The Acting Chairperson (Mr. Helwer): Would the Committee of Supply please come to order. This section of the Committee of Supply will be dealing with the Estimates of the Department of Justice. Would the minister's staff now please enter the Chamber.

Mr. Gord Mackintosh (St. Johns): I understand the minister was going to provide the committee with a report from his department today and presumably with his recollections regarding the gang hotline. I wonder if that report can now be distributed.

Hon. Vic Toews (Minister of Justice and Attorney General): I have some comments to make in that respect. During Estimates last week, the member for St. Johns asked a number of questions concerning the Street Peace gang and youth contact line. I would like to take an opportunity to provide the committee with information provided to me by my department concerning the background to and the present status of this initiative.

The Street Peace line was announced on June 28, 1994. The line was implemented in response to a number of recommendations from a summit that had been held several months earlier as a means of opening communications between police and youth and parents and the public on issues related to youth violence.

I am advised, Mr. Chairperson, that the arrangements at that time were that the province would pay for the line and the Winnipeg Police Service would answer and respond to calls where appropriate. That arrangement was entirely consistent with the role that the police and the Crown play in our criminal justice system. As I indicated last week, it is the police, in fact, who are charged with the enforcement of our laws and criminal investigation under those laws, and it is the Department of Justice, even though the role of the Department of Justice has evolved somewhat, to support the police in these types of matters.

In this particular case, the Crown was funding a law enforcement program that had been recommended as a result of a summit, and the police were in their own way responding to public concerns and actually then carrying out the law enforcement program at the street level.

There was a discussion in respect of the prefix to be used for the gang line number, and in preparation for the implementation of this initiative, there appeared to be two options that seemed obvious. The 9-8-6 prefix is the prefix that is used by the Winnipeg Police Service, and that was then considered one option, and the second involved the 9-4-5 prefix that the government of Manitoba uses.

It was discovered at that time that the 9-8-6 prefix was not available, and so the 9-4-5 prefix was chosen. This provided a number that was identifiable with the program. Also, in respect of this process, it was seen to be administratively more convenient for the department simply to requisition the line to be installed at the Public Safety Building and pay for it, as opposed to reimbursing the Police Service for the costs that they would bear in maintaining that line.

So, again, for that very simple set of reasons, the 9-4-5 prefix was chosen. The agreement that was reached between the province and the Winnipeg Police Service would be that the Youth Division of the Winnipeg Police Service was to handle the calls, and if no officer was available to answer the call, electronic voice mail was to be used. So from that point on, the Police Service assumed responsibility for administering the line and the Province of Manitoba, through the Department of Justice, assumed the role of funder of the line and in that respect, then, I think fairly consistent with what the province should be doing and, generally speaking, what a police service should be doing.

Mr. Chair, it was in late April or early May of this year that the director of Public Safety conducted a review of telephone accounts for the Public Safety Branch. At that time, this particular line with the 9-4-5 prefix came to his attention, and it appeared to be unconnected to the immediate activities or, that is, the direct activities of his branch. He then asked the staff members to look into the particular line and to report back to him.

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As a result of the inquiries made by staff, conversations took place with the Winnipeg Police Service, and it was agreed that the Public Safety Branch would at that point take over the responsibility of answering the line.

There was some question as to the future of the particular line. I note that the police chief has made certain comments in the media about the line. Indeed, I understand from staff that the Police Service at that time were of the view that the establishment of other programs such as the gang co-ordinator's office and the further establishment of the street gang unit in recent years had diminished the need for the continuance of the separate street gang line.

As a result of discussions then between my department and the Winnipeg Police Service, a staff member of the Public Safety Branch was given the access code to the voice mail, and on or about May 10, called to retrieve any messages on the line. What the staff member did at that time, as I have indicated on other occasions, the staff member simply had the messages played back and at that time discovered, I understand, that the voice mail would automatically repeat the name of the person who had called and hung up, if that person was on the 9-4-5 system and if, as part of their voice box set up, the person had recorded his or her name into that voice mail system.

Indeed, this was confirmed by staff to me after this matter was raised in the House by the member for St. Johns (Mr. Mackintosh). Again, to my knowledge, only one 9-4-5 line was identified in this passive manner.

By early May, therefore, departmental staff, Mr. Chair, had determined that the management of the line was inconsistent with the understanding that the Winnipeg Police Service would answer the calls placed to the line and would respond where appropriate. Also, staff concluded that this situation should be brought to my attention as I could be questioned publicly either in the Legislature or during the Estimates process. Also, as a consequence, a meeting was scheduled between the associate deputy Attorney General, I believe it was of Prosecutions, and the chief of police to discuss this issue.

Starting around the middle of May of 1999, I began to be briefed by the various divisions in my department in preparation for the Estimates process. As I recall, and staff appear to bear out, it was on May 25, 1999, I was briefed by the senior staff from the Criminal Justice Division, which includes the Public Safety Branch, on a wide range of issues including the issue related to the street gang line. I was advised that in reviewing the calls that had been placed that over an extended period of time, it was noted that there were various types of calls that had been placed. Some callers left messages; some left a number; and some simply hung up.

In that context, I was advised that a number of calls had been made from the legislative telephone number listed for the member for St. Johns (Mr. Mackintosh), and in each of those instances no message was left and the caller simply hung up. As I previously mentioned, the name of the purported caller was simply produced by the playback of the message, and as far as I am aware, and staff has advised me, only one number was identified in this fashion.

As I have indicated earlier, there was no tracing of calls. The information concerning the identify of callers on the 9-4-5 system simply emerged as a result of the voice mail system and it was only in respect of the one number, I am advised, that this occurred.

The member for St. Johns (Mr. Mackintosh) has also raised questions concerning the number of calls that were placed on this line. I would simply say that on May 10, 1999, on or about that date, the staff member retrieved all of the messages then in existence, and from that date onward the Public Safety Branch took responsibility for clearing the line. During the course of this retrieval process, the staff member did not have to take any additional steps to retrieve the message other than to listen to all of the messages that were placed.

On June 18, 1999, special arrangements were made to replace the earlier message manager system with a call answer service offered by MTS that does not provide information on any caller, even one from a 9-4-5 number. From that date on, therefore, certainly between May 10 and June 18 and the situation that had existed that enabled a member of the Public Safety Branch to retrieve these numbers, this line did not have any capacity subsequent to that June 18 date to identify any caller unless that caller took specific steps to identify himself or herself and wanted a call back or some information.

I can also indicate, Mr. Chairperson, that the staff are continuing to have discussions with the police and others to determine the best course of action to follow with respect to this line. As I stated earlier in the course of my remarks here, the police have raised questions about the utility of this line program, given the other programs that have emerged during the past few years which were not in place when this particular line was first initiated. I understand that this matter is expected to be resolved fairly shortly. My preference, of course, is that the department not run this type of program, as it is better left to the police or an agency with specific expertise in running this type of a program.

Pending that resolution, however, Mr. Chairperson, all safeguards are in place, I am advised, to ensure that this situation will not reoccur in the future, and I can indicate that certain negotiations are going on in that regard.

Those, then, are my comments and I trust that the member has what he needs.

Mr. Mackintosh: I did not hear, although the minister may have made this information known, but how many calls had been logged when the system was checked on May 10?

Mr. Toews: Well, I am not going to indicate any further calls other than the one call that has already been identified, and all I can indicate is that on May 10 my staff undertook the responsibility of clearing the line of any calls that were present.

Mr. Mackintosh: Well, I think in the interest of the public discussion on the future of this line and the history of this line that we get an understanding as to what use has been made of it, because I note that the line has not been promoted since the last election, I do not believe, and the minister can correct me I am wrong, but I do not believe the wallet cards have continued to be distributed or the posters or the stickers in the last few years at least.

So I am just wondering, other than the calls that the minister says came from my 9-4-5 line, how many calls, and I think we are looking at a period beginning in December up to May. In other words, does the minister have a view or a sense as to how well used this line has become over the last half year or so?

Mr. Toews: I think I can answer that in a general way. The police have indicated their concern about the utility of this particular line and have, in fact, noted that it was not utilized as much in the last period of time as perhaps had originally been anticipated. It is for those reasons that we are having a discussion with not only the Winnipeg Police Service but another agency who could perhaps roll this into a larger program and more effectively use taxpayers' dollars.

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Mr. Mackintosh: Can the minister explain why the Department of Justice took over the operation of this line on or about May 10? Who called for that? Was it the police or the department?

Mr. Toews: Well, as I indicated earlier in my statement, I think the initial review was initiated by my department, and it essentially began as more of a financial review looking at the particular line and the usage that it was being put to. At that time, a staff member contacted the Winnipeg Police Service, and, as a result of that contact, a general discussion ensued in respect to the utilization of the line.

Mr. Mackintosh: Well, was there concern on the part of the department about any delay in retrieving messages, and is that the reason that the department took the line over?

Mr. Toews: I think it is set out in my statement that it was departmental staff that determined that the management of the line was inconsistent with the understanding that we had that the Winnipeg Police Service would be maintaining that line. Yes, that was a concern that staff raised and why, ultimately, the line was taken over by the Public Safety Branch.

Mr. Mackintosh: If that is the reason then, I ask the minister why it would take two weeks and a question in Question Period to answer a call from an intern with our caucus?

Mr. Toews: I can indicate that I am advised by staff that there was a process that if there was any emergency answer required, there was a specific number given to call in the case of an emergency.

All I can indicate is that if there was not any emergency in getting back to the caller, then that call would have been answered. I know that the staffperson who was responsible for answering the calls at certain times of the day was attending to other business out of province, I believe it was, and then returned back and then cleared all the calls that were of a nonemergency basis.

Mr. Mackintosh: I am still trying to understand the explanation that the voice mail system automatically, to use the word of the minister, repeated the name of the person who called. I have a 9-4-5 number, as the minister does, obviously, and when I retrieve my messages, even after I am away for some time, if there is a hang-up, it is simply recorded as a click. There is no name attached to that information. It was my understanding, and I did not know this until this issue arose, that the only way you can identify the hang-up is by pressing the number five on the telephone keyboard and at that time it will tell you the person who called and the time of the call. Will the minister confirm that, in fact, it is not automatic. You have to actually go out of your way and press the number five.

Mr. Toews: That is not my understanding of the system. There are two scenarios where that occurs in a passive way. Firstly, if the phone number has been on there for more than a period of four days, and again that can be set up in each of these voice mails, at the end of the fourth day, if the member has the same on his voice mail, if somebody phones him and let us say he–I do not want to get too tied up in detail here, but I know that on my line, if I put a message into storage archives, that will come up at a certain period of time, so as soon as you pick up the phone, that number automatically comes up as soon as you access your voice mail. It will tell you the message and where the message comes from.

So that is one scenario where that happens without the pressing of the number five. I believe the other scenario is if the mailbox is full. The number will automatically come up, and, if it is on that 9-4-5 voice mail system, it would identify itself in a passive way without pushing that five button. That is what I am advised. I do not know about the second one. I am certainly familiar with the first scenario.

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Mr. Mackintosh: To the best of the minister's recollection, would he not become aware that there was a delay in retrieving these messages from the voice mail system of the gang line?

Mr. Toews: As indicated in my statement, it was on May 25 that I was briefed by senior staff on this particular issue. So I would imagine that it was around that time period. I cannot recall any other time that that issue was raised prior to that time.

The reason I think it was the 25th is that I knew that there was a meeting set up with the police down the road and that that was an issue that was going to be dealt with by the police and my staff in discussions between them. So it would have been in around that period of time.

Mr. Mackintosh: What I find unusual about that is that CBC 24 Hours did a story on the gang hotline in late March or early April which I am aware of because I was in contact with the reporter and, in fact, had told the station that there were some reported delays, and I question how the minister could not have been made aware of that, particularly given that it was reported in the clip that Justice officials were asked for an explanation on that.

Was the minister not briefed or was he not aware of that exposé which would be a couple of months, roughly, before he said he was briefed on this problem?

Mr. Toews: Well, all I can indicate is what I have been told by the staff, that this issue came to the attention of staff at the end of April, and they brought it forward to my attention. I believe from the end of April, when this review took place, to the time that it was brought up at the briefing meeting on May 25, that there were discussions between the police and the staff.

If staff knew of it before that time, how much further before May 25, I assume that they felt that the matter was in hand in terms of their dealing with it and that it did not require my direction at that time.

Mr. Mackintosh: The other day we were asking as to whether there were records of what directions were given for the operation of this line when it began, and the minister I think was under the impression that documents had been exchanged. I wonder now if the minister has any documents that were exchanged between his department and the police in regard to the parameters, the operation protocol regarding the gang hotline.

Mr. Toews: I only have in my possession a copy of a letter from February of 1994. I believe it is February. It is dated 94-02-03. It is addressed to the then assistant deputy attorney general Mr. Whitley, and it states: Dear Sir, Re: gang hotline. I have discussed this with my Youth Division, and Inspector Lou Spado and Sergeant Gary Shewchuk will be contacting you to discuss further details. As I indicated to you on 94-01-31, I am in support of the proposal.

I understand that there may be another document that outlines the understanding then that both parties arrived at, but this seems to reference a series of discussions that were held in respect of this particular issue. But today I only have this particular document. I will have my staff produce any other documents that might be relevant to either the establishment of the line or the terms of reference governing the utilization of the line.

Mr. Mackintosh: Could the minister tell us when the government ceased promotion and advertising of this line, both by reference to expenditures on promotional materials and actual distribution of materials that had been produced earlier on?

Mr. Toews: I will see if I can find the material that deals with expenditures that the department would have made in regards to the promotion of that particular line. My understanding is that once the police took it over the actual promotions were done by the police.

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Mr. Mackintosh: Is the minister aware of any promotions done by the police?

Mr. Toews: Well, that is the information that I will be getting the member.

Mr. Mackintosh: At the May 25 meeting when the minister said he was briefed on this line, was it at that meeting that staff passed on to the minister a list of my calls?

Mr. Toews: That particular meeting, staff passed on the fact that the member had made calls. I was told eight calls, but I did not see a list of any calls that he made.

Mr. Mackintosh: What was the response then of the minister when receiving that information?

Mr. Toews: As I recall, the conversation did not dwell very long on that issue at all. In fact, it focused on the fact that there was going to be a meeting with the police as to the future of that line. I think the entire matter was brought to my attention because the police had been maintaining that line. We took over the line, so the issue was what the future of that line was going to be. I cannot recall exactly the date. There was going to be a meeting with the assistant deputy minister and the police chief fairly shortly, so it was going to be dealt with within a brief period of time. At that time, on May 25, a meeting was scheduled with the chief of police for May 27.

Mr. Mackintosh: Had the minister become aware that calls had been made from my office before May 25?

Mr. Toews: Not to the best of my knowledge. I believe that was the first time that it would have been mentioned by staff. I cannot recall any other situation where that would have arisen. I would also like to emphasize that that was one of many issues that were raised in the course of a briefing for the Estimates process, and I do not believe that there was even any written briefing paper at that time on this issue.

In fact, what the briefing for Estimates actually involves is sitting down and asking for more information in this area or having the staff prepare more information in that area. Also, if issues that may be of concern to me are raised, then there is, as in this case, some quick discussion in respect of, well, where is that matter proceeding, what is happening now. That was my recollection. When I became aware of this, when my staff actually raised that, I recall it was so close to the meeting with the police, and that is what satisfied me that it would be appropriate to resolve the issue generally there.

I cannot say when staff and the level of staff was aware of that earlier. I know that obviously around May 10 when one of my staff members retrieved that information, that staff member would have known that fact, and indeed that would have been passed on, but, as far as I am aware, between May 10 and May 25, I do not believe that issue was raised in my presence.

Mr. Mackintosh: What was the response of the minister, though, to receiving this information? Did the minister in any way question the giving of that information or the gathering of that information?

Mr. Toews: At that time I recall the gist of the conversation being that we wanted to resolve this issue with the police and see where the future of this line would go.

Mr. Mackintosh: Well, did anyone in the room, in the briefing not question how appropriate it was that a caller's identity was known, particularly in political circles, to what was to be a confidential line?

Mr. Toews: All I can say is that the matter was brought to my attention because staff believed that this could potentially be a public issue, and so the issue of the particular identification of that line was indeed secondary to the entire resolution of the problem of the line coming back to the Department of Justice to be administered by the Department of Justice. In view of the fact that I believed this would be dealt with in an expeditious way with the police chief and with the Winnipeg Police Service, certainly in my mind I felt that the way to resolve the problem was to ensure that there was some permanent future handling of this particular line.

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Mr. Mackintosh: How could the minister explain that, when he received information about a caller to a confidential gang line, he did not question where that information came from, did not question the appropriateness of it, just continued his business as usual? Did the minister congratulate his staff for good political intelligence? Can the minister possibly explain how he did not ask a question then as to how it was that a name was known and that this was being done on a so-called confidential line?

Mr. Toews: All I can indicate is that my concern was that there was a problem with maintenance and the handling of the line, and that needed to be resolved. That was my focus. I did not specifically extricate that aspect of the issue out of the entire problem with the line.

Mr. Mackintosh: What has the minister done since this matter has been raised to bring home to officials in his department that what was done here was inappropriate and wrong?

Mr. Toews: In respect of the issue of staff bringing the problem to my attention and this particular aspect of the issue to my attention, they made a judgment that they believe that this was important to come to my knowledge. In respect of the issue of the line itself, we have taken a number of steps, not only discussions with the police, not only the continued maintenance of the line, not only establishing a line or overcoming this technical issue but also trying to find what the future of this particular line should be. As I have indicated already in my answers and as the police chief has indicated publicly in reading reports, reading the Free Press, I believe it was, the chief had raised questions about the continued utility of the line. So that needs to be addressed, and staff is, in fact, addressing that.

Mr. Mackintosh: There is a Broadcast News radio clip from June 18. In there it says that the minister also admits two of his workers breached The Civil Service Act by giving the list of Mackintosh's calls. I am just wondering if the minister can confirm whether or not he had made such a statement and, if so, what he meant by that.

Mr. Toews: I had indicated in the course of an interview that I would further consider that issue as to whether or not there had been any inappropriateness in respect of staff providing me with that information. As a result of conversations I have had with my deputy in that respect, I have come to the conclusion that the action was not inappropriate in the sense of motivated by some improper motive on the part of staff. I think the staff did it in order to bring to my attention a matter that could have public ramifications, and therefore they brought it to my attention.

So having had that discussion with the deputy, that is my position on this matter.

Mr. Chairperson: I just advise the minister. Let me know before you are going to do your consultation, so I can shut the mike off so that you do not have to cover it up.

Mr. Mackintosh: Would the minister explain after having admitted that The Civil Service Act was breached, according to his determination, that it does not matter then? Can the minister explain that conclusion by him?

Mr. Toews: The member is referring to a specific statement that he attributes to me, and perhaps he could table that, so that I could consider the specific statement he is attributing to me.

Mr. Mackintosh: I can read it in. I only have one copy. I can read it into the record. The broadcast news clip says: Toews is facing political heat over the line because he revealed it is not anonymous as advertised. It goes on to say: he also admits two of his workers breached The Civil Service Act by giving the list of Mackintosh's calls, end of the clip.

So my question is if he is determined that the act has been breached, can he explain now his decision?

Mr. Toews: Well, as I recall that, I do not believe that was something that I categorically stated. I stated that was something that I would consider, and I believe that is how I left it. I noted that the member did not quote something I had said. I do not know why the reporter would have reported in that way specifically, other than I note that there was a discussion as to whether or not what I did was inappropriate, and I indicated yes. I should not have disclosed that fact in the Legislature. Then the conversation proceeded to, well, what about the staff? Did they do something inappropriate? I think that is where we had the discussion about whether or not there was anything inappropriate done by the staff.

But, as indicated on further reflection and discussions of this matter with my deputy, it is my opinion that this is not a matter that I need consider in the course of The Civil Service Act. If this is something that needs to be examined further by the deputy for one reason or another, then the deputy should be doing that rather than I.

The reason why I think that I would not have categorically stated that there was a breach of act is I know that the minister is not responsible for making those determinations. That is something that the Civil Service Commission does. As a general rule, whenever there are allegations that staff have done anything inappropriate, that is an administrative matter and an operational matter that is then left to the deputy to consider whether action should be taken.

I know that personally I have a long-standing practice of not getting involved in any disciplinary matter where the issue is simply one that relates to the day-to-day activities of staff members.

Mr. Mackintosh: The basis of my question was, indeed, how can a minister simply impugn his workers when the minister himself apparently accepted and did not question the receipt of the information about a person calling the line? Similarly, I question how the minister can make a determination about a breach of The Civil Service Act.

Has the minister or his department referred the matter to the Civil Service Commission and given what the minister says were more accurately his comments to the reporter?

Mr. Toews: The member, in fact, is correct. That certainly confirms the way I usually handle these types of matters. So I have not referred anything, and I understand from the deputy that he does not see any basis for referring anything to the Civil Service Commission.

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Mr. Mackintosh: On May 25, when the minister said he was briefed, at that time or at any time after did he receive in writing a briefing note about the calls that were made to the gang line?

Mr. Toews: I have been provided with advice on this matter from time to time. Some it has been oral, some of it has been written. One of the things that I would not do though is to review any list that contained any of the calls regarding this matter. When I needed that type of information, and I recall one specific time when I needed that information, I obtained that information through the deputy's office.

Mr. Mackintosh: Could the minister confirm whether or not he received a briefing note from the director of Public Safety which passed along information about my calls to the line?

Mr. Toews: There was one briefing note that I saw that had the member's name on it. Part of that briefing note was produced and tabled in this House in respect of the issue of the 9-4-5 number, how that number is automatically downloaded. That I tabled in the House. The preface of that briefing note mentioned the member's name. That I believe was dated on or about June 17, so I would have received it either on June 17 or June 18.

Mr. Mackintosh: The Winnipeg Free Press reports on June 18 that the director of Public Safety had said to the reporter, and I am quoting: "the record of calls from Mackintosh's office surfaced when officials were doing an audit to gauge the effectiveness of the line. He said the information was passed along to Toews in a briefing note simply to illustrate the technical problem."

Can the minister comment on that, because that seems to be inconsistent with the information he just gave that that is only referencing a memo of June 17? This indicates a memo that gave the information originally to the minister a week earlier.

Mr. Toews: That is a memo, in fact, that I will not read because of the schedule that it had attached to it in terms of the names that were set out on that. That outlines, as I understand it, the number of people who made calls, and indeed names of people. So that is not a memo that I wish to familiarize myself with, because it was not necessary.

Mr. Mackintosh: Now the minister is talking about another document. He used the word "names"; in other words, the plural. Is the minister saying that there are names on that document of callers other than myself?

Mr. Toews: As I have indicated earlier, the person who was asked by staff to download that information did, in fact, download that information onto a list and then made the appropriate return calls. The only name that was not identified by an act of identification by the person was the member, I am advised, in respect of that 9-4-5 issue, but the other names are held under the direction of the deputy minister and are not a list that I would see. They will be continued to be dealt with in a confidential manner.

Indeed, when the member authorized me to release the names or the times that he had called or his office had called through the 9-4-5 number, I obtained that information by contacting the deputy. I was able to write down those from a list that was recited to me. So the only names that I am aware of are the phone calls made. I believe it was a list of seven times that the member specifically authorized me to release and therefore I got access to that number.

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Mr. Mackintosh: I do not understand. There seems to be an inconsistency. If the director of Public Safety had passed on a memo that attached these names, the minister surely received the list of names of those who called and left messages or otherwise. Would the minister explain that?

Mr. Toews: I am aware of a memo that contains a list. It is not a list that I reviewed, and I will not review it.

Mr. Mackintosh: Who has reviewed it? Obviously the person who recorded the information. I understand then the director of Public Safety has reviewed that. I wonder who else in the department has reviewed that list.

Mr. Toews: It is something that is maintained under the deputy minister and the deputy minister has that. I do not have that list to review. I know that the deputy minister has, in fact, reviewed that particular list.

Mr. Mackintosh: So will the minister then confirm that there are two memos that exist? First of all, there was the director of Public Safety's earlier note with the information about my calls and, second of all, there is the note which a part of it was made public regarding the 9-4-5 access. Is that understanding correct?

Mr. Toews: I have a note on the gang line which I have previously referenced. There is a more extensive briefing note in the possession of the deputy minister. There was an oral communication made in the meeting of May 25 in respect of calls from your line.

Mr. Mackintosh: Does the minister not see anything wrong with names of callers to a confidential gang hotline being distributed as high up as the deputy minister at least of the Department of Justice and being given out at meetings where political strategy regarding Estimates, for example, is being discussed?

Mr. Toews: These documents were not distributed at a briefing meeting.

Mr. Mackintosh: I then have a question. Did not anyone in any capacity in the Justice department, including in his office, question the appropriateness of passing around information about callers to a confidential gang hotline?

Mr. Toews: These briefing notes were not being passed around within the department; they were brought forward. This particular one that I have in front of me is dated June 17 and brought through the appropriate channel to my attention.

Mr. Mackintosh: What is the date on the earlier memo?

Mr. Toews: There is another advisory note dated June 16 of this year.

Mr. Mackintosh: Was there not an earlier memo which revealed to the minister the number of calls made from my office to the gang line on which the minister based his information in this House in Question Period a week earlier?

Mr. Toews: That was the information that I received at the meeting of May 25, and there were no other names mentioned at that time.

Mr. Mackintosh: When the minister talks about the downloading of information from the gang hotline, was the information all recorded necessarily by someone in either handwriting or physically writing out or typing out the information?

Mr. Toews: I am not aware of how the work was done.

Mr. Mackintosh: When this matter was raised, the minister responded by saying that the 9-4-5 tracing was done to prevent–and the words used were "internal abuse." I am wondering, if we accept that version, when the minister became concerned or suspicious about internal abuse.

Mr. Toews: Just in that respect, the issue of internal abuse was raised in the course of a press conference shortly after Question Period. This was one suggestion. Whether that was generated directly by me or one of the press members present, I indicated that, to my recollection, that was a possibility, but that I would be checking out these matters and would be confirming it. In fact, I held another press conference later on that afternoon after it was confirmed that that was not the reason why this was known, and the explanation was provided to me as to why staff believe that this information was obtained.

Mr. Mackintosh: Is the minister now denying that he said the 9-4-5 numbers were traced to prevent internal abuse?

Mr. Toews: I do not believe I have ever indicated that we traced numbers. If I ever used that word, I believe I corrected myself very quickly because we did not trace numbers. I know that in the course of a discussion with the press after Question Period, that was one suggestion that was made, but as I indicated to the press at that time, I would be looking into the matter and getting back to them and that is exactly what I did.

Mr. Mackintosh: Is the minister saying that he did not explain the information about my calls to the line as a result of a system designed to prevent or identify internal abuse?

Mr. Toews: The member is quoting from something. Perhaps he could show me the statements he is quoting from so that I can take a look at exactly what was said and confirm that.

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Mr. Mackintosh: The Winnipeg Sun of June 19, on page 7, and the paragraph reads: "Toews originally said the hotline was set up to trace 9-4-5 numbers to prevent 'internal abuse.'"

Is the minister denying that he said that?

Mr. Toews: I am not denying that those words were, in fact, used in the course of a discussion with a number of newspaper reporters, but I do not believe, and to the best of my recollection, that I said that was why it was set up. I know that was a conversation that I had with a number of reporters, and that I would get back and confirm the reason why that was set up. The reason I know that certainly was my intent was I went back and I asked my staff about what is the explanation on that, and then came out very shortly with the piece of that briefing note. I believe it was at that time, if not the next day, that that document was produced. It may not have been produced at that particular afternoon, but it was certainly as a result of discussions that I had with staff.

Mr. Mackintosh: Did the minister then come back and publicly state that this was all due and the knowledge of my calls were the result of a technical glitch?

Mr. Toews: I believe those were my words. I explained how these calls could have been identified in a passive way, and that was the explanation provided to me by staff.

Mr. Mackintosh: How could the minister say the numbers of callers could be known in a passive way when he stood up in this Legislature, after having this information for some time? What is passive about standing up in the Legislature and announcing the name of a caller to a confidential gang line?

Mr. Toews: I think my answers have been given in that respect.

Mr. Mackintosh: I also asked how the minister can move as he did to an explanation that this was all due to a technical glitch. Today we are told in detail that the matter was put forward, first of all, to the minister, and then used because it was an issue that may arise in Estimates. In other words, he first said it was internal abuse, which suggested it was a purposeful exercise; second of all, a technical glitch which was an error; and then third of all, it was indeed purposeful, it was for political reasons. What version are we to accept?

Mr. Toews: I think the member is deliberately twisting my words. There is no question about him deliberately twisting my words. He knows why this matter first came up and the course of events. I have explained that very clearly, and I think I have been quite consistent in what I have stated here.

Mr. Mackintosh: In the course of the discussions between his staff and police, was the issue canvassed as to whether the 9-4-5 tracing had been occurring for some time? Was there any indication to staff that this was an ongoing concern that predates the May 10 exercise by a member of his staff?

Mr. Toews: The issue, and this is where the member is twisting the facts, that was raised with me at the end of April was the maintenance of the line. That was the issue that was raised with me at that time. As far as I know and I am advised, the department has no knowledge of any other calls or the operation of that line prior to its getting involved on or about May 10 of this year.

Mr. Mackintosh: Did the minister just say that he was advised in late April or had discussions about the maintenance of the gang line at that time?

Mr. Toews: I am sorry, the staff became involved in April. I am sorry, the staff became involved in April and, as a result, took over the maintenance of that on May 10. The issue that was raised with me on May 25, I might have said April. Did I say April 25 in answer to a prior question? But the issue that was raised with me on May 25 was the issue regarding the maintenance of the line. My staff, I am advised, has no knowledge of the calls that were not on that line on May 10, and subsequent to May 10 any new calls that would have come on, they would have learned about. As I indicated previously at the briefing session of May 25, staff advised me of these concerns.

Mr. Mackintosh: Can the minister tell us where physically this phone is located?

Mr. Toews: My staff accesses the voice mail here electronically through its offices and through its password, and we do not access any particular phone where those–well, we do access a particular phone line, but we do not deal with any specific phone equipment at the city of Winnipeg. Our contact is here through our offices where we electronically access it.

Mr. Mackintosh: Two questions follow from that. First of all, is he saying that there actually is no physical phone? Is it simply a phone line that is accessed by putting a password?

Mr. Toews: We, as a department, that is, the department does not have a particular phone in this respect. All the department does is access the line. That line is with the City of Winnipeg.

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Mr. Mackintosh: Before May 10, can the minister tell us where the telephone existed or where access to the line was retrieved? Was it at the gang unit or the youth unit or where?

Mr. Toews: I cannot say with certainty where the actual phone was located.

Mr. Mackintosh: The minister then says that the phone is now located here. Can you explain where he is referring to?

Mr. Toews: I have not indicated that the phone is located here. I have indicated we access it electronically from provincial government offices. The phone line is still a City of Winnipeg phone line. We do not have the capability of plugging a phone into that line. That remains with the City of Winnipeg as far as I know.

The Acting Chairperson (Mrs. Driedger): The honourable minister does not have a point of order. It is a dispute on the facts.

Mr. Mackintosh: What I was getting at is where are the calls being received at or being accessed. When he says "here," does he mean in the Legislative Building? Does he mean in the office of the Director of Public Safety or one of the staff or where? Physically, where is that retrieval taking place?

Mr. Toews: I do not want to get into the details of where that is being accessed, but I can indicate that it is within the department as opposed to the City of Winnipeg.

Mr. Mackintosh: Is it being retrieved from the minister's office? Let us start there.

Mr. Toews: No.

Mr. Mackintosh: What division within the department is now responsible for this? I understand that the Public Safety office was doing this. I am wondering if that is where it is at now.

Mr. Toews: I can indicate that the responsibility for handling this issue is with the Department of Public Safety, but where it is actually taking place, I am not prepared to say.

Mr. Mackintosh: Could the minister explain: is there a security issue there? Is it because they are protecting a person or what? I appreciate he does not have to get into detail, but could he just explain why he does not want to release the information as to where the retrieval is taking place from?

Mr. Toews: It is the same reason why I would not release the information regarding the whereabouts of any particular list or the whereabouts of where this is located. It is a security issue.

Mr. Mackintosh: I may have some further questions on this one. I wanted to return now to where we left off last day. We were talking about the arguments against an expedited constitutional reference about the antigang laws that are now being relied on in the gang trial that will be starting, I understand, in late summer or fall and requires that the minister has confirmed to a certain extent a great degree of financing.

He said one of the reasons that it was thought best to proceed in the usual course with the constitutional matter heard before the trial is that it is best not to have these kinds of references dealt within a factual vacuum, to use his words. Can the minister confirm or deny that such a factual vacuum will nonetheless take place given that the hearings on the constitutional question, if there is a motion filed, will take place before the trial in any event, and therefore will be in a factual vacuum unless there are affidavits that are filed?

Mr. Toews: Let me explain that issue because it is quite an important one. Courts traditionally have been very concerned about the lack of a factual basis for proceeding with a reference. That is why traditionally in the British Commonwealth system they have not liked the idea of these types of references. Even if you look at the old Queen's Bench rules, they were very reluctant to provide any type of an opinion unless, for example, there was a specific contract that you could refer to, some kind of a document that you could refer to. Similarly, with these references, they are, in many respects, advisory in nature. They are binding upon courts, but they are advisory in nature. Any way that they can be distinguished by fact, the matters are so in fact distinguished.

I guess the best example that I can point out to, and, unfortunately, I cannot off the top of my mind remember the jurisdictions, but there were two jurisdictions that brought forward almost identical legislation. One was, I believe it was Quebec, and the other one was Ontario. It was re: residential tenancies act. The Supreme Court of Canada dealt with these matters on a reference as I recall.

In one case, and I am just going by memory here, because it has been many, many years since I have read those cases, they held the legislation to be unconstitutional ultra vires the province. In the other context, the court held the legislation to be valid, and it dealt with the whole issue of residential tenancies and what power could be granted to a provincial tribunal in addressing the issue of residential tenancies. That, then, creates an anomaly: one province where the court has said it is unconstitutional, and in the same federation we have another province where it is constitutionally entitled to do that. In fact, when Manitoba drafted its legislation in respect of its Residential Tenancies Act and the administrative apparatus that was created, both those decisions, I understand, were, of necessity, carefully considered.

As I am aware, I do not think in Manitoba that issue has, in fact, gone through the courts to the same level that it has in two of the other provinces. So that is I think one of the most glaring examples of why one should not proceed in a factual vacuum. Indeed, on occasion, I understand, I am not again aware of any specific citation, but courts of appeal have declined to answer referenced questions where it would be ill advised to do so.

Now, in respect of this particular matter, I understand that it is proceeding in August and that there will be a number of voir dires related to evidentiary matters which will then be beneficial for the discussion of the constitutional question. The problem with any new legislation and the ability to strike it down as unconstitutional has always been a grave concern. Although the courts traditionally award or grant or deem something to have a presumption of constitutionality, they are much less inclined to stray from a clear consideration of the matter before it where there is a factual underpinning.

I know that one of the cases that keeps on being referenced time and time again was not a matter that was a reference, but, in fact, the court dealt with it in much the same way references are dealt with and, in the result, because it speculated on certain possible courses of action where charges could be laid, declared a particular provision unconstitutional.

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The case that I am referring to dealt with the provision in our, I do not know if it is called the Narcotics Control Act anymore. It is called something else now. Under the Narcotics Control Act, there used to be a provision which made a seven-year minimum for the transportation of narcotics into Canada. So in that particular case that came before the courts, the court was faced with a situation where someone was transporting a huge quantity of drugs. I cannot remember whether it was marijuana or cocaine, but it was a very large quantity of drugs. The argument that was raised in that particular case then was that the Supreme Court of Canada should declare the minimum sentence of seven years to be unconstitutional. I believe it was the Smith case and it did, in fact, involve marijuana or cannabis.

The court, then, and this was the early days of the Charter, then proceeded on an analysis and determined, yes, in fact, in a case where someone would have simply brought one small marijuana cigarette across the border, technically that person could be charged and convicted of an offence which would then bring a minimum seven-year penalty. The court, then, on that basis, on that sort of hypothetical situation, struck down the minimum sentence.

I think that, if the court had that to do over again, it would probably now look at the situation and say, well, in this context, that would appear to be cruel and unusual punishment and grant a constitutional exemption from that kind of a penalty, much like, if the member recalls, the case of Latimer in Saskatchewan where I believe it was the Queen's Bench who determined that, even though the person was convicted of second-degree murder and the minimum sentence would be 10 years, the court, because of the situation at the court, felt a lesser sentence warranted, deemed it to be, I believe, cruel and unusual punishment, and gave a much lesser sentence than the statutory minimum.

That is an example of where the court used this kind of constitutional exemption, whether one agrees or not, in that particular case, whether that utilization of that doctrine was appropriate. I think, as the court matures in its handling of constitutional cases, and by that I mean not to suggest that the court is immature, but certainly in terms of constitutional experience in Charter of Rights and Freedoms matters, the court does have a very limited amount of experience. I think philosophies and doctrines change as things go along.

But I am getting back to the danger of proceeding on hypothetical kinds of situation. There is a real danger, as demonstrated by the Smith case and the seven-year minimum, where one tries to find an unusual circumstance and say, well, if this would have happened, then this would have been the result, and on that basis, strike down the entire legislation.

I think if the prosecutors and the constitutional experts, who, I am not about to second-guess, because I am not going to instruct them to say, well, you know, when I was the director of Constitutional Law this is the way we would have handled it. I think that would be pretty presumptuous and arrogant on my part to suggest how they should handle their case because they are the professionals. It is just like members coming to this House and suggesting that a doctor should have proceeded in an operation one way or another because we have to respect the professional judgment like doctors in the area that they are trained. Similarly, we have to respect the professional judgment of the prosecutors, the constitutional law experts, and indeed the court generally in terms of determining what is the most appropriate way in dealing with this.

So, in this particular situation, I think that what has been determined is an ability to avoid the dangers of judicial activism, avoid the utilization of hypothetical situations which may give a ruling that does not take into account the real mischief that a statute was directed at. So, in this particular case, looking at it as a stranger to the case, as an objective viewer of the case, not necessarily knowing much of the detail about the case, I look at it and say, well, if they are going to proceed to do certain voir dires, which then gives a factual basis for this evidence and the constitutional question, it would appear to me, that we avoid the dangers of speculation on hypothetical situations and also avoid the dangers of unwarranted judicial activism.

The case then can proceed because ultimately I think the legislation is good legislation. Whether there need to be more changes made to make it more administratively and procedurally user friendly, if I can use that term, I do not know. But we are so new in this particular area, I would not want to see prosecutors take a chance of losing that legislation as a tool simply by saying we could save a small amount of money and then have a huge public policy issue to deal with because a court has declared it as unconstitutional. I think we need to ensure that we give the prosecution staff the latitude, the court the latitude to deal with it in a particular context.

I also want to note that this case, and the issue is before the courts, so therefore it is very important that neither of us go too far in discussing exactly what the court should rule or should not rule. That, of course, I leave totally up to the court. The court may for one reason or another come to a different conclusion and change the process. Certainly my comments were not in any way intended to influence the court in that respect. Simply these are my comments as an observer who has spent some time defending legislation and especially where this legislation addresses a perceived need by parliament and it was supported to a great extent by provinces across Canada.

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With those words, I can indicate why then I do not think it is a bad thing that our prosecutors have chosen to proceed in the way that they have by ensuring that there is some kind of a basis, a factual basis, in the context of a particular case. Even admitting though that not all of the case will be before the court, but certain facts will be there before the court. There is also the possibility in matters like this where people can agree to noncontentious matters which may reflect on the constitutionality of a particular statute. So, again, those are other ways that they can enhance a full judicial consideration of the legislation and avoid some of the concerns that were raised in both the Smith case and to some extent, in the Latimer case.

Mr. Mackintosh: What were the options that the minister considered other than the purchase and reconstruction of the facility on Chevrier Boulevard to accommodate the gang trial? I wonder if you can list those other locations that were considered and the information, including the likely costs of those locations.

Mr. Toews: That was a determination made by Government Services and not by me.

Mr. Mackintosh: Was the minister or the Department of Justice not consulted by the Department of Government Services in terms of what kind of facility was needed and what amenities and construction issues were relevant?

Mr. Toews: Yes, the Department of Justice was a part of that particular process in terms of the input of what was needed, what was required and worked together with Government Services to supply that background information to Government Services.

Mr. Mackintosh: Can the minister advise what other options were brought to his attention in terms of locations?

Mr. Toews: I know that there were a number of options considered by Government Services. I was advised of that in a very general way. The role of the Department of Justice was to identify clearly its needs and to ensure that any choice that Government Services made reflected those needs. I think that has continued throughout this entire process including the consultation now by the Department of Justice with the defence bar, generally with the court, and with others to ensure that the facility, as it was being renovated, met the needs of all parties concerned in a reasonable fashion.

Let us put it this way. I do know of alternatives that were mentioned to me but not in any significant way that would even allow me to comment in any way about them here. That is clearly a matter for the Minister of Government Services (Mr. Pitura) to answer to.

Mr. Mackintosh: I know there has been some public discussion as to why an armed forces base for example was not used for this purpose rather than the construction of the new facility. I wonder if the minister can address himself to that kind of option.

Mr. Toews: All I can indicate is that there were a number of facilities that were considered. I only know of them in a very general way and as to why each one was considered inappropriate. This was seen as the most appropriate one. I am not in a position to answer that. That is for the Department of Government Services to answer.

Mr. Mackintosh: I know and I am sure the minister has been questioned both publicly and otherwise as to why an armed forces base, for example, did not fit the bill. Can he tell us what problems were identified associated with that kind of a facility?

Mr. Toews: No, I cannot.

Mr. Mackintosh: In the last several weeks, there was a decision of the Supreme Court of Canada regarding same-sex couples. I see the media and others have characterized it as regarding the rights of same-sex couples. I think more appropriately and I think the minister has more adequately identified the decision as respecting same-sex responsibilities.

I am just wondering if the minister has reviewed the Manitoba statutes and determined what legislative changes are required and Manitoba's result of that. We recognize, of course, that it was regarding an Ontario statute and wondering what ramification it has on Manitoba's statutes. Is it confined to The Family Maintenance Act, or are there other statutes that are affected in the minister's view?

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Mr. Toews: The particular case being referenced is, I believe, M. v. H. That particular case dealt with the Ontario family maintenance act or at least its equivalent of The Family Maintenance Act. I had an occasion to read the judgment, a very lengthy judgment, and I cannot say that I read it particularly carefully. I did try to at least read the introductory portions of the case as well as the majority judgment, and some other comments from some of the other judgments.

It was made very, very clear by the court that the case did not deal with marriage. It did not deal with the institution of marriage. I think that is something that seems to have been lost in the press and otherwise. Indeed, from my reading of the case, and that remains to be confirmed with staff–I hope that my understanding of the case is correct–it essentially creates or compels government to pass legislation that makes a member or a partner in a same-sex relationship financially responsible to an economically dependent partner in the same way that opposite-sex, common-law unions' members are responsible.

This particular case does not extend the concept of marriage to homosexual relationships. What it simply does is say: if you as a province pass legislation protecting unmarried people in a conjugal relationship outside of marriage, you cannot differentiate between opposite sex or same sex. It creates responsibilities now on same-sex partners to their economically dependent partner. In the context of common-law relationships, opposite-sex relationships, I think it is well acknowledged that people who enter into these relationships and then create an economic dependency by one person on the other and more so in the context of children that are produced in the context of that relationship, those partners have a responsibility to each other and to the children to ensure that they do not become wards of the state.

Similarly, the Supreme Court of Canada said a same-sex partner cannot simply abandon and should not be able to abandon a person who is then economically dependent for one reason or another and walk away from the relationship, and say: I am not going to pay anything, let the state take care of it. The Supreme Court of Canada said no, if you are going to do that for opposite-sex partners, you are also required to do it for same-sex partners. What the Supreme Court of Canada said then to the Ontario government, and the case is only binding in Ontario, clearly the principle is applicable to other provinces if their legislation is similar.

What they have said is that if legislation is not passed in Ontario granting the same responsibilities to same-sex partners within, I believe, it is a period of six months and I do not know whether that is from the date of an order or the date of the judgment or the like, I do not know, but it is in a six-month period, then the entire regime governing relationships outside of traditional marriage is struck down. It is not extended to same-sex partners, those responsibilities. The responsibility of opposite-sex partners is struck down. So Ontario then, if it wishes to maintain that for opposite-sex partners, it must similarly extend it to same-sex relationships.

Whatever it does, the marriage and the responsibility of people within a marriage is still maintained separate and apart from that. In reading the particular judgment, a very interesting question arose in my mind at least, and I might just indicate that it does not take much to interest me, but here in Canada we use the concept of common-law marriages in a very different way from some states and, in fact, many states, and I do not quite understand why the difference is.

In many states, a common-law marriage is, in fact, a marriage. It is not different from a traditional marriage where you are married in a church or by a justice of the peace or the like. I do not know whether it was in recognition of the early frontier days when people could not have access to churches or justices of the peace, and perhaps a consideration that they did not want children of these unions of people living in these isolated areas to be considered illegitimate, what many states have said is that if you hold yourself out to be married that you treat each other as husband and wife, you, in fact, are legally married. You are legally married. So if you enter into a relationship in these states, I believe Colorado is one, you enter into a relationship in that state, you hold yourself out to be husband and wife. You cannot simply walk away from that relationship and enter into a new relationship or, in fact, get married in a church, because you would be committing the crime of bigamy.

In fact, a common-law marriage is exactly that. In Canada, we have not had that understanding of what a common-law situation is with opposite-sex spouses. We have not had the same legal implications occurring where somebody abandons a common-law spouse and enters into a new relationship and formalizes that relationship by getting married without getting divorced from the first because it has never been seen as a necessity. So there are some interesting policy questions as to whether or not one could, in fact, assume that common-law marriages are, in fact, marriages that are protected differently than relationships between same-sex partners. That is, I do not believe, an issue that has been discussed by the Supreme Court of Canada in that particular case. But, again, it is an interesting issue.

The Ontario decision that went to the Supreme Court of Canada only says that these benefits and, more importantly, I think, the responsibilities of the one partner to the other where that other partner is economically dependent is a very interesting one in terms of what impact that should have in Manitoba. Again the possibility of raising other arguments or decisions or drafting our legislation differently and still complying with the Supreme Court of Canada is a very open question.

I recall an article, and, of course, these are things that policy people have to consider, by I believe Archbishop Exner, if that is the correct title. I think he is out of British Columbia or that. He indicated, why, and I am paraphrasing him, this preoccupation with the necessity for it having to be a relationship outside of marriage that has to somehow be centred around a sexual relationship. I mean, what business is it of the state in that context? He drew up a very interesting argument. The argument was what about, for example, an elderly mother who lives with a daughter, and the elderly mother has a pension, and the daughter, for one reason or another, is economically dependent upon that mother, and the mother then dies, why should that economically dependent daughter not have the ability to have a pension continue?

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So if I understand Archbishop Exner's argument, if you are looking outside of the institution of marriage, do not look at the issue of whether or not people are involved in a sexual relationship, look at the issue of the economic dependence that has been created over a period of time between two people. In fact, I mean, I can see the situation where, let us say, one brother who has had a government job and a pension but no family other than a mentally handicapped sibling who lives with that brother, and then the brother dies, why should that pension not be given in terms of a survivor to that other person? I think that is a very interesting question. It is a question I have never thought about until I read this argument from this Roman Catholic archbishop.

I think those are the kinds of things that we have to look at as opposed to simply doing a knee-jerk reaction. I know that staff is looking at the issue of The Family Maintenance Act. Although we are not bound by the Supreme Court of Canada's decision directly, clearly there is an issue. We may want to have to deal with it on an interim basis or on a long-term basis which then will involve, I think, very significant policy considerations. It is not something that I particularly want to rush staff on. I do not want to prejudice anyone and their ability to be secure, but I think that, when we are met with these kinds of cases we should not simply accept them as a challenge but also as an appropriate time to consider this whole area, and I think that is essentially what the Archbishop was saying in his article that was drawn to my attention. Very frankly, I do not see–and I know my staff will have to brief me on this entire issue–why we have to limit these benefits to those types of relationships and the responsibility to these types of relationships.

Even when you go into the Criminal Code and the provision of necessaries–and this is something that common law has recognized for hundreds of years and which we adopted when we passed the Criminal Code here in Canada–but the provision of necessaries by one person to another is not simply one that is seen, as I recall it, in the context of a marriage situation. For example, you could not have your elderly mother staying at your home and then feeding her and taking care of her for many years and then simply decide one day that you are going to go on holidays for three weeks and leave your infirm mother, maybe suffering from Alzheimer's, simply to fend for herself in the context of that home. I believe there may well be criminal responsibility that would attach to you where over a period of years someone has come to rely on you like that. I would be surprised if that is not the law, but I have been surprised before. But certainly those kinds of ways of addressing relationships and the responsibility of people who voluntarily choose to enter into certain types of relationships should not simply then be able to walk away from those relationships when someone has a health crisis or an economic crisis without some legal responsibility attaching to the person.

So that is something I think staff will have to consider in the long term, but clearly they have to address the impact of the M. v. H. case and ensure that the government, insofar as necessary, moves in a timely fashion. Again, I have not yet seen–I should not say I have not seen some comments in that respect, but we have not made any determinations as to what is the appropriate policy direction that the province should be moving in. I know that staff has diligently been working on this particular issue.

Mr. Mackintosh: I have correspondence from POINTTS, which represents defendants in the courts of Manitoba. I think they have made a specialty of representing people for certain traffic ticket offences. In that letter, they state that they were informed, apparently by the Law Society of Manitoba in September of 1998, that they were no longer able to represent anyone apparently on any matter in Small Claims Court. The Law Society was to further review the matter, but that has not taken place.

I am just wondering if the minister has been made aware of that ruling and if he has any concerns about that and whether he is looking at any policy changes as a result.

Mr. Toews: I am peripherally aware of this situation. The reason I recall the letter with some interest–I think I received a copy of that letter from the member for St. Johns. I believe that the member for St. Johns either sent me a copy or POINTTS wrote to the Law Society and copied the member for St. Johns and myself. For some reason, I have seen correspondence on that point. I have not been directly involved in this issue nor has my staff been directly involved in this issue, because it does relate to the Law Society, the practice of law, and the independence and governance that surrounds that particular issue.

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I can indicate to the member that quite a number of years ago the similar issue came up. I believe it was with POINTTS. If it was not with POINTTS it was with a similar organization. I will assume for now that it was POINTTS. POINTTS was representing people charged under The Highway Traffic Act and other summary conviction act offences, but I believe primarily it related to The Highway Traffic Act. They were representing them in Provincial Judges Court. The Law Society brought an action or threatened a prosecution or essentially wanted a declaration.

Perhaps, in fact, it was even POINTTS that brought the declaration, or the application for a declaration, to the Court of Queen's Bench. I believe the Queen's Bench judge at the time was now the Chief Justice of Manitoba, Richard Scott, when he was sitting in the Queen's Bench. I believe counsel for the Law Society was Mr. Bill Olson [phonetic]. I cannot recall who represented POINTTS. I know that I represented the government of Manitoba

The issue there was should POINTTS be allowed to represent these individuals. Ultimately, the compromise was achieved after the court ruled that POINTTS was carrying out the practice of law in a way not authorized by The Law Society Act. Subsequent to that ruling, our government, and I believe the present member for Brandon West (Mr. McCrae) was the Attorney General at the time, brought in legislation which then permitted organizations like POINTTS to represent individuals in provincial court in matters where there was no possibility of someone going to jail. That situation exists to this date. In fact, they also, I believe, amended the legislation, or at least set up some kind of a process, by which the issue of governance was addressed that the provincial judges could then report people to the Law Society or some other body to ensure that these people were practising in accordance with acceptable norms, given that they were not lawyers but, in many cases, very effective advocates, having been police officers or others who were very familiar with the ins and outs of The Highway Traffic Act.

Someone mentioned to me that the position of the Law Society in opposing POINTTS appeared to them a little bit dog-in-the-manger; that is, no one was representing these people in highway traffic court. Lawyers who would do it would charge far too much for it to be worth the while of the person charged, and yet when POINTTS would come in and do it at a sort of a cut-rate situation, the Law Society objected to that and flexed the monopoly, essentially, that it has to ensure that appropriately qualified people are representing these persons. I do not take issue with the role of the Law Society. I would not characterize their attitude or their position as dog-in-the-manger. I think they exercised their jurisdiction in a manner consistent with the public interest as they understood it. I think, though, that our government recognized, and ultimately I think the Law Society, and that is why ultimately I think this proceeded. They recognized that representation was called for.

Now, with respect to the situation in Small Claims Court, we essentially have the same issue repeating itself. The Law Society, as I understand it, again has the jurisdiction and the authority to bring proceedings against someone improperly involved in the practice of law. I guess that is what the Law Society's position is that in Small Claims Court, you are, in fact, practising law by representing individuals and that you should, in fact, be a qualified lawyer. The question is: is the ability to access legal help effectively thwarted because of the expense of the legal help? One might argue that is it not better to have someone who has some understanding of the legal process assist these claimants in court, whether it is the defendant or the respondent or the plaintiff, whether they should not have some access that is affordable?

I know that in the past our government has been responsive to this concern. They have amended legislation, and I understood that the Law Society was looking at this particular issue because that is their area of jurisdiction in the same way that government does not want to get into determining who should be practising medicine or not. I think this though is a slightly different situation and provided that concerns like appropriate qualification and appropriate governance, if those two issues are addressed as they were with The Highway Traffic Act, it would leave me with the question: why could not the same kind of arrangement be worked out between the Law Society and organizations like POINTTS?

So although we are not directly involved, nor should we be directly involved, the issue then is what is the Law Society doing about this? Have they come to any particular conclusion on this? If so, is this in the best interests of the administration of justice originally or in the long run?

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It is the same, I guess, in respect of the issue of the Small Claims Courts and hearing officers. I know the Law Reform Commission had recommended that all hearing officers be lawyers with at least five years of experience.

My position has been to date that while it is important to have some hearing officers with a legal background to hear certain types of cases in Small Claims Court, I think that the experience that court clerks, who now sit as hearing officers, can bring to a Small Claims Court often makes them very, very effective hearing officers without having the legal qualification. I would be very reluctant to impose an absolute bar from clerks of our courts who have demonstrated competence, who have gained experience, from sitting as hearing officers. From a policy point of view, I similarly have to ask myself the question: well, why should not appropriately experienced and qualified people, even if they are not members of the Law Society, represent people in Small Claims Court if the issue of governance is addressed? I understand it was addressed in the context of The Highway Traffic Act.

I do not know if I mentioned it or not, but the POINTTS people cannot represent people who might be in danger of going to jail. You would have to be a qualified lawyer to represent these people in that context.

So, with those comments, all I can say is I will have staff, and perhaps one of my staff members will make a note of that, inquire as to the status of this issue with the Law Society and see whether our department in a general way can be of assistance to them.

Just wondering, Mr. Chair, if I could have a break for about five minutes.

Mr. Chairperson: Can we have a recess for five? Okay.

________

Mr. Daryl Reid (Transcona): I would like to ask the minister a question. I know he has some experience in his previous ministry with the Department of Labour, so I am sure he is familiar with that. With respect to the prosecutions under The Workplace Safety and Health Act, can the minister tell me: does he have someone within his Department of Justice now that would have experience, or is it perhaps assigned to handle all of the Workplace Safety and Health prosecutions that may go to the courts?

Mr. Toews: I just had to confer with my staff there. I know that for many, many years, we had a particular individual who was in charge of provincial prosecutions, that is, prosecutions under provincial statutes. Staff was just advising me of the fact that we do have another person now who is responsible for those provincial prosecutions, came originally out of a private practice background and has been doing these prosecutions now for approximately two years.

So, yes, we do have a person who does provincial prosecutions under provincial statutes.

Mr. Reid: Can the minister tell me, the cases that would fall under The Workplace Safety and Health Act for recommendations for charges to be laid through the Ministry of Labour, Workplace Safety and Health Branch, is that prosecutor assigned specifically to all of those cases? Can the minister also share with us the name of the individual that would be prosecuting any of those cases that would come forward?

Mr. Toews: I was just trying to get the sequence down. The Department of Labour and Workplace Safety and Health, in many respects, acts as an enforcement agency. They are not the prosecutor per se. It is much like the relationship between the police and prosecutors that exists between the Department of Labour and the prosecutor in this particular case. The lawyer, who I understand is Mary Goska, is the prosecutor. She would then perform a role vis-a-vis the Workplace Safety and Health Branch or Labour, similar to the prosecutors having a role vis-a-vis the police.

Now, it is not necessary for her to authorize a charge. In many cases, and this goes back to my experience as acting for the Department of Labour and Workplace Safety and Health many years ago now, I ended in 1985, but as the civil legal lawyer assigned to the Department of Labour and Workplace Safety and Health, we would often discuss issues. Sometimes the investigator would make a decision on proceeding under a specific act and lay the charge and proceed, and then it would go to the criminal prosecutions branch. The criminal prosecutor–this Ms. Goska, does not do all of the cases–would then make the determination as to whether the case should proceed or not.

In many situations, the prosecutor looks at the facts and says: I cannot prove the case here, and it will have to end there. That is the right of the prosecutor to do that and to say that. In other cases, the prosecutor will be consulted by the investigators as to what charges can be laid. They will conference on that in the same way that police and prosecutors do, and the prosecutor will then give advice as to whether or not a certain charge can be laid on the evidence that is there or whether or not more evidence should be obtained or give other legal directions.

Generally speaking, Ms. Goska, then, does the consultation, does the prosecutions, but I do not believe she does all the cases. For example, in some of the rural areas, just because of the numbers, either a prosecutor will be brought in from Winnipeg on a specific case or a local prosecutor will handle the provincial prosecution. That is not unlike it is done in any other situation.

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Mr. Reid: So I take it then because this individual has been, I think you said, two years within the department, is not assigned to every single case, we do not have a special prosecutor per se to handle all of the Workplace Safety and Health charges that may be laid before the courts. This Mary Goska, that you have referenced, and I thank you for providing the name for me, can you tell me, because you have indicated that the individual has been, I think, in the department for two years, what training protocols do you have in place for this individual or for other individuals that may be handling similar cases? Do they attend any conferences involving Workplace Safety and Health matters? Can you provide some background for me? Because this individual, as you said, has only been here a short period of time, I am looking for some direction that you can provide with respect to her experience that she has in these matters as well.

Mr. Toews: I do not know enough about her background and why she was assigned to that particular situation and those particular prosecutions. I know that I can get the dates and how long she has been there and what extra training they get. I know the prosecutors go to conferences generally, and that when you undertake a prosecution in any specific area, it is important to know some of the background, and that is why you have to deal quite closely with Workplace Safety and Health. In fact, many times I found that preparing a case for any particular department, it involved a very intensive training program just in terms of interviewing the witnesses and speaking to the witnesses and becoming familiar with the concept.

So the level of training, the level of experience and the level of skills that the prosecutor brings will vary from person to person, but, generally speaking, I think the prosecutors have been doing a good job.

We have traditionally in the department recognized a distinction between provincial prosecutions, that is, under provincial statutes and assigned prosecutors to that area, and those prosecutors then work very closely with the Legal Services people. For example, when I was counsel for the Department of Labour and Workplace Safety and Health, I would work very closely with Mr. Murray Conklin who was the prosecutor at that time in charge of provincial prosecutions. So I would, because of the expertise that I had acquired over the years as counsel to the department, be able to provide Mr. Conklin with some background, assistance, and follow-up where it was required or where he requested it. I became in many ways a conduit into the department.

Now, someone like Mr. Conklin also would have just direct access to all the investigators and often did it in that way. In cases where he needed assistance in constitutional cases, Mr. Conklin was and is a very independent prosecutor, and although he relied on constitutional lawyers, for example, for some of the background information, many of the cases he argued because he felt confident that he was able to do that.

It is, I guess, to a great extent a matter of how comfortable a lawyer feels in dealing with any particular case and, of course, always subject to the supervision of the assistant deputy minister and the director. But I will see what type of background and experience she has, conferences that she may have attended or others may have attended, and provide you with that background, and perhaps expand on some of the comments I have already made.

Mr. Reid: I understand that the minister might not know specifically what would be on the resume for the individual that would have gone to his department, and perhaps staff would have made the decision with respect to hiring this individual. But I guess the more important question here, and I look to the minister to come back to me or to my colleague, our Justice critic, with the information with respect to the training and experience of this individual, but also, more importantly, what the ministry plans are with respect to training and providing further upgrading of skills necessary to prosecute these type of matters.

What plans did the department have for this individual, and perhaps other individuals as the minister has indicated that do handle these cases from time to time, as he indicated, more likely in the rural areas of the province? What type of training protocol do you have in place for these people as a part of your budget here this year and perhaps in past years?

Mr. Toews: Without getting into too much detail in that area, one thing I can indicate is that I do not get involved in any of the hiring decisions for prosecutors or any staff in the department, but I can indicate that, for example, very recently in constitutional law, a particular individual was hired, by the name of Heather Leonoff.

Heather Leonoff is a constitutional lawyer in her own right. She has done many, many cases involving constitutional cases in a criminal context and in other contexts. Now, she was specifically hired in the Constitutional Law branch to do constitutional work and, knowing of her reputation and the cases that she has been involved in, I would not anticipate that one would need to send her to Constitutional Law 101, so to speak, in order to sharpen her skills. She is a person who, on her own, would be able to take on most constitutional challenges that the government of Manitoba faces in this province, and just by reading cases on a daily basis would acquire the necessary knowledge and skills.

So, again, in that kind of a situation and the very highly technical and specialized area that she would be in, there is great experience already available. If we brought other individuals into the Constitutional Law Branch, for example, I recall when I was the director of Constitutional Law, we brought in a couple of prosecutors over a period of time who were very skilled prosecutors in rural areas. We wanted to develop skills in these prosecutors so that they could handle the cases.

One of them was Lawrence McInnes from Brandon, who came in and worked in my branch for about four or five months. Now, a very skilled prosecutor, indeed I think he received his Q.C. in the last year or so. He also, within a short period of time, when he was working for me, went to the Supreme Court of Canada on a case involving minimum sentences. I believe it was a case where the Supreme Court of Canada talked about or was considering whether a seven-day minimum sentence was cruel and unusual punishment. I do not think that he had even been in any constitutional case prior to his going to the Supreme Court, but he obviously had the Supreme Court experience, he had the trial experience and he was a very quick study.

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Similarly, another prosecutor came into that area, Brian Wilford, and again acquired skills by working with the other lawyers.

So whether it is through the Crown attorneys conferences that these individuals go to, whether it is through other areas, it is a continuous learning experience. One does not, as a professional, simply say: I have my call to the bar and now I am qualified to do whatever I want. I find that most of these professionals, indeed all of the ones I know, exercise their skills appropriately. Certainly we do training conferences and send staff to specialized courses when they are available.

In respect of this particular individual, I do not know whether she comes from a background where she would have a lot of experience or whether it was necessary in the context of the cases that she is doing.

I know that within a very short period of time, one can acquire skills that are easily transferable from one area to another, especially when you are doing provincial prosecutions. I am not suggesting that the same knowledge is there when you go from highway traffic to Workplace Safety and Health, but I would suggest that, for example, someone doing environmental prosecutions finds the style of the prosecution, the types of witnesses, the expert evidence necessary to be very similar to each other and can make that transfer relatively quickly.

Also, I might point out that in terms of the expertise that our lawyers develop by working in specific areas is unparalleled virtually anywhere in the province. They have these skills. They acquire these skills by virtue of their day-in, day-out practice in these areas. In some respects training conferences are essential or may be viewed as essential where there is a radical change in the law that requires that but, generally speaking, much of the experience and qualification is gained on a day-to-day basis mentoring with others.

Just in that context, I think it is important to note that in our department we have established what we call the general counsels, and that is essentially their task. Their task is to mentor junior lawyers and not so junior lawyers who require assistance in litigation.

So I know just very recently a Bob Morrison, who is a member of our department and doing very, very good work, became a general counsel as a result of a very extensive interview process, not simply made up of people from my department, which alone would be, I think, a good basis for doing it, but also outsiders such as members of the Law Society and Bar Association, I believe. Members of the Law Society in this case were Dave Frayer and Eleanor Dawson, who recommended him as the general counsel along with staff. So here we have essentially created a mentor system where these lawyers can go to, if not a day-to-day basis, on a regular basis, consult with these people, the expertise that they have. You look at an individual like Bob Gosman, I am sorry–Morrison, Bob Morrison. Gosman is now with the federal Department of Justice, another fine product of our department. But a person like Mr. Morrison is, in fact, invaluable in assisting junior lawyers and others to ensure that they understand exactly what is required.

When I look in the area of constitutional law, many of the cases that we used to do, we used to virtually consult on a daily basis with some of the big cases that we had and get the benefit of the expertise that each of the members of that department had. I assume that that sharing of skills and information still continues on, but having said that, I will look further and see if I can provide additional material for the member.

Mr. Reid: The minister references, and I think if I can quote him accurately, he said that the individual who is prosecuting or acting as a prosecutor for these cases is supposed to be a very technical or specialized area in which that she is working. Can you tell me what directives or guidelines have you provided as direction to this individual or these individuals that are acting as prosecutors in Workplace Safety and Health matters? Can you give me a breakdown of the number of cases a year that you might handle in respect to those types of prosecutions, and what the breakdown would be for Ms. Goska, and perhaps other prosecutors that you have that would be acting on these matters?

Mr. Toews: If that information is available I can get that. I am not going to put my staff through trying to marshal all this if it takes days and days of their time. What I will say is that I do not provide the prosecutors with any directions. That is done by Deputy Minister Downe [phonetic], and generally speaking by the assistant deputy minister responsible for Prosecutions. For example, the bail policy that we have here in Manitoba was one that was developed by the prosecutors in terms of violence or gang-related crimes. The prosecutors came up with that policy in conjunction with senior management, and I believe that particular policy went out under the signature of Mr. Finlayson, the assistant director of Prosecutions. That is essentially a policy that the prosecutors then can consider in governing their actions.

Having said that, of course, I want to also emphasize that all of these prosecutors are independent law officers in respect of exercising their legal judgment, and, yes, they are expected to follow policy. They should only be deviating from it in exceptional circumstances. Usually, I would say in virtually all cases, they would be consulting with the assistant deputy minister or a senior person in their particular branch. Generally speaking, a policy that has been established by the prosecutors for the prosecutors is not something that I would be directly involved in.

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Certainly, I will express concerns from time to time to the prosecutors about certain issues. I usually do that through the deputy and indicate that I have a particular concern in this area, what are we doing, is it necessary to develop a policy. Sometimes these policies develop almost on a parallel basis between what I as minister am doing on a political and statutory level with what the department is doing. For example, the policy that has been recently developed in respect of drinking and driving where death results was a very deliberate policy established by the Prosecutions branch in conjunction with the deputy minister. It is certainly consistent with the messages that we as a government have been trying to send out and, indeed, certainly the deputy's involvement in that process I would expect has been influenced in some part by the comments and concerns that I have brought to his attention in that regard.

I think it is important for a minister not to be involved in any specific prosecution, but it certainly would be appropriate for the minister to express concerns about a specific area and see whether we can do things better or differently as circumstances warrant. In answer to your question, I have not sent out any directives to prosecutors that I can recall in the last two and a half years that I would have sat down and said: this is what prosecutors are supposed to do. Those would have all been coming out of the assistant deputy minister's office or the deputy minister's office. Each prosecutor, I believe, has access to all policies that the department is currently undertaking or governs their actions. As the deputy has indicated to me, all of our prosecution policies are, in fact, public.

Mr. Reid: Perhaps I narrowed my focus too much when I said: what directives has the minister given? It should have been more appropriate for me to ask about the directives given by the department to the prosecutors that would be acting on behalf of the public on Workplace Safety and Health prosecutions? That would be the more appropriate question to ask.

I am concerned here that there does not seem to be a clearer understanding of what this individual does. It does not appear to be any direction that is given here. There does not seem to be any known training provided for the individual from the comments that I have heard here in the last 40 minutes of questions and answers. There does not appear to be any knowledge of the experience of the individual. There does not appear to any knowledge of the caseload. What is known of the individual and the work that this individual does on behalf of the public in prosecuting Workplace Safety and Health cases? I know I have raised this matter with the minister when he was Minister of Labour. I had dealt with this–

Mr. Toews: I think the member knew that I prefaced my comments by saying: I would get that material to him. I know what he is doing. He is making a speech to run out the clock so I will not have the chance to respond, and that is what I am objecting to.

Mr. Chairperson: Order, please. The honourable minister did not have a point of order. It is clearly a dispute over the facts.

Mr. Reid: I am raising this because it has been a matter of concern of mine for a number of years. I looked back at some of the cases that the Department of Justice has prosecuted for charges or recommendations for charges that have come forward from the Department of Labour, the Workplace Safety and Health Branch. I think back to the Poulin's case, where 11 of the 14 charges were plea bargained away. I do not know if that was a direction that was given by Workplace Safety and Health or if that was internal to the prosecutor that is involved. It leads me to my questions that are here today, because I want to learn more about how the prosecutor works in matters involving this. I want to know how it functions there so that I can have a clearer understanding of the direction that is provided by the department to the individuals that have been supposedly prosecuting these cases.

I have asked these questions of the Minister of Labour (Mr. Radcliffe) just recently in the Department of Labour Estimates. The Ministry of Labour indicates that you have a special prosecutor who handles all of the Workplace Safety and Health cases. Now I am hearing here from the Minister of Justice today, well, you do not have a special prosecutor. You have one who deals with some of the cases and others who handle cases in the rural area, so you do not have an individual who specifically is handling all of the cases which would, if you had, lead me to conclude that perhaps there is some expertise there.

That is why I am asking the questions with respect to the training of the individual, with the respect to the caseload, to find out how much experience the person is gaining on the job through the prosecution of these matters and whether or not the department is continuing to provide training skills necessary to allow for effective representation of the public interest in prosecuting these matters. That is the context of my questions, and that is why I am here trying to find out more about the process here. I appreciate if the minister says his department will search out the information and get back to us.

I understand that there are questions we pose from time to time that do not have all of that information readily available here in the Chamber. I understand that. That is not a problem, but I do ask that, when the department does have the opportunity, hopefully in the very near future, they would provide us with that information, so that I might have a better understanding or clearer understanding of the role that Mary Goska plays in these matters and perhaps the other prosecutors that the minister has referenced as well. That is why I am looking for some information with respect to these matters. Perhaps the minister would want to comment on when we might expect to have that information come back to us with respect to Mary Goska and the other prosecutors.

Mr. Toews: I appreciate the question from the member. I do want to state that I think it is rather unfair to the prosecutor whom I named, now to leave the suggestion out there publicly that this prosecutor somehow does less than her job and is less than qualified to do what she is supposed to do. That really bothers me. I think the member, and maybe it is just the way he approached this subject, could have waited until I brought this information. I am going to continue my answer next date, and I want to, though, deal with that issue. I will go next date policy by policy by policy, and I will read them into the record, because I think it is very, very important that we do so.

Every scrap of information that my department can get me on some of these issues, I am going to read them into the record because this is an issue related to the professionalism of this particular individual. I do not want it to be left on the record that, firstly, she is less than capable of doing the job that she is doing, and somehow implying that she has been involved in some inappropriate plea bargain. I want to make sure that her reputation in that respect is not sullied improperly. Secondly, to suggest that the department puts forward prosecutors in those situations concerns me, and so I will continue this answer tomorrow.

Mr. Chairperson: The hour being six o'clock, committee rise.

Call in the Speaker.

Mr. Deputy Speaker (Marcel Laurendeau): The hour being six o'clock, this House is now adjourned and stands adjourned until tomorrow (Tuesday) at 1:30 p.m.