4th-36th Committee of Supply-Justice

Hon. James McCrae (Government House Leader): Madam Speaker, would there be a disposition to waive private members' hour today?

Madam Speaker: Is there leave to waive private members' hour?

An Honourable Member: No.

Madam Speaker: No. Leave has been denied.

As previously agreed, the House will reconvene in Committee of Supply.

Mr. Chairperson (Gerry McAlpine): Order, please. Will the Committee of Supply please come to order. This afternoon the committee will be resuming consideration of the Estimates of the Department of Justice. When the committee last sat, it had been considering 1.(b)(1) on page 95 of the Estimates book.

Mr. Gord Mackintosh (St. Johns): Just to pick up where we left off, the minister I think was responding to the question of how many vacancies are on the Provincial Court once Ms. Everett and Mr. Wyant are officially appointed.

Hon. Vic Toews (Minister of Justice and Attorney General): Mr. Chair, the issue of whether we have too many or too little judges depends upon whom you talk to. There is not a fixed contingency of judges, and by and large the assessment is made in the consideration of a number of variables.

Mr. David Faurschou, Acting Chairperson, in the Chair

I think some of the variables that are considered when determining the appropriate number of judges require an analysis of things like the number of offences brought to court, and that again is a difficult issue because there are issues such as: Are they highway traffic offences? Are they Liquor Control Act offences? Are they Criminal Code offences? Are they youth offences? All of these matters require different resources.

The issue also involves a consideration of whether or not diversion is an alternative in respect of dealing with these courts. Are there community-based justice services that are being introduced or that have been introduced that affect the volume of matters that are dealt with by the police and which then the police utilize rather than referring something to the courts? The issue of what kind of hearings they are. It could be an offence but it could also be a bail hearing and bail hearings traditionally take a few minutes for an experienced Crown attorney to make submissions and to consider the issues involved. So one could look at a Criminal Code impaired driving trial which might take some bit of time, and then the other issue is, well, can that be equated with a bail hearing? And clearly not. The one deals with substantive legal matters and the other ones deal with allegations.

Again, an issue that might affect the numbers of judges that we need are the number of violent offences before the court. Clearly some violent cases are more difficult to prosecute than others, although I would say that many technical offences that are, not because they are only technically offences, but rather they are very technical in their ability to be proven, take a lot of time. Impaired driving and especially the .08 does take an awful lot of time. So, as we see success with some of our other programs in reducing the number of trials in those technical areas such as impaired driving and more legally simpler matters are dealt with, that could again affect how many judges we require.

Again, the other issues are there are the effects of innovative approaches to managing caseloads in the court and the use of judicial officers such as magistrates, and so we have docket management, custody co-ordination and magistrate's court. For example, if we look at our northern justice strategy, we have a magistrate doing many of the preliminary things that an entire court party used to do, and this has resulted in the judge being able to focus on the very contentious issues rather than dealing with more routine matters which can be safely left with the magistrates. So, again, the impact of those kinds of innovative approaches are very, very important.

The other point that can be made is that the Crown itself has made a number of initiatives, such as precharge screening. These, again, reduce the number of cases that find their way into the court system by ensuring that only these cases that are appropriate proceed. Clearly, other issues involve the approaches that make more effective use of court or, that is, judge time. We look at the impact of court-initiated practices such as pretrial conferences and changes in how screening courts are used. Clearly, we have to look at what is a judicial workload. There are currently no standards in place anywhere in Canada. I read with interest the report of the Chief Justice of the Court of Queen's Bench, and he indicated that, even though the number of files was going down in the Court of Queen's Bench, because of the case-management strategy, that would result in more work.

Perhaps I am not understanding the report very well, but I would have thought that, as one case-managed, there was less opportunity for the matter to go on for lengthy periods of time. I know that there are a number of those initiatives that require lawyers to proceed expeditiously with their cases in the hope that this will result in a settlement and then ensure that court time is not used.

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So the number of Provincial Court judges then is--and the appropriate number of court judges is always an issue that needs to be looked at. I can indicate that we have approximately 27 judges in Manitoba--in Winnipeg, I am sorry, 27 Provincial Court judges in Winnipeg, and in the regions outside of Winnipeg, we have 10. One of those includes a woman in the regions, nine males. In Winnipeg itself, we have five female judges and 21 male. I might indicate that it was our government that has appointed four of the six female judges. So we have a total complement of either appointed or to-be-appointed of about 37. I understand we still have retired judges sitting part time. Those are five judges, and that is the equivalent to two and a half positions. So we approximately have almost 40 positions, full-time judges. Again, there is a flexibility in the judges, the part timers who can sit more or less as the need develops.

The Chief Judge and I, I know, have had discussions, as have our staff had discussions on the appropriate number of Provincial Court judges. It was essentially--very, very briefly--the number of vacancies, depending on who you talk to, and by that I do not mean vacancies, I more mean the need required is, even before the two most recent appointments, anywhere between zero and four. So it was my intention to proceed on two of these, which we have, and now, because of circumstances, it looks like we will be required to appoint a third in order to meet certain, I believe, obligations that we have, particularly in the area of French language capacity. So, of the four I think that have been identified on the one side and the zero, we have appointed two already and we are proceeding to appoint a third. I would not say that we have any vacancies, but as need arises or need decreases, it may mean that as others retire, we do not have to reappoint or we may in fact increase the number of judges, the hours of judges who are sitting part time or indeed appoint other judges.

That is a very, very brief summary of the criteria and whether or not we have vacancies. I have an entire listing of all the judges, but I do not think it is important at this time to indicate in fact who those are, other than mentioning the part-time judges. I note that there is Judge Enns, Judge Harris, Judge Johnston, Judge McTavish and Judge Kimelman who are presently proceeding on a part-time basis.

Mr. Mackintosh: What is the statutory limit on the number of full-time Provincial Court positions?

Mr. Toews: Again I thank the member for the question. As far as I am aware, there is no statutory limitation or number in The Provincial Court Act or otherwise that determines how many Provincial Court judges are required. It is, I guess, more an issue of the resources available and the need for a judge rather than numbers.

Mr. Mackintosh: Taking the number of four, the minister said it would be the maximum current need. Taking away the two appointments currently being processed and presuming an upcoming bilingual appointment, what is the fourth position? Is that located in a particular regional court or is it in Winnipeg? I wonder if the minister could explain.

Mr. Toews: No, in fact I have never indicated that there are four vacancies. What I have said is that, depending on who you talk to, there is anywhere from zero to four, even before the appointment occurred. I know that if, for example, we decided that there was a need for another judge in Winnipeg after the two in Winnipeg have now been appointed and another bilingual, and if we decided there is another need for a Winnipeg judge, we could proceed to put that process forward. The issue, I guess, is that if, let us say, there was all of a sudden a huge expansion up in Flin Flon of people and we needed more court resources there and a judge there because there was a demand, we in fact would--there is nothing preventing us from appointing a judge there.

So, once a person is appointed a Provincial Court judge, they are legislatively competent to sit anywhere in the province, but we do assign--I am not exactly sure how we do that, whether it is specifically in the Order-in-Council or not--where the home base of a particular judge is. But I know that, for example, even a judge who is based in The Pas, if we have a requirement of that judge to come down to Winnipeg to conduct a matter, there is nothing constitutionally or legislatively that would change that in any way.

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The issue with respect to the bilingual matter, as we know we have one judge stationed in The Pas who will be going on sabbatical in due course and the other judge in Winnipeg. Now there is nothing preventing that judge in Winnipeg from going to Thompson to deliver the services or the judge in The Pas to come down to Winnipeg to deliver those services.

So, again, it is an issue of administrative efficiency, it is an issue of workload, but one could not say at this time that there are any vacancies. It is an ongoing process that is assessed as to need.

Mr. Mackintosh: So the minister hired a lawyer to deal with the Chief Judge in respect of the meeting of May 4. I am wondering if the minister can tell us what the estimated cost of that legal assistance was, and second of all, if he can answer this, as well, in the same question, whether there is ongoing work as a result of those instructions.

Mr. Toews: Well, I have not had any direct contact for some time with that lawyer--I am just trying to remember--because that lawyer is used by the government of Manitoba in a number of contexts, and I cannot recall whether on this particular issue I have required his services lately. I do not believe I have. I certainly have not given any instructions to that individual at this time. So, as for what the bill is, I do not know what that bill is.

Mr. Mackintosh: Is the minister aware of whether the lawyer at any time contacted the Chief Judge directly following the issuing of his instructions to Mr. Olson?

Mr. Toews: I am not aware of whether he did or not. It is my understanding that he did not.

Mr. Mackintosh: I just had a question following from the discussion on judges that arose. This goes back to about February of '95, a result of our caucus's Task Force on Violence Against Women, and in its travels and studies that we thought it was important that bail applications be prosecuted by prosecutors in the Family Violence Court. In other words, there would be specialized prosecution by people with more training in the dynamics of domestic violence than allowing bail to continue in the adult criminal courts.

We were very pleased then when the Lavoie report came up with what I would--I think it could be fairly characterized as a major, certainly a significant recommendation that bail hearings in respect of charges relating to domestic violence be heard in the Family Violence Court. I think there was a thinking that it should not only be the prosecutors who are specialized but perhaps a special cadre of judges, however, that can be arranged, whether it is by application or assignment. I recall in a press conference where the minister was saying that that recommendation has not succeeded in being translated into policy, because there had been some reluctance or there had been some opposition to that recommendation.

I am wondering if the minister can tell the committee the status of that recommendation.

Mr. Toews: Yes, indeed, that was a recommendation of the Lavoie inquiry, and we were quite supportive of that particular recommendation. Manitoba, as the member is aware, was one of the first provinces to have a Domestic Violence Court, and it was seen as a natural adjunct to that Domestic Violence Court that domestic violence bail applications be heard separately by a certain cadre of lawyers, and indeed the recommendation of Mr. Justice Schulman in the Lavoie report was that also, perhaps, a particular judge or at least a separate court room would deal with those domestic violence cases. We made that recommendation, and because we do not control the judges, that is something that they would have to consider in terms of implementation. I understand that the Chief Judge went back to the judges, and it was their decision that there not be a separate domestic violence bail court.

I might indicate that the judges are receiving, on their own accord, ongoing training in respect of violence, domestic violence. I believe they have all attended the Stop the Violence conference. We have increased funding for educational matters for the judges, and so we are doing what we can within our constitutional criteria. We believe that there is some merit to the recommendation, but we respect the position of the provincial courts.

Our own prosecutors, however, will or have received the appropriate training and specialization so that, even though what will occur now is that all bails will be done together, that is, they will not be separated out, domestics and regular bail applications would be in the same docket, our domestic violence Crown attorneys will in fact be doing those bail applications, even though we do not have a judge that would be specifically identified as a domestic violence judge. So we have taken the appropriate steps, I believe, to ensure that the spirit of Lavoie is implemented. We are committed to continuing to work with the judiciary in order to ensure that appropriate steps are taken to address any problems as they arise. We, in fact, believe that the process that we have adopted is the best that can be done in the circumstances.

Mr. Mackintosh: What does the minister understand is the reason of the judges for not wanting the bail to be handled in the Family Violence Court?

Mr. Chairperson in the Chair

Mr. Toews: I do not want to put words in the mouths of the judges, but I understand that the decision was that they felt that both the regular bail hearings and the domestic violence bail hearings could be held in the same docket and that the judges of Provincial Court were appropriately qualified to deal with both types of bail applications. That being their position, as I understand it, that is a decision we have to live with.

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As I indicate, that does not prevent us from continuing in an ongoing way to improve service in this area, and we believe that wherever we can work together with the courts in enhancing the services in this area, we will. So I do not know whether the judges believe their position is correct on whatever principle. I do not know what the principle is. It is just that they believe that they can do the job appropriately in a regular docket, and I have to respect their opinion.

Mr. Mackintosh: Can the minister tell the committee whether the Family Violence Court is comprised only of specialized prosecutors or does it also comprise a cadre of specific judges who are assigned or apply to Family Violence Court exclusively?

Mr. Toews: I am advised that it is the Chief Judge who assigns the judges to the court. I am not aware of the criteria that are used. I believe that most judges, if not all, and I do not know, have at one time or another served in that court. But, again, the assignment of judges is a responsibility of the Chief Judge, and whether some appear in that court less than others or more than others, I do not know. The criteria is the Chief Judge's. I do not think however that there are any specifically designated judges who you would know that these are the people that you will meet when you go to that court.

For example, in the area of the Queen's Bench, we have the general division, which does everything, and can even do family law. I am speaking of that in a legal sense that they can do it. They are entitled to do it. There is, of course, the Family Division which specifically hears family cases. That was first established as a recognition that there were certain unique characteristics about family law that took it apart from the general litigation or other criminal cases.

Whether one can make the same argument in the Provincial Court, I do not know. I realize that there are different issues involved in domestic violence. It is not simply an assault, for example, committed by one stranger upon another stranger. These assaults occur between people who know each other, live with each other and may have done so for a long period of time. So there are ongoing issues of how do we deal with a particular situation knowing that these parties may continue to live together. In a situation where you have a break and enter, for example, a stranger entering someone else's home, stealing something, robbing someone, that may well--I think the considerations are different, but I do not know whether the differences are enough to justify a total separation of the courts as they have done in the Court of Queen's Bench. All I can say is that we saw merit in the recommendations of Mr. Justice Schulman relating to a separate domestic violence bail court, and we thought it was a natural outgrowth of the Domestic Violence Court that we have. Even though the judges themselves are the same ones, there is a different focus of cases in that court.

So I think that is all I can say about that particular issue.

Mr. Mackintosh: I have some questions relating to the issue raised in Question Period yesterday and today respecting the Prosecutions branch. Is the minister in a position to answer those questions now, or does he require his staff, particularly Mr. Finlayson, here to answer those questions?

Mr. Chairperson: Before the minister has an opportunity to answer that, maybe I could have leave of the committee to move in the order of--Prosecutions are under 4.2(b). So, if we could have unanimous consent to move to that section, revert to that section, is there unanimous consent of the committee? Agreed? We are on line 1.(b) Executive Support (1) Salaries and Employee Benefits. 4.2(b) is Prosecutions. Is there will of the committee to--

Mr. Mackintosh: My intention was simply to ask a series of questions under the Executive Support section. I mean, if it is not convenient, we can move along towards the Prosecutions branch line with the staff here.

Mr. Chairperson: Whatever the will of the committee is--

Mr. Mackintosh: I am just asking the minister if he is able or wants to deal with it now or does he want to deal with it under Prosecutions.

Mr. Chairperson: For the benefit of the committee, maybe it might be just as easy to get unanimous consent to move forward to that portion and then revert back, if that is okay with the committee. Agreed? [agreed]

Mr. Toews: I think I can answer some of these. I know that the staff member involved will be coming along shortly, and if I cannot answer it, I will indicate that and we can maybe proceed to another matter. But I am prepared to look at the questions and consider them.

Mr. Mackintosh: The minister disputed the number of people leaving the Prosecutions branch in the House today and disputes the number even given by the president of the Manitoba Association of Crown Attorneys, and--my understanding--disputing information given by Mr. Finlayson to the media. I just want to go through the numbers there. Our information, of course, relies on other people in the system. We are certainly subject to correction, but it is our understanding that there have been--the Prosecutions branch, in respect of adult and youth prosecutions, not dealing with Family Violence Court, will be down over the next week or so by 15 in number. I just wanted to put on the record our understanding and if the minister can respond to that.

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First, of course, we have the appointment of two judges, two highly experienced, respected Crowns who are going onto the provincial bench. I might add at this time that their loss is going to be felt, particularly knowing that Ms. Everett has a lot of experience in youth and has been starting to get more involved in some gang specialization, and Mr. Wyant has been involved in youth prosecutions and has been involved most recently of course in an acting capacity in a more senior position. I also understand that then there have been two people seconded, Ms. Kopynsky and Mr. Slough, and Mr. Slough, coming from the youth court as well, experienced Crown, two Crowns which I have high regard for, and they are seconded to the child death inquest. Then I understand there has been one retirement. That was Mr. Jack Montgomery, in the last few weeks or the last few months, I should say, for a total of five there.

Now, getting into sort of the nub of the crisis, I understand that three have gone to the federal Department of Justice; four are going to the Family Violence Court, three of whom are from outside of Winnipeg; two of whom are going into private practice; an additional one of whom is expected to formally be resigning any day, if he has not already done that. I believe that is a total of 15. I wonder if the minister, having got that breakdown, can now again--is he going to say that there are only two people, and the two people are going to the positions on the Provincial Court? There is a big difference between two and 15.

Mr. Toews: Indeed there is a big difference between two and 15. I think it is very important to deal with the questions that were put to me. The question that Mr. Doer stated to me is this--I think it is important to understand what questions were asked. He indicated: "Madam Speaker, can the minister confirm that three Crowns have just recently been hired by the federal justice system, two have gone to private practice, one has left the service and two judges last week were appointed by the minister--two Crowns were appointed as judges, leaving at this time eight vacancies?" In the Crown attorneys office, eight direct vacancies?

Then, further on, the member for St. Johns says, and I quote, and this is all from Hansard May 27: "Since the minister did not answer that single question, if the safety of Manitobans is threatened now when bail prosecutors have up to 70 files a day, when there are backlogs of up to two years now even for child victims, how will the added caseloads and backlogs impact on the ability of prosecutors to protect our safety now that eight prosecutors have said enough, four more have gone to the Family Violence Court, one has retired, two have seconded, for a total of 15 losses?"

You can see how he is doubling up on those going to the Family Violence Court and that, but let us just take a look. We have the member for Concordia (Mr. Doer) saying that there are eight direct vacancies today. That is what he is saying. And the member for St. Johns is saying that there are 15 losses. That is simply not accurate.

What I am aware of--and my staff is here and they can certainly correct me in any respect--is that last week two Crown attorneys were appointed to the provincial bench: Catherine Everett and Raymond Wyant. So they were appointed. Those two positions are vacant. Mr. Ed Sloane out in Portage la Prairie has decided to go into private practice. He has not left yet, but he has decided to go into private practice, and he has indicated that he will continue to deal with some of the major cases that he is presently responsible for. That is my understanding. So June 5, he is leaving, but he will continue on with some of the cases. Then Pat Flynn, Annie Krahn and Michael Foote are going to the federal government. Now those three individuals I might indicate are not leaving until either sometime in July. Michael Foote, who is not a permanent employee, he is a term employee, is going to the federal government as a full-time lawyer there, is in fact going at the end of June. So these three people have not left. Pat Flynn, Annie Krahn and Michael Foote have not left. They are still there doing their work.

I understand that Dave Saper, who is also not a permanent Crown attorney but is looking for permanent work, is leaving sometime in June. So, again, of those eight--or seven people, only two have left because they were required, given that they were appointed to the bench. Three other individuals, Vic Bellay, Melinda Murray and Peter Williams, are in due course being transferred to Winnipeg, not leaving the department, they are being transferred to Winnipeg as a result of the Lavoie matter. We are expanding our Crown attorneys by, I believe, a number of seven as a result of Lavoie. These three individuals will take three of those positions, but my understanding is that they are not leaving until those positions are filled. So again, the member who indicates that these people are gone, that these are direct vacancies, is wrong. These people have not even left their position today, and they will not leave, I understand, until we find replacements in Brandon, The Pas and Thompson. Peter Williams, in fact, is in a very unique position working not only with the Ministry of Justice but indeed with MKO.

So again, of these 10 people, only two have left, and over the next couple of months five will leave, and we will be able to find replacements for them. The other three who are being transferred to Winnipeg to enhance the Domestic Violence unit will be replaced by others before they leave their particular posting is my understanding.

Now in respect of the two Crown attorneys who are working on the inquest, the Health Sciences inquest, Mr. Slough and Ms. Kopynsky, I understand that they will be coming back in October or so. [interjection] I am sorry, September 25, I understand from my staff. So those two will be coming back. But the suggestion that again these positions are vacant, is simply not correct. These positions have been filled by other lawyers over the past two years. Mr. Montgomery, who has fairly recently done work for us--I believe he is retired--but I am not aware of whether we have filled in behind him. [interjection] Yes, in fact I am advised that his position has already been filled in.

Now the names that I received or the positions referred to by the member are 13 names. Slough and Kopynsky have not left the department. They are still with the department, and they are on specific assignment right now. They will be coming back to regular Crown duties--September 25 is the anticipated return--but in the meantime, we still have term lawyers filling for them. Mr. Montgomery, who has continued to do work for the department, his position however has been filled by a permanent lawyer. So again, of those three, they are wrong.

In respect of the three positions involving Mr. Williams, Ms. Murray and Mr. Bellay, they are wrong. They have not left the department. In fact, I believe that those people, by moving into Winnipeg to enhance the Domestic Violence unit, will be strengthening our department. So here of the six names or six positions, they are wrong.

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In respect of Mr. Sloane, who will be going to private practice, he has indicated he will continue to do some work for us, and we appreciate that. I know Mr. Sloane very well. I articled in Brandon when he was the articling student just ahead of me there, and I know he went on to Thompson and Swan River, I think back to Brandon then, and then Portage la Prairie where he has been serving for the last number of years. But again, he is going to private practice because the opportunity that presented itself, because of Brent Stewart being appointed to the bench in The Pas leaving a vacancy in a private firm there, so it was an opportunity and he felt it was a good career move.

Now the other three that we have not addressed dealing with the federal government, the federal government has expanded very, very rapidly over the last little while in terms of aboriginal law and also proceeds of crime. So I do not know exactly which position these three are going into, but again they see opportunities from the federal government. This is something that has happened, I think, on a continuous basis in so far as our department has--our department has been recognized as having some of the best counsel in Canada. If you look at the federal government's office here in Winnipeg, you will see that any number of those Crown attorneys served a lot of time with the provincial government. For example, Mr. Gosman served a lot of time with our provincial government. He was the president of the Manitoba Association of Crown Attorneys when I was the vice-president of that association. Mr. Clyde Bond was there; Mr. Dave Frayer was there. So it is something that occurs on an ongoing basis that our provincial prosecutors go to the federal government for one reason or another.

I do not know how many have ever come from the feds to the province, other than our deputy minister, who once was a prosecutor in the Winnipeg office and now is a deputy minister. So I think that is a healthy relationship, that there is an exchange of people. I know, for example, when I was in Legal Services, some of our staff would be seconded for a period of three years to Hydro. One of our lawyers, I recall, when I was there, went to Hydro for three years. Again, nothing wrong with that. In fact, I encourage that kind of thing to occur because I think people need changes.

I know in my own career in the Attorney General's department--before I go on, I would just like to introduce Ms. Lynn Stannard who is the acting director of Prosecutions who has joined us at the table.

But in my own career in the department of the Attorney General, I left Prosecutions after three years; I went to Legal Services indeed after a discussion with the associate deputy minister, as he is now. He was simply a line lawyer at that time, Mr. Perozzo, but I came into the Legal Services side in 1979, and I stayed there until 1986. At that time I transferred to Constitutional Law and stayed there until 1991. So transfers are not unique or a bad thing. I think they have been happening for an awful long time, and they will continue to happen.

So the member here has indicated that there is a serious systemic problem. Now I am not going to question--and you know, I had a conversation, for example, with Mr. Hannon this morning. Mr. Hannon does have concerns, but one of the things that I know that he speaks about very regularly is the good working relationship he has with Manitoba Justice, I believe the good working relationship that he has with me. So the impression, I think, that is left in the newspaper is that there is something that is simply--that criticisms have been made and that those criticisms are not being addressed. I believe that there are processes in place. If additional processes are required, we will work on those issues. We know that on an ongoing basis there are demands on these prosecutors for their services. They do a good job. As a result, in fact, of these transfers and changes in the department over the last little while, the senior staff have dealt with that issue in a very, very proactive way. Firstly, they have identified what the concerns are and that is that there is an immediate need to address the replacement of prosecutors within the open positions. Some of these, I understand, can be addressed through the hiring of articling lawyers who have been with our department already for a year and some of those can be hired. I understand we are looking at that particular option and again that is the standard kind of thing that occurs. I know my own experience was that I articled in Prosecutions and then I was hired to take a position, so we often like to keep our students when they complete their articles and become full-fledged lawyers and prosecutors, and so that is part of an ongoing plan.

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The second is the ongoing issue to ensure that at all times we address the requirements of appropriate staffing for the reorganized department. This is something that has been done on an ongoing basis, that on May 24, there was a meeting between senior Crown attorneys and the deputy director of Prosecutions who met with the acting director of Prosecutions at that time. A further meeting was had on May 25, to discuss these concerns, and on the 26th a specific group was formed to address these issues, to ensure that we will have a staffing plan that will incorporate professional and support staff needs, so the suggestion made in today's paper that this was not being done or there was some kind of a difference of opinion between the minister and the Association of Crown Attorneys is simply not correct. The focus of the group is to solve problems. It is not to create disputes.

One of the things that I think has been very successful over the last year and a half or year, in any event, is the committee dealing with the aftermath of the Headingley situation, which is chaired by Mr. Scurfield, where members of the union and members of staff sit down on an ongoing basis to discuss issues as they arise. So I understand that, as a result of that meeting on May 26, they are embarking on a similar type of a process. This is not to say that this has not been done in the past on an ongoing basis, that it would not have taken place in some other context, but I think it is important to bring the union directly into the discussion of a staffing plan that will incorporate both professional and support staff needs. So one of the issues that I know that particular committee will be looking at is looking at issues such as complexity of cases, the proper staffing issues. We can see through this kind of ongoing consultation what the impact then will be of the prosecutors that we have hired and will be hiring as a consequence of the Lavoie inquiry. I encourage this kind of proactive involvement by the union in what I consider a joint responsibility by management and the union to ensure that we meet the needs of the citizens of Manitoba.

I can also see that the focus of this group, which essentially deals with the issues I have outlined in a general way, is not necessarily restrictive but in fact could take in other issues as the need arises. I know that in fact was the approach taken in the Headingley situation, where as issues arose, Mr. Scurfield, as the chair, brought those issues forward or brought them forward through one of the parties at that table.

So, again, I am very pleased that this committee has been formed. I think it is part of the ongoing analysis to ensure that our resources are adequate for prosecutors to meet the need, and this particular situation where we have some movement within the department and out of the department, I think this is a very good time to bring that subject to this type of an organization.

So I think the article in the newspaper seems to indicate that there is some disagreement between management, including myself, and the Crown attorneys of the need for ongoing analysis of resources to ensure that we do not find ourselves in the position, for example, that Ontario or British Columbia find themselves in today. I know that the Ontario department has various concerns and issues that they need to meet. In reading the Globe and Mail, the NDP government in B.C. has serious problems on its hands in respect of delay. When you look at our figures, in terms of availability of court dates, we compare very, very favourably. I hope that, with the appointment of these two recent Provincial Court judges, we will continue to be a in a position where we can keep workloads moving along and not overburdening our Crowns, but I think that we have to keep on talking to our Crown attorneys about that.

As I understand Mr. Hannon's comments, I do not think he--and again, perhaps I stand to be corrected--views management in this case as an enemy or not being co-operative. I believe he sees us in a supportive role, but that he needs to deal with concerns that his Crowns, the Crowns he represents, raise with him. So I do not know whether Mr. Hannon is committed to saying--it says that Mr. Hannon says that there should be a review. I do not know if that is in fact what his position is. It is my understanding that he simply wants a process that will deal with their concerns. I am certainly in agreement with him on that issue.

So I guess my concern about the particular newspaper article that has been referred to both here and in the House is that aside from being very, very misleading in terms of the number of vacancies that are in fact present in the department today, it seems to look at that there is some kind of a difference of opinion between the management and the Crown attorneys that cannot be reconciled. I know they have their particular position, their particular concerns, what their view is what an appropriate caseload is, and I know management has its position on that.

So, in conclusion on this question, I might simply say that I look forward to an ongoing relationship with the Crown attorneys association to ensure that the concerns that they do have are considered and, where valid, we address them in an appropriate fashion.

Mr. Mackintosh: I do not know where the minister finds the article to have been misleading and I was looking at the--first of all, just going back to the numbers where we started out, there appears to be only a difference of two. We understood that there were four people going to Family Violence Court from adult and youth, and the minister is saying there are three. If that is wrong information, then so be it. At the same time though, the minister, in the House, is saying that they are increasing the number of Crown attorneys in the Family Violence Court by at least that number.

The second discrepancy, there is one other person that we understand is leaving but maybe has not given notice yet or is in the process of doing that, so that explains that. But the numbers in the House of 15 losses, given that caveat is accurate, and that indeed Mr. Montgomery is a loss and although the position has been filled, it is a loss of a very experienced Crown attorney. It makes a lot of difference. As well, the secondment is a loss, although the minister says it is being filled by two terms. The point is, and the essence of both the article and the information made by our side in the Legislature, 10 Crown attorneys have or are leaving the adult and youth divisions and seven of them, we know so far, have quit the department entirely. I do not want to get into one or two, because that is what it is coming down to because that does not make--it is a distinction without a difference. We have a serious challenge. I call it a crisis. I do not do so lightly when we have such a serious exodus from the adult and youth divisions.

Now I have heard allegations that in fact there is a disproportionate exodus from the youth division. We know that Mr. Wyant, Ms. Everett and Mr. Slough were all in the youth division. We know that it is a particularly challenging area. Manitobans are very concerned about youth prosecutions. Would the minister tell the committee how many individuals have either given notice or have now left the youth court out of the total of the 10?

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Mr. Toews: Again, the member either wants to leave the wrong impression or does not know. I prefer to believe he does not know.

Let us deal with some of these positions. For example, Cathy Everett was not from youth prosecutions. [interjection] Now the member says not lately. Well, I am not from constitutional law lately either, and I left there, not lately. So she was a general prosecutor. The member knows this. He is being, I think, simply loading the statistics one way to make his case, but it is not a very good way to make his case.

Ray Wyant, again, not from the youth division. Originally, he was, but he is an acting director. We know that Mr. Slough is coming back, who is a very senior prosecutor. [interjection] Well, we do not know what he is coming back as, but certainly he has a lot of youth experience and that experience is valuable. Ms. Kopynsky, again, a very senior prosecutor and is coming back in September when that inquest or inquiry wraps up, and that is our general indication at this time now. September 25 is when they are coming back, so I do not know whether the inquiry is wrapping up or what. I do not know. I just understand that is the date.

I would also indicate that the fourth Crown in Family Violence, the permanent position, has in fact been hired and is working. That person came from the Public Safety Building and another person has been hired to replace her. The two term individuals were with youth prosecutions presently, and those positions will be filled when they leave. We do not anticipate any problem in that respect. I assume that my department will be looking for appropriately qualified people to fill those positions.

Again, a person coming from the defence bar may well fit very well into some of those positions. They certainly have youth experience in the defence bar and could well fit in there. Again, I am not suggesting that any particular criteria apply, but the staff, in hiring the Crown attorneys, will take a look at that particular issue. So, those are the only individuals, those two term positions are the only ones that I know who are coming out of the youth branch, and I understand that they will be filled.

I do not know how to explain this directly to the member that, yes, there is change in the department. Change goes on continuously in the department. I have a staff of probably somewhere close to 2,000 people or 1,800, 1,900 people, and change goes on continuously. If we look at the reasons for change here, I think some of the reasons are positive and not negative. For example, the fact that two Crown attorneys are on the provincial bench, I think gives added strength to that bench, two more points of view on that bench. I do not see the appointment of two Crown attorneys to the provincial bench to be a loss to the justice system.

Mr. Mackintosh: This is just too important to let go. There is no reflection at all on the appointment of these two individuals. I did not at any time say this was a loss to the justice system. I said this was a loss to the youth and adult Prosecutions branches. That is a very important point.

I ask the minister not to misconstrue this and try and construe my comment as some attack or questioning of the appointment of these two judges. That is certainly not at all anywhere near where I was going.

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Mr. Chairperson: The honourable member for St. Johns does not have a point of order. It is a dispute over the facts.

The expansion of the Family Violence Court is somehow being portrayed as a negative thing.

Mr. Mackintosh: On a point of order, Mr. Chair, the minister is now attempting to construe my remarks and twist them to suggest that somehow we have reflected on the growth of the Family Violence Court in a negative way. It has been our party on our side of the House--the minister knows this full well, that we have supported the Family Violence Court expansion. We have supported the Lavoie report. We have supported the establishment of that commission of inquiry and very much pushed for it. We made presentations to it. We support the recommendation that has led to the growth of Crown attorneys and support staff in that court.

Our concern is for youth and adult Prosecutions, and I am sure the minister understands that. I think we have enough issues to deal with without fabricating some.

Mr. Chairperson: The honourable member for St. Johns does not have a point of order. It is a dispute over the facts.

Mr. Toews: Well, if anybody is fabricating here, I think it is the member for St. Johns because, as I have indicated very clearly, the expansion of the Family Violence Court does not leave a hole in existing positions that is not being filled by what I would consider very, very competent people. The suggestion here being made by the member for St. Johns is that the transfer of these very capable people to this area is somehow a loss to the system. I would say that this is a benefit to the system. This is a recognition that we see how important this issue is to the people of Manitoba, and these are adults that are being prosecuted in adult court by prosecutors with tremendous experience. How can this be portrayed as something bad or improper?

The member seems to suggest as well that it is only Crown attorneys who have previously served in the department that can fill these holes, if there is a vacancy. That is simply not correct. That is doing a grave injustice to the private bar out there. There are many, many lawyers in the private bar who could walk into a Crown attorney's position and do a very, very good job with the appropriate supports, almost overnight. We have very competent people in the private bar.

I mean, I am speaking as a past Crown attorney, and I have a real pride in having been a Crown attorney and serving my province in that capacity, but I also acknowledge that simply moving a Crown attorney into an area where we can take full advantage of his or her expertise does not mean that if you cannot find another Crown attorney with 10 years of experience, or five years of experience or even less, a private lawyer could not do the same thing.

I can tell you that one of the things I have always envied about private defence lawyers is their ability to cross-examine. It is not an opportunity that Crown counsel often have a chance to develop, because it is the Crown that has to put in the case, and they are restricted to examinations in direct and so very few Crown attorneys in the course of major trials would get an opportunity to cross-examine. I know that they, in fact, do do that whenever they can and they do a very good job. I have read transcripts from some of these Crown attorneys and I am very impressed but, on a day-to-day basis, a defence lawyer learns to hone that skill because he or she is constantly challenging the Crown's case. So, in my opinion, bringing a defence lawyer into that kind of a context where they already know how a Crown counsel puts their case in direct but then to have the added advantage of years of cross-examination skills certainly brings a real benefit to the department.

So the implication here that, because a well-experienced Crown attorney moves out of one area and is put to another and we would go to the private bar to fill that position, that person somehow is not as good or is not as worthy of that position is an impression that should not be left on the record. I simply do not agree with that. I think that many defence lawyers, given the opportunity, would love to become Crown attorneys and so this kind of movement in the department and indeed expansion within the department is a wonderful opportunity to bring new ideas, new techniques, new skills into the department.

So we see now that we have some very capable prosecutors within the department who are moving into what they may consider more challenging roles or at least different roles because I guess the same argument could be made. What does an adult or youth prosecutor know about family violence? And so, I guess a criticism could be made that well, these lawyers should not be put into Family Violence Court because they do not have family violence experience. I am not denying that there is an obligation on government to make changes to ensure that resources are there, supports are there, training is there, but I see this kind of a movement as a very positive one.

I view with some regret the fact that the federal government was able to hire some of these senior people away from us, especially I know Mr. Pat Flynn, who for a number of years was a hearing officer when the government experimented with hearing officers. He left the Crown's office, as did other Crowns, to move into that position, stayed in that position for a while and I think, again, a very healthy thing to do and then came back to the department and has now prosecuted for I imagine another five, six years again. So, again, I am kind of sad to see him go, but I think a change is good. I think the opportunity that sometimes we cannot give in terms of change, he has seen this expansion of the federal prosecutions function as a unique opportunity that he now has the ability to take advantage of and he will do so.

I know that, when I started with the Crown attorneys office back in 1976, the real challenge at that time was the Alberta government hiring away lawyers and many of them did leave. They left from the federal department. I know they courted people in the Brandon office where I was stationed and flew them all over Alberta trying to convince them to come to Alberta. Many of our Crowns did leave at that time. The reason many of them did was for money at that time and also for challenge. It is something that goes on.

I noticed that this is not an issue that is unique to the field of law. In speaking with the Winnipeg Police Association and the Manitoba Police Association on Saturday, they indicate to me that Alberta has come along and scooped at least four or five police officers out of Brandon. Now four or five officers out of Brandon, they have a police force of 50. So one-tenth of their force is being taken. That is not indicative of a morale problem necessarily or any other issue. People often change. I guess one of the concerns now that I have been reading about is--I spoke to the RCMP commissioner at a recent graduation, and it was either in a conversation with him or one of the assistant commissioners or inspectors, he indicated that over the next five years, one-half of the serving RCMP officers in Canada are eligible for retirement--over the next five years. So it would not be unusual to see a massive flood of retirement of RCMP officers who would then go on to other jobs because many of them are still very, very young, but that is no reflection on the RCMP. These are personal choices that people make.

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Similarly with the Winnipeg city police, I read an article just recently that next year, even though generally speaking there are about 50 to 60 retirements every year, which is about, what?--5 percent of the police force, 4 percent to 5 percent of the police force, next year they anticipate having about 120 people eligible for retirement, just simply eligible--[interjection] 121 the member for The Maples (Mr. Kowalski) indicates. Given his history with the police, I understand why he added that number.

That is one-tenth of the Winnipeg city police force that would be eligible for retirement. These people, just because they are retiring, does not mean their careers are ended. Indeed, my special assistant who came over from the Winnipeg city police is an excellent example of how I benefited from the expertise that the City of Winnipeg has paid for over 25 or more years. So here, at the end of his career, I get the benefit of Mr. Haasbeek's invaluable advice. [interjection] That is right. The member for The Maples (Mr. Kowalski) says the constituents of The Maples are getting the benefit of probably both his Winnipeg city police training and his training here in the Legislature.

So, again, I do not view this as a negative thing, but again, harking back to the answer that I gave in respect of the article that was written, I do not believe it reflects the true nature of the relationship between the Crown attorney's association and the senior officials of the Department of Justice. I have only known Mr. Hannon to be a positive, hard-working individual who, in addition to the responsibilities he has as head of this particular union, also carries a full load in the Legal Services branch. I believe one of his areas of expertise is aboriginal law and does a lot of Northern Affairs and Native Affairs work. He used to in any event, and I think he still moves in that area.

Mr. David Faurschou, Acting Chairperson, in the Chair

Again, all I am saying is that this is an individual who I know wants to work with government to ensure that the issues that he deals with and that have been raised as concerns are dealt with by government. So I would certainly welcome any statement that he has to make that would outline his concerns so that we know those concerns very, very clearly. Whether he chooses to do that in a public forum or whether he chooses to do that at this committee, which he in one way or another will be a part of, I think that kind of a document, a letter, a statement of position would be very, very helpful. Not to say that they are critical of government but simply to outline what their position is, and I would hope that any public statement--and I am saying this publicly--that underscores what I believe they want is that a continuation of dialogue and working together, then that can happen.

So, again, the newspaper article, in my opinion, does not represent that ongoing relationship and work that has been done between the association and senior officials in my department, but I believe that the process that has been agreed to by my senior staff and the association will in fact take very seriously any concerns that they have and work together in terms of resolving them.

Mr. Mackintosh: Well then, how does the minister reconcile his position with that of his Leader, who I understand today on radio expressed a sentiment that there should be an operational review of the Prosecutions branch as a result of this exodus?

Mr. Toews: I do not know if we are quibbling about words here. I would certainly like to see the transcript that the member refers to. We have, on an ongoing basis, reviewed the operations of the Department of Justice. I have indicated that, as recently as May 26, as a result of a number of meetings that they have had, they have established a group to look at outstanding issues, including resourcing. Now, if that is what my Leader, the Premier (Mr. Filmon), has indicated, I guess we are in agreement because I certainly agree with that approach. If there are additional matters that the Premier thinks should be addressed, I am certainly willing to discuss that issue with him. So we may well just be quibbling about words here. The member says we want an operational review. What does he mean by an operational review? Maybe if he gives me some hint, we can stop circling about words and deal with the issues that need to be addressed.

Mr. Mackintosh: I think the minister is aware of the kind of operational review we have been calling for. The minister should be aware that, in both Saskatchewan and Alberta over the last year, operational reviews have been conducted. I look particularly to the one that was conducted in Saskatchewan by two former Crown prosecutors from the province of Saskatchewan who I believe both had moved to the province of Alberta as private counsel, or maybe perhaps they are still in Saskatchewan. As I recall, that was a description of how that was done. It was done by two individuals from outside of government and made recommendations and resulted in rather sweeping changes in the department, both in terms of the number of prosecutors and protocol and I think technology. Alberta, I cannot recall right now who did that review. I believe it was done by someone or an organization outside of the Department of Justice.

The other option obviously available to the minister is that he have someone--I was thinking perhaps of someone of the calibre of Hymie Weinstein, for example. That is just one person, for example, who had been a Crown prosecutor in the past and is involved in the criminal justice system. That is the kind of review we are looking at and the scope should be to look at the resources for prosecutors, the technology, the use of computerization, for example, how the filing system is maintained, how communications are maintained, looking at the organization of the department and in a very important vein, looking at the protocols. I think, for example, of the Court of Appeal's lashing of the handling of the Torres' matter. I think that calls out for a review of the protocols in the office and that one there would be with regard to expediting appeals of conditional sentences in circumstances similar to that of Fabian Torres's conviction. That is the kind of operational review that we have been calling for, and the key there is that it be done outside of the department so that there is someone who can come in and look at it.

I know the minister has been open to this kind of review in the recent past. I look, for example, at the review of victims services in Manitoba by Prairie Research Associates that the minister or his predecessor contracted for. I think of the recent study of the Law Enforcement Review Agency that the minister contracted for. The minister knows the value of that kind of external review. It is then done in partnership with people in the department and calling on people in the department, in this case in Prosecutions, particularly youth and adult, to provide their opinions on how things are going. It is important that the staff be able to speak out, speak to someone that they know will treat their information as confidential, but will then comprise part of a comprehensive review. There is too much at stake here. Public safety is at stake. Victims are at stake. Again, we ask the minister to get such a review going and do so now. I will just add that it was, coincidentally, one year ago yesterday that we first called for such a review, reiterated a call for such a review on a regular basis since.

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Mr. Toews: I will be getting some information on that particular issue because I think it is an important issue, because an operational review was done in respect of the entire criminal Prosecutions branch by the former assistant deputy minister, Mr. Fineblit, who did a very extensive review in terms of screening courts, in respect of the assignment of Crown attorneys to files, in respect of computerization and technology and the use of that technology, and the implementation of that is still proceeding on an ongoing basis. I know that the Crown attorneys association is very interested in the technology aspect to assist them in their work. So, in many respects, that has already been done.

I mean, I am very familiar with the Saskatchewan review and both individuals who did that review. I know the member has called for us to hire those two individuals from time to time, and there may well be need for them from time to time. They are both very, very excellent prosecutors. Mr. Peter Martin was a Crown attorney in Alberta for many, many years, did most of their major murder trials. The story goes that he never lost a murder trial. I do not know if that is correct or not, but he was certainly a very, very effective prosecutor, and I have the highest respect for Mr. Martin. I have seen him on occasion and discussed matters with him on occasion. I have not had any discussions with him personally since I guess a couple of years ago. I am certainly aware of his reputation. I am also very familiar with his colleague, Mr. Earl Wilson, who is also an Alberta prosecutor for many, many years. Rather than doing the murder trials, he did a lot of the appeal work. Again, very, very qualified people. So I have no problem with the quality of those two people. I would have some concern bringing a local lawyer in here to review the office. There are some issues, I think, that are best done by--if it is not inside people in the department doing it, it is better to have somebody outside of the very small legal community that we have here.

I know the Free Press called for an inquiry at one time and wanted us to hire a lawyer who was in fact the husband of the lawyer making the accusations against the department. Again, you know, it seems that--and I am certain the Free Press did not do that on purpose, but the legal community here is so small that, despite the fact that there are 1,600 lawyers, it seems that everybody is either related to somebody or knows somebody. [interjection]

Well, I do not know who Hymie is related to but I know he has a lot of connections. [interjection] That is right.

But, you know, you have to look at the law firms that these people are involved in. It is getting to be that every time you hire a lawyer, you have to worry about who they are related to or where the connection is and whether there is a conflict. As the number of lawyers increase, ironically, the problem increases rather than diminishes.

I do not know whether it is part of the story or the truth, but they have always said, especially in small towns, that if you have one lawyer, there is just enough work for that lawyer. If you have two, you have work enough for three. This situation has a way of expanding work for lawyers, and we have to be very careful before we bring outside people into the department, especially in Winnipeg here. We have the same problem when we have prosecutions, when a person who is well known to the department suddenly is faced with criminal charges. Is it appropriate for a criminal prosecutor from Winnipeg to do it.

I know that when I was a prosecutor, one of my first matters that I was assigned to was looking at a file involving an RCMP officer. I guess, I was the low man on the totem pole, and I was told to make recommendations. I recommended charges, and that is probably something I would not do again. Not that I would not recommend charges, but put myself in the position of recommending charges against a person that I would then have to work with in the future. I think the department has become quite sophisticated in dealing with those issues.

So we have to be very careful. I know that Allen Fineblit was a real benefit to us because he came from Legal Aid, and for a two-year period. It was his stated intentions that he would go after two years. Certainly he told me that from time to time, and I believe he told other members that that was his goal, two years, and then he would be moving on. But he was able to bring an insight into the department and administrative skills that we did not necessarily have in the department in the same way. We have good administrators. We have good skilled people, but he brought an outsider's view. Allen Fineblit, for example, what he has done over in Legal Aid is truly remarkable. He is recognized, or certainly Legal Aid Manitoba is recognized as probably the best legal aid system in Canada. Indeed, many people refer to it across the world. There was a committee meeting, I think in England, where they specifically referred to Manitoba's Legal Aid system and the very delicate balancing of private and public resources.

Just getting specifically back onto the technology issue, I do not want to spend too much time on that, but I know that there are funds included in the budget for technology. There are systems designs issues and business cases in progress dealing with information for Prosecutions, and there are a number of subcommittees that have been active in collecting information from prosecutors and exchanging of information with police agencies, courts and corrections. I believe the acronym for this program is PRISM. I am not sure what it stands for. Prosecutions Information Scheduling and Management system, I believe that is what the acronym stands for, but again that initiative is exactly what the member is referring to.

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We are doing these things and we are doing these on an ongoing basis. It is not that we have heard the member's call for an external review and then said: oh, well, we are going to ignore it. We do not ignore it, and you know, frankly, I would not put somebody like Earl Wilson or Peter Martin into the situation where they would be giving us information about these kinds of technical things. If you read the report and know who they are, you recognize that their strength--well, certainly from the report, I am not going to comment. Maybe they have acquired other skills over the years, but it would not necessarily be in systems design. I think there are government people or other consultants who could do a very, very good job for us in there, so I am not ruling out external people.

We brought in an external person in the Headingley situation, Mr. Scurfield, at the recommendation of Mr. Hughes. And I think one of the reasons why Mr. Hughes recommended Mr. Scurfield, and I do not know if it is in the report but it is sort of what you grow to know as a result of living in this community, is that there clearly were tensions between management and the union in the corrections situation that did not lend itself to a committee being chaired by either management or union. So Mr. Scurfield, in conducting his review and essentially it is a review, it is a very unique way of doing a review, but in conducting his review has been able to make tremendous progress. But I do not think, knowing the Crown attorneys association as I do and knowing Mr. Hannon as I do, I believe he has very specific concerns.

I imagine some of those relate to workload. I believe that, because I know it is an issue that has been ongoing in terms of the discussion, but I do not necessarily believe that we require an outsider to come and share that kind of a meeting. So I am not rejecting the call for some kind of an outside review of the department because I do not like outsiders meddling in departmental business. We have demonstrated over and over again that we are prepared to bring outsiders into the department to look at it, but I believe, that both the association and the Department of Justice, if we know exactly what the concerns are, I mean it would be ideal to have it all on a piece of paper to say: these are the concerns that the association has, these are the concerns we would like to see addressed in a meeting.

Mr. Chairperson in the Chair

I would not view that kind of document as a threatening document. I would view it as a very good way of putting exactly on the table what the association's concerns were so that there is no mistaking what they want or what management needs in respect of this issue. I think one of the real unfortunate matters--and this is maybe something that should be dealt with by the association as well--there are constant references to Crown attorneys dropping the ball in certain cases, and yet all of these cases I have discussed, well, I would not say all of these cases, but most of these cases I discussed the actual case with the Crown attorney and I said: is this an issue of resources? And the Crown attorney has indicated: no, it is not an issue of resources. So on these particular cases where opposition members have been saying they have fumbled the ball because of a lack of resources, often it has not been an issue of resources, if ever.

I know that the member for St. Johns has indicated that the Crown mismanaged the appeal of the Fabian Torres matter. Well, the same Crown attorney that he spoke of very highly and who has now gone to the bench, Catherine Everett, was a Crown attorney who did that. I am convinced that without that hard work by that Crown attorney, we would have never been able to achieve what happened. There are many things that I cannot talk about, but I know the length that that Crown attorney went to in order to achieve a murder conviction and, I believe, three manslaughter convictions out of that. What was the evidence? The evidence was gang evidence. How do you get convictions when everybody is a member of a gang? Yet this Crown attorney did it, and when I asked her about that particular case, was it a resourcing issue, that was not the issue.

An Honourable Member: Protocol.

Mr. Toews: No, it was not an issue of protocol. There were many other issues. But to suggest that it was--[interjection] The member says two and a half months. I have been involved in transfer applications that took much, much longer, transfer applications, transcript. Well, I do not know why it would have necessarily happened, but that generally does not happen. All I can say is that why ever there was a delay there, it was not, in my opinion, the fault of the Crown attorneys. [interjection] Well, I know that the member says the Court of Appeal blames the Crown attorney.

An Honourable Member: No, the Crown.

Mr. Chairperson: Order, please.

Mr. Toews: Well, the Court of Appeal blames the Crown. Now there was a Crown attorney who conducted that case on behalf of the Crown.

You know, I have the utmost respect for the Court of Appeal, but one of the things that the Supreme Court of Canada has told courts, generally speaking--and I always bear that in mind when I am quick to judge somebody. I know I do that from time to time, and I should not. But what the Supreme Court of Canada said in the Power case--I think it was a 1994 case--it talks about the role of the Attorney General, but it also talks about the role of the prosecutor and that courts should not second-guess why prosecutors do certain things.

You know, I am satisfied in speaking to that Crown attorney and knowing that Crown attorney that this was not a matter that that Crown attorney could be faulted, and so the Court of Appeal acts with certain information. They always say, look, we can only give a decision on the information that we have. Sometimes they do not receive all of the information for a number of reasons. Some of those reasons relate to judicial independence.

So, while I respect the Court of Appeal making its decision--and I think they arrived at the correct conclusion in respect of Torres--there are other issues that perhaps they were not aware of. For example, I know of another case that the case appeared to fall apart because witnesses changed their mind, and that is a constant struggle in cases involving gang-related offences. I know that the Crown attorneys work hard with very difficult witnesses, very difficult situations.

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I can tell you what would have happened in the Torres case if all of the gang members suddenly changed their minds, and the evidence was not there and the case against Fabian Torres could not proceed. Then I would have the member for St. Johns saying the Crown fumbled the ball, but that is not what happens in these cases. Crowns do not control the evidence. Crowns work with the evidence that they have, and they do a very, very good job in difficult circumstances, quite apart from the issue of resources.

So, again, I respect what the Court of Appeal has said. I think, though, that I personally would be very reluctant to second-guess a prosecutor in the decisions that they have to make on these cases. So the member for St. Johns, when he says, oh, here is another case where the Crown fumbled the ball, simply not correct. The member may not think that I actually listen to him. Actually, I do listen to him from time to time. Sometimes he comes up with something new, and I say, well, it is my obligation as a Minister of Justice to take a look to see what he is doing is in fact accurate, and so I go and I ask. Often I find that his statistics are not right or his interpretation of the facts is not right.

So in respect of the eight cases that he constantly refers to, I would like to see how he specifically thought the Crown should have done a better job, because it is very difficult for me to go back to a prosecutor and say, you know, there is a member of the Legislature in the House who says you fumbled the ball, or the Crown has fumbled the ball because of resources, or you did not cross-examine somebody, or you did not get a statement in. So I would like to know specifically what are the allegations in specific cases so that I do not back to my Crowns and say, look, we have got these vague accusations, and somebody says that somebody fumbled the ball, but nobody really knows what it is. The only thing that we know is that the result is that someone was acquitted.

Now there may be, in fact, a reason for an acquittal. The acquittal might be because the person was innocent. It is not just guilty people who are acquitted, but there are in fact innocent people who go through the process and are acquitted because they are innocent. I remember one prosecutor facetiously once said--and I know that he was not a prosecutor here in Manitoba--convicting the guilty is not a problem, it is the innocent that is the challenge. Well, that is certainly not a philosophy that I would want to see any prosecutor in Manitoba adopt, because I think that if a prosecutor believes that someone is innocent of a charge, whether that charge has been laid or not, the prosecution should cease. We do not prosecute innocent people knowingly here in this province, and the system works when a judge says not guilty.

You know, there are other situations where I say the law is not working. One of the big concerns I have which relates very directly to the shooting of this young boy, Beeper Spence, and when I was a prosecutor many, many years ago, we had something called constructive murder. That is when someone participates in an activity which is known to be dangerous. For example, someone going in with a loaded gun into a bank to rob that bank, and a bank teller is killed, it is not just the person doing the shooting that is convicted of murder, but it indeed is the wheel man or somebody just watching who is also convicted of murder. Well, as a result of the Supreme Court of Canada's decision, the constructive murder sections in this country were struck down. So you cannot prove murder against these people any more unless you prove that very specific intent.

So, as I recall the situation in Torres, we had one shooter, and we had participants. But how much did they know, how much did they participate? Very difficult. So we received one conviction for murder, as I understand it, for the direct shooter, and three manslaughter convictions. Now, in my opinion, that is not an issue of the Crown fumbling the ball, that is a direct result of what the Supreme Court of Canada has said in respect of constructive murder and the striking down of Section 213.

Many, many American states still have constructive murder, and their prosecutors benefit from that presumption that constructive murder did for them in a case. So this is a matter that the Supreme Court of Canada has decided, has said it is unconstitutional, and yet the difficulties that it has created are immense. So hopefully that clarifies some of the points that the member has raised.

Mr. Mackintosh: The Court of Appeal speaks a lot louder than I do on Torres, and they were essentially saying the same thing I was about the delay. Of course they went on to address the reduction of the matter from second degree to manslaughter, and I mean, very strong words, as I recall, particularly by Justice Twaddle on that one. The concern I had all along--of course, I know the minister has misled the House on the concern of the Crown attorneys association, and their concern did not express any statement that I had misrepresented in any way what took place there.

What they did was explain that there was a motion by the defence moving into, I think, December for a pre-appeal, presentence report, because certainly by that time there was an argument that circumstances had changed for Mr. Torres. The critical problem in the Torres case was that we had the minister, and I believe our senior official in the department lamenting the conditional sentence provisions under the Criminal Code, and pointing the finger at that alone when Mr. Torres was arrested in the Gagnon home invasion in Ste. Anne.

I thought to myself, this is a rather inappropriate way to mount a campaign against the Criminal Code. I share concerns with the minister and senior officials about the conditional sentencing provisions on that. I think we shared some correspondence on that, but to really be believed on that one, if the government believed that Mr. Torres was a threat to the community when he was released, they had an obligation to expedite the appeal. What happened was we made inquiries and determined that the transcript could have been obtained within days. In fact, it had not been obtained for a period of four and a half months following the sentence.

The issue was never the timing of the filing of the notice of appeal, it was the processing of that. The Court of Appeal advised us of the--and then we went to the record and looked at the different filings and looked at the rules of the Court of Appeal there. I was quite concerned about what had occurred. My concern was not with the individual Crown attorney, who I have a high regard for and I know takes these matters very seriously and has also been involved in a lot of conferences and policy development with the government.

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The concern here--and when I say the word "Crown" I mean the Crown in the organizational sense. It was the Department of Justice that dropped the ball here, because it did not have in place a protocol for expediting an appeal of a conditional sentence. That was incumbent on the government to have such a protocol in place. The Crown Attorney in that particular case was in a system that was not tailored to deal with this, and acted as I am sure she--you know, as would be the normal practice. The problem was the system, not the particular Crown attorney. There is no information that has come to my attention that would make me think that the criticism and the suggestion was inappropriate. The suggestion remains. I always try to couple--I think I have been doing that--criticisms with a suggestion for positive change. I take my role seriously here. I hope I can make some change in public policy as well as deal with individual issues. Perhaps those are one in the same, often, but I think it is important that the minister look to see if he can implement a protocol as soon as possible to expedite appeals in circumstances like this.

That is not to take away, as well, my real concern about the decision of Mr. Justice Schwartz. I did not understand that decision; I read it carefully. I know at the time he made the decision, he pleaded with the government for electronic monitoring of this individual, which to me, he was saying this person was a threat to the community, please put electronic monitoring on him. He made that comment, of course, knowing that there was not in place a policy or protocol for electronic monitoring in the province of Manitoba. So, you know, I have concerns about that. The way to deal with that concern, when you are the Department of Justice, is to expedite the appeal. It was not done. But I will let the Court of Appeal speak for that.

I would just conclude my remarks by, again, offering, and I would like the minister to take it in the spirit it is offered, to seriously consider a protocol to expedite such appeals, that this will never ever happen again, that the Crown attorneys will know that when there is a release like this--and does not even have to be restricted to conditional sentences--but where there is gang involvement known that the appeal be expedited. It was our information from the Court of Appeal. Aside from the rules in the Court of Appeal, in terms of filing of the factums and the appeal books and so on, our information from the Court of Appeal indicated that the matter could have been heard within weeks, quite frankly, and that was information that was reiterated by the Court of Appeal decision. I think both Messrs. Justices Monnin and Twaddle both addressed that point--I think Mr. Twaddle in more detail.

My concern was that the delay, you know, almost threatened the appeal here. Thankfully the appeal succeeded, and justice is now being served. But I think it is a very important lesson, and in the meantime, the Gagnon family has suffered a terrible tragedy, perhaps because of Mr. Torres, I do not know. I presume he is innocent; we all do. He must be, but he was accused in there. I think it is just a lesson that we have to learn from and move on. The Torres matter was one incident among many, and I think I have brought every one of those incidents that have been of concern to the opposition to the attention of the minister.

I do not know if the minister wants to comment on our suggestion about a protocol, but in real estate, it is location, location, location. When it comes to public safety, it is timing, timing, timing. It is important that the Crown, the Prosecutions division acts swiftly when public safety is threatened in their own view.

Mr. Toews: Well, I find it very interesting, you know--and I do not want to reflect negatively on the court at all--that the member for St. Johns speaks so highly and acceptingly of Mr. Justice Twaddle's analysis of the situation, but I remember the same member criticizing Mr. Justice Twaddle for his decision in Bauder. So it just seems that the member sort of picks and chooses which one of Mr. Justice Twaddle's decisions he is going to accept.

An Honourable Member: Well, of course.

Mr. Toews: The member says, well, of course. Somehow the member says well, because in the Torres case, Mr. Justice Twaddle says something, we should all agree with that. But when Mr. Justice Twaddle says something in the Bauder case, we should not agree with it. So let us not appeal to authority. I say let us appeal to what the facts are. I would suggest to you that the facts that I am familiar with, that I am aware of, would suggest that the Crown operated very appropriately in this case. I defend what the Crown attorney did. The Crown immediately appealed the conditional sentence in May of '97, and it was the defence counsel who adjourned the matter and not the Crown. I cannot go into some of the details of what happened, but I can indicate very clearly on the record that the Crown only consented to the adjournment after it became clear, both that the adjournment was necessary, strategically necessary for successful appeal because of certain things and as a result of certain issues. I do not want to get into them, but I know that the Crown asked for earlier court dates, but it was a date of April 21 that was provided.

So I would suggest that there are many things that a Crown attorney cannot disclose to the court because it is not admissible, it would not be strategically prudent to do that, and so the court is left with its impression of the situation. That impression, and I believe I have heard judges say that, that we can only act on what we are given. Now I have been in certain courts where courts have said, when defence and Crown will come up and make a joint recommendation of five years, for example, on a sentence, the court will say, no, I am giving seven. That happens. So the court, I know and I think everybody knows, has a lot of discretion beyond what the Crown and defence state.

So, in this particular case, I would say though that the court acted on the basis of the information that it had. The Crown may well have had other information and other concerns. The criticism by the court of the Crown attorney for simply accepting a manslaughter in the one case may have been done for a number of reasons. I know it had been done for a number of reasons. We know that the courts have a certain role and the prosecutors have a certain role. The Supreme Court of Canada has said that the court should be very reluctant to second-guess prosecutors in their situation.

Now, getting back specifically to the issue of a protocol, I mean, there certainly is a procedure in dealing with these matters. We can certainly assume, in cases like this, based on the reorganization of the department, that where prosecutors will follow their cases through to the appeal, in high profile cases we can ensure that our prosecutors more vigorously monitor those cases.

But I want to say there has been a change in philosophy. When I was a prosecutor, we did maybe the transfer to adult court, and then maybe somebody did the Queen's Bench trial, and somebody else did the appeal. I remember very specifically in a case involving a murder out of the Waywayseecappo Indian reserve, an accused by the name of Vince Clearsky. I prosecuted Vince Clearsky in youth court, and he was transferred to adult court. I did the transfer hearing. I was asked--I was a first-year lawyer out, and I was asked if I wanted to do the murder trial. I said no; I did not think it was appropriate. I had never seen a jury trial, nevertheless done one. This was back in 1977. So I worked together with another senior lawyer. That senior lawyer did the case, and we got a conviction for second degree murder. We believed it was a first degree murder, but the jury came back with a second degree murder. I cannot remember whether that is all that the person was committed on after the preliminary.

But, in any event, it then went to the Court of Appeal. I remember sitting--it was not my case anymore. It was somebody else's case, and the Court of Appeal said: there has been an error here. We can send it back for a new trial or we can impose a manslaughter conviction. I was sitting there as the prosecutor saying I will take that case back, but I could not say it because another prosecutor was up front and said we will take the manslaughter. So, in that particular case, a manslaughter conviction was entered. A very heavy sentence was imposed for the manslaughter. I believe the sentence for manslaughter of that one was about 12 years, which is a fairly stiff sentence for manslaughter. I believed it was a murder, and so I lost my ability.

So one of the things that has changed in the last little while is that we will see prosecutors in important cases moving along with that case. I think that is important. I remember how I felt as a prosecutor. We cannot do it in every case. I know that, but we can do it in some, and maybe in this kind of a case that is what we need.

Mr. Chairperson: Order, please. The hour being 5 p.m., time for private members' hour. Committee rise.