31st Parliament, 1st Session

L056 - Mon 21 Nov 1977 / Lun 21 nov 1977

The House resumed at 8 p.m.


On Vote 1304, Crown legal services program; item 1, criminal law division:

Mr. Lawlor: Before I get into another area under this vote, what are these provincial prosecutors, of whom there are 35, doing? What’s their job?

Hon. Mr. McMurtry: The provincial prosecutors are the lay personnel who prosecute offences under provincial statutes. It has been repeatedly pointed out that it isn’t appropriate for police officers to prosecute cases, for example, under the Highway Traffic Act. Some time ago the government announced the intention of appointing a number of provincial prosecutors, people who could be trained to prosecute offences under provincial legislation.

I regret that budgetary restraints have not permitted us to appoint more than the 35 or 36 who have been appointed because I think it’s an important program. Hopefully, some day the complement will be found to increase the number of provincial prosecutors. I reiterate that it’s more desirable for prosecution to retain at least some sense of detachment from the law enforcement bodies. I, therefore, think it’s desirable to have provincial prosecutors in relation to this type of offence who do not have to be graduates of law schools.

Mr. Lawlor: There are 11 in York county in Toronto, four in Carleton and two in Peel, which is altogether commendable. I remember some years ago when during these estimates we used to press the Attorney General of the day very much to take the policeman out of the court because he was in a double capacity and usually in uniform. The move is altogether commendable. Have they any legal training at all and to what extent?

Hon. Mr. McMurtry: There is a course of training. I am sorry I can’t give you too many details about the course. They are trained in relation to the statutes that they are likely to prosecute. We do have a provincial prosecutor’s handbook as well. The Crown Attorneys Association conducts the annual training and refresher courses for our provincial prosecutors.

Mr. Lawlor: Perhaps I could get a little more information on that after this as to when, what sessions and to what extent they are clued in. I would also like to know the scale of salaries in that particular job.

Hon. Mr. McMurtry: The scale of salary is $15,000 to $17,000.

Mr. Lawlor: Do you think you’ll apply?

Mr. Deputy Chairman: Order, please.

Mr. Lawlor: There is another area I wanted to explore a bit. It’s the area I mentioned to the Deputy Attorney General just as we broke for dinner. It has to do with custody of children, kidnapping and surrounding problems of that kind. The ease in question which I gave to the deputy was one in which there were three or four children whose father had got full custody through the court. I believe a Judge Campbell -- is that the same Judge Campbell I know? -- was involved in the matter at some point. In any event, the wife seized the children and went off to Pennsylvania, and that’s where they are at present.

I want to spend a moment or two discussing two somewhat distinct problems. One is the problem of custody and the seizure of children within Canada, where I believe there are reciprocal agreements, and outside of Canada when the children are taken to Great Britain, let’s say, or in this specific instance to the United States. Someone has told me there is a reciprocal agreement between Ontario and Michigan and possibly between Ontario and other states of the union in the United States. I would like that to be confirmed.

That would have simply to do with the custody issue, the civil issue. In the ease in question, the solicitors on behalf of the husband have obtained an order, I think probably from the surrogate court -- you have the papers now -- and there is a citation for contempt involved. If the wife were apprehended, she could be brought before the court for contempt and jailed.

Mr. Deputy Chairman: Could I ask the hon. member, as we are discussing the criminal law division of the Crown legal services program, has this to do with the Crown attorneys in the criminal law service? Are you leading up to something connected with this particular vote?

Mr. Lawlor: Mr. Chairman, it is a bundle of wax like a lot of things in law. I could discuss the kidnapping end of it, but I am sure the Attorney General would be somewhat more magnanimous than the Chair appears to be tonight with respect to this matter. He knows that the issue is all tied together.

Mr. B. Newman: He will field it anyway.

Mr. Lawlor: You can lay either one kind of charge or another. The business of laying kidnapping charges is pretty serious. That is done federally and it would be a question of reciprocal agreements between the Dominion of Canada and a foreign jurisdiction, which operationally concerns us as to the Attorney General having his Crown laying charges in one way or another in this particular regard.

With your indulgence I would like, if possible, to take this in a broad way, particularly the next vote having to do with the civil law. What’s the answer to all these problems?

Hon. McMurtry: I would be delighted to have the answer to all these problems. There’s an international conference scheduled for 1980 with a view to obtaining international agreements with as many nations as possible in relation to the problem of childnapping, as it is sometimes referred to. We don’t have any reciprocal agreements with the states, the United States, or anywhere in relation to this problem.

Mr. Lawlor: None with Michigan?

Hon. Mr. McMurtry: No. We have agreements with a number of states on the reciprocal enforcement of maintenance orders and I enter into an agreement with another state every couple of months. I can’t tell you the number of states at the moment.

Some provinces have passed uniform legislation in relation to this problem of child-napping. I have asked our policy development people to look at similar legislation for Ontario. It doesn’t seem to have accomplished a great deal, to my knowledge, within our own national borders, but it’s something that is being reviewed at the moment.

Mr. Lawlor: My colleague from Windsor claims that automobile workers, particularly in the Windsor area, who are at loggerheads with their wives just make arrangements between the plants there to move across the river. When the time is opportune, they seize the children and move across.

He claims that there is some ongoing relationship. His complaint, curiously enough, was that it took a year to bring the matter to a hearing on the Michigan side, but that you had reciprocal agreements and you were lax in not pushing on behalf of Canadian citizens.

You’re telling me that’s all hogwash, or eyewash, or some kind of wash?

Hon. Mr. McMurtry: I don’t think that your colleague has brought this to my attention in the past and I’d be very happy to discuss it with him.

In relation to border cities, I understand a fair degree of co-operation has grown up with respect to the officials in the courts of both sides of the border. This is a common problem, and of course it cuts both ways. My understanding is that the administrators of the courts who have jurisdiction on both sides of the border do co-operate with one another in relation to the processes that are issued from the respective courts.

But there is no agreement. It may be the co-operation that has grown up is more effective than any agreement, but I can’t recall anybody suggesting to me in the past couple of years that this matter could be more effectively dealt with by reason of an agreement between Ontario and Michigan, for example. I’m not excluding that possibility, of course, for a moment. It’s something I’d be quite happy to pursue.

Mr. Deputy Chairman: Anything further on item 1?

Mr. Lawlor: Just one other thing, the part-time Crowns. There are only three areas in Ontario where the part-time Crown is operative, or is that incorrect? Prescott and Russell, Haldimand and Dufferin?


Hon. Mr. McMurtry: We’re talking about the contract Crown attorneys. We have many part-time Crown attorneys who work on a per diem throughout the province. The contract Crown attorneys, I believe, are a diminishing breed. Yes, in those three areas we are dealing with part-time Crown attorneys, each of whom is the only Crown attorney in the judicial district. They are paid, I am told, an annual retainer, and by reason of the work load, which is relatively slight, it just does not merit the employment of a full-time Crown attorney. I believe they are the only judicial districts in the province which don’t have at least one full-time Crown attorney.

Mr. Lawlor: I have noticed they are assistant Crowns, not Crowns.

Hon. Mr. McMurtry: I can try to clarify that, but they are the Crown attorneys in those judicial districts. The hon. member is quite correct. They are listed as assistant Crown attorneys. I must admit I am puzzled by that because they are the only Crown attorneys in those particular areas.

Mr. Lawlor: When I read it, I thought that they were probably wider the general supervision of the next nearest Crown attorney’s office --

Hon. Mr. McMurtry: No. They are under the supervision of the ministry, but --

Mr. Lawlor: All right, the final question.

Apart from that type of contractual relationship, is your office using any extra lawyers with respect to Crown prosecutions?

Hon. Mr. McMurtry: We have large numbers of part-time assistant Crown attorneys throughout the system.

Mr. Lawlor: I mean the changing counsel from outside your system from those already on staff to conduct prosecutions.

Hon. Mr. McMurtry: I am not sure that I understand the question. We have a large number of part-time assistant Crown attorneys throughout the system, but we don’t resort to lawyers for special prosecutions.

Mr. Lawlor: You don’t?

Hon. Mr. McMurtry: No.

Mr. Lawlor: Under no circumstances?

Hon. Mr. McMurtry: As you know, we appoint part-time assistant Crown attorneys in various areas, usually the urban centres of the province, in order to assist. These Crown attorneys are not retained on a per case basis. The assistant or local Crown attorney will ask, “Look, next Wednesday can you take the court in such and such a place?” So, they are retained to that extent on a per diem basis, but not to handle special prosecutions.

I recall when the hon. member for Lakeshore and I were first practising law there was a system by which practising members of the bar were retained to take murder cases in particular areas of the province or other special prosecutions. We don’t do that anymore.

Mrs. Campbell: Mr. Chairman, I regret that I have not been here for these estimates all the way through. If I am asking questions which have been covered, I trust that the Attorney General will so advise me because I have not even read the Hansard as yet.

In the matter of the Crown attorneys as they relate to the family court, has there been a review of their operation? As I am sure the Attorney General may know, we did run into problems in the court in Toronto, which is somewhat unique because it has a large number of judges as opposed to other areas where you may have a single judge. But when we were dealing with proceedings in that court, when you had a Crown attorney attached to the court on an ongoing basis, it seemed to me that there was a greater possibility of trying to assign cases end of the Crown having some more complete idea of the ease, the numbers of witnesses involved and so forth, so the scheduling could be done on a rational basis.

However, when we had a Crown who was only there one day a week this did not really allow that kind of preparation. I believe the time of the court, the time of witnesses and the time of persons before the court was often wasted because of that. Has there been any further consideration given to some form of ongoing Crown service in the family court? I would also like to know how it functions in Hamilton with the unified court there.

Hon. Mr. McMurtry: Part of the problem has been to staff the juvenile and family courts with Crown attorneys on every occasion. We attempt to do it. And from my meetings with provincial court judges in this area I gather they are reasonably satisfied with the situation. There is no question but that they would like to have a larger complement to make sure that a Crown attorney is provided for every court all the time.

Perhaps one of my associates here would be able to assist me as to what is the situation with respect to the unified family court in Hamilton in relation to Crown attorneys. I haven’t any indication other than that it is staffed full-time by the local Crown attorney’s office. That’s my information. I will certainly follow it up to make sure that my information is correct. If it is otherwise, I will so advise the hon. member.

I am reminded that the unified family court is the responsibility of the former Crown attorney for the Hamilton-Wentworth area, a gentleman who acted as Crown attorney for York; the unified family court in Hamilton is the full-time responsibility of Mr. Harvey McCulloch.

Mr. McCulloch had reached the age of retirement, but he is a very active, knowledgeable gentleman in that full-time capacity.

Mrs. Campbell: Thank you. I understand that you, Mr. Attorney General, appointed a special panel of seven Crown attorneys to prosecute rape trials as of February of this year. Could you advise us as to how this panel has worked and could you give us a progress report on that function?

Hon. Mr. McMurtry: I don’t know whether I would use the expression “panel”, but it is probably as good an expression as any. It arose as a result of some communication and meeting that I had with the Toronto Rape Crisis Centre. One of the major problems they communicated to me was the delay in proceeding to trial. One of course, can appreciate the enormous emotional strain on any victim of this type of offence and the enormous emotional strain placed on any person when the trial is unduly delayed over a period of many months.

There is another area of concern to do with the fact they would meet a Crown attorney just immediately prior to the preliminary hearing. They would be dealing with a total stranger who would be asking them questions about matters of a highly personal nature. This, of course, only adds unnecessarily in their view, and in my view, to the emotional strain. Furthermore, the Crown attorney who would be questioning them at the trial of the action would often be yet another Crown attorney.

The Rape Crisis Centre expressed to me that these people, the complainants, didn’t feel they had their own lawyer there. Although I explained to them of course the Crown attorney wasn’t their lawyer but was representing the public, I appreciated their concern. I felt it was totally understandable and a very legitimate concern.

So I instructed the local Crown attorney’s office to assign Crown attorneys, one to co-ordinate the program, but to accomplish two things. I also met with the chief judges and justices of the various courts to help expedite the cases through the courts.

I was concerned in ensuring that a Crown attorney -- one Crown attorney -- be assigned to the case at a relatively early stage so there could be some degree of reasonable confidence build-up between the complainant and the Crown attorney in relation to the presentation of the case. Of course, one has to be very careful about this because the Crown attorney is representing the public interest as well as the complainant’s interest. But it seemed to me to be in everybody’s interest -- particularly in fairness to the complainant -- to have some continuity with respect to the presentation of the case. So my instructions were to have the Crown attorney who sees the case carry the case through the court,

Also, I urged the local Crown attorney’s office to assign Crown attorneys who seemed to possess a particular degree of sensitivity towards this type of case and towards the complainant in this type of a case. From what I’ve heard it’s worked out fairly well. The communications I’ve had with the Rape Crisis Centre have been of a very positive nature. Mr. Jerry Wiley of the local Crown attorney’s office is our key liaison between both the Crown attorney’s office and the Rape Crisis Centre.

Any communication I have had with the centre would indicate they’re very satisfied with what has occurred. I’ve had some very favourable comments about the handling of these cases by the Crown attorneys, even when the cases don’t result in convictions. That pleased me -- not that they didn’t result in a conviction but that the complainant still felt the case on behalf of the Crown had been presented effectively, and she had been treated very sensitively.

Last week the member for St. George and I discussed the fact I’d indicated my similar concerns to the Metro police department. From what I’ve been able to learn the relationship with the Metro police department seemed to be of a highly satisfactory nature.


Now I don’t have any statistics at this moment to indicate just what the progress has been in relation to the actual expedition of these cases through the courts. I’ve asked for this information because I’d like to be able to demonstrate to the public as a whole these cases are proceeding through the courts despite the backlogs. They are being given special priority, because I think they should be given special priority, and the time between the arrest of the accused and the final trial has been shortened considerably.

I don’t have the details but I’d be happy to share those with the member when I do have them because I think this is very important. It’s not only a question of presenting the Crown’s case more effectively and ensuring that the complainant is treated with the utmost decency in a very sensitive emotional situation, but also if the public as a whole knows that these cases are being given special priority. I may be a little naive but I’m hopeful this may have a deterrent effect on would-he rapists or other people who might be tempted to engage in a sexual assault, if they know their cases are going to be treated effectively and expeditiously and the appropriate sentence handed out when convictions are registered.

Mrs. Campbell: I appreciate the reply. Could the Attorney General advise me as to whether there has been any consideration given, for example, to the Israel experiment insofar as the rape of children is concerned? I think this is one of the very brutalizing things that happens particularly if there is a lengthy delay.

Secondly, has the Attorney General been able to discover any further evidence to that which I tried to adduce at the last estimates of those sorts of cases where women complain to me -- and I must confess when I went back to them they just didn’t want to have their names given -- of the difficulty in trying to lay a charge or an information in such cases?

The Attorney General at that time, I believe, stated he would like to look into the matter and see if there were people being discouraged in such cases. Was he able to do so? I regret I can’t be more helpful to him.

Hon. Mr. McMurtry: In relation to sexual assaults or rape cases as opposed to cases involving children?

Mrs. Campbell: Yes.

Hon. Mr. McMurtry: After I discussed the matter with the member for St. George at the last estimates, I discussed this with the police officials and indicated this concern had been brought to my attention. It may be that since that time there is even greater sensitivity being demonstrated.

The police response generally was that they did have to deal from time to time with cases that did not appear really to be criminal cases. By reason of certain relationships of people who were not strangers, complaints were made that were not necessarily suspect but in which there was a little scepticism. The police have indicated they wanted to communicate to the complainant or would-be complainant the seriousness of the allegation and the fact that this is not an allegation that should be made frivolously or through any short-term feeling of revenge for someone who felt that she had been badly treated by someone who had really not assaulted her.

I appreciate, and I’m satisfied that the police appreciate, that this is a very difficult line to tread. One must indicate to the complainant what is involved in order to ensure seriousness about the allegation, the very serious allegation to discourage frivolous complaints and yet not discourage legitimate complaints.

Mr. Foulds: Where are the Tory backbenchers tonight?

Hon. Mr. McMurtry: I was satisfied, as a result of the member for St. George’s concerns, which as I say led to this meeting, that the local police in this community were very sensitive to the problem and attempted to balance all these concerns. In respect to the Israel experience, I am embarrassed, Mr. Chairman, because at this moment I have discussed it briefly with the member for St. George and with others, and I must admit I can’t honestly recall what the Israel experiment is in relation to sexual offences involving children, which are family offences, as I recall. Perhaps the hon. member could enlighten me. Obviously I can’t say we have pursued anything in that area or I would have recalled it. But perhaps the hon. member could enlighten me as to the details of that.

Mrs. Campbell: I haven’t been close to it for quite some time and I had thought since we saw such lovely paintings of the Attorney General on his visit to Israel, while he was there, he might have engaged in a pursuit of learning. However, they are, or were, treated as a family situation. There was no delay except that which was necessary to gather evidence. The child was at all times fully protected by all sorts of social workers and psychiatrists, psychologists or whatever as might be indicated necessary to the wellbeing of the child. So a traumatic experience didn’t have to be retained in the mind of the child for a year or more, as has been the case here. The child was not examined, as I understand it, by a trained counsel in the adversarial situation.

Hon. Mr. McMurtry: The child didn’t appear in court?

Mrs. Campbell: No, the child was examined outside the court by persons other than lawyers to adduce the evidence, but the child was not brought before the courts. Now, I haven’t examined it in detail, not having been there, but I wondered if we had given it any consideration. If so, what consideration has been given to that sort of examination apart from the courts and has it been effective, in our view? The criticism is it makes it very difficult for the accused. However, it seems to me for the most part here, with the kinds of evidence so often available, perhaps one doesn’t need the child before the courts personally. But I don’t know how it is working.

I had invited you to look at it to see if we can do more to protect the child from the traumatic experience, quite apart from the incident itself, of the long delays, the adversarial approach and the whole question of the problems of retaining in one’s mind, by constant reminder, a deliberate reminder of the events so the child is prepared to give evidence in those cases where it can. Nothing, I take it, has been done. I would again invite the Attorney General to --

Hon. Mr. McMurtry: I do recall it now. It came to my mind fairly spontaneously. The key to it was the fact that the child did not appear in court and that identified it.

Mrs. Campbell: That’s right.

Hon. Mr. McMurtry: I have asked my policy development branch to look into that. More specifically, I want them to take that up with the Mendes da Costa committee on child representation. Although this isn’t directly within their terms of reference, it’s an issue they might consider.

I am concerned about something quite apart from this serious issue as to whether the child is in court and is placed in that kind of adversarial context, that adversarial forum which could obviously scar a child emotionally for life just by reason of the experience of being questioned on either side, even in the most gentle, humane manner. In the broader context of just how children are treated generally -- I am thinking of children who are involved in sexual assaults outside of the family context -- I am very concerned about how they are treated in the courtroom. Even though it doesn’t involve a parent it is obviously a highly emotional experience when some adult is charged with assaulting them.

I have asked the committee to look at it in that general context of assaults involving children, whether it is in or out of the family context, because I think most of the concerns are common. Obviously, when it is a family situation, it is particularly serious.

It is fair to say that our social service agencies, strained as they are, give very high priority to the case of a child who is abused sexually by a parent. I hope that I will have something to share with the member for St. George with respect to this matter.

Mrs. Campbell: I just would like to point out that it is another reason why it is important to have a good Crown in your court. Where you have a good Crown who has the opportunity to look at the evidence -- in the family court, at least -- and you are dealing with a perceived case of contributing, usually the Crown is very careful to prepare a case around the child and very often can do so, the child is not visible in the court at all. That does lead to the problem that I have also stressed before and to which we haven’t addressed ourselves, and that is when the child is invisible in the court, then one tends to forget the child altogether and any kind of further attention that that child should have is very difficult to arrange. So that adds another dimension to the problem.

However, if you do have a good Crown -- and we certainly did at Jarvis Street when I was there, an excellent, sensitive, feeling young man -- the cases are disposed of quite often without the necessity for the child being there at all. I found this to be a very useful kind of procedure where the offence was an assault of this sort.

Perhaps the Attorney General is now telling us that he is moving a step forward in a bill of rights for children, particularly as they appear in the courts. I know he has said he doesn’t think it’s necessary, but perhaps we will see that coming from this report.

I hope the Attorney General will give very careful consideration to it.


Mr. Deputy Chairman: Any further discussion on item 1?

Mr. Roy: I’d hate very much to let this item go by without saying something about Crown attorneys, a profession which I have, as the years go by, less and less familiarity with. But then, having for some --

Hon. Mr. Snow: You can always go back.

Mr. Roy: Somebody mentioned I should go back.

Hon. Mr. McMurtry: Not me.

Mr. Roy: Probably if I had felt -- Not you?

Mr. Foulds: There’s no point now, Albert. Now that the AG’s office knows what you’re capable of, you’ll never get another appointment.

Mr. Roy: I can recall on one particular occasion, I was discussing these estimates, and the Attorney General at the time, Mr. Dalton Bales, questioned why I knew so much about Crown attorneys. I had only left them a couple of years hack and he mentioned, after we were giving him a bad time during estimates, that maybe I should have never left.

But I must admit to the present Attorney General that my leaving helped in a very small measure improve the lot of those who stayed. At that time, I can recall, we had differences of opinion as to the remuneration of Crown attorneys. After two years there I think we were getting something like $10,000 a year, which was not the remuneration that kept your better Crowns for a period of time.

I must say that since that time there has been a trend to stay longer. I don’t know whether it’s the fact, Las well, that jobs arc more difficult to get on the part of young lawyers, but they are staying for longer periods of time at the Crown attorney’s office. I can recall a few years ago that it was just like a sabbatical; you’d spend a couple of years there and you were off someplace else.

It’s unfortunate, as well, when you’re talking about competent Crown attorneys, that in the past years you’ve lost some pretty good ones from the upper echelon of your ministry. I’m talking about Powell and Manning and a few others who’ve left who were certainly competent people.

Mr. Chairman, I do want to zero in, rather than get into a general discussion. I just want to beg your indulgence on this. When I walked in my colleague from Lakeshore was discussing the question of special prosecutors or something. I was just wondering whether he got into the subject of the prosecutions that have taken place here in the city of Toronto pertaining to the so called padlock law. I think the legislation involved was under some provincial statute. I don’t recall the name.

Hon. Mr. McMurtry: The Disorderly Houses Act.

Mr. Roy: The Disorderly Houses Act. I just wondered if there was any discussion on this item because I want to ask the Attorney General why Metro Toronto, or was it the city of Toronto, had to hire a special prosecutor, Mr. Manning, for prosecutions under that section. Normally, aren’t provincial prosecutions matters for your Crown attorneys? Am I not right on that? Usually the bylaws and staff like this are by the solicitor attached to the various municipalities. But when you get into your provincial statutes, I always thought that it was within the jurisdiction of the Crown attorney’s office. I never quite understood why it was that Mr. Manning or a special Crown had to be hired for that purpose.

Hon. Mr. McMurtry: No Crown attorney was hired by the municipality or Metropolitan Toronto. As I recall, Mr. Manning was to bring proceedings for injunctions and it wasn’t a special Crown attorney. It was somebody representing an interested party. Under the Disorderly Houses Act -- I don’t have the legislation in front of me -- it says that an application to declare a house as a disorderly house can he brought by any person. It can be brought by a representative of the Attorney General or any person. Metropolitan Toronto wanted to proceed under this legislation and they retained their own counsel. The person did not appear as a Crown attorney. I think he was described in the press as a special prosecutor.

Of course, municipalities do have special prosecutors in relation to provincial offences.

Mr. Roy: I did not realize the municipalities have special prosecutors in relation to provincial offences.

Hon. Mr. McMurtry: They are related to bylaw offences as opposed to criminal. I suppose it would be better to call them municipal offences because they and the municipality are creatures of the province.

Mr. Roy: Was Mr. Manning retained for the specific purpose of obtaining injunctions under that statute, and not to prosecute any breach of that statute? Is that what you are saying?

Hon. Mr. McMurtry: To obtain a closing order as it was described under that statute.

Mr. Roy: I see.

Hon. Mr. McMurtry: I suppose it is conceivable under certain circumstances the Ministry of the Attorney General might initiate such proceedings, but in this case it was the municipality of Metropolitan Toronto.

Mr. Roy: What is the statute called?

Hon. Mr. McMurtry: The Disorderly Houses Act.

Mr. Roy: And when was that passed?

Hon. Mr. McMurtry: It is chapter 130 of the RSOs of 1970. It was in the 1960 RSOs.

I cannot tell you if it predates 1960 or not.

I suspect that it does.

Mr. Roy: I was advised that it dates back to 1934 or something.

Hon. Mr. McMurtry: Yes. It may even go back beyond that. I think it originated in the 1920s or the 1930s, Mr. Chairman.

Mr. Roy: Yes, some time I would like to look at that legislation. I suspect there are all sorts of powers given that maybe we might frown on today.

The other paint I wanted to raise with you is the situation raised by my colleague to my left, the member for Huron-Bruce (Mr. Gaunt) in relation to a charge laid under the Criminal Code. I think he supplied you with the summons of this. It surprised me when he recounted the story and I did not quite believe it. The local Crown attorney, in fact, had decided not to proceed with any criminal prosecution.

This was a situation, Mr. Chairman, where apparently the owner of the trailer park felt he was not getting paid and had money owing to him. So what he did to this individual who was on the site, was cut off the water and electricity. He was charged under the Criminal Code. The local Crown attorney apparently decided not to proceed with any prosecution, which in my opinion was a fair approach to take; it appeared to me basically a civil dispute between two parties. Apparently the local Crown attorney was overruled by somebody within the administration of your ministry. I don’t know if it was the director of Crown attorneys but whoever it was, charges were laid under the Criminal Code.

Possibly the Attorney General has some explanation before I get wound up on this. I have to tell you, we should try to avoid getting involved into criminal prosecutions when it basically appears to be a civil matter. Possibly you have some explanation.

Hon. Mr. McMurtry: As I indicated last week, we wanted to get as much of the background from the local Crown attorney’s office as possible before responding. We are in the process of doing that. I don’t have the information; I do know the local Crown attorney did seek an opinion from the ministry and the ministry did give an Opinion on the basis of which this charge was laid. It is a matter under the Landlord and Tenant Act. It initially involved, as I recall -- although I don’t have a copy of the summons in front of me -- a breach of the Landlord and Tenant Act.

The interesting thing is I might very well hear a question from the member for St. George, who has a number of tenants as constituents and is very sensitive to tenants’ concerns. I might be hearing from her on another occasion as to why a Crown attorney didn’t lay similar charges when the breach of the Landlord and Tenant Act could amount to a breach of the Criminal Code. So I guess it is a question to some extent as to whose ox is being gored.

Mr. Foulds: Whose ox is being gored?

Hon. Mr. McMurtry: That’s right, whether it’s your friendly landlord constituent or tenant constituent.

Mr. Foulds: Are you referring to your constituents as oxen?

Mrs. Campbell: Only if they are landlords.

Hon. Mr. McMurtry: In any event, I have undertaken to provide a response in relation to this and such a response will be forthcoming before the end of these estimates.

Mr. Roy: What you are saying basically is you don’t have the information to provide a full explanation at this time. But I do want to put on the record that I have serious concerns. The facts as I see them certainly indicate a dispute between two parties and one that can be resolved by way of civil courts or civil law, and are certainly not matters for criminal prosecution.

The great danger in these things is if somebody has a bit of weight, gets in touch with his local MPP, or gets in touch with some Crown attorney or is an important individual in a community, there is some perception on the part of the public those who have a bit of status can further their personal aims by way of criminal prosecution. It reflects on the whole system. And it is certainly not something that will enhance the criminal process.

I am saying basically the criminal process was intended to be a method whereby crimes against the community at large, crimes that per se appeared to be an offence or something the community could not tolerate, are deemed to be criminal offences. Over the years there have been attempts by a variety of companies and organizations to use the criminal courts to further their civil remedy. I can think of auto leasing firms who rent cars out and if the car wasn’t returned according to the terms of the contract, and returned within the period of time, they would try to get the police to lay criminal charges pertaining to the theft of the car. In relation to cheques as well, I never knew the boundary, the line of demarcation between whether a cheque that bounces is an offence under the Criminal Code or an offence whereby you use your civil remedy and sue on the cheque. That is again a fine line it is difficult to draw.

Certainly on the facts given by my colleague from Huron-Bruce, I could not see it was a criminal offence. If that is the case I will be very, very surprised. Normally, one who has not been paid his rent further to an agreement takes whatever civil remedy is available to him. The most effective way I suppose is to cut off the water and lights or electricity. The individual then turns around and criminal charges are laid.

Mr. Lawlor: I think it is perfectly legitimate. That is what it was put into the statute for.

Mr. Roy: Oh, you are babbling again. Surely you can’t be serious.

Mr. Lawlor: And you voted for it.

Mr. Roy: My colleague to my left, the defender of so-called good.

Mr. Lawlor: You are talking nonsense tonight.

Mr. Deputy Chairman: Order. Could I ask the member for Lakeshore please not to interrupt and the member for Ottawa East to ignore the interjections?

Mr. Lawlor: You can ask me if you want but it won’t help.

Mr. Roy: Especially when he is talking such nonsense. I can’t believe one who is a Justice critic would really feel this is a matter of criminal jurisdiction.

Mr. Deputy Chairman: Order, please.

Mr. Roy: My God, this man -- well, I don’t think we will ever see the day when he occupies that chair over there anyway, but in any event --

Mr. Lawlor: God help us if you do. Saying things like that.

Mr. Roy: -- it would be a matter of grave concern for the whole province if he did. My God, if you feel that is in the realm of criminal law --

Mr. Lawlor: I am saying ditto.

Mr. Roy: -- he’d have the police forces of the whole province running.

Mr. Deputy Chairman: Could I ask the member for Ottawa East to return to the matter in hand and to ignore the interjections?

Mr. Roy: That is what I was talking about, using the criminal process to further civil remedies. Strange sense of priority they have there to my left, I tell you.


Mr. Lawlor: Nonsense.

Mr. Roy: There is another matter I wanted to discuss within that field of when it’s a civil remedy or when it’s a criminal remedy. We’re still getting complaints from certain individuals in our communities about this difficult situation when a court order has been made in relation to the custody of children. If the custody is either with the mother or the father and the father or the mother, in most instances it’s in fact the father who comes along and takes the children in breach of a court order.

Mr. Lawlor: Where were you when we discussed this earlier?

Mr. Roy: My God, what’s --

Mr. Lawlor: Yes, where were you? We’ve been over this.

Mr. Roy: Don’t be such a pompous ass.

Mr. Chairman: Order.

Mr. Roy: We tolerated you, we rode you for two days when you weren’t here. So don’t come around here and try to tell us what to do.

Mr. Lawlor: You come in here late and use up valuable time.

Mr. Chairman: Order.

Mr. Roy: You’ve been drinking only water tonight?

Mr. Chairman: Does the member for Ottawa East consider that parliamentary language?

Mr. Roy: In looking at that member I consider it very parliamentary, very parliamentary.

Mr. Chairman: I think the member should withdraw that.

Mr. Roy: I’m not going to withdraw it. I just called him a pompous ass. I thought that was very parliamentary.

Mr. Lawlor: Coming from him that doesn’t bother me. I called him a negligent nincompoop.

Mr. Chairman: The member for Ottawa East has the floor. Would he continue?

Mr. Roy: The point I was trying to make with the Attorney General was, is there any discussion taking place with various Attorneys General about solving this very difficult situation? We’re into a situation where a lot of people think they can lay charges on their kidnapping or otherwise. Is it in fact a breach of the provisions -- maybe it’s contempt of court in relation to a court order.

Mrs. Campbell: I think it is.

Mr. Roy: If it is in fact contempt of court I say to the member for St. George in some circumstances that’s a breach of the Criminal Code. I’d just like a few comments. I apologize if the matter was raised before but I just want to say to my colleague from Lakeshore we spent three days on these estimates earlier on when you weren’t here and I’m sure that you haven’t read every word in Hansard.

Mr. Lawlor: You know where I was.

Mr. Roy: I don’t care where you were. You know where I was.

Mr. Chairman: Order.

Mr. Roy: The sanctimonious bunch to my left here feel that they have easy access, easy reasons for being here and not being here. We’ll carry you. We’ll continue to carry you and get involved decently in these estimates.

Hon. Mr. McMurtry: Mr. Chairman, I appreciate the case that was raised by the member for Ottawa East’s colleague in respect to the landlord and tenant matter that ended up in a prosecution under the Criminal Code. I’d be prepared to concede that is an unusual matter and I’ve given my undertaking to his colleague that I will review it very carefully. I’ve already indicated that an opinion is forthcoming from my ministry to that effect.

I certainly do intend to review it. Without yet having the opportunity of conferring with the individual who gave the opinion, I would be the first to agree that the criminal process should never be used to remedy what is basically a civil wrong, or serve a civil right.

I’m concerned about the matter and I’ve already indicated that I asked my staff a week or so ago to review it. I think it was just last week I was given particulars of the matter in the form of a copy of the summons that had been served on your colleague’s constituent. I want to make it clear I support the general concern of the member for Ottawa East about possible abuse in employing the criminal process for what is essentially a matter of a civil dispute between two individuals. If it was wrongly exercised in this case, the Attorney General will exercise his prerogative and withdraw the case. If it’s correct we will proceed. Again, the issue that is raised is a legitimate one and we will consider it very carefully.

In relation to the problem of childnapping, as it’s often referred to, the kidnapping of children, we did discuss this earlier. I indicated that a number of provinces had passed uniform legislation which we were reviewing and which we think, quite frankly, can he improved upon. There is no legislation or international agreements between Canada or Ontario and any other jurisdiction in relation to this matter. It’s a matter of enormous international concern. It’s on the agenda of The Hague conference scheduled for 1980 in relation to matters of private international law.

There’s no question hut that it has serious international dimensions. The problems are more acute as they relate between nations as opposed to between states within one nation.

We are reviewing legislation that has been passed by the provinces. It’s a matter that is of continuing interest to all of the Attorneys General in Canada and, as I’ve already indicated, of international concern.

Mrs. Campbell: Is the member for Ottawa East finished?

Mr. Roy: As a matter of fact, no.

As a matter of practicality I appreciate your looking at legislation between countries or between provinces, but even enforcement within one province is a problem. Sometimes one moves from Ottawa to Toronto or Windsor and the enforcement becomes a problem because the police, by and large, even though One has a court order, will not act on it. That makes it a relatively difficult situation. You have to go through the process again.

For the purposes of jurisdiction within the province, I wonder whether it wouldn’t be possible to enact guidelines or provincial legislation about the enforcement of these court orders dealing with children. If I have a court order from Ottawa and the person moves to Toronto and I advise the police of this, they will not assist the individual who has the court order to find the parent absconding with the children. And even though the absconding parent is Found, you have to proceed by way of civil remedy to enforce it, even though there is a breach of a court order.

I wonder whether you as the chief officer and your Crown attorneys would not feel that in some way when one is clearly in breach of a court order that that isn’t bordering on some type of contempt of court and a mutter then for criminal prosecution.

Hon. Mr. McMurtry: It can be a matter for criminal prosecution and from time to time it is a matter for criminal prosecution. The police are very reluctant to enter into what appears to them at least to be domestic issues. For the police to be actively involved in enforcing court orders of this kind would detract from the role of the police department.

It may be that at some point in time the court system, in relation to this type of problem, should have sheriff’s officers, for example, who might be empowered to enforce court orders. I am using an analogy between the court orders that may be enforced in some limited way by sheriff’s officers. One has to be very cautious about treating it as a criminal matter.

Our experience to date has been a great reluctance on the part of police officers to enforce these orders which are really outside their jurisdiction, being essentially a civil matter. At some point in time, breach of an order can give rise to criminal contempt proceedings. I haven’t looked at the criminal contempt provisions of the Code in relation to this type of order recently, hut I have difficulty in acknowledging that is the appropriate remedy, in what is often a dispute between a husband and wife who both believe they are acting in the interests of the child.

Mr. Roy: We still have the strangest set of priorities in this country. If a court, having looked at all the facts, makes a decision based on the lest interests of the children that they reside with one of the two partners and one of the partners purposely defies the court order and does something which a court feels is not in the best interests of the children, we do not consider it to be something society will frown on or to be a matter of criminal prosecution. But if somebody is smoking a piece of hash down the street, he’s committing a criminal offence. I can think of other criminal charges laid in relation to something much less deliberate than this.

Thinking out loud, I consider it to be a real problem and something with which Crown attorneys are forever wrestling. When do you move in and when don’t you move in? I leave that for your consideration. We are going to have to look at it, because many instances of what you call childnapping are in my view more serious than many, many offences which are in fact under the Criminal Code or other quasi-criminal statutes. The police will not intervene and other law enforcement officers will not intervene, but do intervene for something which appears to be less of a threat to society or less an offence against society. You commented about the decriminalizing of certain offences under the Narcotic Control Act, Food and Drugs Act and things of this nature. We are going to have to look at some of our priorities -- what is really a crime or an offence against society, as compared to something else.

Mrs. Campbell: Most of the discussion surrounding this matter tonight has dealt with the criminal aspect of these cases. I have an on-going and increasing concern as I meet with more and more mothers and it’s usually mothers, but there are cases where fathers have had the same concern -- who have had children taken from them and they seem to be powerless to restore them.

Reference has been made earlier to the reciprocal provisions in the family court situation and it is difficult. My friend from Lakeshore spoke about the problems between Windsor and Detroit. If he thinks it’s a problem, perhaps he would look at the problem between Ottawa and Hull, which is just about as difficult a situation for someone in Ottawa. But where there is reciprocity, is this the area in which you are investigating some sort of arrangement which would not have the criminal connotation referred to but which would be effective, or at least possibly effective, in re-establishing the interests of the child? To me that is the key to the matter -- not the parent but the interests of the child.


If the Attorney General is adding states to the reciprocal agreement every day, I trust he is at least giving the courts here the opportunity to have the necessary textbooks and case law, where that is relevant, so that they may come to some conclusions. There is not much sense in having reciprocity if you don’t know what the law is that you are dealing with at the other end of the day.

Hon. Mr. McMurtry: There is no question that in dealing with child custody cases there is an enormous problem and we are reviewing it very carefully. I think the member for St. George does touch on one of the basic problems that is whether to view it as a criminal matter as opposed to a civil matter. There has been great reluctance to treat it as a criminal matter. It has been the consensus of most of the Attorneys General, if not all of them, in the two years that I have been attending these meetings to treat it as a civil matter as opposed to a criminal matter.

What amounts to a civil contempt as opposed to criminal contempt has always been a bit of a grey area, namely, at what point does the contempt or disobedience get into the area where you can clearly say the administration of justice is being brought into disrepute so as to make it a criminal contempt as opposed to a civil contempt?

One of the difficulties -- and there are no clear answers in relation to the child custody orders -- is that the traditional role of the courts in any jurisdiction in respect to a child within their jurisdiction is to satisfy themselves as to the order they are making is in the best interests of the child, or just simply to rubber-stamp an order of another jurisdiction. Quite frankly, there is a reluctance on the part of some courts and the judiciary to be used as a rubber stamp when dealing with the welfare of a child within their jurisdiction.

All I can say is we are reviewing it. The concerns of the members are totally justified, and we would be very happy to have any suggestions they might like to offer.

Mr. Roy: In the light of the fact you are proceeding, and hopefully will continue to proceed with the establishment of French-language courts across this province, are you encountering any problems in the recruitment of French-speaking Crowns or bilingual Crowns?

Hon. Mr. McMurtry: I think it’s fair to say that we welcome additional applications from bilingual lawyers within the jurisdiction who would like to serve as Crown attorneys. It is a problem.

Item 1 agreed to.

On item 2, civil law division:

Mr. Lawlor: I suppose it would be a great shame, without dwelling on it too long, I trust, not to mention the Dow Chemical ease. It got some attention over the last weekend. It’s still around, I believe, and will be. Would the Attorney General care to bring us up to date on that matter?

Hon. Mr. McMurtry: I was out of town for part of the weekend and regrettably missed the learned article that was published in the Toronto Daily Star on Saturday past in relation to this particular matter. Very little is mentioned in the article about the upwards of $40 million being spent by the Dow Chemical Company in relation to pollution abatement equipment since the institution of this action.

Mr. Conway: What does that have to do with it?

Hon. Mr. McMurtry: As a matter of fact --

Mr. Conway: Should charge all of them.

Hon. Mr. McMurtry: -- I think it was just prior to the last election I was about to give the legislative assembly the benefit of a very lengthy statement in the wake of a rather provocative statement from the leader of the New Democratic Party with respect to some of the unkind things he had to say about the motives --

Mr. Conway: No, I don’t believe it.

Mr. Lewis: My statement was understated, it turns out.

Hon. Mr. McMurtry: -- and the success of the government in relation to prosecuting this matter.

I am somewhat hamstrung by the fact there are very serious settlement negotiations currently under way in relation to this matter and I am reluctant to go into any detail. I’m advised, for example, all the fishermen affected by the pollution are parties to the settlement discussions through theft counsel. In view of the fact I have recently communicated with our counsel, a very distinguished lawyer, Mr. Rohinette, in relation to this matter and as he might at this very moment be sitting down with counsel on the other side, I’m reluctant to say very much about the lawsuit, other than I have bad a number of discussions with Mr. Robinette since I assumed my present responsibilities, indicating to him our interest in proceeding with the ease and not just letting it sit or be stuck in the mud as was suggested by the Star headline writer.

Mr. Conway: In the fullness of time.

Hon. Mr. McMurtry: No, I think it’s very probable I’ll have something specific to say within the next several weeks about settlement discussions under way at present.

Mr. Mancini: It’s only taken five years.

Mr. Lewis: It is more than that -- seven.

Hon. Mr. McMurtry: As I indicated there is the amount of upwards of approximately $40 million invested by the Dow Chemical Company in pollution abatement equipment. The lawsuit has encouraged many other industries to invest money in pollution abatement equipment.

Mr. Lewis: So that was the reason.

Hon. Mr. McMurtry: Furthermore, the research being done into this particular area of pollution has been quite considerable. Part of the problem has been caused by evolving scientific evidence; the fact the scientific base in relation to this type of problem is constantly changing. But a great deal has been learned about the problem as a result of this lawsuit.

Mr. Roy: You missed your vocation. You should be Minister of the Environment.

Hon. Mr. McMurtry: So despite the fact we seem to be burdened with a great amount of scepticism in respect to this lawsuit and although it is true I inherited it several years or more after its commencement, I am prepared to state I am satisfied the litigation has been very worthwhile.

Mr. Lewis: It is too much.

Mr. Warner: Who wrote it, the chairman of the board?

Hon. Mr. McMurtry: I will have more to say about it in a very few weeks’ time. Hopefully less.

Mr. Lewis: Bravo. A superb performance. Now as the curtain falls, let’s get to the point.

Mr. Conway: Now we can turn to the wall.

Mr Chairman: Order! The member for Essex South.


Mr. Mancini: Thank you, Mr. Conway. I appreciate that.

Mr. Warner: Two out of three isn’t bad.

Mr. Mancini: I believe the minister stated most of the affected parties had now received settlements from the company?

Hon. Mr. McMurtry: They are all --

Mr. Mancini: Negotiating?

Hon. Mr. McMurtry: The counsel is participating in serious settlement discussions.

Mr. Mancini: I want to as the minister if this includes the fishermen from the ports of Kingsville and Wheatley from the riding of Essex South? As the minister may or may not know, those two ports were almost closed down because of the pollution in the pickerel. It was all due to the mercury contaminants. They have not received a penny from anybody.

Mr. Conway: All the Attorney General has to do is to read the charter. It is all spelled out magnificently there.

Mr. Chairman: Shall item 2 carry?

Mr. Lewis: No.

Mr. Chairman: The member for Scarborough West.

Mr. Lewis: I came in here intending to be passive --

Hon. Mr. Grossman: Promise?

Mr. Lewis: -- but I have been provoked beyond endurance. I wanted to make one tiny, microscopic, uncharitable point.

Through the Chair, Mr. Attorney General, if I may point it out to you, you don’t need a case of extravagant litigation in order to get a company to apply appropriate environmental controls. We have in this province, something called legislation. And if the Ministry of the Environment had any muscle at all, it could have persuaded the Dow Chemical Company to conform to the standards which we have established, whether it is the Ontario Water Resources Act or the Environmental Protection Act, without having to go through this grandiose, pre-election gesture of a suit against Dow which you have now inherited and in your own splendid and mellifluous way are dealing with in the Legislature tonight.

However, because I like you and because I don’t see any great need to prolong this for another seven years, God knows --

Mr. Conway: As much as you like Frank?

Mr. Lewis: -- I wanted to ask you to identify a little more the revelation of tonight because this is really interesting. This is the first time in six and a half years anything specific has been said about the Dow Chemical suit other than “waiting for the rejoinder to the reply to the rejoinder to the rebuttal.” The suit was launched in March or April of 1971, am I right?

It had to be 1971. That was the election year and I think it was March or April.

Hon. Mr. McMurtry: Thereabouts.

Mr. Lewis: Thereabouts. And now it is, I guess, six and a half years later. Are you saying, Mr. Attorney General, if I can just get it clear in my mind, you think there is now a chance of an out-of-court settlement at least equivalent to the prolongation of the suit? Are we to believe, if you are balancing the two, there may indeed be an out of court settlement in the Dow affair?

Hon. Mr. McMurtry: I don’t quite understand the question in relation to balancing the two -- the prolongation of the law suit on the one hand and the possible settlement on the other. If there is a settlement it will only be, for example, if the fishermen who are represented by various counsel are prepared to accept such a settlement, quite apart from the position of the government. I just want to make it clear --

Mr. Mancini: What about the people who want to use the lakes?

Hon. Mr. McMurtry: -- we do not have total control over the matter insofar as the interests of individual fishermen are concerned. They are represented by separate counsel outside the government.


The review, made up of thousands, tens of thousands of documents, has been completed. The counsel for the government, Mr. Robinette -- and I think he is a pretty good judge of this matter -- indicated it was the most complicated case ever to come before the courts of this country. All I can say, perhaps this is not much in addition to what I have already said, is serious settlement negotiations are under way and have been under way in the past few weeks.

Mr. Lewis: No, no.

Hon. Mr. McMurtry: I appreciate the legitimacy of the member for Scarborough West, the leader of the New Democratic Party’s interest in settlement negotiations. This is a very sensitive area and I think you can appreciate I really can’t be very specific about settlement negotiations other than to state I am advised they are ongoing at the present moment.

Mr. Lewis: No, no, perish the thought I would ask you for specifics lest you not have an answer. I know you can plead sub judice or whatever the Latin pronunciation is because God knows it has been going on forever, hasn’t it? This is one of the great cases behind which one can hide. But you see, I suffer the same problem as the leader of the official opposition. Alas, I only had two bouts of legal training. As you know, I was bounced out of both law schools. As a matter of fact, one of them I even left voluntarily. So I have utterly no capacity to handle this subject. I don’t even have in front of me an eloquent and a distinguished satrap to turn to.

Hon. Mr. McMurtry: If it will make you feel any better, you have got more capacity than the others.

Mr. Lewis: But I want to understand exactly what yon are saying. As I recall, there was a sum of $35 million and it was divided. How I wish I had that inflammatory document I issued in advance of the campaign which you didn’t get a chance to reply to. As I recall, there was a $25-million sum and a $10-million sum. The $25 million was what the government effectively was suing for. Now, are you saying to me there might be an out-of-court settlement for the fishermen, assuming their legal counsel are able to arrange it? I understand that is a privileged matter and not to be discussed. Even if there is an out-of-court settlement, will you as the Attorney General through Mr. Robinette continue to pursue Ontario’s case against Dow for the remainder of the suit, whatever a judge may one day determine our rights to be, if the case is won? Is that what you are saying?

Hon. Mr. McMurtry: That is a possibility, yes.

Mr. Lewis: So you are not. So there isn’t a settlement on the sort of government hand as well as the court?

Hon. Mr. McMurtry: No, that is very much a part of the settlement discussions because the government, of course, has to be sensitive to the rights of the fishermen. Of course there is the issue, a rather interesting issue, as to damages so far as the public are concerned as opposed to damages suffered by the individual fisherman.

Mr. Lewis: Yes, as I recall when it was announced, you talked of the broad damage to the environment and that the public might claim generally, as well as the specific financial loss suffered by the affected fishermen. I want to draw it from you, are you saying there is a possibility of a settlement on both scores?

Hon. Mr. McMurtry: Yes.

Mr. Lewis: Ah ha! Now that is what I meant in my own desperately frantic, amateurish way.

Mr. Reid: You are not a lawyer.

Mr. Lewis: Well, I am trying.

Mr. Reid: You are not allowed.

Mr. Lewis: You know, I have the member for Lakeshore (Mr. Lawlor) on one hand and the member for Ottawa East (Mr. Roy) on the other, and I am leaning more and more to the left as I go. Help me.

Mr. Roy: Then you will go senile.

Mr. Conway: Oh, but for the member for Riverdale (Mr. Renwick).

Mr. Lewis: That is what I meant, Mr. Attorney General, when I asked will it be settled out of court or will the suit continue? Will there be a prolongation? What I am trying to assess here tonight is what must be considered a breakthrough in the saga of the Dow Chemical Company.

You see, for you it is nothing. You are a mere novice in this Legislature. You are just a young fellow who popped into the Attorney General’s portfolio and you have only been around a couple of years. Some of us were here when it was initiated, man.

Mr. Reid: The suit is older than you are.

Mr. Lewis: We watched it for six and a half painful years. You have to be an equestrian to handle it. I just want to remind you, therefore, whereas you can frivolously -- well it’s not frivolously -- toss it aside comfortably and say there may be a settlement, that’s like thunder pealing from the heavens. That’s the kind of thing that has not happened.

Mr. Reid: We have heard that before too.

Mr. Lewis: He said an out-of-court settlement. He actually implied the possibility.

Mr. Reid: How many times was it going before the courts? He is a dreamer.

Mr. Lewis: That was within the process of litigation; this is out of court. I want to hear you say it once again because it’s nurturing me. I’m truly enjoying it. Just say once again for those of us in the House that there is a possibility, both for the fishermen and for the claims of the province of Ontario, there will be a settlement, and add that sweet little addendum of yours, that you expect to make a statement on it within the next few weeks. I heard you say that, did I not?

Mr. Conway: Here comes trouble.

Mr. Lewis: The Minister of the Environment (Mr. Kerr) is coming in and he looks more exercised than I’ve seen him in a very long time, which is to say he’s vertical and hastening. I’ll leave it there but I wish Hansard to note the energetic nodding of the Attorney General’s head as I put the proposition that a settlement was in prospect.

Hon. Mr. McMurtry: I want to respond just briefly and say our prime concern at the present time is the interest of the fishermen who have been affected. That is a major concern. I think it’s public knowledge now that the potential for recovery of the river system is infinitely more optimistic than it was several years ago. I think it’s fair to say Our paramount concern is the rights of the individual fishermen who were affected by this pollution.

Mr. Reid: Could I just have a second? I just want to add to Hansard, following the leader of the NDP, that for Hansard’s sake it should show that when the Minister of the Environment came in, the look he gave the Attorney General was “What are you saying now, Roy, because that ain’t the way it is?”

Mr. Roy: I have just a few comments on this case. It was mentioned by that very eminent counsel that this is one of the more complex cases that he’s had before the court.

Hon. Mr. McMurtry: The most complicated ever to come before the Canadian courts.

Mr. Lewis: The most complicated?

Mr. Roy: I think that gentleman has handled cases of that complexity. I can recall when I was going through my bar admission course here he was on a 100-day trial involving Texas Gulf. I think the trial went on for close to 200 days.

Mr. Lewis: Yes, I recall when I failed my exams the first year.

Mr. Roy: The other thing I found interesting is that the Attorney General should say the government’s main interest or high priority is the welfare of the fisherman. That appears to be somewhat cynical in the sense that the ease has been going on for six and a half years. I would have thought, in view of its high priority about the fishermen. somehow we could have had something more expeditious in six years. As I understand from the last report I heard you weren’t even at the discovery stage. I wasn’t sure whether you ever got to the discovery stage. I am looking at the Minister of the Environment. Did you ever get to the discovery stage of this case?

Hon. Mr. Kerr: I am sure they have. Ask him.

Mr. Roy: I’d better ask him. Okay, I will.

Hon. Mr. Grossman: Stay around for his estimates.

Mr. Roy: We have a case in which a writ was issued back in March or April 1971 and, as I say, I don’t know if it has ever got to the discovery stage. That is a stage, generally speaking, on an ordinary case one would get to after three, six months, or a year at the most after the writ was issued. In this case, it is six and a half years, and you’re still not there. Clearly on the part of the public there must be some indication of two things. Either there’s something terribly wrong with our rules of practice which will allow a defendant to escape an issue and escape his day in court for that period of time, or there’s a lack of diligence on the other side, on the party that’s pushing the action.

As much as we’re pleased to hear about the possibility of settlement, I would hope that the settlement would not be one out of desperation or out of frustration on the part of the government -- which has had not much success in arriving at a stage of having the issues heard before the court -- that out of this frustration concessions are made which appear not to be the type of concession made at the time the action was originally initiated.

I really think that it’s a worthwhile point we’re bringing forward. We’re pleased to hear the comments of the Attorney General and we will he following the terms. I take it as well, considering this is a matter of great public concern, that as in many civil eases, you will advise this House of the terms of settlement. Very often in civil cases the terms are not made public but in this ease it would be important, in view of the great interest, not only on the part of the members here but, I’m sure, of the public of this province.

Following on from the great speech made by the minister back in 1971 about “the polluter shall pay,” the public of this province are certainly entitled to know what, in fact, the terms of the settlement are. I only say this because very often a litigant to avoid bad publicity or otherwise will insist that part of the terms of settlement is that the terms themselves not be made public.

Item 2 agreed to.

On item 3; common legal services:

Mr. Lawlor: This is John Hilton’s vote. I want to say hello to John and congratulate him for his numerous services. He’s certainly one of the more splendid people we have to deal with in the Attorney General’s estimates.

You’ve increased the number of complement in this area by five people. Where did you do that?

Hon. Mr. McMurtry: Mr. Chairman, may I take a moment or two to dig up this information as to where these four additional lawyers were assigned in the government service?

Mr. Lawlor: It’s five.

Hon. Mr. McMurtry: Is it five?

Mr. Lawlor: While they’re looking it up, this is the vote in which --

Mr. Chairman: Order.

Hon. Mr. McMurtry: It was four lawyers, Mr. Chairman, and one administrative secretary.

Mr. Lawlor: Do you know where they have been located?

Hon. Mr. McMurtry: We’re looking for that information right now. It may take a moment or two.

Mr. Lawlor: This is the vote in which in the last few years it’s been decided that all the lawyers advising any particular ministry of the government would all fall within the pool of common legal services and the Attorney General, so they are primarily attached, I take it, to your office and seconded out to the various other ministries. You’re paying their salaries and not the other ministries. But the other ministries reimburse you, do they not, for the services involved in this particular area? I don’t think because of the shortage of time I should spend any more time on this.

Hon. Mr. McMurtry: The comments of the member for Lakeshore are correct in relation to the payments. The four lawyers are replacing -- I’m sorry I don’t have this right away, Mr. Chairman, but they’re not additional people, they’re replacing people who have either left or retired. I’m sorry that the member for St. George isn’t here, but I’m pleased that the member for Beaches-Woodbine (Ms. Bryden) is because of the four lawyers that replaced those who retired three are women and one is male.

Mr. Lewis: Ah, ha. Out of the total complement of 219, three are women.


Hon. Mr. McMurtry: No, the total complement to date is 92 men, 25 women, which is a much larger percentage of women than are practising on a relative basis in the profession. I only like to make that comment in passing.

The four lawyers are one to Consumer and Commercial Relations, one to Environment, one to the Solicitor General and one to Health.

Item 3 agreed to.

Vote 1304 agreed to.

Mr. Chairman: Any questions or comments?

Mr. Lawlor: I can’t let Art Stone go by without being given some mention.

Mr. Lewis: He is one of the finest, as a matter of fact.

Mr. Lawlor: He certainly is.

Mr. Lewis: I think Art Stone rivals John Hilton for sheer nobility. You are, as a matter of fact, a very lucky fellow.

Mr. Lawlor: I particularly want to thank David Phillips of the department in his assistance given over the past little while drafting private bills. I think that should be mentioned.

We are slowing down, though. We have to admit to a certain senility or some kind of general debility that’s taking place in this area. I was looking at the report from last year. The monumental year was 1971 when we passed 2,002 pages of legislation. You will note that in your record of more recent date, that’s quite a come-down against that.

The total number of pages on the statute book in 1973 were 1,750. It went down the next year to 1,650; next year, 1975, to 1,100. In 1976 a mere, measly 895 pages. As a matter of fact, in each of these years the regulations drafted double the amount of the legislation itself. That, of course, is ironically commendable too. It comes out in the Ontario Gazette but otherwise it is hidden from view. That’s just as much law as the law on the books itself and is contained in doublefold what we put through the House itself.

So, the enormous amount of drafting and work that these people do is really quite astonishing. No one around this building at least works harder and has a more demanding task to perform than legislative counsel in its task. I notice you are not increasing its complement very much one way or another at all.

I will just say before I sit down that in connection with that Court of Appeal case having to do with legislative privileges, one of the arguments used by counsel in order to knock down the case was that this Legislature, this assembly, possesses no privileges or prerogatives at all and that it is not, strictly speaking, a parliament. It was kind of an amazing argument. It took my breath away at the beginning anyhow.

He said, “Where can you put your finger on any legislation that indicates that when Ontario became part of Confederation in 1867, there was carry-over from the previous body to continue the privileges granted, as in the case of Nova Scotia through the British imperial statutes of the 19th century

On vote 1305, legislative counsel service: and going back to the 18th?” So you couldn’t put your finger on any element of determinate status; whatever might have existed prior to that time, under what are called the Colonial Validity Acts was no longer applicable after that date; it became absorbed into the British North America Act. The British North America Act covered the federal House, the Senate and House of Commons; section 18 confirmed the whole line and the whole panoply of privileges that were formerly enjoyed by the British House of Commons, this was done explicitly. But nowhere is it explicitly stated that this House possesses powers of contempt proceedings, powers of summoning individuals; free speech of this House, the whole thing, was called into question.

In the lunch hour I rushed up to the library and got hold of an old O’Connor, and O’Connor says we have the powers but they are all implicit. I am suggesting tonight that the legislative counsel, would perhaps do a little historical work for us. When they do the 1980 reformulation of the statutes and bring them up to date, they will embody whatever happens to exist back when, to establish where legislatively and legally this body stands; and what the range of our powers might be. I think it’s just a little up in the air and not established.

There is certainly nothing that you can reach for immediately to give that solidity. It's a pretty vague piece of business, and quite astonishing when you come to think of it, that we are proceeding under all kinds of presumptions that may not very well have any roots.

If such statutes exist that apply to us, I think they should be embodied in the Revised Statutes of Ontario 1980, which they presently aren’t. There’s a whole host of legislation that sits out there, outside of those four hound volumes, which is governing law in this province. I would suggest to you that they be bound and encompassed in the statutes.

Mr. Roy: I want to concur with the comments made by the member for Lakeshore about our gratitude to legislative counsel for their excellent assistance. I think I can speak for all of my colleagues on the tremendous help he and his staff have always been in the drafting of legislation.

Possibly you could answer a question for me. Is it legislative counsel in fact who drafts the regulations as well?

Hon. M. McMurtry: I am sorry. What was that last one?

Mr. Roy: Are you not paying attention to what I am saying?

Hon. Mr. McMurtry: It’s not that, but I missed that last half sentence. Yes, legislative counsel does.

Mr. Roy: Draft the regulations as well?

Hon. Mr. McMurtry: Yes. With respect to what the member for Lakeshore had to say, hopefully the Court of Appeal may give us some guidance in relation to what are the inherent privileges, constitutional or otherwise, of this particular Legislature. Once we have had the benefit of their wisdom, we can consider whether or not anyone else might explore this very fascinating region.

Mr. Conway: I think the member for Lakeshore has already hoisted the white flag of surrender.

Hon. Mr. McMurtry: I would just like to say a word or two about legislative counsel. I indeed would concur about what has been said about the excellence of legislative counsel; the excellence that I have witnessed in the past two years. One thing that has impressed me as Attorney General is the manner in which they deal, not only with government legislation but legislation presented by private members.

Quite unwittingly, and I perhaps shouldn’t confess this but I will, in the context of the problem to which the member for Lakeshore was just referring and which is of concern to the member for High Park, namely the reference to the Court of Appeal: In the height of the concern over one very long weekend which I recall spending wrestling with this problem, I blurted out to legislative counsel one night on the phone -- I think it was on the phone; maybe it wasn’t -- “I guess maybe the opposition are looking at legislation as well.”

I was met with a total and very cool silence. In my relative inexperience, I had blundered into -- it was sort of an offhand inquiry, I had just sort of assumed that. But I was very impressed by the manner in which legislative counsel, led by Mr. Arthur Stone, Q.C., considered any communication between opposition members and his office as totally privileged and it was not a subject of further conversation. In his own quiet way he made it very clear to me what his responsibilities were.

I just think that the services performed by these gentlemen -- are there any women on the legislative counsel’s staff? Not at the moment, I’m advised.

Mrs. Campbell: Don’t ask those embarrassing questions.

Hon. Mr. McMurtry: I think their services are sometimes underestimated. We take this sort of service for granted, and I must admit I may have been vulnerable to that myself. I did have an opportunity to spend a few days at the Commonwealth law conference in Edinburgh this summer, and I was in a number of discussions with law officers of the Crown from other parts of the Commonwealth. I was very impressed with their concern about the difficulty they have in obtaining legislative counsel.

This is a talent that is relatively rare and very difficult to come by. One of the great problems facing the emerging nations of the Third World in developing their legislative system is the dearth of legislative counsel talent. Unfortunately, we don’t have a very organized way of producing this talent in this country. I think the University of Ottawa can train half a dozen people a year, and offices such as our own office really are responsible for training counsel who join the staff in this highly specialized task.

I think all of us with legislative responsibilities have to reflect on the fact that we should issue directives to all of these people to sort of fly separately -- “Don’t fly together”

-- because if anything happened to our legislative counsel office, we would be in a very desperate position.

I only mention that, Mr. Chairman, to join in the very deserved accolades that have been passed towards this office from members opposite and to indicate how impressed I have been in my exposure to this very important office in the past two years.

Mr. Lewis: A footnote, Mr. Chairman. As my colleague from Lakeshore said sotto voce, it’s such a deadly job. As a matter of fact, it is a greater occupational hazard than radiation and asbestos. The fact that legal counsel could survive the dint of dealing with legislation day in and day out, and always so quickly, so speedily and so willingly, is just astonishing.

We too are met with silence when attempting to -- I don’t pretend to have the guile of the Attorney General. We don’t stumble into it. We try to probe and ask and push and bully and intimidate. It never works. But I have noticed that if you say to legislative counsel in the morning, “If we could possibly have this bill by tomorrow; if we get it quickly, it will embarrass the government,” it’s usually on our desk that afternoon.

Mr. Lawlor: Just one other question: I take it that legislative counsel doesn’t draft legislation; that the tax legislation coming

Out of the Ministry of Revenue, or some of it at least, is drafted over there, and perhaps perused -- I’m not sure of this -- and looked at by legislative counsel here. That’s even more technical than the stuff they normally do; how does that work?


Mr. Roy: If they think they’ve got problems now, wait until they start drafting in French.

Hon. Mr. McMurtry: Yes; I’m advised that the understanding of the member for Lakeshore is correct, that is one type of legislation that is done mostly within the Ministry of Revenue and then polished up by legislative counsel in Mr. Stone’s office.

Ms. Bryden: I’d just like to take the opportunity, under this vote when we’re talking about personnel, to commend the minister -- he may be surprised at receiving praise -- for the affirmative action program which the ministry has undertaken. The report of the director of the Women Crown Employees Office gives fairly high marks to the Attorney General. On the other hand, just so he doesn’t sit back and bask in the glory of this praise. I would like to point out that there’s still much to be done, because the segregation index which I’ve mentioned before --

Mr. Lewis: That’s what I’m doing just now here; writing a letter.

Ms. Bryden: -- and which is supposed to measure the degree to which there’s equal opportunity for men and women in the ministry taking account of their percentage proportion in the public service -- the segregation index for his ministry between 1975 and 1976, and that’s the latest figures we have, increased from 52.8 to 55.4. A perfect segregation index would be 38 per cent because that’s the percentage of women in the public service, that would be equal opportunity.

Also, the salary gap between male and female increased. The earnings gap was $7,500 between male and female; women’s average salaries as a percentage of the average of males dropped from 59.5 per cent to 57.1 per cent. I think the minister should continue his efforts within the ministry to open up all the positions to women, but I do feel he has made considerable progress.

Mr. Lewis: I am just writing the Attorney General a letter about a QC, if he could just keep it in mind.

Mrs. Campbell: For you?

Mr. Lewis: Not for me; I would make a good legal clerk.

Hon. Mr. Grossman: What letterhead are you using? Not the orange stuff?

Vote 1305 agreed to.

On vote 1306, courts administration program; item 1, program administration:

Mr. Roy: I thought the first item would be a good place to discuss with the Attorney General and his ministry the progress we’re making in getting additional courtroom space in Ottawa. Possibly this should be the area to discuss it in view of the fact that the courthouse that we’re talking about -- heck, did I use the word “courthouse”; we’ve been talking about a courthouse for 10 years, I hate to use that word when the Treasurer (Mr. McKeough) is talking about fiscal responsibility, but that’s basically what we’ve been promised for all these years. I don’t want to be unduly lengthy; especially in view of the fact that the member for Ottawa South (Mr. Bennett) may want to say something on the question of the courthouse facilities in Ottawa. He likely will support my comments.

Hon. Mr. Bennett: I met with your friends on Friday, Albert.

Hon. Mr. Kerr: He wants some empty buildings on the hill.

Mr. Roy: If he will not support my comments, possibly we could deal later on with the question of small claims court clerks. We could deal with them at a later time during these estimates.

Hon. Mr. Bennett: Great; is he doing a good job?

Mr. Roy: You got a great haircut, I know that.

I would like the Attorney General to bring us up to date on where we are going to have some facilities. Is the question of a courthouse in Ottawa out of the question completely? Where are we going with that?

Hon. Mr. McMurtry: Nothing is ever out of the question completely so far as the administration of justice is concerned. The member for Ottawa South, as a matter of fact, met with representatives of the Ottawa bar as recently as Friday to discuss the needed court facilities in Ottawa. Mr. Graham Scott, director of courts administration, has met with the courthouse committee in Ottawa in recent weeks.

There is some difficulty with respect to the building of a courthouse to accommodate all of the court facilities which would be the most desirable result from the standpoint of the profession in Ottawa and the public, and as far as the Attorney General is concerned too; but there aren’t the funds within the government’s capital budget at the moment, as the member for Ottawa East can appreciate.

What we are trying to do at the moment is to locate provincial court facilities, which is the court which serves the greatest number of people in the Ottawa area. As the member for Ottawa East is well aware, there has been a great deal of controversy surrounding the location of these court facilities. There was a location recommended by Government Services which was out of the downtown area and which provoked a lot of controversy and opposition. It was suggested that this was too far out from the downtown core to serve effectively the citizens and the legal profession in Ottawa. What we have asked the profession to do is to indicate to us what would be a satisfactory area or areas in relation to these provincial court facilities.

I can fully appreciate the desire on the part of many of the practitioners in Ottawa, to hold out, as it were, for a courthouse. There can be no doubt this is a badly needed facility and there is no question but that there is no area in the province that is more in need of a courthouse than Ottawa. I think downtown Toronto is a very critical situation with respect to the location of the provincial courts, but St. Catharines and Ottawa share the top priority insofar as courthouses are concerned. Nobody would be any happier than myself in this Legislature or anywhere else, if we had the funds to proceed with a courthouse in Ottawa.

In the meantime, I would hope we will be able to find a location, at least for the provincial courts, which will serve the citizens of Ottawa in a much better fashion than the manner in which they are served by the present facilities, which I have never attempted to defend --

Mr. Foulds: Don’t give them a courthouse like they have got in Thunder Bay.

Hon. Mr. McMurtry: -- and which I have always indicated were quite unsatisfactory. I know the Minister of Government Services (Mr. McCague) has been very concerned about this and is as anxious as anyone to find the proper facilities. The Minister of Industry and Tourism (Mr. Bennett) in exercising his local responsibilities, had a very useful discussion with representatives of the Ottawa bar association, as I mentioned on Friday. At this present time we are waiting for a response, because we feel their advice in this area is worthwhile. We welcome it and are presently awaiting their further advice.

Mr. Roy: I appreciate your giving your colleague behind you a few accolades about getting involved and I appreciate he is getting involved. But unfortunately, we would have had a courthouse in Ottawa had more of his predecessors been involved. God knows the Ottawa area has sent enough Tories back here to Queen’s Park to say the word and to plead on behalf of the electorate. If these people had done their jobs, we would not always end up being the last area of the province to get roads, hospital facilities or court-houses.

Hon. Mr. Bennett: Come on! You don’t really mean that.

Mr. Roy: It’s got to be said, and the members opposite know it’s got to be said. The Ottawa Tories were being out-hustled by the Tories from London, Hamilton, Windsor, Burlington and so on.

I appreciate that the Attorney General has only been in that particular position for two years and in fact I think he welcomes pressure to get facilities so we can get through to his colleague, the Treasurer (Mr. McKeough). I hope the Minister of Industry and Tourism (Mr. Bennett) gets to the Treasurer, because I think he has certainly got the support of the Attorney General. Possibly this is what it will take.

I don’t blame the lawyers in Ottawa for not wanting to accept some temporary facilities, because the facilities at 1 Nicholas were supposed to be slightly temporary but we’ve been having courts in those facilities now for 10 years.

Hon. Mr. Bennett: Just like under the Liberals in Ottawa -- everything has been temporary since the beginning of the war.

Mr. Roy: I don’t understand what the minister’s colleague is saying behind him; it’s obviously irrelevant.

Hon. Mr. Bennett: You very seldom understand --

Mr. Roy: I just want to say that if people like the member for Ottawa South had been doing his job in the past, and not being hustled by his colleagues from other areas of the province, then we would have court facilities. In fact, if he had put more emphasis on things like courthouses instead of getting jobs for his friends, then we would have better things in the administration of justice. He never misses out on that; he’s great for that sort of thing.

Hon. Mr. Kerr: Bring him to order.

Hon. Mr. Bennett: I’ll tell you one thing: It’s helped in terms of hospitals and a few other things.

Mr. Roy: Mr. Chairman, we’ve got to keep saying these things. What I’m concerned about is we’ll get some major tragedy in Ottawa. I say again that when the Chief Justice of the province comes down and the only place he can sit is in the basement of the Holiday Inn on Dalhousie Street, it’s totally unsatisfactory.

Hon. Mr. Kerr: What’s the matter with the Chateau Laurier?

Mr. Lewis: It puts him in contact with the proletariat.

Mr. Roy: And when we have a situation where people who are charged with serious criminal offences are using the same elevator as the judges --

Hon. Mr. Bennett: Terrible, terrible.

Mr. Roy: The minister says it’s terrible.

If he feels it is terrible, why doesn’t he do something about it then? He’s part of the government.


Mr. Roy: As a result, the inadequate facilities have put pressure on other ministries. The Attorney General is very fortunate that the member for Scarborough Centre (Mr. Drea) was not Minister for Correctional Services in the days when everybody was escaping from the local jail in Ottawa, because he would have been the one to speak up. We are putting severe pressure on that institution because we don’t have the facilities to properly process the criminal eases in the Ottawa area.

The Attorney General has repeated one of the long discussions we’ve had; and I know he’s trying to do his thing, but that’s not good enough. I’d like to know what stage we are at now in relation to renting facilities. For instance, would a place like the new Rideau Centre not be a good place to have facilities? Has that been considered? That’s right downtown; that would be renting facilities from the federal government. Possibly we should look at that facility.

Hon. Mr. McMurtry: We are.

Mr. Roy: Good. That is a step forward. I would suggest, if that works out, that perhaps we could look at some temporary facilities for two or three or maybe more courts which we could use on a temporary basis until the Rideau Centre is built.

I’ve got to say that the intransigence of the local bar is understandable. They feel that if they accept a half measure now, they’ll never get their courthouse. It’s unfortunate, but one really can’t blame them for the stand they’re taking. The situation in Ottawa has been called intolerable, not only by people who are politically biased like myself, hut every judge who has come down to Ottawa, including every Chief Justice who has visited the Ottawa area. The Attorney General, of course, says he’s aware of it; he’s embarrassed every time he comes down there. But I think these things have to be said.

I would hope that when we’re looking at priorities -- and I said this at the opening of the estimates, by the way.


I read over the weekend that in fact the percentage of spending in your ministry has come down, so I was right at the opening of the estimates. When you first became Attorney General you spent five per cent, and you’re now down to 4.2 per cent; I read that some place, a report by somebody over the weekend. So in fact, Mr. Chairman, through you to the minister, anytime somebody says, “We have other priorities,” well there are a very few priorities which should take precedence when the facilities are such that they in fact impair and undermine the whole administration of justice in that area.

I’m not only talking about Ottawa. I’m quite aware that the provincial court facilities in Toronto are atrocious. I’m not that familiar with the situation in St. Catharines, as the minister has mentioned.

Mr. Bradley: They’re bad as well, Albert.

Mr. Roy: Are they pretty bad there as well?

So I say, Mr. Chairman, these are not luxuries, these items we’re asking for now, they are absolute necessities on which we’ll continue to press the minister.

I’m only sorry we don’t get an occasion to go after the Treasurer (Mr. McKeough), because I don’t think we have to convince the Attorney General.

Hopefully the member for Ottawa South can put pressure on the Treasurer and on the Premier (Mr. Davis) so we can get some of these facilities.

Hon. Mr. Bennett: They’re priorities.

Mr. Roy: They are indeed.

Mr. Conway: We need a heavyweight, Albert.

Hon. Mr. Bennett: It certainly wouldn’t be Albert.

Mr. Warner: Mr. Chairman, I have a couple of questions, since we’re on the theme of courthouses. I certainly concur with the comments of the member for Ottawa

East. Can you tell us how long that Scarborough courthouse is going to remain on the shelf? Do you have any idea?

Hon. Mr. McMurtry: We don’t, Mr. Chairman. Hopefully not long, but I wish I had the answer to that question.

Mr. Warner: As has been pointed out, pressure is on the court system in Metro Toronto; and as you have done with the jail system in diversifying, in putting jails in Scarborough and Etobicoke, obviously a similar system is needed for the courts and we could use a courthouse in Scarborough. It would be nice to know when it’s going to come about.

One other item that relates to the administration of the courts; you are likely in receipt of a letter, dated November 16 of this year, referring to the incident which occurred on November 14, which was raised by the member for St. George (Mrs. Campbell) and followed up by myself, in respect to one Albert Strauss, an instructor at Osgoode Hall, and his comments in instructing a class.

The question was raised as to the use of bar admission material dealing with law office administration and the offensive comments made by that instructor, Albert Strauss. I’m wondering what is going to be done. It’s been a week since that incident occurred. I’m wondering if the Attorney General has actually perused the material that is being used in the textbooks and if he finds that material to be offensive?

First, what is he going to do about Albert Strauss? Second, what kind of criteria do you establish when you hire instructors to work at Osgoode Hall to instruct our students whom we hope someday will be lawyers, and perhaps judges?

Mrs. Campbell: And Crown attorneys.

Mr. Warner: The letter, which you are in receipt of from the women in the faculty of law at the University of Windsor, dated November 16, says:

“As prospective students of the bar admission course and future members of the legal profession, we demand that positive action be taken to ensure that such incidents do not occur in the future.” What are you going to do to make sure such incidents as the one which occurred on November 14 are not repeated?

Hon. Mr. McMurtry: Dealing with the Scarborough facility, I indicated that I unfortunately can’t state when that facility will be taken off the shelf. The picture isn’t totally gloomy as far as provincial courts are concerned. With our decentralization of the provincial courts, we are in the process of opening up, or will have opened up by March, 11 additional provincial courts in the Scarborough area in rented space. There will be three they are replacing, so there’s a fairly substantial increase there.

As for the unfortunate incident involving the instructor at the bar admission course, I indicated my concern by letter to the treasurer of the Law Society on Thursday last, as I indicated I would to the member for St. George. I followed up that letter with a discussion personally with the treasurer of the Law Society on Friday. He indicated it had been a subject matter of some discussion with the benchers of the Law Society because they regretted very much the incident.

I would like to remind the member for Scarborough-Ellesmere we are not responsible for hiring instructors in the bar admission course any more than the Ministry of Health is responsible for the hiring of instructors in the faculty of medicine, et cetera, down the road. These faculties or courses are independent of the government. The administration of the bar admission course is the responsibility of the Law Society of Upper Canada as part of the self-governing setup.

This doesn’t mean the Attorney General or anybody else in the government should turn his back on the problem when it arises, because if any self-governing professional body can’t keep its own house in order, then of course the government has an ultimate responsibility to intervene. There is certainly nothing to indicate at this moment that the Law Society and the administrators of the bar admission course aren’t quite capable of dealing with that unhappy problem.

As for the material that was considered to be offensive, the material that was handed out or used by the bar admission court, I have not read it. I repeat I have indicated my concern to the treasurer of the Law Society. I communicated the concern of members of the Legislature to the Law Society and I am fully confident any problem that has arisen will be resolved.

Mr. Warner: Perhaps, then, the Attorney General could shed a little light on this particular line that’s in the letter which I have referred to, dated November 16 from the faculty of law, University of Windsor? “Incidents of this type,” -- I am referring to what I have cited -- “which go unchecked and unchallenged by the Law Society of Upper Canada derogate from the standards of conduct and propriety required by the members of legal profession. What has happened to the code of professional conduct which prescribes that a lawyer must discharge his duties to members of the public and his fellow members of the profession with integrity?

Perhaps you could shed some light on their comment that an incident of this type is not being dealt with by the Law Society of Upper Canada. Is that the case; and if so then what steps will you have to take to rectify the situation?

Hon. Mr. McMurtry: I haven’t seen the letter. It may have arrived in my office, I just don’t know at this point in time.

I think it’s incumbent upon the individuals who have expressed their concern to be a little more specific as to what their area of concern is in relation to any other specific incidents. We are all quite aware of the unhappy event or occurrence in relation to the bar admission course and the one instructor last week. But there’s responsibility on those who would state that the Law Society is not performing its responsibilities in this respect to indicate specifically, apart from the incident about which we are all familiar, as to what other incidents may be of concern to them, if there are other incidents, then again I am quite prepared to communicate the concern of the members of this Legislature to the Law Society; but I really do have some difficulty in dealing with a generalization of that nature.

Mr. Warner: What concerned me, aside From the incident, were the comments in the paper by the students about the textbook material. The textbook material then, obviously, based on your comments, has been approved by the Law Society of Upper Canada for uses in the courses.

Hon. Mr. McMurtry: Not necessarily.

Mr. Warner: Okay; it has been approved by some other body at Osgoode Hall then; somebody up there has approved that material.

Mrs. Campbell: It is down there.

Mr. Warner: Down there; well if you are in this place long enough you lose your sense of direction, that’s for sure; I mean that’s what happened to them over 34 years.

Mr. Gregory: Only on your side of the House.

Mr. Warner: I am sorry to have awakened the member from Mississauga; I apologize, Mr. Chairman.

Mr. Lewis: Better say which one.

Mr. Warner: Someone at Osgoode Hall has approved that material. I find that very disturbing, because that says to me that there are embodied in that group of people who are helping to organize the educational sys tern for lawyers, some inappropriate approaches to our world today.

Surely the ideas expressed by Mr. Strauss, and which apparently are embodied in the textbooks, are from a bygone age but haven’t been buried yet.

That bothers me very much. It is not just the single incident, in other words, it’s broader than that. If the textbook material is offensive, it was approved by those people up there giving the courses, and that says something about the attitudes of a great number of people who are instructing the younger students who are coming along hoping to be lawyers and judges in our system someday. That surely has to change.

Mrs. Campbell: Perhaps the Attorney General would answer to a specific; Has he ascertained what the Law Society did about the Outerbridge articles in 1974, which were addressed to legal secretaries and not to lawyers. What did they do about that? As far as I know, nothing.

It was a protest from people like me and others which removed it from the library, or so I am informed; but the Law Society didn’t do anything about it so far as I know. Perhaps you would look into that too, in answering.

Hon. Mr. McMurtry: I gather the material that dates back to 1974, to which the member for St. George is referring, was removed. On whose initiative I don’t know. If that is not the case I will pursue that as well.

I think in matters such as this, that an incident may have involved some complicity on the part of a few instructors who were giving a course to the bar admission students. I think complicity isn’t perhaps the appropriate word, perhaps lack of sensitivity would be more appropriate.

Mr. Lewis: Complicity is not bad.

Mrs. Campbell: It’s human nature, you might start there.

Hon. Mr. McMurtry: I think it’s perhaps more of an unconscious lack of sensitivity rather than any deliberate discrimination.

Mr. Foulds: By the glint in your eye 90 seconds ago, you might have thought it was a conspiracy.

Hon. Mr. McMurtry: I think incidents such as the one that has caused so much concern perhaps do serve a useful purpose, because I think the likely result of this incident is to create a much greater awareness, a much greater level of sensitivity among other individuals who are responsible for preparing course material. I’m confident people who are really well motivated and well-intended -- and I’m talking about the people who are responsible for the course material in the bar admission course -- will be more sensitive in the future.


I can understand that a great deal of concern has been expressed about this. There are a number of us in the Legislature who do have growing daughters. Whether we are male or whether we are female, we must of necessity share these concerns. At the same time, it would be unfair to ascribe any malicious motive to anybody responsible for this branch of our legal education. As I have already indicated, I’m awaiting a response from the Law Society. When I have the response I will advise the members accordingly.

Mr. Chairman: Will there be further discussion on item 1? If so, this would be the appropriate time for a motion to rise and report. Just before the motion, I’d like to inform the committee there are four hours and 58 minutes left for discussion of the estimates of the Attorney General.

On motion by Hon. Mr. McMurtry, the committee of supply reported progress.

On motion by Hon. Mr. McMurtry, the House adjourned at 10:32 p.m.