Legislative Assembly of Ontario

The House resumed at 8 p.m.

PRIVATE MEMBERS’ PUBLIC BUSINESS

FEDERAL-PROVINCIAL RESPONSIBILITIES

Mr. MacBeth moved resolution 7:

That, in the opinion of this House, Ontario should seek more distinctive separation of responsibilities and powers between the federal and provincial jurisdictions in future federal-provincial discussions concerning the British North America Act; that, while recognizing the need for provincial equalization payments, exclusive fields of taxation should be defined so that each government may finance its own responsibilities without subsidization from another; and further that provision should be made for this principle to be extended to municipal governments.

Mr. MacBeth: My main purpose, Mr. Speaker, in moving this resolution, which is a matter that I have spoken to on a number of times before in this House and a matter in which I have some personal interest, is to provide the members who are here and those who, I hope, will assemble in the next few moments an opportunity to speak on what I consider to be one of the major issues in our country today. It is not necessarily the major issue but one of the major issues and certainly a major issue for the future of our country.

Under many of the pictures of the Fathers of Confederation, one will find the caption: “They builded better than they knew.” That is the theme of the proposition that I put before the House this evening. What we have in the BNA Act is a good concept. It is not in need of any kind of revolution nor is it in need of any kind of a replacement, but rather of renewal with a few modernizations to keep in step with the spirit of the times. I say “renewal” because I believe we have departed from some of the original concepts and our country would be stronger if we returned to those original concepts.

I believe most of us in this House this evening consider ourselves first and foremost as Canadians and not as Ontarians. The latter nomenclature does not even have a proper ring to it. Likewise, I am bold enough to consider myself first and foremost a Canadian, but being Canadian does not mean that we must all be cast in the same mould.

I think we are no less Canadian because some of us believe that the strength of this country can best be maintained by a reasonable exercise of provincial rights. I think, rather, the reverse: Our strength as a country is in our diversity and our glory is in our infinite variety.

Maybe we, as taxpayers here in Ontario, have been somewhat remiss in standing up for our provincial rights, and our country today might be stronger if we had not allowed the encroachments that have taken place. In this respect I pay tribute to Quebec, because they at least know where they stand on this issue; they stand firmly for exercising the provincial rights as originally given to them under the British North America Act and, because they do so, I do not think that makes them any less Canadian.

I would like to quote for a minute from the report of the Task Force on Canadian Unity, and that is a document which I think should receive more attention, both in this House and at all levels of government as well as from the press, which to a great extent has ignored that report. Quoting from page six:

“Not only must we learn to accept the fact of diversity, but we must also discover how to cherish and embrace it. If we can learn to believe that our neighbours’ differences are not a threat to us and what we stand for, but a part of the neighbourhood within which our own identity finds free expression, we shall have moved a long way towards understanding what the Canada of tomorrow must be about.”

Section 91 and section 92, as well as other sections, of the British North America Act set out the separation of powers to be exercised by the federal government and those that should be exercised by the provincial government -- a true federal system, each supreme in its own distinctive field. Section 91 and section 92 are commonly referred to as the “separation of powers” sections, and the word “separation” to my mind is an important one: not the combining of power, not the sharing of power, and not co-operation in the use of power, but the separation of power. This separation of supreme powers is a principle which has become lost through a variety of circumstances over the past 112 years of our Confederation.

Some argue that because we are a dispersed nation we must be held together by strong lines of central power. All honourable members have heard the story of the railway that linked us together but, because it was such a tentative thing and our settlements were so separated over these 112 years, many have argued that we need to keep this country together by stronger power centrally and so cement it. The argument, I suppose, has some validation to it.

Then, again, times of war led to the provincial surrender of direct taxing powers to the central authority; those powers, even in times of peace, have not been federally vacated. The financial depression of the 1930s brought about amendments to the BNA Act to provide for unemployment insurance, and there were other amendments along the way that also added to the central government’s power.

To my way of thinking, many of the judicial decisions that have come about, although they have gone both ways as to provincial and federal rights, on balance and, I think, in later days perhaps because of the composition of the Supreme Court of Canada, have for the most part favoured centralization of power. So we have experienced a gradual growth of central power -- not by way of any clear-cut transfer of power, but by way of encroachment and dilution.

The most insidious encroachment on provincial power has been by way of income tax, a source which, true, is open as a means of direct taxation not only to the federal government, but also to the province. Yet until recent years the pot of income tax was so drained by the federal siphon that there was little left for the provincial sponge. This enabled the federal government to invade almost every field of provincial power by offering grants for education, for highways, for health, for buildings and for building senior citizens’ homes and other types of buildings, but they have all been given conditional upon doing it their way. That is the way of the federal government.

The encroachments however, have not been all one way. In fairness, while Ottawa has been building parks in Toronto -- and I don’t know why Ottawa should be building parks in Toronto -- Ontario has been building airports throughout the province and trying to out-CBC the CBC. It is no wonder the country is somewhat confused.

What is good for the Maritimes is not necessarily good for the Prairies, but regrettably the rules are the same.

Mr. Gaunt: The Joe Clark of the Legislature.

Mr. MacBeth: What might go over and be very suitable in British Columbia is not necessarily the suitable way to do it in the province of Quebec.

Mr. Kerrio: You wouldn’t dare be a PC in BC.

Mr. MacBeth: I did not get the significance of that. Over in this corner I am a little deaf, I’m getting a little old, so I do not hear all these clever remarks. However, let me return to my subject.

The rules are the same throughout the country because to get these grants you must comply. While provinces are encouraged to spend a dollar of provincial income to get a dollar of federal income, the resulting value may only be $1.50 for the $2 that are in fact spent. Only the Canadians are the losers.

Mr. Speaker, I am not meaning this to be a speech geared at the political time today, because when the Conservatives were in power in Ottawa there was little change in this regard. The Conservatives were not ready to change the rules at that time either, but I am saying these rules must be examined now because only the Canadian citizens as a whole, are the losers.

Where one level of government in 1967 might have been able to build a road or a school, it now takes co-operation among three or four levels. Co-operation is a great ideal and one that we all look on with favour in the same way as motherhood, but this matter of co-operation is a great hindrance to public achievement. It is the bureaucrat’s delight.

Some years ago, I had the good fortune to take a series of lectures in political science from Robert MacGregor Dawson. I am trying to curry a little favour with the Liberals at this point, because Robert MacGregor Dawson was one of the editors of the diaries of William Lyon Mackenzie King. If he could handle that, I think he could handle a great many other things. I do put a great deal of faith in the maxim he used to try to teach us when we were students under his guidance. His theory was simply this: Responsible government is dependent upon the spending power being the taxing power, and likewise, the taxing power being the spending power. Through these 112 years we have departed a long way from that principle, yet, I think that was one of the basic principles of the Fathers of Confederation.

I have seen fit to enter my resolution. I believe we need a return to distinctive fields of power, as conceived by those who built better than we give them credit for building, who had a keener eye for progress and a truer understanding of Canadian unity than many of today’s theorists. They realized the need of equalizing payment. My motion, you will note, provides that equalized payments should be continued. There is no reason why the wealthiest province should receive a nickel from the federal government to pay for those items its own provincial government could supply if it had the tax source to do so.

[8:15]

The same principle applies to municipal governments. I know there are certain problems with municipal governments where they don’t have access to taxes and I see some difficulty in giving them access to taxes; but I think that can be overcome by unconditional grants. But I would prefer we try to find some way whereby they themselves could tax that money, rather than depend on a handout from the provincial level. But, in theory, I think the principle I am putting forward applies at their level as well as to the provincial level. They should not be “poor cousins” but should have enough fields or access to money -- certainly, if there is no other way, by conditional grants so that they, in turn, can look after their own responsibilities.

I am sorry that time does not permit more elaboration on this but I simply mention it in passing: that, if it applies to the provincial level, it applies likewise to the municipal.

Our present position on taxation is in inverse relationship to the services rendered. The federal government, with the greatest power to tax, is charged with providing the least costly services. For example, defence. This is probably the heaviest matter that the federal government is charged with looking after under the BNA Act.

It is charged with monitoring the financial system. That in itself should not be a very heavy expenditure. It is charged with such matters as external affairs and running a post office and things of that nature. They are not the big items of expenditure yet they are the ones that have the greatest source of expenditures. Whereas the province is charged with looking after the real heavy expenditure items: health, education, highways and welfare.

In fact, sir, it is my contention that, if Parliament Hill in Ottawa should disappear tonight -- I am not advocating it -- it would be a month before we missed it. If Queen’s Park disappeared tonight --

Mr. Kerrio: That’s what will happen if Joe Clark gets in.

Mr. MacBeth: You’ll like the next line. If Queen’s Park disappeared tonight, the people might miss us in a week. I’m hoping my wife might miss me before that but the people generally might not miss us for a week. However, if any of our municipal governments disappeared tonight and the water was not in the taps tomorrow morning, disaster, as we know it, would have struck.

In closing, I draw your attention to the following recommendations of the Task Force on Canadian Unity. On page 15, beginning with item 30, there are these recommendations which, I believe, support the resolution I have put forward:

“The present distribution of legislative and executive powers should be clarified and adjusted to contemporary needs and realities.” To that I agree.

“37. The use of a list of exclusive powers for Parliament and a list of exclusive powers for provincial legislatures should be retained in a new Canadian constitution.” And I say three cheers for that.

“38. Concurrent jurisdiction should be avoided, wherever possible, through a more precise definition of exclusive powers. Wherever powers are concurrent, a federal or provincial paramountcy should be stipulated.”

Then, finally, 39, and I’m not advocating this one but I think it’s of interest: “The residual powers should be assigned to the provincial legislatures.” That I’m not buying and I certainly don’t buy all of the report of the Task Force on Canadian Unity. But I’m suggesting to this House that this document deserves more study than it has received. Many of the recommendations in it I find are in support of the position I hold personally -- not all of them and I referred to 39. I don’t go so far as to suggest that residual powers should be provincial. I think they’re fine where the Fathers of Confederation put them.

So I am saying that the BNA Act is not such a bad document. I couldn’t care less whether it is patriated or not. I know that is a major issue to some people; to me, it is peripheral. I think there is much need for looking at it again and updating it; but more by way of a return to it as it was, rather than the way we have interpreted it. I hope, when our government again sits down to discuss this at a provincial-federal conference, that it will take some of the thoughts I have expressed tonight into consideration at that time.

The document that has been produced by Mr. Pepin and Mr. Robarts, among others, is a commendable document. It speaks about a future together. I think if we adopt some of those recommendations and give some serious thought to how the constitution of our country can be updated and improved, rather than dealing with some of the other matters we seem to be tied up with in the political sense, we will indeed have a bright future together for the next 100 years to come.

Mr. Deputy Speaker: The member for Humber has two minutes remaining. Does he wish to reserve them?

Mr. MacBeth: I would rather share them with somebody else.

Mr. Sweeney: I would begin by complimenting the member for introducing such a resolution, given the present sense of disunity in our country today, at the two levels which he so aptly identifies -- between federal and provincial on the one hand and between provincial and municipal on the other hand. It is well that we do take some time in this Legislature, to re-examine what our own feelings are about these types of relationships.

I would also compliment the member for clearly pointing out the areas where we should direct our attention. On the one hand, he talks about a clear separation of responsibilities and powers among the various levels of government. I’m a little bit hesitant about the use of the word “separation”; I very much like the distinctive aspect of it. Unfortunately, in our country today that word “separation” has too many negative connotations, and I feel a little bit uneasy about it. But I think I understand what the member has in mind. I think he’s made his point pretty clearly as to what he meant by it.

I also want to compliment him for identifying the fact that even though there will be some distinct powers more clearly identified and more clearly recognized than what they are now, he still recognizes there needs to be the continuing principle of extended equalization among the various parts of our country. We can’t cut them so fine that we leave everyone out there floating on their own and doing the best they possibly can with whatever resources there are available to them. The member continues to recognize that’s not how a confederation works.

Finally, I want to compliment him for taking that next logical step. I would say for a member of that government, particularly a former minister of that government, it takes courage to take that next step and say: “Look, fellows, it also works the next step down. Just as the federal government may not always play ball the way we want with the provinces, it is equally true that the provinces -- this province being one of them -- don’t always play ball the way the municipalities would like it to be done.”

I think the member will probably recall from time to time the interjections that come from this side of the House, when the Premier (Mr. Davis) in particular draws a bead on the deficiencies of the federal government with respect to its dealings with the provinces. We can usually identify some parallel situation where the provinces --

Mr. Kerrio: Grossly unfair.

Mr. Sweeney: -- haven’t really been all that fair with the municipalities. For these reasons -- for identifying the issues and for taking it all the way -- I would certainly compliment that member.

I stand in support of this resolution. The principle behind it, the guiding spirit behind it, is one I can clearly identify with.

The reason for supporting it is because in our society today I think one of the main problems we face is a muddying of the waters. Far too often we have arranged things at the government level and at the various social levels where no one is really responsible. There are so many people who have their hands in the pot. There are so many cooks in the kitchen that it’s very difficult to identify who is responsible. That, of course, is not something that has been deliberately designed. As the member has so clearly pointed out, it’s something that has happened over the last century.

It is certainly difficult for us to go back to 1867, to 1864, when the British North America Act was being drafted, and to see into the minds of the Fathers of Confederation; to begin to appreciate the state of the country as it was at that time; to recognize the social conditions, the economic conditions, the vast transportation problems, simply being able to communicate with one another, that existed at that time, and then try to transpose that kind of mentality many years hence into 1979. It just couldn’t have been done. We have to appreciate the fact that many of the things that have happened have just happened. As the expression sometimes goes, they “growed”, like Topsy.

We recognize that. We recognize that far too often the various levels of governments are unintentionally, I would say in most cases, interfering with each other’s jurisdictions. So we should do anything which will more clearly identify who is responsible for what -- number one. Secondly, we should make it much more possible for the level of government responsible for providing a service to also be responsible for raising the necessary funds to pay for that service.

I find it increasingly ludicrous to see these transfer payments flowing back and forth between the various levels of government. Just take, for example, the ones between the provincial government and municipal government. The local property taxpayer has to fund a number of what I would call human services -- services for education, services for parts of health, services for various welfare programs or social services programs. At the same time, the local municipality has to provide for what we call the hard services -- the road, the police, the sewers, the fire departments, these kinds of things. And there’s money flowing back and forth between them.

It would seem to make so much more sense if we could clearly identify it by saying this is your area of responsibility and you use your local tax base to provide the funds to pay for those responsibilities. The same thing should be told the provinces instead of having money flowing back and forth from the federal to the provincial government.

The member himself has clearly recognized that’s not going to work in all cases. All levels of government don’t have equal access to taxing sources, and we have to take that factor into consideration. But surely we can clear the muddled lines a great deal more than what they are at the present time.

I also think it would clear up some of the present problems in terms of what the money is used for. It has already been raised in this House on two different occasions that in this year alone the federal transfer funds to Ontario -- first of all for post-secondary education -- has not been used for that purpose. Neither was the federal transfer of funds to the province for health services used for that purpose.

I think members on this side of the House can quite legitimately complain about this. The people who are operating our post-secondary system and the people who are operating our health system are concerned because they don’t have enough money to provide the services they have been told they should be providing. One of the reasons we complain is that we see dollars coming from the upper level of government to this level and not being used for the original purpose.

I think the government of Ontario leaves itself open to criticism when we have that kind of transfer arrangement and we use those dollars for other purposes. If the province were to raise its own funds for those areas for which it is responsible -- health, social services, education, all the way through -- then we would have less concern with that kind of problem.

I think we would also need to clearly recognize -- this is the point that we referred to a few minutes ago -- that there are inequalities in this country of ours. I want to go on record as saying very strongly I believe in the need for a strong, well-endowed, central government. I do not believe you can have any kind of a federation or any kind of a confederation if you do not have a strong central government.

There is a very distinctive difference between the type of federation we have here in Canada and the one they have down in our sister country in the United States. There, as the member has drawn to our attention, the residual powers in the United States rest with the states. That’s the way their fathers designed their program. On the other hand, our constitution clearly gives the residual powers to our central government.

I think that was a wise move. Our countries are different. In no way do we compare with the United States. We are stretched from sea to sea in a relatively long, thin line. Our economic problems, because of our climate, because of our distribution difficulties, because of the manufacturing runs we can have, are very different. Our resource base is very different. Therefore, wisdom was shown many years ago when our Fathers of Confederation gave the residual powers to the central government. I think that wisdom has been borne out.

[8:30]

I was very pleased to hear the member indicate he would not support changing that because it is through that mechanism that we have the opportunity to take a look at other parts of this country which are in greater need than Ontario, which are less well off than we are and, through that mechanism, provide the necessary assistance and help they would not be able to fund by themselves. That is what is going to keep this country together, as it has in the past.

In closing, I want to indicate I do support the spirit of this. I support the distinctiveness of identifying programs and identifying their financing with, at the same time, a spirit of co-operation between all levels.

Mr. Breaugh: I welcome the opportunity to participate in the debate because I feel this is one area where duly elected politicians in this House have not exercised their prerogative to discuss something of national importance. I cannot support this resolution, not because I am basically against the notions described in here, but for some rather important reasons upon which I would like to elaborate.

This House has not given its members the opportunity to discuss at any length what should happen in the constitutional reform program which will be carried on, in some form -- whether anybody likes it or not -- over the next decade in Canada. That is a shame because that is saying only members on the government side -- and I dare say that, even over there, it will only be a very small number of people -- will contribute input to federal-provincial constitutional meetings.

There are members on this side of the House. There are backbench members on the Tory side of the House who have contributions to make about the shape, size, form and format of this country. If we are serious about this, then we should at least be prepared to listen to one another.

I do not see, frankly, a sharp consensus forming about where this nation is going and what it will look like, or how it will function, ten or 20 years from now. I hope there is, at least among those elected to public office in Canada, a concern about it and a desire to express opinions and to exchange thoughts.

The reason I can’t support this resolution is pretty simple. The process of keeping the nation together and the process of changing the rules of the game are matters of rather delicate negotiation. None of us will be able to sit down and write out a new constitution for Canada which does exactly what we want it to do in exactly the way we want. It will be negotiation between the federal government, between the provincial governments in Canada and, I would also hope, a matter at least of consideration, if not negotiation, among the people of Canada. There are a lot of things which have to be done before we get to that stage and I am not prepared to go to the bargaining table with one locked-in position.

There are some small deficiencies in this resolution which I would like to discuss -- at least a little bit. The strength of the resolution is barely this. Each member of this House now has an opportunity to express an opinion and, in private members’ hour, a personal opinion. I think such opinions are sadly lacking.

There is a need, regarding this one issue, to set aside those things we call political parties and to speak as Canadian citizens and more importantly, as politicians in the Canadian political system, because we do have a different perspective on that.

I am concerned, and it is happening again in this federal election campaign, that the political process itself works against a sensible and rational extension of the discussions, debate and negotiation about constitutional reform.

A basic problem in this kind of resolution is to say we could find a simple answer that says the provincial governments will do this, the municipal governments will do this, and the federal government will do that. Those are the roles, the responsibilities of each of those levels of government.

I am the first to admit the thing is now without question, a “dog’s breakfast.” In Canada, one can’t look at a road project or a post office or an arena, or virtually any kind of government activity in the broadest sense, without finding almost all levels of government participating in that in some way, sometimes funding, sometimes exercising control powers and sometimes blocking. I think that is in part the string of truth that holds this resolution together and makes it certainly worth the consideration of the House. That does need to be sorted somewhat. To suggest it could be handled so simplistically as to sort them all out so neatly and cleanly would be to deny there are parts of this country that don’t have the population base or the taxing power or the financial support that, for example, Ontario has.

To say that Ontario could utilize a sorting system because it has eight million people and a financial base as strong as most countries in Europe, and to say what’s right for Ontario is right for Prince Edward Island, is not fair and is not being realistic.

There are needs in other parts of the country and the basic requirement, in my mind, for keeping this country together as a unit is to recognize that there are differences, very distinct ones, very different needs and very different abilities from one end of this country to the other, and that there is great potential here to be realized. But if it’s to be realized by Canada as a nation, we have to be a little more sensitive about it than this resolution would allow me to be at this time.

I beg forgiveness of the mover. In normal circumstances, if this was just private members’ business and we weren’t dealing with a country that has some very definite problems, I would be less concerned. We have a formally elected government in power in a major province in our country saying, officially at least, that it wants to break away from the rest of the country. That’s a very difficult thing to try to digest when one believes, as I do, that one is a Canadian above all other things.

I believe I am different from other people in the world and that my culture, my arts, where I work, how I work and the conditions under which I work are unique in the world. They aren’t the same as the Americans’. I would be the first one to say that though my culture may be very heavily influenced by American media, I want it to be distinctly Canadian. I want people in Canada to recognize that for a variety of reasons, some economic, some cultural, some having to do with linguistics and some having to do with the lifestyle we live, I’m happy to be what is now called a Canadian.

I’m a little concerned that the other people who live around me haven’t come to that realization or at least don’t want to talk too much about it. I want that. I believe a strong federal government is vital to this nation. It can’t function, as other nations in the world can, with a disunited and disjointed system of government.

This country began in the very first instance because there was a crying need to put together people who live a long distance from other people who were Canadians. That’s still true today. It differs in many contexts and mass communications and mass media have changed many aspects of that, but that fundamental truth still derives. We are still in many senses a frontier nation, clustered together in places like Ontario in the southern-most part of the province, with that vast potential for resource development, for expansion of our economy and for expansion of our culture to develop a Canadian identity left pretty much in isolation in the northern part of this province and in the northern parts of this country.

I don’t pretend to be a hard-nosed negotiator on this. I wouldn’t negotiate sovereignty-association with Rene Levesque because he hasn’t bothered to explain to me what that means. I’m not prepared to say that this province, this country or any one of us should take a hard and fast position on any of these things until we have discussed what exactly we’re putting on this bargaining table. What are we negotiating? What are the ramifications? If I can’t get my personal viewpoint accepted around that bargaining table on any given issue, what other issues are there available to discuss that might be negotiable?

I think that this is, brief though it might be, an important debate in the history of this House. I might congratulate the member for providing during private members’ business that opportunity for even a limited number of us to talk even for 10 minutes about this particular issue. I can’t accept his suggestion just now. I appreciate the opportunity to engage in that debate. I think this House will be well served if we as other private members put in resolutions of a similar nature to provide the forum for that discussion. I am not prepared to leave that to the media. I am not prepared to leave that to other politicians in the middle of a political campaign.

I am crying out for a need for members of this House, in the absence of a political campaign and without the hindrances sometimes of party obligations, to speak as individual members of our own political system, to offer our own personal, political and just Canadian points of view and to let that long and involved process of negotiation, discussion and dialogue take place because I think that this country of all the countries in the world has a potential for greatness that has never been realized.

Our constitution, to me as a politician, creates great problems that perhaps my brothers and sisters making trucks for a living don’t see. It’s my obligation to point out some of those things. I welcome the opportunity to participate in the debate. That is probably the most important opportunity that members of this House will have perhaps even during this session.

I am not prepared yet to say that this House ought to adopt hard and fast decisions on any given aspect of that. The Premier has made his point quite clear. He’s not prepared to accept any hard and fast decisions on debating or accepting sovereignty negotiations. That’s fine.

Mr. Deputy Speaker: The member’s time has expired.

Mr. Breaugh: Could I just end on one note, Mr. Speaker? I would ask that other members of this House in future private members’ hours provide other occasions when as individual members of this House we can take part in this ongoing discussion.

Mr. Cureatz: Mr. Speaker, it is indeed a great pleasure and an opportunity for me at this time to take part in this debate. As the member for Oshawa has indicated, this should be an ongoing discussion, especially at the time of turmoil that is taking place within our confederation system.

Tonight let me express some of my thoughts in regard to the resolution and also my support of this resolution. I should say it is easy in theory to support it and avoid discussion of concrete proposals that might tend to shift this country toward extremes of either decentralization or centralization. Regardless of how a division of powers is fashioned, there is a need to add more definition to what is at present a big constitutional framework.

I do not think it is at all difficult to establish this need. One can also safely say that a feeling shared by many is that Canada should continue to have strong governments at both the federal and provincial levels. In the broadest sense, the fact that we have a balance of powers in this country is not a matter of choice. Clearly, we are too large a country with too many regional differences to have either a unitary government or one with highly centralized power. Besides, unique cultures such as our francophone population obviously require a large and effective local or provincial government to ensure their protection.

There is a limit to decentralization which would be encountered if our central government were weakened to the point where it was unable to manage the national economy or provide for defence or where citizens cease to identify with it as a government of all Canadians. We can conclude that a strong federation requires this kind of balance or sharing of powers, but the precise definition of that balance is an enormously complex matter.

The principle of avoiding overlap of powers has merit from two standpoints. Firstly, and very simply, it is essential that some areas not be overlapped through legislative authority as even the limited use of power at one level would negate or undermine existing interests. This is what I believe has prompted the member’s resolution. Overlapping of power can result in frustrations between various levels of government and it can cause conflict as well as resentment on the part of the government which has not achieved paramountcy. Also, as has been mentioned, duplication and unwarranted growth in bureaucracy are tremendously costly and sometimes lead to difficulties in ensuring that government accountability is maintained.

While I strongly endorse what I feel is the intent of this resolution, that is, to reduce overlap and burdensome red tape, there is an argument to be stated for not assigning exclusive powers to either level of government in a constitutional reform. The feeling has been expressed that exclusive power results in rigid interpretation of certain legislation. Certainly there have been periods in Confederation when Canadians have experienced just this kind of rigidity.

However, the extended use of federal-provincial spending powers, a delegation of administrative powers, some widening of concurrent fields of government power and also more flexible judicial interpretations of the constitution have led away from compartmentalization. Consequently, a stricter definition of “powers,” or the assigning of exclusive powers, or indeed a shift away from concurrence in powers, is not a measure that will cause us to lose our highly valued flexibility. Indeed, I have no difficulty in supporting a resolution calling for more distinct separation of responsibilities.

[8:45]

However, I do not feel that total separation of powers is possible. Canada is a nation made up of competing viewpoints but not necessarily always conflicting. We are diverse and we are regional. Interests are not always consistent, nor should they be, and it would be unrealistic to expect otherwise. It is, therefore, also unrealistic to form the belief that any one model for a strict division of powers would be acceptable to each province and to Ottawa as well. For this reason, too, I would think it unreasonable to assume that we can or even should eliminate all areas of concurrent jurisdiction. Canada’s need for compromise, tolerance and flexibility would undoubtedly overshadow attempts to neatly and consistently define the broad range of powers in which each level of government has an interest.

The Canadian Bar Association’s committee on the constitution made the obvious but pertinent observation that even at very basic levels cultural considerations impinge on national economic policy. Education, one of the so-called guarded provincial cultural powers, we all know has, through its effect on labour skills, a profound impact on the performance of the labour force. As the committee on the constitution stated, “Local matters should be provincial but when, in our interdependent world, is anything purely local?”

That committee pointed out also that Canada as a nation and as a particular cultural unit must at the federal level seek to assure the preservation of cultural ties if we are going to remain distinct in any way from the very influential culture to the south of us.

These two statements serve to illustrate the constitutional committee’s opinion that while the traditional viewpoint of economic-cultural division of power is not wrong, it is very parochial.

Most situations can be looked at from several perspectives. This is certainly the case when we discuss matters of taxation. When the broad division of powers we think about today was incorporated into the British North America Act, it was generally held that the costs of education, welfare and administration of justice could largely be met through limited taxation or, where necessary, through constitutional subsidies. It was for this reason that provincial taxation powers were restricted to what we call direct taxation.

History, of course, has charted the changing revenue needs of the three levels of Canadian government. In 1946, almost 72 per cent of government expenditures were made at the federal level; by 1975, this figure was reduced to 43.7 per cent. Provincial and municipal expenditures account now for well over half of the Canadian spending. The point has been made, therefore, that the actual allocation of taxing resources should be broad and overlapping in order that changing needs can be met with shifts in the distribution of taxes.

The Canadian Bar Association’s committee on the constitution suggests a rationale for ascribing such broad taxation powers to both the federal and provincial levels. In its own words: “The federal government must have the resources to respond to whatever eventuality the country may face, and it must not be forgotten that federal taxing power is needed not only for the purposes of raising revenue; it is essential for economic policy. Finally, it is the only government in a position to redress the economic balances among the provinces -- balances flowing in no small measure from the creation of a single country. It is evident, too, that the provinces need the financial resources to meet their own responsibilities which, in a federation as decentralized as ours, are indeed very broad as well.

“This is not to say that the tax fields cannot be better defined. We certainly have matters to clear up, most notably the question of avoidance of multiple taxation and provincial limitations to taxing within our provinces. There is no doubt a need during constitutional revision to search for mechanisms that will ensure a balance of powers but at the same time reconcile competing interests. Limiting federal spending powers through provincial consensus would be one such example.”

Mr. Lawlor: Are you saying that the provinces should not have indirect power?

Mr. Cureatz: The distribution of power or the role of government, if you will, now more than ever require definition if Canadians are going --

Mr. Lawlor: Mr. Speaker, he is reading. Are you saying --

Mr. Cureatz: -- to live in a harmonious and constructive manner. I, therefore, commend the member for Humber for his introduction of this resolution.

I am so pleased that the member for Lakeshore has interjected on my speech. If he would bear with me, I might read passages from his wonderful book that he gave me --

Mr. Lawlor: Don’t do that; don’t do that.

Mr. Warner: Read his book.

Mr. Lawlor: Stick to the business of the House.

Mr. Cureatz: -- but I will not intrude on the member for Humber’s wonderful resolution at this time; I will forgo my time to the next speaker.

Mr. Bradley: Mr. Speaker, I first of all commend the honourable member for Humber for introducing this particular resolution. I do so because I think it is very important that we have people within provincial legislatures across this country who show interest and concern for questions of a national nature. There has been a tendency in recent years for many, particularly those who serve at the provincial level, to view all matters in the provincial context and not to look beyond the horizons of the provincial scene. The fact that a member of the provincial Legislature has a concern about the national unity question and about constitutional questions as they relate to the country as a whole, I think is commendable. Certainly, he should be complimented by all member of the House for that. I do see some cause for concern.

Mr. Lawlor: You would have to be pretty backwards not to. Does he live in the same country?

Mr. Bradley: My remarks will be similar to those expressing the concern of the member for Oshawa who found some fault with the resolution. The circumstances I see at the present time across this country are such that I see an assault on the powers and responsibilities of the federal government, powers and responsibilities I feel are very much required if we are to deal with problems that beset this country in a cross country manner and in a national manner.

The provincial premiers, particularly those who have very good resources, resources which are often related to energy and therefore can be marketed at a very high price, are naturally jealous of retaining responsibility and control over those particular resources. However, I recall very well the speech -- I believe it was on the last speech from the throne or a budget speech -- made by the member for Kent-Elgin. He listed some of the resources and some of the assets this country has as being national assets. I recall his speech in which he talked about the fish of the Maritimes being the fish of Canada; the Prairies meaning every bit as much to a person from Ontario as they would to a person, from the prairie provinces; Alberta oil being Canadian oil; hydro-electric power produced in the province of Quebec should be Canadian hydro-electric power, and so on. He was emphasizing the responsibility of those of us who believe in a strong national government and, indeed, believe in the future of this country, to ensure there is the necessary mechanism for the federal government to legislate in these particular areas.

We have had a situation evolve over the last several years where provincial premiers have now probably reached the point of great power. We certainly had this with the major provinces, and in almost all of the provinces. The provincial premiers are now viewed as people with much greater powers, with much more responsibility, with much more prestige than federal cabinet ministers. There was a time in this nation’s history when many felt the cabinet minister or cabinet ministers from various provinces were those to be looked up to to speak on behalf of those provinces. I think this has changed substantially. The federal-provincial conference, in many ways, has replaced the cabinet meeting as being an important area, at least of public discussion, if not of bringing about solutions to problems.

There is a natural tendency for provincial premiers to see things in the provincial context. I am very concerned when I see resolutions coming forward looking for precise definitions in the context of times when many people, particularly those of the vocal majority at the present time, advocate more and more exclusive provincial powers. It is my view that national goals may be reached or attained only with participation of the federal government.

The problem that arises, and the member for Humber has pointed this out very well and others recognize this in this House, is the same problem that exists in the relationship between the provincial government and the municipal government. That is, funding in the initial stages of any particular program that may have a good deal of merit is often rather lucrative. When the crunch comes, when there is a need for restraint, it is always restraint at somebody else’s expense. It is easy for the national government to indicate it is slashing budgets as long as the budgets it is going to slash are those which are going to affect provincial jurisdictions.

We see a similar situation from time to time at the provincial level when the Minister of Intergovernmental Affairs, or the Treasurer, indicates we’re going to have a program of restraint in this province and we’re darned well going to do it on the backs of the municipalities.

Therefore, this problem has existed in the past and I am sure it is certainly part of the reason for the member for Humber advocating a resolution of this kind; to have those kinds of definitions, to try to avoid those kinds of problems, by placing the right to taxation in the hands of the various levels of government to have the ability to look after their own financial problems, those that lie within their jurisdiction.

As I said, I do see problems when we have an assault on the federal powers when defining these precisely, because there are times and circumstances in a nation’s history when the federal government must act, and there must be sufficient flexibility within a constitution to allow the federal government to act. To define these powers too precisely, to talk about exclusive control over areas, would remove that kind of flexibility and would, I am afraid, to use an overworked term, tend to balkanize this country.

The member has talked about the need for the continuation of equalization payments which I’m happy to hear, as a member from a province which we consider to be a have province -- at least we have in the past and I think most of us at the present time, by our own definition consider us to be a have province, a province blessed with some of our own natural resources, with industry certainly, and with the capital necessary to carry out programs that are very useful and beneficial to our population. So I would agree with that. I think it goes almost without saying if we believe in national unity that we must have a continuation of equalization payments.

I don’t think we will ever reach a situation in this country, however, where each level of government will be able to finance its own responsibilities without subsidization from another level. That is always going to be necessary if we wish to achieve national goals, whether those goals be in terms of education, the social welfare field, transportation or other areas. There are certain national goals which can only be achieved with the financial participation of the federal government and the possibility of the federal government having at least some jurisdiction in that area.

I do think we have a need, however, for long term commitments from the federal government in relation to the provincial government, from the provincial government in relation to municipal governments, so that there can be a planning process, and so that programs which are set in place be allowed to continue for a long period of time and not be discontinued without meaningful consultation with the other level of government. I think that would be a difficult goal to reach, nevertheless a goal we should be seeking.

It seems to me that at the present time, looking at the national picture, there are only two areas in this country where people feel they are genuinely benefiting from Confederation, where people feel they are Canadians first and provincials second. One area, of course, is in Ontario where we are very favoured because the national capital is here, the financial capitals of this nation are here, where we have everything in central Canada, so it is natural that we in Ontario, I suppose, feel Canadian first and Ontarian second.

The other place in this country, I think, would be in the Maritimes where they are often very dependent on equalization grants from the federal government for many of their financial resources. Other parts of the country don’t have that same feeling perhaps and we can instil it only with a strong national government.

I would hope that the feeling would be in Alberta, for instance. I view with some concern that if we were to allow Alberta -- and I don’t wish to look at personalities so much in this case -- to have exclusive control over oil, that would be fine if you were in Alberta, but for the people of Ontario to know that Alberta would have exclusive control over its oil, that it would be a provincial resource to be marketed at the world price as we market, I suppose in Ontario, some of our goods at the world price -- and we certainly can be subjected to criticism in certain areas -- would be an abhorrent situation for the people as a whole.

Therefore, I am once again concerned at precise powers being given exclusively to a provincial government in an area as important as resources development.

Mr. Lawlor: Not another country in the world does that. You get your gasoline cheaper in Colombia or Venezuela. They don’t sell domestically on the same basis.

[9:00]

Mr. Bradley: I think the member for Lakeshore makes a very valid point. This is one of the few countries where that goal would be a goal of any person within the country.

Mr. Speaker: The honourable member’s time has expired.

Mr. Bounsall: Mr. Speaker, I welcome the opportunity to participate in the debate on this resolution. The resolution, as it appears on the paper, is one which is very difficult not to support, particularly inasmuch as it’s been proposed by the member for Humber, who has an undoubted reputation for honesty and sincerity in everything he does in this House. I have never found a time in which that has ever been doubted.

Mr. Bradley: He is putting that in his brochure next time.

Mr. Bounsall: After having said all that, I hate then to add my “but.” The “but” isn’t a very big one and it is a conditional “but” as well. But the member cannot, in a simple resolution, in an hour and a quarter’s time of debate, treat with the whole subject of how we may revise the British North America Act. He’s picked a small portion dealing with taxation, and he’s confined himself in his remarks to the tax-sharing situation and the distinct separation of powers that would accompany that.

The only problem is once you use the term “discussions concerning the BNA Act,” the whole field opens up to your mind. Despite oneself -- although one is attempting to think only of what’s written in the resolution -- all these other concepts start coming into play and one finds it difficult to agree with what’s written because that will affect some other area. That’s really the only major drawback I see with the resolution.

We take one small part of what needs to be discussed to keep this country together or to have a redefined act under which we and all the provinces would operate in the best interests of one country, and we leave out via this resolution all the other things which come to mind. I cannot disagree that there should be a distinct separation of powers. We get into problems when we don’t. Certainly in terms of cleaning up the areas of what is taxable by one jurisdiction vis-à-vis the other -- particularly the member’s continued recognition in his resolution that equalization payments should continue -- speaks to the area of national unity. This is certainly something which must be maintained if there’s any hope of that continuing. And certainly I applaud his recognition that we must do the same thing with our municipalities in terms of defining where their tax base is, where their taxes will come from, and implying thereby what is very desperately needed -- that there should be a larger tax base for the municipalities, a redefined one, which does not leave them so wholly dependent upon the very regressive property taxation system we have now. The implication that will occur is all positive in the member’s resolution.

However, what also comes to mind are some examples of this in the past. I believe it was in the spring of 1972, in a provincial-federal conference, the federal government -- in terms of doing what this resolution would do -- more clearly define one area of taxation -- said to the provinces: “We will give you exclusive jurisdiction over succession duties. We will step completely out of the succession duty field so the provinces may have that jurisdiction completely.”

What do we find seven years later? Ontario, having been given that area of taxing power, steps out of it entirely by abolishing succession duties in the province at the very time when only three per cent of the population has an estate -- when they pass away -- of $300,000 or more. It’s therefore not a very onerous burden on the general population of Ontario, but we decide to abolish it.

There’s no doubt a philosophical difference between the member for Humber and me about whether we should tax moneys that pass from generation to generation. I strongly think we should. We are all born, or should be born, equal in this world. One does not need, or should not have, a silver or gold spoon in one’s mouth or hand, in order to continue.

Mr. J. Reed: I wonder what they’re saying about you in Milton tonight? The high school will never be the same.

Mr. Bounsall: The real means of equalization, in terms of equal shots at opportunity, which is a good free-enterprise concept, should be one in which one starts out financially equal as well. The way you do this is to have succession duties. This is one area the federal government gave to the provinces. Ontario has now opted out completely.

On the other hand, there are advantages in more clearly defining the taxing power of each jurisdiction because, in the shared programs we have, we now see the federal government backing out. The health field is clearly within provincial jurisdiction. In order to get the national health plan which came in in 1967, the federal government entered into a rather straightforward agreement with the provinces about how much it would pay in order to get that health plan established. Some few months ago, we had the federal government saying it was going to decrease those payments to the provinces in a systematic way -- I believe over the next five years -- only some 12 years after instituting it. The provinces are now left holding the bag financially for the health system worked out in agreement some 12 years ago.

So, in retrospect, that’s the way the central government operates in terms of such a well-defined area. And we, as a province -- and all the other provinces -- went into that agreement in all good faith, expecting that it would continue. Now we find that the condition we desperately need, the sharing of finances, will not continue in the form it started. It’s that kind of separation which we very desperately need in this province, as embodied in the member’s resolution.

The same thing is happening, of course, in the field of education. The federal government, in view of discussions of different tax sharings and different tax clarifications on who does what, and in the absence of clear delineation and definition, has passed along various grants in the field of education. Only we find, in this particular year, that now it’s backing out on one quarter of the French-language education grants which it has provided in the past.

When I see this happening, and the ability of the federal government -- the power it has -- to change its mind on what it will cost-share with the province, the more I agree with the member in his resolution that those areas should be clearly defined. If there’s an agreement on certain moneys to be transferred in view of a strict definition of the taxing power, then changes should not be allowed. The federal government should not be able to make changes unilaterally, as it has in the financing of our health system and in the grants to education; particularly in its decreased grants for French language instruction in this province which had just nicely come into effect.

It’s hard, as I say, with a resolution dealing with the British North America Act -- even though it deals with distinct separation of powers and, particularly, tax powers -- not to get into the whole general area of the British North America Act. I feel very strongly that we need a strong central government in Canada and are running into danger in our definitions of balkanization of our provinces; we act as 10 different entities. This resolution could lead to that, although, of course, it doesn’t specifically put any emphasis there.

We’re just saying: “Let’s define it more clearly.” I can’t be against that, of course. I just wonder if this doesn’t lead to a bit of balkanization because I, probably like the member for Humber, am a believer that Alberta’s oil, Ontario’s uranium and Ontario’s hydro-electric power should be national resources; perhaps even more so than they are provincial resources. We need a government federally which will work out honest, fair arrangements that will cause this to occur.

I might just end by saying I was rather appalled that the Prime Minister of our country in the first week of the election campaign came out trying to make national unity an election issue. It is an area in which Canadians need calm, cool thought at all times and, above all, the ability to sit down and work out the arrangements that will keep this country one, rather than sloganeering at election time.

Mr. Speaker: The honourable member’s time has expired.

Mr. Bounsall: I was particularly affronted when he indicated that Canadians who didn’t think national unity was an issue in this campaign were traitors. I would just say that for the first time in my life I feel most comfortable in my traitorous feelings, which I sometimes have.

INNOCENT PERSONS PROTECTION ACT

Mr. Stong moved second reading of Bill 28, An Act to protect the Reputation of Innocent Persons from Untimely Publicity.

Mr. Stong: Mr. Speaker, in proposing this Act to Protect the Reputation of Innocent Persons from Untimely Publicity, I recognize the fact there are certain time constraints and restrictions on private members’ bills, and I would like to reserve for myself the last five to seven minutes for the rebuttal of any arguments which may be proposed in opposition to my bill.

The bill itself is wholly adequate and required. I might say it arises out of a concern I have had for some 12 years now as a defence counsel practising before the courts and defending those who can be considered to be in the lower echelon of our society and those who find themselves confronted with, and perhaps in opposition to, the law, but at least those who find themselves before the due process of law.

The bill recognizes as inherent the proposition that each and every citizen of this country, of this province and of this city, stands innocent before the due process of law before the courts until he is proven, beyond all reasonable doubt, to be guilty. That is the prime and very fundamental principle of this bill.

In paying recognition to that premise, the bill also goes on to ban the publication of the names of those persons who find themselves charged with offences, whether they be provincial or federal offences, until the trial commences, and only until the trial commences. When the trial of an individual commences by way of a plea of guilty or a plea of not guilty, then the media can take over and report the actual occurrences and events in the courtroom.

The protection of a fair and open trial is in no way interfered with by this bill. This bill protects the reputation of an individual who finds himself before the courts charged with an offence.

The bill also sets out offences and punishments in the event of a conviction of an offence against this bill.

This bill has been attacked on grounds of constitutional validity. In my respectful submission to this House, there is no greater interest in any individual of this province or of this country than his own reputation and the protection of his own innocence. That is wholly within the civil rights aspect of each and every member of this country and this province. That is protected by the jurisdiction of the British North America Act and is guaranteed and relegated to provincial authority.

In my respectful submission, this bill is not unconstitutional and is not ultra vires this House; it falls wholly within the protection of the civil rights aspect of my reputation, Mr. Speaker, of your reputation and of everyone’s reputation out there on the street. In that regard this bill is intra vires.

[9:15]

There is a concern that this bill curtails the freedom of the press. I submit to this House that the real issue to be concerned with here, and the real issue with which we are confronted in this bill is simply a recognition of the innocence which we uphold of every individual. We pay lip service to it daily before our courts and our laws are founded on it. It is a recognition of the innocence of an individual before the courts when confronted with the due process of law and the freedom of the media to market the news, to sell the news, to sell newspapers and to sell broadcasts. That is the real issue as I see it, and that is what we must decide on.

There is a conception that the common good overrides that of the individual and there is some misconception, in my respectful submission, that the common good, being the mass of organization and the mass of people out there, has some overriding concern over individual concern.

Mr. J. Reed: Only the NDP can do that.

Mr. Lawlor: The NDP and the Pope.

Mr. Stong: I would like to refer to a lecture that was given by a well-known philosopher and humanitarian, Jacques Maritain at the University of Toronto as long ago as 1940.

Mr. Lawlor: He was one of my teachers.

Mr. Stong: I’d like to quote from that. He said: “The end of society is its common good, the good of the body politic.”

Mr. Lawlor: You’re telling me.

Mr. Stong: “But if one fails to grasp the fact that the good of the body politic is a common good of human persons as a social body itself, as a whole made up of human persons, this formula may lead in its turn to other errors of a collectivist or totalitarian type.”

Mr. Lawlor: It’s possible.

Mr. Stong: “The common good of society is neither a simple collection of private goods nor a good belonging to a whole, which draws the parts to itself as if they were purely means to serve itself alone. The common good is the good human life of a multitude of persons. It is their communion in the good life. It is, therefore, common to the whole and to the parts on whom it flows back and who must all benefit from it. Under pain of being itself denatured, such a good implies and demands the recognition of the fundamental rights of the person. It involves as its chief value the highest possible accession of persons to their life as persons.”

As early as 1940, our humanitarians, our eventual lawmakers, those upon whom our jurists rely in determining law have indicated that it is the individual who is important in society because, without respect for the value, the importance and the dignity of the individual, we can never have a strong and respected community. It is only in that respect and upholding the freedoms and the dignities of the human being, the individual, that we can possibly hope to have laws that pertain to the common good, meaning the entire society. Society is structured on the individual.

Mr. Lawlor: Maritain would be ashamed of you.

Mr. Stong: I quoted right from Maritain from Scholasticism and Politics, 1940.

Mr. J. Reed: The member for Lakeshore has got to support this bill.

Mr. Stong: In my respectful submission, we must concern ourselves about this. In fact, all of our law is oriented and based on the fact of the recognition of the value of the individual human being in determining and protecting his freedom before the law, his freedom before us, his freedom before that giant branch of government which is the judiciary.

It is in that sense that I present this bill and say that it protects the individual. The paramount consideration is not the freedom to sell the news and not the freedom to market events, but to protect the rights, the dignity, the freedom and the reputation of each and everyone of us here and each and everyone of us out there. That’s what this bill is all about -- nothing more and nothing less.

It is simply a recognition of paramount consideration, of priorities. Where are our priorities as legislators? In my respectful submission, they lie in the protection of the individuals who make up the community and on whose back the community is formed.

This bill probably will be challenged tonight on the basis that it interferes with this freedom. I ask what is freedom. Do we recognize freedom? Is it licence? I respectfully submit it is not licence. No one has the right to play on the hardships of others and make a profit on it. No one has it. There isn’t one in this House that would hold to that principle.

Is freedom such that it ought to tolerate irresponsibility or does freedom carry with it a demand which would guarantee the preservation of the individual and individual self-respect and the furtherance of common decency? To me that is an important part of freedom. That freedom does not pertain to the sale or the marketing of events or news. The paramount consideration is the individual.

This bill is not new; it is not foreign to our law. It is found in the Juvenile Delinquents Act, where the juvenile delinquent is protected from being named -- not just before the trial, but right through his trial.

And there are other mechanisms built into the Criminal Code that permit a judge to ban the publishing of names and events as they occur in the court room and that is not foreign to our law either. Another example is the protection of an individual from any information arising out of his bail hearing or from any information arising out of a preliminary hearing.

I cannot take credit for it. It already exists in certain circumstances. But this law simply indicates that we must protect the individual prior to his trial. There are other mechanisms that are available. There are libel, slander, defamation of character suits that are available for any of those who are worried about rumours that may arise pending trial. This bill protects the individual prior to his trial.

I know the time is running on but I do have some other things that I would like to include. There are aspects of this bill that do not concern others -- for instance, the secret arrests that may arise. This does not allow secret arrests or the clandestine incarceration of individuals. We have protections built into our law right now to abolish that and to protect an individual from being held unnecessarily. There are laws that govern that situation right now in existence that can be enforced and are enforced on a daily basis. Everyone is subject to this law.

Briefly summing up my argument, the side effects of this bill can be regarded -- I did not introduce this bill for this purpose alone -- but we all recognize that deterrents to crime are early detection and early trial. One of the side effects of this bill could very well be the pressure built up from the media themselves upon our judiciary to have early trials and not delay trials.

Those who want to sell the facts, those who want to have the facts known and reported to the public, can put pressure on our system to have early trials so that they can be on top of the situation. There is that possible side effect to guarantee there will be less time between the time of apprehension and charge and the time of trial at which full reporting can be made.

As late as yesterday, the Right Honourable Lord Justice Denning, Master of the Rolls of the House of Lords, speaking to the Advocates Society in Toronto, described lawyers as the backbone of upholding the law and order and the rule of law in a nation. They maintain the freedoms of the individual. He spoke to the Advocates Society and the Criminal Lawyers’ Association of Toronto, and I might say that the Criminal Lawyers’ Association has referred a letter to all the members in support of this bill on the grounds set out in it; and I don’t have to reiterate them or dwell on them, because they are self-evident.

Mr. Lawlor: Yet they find your bill defective.

Mr. Stong: They find it defective, but not in principle; they would like to extend it farther.

Mr. Speaker, I would like to reserve the last five minutes for rebuttal.

Mr. Warner: Mr. Speaker, I would first like to congratulate the member for York Centre for having presented to us this evening a bill on an extremely important matter of substance which, unfortunately, we do not often have an opportunity to debate in this assembly. It brings to us the opportunity to debate the very delicate balance between fair trial and freedom of the press, a balance which has been described though the ages.

I would like to begin by quoting from Samuel Johnson’s The Life of Milton, when he wrote:

“If every dreamer of innovations may propagate his projects, there can be no settlement; if every murmur at government may diffuse discontent, there can be no peace; and if every sceptic in theology may teach his follies, there can be no religion. The danger of such unbounded liberty and the danger of bounding it have produced a problem in the science of government which human understanding seems hitherto unable to solve.”

So the member brings to us something which we have not yet been able to solve but with which we must wrestle from time to time, as we are doing tonight and no doubt will do for many years to come.

As we try to weigh the balance between fair trial and freedom of the press, it is only fair to remember that there are many reasons for an unfair trial. In addition to the chance that the press will not assist, we often have the problems of coerced confession, absence of competent counsel, racial prejudice, clogged court calendars, various economic discrimination, shabby conduct by attorneys in court on occasion, archaic attitudes sometimes by those who are sitting in judgement, sometimes political pressure or community prejudice and, unfortunately in some cases, simple corruption. There are many pressures upon the courts; not just the press. I think it is wise for us to keep that in mind as we try to decide what bounds, if any, should be placed upon the press.

There are obviously many jurisdictions which have approached the subject, and two in particular I found interesting. One was the state of Oregon, which issued a very lengthy statement of principles. What the state of Oregon attempted to do was to outline principles which it felt had to be adhered to if the media were to cover trials. They are too lengthy to read into the record tonight, but they did start off by saying, “The news media have the right and the responsibility to print and to broadcast the truth.” That in itself may pose a problem, but at least they recognized that was the starting point.

They then went on to list, on several pages, guidelines for disclosure and reporting of information on criminal proceedings, guidelines on photography, guidelines surrounding juvenile court proceedings -- they went into quite a few details. They saw fit in the state of Oregon that they should have these kinds of guidelines for the media to adhere to. Similarly, the state of Washington drew up similar guidelines; there were some variants to Oregon’s, but again they felt the guidelines were extremely important.

[9:30]

I was interested to note that in a little document called Advice to the Press they put forward several items which they felt were important for the media. It suggested the media should have open access. However, the media must recognize the implications of the fair trial; free press issues for larger issues of censorship. Making a legal trial possible is an important social interest but it is not the only or even the most important social interest. The press should not confuse winning issues with losing ones. It should not confuse a claim to access with a right to publish.

By the same token, the press should not submerge the tough right to publish in a wishy-washy slogan of the people’s right to know.

Mr. J. Reed: Are you going to support it or not?

Mr. Warner: You are just going to have to wait.

An hon. member: This is a very temperate speech.

Mr. Warner: The media should always ask their lawyers to stop winning battles in ways that lose wars and learn enough themselves to tell one from another.

An hon. member: Down with the media.

Mr. Warner: The media should stop thinking of constitutional freedoms as something to be protected only by courts.

What I am attempting to point out to you, first of all, is through the years many jurisdictions, many individuals, have attempted to draft some code of behaviour or code of ethics for the media. Obviously, in some cases they have fried to gag the media in some way or other.

Mr. Kerrio: Do you think you can gag Claire Hoy?

Mr. Samis: Control yourself, Vince.

Mr. Kerrio: Would you like to try to gag Claire Hoy?

Mr. Warner: Not entirely; he has been the one verbal member in favour of beer in the ballpark.

Mr. Samis: Bring on the guzzle.

Mr. Warner: An interesting comment on the press in a book called Crime and Publicity appears on page 255: “With distinguished exceptions, crime reporting in the American press compares lamentably in thoroughness, sensitivity and responsibility with its increasingly expert coverage of other subjects. Quite apart from any considerations of prejudicing fair trial, its coverage of crime is coarse. If it debauches nothing else, it debauches the high standards the media proclaim and in other fields uphold.”

In this book, as I read it through, the conclusion is generally reached that the press should be allowed to have pretty free range in reporting on trials, although it recognized carefully that in many cases the press does a disservice. On balance, the disservice was not that frequent.

Mr. J. Reed: We want to know what you think. Anybody can read out of a book. What do you think?

Mr. Samis: Where does Vince stand on this?

An hon. member: This is the Harold Ballard bill, isn’t it?

Mr. Bounsall: He warned you he was doing research on this.

Mr. Warner: Those who do not get the opportunity to participate in the debate are the most vocal hecklers. I have always noticed that, Mr. Speaker.

Mr. Kerrio: What about those who are debating?

Mr. Warner: It seems to me, Mr. Speaker, on balance --

Mr. J. Reed: Here it comes.

Mr. Bounsall: Here it comes.

Mr. J. Reed: On balance we are ready. We would like it to be your thoughts.

Mr. Warner: Are you ready for this? The freedom of the press represents in measure our freedoms. If we attempt to curtail the freedom of the press, too soon we lose our own freedoms.

An hon. member: There is your answer, Julian.

Mr. Bradley: That is going to be etched on the wall.

Mr. Speaker: The honourable member has one minute.

An hon. member: We will take on Harold Ballard.

Mr. Warner: Thank you. I have more than that, but just one minute tonight.

An hon. member: No beer in the ballpark.

Mr. Warner: The press act as the gatekeepers to the courts. They report in an honest and fair way often -- most times.

Interjections.

Mr. Warner: I will rephrase that. I retrieve that one.

An hon. member: Occasionally, sometimes.

Interjections.

Mr. Warner: They do make an honest attempt to report as fairly and accurately as they can. Obviously, on occasion not all is done perfectly.

I must in good conscience oppose the bill. This will come as a shock to some members of the assembly but for once, Mr. Speaker, and maybe for the only time, I will support the status quo.

Mr. Sterling: I, too, would like to add my congratulations to the member for York Centre for bringing this issue to this forum. I think it is indeed an issue which merits discussion.

However, I must express some disappointment in the fact it’s not placed in the form of a resolution, which I will allude to later in my remarks.

Mr. J. Reed: You are only angry because it is not a Tory bill.

Mr. Sterling: I understand the concern of my colleagues and the public in relation to this problem, as one of the very bases of our justice system relates to the innocence of the accused until he is proven guilty. Should a person who is accused be exposed to publicity before he goes to trial?

Mr. Kerrio: On a point of order. Do you think it’s proper for you to sit in the chair? Don’t you have a conflict of interest tonight?

Mr. Acting Speaker: Certainly not on this particular item and I expect to be out of this chair long before any votes are taken on anything.

Mr. Sterling: I know only too well the problems related to publicity and the results of that publicity to men who have been charged with offences and have been later proven innocent. I know how important this can be to, or how severe the effect can be on, the family. I know how damaging the suspicion created in a community can be to the individual.

I am sure this feeling has generated the support of the Criminal Lawyers’ Association to this bill. However, I must express some surprise that in their letter, which most members or all members of the Legislature received this morning, they wanted to extend this not only to the pretrial period but until the trial was disposed of.

Mr. J. Reed: That’s not the bill.

Mr. Sterling: I realize that’s not the bill.

Mr. J. Reed: You’re out of order. Speak to the bill.

Mr. Sterling: Balanced against this unfairness to the individual is a very important issue that is basic to our judicial system. That principle is it is inherent in our courts that freedom of information on the court proceedings should be available to all members of society. There are, of course, exceptions to this, and the member for York Centre mentioned some. They have been set out in both provincial and federal legislation.

There are other powers inherent in the court to see that scandalous and extremely embarrassing matters should not be made public. Most of these exceptions are in place to ensure a fair trial takes place.

It should be noted that within the Criminal Code of Canada there are seven separate sections dealing with exceptions and dealing with the publication of information resulting from a trial procedure. The Juvenile Delinquents Act, the Child Welfare Act, the Family Law Reform Act and the new Provincial Offences Act all have sections which deal with the publication of information relating to the trial.

Judges of the Supreme Court now possess an inherent power in their discretion, in appropriate circumstances, to order that the identity of the accused be withheld from the news media. I am not misleading the Legislature; I would point out a justice of the peace does not have this power at this time.

Mr. Kerrio: You’re just confusing us.

Mr. Sterling: Why is an open court necessary at this time, and why should Bill 28 not be supported?

First, I submit that to eliminate publicity as to the name of the accused is to make the trial have some secret connotation. An open trial is needed so all matters relating to the judicial process will be open to public scrutiny: J. Wigmore, in his classic treatise, Wigmore on Evidence, explained the importance of publicity when he stated: “In all experience, secret tribunals have exhibited abuses which have been wanting in courts whose procedure was public.” In other words, once you put a shroud around the process, you invite abuse.

Mr. Kerrio: Somebody accused Clark of being a politician.

Mr. Acting Speaker: Order.

Mr. Kerrio: And he’s not guilty.

Mr. Eakins: And they put it on the front page of the paper.

Mr. Sterling: He also points out that in the pretrial stage, publicity is needed so that informed persons will bring forward evidence. There is a possibility that a third party who had witnessed the incident, or in fact had seen the accused, would not know that a trial was taking place.

How does the public control abuse by either the prosecution or by the police? Would such a law raise unfair criticism of police practices in small centres? Would the rumours surrounding the charges be more damaging than the actual charge which would be published?

Mr. J. Reed: The uncrowned Attorney General of Ontario.

Mr. Sterling: The policy of openness and publicity is intended to ensure the legitimacy and acceptance of the law and the institutions charged with the responsibility of enforcing it. Openness is of critical importance to ensuring that the presumption of innocence in our law does not become a dead letter.

May I say that in researching some of the papers within our province we have found that few papers actually have a policy in relation to this matter. I do not condone this, and I hope many of the papers would formulate policies as a result of this debate.

While I truly sympathize with the accused persons, I cannot support this bill on principle, in that an open court must be the rule, and not the exception. Having said that about the principle of the bill, I would also point out that there are serious problems with the constitutionality of this piece of legislation.

Mr. Kerrio: No, there isn’t. We checked that part. It’s okay.

Mr. Sterling: The key question is whether Bill 28 is a law in relation to property and civil rights or in relation to the administration of justice in the province and, therefore, intra vires. Or is it, on the other hand a law dealing with criminal law or procedural and criminal matters and therefore ultra vires this Legislature?

The answer to that question can be determined by asking two further questions: What is the object or purpose of the bill? Second, what is the effect of the bill?

It is interesting to note from the prohibition under section 1 that this bill would apply, for example, in a case where a Manitoba resident who was charged with murder in Manitoba could be released on bail, and, if he visited Ontario, it would prohibit the papers within Ontario from publishing the name of that individual.

By referring to the preamble of the bill and section 1 of the bill, it is clear that the purpose is both federal in the criminal law procedure and provincial in protecting the reputation of the individual, as the member for York Centre has put forward.

One of the effects of the bill is to supplement and duplicate some of the statutes of Canada respecting publicity bans. I have mentioned before that there are seven sections within the Criminal Code of Canada which already deal with publicity and the banishing of publicity.

In order for this bill to achieve its declared purpose of protecting the reputation of innocent persons, the bill has been designed to alter the public policy reflected in the Criminal Code of Canada in terms of the criminal procedure which governs from the moment that the criminal process has been set in motion. This public policy at the federal level is one of openness and publicity. It is intended to ensure the legitimacy and acceptance of the law and of the institutions charged with the responsibility of enforcing it.

Mr. Acting Speaker: The member’s time has expired.

Mr. J. Reed: And he has almost expired.

Mr. Sterling: I would therefore conclude that it is the view of the Attorney General (Mr. McMurtry) that this bill is unconstitutional in its form.

Mr. Blundy: Mr. Speaker, I am very pleased to speak in support of the bill that has been put forth by our colleague from York Centre.

Mr. Bounsall: You are getting quite a workout tonight with two private members’ bills.

Mr. Blundy: I believe he has shown a great deal of foresight and, particularly, he has shown a lot of thought for his fellow human beings in bringing forth this bill.

I speak in favour of the bill as a non-lawyer. I am not going to get into matters of law. I am going to speak from the standpoint of what this bill could do in the way of protecting the ordinary citizen out on the street. Every one of us has seen what has happened before in cases in which, in my opinion and in the opinion of many others, people have been tried and convicted in the press long before they ever came for trial. This has been done long before they ever get to court. Some of these people have been proven to be guilty, but some have been proven to be innocent. The effect this has had on each of them has been the same.

We all know people who have lost their job, their family, their position in the community, their assets and everything from having all this publicity about an offence to which they have not yet pleaded guilty or been found guilty. For the protection of the ordinary man, the ordinary citizen, we ought to support this bill.

Another thing that I have thought of in my mind is that in some of the more bizarre or very unusual cases the reports are carried in the various media for weeks and weeks. I’ve often wondered how they could ever pick a jury of 12 people who could honestly say they had not formed an opinion in their minds already from what they had read in the paper, seen on television, or heard on the radio. This is a thing that ought to be thought about.

I’ll bet you two cents, Mr. Speaker, that they will have a tough time finding a jury to try Jeremy Thorpe. This case has been before the media of the world for months now, but the man has not yet come up for his trial. I’m sure that most of us have already formed in our mind some kind of an opinion on the innocence or guilt in that case.

A lot of people will say, and some have said to me, “What about the freedom of the press and the media?” I am the last person to say anything should be done to keep the media from covering events to do with politics, our way of life, our community, our corporations, our unions -- anything. They can talk about that. But when you get down to talking about one individual and one problem in his life that individual may have or may not have been involved in, then I think we have to weigh the freedoms that we stand for.

Are we going to opt for freedom of the individual to support his civil rights, opt to support the individual in the eyes of his peers until such time as it is shown that view is uncalled for, or are we going to opt for the freedom of the newspapers and television and so forth to sell their newspapers or sell their programs on the back of what is possibly an innocent citizen? When I have to weigh the taking away of those freedoms, I have to opt to support the individual to see that he is given his civil rights in this life. If he is innocent, then he will have benefited by our view. If he is guilty, then nothing we have said or done here tonight is going to change the situation; he is guilty and he will be sentenced for whatever he has done.

Much good can be achieved, in my view, for the individual in our society by ordering the press not to report all the supposed evidence and so forth before the trial. We have much to gain by supporting this bill and supporting the individual in our society.

I am interested in a letter received from the Criminal Lawyers’ Association in which they quite obviously are supporting the bill put forth this evening by the member for York Centre. I note they are willing to go even further than this bill. They would extend it from the beginning of the trial to the end of the trial -- to the rendering of a verdict. The bill which has been proposed here tonight by the member for York Centre does not go that far. I believe it is a reasonable bill and I believe it can help to save the lives of many people whose lives would otherwise be so severely damaged that in some cases they have committed suicide, they have had to flee the country and so on, even though they were innocent.

With those few thoughts from a political person, a person who is interested in the people and from someone with no legal training, I would like to submit my case.

Mr. Lawlor: I would say to the member for Sarnia, that’s not what the bill is about. I think his colleague will say one doesn’t suppress the details of substance and procedure prior to trial. One is only concerned about somebody’s name being disclosed and their reputation suffering before trial.

Mr. Stong: That is what he is basically saying.

Mr. Lawlor: The only backing the honourable member has out of a very large number of parties, all the way from the Canadian Civil Liberties Association to the British Press Council, to the Ontario Press Council, to the John Howard Society, which are all “agin ya,” are the criminal lawyers.

Mr. Stong: No.

Mr. Lawlor: I have the text of the statements here. He produces the one from the criminal lawyers. What do you think the criminal lawyers are going to say, Mr. Speaker? They defend accused persons. They would be the first ones to say they didn’t want names disclosed to protect their clients. That’s what they’re paid for.

I do want to point this out. They come down and they kind of give some niggling assent to what the member for York Centre contends and they say the objective should be that the individual be protected whether the charge be under provincial or federal laws. This association would prefer to see the protection extended beyond the beginning of the trial to the end of the trial.

In his wishy-washy, fence-sitting, half-articulate way, the member stopped half-way. He goes up to the time of the trial. If he really believes what he says, why shouldn’t the name of the accused be protected to the end of the trial? Then if he’s adjudged guilty, maybe he might consider letting somebody know he has been subject to this. If he’s acquitted then so be it and bless him and he ought not to be pilloried. Maybe in his seven precious moments -- I hope it’s moments -- he will tell me just why he stops in midstream and drowns.

Mr. Stong: Five minutes.

Mr. Lawlor: They find the bill defective on another score, as there may be occasions where an individual might wish to highlight police harassment or an unjust prosecution. They would appreciate an amendment in committee, which of course it will never get to, to change the whole bill and make it something sensible. I think, by and large, the present law is adequate to the intent and need to this. In preliminary inquiries, the first step in a criminal process, he’s completely protected under the terms of the Criminal Code sections 467(g) and 465(j) where the court can exclude witnesses, exclude all the press, exclude everybody from the courtroom and proceed with the case in desirable circumstances. Surely, that’s adequate protection.

In jury trials, the jury may be sequestered, sealed off from publicity so it won’t be affected in this particular way. There are instances where this has happened, particularly in the United States. Remember the case of Dr. Samuel Sheppard, who was greatly prejudiced by a press, a scandalous press.

There are things called defamatory libel. There are charges and methods of attacking the press on these things. If they bring people under a shadow in this particular way these methods should be ventured upon rather than venturing upon a new mode of procedure which has hidden defects and can lead -- shall I say it? -- to Star Chamber proceedings in the court. Take Jeremy Thorpe. Take Jeremy.

An hon. member: You take him, we don’t want him.

Mr. Stong: He hasn’t even been tried yet and everybody says, “You take him.” This bill is necessary.

An hon. member: The good Liberal.

Mr. Lawlor: Nevertheless, he’s holding himself up for election. I make no judgement on the man. I trust he’s not guilty. He has had an outstanding career; he’s a very brilliant and witty man. It pains me to see him pilloried in this way, but, surely, he has been accused of a fairly serious matter and he’s running in an election.

I think the public has a right to know. They may make their own judgements on this. Under this particular bill, they would not. It would be all suppressed. It would all be hidden and, Mr. Speaker, you could hold yourself out as holding one set of opinions when you’re under criminal charges with respect to the exact contrary. Take Haldeman, Ehrlichman, Lee Harvey Oswald, Jack Ruby, any number of people who, under this kind of legislation would be protected ab initio. That is not desirable. The public, in most circumstances, has the right to know throughout the whole proceedings, not just when one of the parties begins to introduce evidence at the trial.

[10:00]

I agree with the Attorney General of Ontario. This legislation is unconstitutional in any event. We have the provisions under the Criminal Code; if I have a moment, I’ll read one, section 442:

“Any proceeding against an accused that is a corporation or who appears to be 16 years of age or more shall be held in open court, but where the presiding judge, magistrate or justice, as the case may be, is of the opinion that it is in the interest of public morals, the maintenance of order or the proper administration of justice to exclude all or any members of the public from the courtroom for all or any part of the proceedings, he may so order.” So what does my friend want?

Mr. Stong: That doesn’t exclude publication either.

Mr. Lawlor: No. But it goes a long way to protecting the reputation and position of the accused. In any event, they have set out what their protection is. The field is occupied, and we can’t move in with our own legislation in an area that has already been pre-empted by the federal government; it’s a well-known doctrine in criminal law.

This matter should be handled by the Ontario Press Council. There has to be a press code. That’s the British solution to the matter. The solution in the American states is to have a deal between the bar and the press; it’s done in Nebraska, in Oregon, in Washington. Half of the states in the United States now have set up codes as between the bar and the press in which they set out the terms, and these are honoured by the judges. Voluntary relationships of that kind are far preferable to the kind of thing the member is putting forward at this time.

Mr. Williams: Mr. Speaker, I appreciate the opportunity to participate in the debate this evening on this particular bill. In so doing I would like to say at the outset that there is one basic fault I find with this bill, and that is simply that it has been too late in coming to this assembly.

Mr. Stong: I agree.

Mr. Williams: It is a matter that should have been brought forward in the form of legislation long before now, and it is unfortunate that the members of this Legislature and its predecessors have not seen fit to enact this type of legislation long before this.

The .principles enunciated by the sponsor of the bill this evening are fundamentally important to our democratic way of life. There can be no greater freedom than that of the individual; it is not only a fundamental right of the individual, but also the fundamental consideration in our free society, that the individual must have his freedoms preserved and protected, and those freedoms include the fundamentally important right of the person’s reputation. Any act or undertaking that would impair, prematurely judge or prejudice the reputation of an individual in this society has to be properly controlled by an orderly and legislative means.

At no time is this type of individual freedom and the vulnerability of the individual greater than when a person has been publicly singled out as having a charge laid against him for some act or alleged criminal act. At no other time in that person’s lifetime can he feel more vulnerable and more devastated from what has happened, and it only contributes to and greatly impairs the rationale of the individual when the whole incident is reported in the news media.

What concerns me is this. I think there has been some distortion of what this bill is about because this evening the member for Scarborough-Ellesmere has wrestled with the two principles he sees in it; the principles of preserving freedom of the press and of ensuring a fair trial. But the whole point of the bill is that it speaks to the pretrial period, not to the trial period. In fact, it doesn’t in any way inhibit the press from reporting the trial period.

Mr. J. Reed: That is the best thing you have ever said in a speech.

Mr. Warner: Now, convince me I am right.

Mr. Williams: I think, if the member for Scarborough-Ellesmere had simply read the bill, he would have understood that it is preventing the news media from prematurely labelling a person as having committed a crime; because the public at large does not always make the distinction, Mr. Speaker, between the fact that a person has been charged but has not yet been convicted. The only way the public can understand that it’s in doubt is when the trial is going on and being reported.

A case in point is the ongoing Lorenz trial. The press has had a field day with it and yet the public understands that the man’s innocence or guilt is still in doubt and is before the courts. On the other hand, when a charge is laid against a person, the public, by and large, does not distinguish between the fact that the person has simply been charged but not yet necessarily found guilty. Sometimes they find a oneness in the two and this is how the reputation of the individual charged is imperilled.

Another case in point is the Demeter trial with which the press had a field day. I understand and I respect the need of the press to report important issues in which the public will be interested. The news media reports sensationalism and they do it well, but it should not be at the expense of the individual’s reputation and it is imperative that the timing be controlled.

There is no suggestion in this bill, Mr. Speaker, that the press be denied the right to report a trial fully, just as they did in the cases I have cited, the Lorenz trial and the Demeter trial, or any other trials that come up. They will have free access to the courts; they will have free opportunity to report every whit of evidence they feel is juicy enough for the public; they will not be curtailed in any way whatsoever.

It is imperative, however, that an individual’s reputation be preserved until he comes to trial, because the time period from when the charge is laid until the trial actually begins may be days, weeks, or months. In the meantime, that person lives in persecution through public exposure in the press. If the members don’t think that reputations, lives and families are destroyed because of this premature publicity, I cite the example of a noted radio columnist and TV personality, one Alan Spraggett. His particular career has been decimated because of the publicity given the charges laid against him.

As recently as this week, Mr. Speaker, on the front page of the Toronto Star it was reported that a well-known developer was charged with bribing a politician. It made the front page; he got his picture in the paper; there was a big news story on page two. It was preceded by a report in the Star two days earlier about the same developer being charged with bribing a municipal councillor. But what adds to the tremendous trauma that individual must be suffering is the way in which it was reported at the time. It just added confusion to the situation because of the lack of information forthcoming when it was reported.

For instance, the story said Chief Bruce Crawford refused to name the politician because his men were still investigating the case. Then the article goes on and says: “He would give no details except to say that the councillor had reported an incident.” So, it left the public guessing.

Obviously, that was the lead article for the big one that came out two days later where the individual was shown coming out of the courtroom with his lawyer. What kind of freedom preserves that man’s reputation when this kind of pretrial publicity is given?

I think that the freedom of the individual is far more important than giving the press a premature opportunity to publicize his or her plight. They will have lots of opportunity when the case comes to trial and that is simply what the sponsor of this bill is asking. That is why I think it is imperative that we support this type of legislation. It is not imperilling the freedom of the press whatsoever. Without this type of legislation, because of the desire of the press to be the first paper to come out with the story, it will continue to imperil people’s reputations when they have yet to be proven guilty of a crime for which only a charge has been laid against them.

We must clearly distinguish what this bill is trying to accomplish. Some speakers this evening have suggested that it is a question of the battle between the freedom of the press and the right to a fair trial. It deals with the pretrial period, and I cannot stress that strongly enough.

I note that all of the speakers this evening have quoted a number of jurists, philosophers and other noted authorities on the subject. I do not intend to do that; I am simply speaking from the point of view as I see it.

The one document I will refer to, which was referred to earlier, is the Criminal Lawyers’ Association letter that was sent to all members of the Legislature. They wanted to take the matter further through the trial period, which was the point the member for Lakeshore spoke to. In that instance, they would be locking out the news media totally until the verdict was rendered.

Mr. Kerrio: Irresponsible.

Mr. Williams: The bill is not suggesting that at all. What really pulls the rug out from under the validity of the criminal lawyers’ submission, however, is the second last paragraph where they want to have it both ways. They say: “As there may be occasions where an individual might wish to highlight police harassment or an unjust prosecution, we would appreciate an amendment in committee to provide that the accused may expressly authorize the publication of his name prior to verdict.”

Mr. Speaker: The honourable member’s time has expired.

Mr. Williams: They cannot have it both ways. We have to preserve the rights of the individual and we cannot make that type of exception. For the reasons I have stated, I support the bill that is presented this evening.

Mr. J. Reed: That is the best speech you have ever made.

Mr. Bradley: Mr. Speaker, I rise in support of the bill presented by the member for York Centre. It is a bill which addresses itself to a problem recognized by those who are vulnerable to the adverse publicity that could be generated by being accused or those who have experienced trial by the media in the past.

We assume in this country that there is innocence until guilt is proven. However, the publication of the identity and the charges against an individual before a trial begins often makes him guilty in the public eye ahead of time. There may be circumstances where he may have been subject to false arrest or where a mistake may have been found that removes the necessity for a trial or charges may be withdrawn because of lack of evidence.

The consequences for the individual and the family have been well outlined by members of this Legislature. They include the family itself suffering in terms of its standing within social groups; the children in the school being subjected to abuse by other children who are making judgements based on the publication of charges and the individual’s name; the unnecessary effect on those in the family who might be ill; the guilt by association that the family feels; attacks of a verbal or physical nature, telephone calls and things of this kind, all of which are suffered unnecessarily if the charges are withdrawn.

The accused himself may face mental and emotional instability, may perhaps contemplate suicide, may face the loss of a job or a chance for promotion, his reputation may he destroyed and he may be unwanted in service organizations and other organizations which he may wish to join.

Those in political life and, I suppose, the clergy, those in business and in union executive positions and others in positions with high profiles would recognize their vulnerability to the judgements made by the publication of their names and the charges against them, while there is no reason to believe at that time that the charges can be substantiated or indeed that the matter will even go to trial.

The member for York Centre has mentioned the safeguards that are necessary and are in place. He has mentioned the existing situation as it relates to juveniles. It seems to me with the support of the Criminal Lawyers’ Association and other members of this Legislature that this bill offers the merit that is deserving of the votes of the members of this Legislature. I very proudly support this bill and think it identifies and will bring about a solution to a problem that exists.

[10:15]

Mr. Stong: Very briefly in rebuttal, I believe the member for Oriole has rebutted as well as I could the remarks made by the member for Scarborough-Ellesmere. He just simply and clearly missed the point. The point does not deal with trial, it deals with pretrial procedures and pretrial matters, and does not affect at all a fair trial.

Of course the press is free to cover a trial because that guarantees not only a fair trial but an open trial and it protects the system of justice and our laws as such. The bill does not deal with anything in that respect.

The member for Carleton-Grenville dealt with those acquitted, but this bill goes beyond those acquitted. It goes to those who are found guilty after a trial of a much lesser but maybe included offence which would not even have been reported if it had been laid initially. It deals with not only those who are acquitted, it also deals with those whose charges are withdrawn prior to trial. We are familiar with the newspaper story recently in Toronto in which a 16-year-old girl was charged with purse-snatching and robbery of a 74-year-old woman who was knocked down and injured. She was charged and publicity followed -- her family suffered even to the extent of a brick through the window. Two weeks later the charge was withdrawn.

That’s the type of individual we’re trying to protect. That’s the type of individual who is paramount. We all have types of information and examples such as that.

This bill does not curtail freedom of information. The press is free to report a factual situation such as an individual charged with trafficking in drugs -- whatever. It can report the factual situation. It cannot identify the individual until his trial commences. That’s simply it.

The member for Carleton-Grenville is concerned about rumour surrounding the matter coming to trial. There are built-in protections in law, as the member for Lakeshore has pointed out. We have defamation of character suits, we have libel and slander suits. They are available already.

The member for Lakeshore talks about self-interest groups and that this bill doesn’t have the support of the media. Perhaps this bill does have the support of the media -- I don’t know how my friend from Lakeshore can make such a blanket statement.

But there are self-interest groups and he takes on the Criminal Lawyers’ Association. The Criminal Lawyers’ Association is a self-interest group and if there was ever a group that ought to deny this bill that is the group, because it thrives on publicity. Lawyers need publicity; the more publicity the case gets, the better it is for the lawyer. The lawyers have taken the opposite stand because they’re in the courtroom daily, defending people, innocent people. We are throwing innocent people to the wind if we follow what the member for Lakeshore says.

The member for Lakeshore also referred to open trial. There is a confusion. The member for Oriole quite clearly designated that this bill does not deal with trial procedures.

The members for Lakeshore and Carleton-Grenville read off the protections built into our law dealing with procedures during trial. Of course, they’re built in. There is no law -- except the Juvenile Delinquents Act which deals with this type of situation in relation to juveniles -- that protects the innocence of the individual before his trial.

The argument of that well-known jurist, Oliver Wendell Holmes, was that it is better that 99 guilty persons are acquitted than one innocent person is convicted. If we adhere to that principle in our law as the basis, then this bill is simply an extension of that principle prior to trial.

Mr. Speaker: Will all honourable members take their seats, please?

FEDERAL-PROVINCIAL RESPONSIBILITIES

Mr. Speaker: Mr. MacBeth has moved resolution 7.

Resolution concurred in.

INNOCENT PERSONS PROTECTION ACT

The House divided on Mr. Stong’s motion for second reading of Bill 28, which was negatived on the following vote:

Ayes

Blundy, Bradley, Campbell, Cunningham, Eakins, Haggerty, Hall, Kerrio, McCague, McGuigan, Miller, G. I., Newman, B., Norton, Pope, Reed, J., Reid, T. P., Stong, Sweeney, Williams.

Nays

Auld, Baetz, Belanger, Bernier, Bounsall, Breaugh, Bryden, Cooke, Cureatz, Davison, M. N., Drea, Edighoffer, Epp, Gregory, Havrot, Johnson, J., Lane, Lawlor, Lupusella, MacBeth, Mackenzie, Maeck, Martel, McCaffrey, McNeil, Newman, W., Philip, Sterling, Taylor, J. A., Turner, Villeneuve, Warner, Watson, Wiseman.

Ayes 19; nays 34.

Hon. Mr. Maeck: I would like to bring the House up to date on what is going to happen in the next week.

Mr. T. P. Reid: In your ministry you don’t know what is going to happen tomorrow.

Hon. Mr. Maeck: I will remember that the next time you come over for a favour.

Mr. T. P. Reid: The last favour you did was to Rainy River and they are Manitobians.

Hon. Mr. Maeck: Pursuant to standing order 13, I wish to indicate the business of the House for tomorrow and next week.

Tomorrow, at 10 o’clock, the House will be in committee of supply considering the estimates of the Ministry of Government Services.

On Monday, April 23: House in committee of supply to finish the estimates of the Ministry of Government Services and begin the estimates of the Ministry of Northern Affairs.

On Tuesday, April 24: legislation in the afternoon; Bills 41 and 25 for second reading; then committee of the whole House on Bills 8, 41 and 25. Then Bill 53 for second reading, if there is still time available.

In the evening: Bill 19 to begin at eight o’clock, then we continue with Bill 53 if it hasn’t been finished before six in the afternoon, followed by Bills 56, 54, 55 and 57, in that order.

On Wednesday, April 25: the resources development committee, administration of justice committee and general government committee may meet in the morning. That hasn’t been cleared up completely. I understand there are still negotiations going on.

On Thursday, April 26: in the afternoon, ballot items numbers seven and eight. In the evening, order number 35 now on the Order Paper, resuming the adjourned debate on the motion for the adoption of the March 29 report of the standing procedural affairs committee regarding the change in order of estimates. Then, we will continue with legislation which hasn’t been finished on Tuesday evening.

On Friday, April 27: budget debate.

The House adjourned at 10:35 p.m.