31st Parliament, 1st Session

L043 - Mon 7 Nov 1977 / Lun 7 nov 1977

The House resumed at 8 p.m.


House in committee of supply.

Mr. Chairman: Before calling the votes, I presume the Attorney General will have an opening statement, as well as the opposition critics.

Mr. Stong: Oh no, dispense.

Mr. Roy: No, let’s hear it.

Hon. Mr. McMurtry: Mr. Chairman, being a very modest individual --

Mr. Breithaupt: You have a lot to be modest about.

Hon. Mr. McMurtry: -- last year I refrained from an opening statement, thinking that the members of the justice committee in particular would be most anxious to get to the votes, and received some degree of criticism for not making an opening statement. So I trust that members opposite in particular --

Mr. Lawlor: We’d like to hear from you.

Hon. Mr. McMurtry: -- will want to hear from the Attorney General this evening.

I am certainly very delighted to be back under the spotlight, as it were, this evening, to outline the work of the Ministry of the Attorney General over the past year.

Before we start on the detailed consideration of estimates, however, I should like to highlight a number of issues with which I have been particularly concerned over the past year.

As most of you appreciate, the Ministry of the Attorney General is in many ways a unique ministry within the Ontario government. Unique here and now in that all three parties in the Legislature share a commitment to the strengthening of the administration of justice. That commitment in the past has usually raised our work above the hurly-burly considerations of mere party politics. In this context, I want to thank the justice critics and the other members of the justice committee in the two opposition parties for their co-operation and many helpful suggestions over the past year. Though we do sit on opposite sides of the House, I feel we do share a common concern for justice.

Mr. Chairman, my ministry is also unique in that the people of Ontario justifiably demand access to justice as a right. The law must be available, and we of course have an obligation to provide services wherever required. The demands of the system are not of our making, but I do again, of course, have a constitutional and sworn responsibility to meet them.

While I am concerned to ensure the maximum efficiency for all our operations, neither the rate of criminal prosecutions nor the rate of civil actions is particularly responsive to my government’s desire for restraint.

Lastly, we are unusual within the provincial government in a number of ways. Members will note the considerable revenue we earn in comparison with our expenditures. Secondly as a result of the nature of our services and the fact that they are provided in every part of Ontario, my ministry is one of the most labour intensive in the government. These facts should be borne in mind when we get down to the individual votes.

While the times and the economic climate demand constraint in government budgets and programs, I always considered that the administration of justice should be one of any government’s highest priorities. When I look across Canada and learn that only three per cent of total public expenditures in this country is spent on all justice services, I can only marvel that we have managed to make so many improvements in services and to cope as well as we have with the vast expansion in case-loads.

While all of us recognize that there has been a veritable explosion on court case-loads, the sheer size of the increase may sometimes be overlooked. In our provincial courts, criminal division, the number of criminal code cases disposed of has tripled over the last nine years since my ministry took over the administration of these courts. Nor are the pressures confined to the provincial courts, criminal division; between 1973 and 1977 the disposition rate of criminal cases in our country and district courts increased by 45 per cent; summary conviction appeals increased by over 60 per cent.

On the civil side, we find that the disposition rate of civil cases in the county and district courts rose, between 1973 and 1977, by 48 per cent; appeals to the court of appeal are up by 40 per cent during that same period.

These increases are placing real strains on our courts which are becoming difficult to meet. We, therefore, cannot be at all complacent when we confront the case-load crisis. The problems are real and serious, and as I have recognized in the past they do have the potential to undermine the quality of justice in Ontario.

While the system is responding as it can and marked efficiencies have been achieved, the productivity of both judges and court personnel has been limited by the lack of an effective approach to case-load management. The crisis comes to us as a legacy of many factors of modern life: population growth, the prevalence of the automobile and the inevitable resulting accidents, the intricacy and interdependence of modern business operations, the growing stress on individual rights, the considerable expansion of the government’s role in regulating activities, and the decline of traditional standards.

Mr. Lawlor: You know your deputy, when he wrote this, didn’t repeat the whole text. He left off where it was getting interesting.

Hon. Mr. McMurtry: Legal aid has led to an increase in the number of criminal cases tried and in the length of the trial process. Increasing police activity and effectiveness, growth in crime rates, and litigation, have all contributed to the crisis. To meet this crisis effectively significant reforms will be needed.

Following on from the Ontario Law Reform Commission’s project on the administration of Ontario courts, we produced last year a white paper on courts administration, which has focused attention on the issue’s possible solutions. We have had a series of very productive meetings with senior members of the judiciary over the past year to discuss the allocation of responsibility for court administration. A number of members of the bench and bar have expressed concern that proposed reforms might result in an increased administrative role for senior judges that could so occupy their time that they would cease to be actively sitting judges. While I remain totally committed to a reorganization of court operations, this reorganization must respect at all times the historic independence of our judiciary, and as far as possible ensure that the reservoir of talent and experience of the bench is not drained by day-to-day administrative responsibilities.

As a result of these concerns, we have been working on a new proposal which would ensure that while senior judges have the closest advisory role, they are not unduly burdened with administrative responsibilities. Over the summer I discussed the situation with the former Chief Justice of Ontario, Chief Justice Estey. His co-operation was very important. When we had achieved agreement in principle, we were moving to phase in part of the reforms with his assistance. However, a few weeks ago, as most of you know, the federal government appointed Chief Justice Estey to the Supreme Court of Canada, which I indicated last week --

Mr. Conway: Excellent.

Mr. Lawlor: It is called a meteoric rise.

Hon. Mr. McMurtry: -- which I indicated last week showed a remarkable insensitivity, or lack of familiarity, with the problems of the administration of justice in Ontario, notwithstanding our recognition that he will indeed be very important, and as I termed it last week an adornment, to the Supreme Court of Canada.

Nevertheless, I welcome the appointment of Mr. Justice William Howland as the new Chief Justice of Ontario. Mr. Justice Howland is a very distinguished jurist and I look forward to working as closely and productively with the new chief justice, as I did with the former, towards a new model for an efficient court system.

Within the coming year, I will be bringing forward new proposals for organizational changes to carry out effective case-load management. A number of other initiatives have also been made to tackle the problem of delay. Six months ago, guidelines for disclosure in criminal cases came into force. This new disclosure system is intended to reduce the length of preliminary hearings while safeguarding the basic rights of the accused and the Crown.

We are reviewing the Summary Convictions Act to bring forward a comprehensive new provincial offences statute. We have asked the Williston committee to review the rules of practice in the supreme court, and this work will result in many changes directly affecting court effectiveness. I think we are making progress on a broad front to provide better and more efficient services, and I would be delighted to expand on these themes as we proceed through these estimates.

Of course the administration of justice must not merely be efficient, it must be understandable and accessible to citizens across Ontario. A major aim of the ministry is to make the court system more comprehensible to and more convenient for the general public. This is reflected in much of the legislation I have --

Mr. Reid: Does that include native people?

Hon. Mr. McMurtry: Including, of course, the native people.

This is reflected in much of the legislation I’ve already brought and will be bringing to the Legislature, including the changes to the small claims court legislation and our proposed provincial offences Act.

For example, the basic thrust of our proposal on provincial offences is decriminalization. This flows from the recognition that the person who breaches an Ontario law need not be treated as if he or she were a dangerous criminal. Under these reforms, there would be less emphasis on formal court appearances, and less emphasis on technical and adversarial procedures and ceremonial trappings. The unnecessary and often hidden procedural baggage would be stripped from the system without diminishing the existing rights of accused persons to defend themselves and to have their views considered by those who judge them. The proposal should bolster the ability of citizens to effectively meet charges laid against them by making the assertion of a defence, of explanation, more convenient, speedier, less expensive and less intertwined with legal technicalities.


While much of our recent legislative reform is towards this end, we have applied the same aim of promoting understanding and easier access to the ministry’s role in administering the courts. We have, for example, decentralized the provincial, criminal and family courts from downtown Toronto to the boroughs. The major purpose in this was to move the courts closer to the people to increase efficiency.

On the basis of the success of our development project, the North York traffic tribunal, we are expanding this concept. The tribunal enables people charged with driving offences to drop in for a hearing at their convenience and to enter pleas of guilty with an explanation. This approach is designed, right down to the layout of the hearing rooms, to be informal and less intimidating, to enable the motorist to better understand the consequences of the offence and to improve his driving habits through a classroom course.

The tribunal system has been widely hailed by the people involved and by other jurisdictions which have examined it. My ministry is now expanding it to the boroughs of Etobicoke, Scarborough and York and we hope to develop it further in other areas of the province in the future.

We are also committed to making justice more accessible in areas of the province where the needs of the population require special initiatives. A few weeks after I became Attorney General in 1975 I committed my ministry to developing a program for the use of the French language in Ontario courts. In the summer of 1976 we began a developmental project towards this end in the provincial court, criminal division in Sudbury. This level of the court system was chosen because it is the level with which the public has most contact. In fact, more than 98 per cent of all criminal and quasi-criminal matters before the courts are at this level.

Sudbury was chosen because it had the personnel in the court and in the legal community to test the program, as well as a sizable francophone population that could make use of the service.

We laid the foundations of this program carefully, because we wanted the program to work well from the beginning, we wanted it to endure.

Building on our experience in Sudbury, we expanded the program on June 6, 1977, to two more areas, the judicial district of Carleton and Ottawa and the united counties of Prescott, Russell and L’Orignal. Further expansion took place on October 3, 1977, in the judicial district of Cochrane, and five communities; Kapuskasing, Hearst, Smooth Rock Falls, Hornepayne and Cochrane.

The development of this program has enabled us, in the space of little more than a year, to provide French-language court services to about 66 per cent of those Ontario citizens who speak French only, citizens, of course, whose individual needs in this regard are the greatest.

While we are planning further expansion of this service in the provincial court, criminal division, we are also developing it in the provincial court, family division, and I expect to announce in a day or two the start of the service.

My ministry is also pursuing this issue on a number of other fronts. I have appointed a committee to examine issues relating to the provision of French-language services in the county and district courts as well as in the Supreme Court of Ontario. This committee, chaired by the Deputy Attorney General, has representatives from the ministry as well as members from the Ontario and Quebec legal professions.

Some months ago I asked the federal government to amend the Criminal Code of Canada to permit French-language jury trials in Ontario. The federal government indicated, in a Speech from the Throne a few weeks ago, that it intended to do this and the federal justice minister indicated he would consult us on the form of the amendment. We are now awaiting that consultation.

In the meantime, as the Premier (Mr. Davis) indicated in a statement at the start of this session, the government intends to bring in amendments to the Judicature Act and the Juries Act to facilitate the further expansion of this service.

Finally, Mr. Chairman, I would like to mention a recent and important case that has clarified the constitutional position of the Attorney General. The historic office of the Attorney General is vitally important in ensuring that justice is fairly and impartially administered and that proper accountability is preserved.

At the end of July this year, the judicial committee of the House of Lords, the highest British appeal court, gave judgement in the case of Gouriet versus the Union of Post Office Workers. The case concerned a private citizen who sought an injunction against a postal union because of its intended ban on the handling of mail to South Africa. The significant part of the case is that the British Attorney General had refused to consent to the action. The court had to face the important constitutional question of whether or not the courts can compel the Attorney General to give reasons for exercising his discretionary powers, with a view to determining whether the court should override the Attorney General’s decision in particular cases.

The House of Lords’ decision was unanimous, sweeping and very significant. They said, in effect, that the private citizen cannot under any circumstances, invoke the aid of the civil courts to prevent a threatened breach of the criminal law, other than to protect his personal rights. If the criminal law is actually breached, every citizen retains the residual constitutional right to bring a private prosecution against the offender. But the Attorney General is the only person recognized by the public law as being entitled to represent the public interest in a court of justice; the civil courts may declare public rights only at his insistence. Public rights are constitutionally vested in the Crown, and the Attorney General enforces them as chief law officer of the Crown.

Those are very sweeping statements, but I think they’re justified when one examines the role of the Attorney General in maintaining the delicate relationship between the executive, legislature and judiciary.

The Attorney General does have many powers, duties and responsibilities. Any prosecution on indictment may be stopped by him by staying proceedings. He merely signs a piece of paper saying that he does not wish the prosecution to continue. He need not give any reasons. In the exercise of all his prerogative powers, he is not subject to direction by his ministerial colleagues in cabinet, nor to the control and supervision of the courts.

The disgruntled citizen who launched the action in the Gouriet case is reported to have commented as follows: “It now seems that law is no longer above the Attorney General. Recollecting the powerful words of Thomas Fuller 300 years ago, ‘Be you ever so high, the law is above you’; the Attorney General has now, by this judgement, been confirmed as being unanswerable to the courts and has taken upon himself a certain divinity.”

Mr. Lawlor: We can see it just above your head, like a little cloud.

Mr. Conway: Like the Attorney General.

Mr. Reid: And 300 years later those words don’t apply.

Hon. Mr. McMurtry: But Lord Fraser, in his judgement, pointed out that the statement just referred to does, indeed, misconceive the Attorney General’s role.

Mr. Reid: What does the present Attorney General think?

Mr. Chairman: Order.

Hon. Mr. McMurtry: I quote this with approval:

“If the Attorney General were to commit a serious error of judgement in the exercise of his inherent powers and duties, the remedy must lie in the political field by enforcing his responsibility to Parliament and not in the legal field through the courts. That is appropriate because his error would not be an error in law, but would be one of political judgement; using the expression, of course, not in a party sense” --

Mr. Reid: You have never been accused of errors in political judgement.

Hon. Mr. McMurtry: -- “but in a sense of weighing the relative importance of different aspects of the public interest. Such matters are not appropriate for decisions in the courts.”

I mention this to emphasize the importance of this legislative assembly in relation to the role of the Attorney General, because some of them might have to be reminded of the extent of their responsibilities from day to day.

Mr. Conway: Tell us you are a real democrat.

Mr. Reid: You haven’t disavowed Fuller.

Hon. Mr. McMurtry: I am exclusively and politically accountable before the bar of this House for the exercise of my discretionary powers. This chamber is where my actions can be questioned and debated in public.

Mr. Conway: So we heard last summer.

Hon. Mr. McMurtry: Professor Edwards of the University of Toronto added an important rider to this statement when he reminded us that, and I quote from his well-known work on the law officers of the Crown: “The exercise of his discretionary authority by the Attorney General must be challenged and probed vigorously, but members of Parliament, of every party, must understand that in adjudicating on what has happened they, too, are being scrutinized to see if they are having regard to the protection of the impartial administration of justice, or whether, as so often is feared, they are contributing to a degrading of the higher ideals in the favour of more transitory political advantage.”

I think we shall see the very considerable effect of the judgement in the Gouriet case over the next few years. Certainly it has brought home to me, once again, the importance of the responsibilities vested in my office; responsibilities which go beyond the mere application of law and the preservation of order, responsibilities which must include guarantees of justice, fairness and due process.

As the chief law officer of the Crown, I am sworn to preserve a delicate balance between the zeal of the law and the demands of justice. My friend the member for Lakeshore is accustomed to enlighten and entertain us with sometimes apt quotations from the ancient masters.

Perhaps I can anticipate him this evening by closing on a quotation from Dr. Leon Radzinowicz, the famous Cambridge criminologist, which encapsulates my concern that a fair balance be struck between the rights of individuals and the rights of society. He said and I quote:

“For all its imperfections, the criminal law is designed not merely as a buttress for the privileges of the powerful, but as a shield for the elemental human liberties of the poor and weak against the assaults of the strong and the treacherous. In that context, the rigour of the law must be seen as an expression of social concern. There is a place for severity of sentence in response to deliberate and callous crime, but that does not mean that we must also accept, let alone collude in, the erosion of criminal justice or deliberate inhumanity in dealing with offenders. To do so is as unlikely as any other approach to bring about a lasting reduction. It would simply heap other evils on top of the evils of crime.”

Mr. Roy: I must admit that I enjoyed the statement by the Attorney General. My colleague the member for Lakeshore (Mr. Lawlor) will agree with me that we have listened and heard many of these statements in the past. They go on ad infinitum to tell us what is wrong and what they are doing. We have heard a repetition of these statements over the years without really seeing meaningful improvement in our judicial apparatus or in our case flow system within the administration of justice.

I thought it interesting that the Attorney General dealt with the problems that we have underlined, and repeated time and again so many, many times in this Legislature, about the deficiencies in our courts and the case flow, and how our courts are really being burdened, delayed and so on. I was pleased to see the Attorney General deal with some of that; but what was interesting is that he dealt with that and then with the French courts and spent the last part of his statement to tell us how powerful he is. I think it’s fitting, therefore, that I should deal with some of the things that he said as “all powerful” and as the “chief law officer for the Crown” in this province.

May I say, Mr. Chairman, I think I should put on the record my congratulations on the appointment of the new Deputy Attorney General.

Mr. Stong: He taught me in law school.


Mr. Roy: It is hoped, Mr. Chairman, that by the appointment of Mr. Leal, one who has devoted so much of his life to teaching and to law reform, we’ll be in a position --

Mr. Reid: He is now teaching the Attorney General.

Mr. Roy: Not only teaching the Attorney General, but possibly having a close hand on all those reports he chaired and that we saw come across our desks over the years. These reports, which would probably fill the table in front of you, by and large have remained just that, recommendations and reports.

I hope there is some meaning to the fact that this honourable gentleman was appointed Deputy Attorney General, and that his appointment is a signal that something is going to change in our system of justice in this province. I do want to wish him well.

I must say to the Attorney General, as likeable a fellow as he is, that he’s been Attorney General since 1975. In the early period during which he was Attorney General, he appeared to be hell-bent on becoming the highest profile member of that cabinet. Certainly he has managed to do that in a very short period of time, to a point where I think many of his colleagues within the cabinet were, if not jealous, certainly expressing some envy at how he was able to seize all those red headlines in the Toronto Star.

Mr. Conway: Now he’s got “fruit juice” Frank as competition.

Mr. Roy: My colleague the member for Renfrew North makes a good point, the appointment of the new Minister of Correctional Services (Mr. Drea) is going to give you some competition. In fact I thoroughly enjoyed a press conference I saw on a news clip that was aired across the province, where the Attorney General was sitting at the same table with that hon. member and he wasn’t saying very much. Frank had the floor, and I tell you he was talking about how the administration of justice was going to be changed. That’s not within his field, but he has used your trick, in fact. The biggest headlines you have been able to obtain were by getting noticed in the Provincial Secretary for Justice and the Solicitor General fields; now Frank is doing the same thing to you when he talks about how he is going to make these people work light sentences and all that. It is going to be very interesting to watch these characters work together in the next while.

Mr. Conway: I wonder, is he going to be elected to the supreme court?

Mr. Roy: I don’t know if that is a piece of advice that the Attorney General wants to accept, but I do want to say this to my colleague, the Attorney General, in the last while there have been fewer of those headlines in the press and there has been more dedication to the real problems in the courts.

I should review a few of them, because some have been pretty good. Apart from dealing with violence in the courts, which even got you an interview on Hockey Night in Canada -- my God, you had Joe Clark shaking in his boots following that particular interview; but there have been lots of those, and I might point out that as far as violence in hockey is concerned your record shows the courts don’t seem to agree with you. I don’t know if there have been any convictions --

Mr. Reid: The courts have never agreed with him; take the AIB, hospitals --

Mr. Chairman: Order. The member for Rainy River will be able to speak when we go to the individual votes.

Mr. Roy: I don’t really want to be that harsh -- but I should touch on it, in view of the fact that we have had some time spent on the power of the Attorney General, that’s what concerns me about this. As the chief law officer for the Crown you certainly are a powerful individual within this province and have all sorts of discretion, which as you pointed out cannot be challenged; so it is somewhat disconcerting to us to see these comments made here and there. Some of these I should just review.

Just recently, on June 24, the Attorney General reported that he was going to have a crackdown on pornography and that there were going to be tough measures undertaken.

I want to ask, Mr. Chairman, what steps have we seen emanating from the ministry to follow up on that particular statement? On the question of pornography -- and that in fact goes on to the question of Yonge Street, I suppose I should mix those two things, because what was concerning us about some of the statements made on that was the statement made by the Attorney General on August 12, 1977. He said he was going to bring in something that he called a padlock law. I think the statement was something to this effect, that they were going to make the owners of the premises responsible for all the activities that went on in those premises.

Then he went on to say that he was going to amend the Municipal Act which would give police authority to padlock the premises where repeated violations occurred. Again, looking at the all-powerful office of the Attorney General, one has to be concerned that we’re using that type of bulldozing tactic. In fact when a problem exists, whether it’s Yonge Street or pornography or whatever else, there are Criminal Code provisions.

As far as Yonge Street was concerned, had there been proper enforcement of the law, proper investigation by police authorities and so on, this situation would not have progressed to a point where everybody called it a cesspool.

I’ve got to say, Mr. Chairman, when it comes to something of this nature, when I hear all these municipal politicians and then the Attorney General and then the Premier and everybody get together and say: “a mess Yonge Street is, we’ve got to clean this up”; I just say to them: “What have you fellows been doing? If you were that concerned why didn’t you ask your law enforcement authorities to take the appropriate steps?”

The thing that concerns me, is that all at once there appears to be public pressure. There was a young lad, unfortunately, who was involved in a very sordid type of murder, and of course then politicians were tripping over themselves to make comments about how we were going to do this and how we were going to do that.

I say, Mr. Chairman, that there were laws in place. Had we enforced the laws that existed, we did not have to proceed with such harsh measures. It reminded me of the Duplessis era when he suggested that we have padlock laws. That type of comment is something that is of concern to me as the critic for the justice area in this party.

The Attorney General also expressed some concern about male prostitution at the same time, that was back in August. He said: “I think the Criminal Code is adequate, but the amendments to it deleted parts relating to vagrancy.” He wants to bring back the vagrancy sections of the Criminal Code of a few years ago.

“Some of the police forces feel that it has hindered them in fighting prostitutes. I’m considering discussing this with the government.”

Under the Criminal Code there now exists section 195, which states: “Every person who solicits any person in a public place for purposes of prostitution is guilty of an offence punishable on summary conviction.” How much clearer a law do we want than that particular law, rather than have the old vagrancy section which said: “Someone found in a public place who cannot give a good account of herself” -- it used to just read “herself” at the time?

Basically it was a good law for the police when they saw some characters hanging around to say: “Give us an explanation of what you are doing in this place?” To me, that was not a step forward.

I must tell you, Mr. Chairman, and my colleagues here, I find it interesting that the Attorney General would be concerned and make comments about male prostitution. I can recall, back in 1970, I happened to be defending a prostitute charged under the vagrancy section. The vagrancy section at that time read, “cannot give a good account of herself.”

I made a motion in provincial court which was subsequently appealed to high court saying that this law was discriminatory, was against the provisions of the Bill of Rights in that it discriminated against women. In other words, only women prostitutes, female prostitutes could be picked up under this law and not male prostitutes. At that very time, this was back in 1970, the officers of the Attorney General’s department were arguing that there wasn’t such a thing as a male prostitute, that you couldn’t take judicial notice of the fact that there were any male prostitutes.

Mr. Reid: I could make a comment there but I don’t think I’d better.

Mrs. Campbell: So could the Attorney General.

Mr. Roy: I find it interesting now that the Attorney General should comment that he is concerned about male prostitution.

Mr. Reid: He recognizes it.

Mr. Roy: I say that one must be careful, if he is occupying the office of the chief law officer of the Crown, about making such statements. The chief law officer of the Crown should not get caught up in the hubbub of political pressure or whatever and start making what I consider to be rash statements. He should look at the laws that exist, and if there is a problem with the enforcement then take appropriate steps, but certainly not make comments about bringing forward such harsh measures.

Mr. Conway: Better the hubbub than the rub-rub.

Mr. Roy: I can recall the Attorney General making comment of late -- this wasn’t so late --

Mr. Reid: He makes a lot of comments, he doesn’t do very much.

Mr. Roy: -- when he spoke not too long ago, in the spring, he said to high school students in eastern Ontario something to the effect --

Mr. Conway: Oh tell us about that one.

Mr. Roy: -- that he favoured the legalization of marijuana. You recall what happened. As I recall, at that time the Attorney General said he favoured this. Then he went on to say that these drugs should be sold, I think he said over the counter just like in the liquor stores. I can just see the Tory members, the caucus members and the cabinet ministers, sitting on that side and saying, “What’s McMurtry done now? He’s going to get us in deep trouble.” They were working on the basis of an election in the spring and the Attorney General goes out and makes these statements.

It was only the following day when, out of caucus and out of cabinet, the Attorney General sort of backtracked from the statement and said that he really hadn’t said that and that he didn’t really mean it about selling marijuana or whatever.

I mention some of these comments because this Attorney General has learned that one must be careful if he is the chief law officer of the Crown not to go on a vendetta and not to get caught up in the emotion of a particular situation. As the chief law officer one must reflect on the long term, and when occupying such a position one must be extremely careful.

Looking at the Attorney General’s statement here, he started off by saying we share a common concern, and we do. I think the people in the opposition are concerned about the efficiency of the courts and things of this nature. That is something that we certainly share with the Attorney General. The difference is that over a succession of Attorneys General we have talked about this and we’ve pleaded with them that they are in a position to do something about it and we are not.

If there is procrastination, if effective measures are not brought forward, if you are not getting support from your cabinet colleagues about spending more money for the administration of justice, it is certainly not our fault. In the past I have said repeatedly that the administration of justice is something that is too important to be unnecessarily impeded or curbed by budgets.

We share a common concern, but you are in a position to do something about it and we are not. We will continue to bring that point forward. You should be in the position, with the help and support of your colleagues, to bring forward meaningful measures, and we’ll support you.

Hon. Mr. McMurtry: Have you agreed with your neighbour behind you as to who should administer the legal aid program?

Mr. Roy: We are always in agreement on this. We have never impeded progress whatsoever.

Mr. Stong: That’s private enterprise.

Mr. Roy: In his statement the Attorney General went on to say there were improvements and there were marked efficiencies within the administration of justice. If there are, they’re not all that apparent. There’s a perception out there by the public --

Mr. Conway: I hear you appointed a new barber in Ottawa.

Mr. Roy: I should mention, Mr. Chairman, that those are statements which provoke me, even though they are coming from the same side of the House I am on; I mean when he keeps talking about the new barber.


It’s going to be difficult, Mr. Chairman, for the administration of justice or the Attorney General to retain credibility about improvements within the court systems when the government starts appointing Claude Bennett’s campaign manager as sheriff in Ottawa-Carleton and you appoint his barber as a small claims court clerk. You know the cynicism on the part of the public, and I know you don’t like me saying this, as these are picayune little things --

Hon. Mr. McMurtry: I’ll tell you what I was concerned about; I was provoked that --

Mr. Deputy Chairman: May I ask the Attorney General please not to interrupt.

Mr. Stong: Let’s have a little law and order over there.

Mr. Roy: I say to my good friend and dear colleague, the Attorney General, Claude Bennett is a wheeler-dealer in Ottawa, but don’t let him make your appointments within the court process, because we’ve got enough problems in Ottawa with the administration of justice without him meddling.

Mr. Eaton: That’s for sure, with the federal government.

Mr. Roy: I say to my colleague the Attorney General if the only improvement you can make is to appoint his barber a court clerk, if you don’t have more imagination than that, you’ve got problems.

Mr. Conway: Are there vacancies on the police commission?

Mr. Roy: The Attorney General talked about some of the improvements within the system, and certainly one of the processes instituted in Ottawa, disclosure, was a good one. We call it the pro forma proceeding whereby Crown counsel, defence counsel, the accused and the investigating officer sit together and disclose the evidence and you can eliminate witnesses.

But that is not going to work by itself; in fact some defence lawyers right now are abusing this pro forma. If you speak to some of your provincial judges and your Crown attorneys in Ottawa, you are going to find out some lawyers are using this as a further delay tactic. Delays and postponements and adjournments sometimes are the main weapon of the defence counsel.

Mr. Stong: Sometimes the only one.

Mr. Roy: As my colleague says, sometimes the only one.

So I say to the Attorney General, that system will not work unless you get together with your colleagues at the federal level and say look, I think the preliminary inquiry should be looked at, we should look at the preliminary inquiry mixed in with this pro forma so that we don’t just add another procedure to the whole process. If the accused comes in and gets two or three adjournments and then goes pro forma -- some don’t abuse pro forma to a point, but they don’t admit anything, they get the adjournments, the pro forma, the preliminary inquiry and then the trial; in Ottawa, the way things are going, he can put this thing back two years before he even reaches his trial.

Mr. Eaton: Would any lawyer do that?

Mr. Roy: I am asked, Mr. Chairman, would any lawyer do that? I want to say something to my colleague across the way, I want to talk about the question of lawyers and what happens when you get too many lawyers within the system, which is fast happening now.

Mr. Eaton: That would cut down your income, eh Albert?


Mr. Deputy Chairman: Order.

Mr. Roy: Mr. Chairman, I wouldn’t want to get carried away on that appointment; in fact it’s not within his ministry, the police commission. On the appointment of my good colleague, the former member for Armourdale, Mr. Givens, I’m sure you had nothing to do with that; we won’t go into that.

Hon. Mr. McMurtry: Was it a good appointment?

Mr. Roy: Was it a good appointment?

Hon. Mr. McMurtry: Yes, was it a good appointment?

Mr. Roy: Once this is all finished you and I will go outside and discuss it, okay?

Mr. Conway: Tell us about the ones you didn’t make.

Mr. Roy: Mr. Chairman, the Attorney General talked about some of the improvements in the French language capacity of our courts in this province. I want to say to the Attorney General, sure, since you’ve been Attorney General there have been more improvements within that field than there had been under your four or five predecessors and that is something for which you should take credit; but I’m just wondering to whom I should give the credit, this government or Rene Levesque for winning the election back on November 15 in Quebec.

Mr. Conway: The latter, the latter.

Hon. Mr. McMurtry: It started the year before.

Mr. Roy: Yes, you started, but I tell you, you weren’t moving very fast when I was talking about the Judicature Act and the impediment in having French language trials, with delays and that sort of thing; and after November 15 those of us that believe in the unity of this country, and I look at my colleague, Mr. Brunelle from the north -- you don’t mind if I don’t use the riding names, Mr. Chairman, I could never get that down.

Mr. Conway: It is Moonbeam.

Mr. Roy: Yes, the member for Moonbeam. You know, of course, I visited his fair riding just before the election; we had this tremendous candidate --

Mr. Eaton: It didn’t help you a bit, did it?

Mr. Roy: You only got about 65 per cent of the vote; I think we brought that down.

Mr. Deputy Chairman: Order, order!

Hon. Mr. Grossman: Come into my riding next time!

Mr. Roy: I think we brought it down.

Mr. Deputy Chairman: Order, please.

Mr. Roy: We were going to give them a fight in that riding.

Mr. Eaton: He is going to get his rebate, is he?

Mr. Roy: There was only one problem; he promised me he would retire, but he double-crossed us.

I want to say that, sure some of the enthusiasm on the part of this government is due to the pressure that is going on now in Quebec, because it is an embarrassment. It really is an embarrassment in this province, when some of us are fighting for the rights of the anglophone minority in that province, and we see certain bills like Bill 101 which in fact restricts, or in fact encroaches or takes away certain rights which have been accepted since Confederation for the English-speaking minority in that province.

How can I, as a minority in this province, go and tell the majority of Quebeckers: “Say look, what are you doing to your minorities?” And they would say: “Well that is funny, the mayor of Hull, just across the river from Ottawa, came into Ottawa and tried to have a trial in French and was thrown in jail because he insisted on having a trial in French.” That was embarrassing, that was truly embarrassing.

Mr. Samis: Shameful!

Mr. Warner: Shameful government policy, shameful!

Mr. Roy: The fact is that that is the type of pressure, unfortunately, that is needed to get things going.

So we have a few things here that we have to correct. If this province, this government, and the Premier of this province, intend to go into the province of Quebec and argue against that, argue on the referendum and tell the people how French Canadians are welcome in his province, and then be faced with the embarrassing fact that in the area of education, health, justice and so on there are impediments; that in fact the anglophone minority in the province of Quebec has rights which are legislated, and has rights which we francophones in this province never even dreamt of having. That is why I am saying to the Attorney General, “Until you change some of your laws …” -- and I am pleased to see, for instance this fall, apparently, you are going to bring forward amendments to the Judicature Act, because you could not be taken seriously about providing French-language services in the courts when you said to the French: “Yes, you can have your trial in French but don’t you dare appeal; if you appeal you cannot go any further. You can only have it at this lower level; and don’t you try to have a civil case in French because we won’t hear you, there is no jurisdiction.” So I say to you, these are some of the things, the amendment to the Judicature Act and the Jury Act.

I was pleased to see that in the Throne Speech the federal government finally is going to make some amendments to the selection of juries and other relevant amendments that are going to be in fact proposed. It is interesting that in 1968, when John Turner was Minister of Justice -- and went around to get acceptance of the Official Languages Act, that unfortunately he did not receive unanimous consent from the provinces; this province did not show the enthusiasm it should have. Possibly if we had who knows, we might not be facing the problem we are right now with the unity of this country. So I thought I would mention this --

Mr. Warner: Ten years of oppression.

Mr. Roy: -- and say to the Attorney General, “Yes, you will get our full support, but let’s get on with it, really.”

I understand that there are problems. My God, there are problems. I discussed with your deputy what it required even just to translate the laws, that was going to be a problem. But given the will, there is a way. This just started over a short period of time, having trials in French in Ottawa.

Maybe I should recount this; it was an interesting experience, my first trial in French in the courts in Ottawa.

The accused was charged with leaving the scene of an accident. Of course under the Criminal Code he has to leave the scene of the accident with intent to escape civil and criminal liability. My defence was that he didn’t intend to escape civil or criminal liability. The fellow with whom he got in the accident wanted to beat him up. He was afraid and that’s why he left the scene of the accident

Mr. Lawlor: Section 17.

Mr. Roy: Yes, that’s right. I don’t know if it’s section 17, I’m not that learned. In fact since they’ve changed all the numbering on those sections I’ve forgotten them.

In any event, it was a terrific defence. My main witness was a taxi driver who happened to be there to witness this. I got it all organized. I had this taxi driver as a witness. On the day of the court if he doesn’t come in just bombed out of his mind. I knew right then I was finished; there was my key witness, my main witness, who could hardly talk.

The only word you could say in French in this situation, Mr. Chairman, is “caulice”. I knew I was going to have a problem, so what I did -- “we had a few minutes -- ” I hauled him upstairs to the police station, poured some coffee into him and I said to him: “Just answer the questions for God’s sake.” I knew I was going to have to limit the number of questions and all of this.

Finally, the case was called half an hour later, after four or five cups of coffee. I called him up on the stand. Things were going pretty well. He was pretty well behaved and so on. I could see the judge was sort of looking at him sideways and wondering if this guy was okay or if there was a problem with him.

It was all okay; the examination-in-chief, the cross-examination. Things were going just right, until the examination was just over and the judge said, “You may leave now.” As he was walking from the dock as a witness he said something to the effect -- using the proper expressions of course, with a few “caulices” thrown in -- “If I had been the accused I would have smashed his face in.” Having said that he fell off the witness stand.

Then there was the matter of asking for a quick adjournment, apologizing and things of this nature and sending this fellow on his way. I thought it was typical of some of these experiences we have sometimes in Vanier and lower town with our good Franco-Ontarians.

Anyway, it worked out quite well.

Mr. Lawlor: What happened, what was the verdict?

Mr. Roy: The judge, being one of your better and good appointments in Ottawa -- we have some good appointments in Ottawa -- did not let the conduct of the witness and his composure and his expression hamper the case and exercised reasonable doubt in favour of Simphorien; the name of my client was Simphorien.

It was very interesting. If some of you watch Channel 10 there’s a fellow on that channel by the name of Simphorien with a little moustache who is always getting into trouble. This guy looked just like him. I think that saved me with the judge. He looked at the same program and said, “This man could not possibly have intent to escape civil and criminal liability.”

Mr. Chairman, if I may just mention this to the Attorney General, we appreciate, on this side, the problems he is facing in getting some efficiency, in getting the case flow and dealing with this huge burden of cases at all levels in our courts. We appreciate, as well, the fact of the sanctity and independence of the judiciary from the executive and legislative arm of government; but that doesn’t take away from the fact that leadership must come from the government on this; it has got to come. I’m sure that given leadership, and given proper resources by the government, that the chief justice, or the chief judges, and now the associate chief judges -- we have associates now -- all of these people can be perceived as the ones taking leadership in that field.

We must deal with it. I’m looking at some of the things that judges have said. In the county court system we have judges who say the system is breaking down; county courts appeal for more court rooms in Toronto here. Then they go on to say that the growth of the court loads fulfils predictions.


This is not something new; this is something that we have perceived coming forward for the past five or 10 years. We even had views from the Chief Justice of the province, Mr. Justice Estey, who said at one point that the courts are strained by unnecessary legislation, both from the federal government and from the provincial government. How right he is. From 1971 until now, how many pieces of legislation have we passed, just in this place alone, where we always refer things to the courts? As the judge said, “The federal government and the provinces are straining the courts by passing a lot of unnecessary legislation. Willard Estey, sworn in as Chief justice of Ontario, used the ceremony at Queen’s Park to raise the issue.”

Mr. Stong: The new Chief Justice of Canada.

Mr. Roy: This was just back in February. He was just sworn in during February 1977.

Mr. Warner: It is your fault. You are to blame.

Mr. Roy: He went on to say that legislatures have been hyperactive. How true that is. Governments at both levels, trying to fulfil promises or to stay in power or whatever, are cranking out all kinds of legislation whether they need it or not. That’s something that has got to be looked at. We have got to accept some of that responsibility right here.

Mr. Eaton: You would have us do 10 times as much legislation if you had your way.

Mr. Roy: He went on to criticize the proposal by federal Justice Minister Basford to introduce a code of evidence for Canada, a move that had been recommended by the Canadian Law Reform Commission.

I have got to say that we perceived some time ago in this province, and even at the federal level, that there would be problems in our courts and that we had to bring our laws into the 20th century. That’s why law reform commissions were established both at the provincial level and at the federal level. How many volumes have these people cranked out at both levels, but at this level especially? And of all these recommendations, how many have been brought forward?

I am glad to see, for instance, in the area of family law -- certainly that was needed, and the minister got the support of the members of this House.

Mr. Lawlor: They’re all needed. Name one that wasn’t needed.

Mr. Roy: No, but this is not creating extra work for the courts. In fact, we hope we are taking away work from the courts with that type of legislation. In some of the legislation we are creating work for the lawyers, though; and I don’t know whether we should be doing that --

Mr. Eaton: You just finished saying there were too many.

An hon. member: Don’t knock it, Albert.

Mr. Roy: Some of my friends say, “Don’t knock it,” and I suppose --

Mr. Conway: They’re too rich as it is.

Mr. Roy: Too rich? My God.

The then Chief Judge of the High Court said something interesting when he was sworn in as well. He said something to this effect: “They will run the damned machinery” -- and he’s talking about the courts -- “to a halt if things don’t change.” That’s what the Chief Judge said. We have had the comments of the Chief Justice and the Chief Judge of the High Court.

“He exclaims impatiently: ‘For the past few years judges from every level of court in Ontario have been clamouring about their mounting case-loads, and now Gregory Evans is adding his voice to the outcry.’

“Standing in the legislative chamber at Queen’s Park during the swearing in, the Chief Justice made only a mild passing reference to the issue, saying: “Perhaps our Legislature should consider whether they are placing matters before the courts for resolution that could be better settled elsewhere.”

He doesn’t mince words, however. He talks with a reporter at Osgoode Hall: “Politicians don’t move unless they are pushed -- ” My God you know, how true it is. “‘Politicians don’t move unless they are pushed, he says, enumerating a list of items that politicians at Queen’s Park and Ottawa should be pushed on.” That’s what we are doing here. I suspect the minister is looking forward to pressure and that he is saying as much to his cabinet colleagues when he says in his statement: “Only three per cent” -- I think he said -- of the budget is spent on the administration --

Hon. Mr. McMurtry: Across Canada.

Mr. Roy: -- “across Canada.” In this province the hon. member, since he has been Attorney General, has been losing ground. I believe he used to have five per cent of the provincial budget for the administration of justice; now I think he has only got four per cent. Here’s what the Attorney General said on November 11, 1975: “McMurtry” -- I don’t want to get carried away and use that expression “McHeadline” -- “McMurtry says the administration of justice has been given a bloody low priority by all levels of government over the past few years.” I just see you shaking your finger saying that.

Hon. Mr. McMurtry: I was speaking of both sides of the House.

Mr. Roy: “Promising to fight for new attitudes and more money, he said, ‘It’s a message I’ve got to get through to my own colleagues.’” He went on to say -- and here’s a good line: “They are really out of touch.”

Back on November 11, 1975, that’s what he said. I recall the Henderson report -- you recall that kind and good man -- the Henderson report said that in 1975 five per cent of the provincial budget was in the Justice field; and now we have gone down to about four per cent, you are losing ground. You are not getting through to these fellows, as you would call them, they are really out of touch.

I am pleased to see there are four or five of them here this evening so that possibly they can relay the message to their caucus or to the cabinet.

Mr. Eaton: We have got twice as many here as you have.

Mr. Roy: I’d love to have the Treasurer (Mr. McKeough) sit in on some of these things. I expect that the Treasurer of this province says, “Look, don’t bother me about court houses and money for judges; the public will ignore that. Let me build a new wing on a hospital, a bridge or a road or something.” That’s what he probably says to him. I know you can sit there and say you are doing your best, I am sure you are. Unfortunately, you are part of an administration that’s been around for 35 years and you are following a succession of Attorneys General who really didn’t try. They didn’t particularly care as long as the OPP was paid and they got enough money to name judges and made statements occasionally. In fact they weren’t in office long enough to make more than a couple of statements on their way to something else.

Mr. Conway: Fred Cass made a few.

Mr. Roy: Yes, he made a few. I say to the Attorney General you have got to get through to them. We will continue harping and will continue to complain about this because you’re not getting across. Possibly you could answer this: Did you not, last year, overspend something like $800,000? Didn’t you have to get a Management Board order for something like $800,000? Am I right on that?

Hon. Mr. McMurtry: There was the dinner for the lawyers in the Legislature, but I didn’t think it was that expensive.

Mr. Roy: I hope not, because I heard somewhere along the way that the administration of justice, the Ministry of the Attorney General, had run out of money. I’d like to know, in all seriousness, from the Attorney General, did we in fact run out of money from the estimates of last year? Did you require $800,000 which was spent and which we didn’t have a chance to discuss here? These Management Board orders are something that your government is using with a regularity that is somewhat disconcerting. You are spending all this money without us having a chance to look at it. Where did the money come from? Is it part of what they call net cash requirement of the province or the deficit, if you want to use layman’s language. Where did the money come from? How was it spent? In fact, are you going to run out of money?

I notice in your present estimates that they’re going to be reduced by $2.722 million, due to a transfer of observation and detention homes to the Ministry of Community and Social Services effective April 1, 1977. There you go. I say to my colleague the member for St. George (Mrs. Campbell), “We found ourselves $2 million.” How much were you short in your estimates? About $100 million?

The Attorney General’s ministry is suffering from the whole administration of this government. In the good years -- and I recall the good years -- but what couldn’t you do with $500 million now, eh? What couldn’t you do with that kind of money? Where were you when Darcy, before the 1975 election, said: “We’ll reduce the sales tax from seven to five per cent. We’ll give out these rebates on the sale of cars and stuff like this”?

Mr. Conway: He was getting clobbered in St. George.

Mr. Roy: No, it was 1973 that that happened. I say, in the good years, when I see all the money that was wasted, all that money that was used to buy land all over the place. Remember John White? Every second day he’d say, “Poof; a new city.” Claude Bennett would come in here and say, I’ve just been appointed to take charge of an industrial park some place.”

You know, I’m surprised; I’m surprised the member for Ottawa South (Mr. Bennett) didn’t leap on that the other day when he said -- I can remember at the time they were buying land down there and somebody had asked -- “Hey, is that going to be an industrial park?” And he said something to the effect they’ve got to have rocks in their heads if they think they’re going to have an industrial park there. That’s quoting the member for Ottawa South. It was about a month later, Mr. Chairman, that he was appointed chairman of that whole industrial park. As it turned out he was right, they had rocks in their heads because now they’re going to use it -- what, to grow trees? Is that what; grow trees?

As much as I sympathize with you and your predicament in getting money, I say that you people have been in power a long time. You’ve wasted a lot of money, and if you had that money now, what couldn’t you do in the administration of justice.

Mr. Conway: They could buy the Holiday Inn.

Mr. Roy: That’s right, buy the Holiday Inn. I could go on and talk about the problems in the supreme court and county court and provincial court. We’ll get a chance to do this, hopefully, as the estimates proceed along.

Hon. Mr. McMurtry: Have you fellows talked about legal aid recently?

Mr. Roy: Let’s talk about legal aid; my colleague is here. What have you done about the recommendations of the Osler report?

Hon. Mr. McMurtry: You two guys can’t agree.

Mr. Roy: No; we agree, we agree.

Mr. Stong: Mr. Justice Osler was right.

Mr. Deputy Chairman: Order, please. May I ask the Attorney General and the member for York Centre to please not interrupt the member for Ottawa Centre.

Mr. Roy: I say to the Attorney General, we’re going to have to look at this system of legal aid. I want to say to the member for York Centre --

Hon. Mr. McMurtry: York Centre? His name is Alf Stong.

Mr. Roy: I want to say to my colleagues there are some changes that we’re proposing. We’re not talking about the fact that you’re going to take it away from the law society. Don’t we agree on that?

Mr. Eaton: What is your position on it? Let’s hear your position, Albert. Let’s hear your position, then we’ll see whether it is the same or not. I don’t think you know what his position is, Albert.

Mr. Roy: The point that is of concern to you, is that you’re afraid to bring forward these increases. They’re going to have to be brought forward; we won’t in fact be able to tolerate the situation much longer.

For instance, the problem with legal aid is complicated by the fact that there are too many lawyers coming within the system and we’re going to see abuses there; that combined with legal aid. In fact legal aid is the area where if you start having too many lawyers it’s like having too many doctors. You start abusing the system at public expense.

So, I’m pleased to see some changes; for instance the fact that you have regular duty counsels, I think, in the remand courts in Toronto. I think that we’re going to have to look at something to that effect, but I want to say to the Attorney General, we’re going to have to look as well at the number of lawyers in this province.


Within a private enterprise system, if it was all legal aid, then we’d have to look at the system, just like your colleague behind you in Health has to look at the number of doctors in the province knowing that every time there’s one more doctor in the province it’s going to cost the system something like $250,000. You can’t do that now with legal aid, because legal aid is a small percentage of the practice. But certainly if there are too many lawyers then there’s a tendency to stretch out the cases on legal aid.

In fact I was reading something in the Toronto Star in August which said: “Desperate Lawyers Are Stealing Clients to Get Aid Fees”; or something like that. I could see it starting to happen in some areas. I’d like to have the Attorney General’s comments.

Do we just keep cranking out lawyers to go into the system, as we have in the past, and just leave the law schools to regulate the numbers? They only regulate the numbers by the number of seats available, and of course they want to fill every seat there because they are getting more money from this government.

It’s a vicious circle this thing. We’re getting into a situation over the number of lawyers in this province; just speak to the judges at all levels, in the civil process for instance. I appreciate that we’re mending the rules, and hopefully we will be mending the rules with Williston, but there are more motions going on. In some cases it would appear that the lawyers are avoiding fighting the issue in court, instead they’re fighting the procedure along the whole process. When we speak to senior judges in certain urban areas of the province we find weekly court days are filled up with cases. We find there are more motions brought on more things, and of course we’re not serving the public if we’re avoiding the issue of the case.

If lawyers in fact are making their money by abusing the rules of practice, I think we’re going to have to look at that. I think these are some of the things we in the administration of justice are going to have to learn. I think that contributes in some measure to the backlog of court cases, to the frequency of litigants within the court process.

If you take a particular case and you bring five or six motions along the way, some of these motions are complex enough to take as much time as a trial or the time it will take to litigate the issues of the case.

I really wonder do we have a system here in this province where we just crank out all these lawyers and say the market will be the system whereby we’re going to control the numbers, when in fact the only way you can control the numbers is through the universities. And universities, of course, want the greatest number possible because they’re getting more money depending on how many students they have, especially post-graduate students. These are some of the things we’re going to have to look at.

Mr. Conway: The member for York East (Mr. Elgie) agrees.

Mr. Warner: Just plead them all guilty and get your court time paid.

Mr. Deputy Chairman: Order, please.

Mr. Roy: I really think it is the other way around. If there is going to be an abuse, if you are short of clients, you will go the other way. You are not going to plead guilty, you’re going to stretch out the process. But possibly the member and I can discuss later how in fact the abuse takes place.

Mr. Eaton: You seem to know how it’s done.

Mr. Roy: You see as a critic I don’t live in a vacuum and in a cocoon like other people do, I watch the process. I want to contribute to the process. If you want some enlightenment, I don’t want to take the time of this House but you and I maybe can talk afterwards as well.

Mr. Chairman, I want to say something, finally, about the court situation in Ottawa, and I’ve talked about it in the House before. I suppose the situation in Ottawa reflects in some measure the general situation; and it’s a question of degree, but it is possibly worse in Ottawa than it is in any place else. We’ve been promised new court facilities for the last 10 years and we’re not going to get them.

We have a system complicated by the fact that we appear to have less judges now, in 1977, than we had in 1970; yet the number of cases has increased possibly 200 per cent.

Then there’s the other situation in Ottawa, that is a problem of two judges.

I want to talk about the situation in Ottawa just briefly and to tell the Attorney General it is not a good situation at all. First of all, we have the problem of facilities. You have had discussions with some of the barristers down there about facilities which are not adequate. There is some talk you are going to take those courts and put them out in the west end some place. Of course the bar association is against that, and there is some measure of merit to what they are saying. Why should we decentralize this? Why shouldn’t we try to keep the whole court process within the core of the city where it is easier to reach by public transportation? It is easier for the whole process to be more effective when it is all working within a particular area. That is what we have here in Toronto and in most major urban centres.

Basically, you have that in downtown Toronto; and I don’t know too many major urban centres where you have decentralization as we have it in Ottawa, with the provincial courts in the west end and the family courts in Bronson and the supreme court on Bailey, and some other courts in a Holiday Inn on Dalhousie. I want to say to the Attorney General that what they are concerned about, of course, is if they accept that they are going to be caught permanently and they will never get their court house.

So I make this suggestion to you, and somebody suggested it to me the other day; The federal government is building what is called the Rideau Centre in downtown Ottawa. There are going to be stores in it and it is right downtown, near Sussex and Rideau.

Mr. Conway: In Ottawa East.

Mr. Roy: Well sure it is in Ottawa East. The only buildings I can get in Ottawa East are federal buildings, I have not been too successful on the provincial side.

So I want to say to the Attorney General, there is a federal building going up there. Why couldn’t the province rent facilities from them? They have not yet started building. They could tailor-make the facilities so they would be adequate for court facilities.

In fact I was in court today and you had better hang on. There will be a rough grand jury report coming out -- not a grand jury, but the people who replaced the grand jury and who tour the facilities now. I was in court today when they walked in -- they were up at Rideau Trust trying to find an accused who was hiding behind a pillar, that’s the way it is in the Rideau Trust building. But seriously, let’s look at that. Why couldn’t there be some agreement worked out with the province and the federal government pertaining to the Rideau Centre which is going to go up shortly?

In the meantime we have a couple of court rooms to tide us over up until we get the Rideau Centre built. It is an improvement. A new judge has also been announced, a new judge will be appointed; that certainly will be an improvement.

But you see we are in a situation, with these two judges, where, every second day there is great competition between the Ottawa Journal and the Ottawa Citizen to see who will come out with the roughest story about what is going on. You know there is now a thing about the judges mixed up with prostitutes; and apparently there was a book out involving certain VIPs and certain senior police officials. You get a headline every second day. Apparently there is also a mixture of prostitution and young people under 16 years of age and homosexuals, and they are relating this to the famous homosexual ring they had last year if you recall. There was an inquiry by the Ontario Provincial Police about some of the activities of the police.

So we are left with a situation, what with these judges and improper facilities, where the atmosphere is not good. I want to tell you, we are going to have to look seriously at the whole process under that Provincial Courts Act and the judicial council.

I certainly have no political points to make by speaking in this fashion on this issue, but let’s say the judges involved had been innocent, their effectiveness, their credibility as judges, would even so have been totally and completely impaired. For weeks on end you have headlines saying, “Judges Before Judicial Council.” The public assumed as the public often will when the story involves people of authority, people in high places, “Ah ha, they are mixed up in something!”

We are going to have to look at this question of whether publicity, pre-investigation publicity, should be allowed. The whole thing really breaks down when the judicial council makes a recommendation, for instance against Judge Williams, and says he should be for all intents and purposes, fired.

Some legal authorities maintain that under the Provincial Courts Act they didn’t have the power to make that recommendation. Their only power was to recommend that there be a public inquiry. That was further complicated by the fact that you said you agreed with them. So the judge read in the press that the judicial council made that recommendation.

Hon. Mr. McMurtry: Just a second.

Mr. Roy: Didn’t you make that statement?

Hon. Mr. McMurtry: Just on a point of order, that’s a serious misstatement of fact, Mr. Chairman. I know it wasn’t deliberate, but that is an error.

Mr. Roy: Did you not say that you agreed with the recommendation of the judicial council?

Hon. Mr. McMurtry: No, I certainly did not.

Mr. Deputy Chairman: Order, please.

Hon. Mr. McMurtry: No, it’s a very serious matter, Mr. Chairman, that’s why I want to make the record clear on that. I said no such thing.

Mr. Deputy Chairman: Mr. Attorney General, that is not a valid point of order. You can correct the record when it is your turn to speak. Would the member for Ottawa East please continue, and the Attorney General will reply when it’s his turn?

Mr. Roy: I want to say to the Attorney General, I don’t want to get involved in attributing any comments here that you did not make, but you had better check the press. You had better check the press, because you’ve been quoted in some press stories as saying that you agreed, or some words to that effect, with the recommendations of the judicial council.

I would ask your officials to check the press around that period of time, because I’ve read reports in the Ottawa paper, and I think in the Toronto papers, about such comments. I don’t happen to have them here, but I think you should check that

Aside from that, the situation goes on. A public inquiry was called for. Mr. Justice Robins was appointed. Counsel was appointed for this judicial inquiry and it’s going to be set up. What did we get last week in Ottawa? The terms of reference of this public inquiry came out and the terms of reference included the name of the so-called prostitute. So the next day in the press we had headlines all over the place, where the press got to the prostitute and now she is saying that she had some important people. She said, “If I had known that he was a judge I wouldn’t have had his name in my book.”

What are we having inquiries for if we’re getting into a situation where the press is getting to the witnesses before they get a chance to testify before the inquiry? I really wonder, in looking at this whole procedure of the council, if we shouldn’t tighten something up. I don’t know if you agree with me that it’s a very unsatisfactory situation. The people in Ottawa and in the Ottawa area have been treated every second day since August, to a new headline in one or two of the local papers saying this has happened, or there are VIPs involved, or senior police officials involved.

Last week, as I say, there was a whole story on this girl and how she got involved with the judge. This is before the inquiry takes place. I really think the whole process of this thing has been most unsatisfactory. We’re going to have to look at it. It’s been unsatisfactory for the whole administration of justice, and I think it’s been unfair to that man. I don’t want to deal with it at too much length, because I know there’s an inquiry.

Mr. Stong: Justice has been side-stepped.

Mr. Roy: Yes, really it has. There’s a time when we seriously have to look at some of these things and what is going on.

So if I may end on that note, Mr. Chairman, the situation in Ottawa is not good. I think this inquiry which was set up to look into the investigation by the police is going to be important. As you said, it was based more on innuendo than anything else, but there is competition by the press in Ottawa and they’re hell-bent on finding out who those VIPs are. Every second day you hear that the inquiry is going to be stopped because those VIPs don’t want their names brought out as being in the book of that so-called prostitute.

Mr. Stong: They’re hell-bent on selling papers.


Mr. Roy: Yes. I tell you, the whole administration of justice in Ottawa is getting a black eye. And as I say that’s complicated by the fact that there have been delays in our courts and so forth. So I think we’ve got some work to do and we’ve got some convincing to do.

If you don’t get sufficient funds from your colleague to your right for the administration of justice, it’s not because of us on this side. We have repeated these things. You have our full support. It’s up to you to be heard by members of your own caucus and members of your own cabinet. You will get our support to do these things. I think it is incumbent on us, because the administration of justice in this province continues to lose credibility and continues to deteriorate. It is not only reflected in the courts, that people are not getting justice within the courts; in fact the courts are becoming an impediment to justice. The whole process suffers along the way, the police enforcement and so on.

I think it’s important that we deal with these problems and you have our support to do that. We will keep badgering you, and we will keep harping on these things. You know it is very difficult, because somehow we can’t get through to the public on this. If we can’t get through to the public in these tough times, we are not going to get through to the Premier, because if there’s one who’s politically sensitive about what’s going on, it’s him, and if he sees there’s to be mileage in that issue, he’ll jump on it.

Mr. Conway: Like the story about the candy and Darcy. If Darcy went “chomp, chomp,” I wonder what Roy would do.

Mr. Roy: This party is dedicated to judicial reform and to efficiency in the administration of justice. That’s where we see meaningful things.

We saw some of the bills that came forward on small claims and on provincial courts. We, on this side, would have brought something more meaningful to deal basically. I can’t understand that the judges, who are critical of some of the things going on in the courts, would not give full support to improvement in some of these areas. So that’s the approach we want to take and, hopefully, as we proceed through these estimates, we will have a chance to have a full discussion on them.

Mr. Lawlor: First of all, I would like to welcome Allan Leal in the chamber in his -- you can’t call it a baptism of fire, he has already been through that several times. I am sure he has been cleansed, that is in another capacity. He may use Irish Spring soap, as does the deputy. Without taking a thing away from Frank Callaghan, the paper that was read tonight had a kind of swing and rhetorical flavour, and what not, which at least I trust, in part, I can attribute to the new deputy minister in this area.

Also I see his hand working through recent legislation that has been brought to us and, by and large, minatory as it may be, it’s all to the good as things stand. Recently I took occasion to visit the offices where the Attorney General sits in his eyrie, looking down. It’s a fairly noiseless place and, on that ground, I suppose there’s something very well to be said about it --

Mr. Conway: Tell us what you were looking for. Was this before the election?

Mr. Lawlor: I was looking for industry and discernment. I found a good deal of the first and a little less of the second. The offices are not exactly sumptuous. As a matter of fact --

Mr. Roy: They are not like the Ombudsman’s, eh?

Mr. Lawlor: Well, some of the cubby holes reminded me of the offices that we occupied in the old days.

Mr. Conway: That bad?

Mr. Lawlor: The corridors are lined. The secretaries are exposed to the winds of the open windows. You get a sense of congestion and what not. I just wanted to mention that, I don’t suppose with your constraints that much can be done about it. The Attorney General’s office itself has one very commendable feature -- not commendable in any disparaging way, but commendable in the sense that egotism is not his central virtue; that’s very strange in Attorneys General and politicians generally -- he had none of his own paintings on the wall. Quite remarkable. He does, however, keep figurines of all kinds, mostly to do with judges. The possibilities there are enormous. We have to keep that in mind whenever he needs a gift. When he departs office one would know no better gift on that occasion. But there may even be occasions in between where a rather colourful and bulbous judge, an extra figure, would repose in his office generally.

The chief article for discussion this year is going to have to be the case load situation. I didn’t hear from my colleague any great nostrums as to how this would be handled, nor do I suspect will you hear a great deal from me in a positive way. I think we can mull it over and discuss it.

Before I get into the mulling, I did write your office about two and a half weeks ago asking you to produce a statistical table showing what the case load situation really was, for the purposes of these estimates, as I have done in previous years and received it with fair alacrity. But on this occasion I have to confess I am somewhat disappointed in standing here tonight without that document. I would ask you to do your best in the next few days to get one both to me and to the official critic for the loyal opposition so that it gives us a sense of really what is happening in this particular area. I don’t know how we can handle this crucial issue without some figures before us. You have provided a few in your red book, for which again I thank you, and which has some measure of value and which was delivered to us last Friday.

On case load situations, I want to point out that if we did the same thing that I am going to read to you now, we would have equally horrendous results. I am looking at a publication called Current History: World Affairs, June, 1976, which talks about the criminal justice system in the United States federal courts. It points out that in the US district courts, they take their base year as 1960 and the year of determination as 1975. The number of criminal cases in that span of time went up 54 per cent in those courts. But habeas corpus applications under state prisoners went up 799 per cent. The figures all down the page here are remarkable. Criminal cases going to the US Court of Appeals in that span of 15 years went up 572 per cent. Habeas corpus state prisoners to the Court of Appeals went up 685 per cent. I could go on with figures of this kind.

By the way, that’s the kind of thing that is peculiar and endemic to the American system, where the prisoner tried in a state court appeals to a federal court and gets himself outside state jurisdiction by adverting to the constitution and calling upon certiorari with habeas corpus in aid. It’s a procedural thing; I don’t think we use habeas corpus in the same sense or in the same way at all. It’s an interesting formal device that they use in those particular courts.

What I am after, though, are these monumental figures of 799 per cent and 572 per cent. For instance, in the United States Court of Appeals the total criminal and civil cases went up 466 per cent. In the appellate docket of the United States Supreme Court, it went up 106 per cent, and in the miscellaneous docket 88 per cent.

Part of the point that I’m seeking to raise in this is that it is not specifically because of Legal Aid by any means that we are experiencing a similar difficulty here. There are a diversity of instances. The press too often and some kinds of statements made by the practising bar -- I saw a couple of them in the last few days -- I think do a great disservice indeed to the Legal Aid system of this province. If these individuals really want a public defender system they’ll get it by withdrawing senior counsel and the highly equipped and perhaps best members of the criminal bar, by pulling themselves out and boycotting the operation.

What is the extent and depth of their social sense and responsibility in supporting this scheme? They slough it off, as I see they’re doing, for a little publicity I suppose, and denigrate the operations of the scheme itself in the process. If they want to pull out, so be it. If they think they can make more money somewhere else, that’s up to them. But to pillory the rest of the bar and the scheme itself -- and this is what wins the newspaper advertisement, not the highly meritorious and equitable work that Legal Aid is designed to do and which it does do -- is a grave disservice that they’re doing there.

I have with me a text called “Justice Denied: A Case for Reform of the Courts.” It’s a Penguin publication. It was published back in 1971. It makes some fairly searching comments. True, it’s within the American jurisdiction again and, therefore, peculiar to them in many ways and not applicable to us, but in many instances, nevertheless, it is applicable and valuable. I commend the book, if he is not already cognizant of it, to the deputy, to the people responsible in his projects and planning areas and to the Attorney General himself.

I’ll just read you a piece which I’m sure has no remote application to us here. “Former Chief Justice Earl Warren of the United States Supreme Court once told a group of judges and lawyers about a study made of a crowded trial court in a large east coast city. The clerk’s office was particularly chaotic and backward in its operation. Observers had noticed that one deputy clerk whose desk was next to the wall frequently left the room for short periods in response to a loud knocking from the other side of the wall.

“‘In due course, the reason for the mysterious conduct was disclosed,’ Warren said. ‘On the other side of the wall was the probation office which had a telephone while there was no telephone in the clerk’s office. Consequently, knowledgeable lawyers who needed to telephone the clerk would call the probation officer who would knock on the wall so the clerk would come and answer the phone.

“‘This strange practice arose,’ Warren explained, ‘because the clerk did not permit a telephone in his office. He said he was opposed to the telephone on principle.’ The incident was not from the dark ages. It happened as recently as 1958.”

I think you may find here not precisely perhaps the telephone, although that’s conceivable too, but very analogous instances of backwardness, of being opposed to some aspects of case flow management, say, of not finding the IBM company wholly compatible within some little demesne down towards Halton and any number of obstructions in the path.


You might even find it at the central office down here, if you look very hard. The smooth-flowing -- the use of computer techniques rather than longhand, and the quill if possible, as the best instrument with which to record for posterity everything that happens over the counter. The quick retrieval that occurs when the documents have been lost in somebody’s desk in the back office. The numerous instances that one runs into in the process of dealing with the courts.

So you come after a time, and most reluctantly, to think that a certain boneheadedness is operating within the system. I quote from page 139:

“Despite large increases in work loads, the pace of the courts remains traditionally slow. Judges usually do not ascend to their benches before 10 a.m. or stay past 4 p.m. ‘You could shoot a cannon off in the courthouse at 4:30 and not hit anyone,’ observed a judge in Washington, D.C.

“Lunch hours and recesses are long and the judges take days off in the middle of the week when they want to. Summer often brings an almost complete halt to all but emergency business, as most judges take their vacation for a month or two at the same time. No one in the courthouse supervises judges’ working hours or schedules their comings and goings. As one clerk said, no matter how late it is when a judge gets on the bench in the morning, that’s when it’s 10 o’clock.”

There’s some horse sense in the little book.

Mr. Stong: Thank goodness that doesn’t apply here.

Mr. Lawlor: “Every month in Los Angeles, the backlog of untried civil and criminal cases rose by at least 200, and it is now nearing a staggering 50,000 pending cases.”

Last year when you presented your list to me, I was staggered by the 100,000 and some odd pending cases in provincial offences alone in the provincial criminal courts of this province.

“In New York City, about 10,000 defendants are waiting behind bars to be tried, 2,000 of them for periods longer than six months.”

One would like to get figures as to how many people are sitting in jail, the Don Jail and the other jails of this province, in proportion to population figures, simply because of the log jam in the courts. That is the most pitiful and the most questionable of all.

“They refuse to admit that the primary cause of congestion and delay in American courts” -- in Ontario courts, if I may substitute -- “is what it has always been -- the base inefficiency and unresponsiveness of the courts themselves and the indifference of a citizenry that refuses both to attack the courts’ lethargy and to pay for the increased personnel and modern machinery needed.”

That’s where the fault lies. What has the Attorney General of this province done about it? Working with the Law Reform Commission, which started its studies in 1970 and completed and submitted its studies in 1973 as to what streamlining and benefits could be brought about, the Attorney General has had a monumental struggle uphill ever since with a vast diversity of obfuscation all the way along the line.

I guess the Law Reform Commission did the best they knew how. They submitted a divided jurisdiction, that the judges judge and the administration administrate. That imported that the Attorney General of this province directly administer the courts. That was one solution. They’ve tried that. I don’t know if it was found wanting or not in the full sense of that word “wanting.” Anyhow it has cascaded and fallen and pragmatically has been jettisoned in the last little while out of the central west project.

I’ve never been quite clear about it. I suppose it’s not the kind of subject you can talk about too vocally. It found that the full co-operation of the judiciary wasn’t available. It may have gone beyond that. It may be that the court clerk system also has subverted the possibility of getting the court administrator function properly operating.

The concept of the divided jurisdiction meant that you move in in a full way and say that the court administrator will run the courts and shape the courts and the case load will go as dictated and that the judge’s job is to be on that bench and to adjudicate, to make decisions and not to set up anything else. That seems to me a perfectly legitimate function which did not in essence impinge upon the role of the judiciary. That was a possibility. But you have to take human sentiment and all the tergiversations of the judicial and other minds into consideration.

Either you take it or they take it. You’ve gone the second way. I can’t take exception to that. I suppose you’re going to have to do something, because if you don’t get the co-operation one way, you’re going to have to another way. You don’t extract it, you initiate it. You bring it about through subtlety and by an end run, so to speak. That’s what you’re doing now. You’re saying, “I’m going to set up a council of fudges.” Then in the last few days you felt that they weren’t populous enough, as there were only about six or seven of the poor devils who are going to cover this whole vast spectrum of the courts and their internal operation, et cetera, so you gave them all an associate.

I really question the associate, at least on some levels of the court. At the Supreme Court level I question the associate and maybe even for the county, but not for the other levels. You’re adding another judicial officer who is not acting as a judge and you’re appointing a man with special competence and expertise in an area where that expertise is not going to be fully utilized. It is very costly to do that. I would have gone slow on that. But there they are. I guess if you start out with a parallel and with an intent of pure logic, you set up all these associate justices to try working through the judicial council with its advisory body the magic of their intercession with the judges themselves.

I suppose again you say it’s empirical and that you have to work it slowly to test it because in your white paper on courts administration you make admission and make no commission to rectify the openness of the individual judge acting in resistance to this, which we have no doubt in our minds you’re going to encounter in fairly numerous instances.

You think you can sugarcoat the pill and that other senior judges will be able to bring their weight to bear. Lord knows I trust that this will take place because, if it’s anything else, the courts are going to go into a very rabid condition indeed. All the faults will accumulate and accumulatively come down on your head in the next two or three years with respect to this business of case flow management.

The other thing I want to mention here is that case flow management is only a very small part, albeit the critical part, because of resistances. But the various other objectives, apparently, have flowed through very well, developing standards for the provincial and family courts.

General management of the court offices by the management team develops out of more effective techniques for allocating the work of court reporters and the preparation of transcripts. We’ll come to that, but it’s certainly needed. The management team worked on this and apparently came up with commendable solutions and was able to take out a lot of the underbrush and clear the path.

Indeed, development of statistical analyses, methods and techniques is very valuable indeed. That could be extended in the Legal Aid area to determine what lawyers are taking overloads of cases in those particular courts. Their names will come up on the computer analysis of this. If they’re taking an overload, of course it simply means they’re going to adjourn their case, and if they’re going to adjourn their case, they’re going to throw the court system out of whack, with interminable delays and the piling up of cases, et cetera.

Also there is the development of evaluative criteria and standards. For years, you couldn’t extract what kind of cases and what particular dispositions and how far they got -- a hundred other things which are valuable to know if you’re going to have proper case flow management have never been able to be extracted from all those musty old files that are interred somewhere, I believe somewhere in my riding, as the court empties itself from time to time.

So what you’ve come down to is one final matter of these seven or eight points in case flow management. In the course of the debate, we’ll come back to what case flow management qua, as such, means, and why they run into trouble in this particular area.

The Attorney General, it surprises me, gives an added turn to the screw in this, saying it is better to delegate to his judicial council the control over courts administration directly, precisely because of his position as Attorney General. He says as a chief prosecuting officer and chief party before the courts, it is better for him not to be directly or immediately involved in many instances when a conflict of interest ensues. It is curious that that argument, which has become paramount now, wasn’t that of the Law Reform Commission when they worked it over. Did it not occur to them? It’s a great shame we’re in this chamber having to debate. You know what an exchange we could have if we were down in our little abode below and one could see the colour of the eyes of the deputy, and your eyes too. But I know the colour of your eyes. I haven’t quite looked into his yet.

There was something curious. I wonder what the answer to that particular problem is.

All right, for the nonce. In these estimates at least, and in no others, because the Attorney General is a transcendent figure, raised above mere phrase and petty politics and never seeking a political advantage in the press or in any other way so far as I can discern, I always like to wander off on that tangent which is peculiarly my own and talk about jurisprudential things and things which have no conceivable relevance to anything under the sun, except that, benighted as I am, I think that they are the most important things you could talk about and the closest to reality.


The use of the term reality, incidentally -- pace, pace Oshawa -- ah Centre. There are layers and layers of that commodity. It may descend to infinity, but in any event there are layers and layers in it. Secondly, it’s perspectival. In other words, it depends upon the way you approach it.

It shifts you know; it’s a kind of malleable stuffed, reality. When I hear you calling for us, in the family law stuff, as to what the nature of reality is, nothing is more metaphysically abhorrent to me. It should be recognized that a great deal of colour enters even waking light and shapes it.

I want to spend a few minutes talking about the overall budget. I’m going to give a little lecture. When I leave here and I’m finally disburdened of all the enormous chores of the Ontario Legislature, I want to write a book on jurisprudence. The book -- at least one of them, there’s two of them. The first one has to do with the relations between love and law, a subject of infinite merit and infinite intrigue. It’s never talked about in the books of jurisprudence, never. Simon doesn’t mention it; Austin wouldn’t dream of mentioning it, it’s way beyond Austin.

Mr. Cunningham: It would be a great movie.

Mr. Lawlor: Diaz doesn’t mention it -- and we all love Diaz nowadays, that Australian genius who comes and writes a half decent book on the theory of law. Hartt makes a passing reference to it; Longfuller, close. But none of them really writes about it. This is a taboo subject among lawyers. It might weaken their fibre if they found the milk flowing, so to speak, so they drink either a bourbon or a very wicked gin.

Mr. Van Horne: It’s a mother’s ruin.

Mr. Lawlor: But you know, I mixed my mother’s milk with vodka and it makes all the difference.

I just want to mention that the one guy who does deal with it is a theologian, and this fellow conditioned me. It’s the theologians who do all the thinking in the modern world and no one ever listens to them.

A fellow by the name of Paul Tillich, author of “Love, Power and Justice,” works out the theme and the inter-relationship. I’ll just say one word on it. It’s a very curious thing that with Emil Brunner, the Protestant theologian in Switzerland, and in the particular old tradition he represents, these things were thought antagonistic; that justice was a cruel, rigorous, blind, impersonal thing that ran directly contrary to, and was exclusive of, friendship or love.

Societies exist for one purpose and that is to bring men into friendship. Our society, and this is its greatest fault -- well it’s not its greatest fault, but it permeates it and damns it -- our society is inimical, it’s basically inimical to human friendships.

The law has a function to play in healing wounds, in uniting -- which is the definition of love -- and bringing people together. And not by way of antagonisms, by way of adversary systems, by way of espousing and cementing conflicts and tearing them apart. The whole economic system, of course, is this particular way. The businessman deals as a stranger, his flanks would be exposed otherwise. That may not be, and as we evolve, as we move into the new century this, if anywhere, will be the direction of the society; and if it isn’t the direction of society, then cataclysm awaits, because the sheer weight of individuals pressing against one another, unless they can find this principle of amity and the law, and the law brings it about and consolidates it and gives it direction, the thing will fall of its own weight, the centre will not hold.

That’s one piece of writing. That’s too much for tonight.

The other text which I shall never write, but about which therefore I shall talk instead, has to do with the ends of law, which really means the ends of the state; which means, more than that, the ends of society.

Various societies are dedicated to different ends, and at different times in history our society has been dedicated to different ends. The first end that our society has been dedicated to, within the last 100 years or so, is freedom. It was a liberal philosophy -- that was what the law was about -- to enfranchise freedom, to make people free; and to the extent that it imposed upon them and made them that free, it was invalid law or at least questionable and not to be passed. It went too far, of course; it went into laissez-faire things where people were able to victimize others because the weight was lifted.

A curious thing -- and I won’t spend a good deal of time about this -- a curious thing about freedom is that it has two different definitions which are mutually exclusive. One is the liberal definition that you do what you like; that’s John Stuart Mill. The other definition comes from Hegel largely; Spinoza worked on it but in political terms it comes largely from Hegel. It says that freedom is the ability to do what you ought to do. The one leads into totalitarianism, because the imposition of authority tells you what you ought to do. But if the “ought” comes from you -- the Roman Catholic position is closes to the second than the first, incidentally. They call the first licentiousness -- licence, chaos, anarchy.

Mr. Conway: You know how we Catholics are, though, Patrick.

Mr. Lawlor: The next theory -- there are five of them -- is the utilitarian theory with the greatest general happiness. Happiness in the utilitarian theory is identified with pleasure; in Bentham it was identified with a very material and sensuous pleasure. I mean, you really sucked the apple.

Mr. Conway: Tell us about the hedonistic calculus.

Mr. Lawlor: With Mill, that angelic creature, it became more rarefied and pleasures became full of qualities, et cetera, so they no longer resembled pleasures at all. But he was able, therefore, to keep the theory going. The maximization of pleasure is the end of society and the end of the law. That’s all utilitarian theory, which ruled very largely through the 19th century.

The third theory has to do with justice; that’s the socialist theory basically. It has to do with equality. The law is designed to make human beings equal. Everyone concedes that human beings, all of us, are in some ultimate and fundamental way, which is very difficult to describe, equal. We have peculiar talents. These are gifts given to us -- quite different gifts given all the way around. They’re nothing we have particularly earned, you know; they’re inborn. You can develop them; if you don’t develop them, then you are in trouble -- you are wretched. So it’s the process of development that counts if you want to be given any particular benefits by it by way of justice, et cetera.

It also has to do with equality and with the doctrine -- and Allan Leal will appreciate this -- of fairness. An American professor called John Rawls is working on a theory of justice along those lines which we will, if we persist in future years, spend a half hour on. I shall send you the text. You can spend an evening or two reading it and we will go back downstairs where it’s possible to talk about these things in a decent way and get these estimates off to a decent start.

The fourth theory has to do with the common good. Common good is natural law theory and it’s under some sort of a cloud at the present time. It is usually identified with one great figure, Aquinas, because he was a superb spokesman in some respects of the theory. What he said was that men as distinguished from animals and plants -- and Locke can go blow his horn, because he took natural law as pervading the universe -- that men have natures; that there are certain orientations, acclivities and states of mind that we all share in common; and that human development does take place along, not predetermined but predictable, or more or less variably predictable, paths. The law would be designed precisely to aid in that particular form of development, for men to come to maturity; which most people never do, of course, it’s a very difficult task.

Mrs. Campbell: Especially men.

Mr. Lawlor: The second process is in terms of sociability. I always spend a lot of time with this. You can read my book, if it gets published.

I say that human nature is different from what Aquinas said. He had a very static notion of rationality, of what was reasonable and what was not. I think that human nature can be learned mostly from Karl Marx, the young Marx before he became quite rabid and thought he had the class struggle under control. The young Marx was a man who argued about the unlimited nature of human beings; that we are incomplete, that we complete ourselves in the future, and that the whole human condition is one of development and constant dynamism. He did this in societal terms.

The second guy, of course, was Freud; not holus-bolus but in the fact that he recognized dimensions in us which we don’t recognize ourselves -- the whole operation of repression, instincts, et cetera, and the unconscious which have tremendously powerful influence. If you take that wider ambit of human beings having intrinsic to their quality these various factors pointed out by these two very great men, then you begin to have a theory of human nature which would be a natural law theory; then the theory of the common good, on development of that, would become palatable, quasi-scientific to a point and what not.

The last area I want to mention is the positive. The end of law is order. That implies a master-slave relationship, a business of law being a command or being an imperative, a sense that obedience is the chief virtue of a citizen. Not critique, not looking at things developing on their own hook; that was the theory of law down to our own day, and it still presides in our law school. Because we teach very little or no jurisprudence in the law schools, it continues to prevail. They all take the law as it is; that’s what the law is. The theory that was taught here by Austin and is to this day taught by the leading jurisprudential man in the world, H. A. L. Hartt, is precisely that.

They go off in some ozone, some kind of abstract theory. One guy always talked about commands, the law being an order backed by a threat. It is called the gunman theory of law, that is what a gunman does. While it was rejected by Hartt at Oxford, at the same time he went off on the theory of rules, where the law is a particular mixture of primary and secondary rules, of obligation, secondary recognition, adjudication, et cetera.

We won’t go into all that rigmarole, but you can see how abstract it gets. It has nothing to do with content, it’s highly formalistic; what this positivist theory does is rule most of sociology, rule most of the human sciences, and it has penetrated into law.

It does so under the guise of science. Science is not concerned with values, it doesn’t seek to say what the ends of human action are, or to weigh them and say one is better than another or anything of that kind at all. It simply deals with what is and analyses it just as it appears. You don’t go beyond that or you don’t go behind that. That approach to law means that if you get a fair number of lawyers practising who have no sense of the valuational structure inherent in the law itself, even in terms of the ethics of the profession this is highly deleterious because they think that law is a neutral mechanism and therefore whatever utilization they make of it is equally neutral. Quite wrong, and we suffer the consequences.


These theories, however theoretical, may have immediate practical impact on our lives. I thought I would take a few moments off on that.

To come back to -- not reality, I was with reality -- to come back to a diminished form of reality, namely this place and our estimates tonight, there are a wide number of things we could bring up. You’ve done a fair amount of work on the racist stuff that’s happening all around us. Certainly your heart is in the right place. There’s not much that you can do, really; it’s the Criminal Code, and the criminal law and the people in Ottawa are going to have to move in by amendments to that Code, I think, with respect to this racial business.

But in terms of the application of the law, that recent rather thick report with yellow covers came out the other day; it was circulated among the members of the House, I think -- at least I got one. It makes a severe critique of the police and their operation, but it goes rather lightly on the courts, as a matter of fact only one page about it. The reason the man who wrote the report gives for thinking that way is because of the obtuseness of the police and their obstruction in many of these cases where people have been assaulted, had their property damaged, and suffered brigandage, and an almost criminal libel; the police take no action, they slough it off. The reason, he says, that it probably hasn’t affected you all that much in a direct way is because it never gets to the courts.

They give an instance of a judge, I think in Kitchener, who overstepped the line by some incendiary remarks with racial undertones, but that’s as far as it goes in that particular report.

Nevertheless, Wally Pittman will be issuing his report very soon too; and the Social Planning Council of Metropolitan Toronto has written quite a good report also, working through a former member of the Human Rights Commission.

I would just simply say that you, in your consultations which you have in this little committee, can bring greater weight to bear on the Solicitor General (Mr. MacBeth) with respect to racial instances, to have the police lay the charges themselves, or through the Crown attorney.

They very often send off the individual, because -- we know why, the overload of the courts. The relatively petty assault, and not assault occasioning bodily harm, is sent off. They are told: “You go personally and lay a personal, private complaint with the justice of the peace.” Maybe in racial in- stances this ought not to be done. It should be laid by the police through the Crown attorney and handled by them in a direct way in the court to give particular emphasis to this particular kind of thing.

The other way is what’s happening at the present time and that’s a mistake. Perhaps if you could -- you do send out your directives from time to time, always very cloaked and secretive, but they do come into our hands, what little directions that you give to your Crown attorneys; they should be public documents. In this instance I would commend one to you, namely this particular one.

Just two further areas: The vandalism, of which you are aware and which you’ve made public statements on, is a matter, again, that is going to require particularly cognizant and strong measures by the courts themselves.

You mentioned, tonight, decriminalization. Of course that normally means crimes without victims and that many of these crimes should be removed from the statute books, et cetera. There are a number of ways in which the court congestion can be relieved and one of them is, of course, the vast number of highway traffic cases that are tried.

I think I mentioned this on a previous occasion. Some thought is going to have to be given to setting up some kind of tribunal apart from the courts to try cases, at least those under a certain monetary figure. It’s all highly mechanical now and highly repetitious, and it could be done out there in a way that would relieve the courts. If you did that alone, the number of cases that are being tried arising out of highway negligence would drop. This would be resisted mightily by those people who are employed in this particular area, but I think they would do well enough in the kind of tribunal I have in mind in this particular area.

Mr. Roy: You are not suggesting that we nationalize the whole insurance plan, though?

Mr. Lawlor: I think you will get a report of a select committee of this Legislature fairly soon in which unanimously they will agree to do so.

Mr. Roy: Unanimously; I look forward to that.

Mr. Lawlor: Unanimously; once Vern Singer left it became unanimous. Vern was so opposed to it he wouldn’t even let the committee go and visit the western provinces.

Mr. Roy: That would be contrary to some earlier statements made by yourself where you said you were against it.

Mr. Conway: Oh to have the former member for Wilson Heights with us.

Mr. Lawlor: You mistake jocularity for intent, I can tell you that.

Mr. Conway: The question is what is in the speech?

Mr. Lawlor: So do most other people, so we have to live with these things; in paradise we will be able to say what we like.

Mrs. Campbell: In what words?

Mr. Lawlor: I think I mentioned that in Switzerland this particular area was interesting, because the Swiss law was changed so that you sued not the other party in an action but the insurance company of the other party, you sued them direct. Immediately upon that being done, the case-load fell somewhat monumentally and settlement ensued. They only had two cases in their courts at all levels of tort negligence in automobile accident claims in Switzerland the year we were there.

Mr. Roy: What did they do, Pat?

Mr. Lawlor: You sue the insurance company direct and you don’t sue the other party.

Mr. Roy: Especially if you’ve got the jury system, no less.

Mr. Lawlor: The insurance people were so exposed to all these writs and suits, et cetera, and in order to avoid same they settled. They wouldn’t get themselves into the position --

Mr. Roy: It’s not a bad idea.

Mr. Lawlor: There’s some psychological -- maybe they are tougher fibre over here, but I don’t think there is anything tougher than a Swiss insurance agent.

I take it all back. Anyhow, maybe they are willing to expose themselves to that more.

Mr. Roy: Especially if you get the jury system.

Mr. Lawlor: Of course if you had a full theory of no fault insurance too, there would no longer be the necessity and your whole problem would be solved overnight.

Mr. Conway: Have you and Renwick made your minds up on that yet?

Mr. Roy: Methinks he lacks enthusiasm.

Mr. Lawlor: Complete no fault, that’s what I said.

Mr. Lupusella: The legal profession would be going bankrupt.

Mr. Roy: It’s not that at all, we are defending the right of the individual.

Mr. Lawlor: Just before I sit down, Williston is acting on the rules, and it was interesting to me what the member for Ottawa East said about motions, et cetera. We all know the business about being motioned to death, where there are lawyers who will drive you right down the well into the shale with motions. He raises a motion a week and he beats you to a pulp and you throw in the towel -- well you don’t, really, but you bloody well consider it.

Something has to be done with them. One of the things that might be done, while I concede what you say about some of them being more important or taking longer than the trial itself, is that the motions should be all tried at one time. If he wants to motion, he’s got all six of them so he can string the thing out and make himself some extra fees and pretend that he is doing something when he is doing very little. Those motions should be tried all at once. You bring all your motions together at once and then you go to trial. You don’t string them out week after week and tie up everything in that particular way.

Then you would see what efficacy the motion really had; whether it was serious or non-serious, whether he was pulling them out of clean air in order to play games or not. That would be possibly a beneficial move in this area.

As I say I hope that Mr. Williston is considering this sort of thing, because nothing adds more to the costs of litigation than that particular practice. I think the practice in many instances is unwarranted. It’s a way of tying up the courts, tying up the judicial personnel.

Mr. Roy: We should have four rules.

Mr. Lawlor: All right, I guess we can get started.

Mr. Chairman: Would this be an appropriate time to --

Mrs. Campbell: Are you going to reply?

Hon. Mr. McMurtry: Yes, I think it is unlikely, at this late hour, or even if it were the beginning of the day I doubt I could rise to such dizzying, intellectual and rhetorical heights.

On motion by Hon. Mr. McMurtry, the committee of supply reported certain resolutions and asked for leave to sit again.

Mr. Lawlor: On a point of order, when does the committee meet again?

Mr. Roy: That is a good point.

Hon. Mr. McMurtry: Wednesday afternoon.

Mr. Lawlor: I’m not clear as to when this committee meets again; I would very much like to know.

Mr. Breithaupt: I believe that the committee is meant to meet on Wednesday afternoon, when the House will be sitting; unless, as I understand it, there might be a motion of no confidence, which the member for Lakeshore’s party may bring. I don’t know whether that is the case or not, but should that not be the case I presume that in fact the committee will deal with the estimates of the Attorney General on Wednesday afternoon.

Mr. Lawlor: Mr. Speaker, just one word, if there isn’t a motion for no confidence already, then I damn well will see that there will be one, because we agreed not to sit on Wednesday.

Mr. Roy: I don’t mind. I will be here Wednesday. I want to put it on the record that I will be prepared to sit on Wednesday.

On motion by Hon. Mr. McMurtry the House adjourned at 10:30 p.m.