious interest in it.
The reason was not to get rid of a backlog, but given the simplified account, was to pay the simple accounts or what was regarded as simple accounts quickly. I am advised that if the process is under $900, the account is reviewed for accuracy but is not settled in the traditional method. The audit is like the Ontario health insurance plan audit; it is a post-audit. Ten per cent of the accounts at random are reviewed thoroughly, and the regulation which passed provides for the random audit and permits review of lawyers' books and records for up to two years. I should also say that no discretionary amounts are paid this way.
This, as I understand, is in pursuance to or in acceptance of some of the recommendations of the Laventhol and Horwath study. As I said earlier this morning, the Provincial Auditor has been invited by us to take a look at the system and to satisfy himself that the public interest is being well served by this change in procedure in relation to bills under $900.
I realize the questions asked by the member for Riverdale may go a little further than the answers just given, but I will check Hansard and we will supply any additional information that may be necessary in order to give a more full and complete response to the question that was asked a few moments ago. Quite apart from informing him of the details in relation to the number of accounts that are audited this way or that are proved this way, our officials are prepared to state just what happened in relation to the change in the regulation and what instructions were given. All of this will be given to the member in greater detail as soon as that information can be made available.
Mr. Renwick: I will look forward to that.
Votes 1401 and 1402 agreed to.
Mr. Chairman: This completes the study of the estimates for the province of Ontario for the fiscal year ending March 31, 1984.
On motion by Hon. Mr. McMurtry, the committee of supply reported certain resolutions.
Clerk of the House: Mr. Jones from the committee of supply reports the following resolution:
That supply in the following amounts and to defray the expenses of the government ministries be granted to Her Majesty for the fiscal year ending March 31, 1984.
Reading dispensed with [see appendix, page 4169].
Resolution concurred in.
CONCURRENCE IN SUPPLY, MINISTRY OF THE ATTORNEY GENERAL
Hon. Mr. McMurtry: Mr. Speaker, some questions were asked earlier in relation to the suggestion of a royal commission into organized crime. This is a matter that some of the members opposite may wish to raise in the normal course of events with the Solicitor General (Mr. G. W. Taylor) as well, who obviously has an important role to play, particularly in relation to the administration of police forces in this province.
The member for Rainy River (Mr. T. P. Reid) stated that on this side it is simply a matter of the Attorney General and the Solicitor General stating: "Trust us. We do not need a royal commission on organized crime. All has been taken care of and everything is under control." I know the member for Rainy River appreciates the process is a much more complex one than that.
We are dealing with a number of law enforcement agencies operating in this province. A number of these agencies, as all members would agree, are made up of highly trained, highly skilled, dedicated and committed officers who are engaged daily in the combat against criminal activity generally. So it is not a question of the public of Ontario simply being asked to accept the word of the Attorney General or the Solicitor General.
I repeat once again that we do consult on a regular basis in relation to matters dealing with organized crime and criminal activity generally. If there were some consensus among the law enforcement community, those who have the expertise as investigators on a day-to-day basis, that a royal commission would be a useful device to deter criminal activity in this province, obviously that recommendation is something that would have to be seriously considered by any government.
It is not a question of saying a royal commission is out of the question and it is not a matter of stating a royal commission is not a possible option. My position -- and I am sure the members will wish to hear from the Solicitor General as well -- is that on the best information we have at this time such a royal commission would not serve as a particularly effective instrument in relation to deterring criminal activity or in successfully prosecuting people who are involved in criminal activity of one kind or another.
12:20 p.m.
As I have said on many other occasions, both as Attorney General and as Solicitor General, the law enforcement agencies, I think for very good reason, have been sceptical of this device, at least in Ontario. The type of signal such a royal commission sends out is not necessarily one that will deter criminal activity.
As I think I said the other day, but in any event I will repeat what I said, one of the problems with respect to such a royal commission is that it really does have the capacity and the potential to interfere with ongoing criminal investigations, particularly in relation to prosecutions that are before the courts. Many organized crime figures are at present before the courts of this province.
As I have said on other occasions, a commission certainly has the effect of driving informants underground. The police rely to a very significant extent on information that is produced by informants. The greatest fear informants have is being identified. In the past, the very fact that a royal commission was being contemplated has had the effect of driving such informants underground. Police sources of information tended to dry up.
It has been suggested by some honourable members that organized crime is on the increase in Ontario. In my respectful view, there are fundamental difficulties with that statement. The definition of organized crime can involve a great deal of criminal activity. People tend to think of organized crime in the context of motorcycle gangs or organized crime families. I do not like using the word "Mafia." The term is not used by police forces because it does not really mean anything. The public have an idea of what is meant by it.
The truth is that the definition of organized crime is two or more people acting in concert on a regular basis in criminal activity. That includes a vast range of criminal activity. When it comes to organized crime such as the international linkage and connection of crime families that is sometimes referred to, I do not think there is any hard evidence that this aspect of organized crime in the traditional sense is on the increase in Ontario.
Indeed, given the number of successful prosecutions in the last several years, I think an argument could be made that a number of these people are somewhat wary of attempting to do business in Ontario. In any event, that is an issue nobody is ever going to agree on because --
Mr. Nixon: Mr. Chairman, I wonder if the Attorney General would permit a question at this point? It is directly on his statement that he sees no evidence that organized crime is on the increase. All I get is from the newspapers, which say there were six heroin overdose deaths in a month compared with that many in a year previously. There was also a statement in the Globe and Mail about there being five or six gangland-style murders in six weeks compared with none in the previous year. How do those statistics compare with the Attorney General's view that things are no worse than they ever were?
Hon. Mr. McMurtry: I simply do not think they establish that fact.
Interjection.
Hon. Mr. McMurtry: We have to look at it over a whole period of time. One thing we do know is that police resources have increased significantly in this area and the detection of this activity has increased. We know far more about it today than we did 10 years ago.
In the view of many senior experienced and respected police officers, for example, a royal commission is a bit of a cop-out. It is in effect an admission that the traditional methods of investigation, detection and prosecution are not working. When one looks at what has happened with respect to various commissions of inquiry on both sides of the border, one can recognize that the existence of these commissions of inquiry has not had much of a deterrent effect on criminal activity.
There is just one other point I would like to make, which was made by the member for Brant-Oxford-Norfolk (Mr. Nixon). It is one he recognizes and one that has to be mentioned in this context. It is not an overriding consideration but it is still something that should be considered. That is, of course, the potential of royal commissions into organized crime as such to damage unfairly the reputations of innocent people.
The rules of evidence are quite different. There is nothing to prevent anybody from introducing all sorts of hearsay evidence; third-hand or fourth-hand gossip that may be picked up in a bar somewhere is introduced as evidence on the same basis as some direct evidence. So the potential to harm unfairly the reputations of people whose reputations do not deserve to be harmed, given the fact that it may be nothing more than idle or malicious gossip, while not an overriding factor, is one that should always be given important consideration at the same time.
Mr. T. P. Reid: Mr. Chairman, I have the same difficulty I had a few years ago, and that is that the answers are the same. I appreciate some of the difficulties associated with this matter.
I gather from the Attorney General's remarks that he is satisfied that both he and the justice department in the generic sense have enough resources to deal with this matter, but there does seem on the face of it to be evidence that these matters are on the increase rather than on the decrease. We have had the Canadian Broadcasting Corp.'s Connections; there have been books written about organized crime in Canada, in Quebec and in Ontario.
Could I ask the Attorney General if statistics are being kept of the investigations generically under "organized crime" in the sense he was talking about? I am not talking about two fellows who are going to mug a lady or rob a bank. I think we are talking about the same thing: those areas where there are sophisticated people who are laundering money or who are involved in fraud, prostitution, drugs and taking over companies, as I indicated in my other remarks.
Does the Attorney General have statistics, and from when does he have them, under that admittedly loose umbrella that he can provide to us? Perhaps he can give them to the Justice critics on a confidential basis, if he likes, as a first step just to indicate the magnitude of the problem in Ontario and the number of prosecutions that have taken place that his detection people would classify broadly as being related to organized crime in the sophisticated, interconnected sense.
12:30 p.m.
Mr. Renwick: Mr. Chairman, since this concurrence motion is a more formalized debate, I want to cover a number of points.
My only contribution to the question of whether or not there should be a royal commission on the question of organized crime in the province is twofold. One is to support completely the request that was made by my leader the other day when the matter first came up. It is a matter that must be seriously considered by the Attorney General. While the recommendation of a senior police officer, the Solicitor General and the members of the Attorney General's own staff are involved in these questions, it would be important in consideration with respect to whether or not there should be such a royal commission.
I consider another element the minister is responsible for is the extent and degree of public concern and whether or not that public concern would be allayed in any way by a royal commission on the question of crime.
The second part is this continuing confusion about what is meant. I listened the other morning to Mr. Coté interviewing Mr. Peter Moon of the Globe and Mail on the Metro Morning show. The same question came up again, that is, what purpose would be served?
He more or less sided with the minister's view of the matter, that a royal commission would not serve a useful purpose and pointed out the same kind of distinction the Attorney General is pointing out, which I understand is this question of organized crime being any two or more people who go out to carry out a criminal intent in a concerted way. But that is not really what we are talking about.
We are talking about, and this is the second point I want to make, the distinction that Mr. Justice Roach tried to make and tried to introduce into the topic when he held his Royal Commission on Crime in Ontario. At the beginning of his report, if I recall correctly, he distinguished clearly that he was not talking about organized crime in the sense of a couple of guys getting together to commit a crime and the planning required for that operation. He was talking about what he defined as syndicated crime.
From what the Attorney General said, I take it we need not have an apprehension in the province at the present time about the extent and degree of syndicated crime. I find that difficult to accept as a proposition that appeals to me. I have tried to follow the crime reports in the press. It is not so difficult to do because that kind of criminal report usually finds its way into the press regularly. The whole history of some of the actors who have been referred to in the press, including the late Mr. Volpe and the late Mr. Racco, indicates to me there is a degree of organization which moves the question from the elementary view of organized crime to the question of some kind of syndicated crime.
I was particularly concerned, as I have been from my own personal experience with it in a way which was never satisfactory to me, at the assistance I was able to provide people who consulted me some years ago on the question of control by persons at least on the edges of syndicated crime in certain aspects of the construction industry. That was again part of the background related in the press of the late Mr. Volpe.
I also share some of the concerns of the Attorney General. I am not certain what the final outcome was of the royal commission into the construction industry a few years ago. The question came up, "Was any innocent person hurt in the course of that inquiry?" It was not a major item in my concern. My major concern was, "Has anything resulted from that royal commission to alter matters?"
The late Mr. Romanelli, who died on a beef farm north of Toronto recently and who was in financial difficulty, figured largely in that royal commission on the construction industry. There appears in the paper from time to time almost a network of names. There is a certain familiar ring to the stories, whether it is extortion, whether it verges on the construction industry, whether it is involved with disputes in the construction industry between certain trade unions and certain construction operators in that field. Those are areas of very real concern.
I happen to think it would be possible to define the terms of reference of a royal commission with the benefit of a man such as Mr. Justice Martin -- who is now, I believe, supernumerary on the court, or if not, retired -- with men of his experience in the field of criminal law, in the world where he practises as a leading criminal lawyer and as a distinguished criminal jurist. It seems to me that very serious consideration should be given to the appointment of a royal commission.
We can all talk in generalities, but I think it is worthwhile to express to the Attorney General some of the concerns our caucus felt that led our leader to consider raising the question originally, following along after the member for Brant-Oxford-Norfolk had raised it earlier this week.
There is a second matter I want to deal with. I do not want to deal at great length with any of these matters; perhaps the Attorney General would just make a note of them and deal with them in his response if he sees fit to do so. I read with interest the judgement of Madam Justice Van Camp in this reference in connection with the authority to administer electroconvulsive treatment, and there were three or four things that struck me while reading it.
First of all, I empathized with Madam Justice Van Camp for being faced with a question such as that with a tremendous degree of urgency attached to her decision in the matter, the very short space of time from when the matter first came on until it had to be decided by that court and the serious reservations of Madam Justice Van Camp about the state of the art, if one can use that term, in relation to electroconvulsive therapy.
She had the benefit of seven experts. She certainly did not question the credentials of any of those experts, but it was a very hurried application brought on with great urgency and she had to deal with it over a weekend, I believe, and give her decision on a Monday.
It raised very serious concerns for me because it basically was simply a question of statutory interpretation: was the phrase "electroconvulsive treatment" included in the term "psychosurgery" under the Mental Health Act or not was it not?
I sat on the standing committee that dealt with the amendments to the Mental Health Act some years ago. I think the former member for Huron-Bruce was the chairperson of that committee at the time and the present Minister of Agriculture and Food (Mr. Timbrell) was then the Minister of Health. I cannot recall, and I have not had an opportunity to look at or to ask the library to look at the references in the debate, what we thought was being decided on the question of electroconvulsive treatment, whether it was or was not included in the term "psychosurgery."
12:40 p.m.
My third concern about it is the charter, the question of the security of the person under the charter and whether or not the administration of that kind of treatment involves an intrusion on the security of the person, which is no longer warranted. I think the question of whether or not the exception under section 1 or the justification under section 1 for what would otherwise be a breach of a right under the charter can only be intelligently answered by the court if the minister, along with his colleague the Minister of Health (Mr. Norton), appoints the most competent task force he can find to survey the state of the art in that field and to report to him and the Minister of Health on the question of whether it should be used.
Madam Justice Van Camp was quite right. We had authorized certain intrusions on the security of the person, on the inviolability of the person in the Mental Health Act. On the question of whether this was included as one of those intrusions, on the basis of her assessment of the evidence in the short time she had available to her, she had to come to the conclusion that this was an authorized intrusion and so made the order.
I ask the Attorney General, along with his colleagues, to take that matter very seriously. All of us who sat on the committee are very concerned about whether the statute reflects accurately what it should reflect, not only at that time, but also in the light of the charter. As I said at the beginning, I admire Madam Justice Van Camp for having been able to deal with the matter as expeditiously and as thoroughly and with the wisdom she displayed in her judgment, but I think the question that ultimately comes back here is one of statutory interpretation.
My next point is that in the debate on the estimates of the Minister of Correctional Services (Mr. Leluk) some questions were raised by me and my colleague the member for Yorkview (Mr. Spensieri) to that minister with respect specifically to the Toronto Bail Program, but relating also in a somewhat broader sense to all the fee-for-service existing contracts. I think there are about a dozen of them with respect to the bail program.
In the course of those remarks, the executive director of the community programs division had some comments to make. In any event, without holding up the debate to try to deal with it, a serious question has been raised of whether under those contracts the ministry is going to opt out and the funding is going to terminate together with that expeditious system of providing bail for those who are basically not in a position to put up the surety, but can give their recognizance to appear in court on time and report to the bail program from time to time.
The gap in the justice system in the bail program is filled by those agencies and there is some very real fear that somehow or other that system is being rethought, the agencies are going to he cancelled and their funding is going to disappear. If my memory is correct, the minister's response was: "Of course, that is not up to us because that is part of the judicial function. We would have to consult before we terminated or affected the funding arrangements of those fee-for-service contracts." My basic question to the Attorney General is: Is there any change in substance at all under consideration that would affect the bail programs with those 12 agencies and is there any intention to alter their specific operation?
There is another matter I would like to express my view on. I notice in one of the communications of the Law Society of Upper Canada that pressure has again been raised to request authorization to use credit cards for payment of lawyers' accounts. I would have great hesitation in believing that is a way in which lawyers' accounts should be paid. I would have to stand as one who is opposed to that unless I heard some cogent arguments to persuade me otherwise. I was quite surprised to see it in the communique.
Related to that, each of the communiques keeps referring to amendments to the Law Society Act. I wonder whether it would be possible, either in draft form or otherwise, to share with my colleague the member for Kitchener (Mr. Breithaupt), myself and anybody else who may be interested, whatever draft is kicking around of amendments to the Law Society Act because it appears to be a relatively extensive review which is being made of that statute.
The last communique, which happened to be on my desk this morning, referred to the fact they had reconsidered their position with respect to the disciplinary function of the governing body of the law society with respect to its members. I would not like to have that bill suddenly introduced here as a fait accompli without an opportunity to participate, perhaps somewhat in advance, in whatever consideration is going ahead on it.
I listened to the exchange with the Attorney General on the question of plea bargaining arising out of the case the member for Ottawa East (Mr. Roy) raised, and on which my colleague the member for Ottawa Centre (Mr. Cassidy) asked a supplementary question the other day, about whether there was a breach of the commitment between the crown and the defence lawyer.
The substance of that case is not what my concern is about. My concern is I would like to believe that whatever the so-called plea bargain is, and however the negotiations go on between counsel and the crown in all these matters, the final plea bargain is a matter of record in open court, because it seemed passing strange to me that any member of the crown staff would give as part of an agreement, an agreement not to take a matter to appeal.
I think it would be beyond the power of a crown attorney to say, "We will agree not to appeal this case." I can see agreement as to what charge will be withdrawn or what charge will be proceeded with, what the nature of the plea will be and a discussion with respect to what the crown will do when the question of sentence comes up and those kinds of questions, but I have always felt the odium that has been expressed many times about the plea bargaining process can be substantially and totally reviewed if, when counsel stand in the court, they say in one way or another they have reached agreement as follows on this matter, and that is the way in which they tend to appear.
It is a matter of public record. That is the agreement and one does not get these arguments later on about what was said, what was not said and what was the perception of the truth that one person has as against another person. If my memory services me correctly, a few months ago there was another case in which the actual evidence had to be given with respect to the nature of the discussions which had taken place between the crown and the defence in some other related case. I do not remember the particular participants. I would like some clarification by the Attorney General or any comments he might care to make on that question of plea bargaining.
12:50 p.m.
I am not going to repeat any comments I have on the legal aid program generally, except to restate the initial provision I think should be made. That is the statutory deduction of the 25 per cent should be taken out of the legal aid plan and the matter assessed in the light of the removal of that statutory deduction.
It may be that in times of restraint, one has to take it out over a period of time. I think if one were to take out 10 per cent now and 15 per cent later on, one would go a long way towards solving some of the fee concerns of those who practise within the legal aid program.
The last comment I want to make on these concurrences is with respect to the Young Offenders Act. In the estimates of each of the justice portfolios for which I am responsible -- the Solicitor General, the Attorney General, Correctional Services and the Justice policy field -- I tried to raise the question of what is going to take place under the new Young Offenders Act, not only when it is proclaimed, but particularly when the 16-year-olds and 17-year-olds come to the court.
Much of what I have to say I owe to some information furnished to me by the Ministry of the Attorney General in a letter setting out one side of the position from the director of the Centre of Criminology at the University of Toronto, a judgement of Mr. Justice Beaulieu stating in very practical terms, "What is available to me, sitting here as a judge, when I have a serious case? Who can I refer it to?" It poses the two poles: Is it care and treatment or is it punishment? What is the relationship between punishment on the one hand and care and treatment on the other?
If I am fortunate enough to find the page, which is quite unusual for me, I do want to refer the Attorney General to a comment in the estimates of the Ministry of Correctional Services. On page J-325, the Minister of Correctional Services says:
"In yesterday's remarks regarding young offenders I believe Mr. Renwick made some reference to the fact that the Minister of Community and Social Services (Mr. Drea) and myself as Minister of Correctional Services were involved in some kind of heated debate and dispute regarding to whom the responsibility for young offenders might fall."
The member for Yorkview interjected, "At loggerheads," and then the minister went on:
"I just wanted to assure him and the members of the committee that we have had some discussions not only between the minister and me but also between our senior staff, and about all they have been is discussions. There is no disagreement or what have you. We have both stated our cases and we will await the decision by those who will finally make one based on the information I have just given this committee."
That is as late as October 27, 1983.
My concern about the Young Offenders Act is when looked at from that point of view, it seems to me that is the basic cornerstone which has to be put in place. What is the goal? To what extent is the Attorney General taking a position on that question? Who will make the final decision, apart from cabinet?
Who will make the recommendation to cabinet about where the responsibilities will lie? Will they be shared responsibilities between the Ministry of Community and Social Services, bearing in mind the work done under the former minister, now the Minister of Health when he brought in one of the provincial court judges as an associate deputy minister to work with him in the whole field of reviewing the care and treatment of those children and adolescents who need care and treatment? Or is it going to be a punishment model left in the correctional world, if I can use those two terms?
If it is going to be the Ministry of Community and Social Services, are optional facilities available so a judge sitting in a court can say, "I have real options in front of me with respect to the person with whom I have to deal in the course of what the treatment or the punishment will be"? Or are we going to end up, as Mr. Justice Beaulieu said, for practical purposes locked in because there are no options and he has to do the best he can in a given case?
It seems to me that once that decision is made, you can deal with a great number of other matters flowing upwards in the system through to the nature of the youth courts, the staffing of the youth courts, where they are going to be designated and all the matters that are matters not only of logistics but also of implementing the philosophy of that particular statute.
If we make that fundamental decision about the nature of the options that are going to be available to the judge so it is the widest possible range of options, then you can sort out between the ministries where it is going to fall. It may be that we will have some facilities under Correctional Services and a wider range of treatment and care facilities under Community and Social Services. The fact that they are in different ministries would not bother me. But I certainly do not like to see it as some kind of jurisdictional dispute between two ministries, and that is certainly one aspect of what is coming through to me.
Those who are knowledgeable in the field of youth care, treatment and so on are very apprehensive about the fact that the basic decisions do not appear to have been made by government, and I would like to know whether the Attorney General is the one who will make the final recommendation or to what extent he will participate in it. I have been told -- and my information is accurate, as always in these matters -- that he is very persuasive and influential, as is his deputy, in what the decisions are going to be. In the light of what the Minister of Correctional Services said I cannot continue simply to deal with him on the question; I have to ask the Attorney General what role he plays in this matter.
If I could just advert for a moment to my first remark on organized crime and the attempt that Mr. Justice Roach made to introduce some acceptable terminology into it, I asked the library if they could find his definitions. I certainly do not intend to read them into the record, but I do think it would be quite worth while if the Attorney General looked at the pages in Mr. Justice Roach's commission on organized crime, where he very clearly attempts to define, in both an illustrative way and a dictionary way, the difference between the two terms "organized crime" and "syndicated crime."
It was not very long afterward that I asked some question about syndicated crime in Ontario when I first came into the assembly, and everybody looked at me with a blank face as though they did not know what it was, whereas Mr. Justice Roach spent three or four pages of his report making that distinction.
I think that is the question the public is concerned about. Probably everybody is content to leave organized crime, in the sense that Mr. Justice Roach used the term, to the police investigations and the way they are going. Syndicated crime is what is agitating the public and therefore agitating the members of the assembly who have spoken on those matters.
That is the extent of these remarks on the concurrence debate. I hope the Attorney General, either today or at some suitable time, will comment on some of the points I have raised.
Mr. Breithaupt: Mr. Speaker, I was going to speak briefly on this matter. Are we to adjourn at one o'clock?
The Deputy Speaker: As soon as the clock is seen --
Hon. Mr. McMurtry: Mr. Speaker, perhaps we could have unanimous consent to continue since we are so close to the conclusion.
The Deputy Speaker: Certainly the chair would be happy with that.
Mr. Breithaupt: I only want to raise one point. A number of the themes my colleague the member for Riverdale (Mr. Renwick) raised were, of course, of interest and I look forward to the comments the Attorney General may make. I wanted to ask for a progress report on the incident in Fergus on June 6 about which I had asked a question of the Attorney General. He may well recall this car police chase.
I have asked the Solicitor General, perhaps during his concurrence, to make a brief statement as to the progress in that matter. I advised the Solicitor General I would be doing so and I believe he is prepared at least to make a comment upon that in so far as it is appropriate to do so. I am wondering if the Attorney General can similarly make a comment, if appropriate, with respect to the involvement and activities of the crown law officers who were involved in this matter.
The Attorney General may recall there was a comment in the Ontario Police Commission report about this incident. The report, I might say, was the annual review of the force and this formed only a small reference in that general report. I have put it on the record before, but I will just quote the paragraph:
"Based on the allegation received by Chief Burns, a detailed investigation was carried out, with statements being obtained from all concerned, following which the crown attorney was consulted. After reviewing the entire matter, he advised that no criminal proceedings would be instituted by his office against the officer involved."
There was the matter of certain charges, which apparently were withdrawn, and in my understanding that would not have happened without the consent of the crown. Yet the crown attorneys involved apparently denied having any knowledge of the terms of the arrangements or deal that was made with respect to the withdrawal of certain charges and the possible compromising of the opportunity for any civil or criminal proceedings as the quid pro quo in the matter.
Perhaps in his comments this morning the Attorney General may be able to advise me as to any progress in the review he undertook to do of this situation, so that the air may be somewhat clearer on this matter.
The Deputy Speaker: Are there any other honourable members wishing to speak? If not, the Attorney General.
Hon. Mr. McMurtry: I will speak very briefly, since we will be having the opportunity to discuss some of these important issues that have been raised later on as well.
On the subject of organized crime, I want to make it very clear that I did not say at any time that I was not concerned or that I was unconcerned about organized crime or syndicated crime. I am obliged to the member for Riverdale for directing my attention to the Roach report and the definitions of Mr. Justice Roach. It may be of assistance to us as we consider these issues.
In relation to Madam Justice Van Camp's decision, which is a very important decision, certainly the Minister of Health has indicated his concern about the issue of electroconvulsive treatment of unwilling patients. He has made it very clear he wants to review this to determine whether it could be justified without consent in the public interest. I certainly will be pursuing this with him, given the importance of the matter.
It is fair to say that the Toronto Bail Program which has fee-for-service projects with the Ministry of Correctional Services is under review at present and, to my knowledge, no decision has been made.
I was interested in hearing the member for Riverdale's comments with respect to the law society and credit cards, because I have expressed similar concerns in writing to the law society about the use of credit cards. I am delighted we share these concerns. In my own view, it would appear to be an inappropriate way to proceed.
As to any proposed amendments to the Law Society Act that are proposed by the Law Society of Upper Canada, I will certainly see they are shared with my justice critics well before any legislation is introduced.
I also agree with the member for Riverdale in what he had to say about the desirability of placing plea discussions on the record in open court. I think it is most regrettable that some of these disputes have arisen. My instructions to crown attorneys over the years have been to put all relevant matters on the record in open court. I agree with what was said about the desirability of that in the public interest, particularly if we are going to retain public respect in the administration of justice.
As to the young offenders legislation and the designation of the ministry, this is a matter that is under active review. I would like to think the decision that will be made will be made by cabinet as a whole. I would like to think the Attorney General and the Deputy Attorney General will have some influence in the decision. It is hard to predict just where these discussions will end, but I agree with the member that we have to get on with that issue because it is of increasing concern.
In so far as the Fergus incident is concerned, I have not yet seen the report from the Solicitor General's ministry, but I have not forgotten. The Solicitor General advises me that the Deputy Solicitor General is reviewing a report he has received. I agree with him that the role of the crown attorney's office would appear to have been of some importance and I expect to have a careful review of the matter. I will be advising him as soon as I have the necessary information on which to make some comment.
Resolution concurred in.
The House recessed at 1:07 p.m.