Mr. Chairperson (Marcel Laurendeau): Good afternoon, will the Committee of Supply come
to order please. This section of the Committee of Supply has been dealing with the Estimates of the Department of Justice. Will the minister's staff please enter the Chamber at this time.
We are on Resolution 4.1.(b)(1) Administration and Finance, Executive Support, Salaries and Employee Benefits $406,200.
Mr. Gord Mackintosh (St. Johns): Yesterday when we broke we began discussing the issue of the Crown's opinion regarding the Friday book. I believe we were talking about how the Crown deals with such matters and what the role of the director of Prosecutions is in terms of vetting those kinds of opinions. Perhaps it would be best if we took it from square one today. I wonder if the minister can tell the committee what the procedure is in dealing with what may be to some obscene materials, what the process is as between the police and the Prosecutions division.
Hon. Vic Toews (Minister of Justice and Attorney General): Mr. Chairperson, yes, I thank the member for that question. I think this question gives me the opportunity to explain generally the function of the Attorney General. It is very, very important to appreciate under our system of law that the Attorney General's department is not an investigative agency. That is not its function. Under our system of justice, that role is left to the various police forces. The police departments act usually in respect of complaints, sometimes of their own accord. That is certainly their option to investigate crimes without complaints. The issue of when, for example, and I am talking generally here, if a situation arises where a member of the public complains in respect of a certain occurrence, a certain event, a certain object, the police make the necessary investigation, that is, they are the fact-gathering agency. The Attorney General's department does not gather the facts. Once an appropriate factual basis has been established by the police, the police then have the right to lay a charge under the applicable statute. It could be provincial legislation, it could be federal legislation.
If they feel the charge that is appropriate is, for example, under the federal Criminal Code, and they are unsure of exactly the propriety of proceeding from a legal basis, not a factual one, a legal basis, they may contact the Crown attorney's office where a prosecutor renders a decision, or an opinion I think is better put, an opinion to assist the officer in applying the facts to the law.
The officer then presents the facts, the Crown attorney presents the opinion for the consideration of the police. So, for example, if the issue is obscenity, and again I am speaking generally, the Crown attorney conducts the appropriate legal research and renders that opinion. That opinion is then given back to the peace officer, but the peace officer is not directed by the Crown attorney in those ordinary situations to lay a charge.
What in fact happens is the Crown attorney, for example, will say, this is an obscene object or obscene book and that decision or that opinion then forms the basis of the police officers or one of the bases of the police officers' consideration as to whether the facts in fact warrant a charge. So they consider the law, either as they understand it or has been clarified by a Crown attorney and apply that to the facts.
They then lay the charge. The police officer is the informant who swears the charge before the appropriate judicial official. Once that charge has been laid and the accused is then brought to the court by the appropriate process, whether through an arrest or an appearance notice or otherwise, the prosecution takes over the handling of the case. The prosecutor then is entitled to review the decision to see whether, in the entirety of all the facts and the law, a prosecution is warranted, as I indicated last date, on two bases, essentially, is there a reasonable likelihood of conviction and, secondly, is it in the public interest to proceed. I should point out our system of law under the Criminal Code, indeed, informally permits police officers to deal with situations on an informal basis.
That is not unique to one area of the law. For example, a police officer may consider that a child who has been picked up for shoplifting, it would be more appropriate to bring that child home to the parents and let the parent administer a rough and ready justice. It may be. He may consider that to be the appropriate mechanism, or if that is not the appropriate mechanism, there may be diversion through the youth justice committees, or there may be other ways of mediating these disputes before they ever get into that formal process. There is nothing improper with that. I think that is a sensible, sensitive approach for police officers to take in appropriate cases.
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When it comes then to the Crown attorneys office, the Crown attorney then determines whether there is this reasonable likelihood of conviction and, secondly, whether it is in the public interest to do so, all of which is to say then there is a very clear distinction, although an interrelated relationship, between the peace officer on the one hand and the function of the officials in the Department of Justice and specifically the Crown attorneys on the other.
Having said that, I wish to reiterate, as well, what I stated yesterday, that the general rule and practice in this country and certainly in the province of Manitoba is that the Attorney General is not involved in the decision as to whether or not to lay a charge or indeed whether or not a prosecution should continue or be discontinued.
The Attorney General is briefed on occasion with respect to significant charges or other matters that it is clearly in the public interest to brief the Attorney General, but, usually, that is given for the minister's information. The concern, of course, is, as I indicated yesterday, that political interference not take place in the laying of criminal charges, so we have to make that distinction within the department of the Attorney General, as well.
So I hope that outlines generally the function of the Attorney General's department with respect to any particular charge and the role of the police in relation to that.
Mr. Mackintosh: My question was in the context of the procedures in place, the process in place when questions of obscenity are raised whether by the police, Prosecutions or the public.
I guess, in particular, I ask the minister if initially he could now provide the committee with a copy of the opinion given by Crown Attorney Mahon with respect to the Friday book?
Mr. Toews: Mr. Chairperson, this question indeed gives me an opportunity to discuss I think a very important role of the Attorney General in relation to pending investigations. Often one will come to this House and a question is asked of the Attorney General, whether such and such is the case or whether so and so has been charged or what is the status of a particular investigation. Time and again, the answer, consistently, from every Attorney General should be that it would be inappropriate for the Attorney General to comment on any pending investigation and, indeed, if there is an investigation pending.
The concept is one which relates to the essential fairness of the system. The system must be perceived to be fair. For someone in the position of the Attorney General to comment on a specific investigation, to comment on a specific charge before the courts gives the impression to the general public that the opinion of the Attorney General is what should occur in the court or that is the conclusion that the police should arrive at. It is clear that the Attorney General does not influence in a political forum the progress of investigations or the progress of any charge before the courts.
One has to look at it from a number of points of view. First of all, the police in their investigative role have to determine the facts in a fair manner, and their investigation should not be influenced by political authorities or political statements that those authorities might make, including statements from the Attorney General in respect of a specific investigation or charge.
So we have the interests then of the police to be mindful of. Secondly, we have the interests of an accused or a potential accused who faces the might of the state, or the potential might of the state, in bringing a prosecution to bear on that individual, and it is very important to ensure that the Attorney General is not seen as prejudging a case in terms of a final determination. Yes, officials in the Attorney General's department may make decisions, may render opinions, may advise on the wording of charges, may decide to directly indict in certain cases, but the ultimate decisions in our judicial process, if we proceed through the court system, is left to a judge. So then to have the Attorney General making comments and rendering opinions in a public way could be seen to influence inappropriately a judicial figure.
Having said that, it is important to note that the Attorney General may make statements, give policy directions, consult with police officers and police authorities, indeed discuss the administration of the courts with judges, but in doing so one has to always remember the various roles of the parties which I have elaborated on earlier and which I will not repeat at this time.
And so, in respect of a particular opinion rendered by a Crown attorney, that opinion has been requested by a police authority. That police authority is seeking legal advice in much the same way that private citizens seek legal advice from a lawyer. It is not exactly the same type of relationship. There are differences but, generally speaking, the confidentiality of that relationship must in fact be protected. The police must be able to feel confident that these kinds of requests and the reply will not be made public in a manner which might jeopardize an investigation.
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So the Attorney General, given that it is not his or her role to investigate but rather to advise in situations and to prosecute in others, it would be inappropriate, generally speaking, to release police reports that have been shared in confidence and indeed inappropriate for the Attorney General's department in most cases to release opinions that they have provided to those police authorities for the purposes of their investigation.
So in this situation, I do not see any reason to deviate from those general principles that I have expressed and, accordingly, I could not release that opinion from the Crown attorney to the police.
Mr. Mackintosh: I wonder if the minister can advise whether the Crown opinion opined solely on the issue as to whether the subject material was obscene under 163 alone or whether it also opined on the possible or likely accused. The reason for that question is, I noticed that the libraries are being the focus of attention by the police investigation or the warnings by the police, and I am wondering if that was part of the opinion as a subject matter. He need not, in light of his earlier answer, advise me what the conclusion was by the Crown.
Mr. Toews: I do not think I would be able to or prepared to comment beyond what is already publicly known. The important point I think that is publicly known is that there is a Crown attorney who gave an opinion that the material in question was in his legal opinion obscene, but I cannot make any further statements. I do not think it would be appropriate for me to do so.
Mr. Mackintosh: Has the Minister of Justice reviewed the opinion provided by Crown Attorney Mahon?
Mr. Toews: No, I have not. I in fact have not seen it.
Mr. Mackintosh: We all recognize, and I think the minister perhaps more than most in light of his role in the Butler case recognizes the difficult issues, interpretive issues, that arise under Section 163. I think of phrases like "undo," "exploitation of sex," for example, even the word "undo" what that means, substantial harm to society or individuals, I believe, is another test that has to be examined, what is the dominant characteristic of the material being considered.
I notice the Supreme Court in Butler looked to see whether there may be exceptions. If the material is required, I think they said for the serious treatment of subject matter or theme or something like that as well raises issues of the tolerance of the community. Very difficult issues that I think, even the Butler decision alone, the subsequent decisions speak to. I think the concern by Manitobans right now is not whether the material that is the subject of media discussion is obscene or not. I certainly have no opinion on that. I would not have an opinion as to whether someone was guilty or innocent either. I have not read the book and I do not intend to. My only question is one of process. So, therefore, my question is given the difficult interpretive issues regarding whether a material is obscene or not under Section 163, what checks and balances are there in the Justice department to ensure that an opinion given as to whether material is obscene or not is well founded and has gone through a rigorous assessment?
Mr. Toews: I agree with the member for St. Johns that this is a very complex area. Indeed, even when you look at the wording of that particular section I must be candid. I have not read it in the last number of years, not having any occasion to require me to read that particular section, but I recall one of the arguments advanced was that the section was unconstitutional on the basis of vagueness. It was not only unconstitutional on the basis of violation of Freedom of Speech but vagueness. The doctrine of vagueness essentially falls under Section 7 of the Charter of Rights, generally speaking, and the essential question that one asks in respect of vagueness is, is the section so ambiguous, so unclear, that a reasonable person could not understand what conduct was being prescribed by the provision? That is a very quick summary of, I think, the vagueness doctrine.
The court, in that situation, replied, and in other situations have replied--because the vagueness argument was quite in vogue a number of years ago--and in those cases the court said the difficulty of interpretation does not mean that the provision is vague or violative of the principles of natural justice or fundamental justice enshrined in Section 7.
So the courts acknowledge that the task of people who have the responsibility of interpreting the law is not always an easy one, nor can it be made an easy task. They recognize the difficulty. I think the police to their credit recognize that they, by and large, while very skilled, very knowledgeable, a lot of experience, do not have the appropriate legal expertise necessary in many cases, and so they utilize the department of the Attorney General and the counsel employed in that department to provide legal opinions. These legal opinions are provided on the basis of the expertise that the Crowns acquire over the years. I happen to know this particular Crown, a very competent Crown, as most of the Crowns. Indeed, I believe, all of the Crowns there are, each one developing areas of expertise and assisting the police in investigations or prosecutions because of their expertise.
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In this particular case, it may be that the Crown attorney received a request or it was assigned to that particular Crown by the director because it was recognized that particular Crown had the expertise. That Crown could have then gone to a number of people to discuss it, and I know that was commonly done in the Attorney General's department when I was there, even as late at 1991, as the director of Constitutional Law. These discussions occurred on a regular basis. Sometimes a Crown attorney, feeling that he or she is unsure of the law or the law in relation to a particular set of facts, will take that on to the director of Prosecutions, but it is not necessary. It is not required. Indeed, it could be counterproductive in certain places to the professional development of these people.
One of the statements that I recall made by Mr. Justice Scollin in a case called Thwaites and the Director of Mental Health, in discussing the role of another profession, that of the medical profession and specifically psychiatrists, he said, and I still believe that he is correct, that ultimately no matter what kind of a law you draft, you have to rely on the professional expertise of the people who administer the law and interpret the law. So, in the case of Thwaites and the provisions of The Mental Health Act, one had to rely on the professional expertise of a psychiatrist.
Similarly, in the department of the Attorney General or the Department of Justice, we rely on the professional skills and expertise of an individual Crown attorney. In the case of a psychiatrist, that psychiatrist may consult with a nurse, may consult with another professional, may consult with another medical doctor, may consult with another psychiatrist, but it is not necessary. I would think that in most cases if you said to a psychiatrist, you shall do this in each and every case, it would be very counterproductive.
While the director of Prosecutions in this province is the head of Prosecutions, there are other senior prosecutors that prosecutors can go to, but in many situations the position of director or senior prosecutor is to give that guidance and to give that help.
One of the very progressive moves that was made in the Attorney General's department a number of years ago was the recognition of general counsel. It was seen for years in the Attorney General's department that if you wanted to reward somebody, you needed to promote them even if they were not particularly good in the position that they were promoting them. They had to promote them into administrative positions because that was the only way they could get more money. It was realized it was a wrong way to proceed. Yes, we want to recognize the skills that these people have, but we do not want to promote them into positions simply to give them more money so that they are happy for a short period of time.
And so these positions of general counsel were created; a recognition that there are people in the Attorney General's department who do not necessarily have administrative skills such as the present director of Prosecution has or the assistant deputy minister or the deputy minister or others, but in fact that they are mentors, that they can provide good solid legal advice. We have these general counsel throughout that legal side of the Department of Justice. You find them in Constitutional Law. I remember when I was in Constitutional Law and I was the director, the general counsel who reported to me was making more money than I was.
I believe that is an anomaly that has been straightened out, but in effect it really did not bother me that much because the point here was that general counsel was being recognized for specific skills that she had, skills that I might not have had and that she was better qualified. The department needed to recognize that in a way. So we have these general counsel positions in Constitutional Law, in Legal Services, in Criminal Prosecutions and these have served a very, very important function.
So while there is not a standard process by which people determine how charges and opinions are vetted, I think that there is a very strong network and supportive system in the Attorney General's department that, first of all, respects the independent professionalism of our Crown attorneys and yet provides them with the appropriate resources and backup in the necessary cases. I trust that answers the question.
Mr. Mackintosh: I am looking here. I have headlines in front of me: RCMP raids libraries for sex bestseller from British Columbia. I have another one in the Globe and Mail: Library ordered to pull bestseller. Winnipeg police mull porn charge. In the Free Press: RCMP raid B.C. libraries. This all comes, I understand, from the news reports, from a single opinion given by a Crown prosecutor in the Province of Manitoba, an opinion which may well be very well founded.
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As I said, given that there is a very difficult area of law here, the definition of obscenity is a difficult one. Given that this regards a matter of freedom of speech and the balances that are required under the Charter, the minister has, I think, by his answer, a long answer, said that there are only informal at best checks and balances within the Prosecutions department when providing an opinion. I do not care about other issues but opinions on whether a material is obscene. I want him now to confirm if he can--he can just answer yes or no--is it in fact the case then, and I am to conclude that when such an opinion on obscenity is requested, there is no requirement for a vetting or a team, a review of such an opinion, is there no requirement or formal process for any experts, for example, to be consulted as in Jorgenson, for one or any panel to be consulted? Is that correct or not?
Mr. Toews: I think that question raises a number of questions in my mind and each in turn lead to long and complex answers which I think need to be addressed here. First of all, the function of performing an opinion, the member--and I know he does not see that and is suggesting that--seems to suggest to the ordinary listener that opinions are somehow rendered in a vacuum, that a document is placed in front of someone and that person sits down and thinks about it in the way one thinks about some obtuse philosophical point. That is not how professional legal opinions are rendered.
A Crown attorney who receives a certain set of facts will look at those facts, will consider the appropriate legal authorities, including cases like the Butler decision and subsequent cases, and put his or her own expertise to the test. The member states, are there not experts that can be consulted?
I remember for many, many years the courts in this area, and this might still be the case in some obscenity cases, said we do not need experts to tell us whether something is obscene. We will make that determination. So for years judges by themselves made those types of determinations as to whether something was obscene, whether or not there was expert evidence as to whether something violated community standards. Quite commonly done.
(Mr. Daryl Reid, Acting Chairperson, in the Chair)
In terms of expertise, the member asks: Were experts not consulted? I want to assure the member that the Crown attorneys in this province are the experts. If one looks, and I had the most familiarity in the latter part of my career with the department as a lawyer, with the issue of expertise in Constitutional Law. In my opinion, there was no better group of people in the Province of Manitoba to determine many questions on an opinion basis than the lawyers themselves in that department, and I do not necessarily include myself.
Certainly, the expertise demonstrated by the other members of that branch have been recognized over and over and over again by the courts in this province, and the same thing can be said of the Legal Services lawyers who, with many years of experience, all acquire a certain expertise and have demonstrated that expertise over and over again.
In saving the criminal Crown attorneys for the last, I do not want to, in any way, belittle their expertise because, indeed, these people are the experts. I recall a colleague of mine who worked in the Attorney General's department for a number of years returned home to Australia where he wanted to practise as a lawyer, and they would not even recognize his law degree, after he had practised as a prosecutor in our courts, in Australia.
They wanted him to, in this particular state, take more courses and then rearticle or enter into the bar through whatever process they have in place there. Then one day the state decided that they would proceed to a public prosecution system much like ours and this individual, coming from a position where his law degree was not even recognized, became the head of Prosecutions in that particular state, clearly a recognition of the quality of prosecutors that we have in this province.
(Mr. Chairperson in the Chair)
So when the member says did they not consult with experts, I think that is terribly belittling to the expertise that our Crown attorneys and my former colleagues have. These are the best in the Province of Manitoba when it comes to advising police officers in respect of opinions. I would be quite interested in the opinion of the member for The Maples (Mr. Kowalski), who served in a very distinguished capacity as a peace officer in this city, who I know consulted with members of the department of the Attorney General for many, many years. I think in cases, maybe in one case, maybe in none, but there might have been some misgivings that that police officer might have had about a particular opinion.
But there is a process. He could go to his sergeant and say, I am not happy with that Crown. They could explore that further, because this is not an exact science. We do not want to stifle the professionalism of police officers who, through experience and education, have demonstrated their expertise over and over again in this province. Nor do we want to insult and embarrass the expertise of our Crown attorneys who, on a daily basis, demonstrate their commitment to principles of justice and the serving of the police in various capacities, or working together with the police in various capacities in the day-to-day execution of their duties.
I do not know what the member means by saying let us refer this to experts.
Mr. Mackintosh: Point of order, Mr. Chair. I have been in Estimates enough in this House to recognize when we are being filibustered. Now we are hearing nonsense, not just a discussion by the minister. I asked a very simple question. I think I deserve and I think the committee deserves a simple answer.
First of all, on this particular point of order I have to say that in no way did I ever say there should have been expertise. I asked whether there was. By the way, the minister should know that expertise has been the practice in his own department. I think particularly of Dr. Malamuth, who has been called in in the past giving opinions to the Crown prosecutors as to whether matters are harmful to society. If he wants to misconstrue my words, that is very unfortunate. I think we should get down to business here, answer the questions, and get going with Estimates. If he has all summer, I have all summer.
Mr. Toews: My understanding of the question was, is there a formal process by which these opinions are vetted That was my understanding. What I was answering was exactly that process. To suggest that you can set up these administrative boxes where you can route legal opinions like sausage is nonsense. So I was simply explaining the expertise that our Crown attorneys have and the relationships that the Crowns have with the police. If I am permitted to answer the question fully, I want to get into another point that has not even been touched on by a specific issue raised by the member.
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Mr. Chairperson: Order, please. On the point of order raised by the honourable member for St. Johns, I believe there were two points that he made. On the first point, I think he was reflecting on the amount of time the minister was taking in answering his question. For the member's information, the minister has up to 30 minutes on his responses.
On the second point that he was making, I would rule that it would be a dispute over the facts on how the minister answers his question or relates to that answer.
The honourable minister, to conclude his response.
Mr. Toews: Now, we were at the point where we talked about the relationship with the police and the Crowns. Crowns do not make these opinions in a vacuum. They rely on the expertise of the police, and they rely on the guidance given to them by the court. When an opinion then is made by one of these experts, whether it is done in consultation with outside experts which is done from time to time in the same way that a psychiatrist or medical doctor would consult for second opinions--but there are no rules when that doctor would do that; rules in a fixed and firm way--ultimately it is that Crown's opinion, it is a professional opinion of an individual that comes to bear on the matter. So then the opinion is sent back to the police, and then the police who perform the investigative role still have various options. That option includes the laying of a charge, not proceeding with charges, or seeking some alternative mechanism by which to resolve a complaint that affects members in our society.
So it is not that the Crown opinion places the police into a straightjacket of one sort or another. The police are independent in their investigative role. It is very, very important to remember that point.
Then, lastly, let us assume that a police officer decides to lay a charge, swears an information, brings the accused before the courts. What happens then? There are entirely new factors which come into play. Number 1, the Crown attorney who may be assigned to the case, which probably in most cases is not the Crown attorney who gave the legal opinion. So you have that entire process.
Then you have the issue of the judge, who, of course, is absolutely independent of the prosecutor or the accused and the accused's counsel. So the opinion of the Crown attorney, the Crown attorney who initially gives that opinion to the police knows ultimately that his or her opinion will be tested in court. That acts as a further check on what type of opinion is rendered, or how that opinion is acquired.
Now, I do not know Mr. Mahon's specific expertise in the area of obscenity. I know that he has been a Crown attorney for a number of years, and I know that either the police had confidence enough to go to him, or that file was assigned to him by the director of Prosecutions which, in that sense, acts as a check, the one, an informal one; and the one, a more formal one, the routing of an assignment through the director of Prosecutions, which those kind of opinions usually come and are sent to the director.
But the Crown attorney, in rendering his or her opinion, knows that the independent judiciary is the ultimate check and balance in the criminal justice system. So is there a yes and no answer? No, there is no yes and no answer. Are there checks and balances? Absolutely.
Mr. Mackintosh: I think the minister has said that there are no formal checks and balances within the prosecutor's department itself. I know what he is talking about of course is the check and balance in the overall system once a matter is actually prosecuted and brought to court. My question now is--well, I think maybe this question--why, if the minister could ask his staff, was this opinion given to one prosecutor in particular? Was it because Mr. Mahon--I do not know Mr. Mahon. He is highly regarded, I know that. It is no question about the individual, but why was one particular prosecutor assigned this opinion? Was there a particular expertise on Mr. Mahon's part? Had he prosecuted and given opinions on obscenity issues before?
Mr. Toews: I want to be very careful about talking about any particular case, but I know, and I am advised by staff, that Mr. Mahon has developed a relationship with the vice-police in terms of an ongoing series of cases, and from time to time police approach him for opinions. So it would only be natural that in any particular case involving obscenity, the Winnipeg Vice Division would go to that person, because he is recognized as being an expert Crown attorney in that particular area.
Mr. Mackintosh: Just to clarify, can the minister confirm that this particular legal opinion did not go to the director of Prosecutions before it was given to the police?
Mr. Toews: Yes, I am advised that that opinion did not go to the director of Prosecutions.
Mr. Mackintosh: The second issue, I think, beyond the issue, and the minister talked about how the system must be perceived to be fair, and so we talked about the underlying observation by Manitobans that, by golly, look at the power of one person's opinions affecting a matter of reading material in the country.
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The second issue and observation that I think Manitobans have here is, by golly, look at the materials that are proliferating that are apparently, and I say using just a lay definition, obscene. When you look at the proliferation of X-rated videos, video stores, look at the enlistment of people to use violence in video games, for example, look at the proliferation of violence on television and other media, there is, in the media, a real obvious change over the last number of years. So the question is this: Assuming that this material is obscene, will the other materials that may well be obscene only to be looked at when a complaint is lodged? In other words, is the state's role in trying to contain obscene materials merely complaint driven?
Mr. Toews: Mr. Chairperson, I think that question is a very interesting one, and we could get into a long philosophical discussion about that. I think I made it clear at the onset that the role of the Attorney General's department is not an investigative role when it comes to investigating crimes. That is the role of the police. There are general policy directions that the Attorney General's department may give from time to time in interpreting provisions of the code which, again, are a reflection not of the policy necessarily of a provincial government, but a reflection of the government enacting federal legislation. So the provincial Attorney General might provide policy directions or opinions or guidance in respect of legislation which he or she may not agree with. That occurs quite frequently given the delegated system of responsibility for prosecutions under the Criminal Code. I emphasize that it is a delegated responsibility by one level of government or one parliament to another.
The member also stated and talked about the power of one person's opinion. That is why I took some pains earlier to talk about that this is not one person's opinion that is somehow created in a vacuum and that there are no consequences to the rendering of this opinion. These opinions are seen in a much broader framework and operate in a much broader arena.
I find it interesting that the member would express concern about the power of one person's opinion in this context and note, with some irony, that it is five people or seven people or nine people, in effect, who are driving the entire criminal law policy in Canada. I am speaking about the Supreme Court of Canada, seven or nine or five individuals making essentially policy decisions in their interpretation of the law.
I think if one would have thought when the Charter of Rights came into effect in 1982, to talk about freedom of speech and pornography or even commercial speech in the same context, one would have had a very difficult time making that kind of argument, indeed, when the Court of Appeal dealt with either the Butler case or the reference on prostitution, which is also known as reference re Section 192 (1) (c) of the Criminal Code, I think give or take a few section or subsection numbers.
Mr. Justice Huband, I recall, brought out a book and he talked about what freedom of speech means in the context of our British parliamentary system and interpreted freedom of speech to be consistent with values that related to political speech in a narrow sense, but certainly not as expansive as including what you and I, Mr. Chair, would consider to be pornography or even political advertising. The court, as I recall, was unanimous on that point at the Court of Appeal level. The Supreme Court of Canada offered support, certainly from past cases.
The Supreme Court of Canada talked about the purposive approach to the interpretation of sections of the Charter of Rights. That is, one interprets each section in the context of Canadian values, beliefs and opinions, and the court would make this determination. In the context, then, of Section 2(b), the court virtually did an about-face, jettisoned the purposive approach and essentially said, every time you open your mouth and utter a vowel, that is speech protected by the Charter of Rights, the implication of that then being that the Crown would have to demonstrate that every utterance made that they wish to proscribe or see in a criminal context, they would have to justify that law. So a very, very interesting approach by the Supreme Court of Canada.
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These were seven or nine people in Canada that made that decision. These were the same seven or nine people that made the Butler decision. So now we have on a daily basis, hundreds of Crown attorneys or, perhaps on a yearly basis, hundreds of Crown attorneys looking at those sections of the Criminal Code, looking at the Supreme Court of Canada's decision and determining whether something is obscene. That is the nature of our system since the Charter of Rights.
I am not offering any judgment in that respect, whether that is right or wrong. It is what the politicians of the day and the people of Canada chose and the system that we have in respect of Crown attorneys. It is a system that has been perfected over hundreds of years. Yes, we ultimately have to rely on the professionalism, on the expertise of that Crown attorney whose conduct is governed by departmental standards, by professional standards, by the ultimate knowledge that whatever he does today may find its way to a public place.
So that Crown attorney, then, assists the police in the system of law that we have. This is getting back more directly to the point raised by the member. We see a proliferation, he says, of violence in video games. If we are going to charge in one place, what about all the others? Well, remember, the Attorney General's department does not do the charge. That is the informant who lays the charge, usually a police officer.
It kind of reminds me of the situation where a person speeding down the highway is stopped by a police officer. No doubt the member for The Maples (Mr. Kowalski) has heard this hundreds of times. Why did you stop me? I was simply going the speed that everybody else was going, and look at them, they are all passing, and they are all speeding and you are doing nothing about it. So here we have a situation where a police officer has made a determination that he will stop a certain vehicle, whether it is complaint driven or whether he acts of his own accord or her own accord.
So the role then of the police officer is to lay that charge. It is not an excuse that everybody else is speeding or that everybody else is distributing pornography, if you are the ones who have been caught for doing it. I am not suggesting in any particular case that that is happening; I am talking generally, using that as an example. So what is the role then? Obviously, one does not charge or cannot charge everybody who speeds down the highway. That is why there are certain principles in sentencing, firstly, those principles and secondly, the function of judicial decisions.
Let us take a look at principles of sentencing; firstly, specific deterrence, and secondly, the general deterrence. It is hoped that in any particular crime the judge bears those two in mind, so that when a sentence is rendered, it is not just that individual who has been caught for breeching the law who is asked to account for his or her actions. Indeed when that sentence is rendered, it also sends out a message to a broader community that this type of conduct is not acceptable; so general and specific deterrence then, very important principles in sentencing.
Coincidentally, and we could talk about Bill C-41 for a long, long time, but that is one of the concerns I think that many people have, that some of this legislation that the federal government has passed, in fact, operates in favour of sophisticated, white-collar criminals. A bank manager, for example, who steals a half a million dollars and then is fired, well, he certainly will not be in that position to steal that half a million dollars again, so what purpose would there to be to sending that individual to jail? Well, the purpose is general deterrence, so that if there is anybody out there thinking that they might want to steal the half-a-million dollars, they have got to take into account the sentence that that person received.
Especially in the area of lawyers who have breached the law, the courts have been very stringent, and that general deterrence principle has been a very important principle. So I have dealt with that issue.
The second issue is the issue of judicial reasons. Judges do not write decisions simply because of an academic exercise. They write them to inform the public of why they are ruling the way they do. Especially in an area like, let us say, pornography where many of the purveyors of pornography are commercial people, sophisticated people, they can read, they can understand, and they can be guided by not just the actions or the wording of a very stark provision of the Criminal Code but the elaboration that the courts give through reasons for decision.
It is very important then that we see that these functions are not simply the functions of an individual Crown attorney, not simply the function of an individual police officer, but this is an entire system that operates to accomplish an end. That end, it is hoped, is what we loosely term as justice.
The other thing that we cannot lose sight of, and which needs to be emphasized again, is that the Supreme Court of Canada has repeatedly said that the exercise of discretion, that is, the exercise of judgment, is an essential part of our criminal justice system. So the police assess facts and they assess charges. The Crown counsel make many decisions. The courts often exercise decisions. The Court of Appeal exercise discretion.
So it is not the nice, clean, scientific system that perhaps many people would wish we could achieve, but it is certainly the product of many hundreds of years of development and has served us very well.
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Mr. Mackintosh: We were just wondering why the minister is going on and on. I could write my bar exam after this.
Can the minister tell the committee whether there have been any convictions through a decision or through plea bargaining or through trial for obscenity charges since the Jorgenson or Adults Only Video case in 1994?
Mr. Toews: The member raises a good point, and with reference to the earlier question that he asked about how society changes and things occur and the proliferation he indicated of violence in video games, obviously the investigative authorities need to constantly be vigilant for new ways that this crime, pornography, may be perpetrated.
So, in respect of pornography, since the Jorgenson case, I know of at least one situation, and I am advised of that, of a police investigation in respect of computer pornography. I appreciate video violence is not exactly the same, but I think pornography is essentially, as the court said in Butler, violence against women could be violence against people. That is what pornography is all about, not necessarily in the literal-physical sense, but it violates human beings.
So in a number of cases, individual cases, separate cases in '95 or 1996, there have been approximately six convictions for this type of computer pornography. I think the police need to be commended for the efforts that they are taking in that respect. They are a difficult crime to prove. Computer frauds are often very difficult and computer pornography is no exception. It entails working closely with not just local authorities but, in fact, authorities right across Canada, because of the nature of computer systems. So that is an example where pornography laws continue to be enforced here in the province of Manitoba. This does not deal with situations where police are alerted about pornography and then may contact other police departments as a result of information that they receive for those police to investigate pornography on the computer or otherwise in situations occurring in other provinces.
As the member can appreciate, there is often a difficulty in determining exactly where crime like that would, in fact, occur. So while technology has brought many advances, many benefits, it has also created legal issues. I think that, generally speaking, police have responded very proactively, very progressively in meeting these new challenges.
Mr. Mackintosh: Is the minister now considering any new procedures, directions, or policy regarding prosecutor opinions, the role of prosecutors or police regarding obscenity charges and information?
Mr. Toews: I certainly have not reviewed any new policies in regard to the prosecution of pornography in the last number of months that I have been the Attorney General. I assume that Crowns, and I think as demonstrated by convictions in the area of computer pornography, attempt to meet these challenges by working with the investigators to ensure that these types of crimes are kept in check. Certainly, it is our hope that when we bring these very difficult situations to court, that we are able to advise the court about those difficulties and that we can appropriately advise the courts through the Crown attorney as to the importance of dealing with matters such as pornography and the difficulties associated with their prosecution.
I think, generally speaking, the courts in this province have been very, very receptive, not just in the area of pornography but in other challenges that we face. I think it is incumbent upon our Crown attorneys to keep the courts advised as they meet these new challenges. I do not know if the member is referring to any specific situation that he feels needs be addressed, but I would certainly be willing to hear from him in that respect.
Mr. Mackintosh: Is it, therefore, the minister's position that the current procedures and protocol for dealing with request for opinions, the provision of opinions and the investigation of obscenity complaints needs no change, and he is satisfied with the current regime? He can answer that without commenting on the particular instance that prompts this line of questioning, although he may want to.
Mr. Toews: I have not specifically turned my mind to that issue. I am satisfied generally by the conduct of our Crown attorneys in prosecuting crime generally, and I am satisfied that they understand the changing nature of law, court decisions, and that they take those into account. Indeed, our recent restructuring of our criminal prosecution system is an example of how we need to constantly reassess our situation and ensure that we are meeting the challenges that crime presents us with.
The system is never perfect, and I am willing to entertain suggestions, as are the administrators in the Department of Justice, to see how we can improve the enforcement of the law in this area. Again, I would suggest that if the member feels that there are some inadequacies in the way any particular case was dealt with that is indicative of a systemic failure, I would be interested in hearing that, because I do not want to manage the department on a person-by-person basis. My responsibility and the responsibility of the administrators of the department are for the administration of justice and to ensure that there is a system in place for the administration of justice.
I think one of the things that does need more attention is the apparent lack of sensitivity of the federal government in passing laws that directly impact on provincial resources without providing any additional provincial resources for those provincial Attorneys General who are responsible on a day-to-day basis for administering the Criminal Code. So I would be particularly interested in hearing from members opposite, including the member for The Maples (Mr. Kowalski), as to how we could convince the federal government that as their delegated agent in carrying out criminal law responsibilities in this province, how we can get them to also recognize that if they demand of us certain duties, there is a reciprocating responsibility on them to appropriately fund the justice system.
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Mr. Gary Kowalski (The Maples): On a point of order. I am just trying to understand the minister's response. Is he recommending that the federal government decriminalize a number of activities, whether it is drugs or whatever criminal activities he is suggesting, so we do not have such a cost to the justice system? Is that his point here?
Mr. Chairperson: Order, please. The honourable member did not have a point of order. Clearly a dispute over the facts.
Mr. Chairperson: The honourable minister, to conclude his answer.
Mr. Toews: He did not have a point of order, and I agree with you, Mr. Chairperson, but he had a good point. The point is, not necessarily in respect of drugs, where the federal government has made certain changes which directly do not impact Prosecutions in the provincial Attorney General's department. They may impact in the federal Attorney General department, but let us say in the area of Corrections.
I mean, let us say that one day the federal government simply decides and says, you know, we do not think that people under the age of 18 should be going to closed custody institutions. These children should be out on the street. What we need is intensive supervision of these children out on the street on a 24-hour basis. So what they do then is, through their federal spending power, say 80 percent of all the money going to pay provincial Corrections for youth Corrections now must be in respect of intensive supervised governance of offenders outside of custodial institutions.
An Honourable Member: It is cheaper.
Mr. Toews: The member for St. Johns (Mr. Mackintosh) says, well, this may be cheaper, but let us assume that it is not cheaper. Let us assume that it costs a lot of money, because I know that in one particular case where 24-hour around-the-clock supervision, one case, has been suggested the cost is somewhere in the range of $180,000 a year. That is what the cost is to supervise on an around-the-clock basis.
So let us say someone asks us to take a child from a closed custody to the open custody, and the federal government says that is how we are going to fund you, is there not some corresponding responsibility on the level of government that implements the policy, to also put their money where their mouth is and say, we believe in this, by funding you to the $180,000, because after all this is our legislation?
Mr. Chairperson: Order, please. The honourable member for St. Johns (Mr. Mackintosh), on a point of order.
Mr. Mackintosh: This is a point of order, or else it is another good point. I would just ask the minister, is he now suggesting that when the province puts more onus on the local police authorities through changing laws under summary conviction laws or makes changes in prosecution procedures or charging procedures that the province should also be enhancing then the resources at the municipal level? Because I have heard it as a complaint, particularly from the City of Winnipeg Police Services, that additional demands are being put on the police services with no corresponding increase in funding, and that is regarding the provincial government.
Mr. Chairperson: Order, please. Clearly, the honourable member did not have a point of order. I believe the honourable member was attempting to pose a new question with that point of order.
I would just like to bring to the honourable member's attention, all honourable members, that points of order should be raised when we are moving away from the ordinary rules and not to pose questions or interrupt someone's statements.
Mr. Chairperson: The honourable minister, to conclude.
Mr. Toews: Well, that is a very good point. I think that is an excellent point, and I can demonstrate an excellent example of how the provincial government responds to the concern of municipalities by providing $2 million every year to put--
An Honourable Member: That was because of increased crime, not changes in the rules.
Mr. Toews: To put 40 more police officers onto the street, but there it is, the province responding to policy concerns raised by a municipality and saying we have to enforce the law.
An Honourable Member: You were responding to our platform.
Mr. Toews: The members says the provincial government was responding to an NDP platform. You know, one thing that I know the Liberals are very good at, and that many of us should be better at, is accept good ideas from wherever they come, and whether it is an NDP idea, which I do not know and I am not prepared to accept that but let us say it is for the sake of argument, an NDP idea, I think it is a great idea, and so we put these extra police officers on the street to accomplish certain policy ends because the province wants to see crime down, and suppression is one mechanism.
So there is an example, and I am saying should there not be a similar type of rapport between the federal government and the provincial government instead of a top-down federalism that says you will enforce our laws, and by the way, we are not giving you any more money, any resources, and we are not talking about it. That is what concerns me, and that I think is the essential problem in respect of the administration of justice in our country today.
An Honourable Member: I think the member for St. Johns (Mr. Mackintosh) needs five minutes to get his next question ready.
The committee recessed at 4:07 p.m.
The committee resumed at 4:21 p.m.
(Mr. Peter Dyck, Acting Chairperson, in the Chair)
Mr. Mackintosh: We are discussing the prosecution issues as it affects several different public policy matters, and one area of concern to Manitobans on different sides of the issue is the recently introduced federal gun registration program that is part of Bill C-68.
I am aware of the minister's views as to his responsibilities under that regime. I have noted his comments in Hansard on a grievance and other comments other places, and I was interested to hear his view of the Catagas ratio from yesterday and, as well, his comments on Hansard to the effect that it was his interpretation that he had discretion as to whether he and the province was obliged to enforce and administer the registration scheme.
I have a copy of the bill here, and I am wondering if the minister can, first of all, tell me the section number that he was making reference to when he said that when the bill talked about the designated minister, it allowed the provincial Attorney General to pass, if you will, on becoming a designated minister and that the enforcement administration could be left to another agency which in his view would be the federal government.
Mr. Toews: We must be very careful about the terms that we use here, have to be careful when we deal with a specific section of the Firearms Act. The act, which is passed by the federal Parliament, is subtitled An Act Respecting Firearms and Other Weapons. Section 2(1) of that act, in my version--I believe I have the final version unless in the dying moments some significant changes were made--it says, "'provincial minister' means (a) in respect of a province the member of the executive council of the province who is designated by the lieutenant governor in council of the province as the provincial minister, (b) in respect of a territory, the federal Minister, or (c) in respect of any matter for which there is no provincial minister under paragraph (a) or (b), the federal Minister."
That relates to the administration of the registry, clearly setting up an option. If the Lieutenant Governor, and there can be no compulsion by one level of government to compel another jurisdiction to make a designation, this in fact respects the division in the Constitution by specifically acknowledging there is a delegation element here, so it respects the right of the provincial Lieutenant Governor in Council to designate, or not to designate, a minister in respect of the administration of the registry, because they specifically then go on and say, in respect of any matter for which there is no provincial minister, the federal minister. That is very unique.
If you take a look at the Young Offenders Act and see a very straightforward delegation which appears to leave no option on the statute to a provincial director, I think one of the delegates is referred to, and others, I do not know whether this was done as a result of the political sensitivity of this particular bill, but it clearly contemplates an option: Lieutenant Governor in Council has a right, as they do constitutionally in any event, so this is simply recognizing, by statute, what already is implicit in the Constitution, that there is no requirement for a provincial Lieutenant Governor in Council to do anything at the request of another government.
If you look at constitutional law, one of the very important things about Canada is that it is a confederation. Now, what does that mean? That means that there is no senior level of government vis-a-vis the provinces or the federal government. There are different governments acting in legislatures who have different legislative powers, each one of them constrained by particular constitutional acts. I sometimes wonder when people talk about the equality of provinces what they are actually saying, because if they are suggesting that provinces are equal in the sense of being identical, they are wrong. Every province is different. That is why we are a confederation.
If you look at the confederating document that specifically affects Manitoba above and beyond the Constitution Act, 1867, and look at the Manitoba Act of 1870, you see all types of peculiar provisions, peculiar in the sense of singular, that is, individual, not shared by other provinces. Different rights belong to different provinces. The courts traditionally have recognized that difference.
One case which simply illustrates the point that I am making here about this being an option rather than any kind of requirement on the provincial Lieutenant Governor, because it would be unconstitutional, I would submit, otherwise is the Churchill Falls case. In the Churchill Falls case, you have the government of Newfoundland contracting with the government of Quebec in respect of a power arrangement and the sale of power to Quebec.
After Churchill Falls was developed at some cost, much of which was contributed by the Quebec government pursuant to bonds and otherwise, the Newfoundland and Labrador governments realized that they had a bad deal, that inflation was not taken into account, and they in fact were providing electricity or power to Quebec at a very low rate which Quebec then resold. They thought this was unfair. It may well be. They took certain unilateral steps to terminate that contract. One thing that the court said in disallowing Newfoundland's attempts to get out of that contract is that in its legislative area, it is supreme; as is Quebec, it is supreme. But once they entered into this contractual relationship, they compromised that supremacy. They had compromised certain of their rights. It now affected the rights in another province, and therefore they could not unilaterally terminate that contract, clear recognition that each province was supreme in its area. Now, you say, well, but we are not talking about provinces here; we are talking about the federal Parliament and the provincial Lieutenant Governor in Council; interesting.
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There is an interesting case called Re Cape Breton Troops. The Lieutenant Governor in that case called in federal troops to quell a riot of miners in Cape Breton. The federal government sent the troops under their legislation and then required the province to pay. I am going to shorten my discussion of that particular case, but what was clear from that case is that the federal government could not compel the provincial government to pay pursuant simply to the legislation. They had to rely on some kind of contractual authority but, recognizing that the federal government could not impose liabilities onto a provincial government without the consent of that provincial government, provided that each is acting within its sphere of constitutional responsibility.
Similarly, where a province provided, in another case, child welfare assistance, as I recall the case, and then attempted to bill back the federal government, the courts held that there was no right of the province then to bill that back for services that they had provided even if the federal legislation required them to provide those services.
So the point of these three cases is that one level of government in its sphere of operations cannot compel another level of government, a different jurisdiction, to do something where it involves an expenditure of money or an exercise of discretion. I think that principle is not just fundamental to confederation, but it is fundamental to representative democracy in our entire parliamentary system.
How can you compel a government, an independent legislative body--I am leaving municipal authorities aside for the time being because they are simply a creature in a legal sense, of the Legislature. They are in a very different position as a government--but you cannot compel one level of government to spend money through your acts. It is fundamental to our democracy. It is fundamental, and it is as fundamental as the Magna Carta, where the king was restrained from taxing without the appropriate legislative authority signifying its consent.
So, in sort of a long way, that is exactly what is happening here. The federal government is saying, if you want to you can designate a provincial minister. If you do not, it will be the federal minister who will administer the gun registry, and that is the way it should be, because we here in this Legislature determine how the money of the taxpayers of Manitoba is to be spent. It is not for a separate government, Saskatchewan, Ontario, or even Quebec, to suggest to the elected representatives, democratically elected representatives of the people of Manitoba how they should spend money. The federal government raises matters within their jurisdiction, raises monies for their matters falling within their legislative jurisdiction. Manitoba raises it for matters within its jurisdiction.
This is not to say, however, that the federal Parliament cannot say we are raising these monies, and now we will expend them for particular purposes in various provinces, and that leads us into an entire discussion of the federal spending power. It is a very important issue for many provinces how the federal spending power is exercised. Clearly, a large concern to a province like Quebec which has seen the federal spending power as a mechanism for undermining the principles by which it came into Confederation.
In many cases, it views the expenditure of money by the federal government in areas of provincial responsibility in Quebec as undermining Confederation. This legislation then, I think it is beginning to glimmer in the federal government's head that we live in a confederation, that each of us has separate legislative responsibilities, and that one separate government does not dictate to another through legislation how that other level of government is going to spend its own money.
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It might be quite another thing if the federal Parliament said, here is an option, and, by the way, we will pay all the money for it. That might be something, if the government on a policy basis said that this legislation is good legislation. Even if they said this is good legislation, and I am leaving that whole policy discussion aside, because I do not think it is particularly helpful or relevant here, but then at least the federal Parliament is saying, we are asking you to exercise your option in favour of administration and we are paying. In this case, as in many other cases, the federal government does not appear to want to accept the financial implications of its policy and legislative actions.
So that is one of the fundamental concerns here, but they are recognizing their area of responsibility and that in order for Confederation to work, there has to be co-operation by the various levels of government. So in respect of the administration of the registry, that is the option there.
Now, if we look at the second issue--let us be very careful again here and use the correct word--the commencement of proceedings under this act, and there are a number of sections that deal with this, but Section 116 says, any proceedings in respect of an offence under this act may be commenced at the instance of the Government of Canada, and conducted by or on behalf of that government.
Very interesting proposal, or sentence, or section. If it is the government of Manitoba's responsibility to prosecute, why would the federal Parliament not have said that? Why would they not have said specifically that? But what they say is that the offence may be commenced at the instance of the Government of Canada and gives no other basis for proceeding. What the "may" here is is empowering. It allows the Government of Canada; it does not allow anyone else to.
If one contrasts that section with provisions under the Criminal Code, for example, one sees a very different, in fact, I think a more unilateral approach to federalism that the provinces may choose to accept. I do not have an issue with prosecuting under the Criminal Code. I think that is the way our system works best, but we clearly have to continue to talk to the federal government as it continues to change the law, and, unfortunately, does so on a unilateral basis that has ramifications, financial and other, upon the provinces. How can we have in a confederation one level of government unilaterally ordering an independent level of government, in the sense of independent legislative authority, to do things?
If we talk about a province and its relationship to the municipality, it is very, very different. Municipalities are in effect creatures of the province. They are corporations like any other corporations, for the most part, even though there are some very special aspects to these municipal corporations, but they are corporations. They have no independent constitutional existence. So in this situation it is clear that in respect of the administration of the firearms registry, there is an option. The Lieutenant Governor may choose to appoint a minister, and if the Lieutenant Governor does not, then it falls to the federal Minister of Justice. If there is a prosecution, the prosecution is commenced under Section 116 by the Government of Canada.
You know, I have heard all these experts talk about, well, how can the provincial Attorney General not prosecute under a federal statute? Well, let us take a look at the Narcotic Control Act. Who prosecutes under the Narcotic Control Act? Federal legislation, enacted pursuant to the federal criminal law power, but who is the prosecutor? The Government of Canada, Her Majesty, in the name of the Government of Canada or in the right of Canada. So, again, the fact that it is a criminal process does not mean that it then becomes a provincial responsibility to prosecute, as we clearly know from the Narcotic Control Act. Under the Criminal Code, the provinces have accepted that delegation.
In the Firearms Act, the federal government has specifically allowed for an option. Now, that might seem generous to allow for an option, and I concede it is a lot better than unilaterally ordering one level of government to do its job. But what concerns me about this is the development of policy by one level of government with this half expectation that another level of government should carry it out, and yet there is no recognition of that input and the necessity for talking and co-operating. That is the fundamental problem with acts like the Firearms Act, that there is a development of policy and an impact upon provincial resources.
We, in this province, have indicated that we have certain priorities, and we have stated all those priorities to the people of Manitoba over and over again, and our expenditures indicate what our priorities are. We go to this Legislature to ask for permission to expend monies on our priorities and then, unilaterally, a government comes along and says, we do not respect Confederation--
The Acting Chairperson (Mr. Dyck): Order, please. Time limit is up.
Mr. Mackintosh: I might want to leave this with the minister that I do not think there has probably ever been a question asking for a particular section number that ended up in the time limit expiring for the minister in his reply; but, if the minister wants to continue to pontificate for Solomon and Moses, I do not know who else may be listening or reading, I suggest that the minister is repeating comments that I said I had already read. I was asking a very specific question.
It is his option if he wants to extend the Estimates. I am sure he has other critical matters of justice to deal with in this province, but I leave that for him to think about.
My question is now, and I ask him--I think he could answer this very simply--is he then construing this legislation, the Firearms Act, not as criminal law?
Mr. Toews: Well, you see, and this is what necessitates these long answers. I specifically recognize that the federal government may pass legislation pursuant to its criminal law power. Without getting into what exactly this is, which I will get into, but it is important to make this point, is that the federal government unilaterally decides, the legislative creature that it sets up, who will prosecute under it.
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So, in the area of the Criminal Code, which is truly criminal legislation, it basically designates, without apparent option, the provincial Attorney General. In the Narcotic Control Act, which is criminal law as well, under the criminal law power, it designates the federal Attorney General, which is appropriate. A defence case, I believe it was Hauser and all those cases, H-A-U-S-E-R, talked about what they are doing. The defence said, why is it that the province prosecutes under one criminal law statute, and the federal government prosecutes under another? Good question.
The Supreme Court of Canada essentially answered that question. It said, it is a delegated authority. It is not a constitutional responsibility of the province to prosecute under the Narcotic Control Act or the Criminal Code. That is a delegated responsibility.
Now the question that the Supreme Court did not really address is, when you have a delegated authority or power rather than a constitutional responsibility, can the province then say, we will not prosecute? That is clearly the implication. It is clearly the implication, because any delegation may be refused. That is the nature of law unless there is some kind of a positive duty upon the person to whom it is delegated to fulfill that obligation.
The courts, in all those cases, went through it and did not find any responsibility upon the province to prosecute, in the sense, a positive responsibility. There was a right where they received that delegated a power, but not a duty and an obligation.
So, in this particular case, what has the federal government done? I think it has recognized a problem that it has. The problem is that, if it pushes it too far, what would happen if a province refused to exercise the responsibilities that they always have in the last 100 years and that is to prosecute. What they have done in this particular statute, they have given an option. Yes, it is a criminal law statute, clearly made under the criminal law power, but like the Narcotic Control Act, the Criminal Code, and the Young Offenders Act, and like other criminal statutes, each one has a unique way of being dealt with in terms of its administration and in terms of its prosecution.
So, in essence, what I am saying here is that I think this is a criminal law statute which delegates the responsibility to administer on an optional basis--and that is made specifically clear by the statute--the option to registry on the part of the province. If they exercise a statutory option, then it falls to the federal government, if they exercise that option against administering. But in terms of the prosecution, it appears that is the Attorney General of Canada.
The issue if we want to be clear, and I have said this for the purposes of argument, that is the outside. At most, this statute could be considered a criminal statute. In fact, there are many questions as to whether, in fact, this is indeed a criminal statute. For the purposes of argument, I have indicated that even if we say this is a criminal statute, I do not think it is necessary, because this is an issue that is before the courts as I am well going to get into now--[interjection]
Well, Mr. Chair, the member for Wolseley (Ms. Friesen) has an opinion to express. She believes that this is criminal law and wants to express an opinion.
Ms. Jean Friesen (Wolseley): Mr. Chairman, the minister should be careful to quote me accurately. I said that I thought that he had said this was a matter of criminal law, which I believe he did say earlier.
The Acting Chairperson (Mr. Dyck): The honourable member, on the point of order, it is clearly a dispute over the facts. The honourable minister to continue.
Mr. Toews: Let us make it clear for the record that even if we assume that this is a criminal law statute, that does not mean that there is any responsibility, constitutionally or even statutorily, for the province to prosecute this under this statute.
An Honourable Member: Pick and choose.
Mr. Toews: Well, the member for St. Johns (Mr. Mackintosh) says I am picking and choosing. I am simply indicating that even if this is criminal law, even if it was, that in itself is not indicative of how the federal government in other criminal law statutes has dealt with this particular issue either in terms of the administration of a criminal law statute or in respect of the prosecution of a criminal law statute.
There are a number of issues that need to be explored in the reference in Alberta. I think our position in that is quite clear as to the nature of this particular statute, but I want to make sure that for the purposes of our discussion, it does not matter whether this is criminal law or not. For the purposes of the reference, it is clear that there are certain elements of this statute because, I mean, we are getting into a whole--another point is, what aspect of the statute are you looking at? There may be aspects that our criminal law, and again I say this for the purposes of argument, but there may be aspects of this that are outside the criminal law power but under some other valid federal head. On the other hand, the position of some of the provinces is that this is a matter of property and civil rights insofar as it relates to the registry. So we can deal with that issue further if the member for St. Johns (Mr. Mackintosh) or the member for Wolseley (Ms. Friesen) wishes.
Mr. Mackintosh: I am trying to understand exactly what the minister is saying the province is refusing to do. I hear him talk about the prosecutions, and I will leave that for now. But he said that the province is going to refuse to operate their registry. I would like the minister to tell me what section in the bill is the operative section that would otherwise have required the province to operate such a registry.
Mr. Toews: It has never been my position that there is any requirement in this bill for the province to operate the registry. In fact, that is my position, that there is no requirement. In fact, it has been the NDP's position, which they have clearly stated on the record, that if this legislation is constitutional, they will choose to enforce it. It has been their clear statement, because the criticism that was made of me is that our government has said that whether this is constitutional or not, we still have an option to exercise in respect of the gun registry. So if it is constitutional, there is no requirement for the province to administer the registry system.
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That is like saying if the Narcotic Control Act is constitutional, there is no requirement for the province to prosecute. So the two are separate issues. One is an issue of constitutionality; the other is an issue of how the statute is to be interpreted and who is required to do what under the statute--two separate issues. So, to automatically assume--and again we have to for the purposes of this argument; I want to make that clear--just because criminal law legislation is constitutional, the province is required to administer it and to enforce it, is wrong.
We need only look at the Narcotic Control Act, which is clearly criminal law, but there is no obligation by operation of the Constitution that the province is somehow then required to prosecute under it. In fact, the statute makes it clear under the Narcotic Control Act that it is the federal Crown who prosecutes. In this particular case, they make it clear that it is the federal government who prosecutes and the federal government, if the province does not refuse but fails to exercise an option, who then becomes responsible for the registry. That is the same position that Saskatchewan and Alberta advance. There is nothing unique about this province's position in that respect.
Mr. Mackintosh: As I said, I was not dealing with prosecution, but I would just like the minister to point out where in the legislation there is the expectation or an option, if I adopt his interpretation, for the province to administer the registry. Where is the operative section that the province has a role here that he is opting out of?
Mr. Toews: That is my point. There is no requirement for the province to administer the registry.
Mr. Mackintosh: The minister misinterprets my question. He is saying that the province is taking a position or has made a decision that it will not operate the registry. Where in the legislation is it possible even, though, for the province to operate the registry? That is my question.
Mr. Toews: Unfortunately, I do not have the whole act, because I would love to go through the entire act to explain exactly how that flows. I will do some of it from the top of my head, and you can check this against the copy of the full act that, no doubt, you have in front of you. I do not have that act in front of me.
But if you appoint the minister, designate a minister, by Lieutenant Governor in Council, Section 2(a), if you designate a minister, from that designation then, as I understand it, the minister has certain powers. One is to appoint the officials who then run the registry, in effect administer the registry. If the federal government is left with the administration by the province not appointing a minister, who then does not designate the officials, then it is the federal government or the federal minister who automatically, by virtue of the option exercised by the province, becomes the responsible minister who then designates the officials to administer. That in a nutshell is what happens in terms of the administration. If the member has a copy of the act that he wants to show me, I will go through it section by section.
I just might add that it is a long, complicated legal process. I would be happy to provide the member a copy of the factum once we file that in the court, because part of the process is the discussion of that issue.
Mr. Mackintosh: I am simply asking the minister to provide the section, the operative section, not just the definition section, which he says allows the province to opt out of an administration scheme, because all I see in here is certainly his definition section. I see his argument there about the designated minister. But I want to know what section does that definition section apply to then, because what I do see in here is certainly the creation of a role of a registrar of firearms which is a federal role. So I want to know from the minister, what is he deciding not to do that he possibly could have done other than the prosecution end? I am talking about the administration end.
Mr. Toews: Tomorrow I will bring the act here, or Monday I will bring the act here, and I will go through it section by section. In fact, if he does not want to take my word for it, he can go to the federal government. The federal government has never denied that the province has the right to opt out of the registration and the administration of that registration--has never denied that the province has an option to opt out--and, instead of the province designating these officers, it is now taking steps to designate the officers. So then these become the financial and administrative responsibility of the federal government. So we can continue this forever. I do not have the section here, but I leave the reading of the act to the member. If he disagrees with my interpretation, with the federal government's interpretation, so be it. We are at a difference of opinion, and that is where I will leave the issue.
Mr. Mackintosh: What view or comment has the federal government made to the provinces and to the minister particularly about the provincial government's expected responsibility in administering the legislation? Has the province, in fact, been asked to administer the legislation, because what I see here is a Registrar of Firearms, which is not a provincial position?
Mr. Toews: There are a couple of issues, and perhaps the member for St. Johns has as much trouble reading the legislation as the former Attorney General Mr. Penner had in reading the legislation. The federal government approached our officials and asked us to make an option or elect an option, whether by June 1 we had to tell them whether we were going to administer the registration system or not. They went to every province and asked every province that. Some indicated yes, some indicated no. Manitoba has indicated no. I consider that the exercise of an option.
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The option was yes, which means that the province would then have to administer the registration. If we say no, that is another option, and then we do not administer it. You know, I think the member is as confused about this issue as, perhaps, and maybe I should not equate the member and the former Attorney General, because the member may not be confused. He may be asking the questions for other purposes.
Mr. Penner indicated in a letter to the Free Press, and he has talked about Catagas, that the Chief Justice Freedman at the time condemned a policy adopted by certain NDP ministers of the Crown not to prosecute Indians who violated the Migratory Birds Convention Act, which, of course, as far as I am concerned, is a little strange. Under the Migratory Birds Convention Act, I thought it was the federal government, and I do not ever remember a federal NDP government, but that is one concern with Mr. Penner's; perhaps it is just a revision of history. That is the first thing that struck my attention on quickly reading this letter, because it is the federal government who prosecutes Migratory Birds. [interjection]
Well, the point is, here he says it is the NDP cabinet minister who said they would not prosecute Indians under the Migratory Birds Act, and I thought to myself, well, how does a provincial government, because the NDP were in power at one time in Manitoba. There were NDP cabinet ministers, but they would not have made any decision to prosecute under the Migratory Birds Act. So he then goes on to say, quite rightly, the Crown may not suspend laws or the execution of laws without the consent of Parliament. Yes, that is correct. So if there is a positive constitutional duty upon the Crown to carry out legislative activities, of course it has to carry it out. That is what Catagas says. And although Chief Justice Freedman indicated in a very articulate way, most if not all lawyers understand that the Attorney General, if he has a specific constitutional statutory duty to do something, must do it. The issue here has got nothing to do with the constitutional duty or the statutory duty of the provincial Attorney General. First of all, there is no constitutional duty. Secondly, there is no statutory responsibility to do it.
I am just wondering if it would be of assistance to this committee if I go through the statute section by section and explain the basis for the opinion that I have given and, you know, I may be corrected by the courts if I am wrong, that there is no obligation on the province to administer or enforce this act. Now, here we have a former Attorney General saying I am under some kind of responsibility to enforce and administer this act. What I would say to this individual, Mr. Roland Penner, as I am saying to the member for St. Johns (Mr. Mackintosh), there is no duty upon a provincial Minister of Justice to administer this act, the registry. There is an option that we were presented with by the federal government, who said, are you going to administer the registration or not? We said, no, that is your act, you administer it.
So we differ sharply from the NDP, who say that if it is constitutional they will enforce it and administer it. We say, if it is constitutional, it does not matter, we still will not expend our taxpayers' dollars in the administration if the federal government wants to do it. I would rather spend our money on health care, on education, on social services and on public safety initiatives that in fact make a difference when it comes to controlling crime.
Mr. Mackintosh: Well, first, I mean, the minister makes this argument that, oh, if the province administered this scheme, assuming it had that ability. I take his word that the federal government offered that option. I say to the minister that any cost that the province would incur in the administration under this act appears to be compensateable under Section 95. In other words, the provincial government can enter into an agreement with the federal government which presumably would follow if the provincial government started to administer this act. The minister seems exercised by that.
I am looking at Section 95, and it says, the federal minister may enter into agreements with the governments of the provinces. So when he says that if he administered this act, all of a sudden the taxpayers of Manitoba would be out, I am not sure that would be the case if in fact an agreement could be entered into with the federal government, which I presume would be a precondition of any administration of the federal law. Now, if the minister wants to comment on that, is that observation not correct?
Mr. Toews: This gets right back into that whole issue about the federal spending power. This is exactly what that issue is. Here it is, and this is exactly the trap that the federal government has laid over and over and over again for provincial governments. This reminds me of Lucy, with the football, saying to Linus or Charlie Brown or whoever it is, come and kick the football. I am not going to take it away, honest. Here is the football, give it a good kick. And just as you are giving it a good kick, Lucy pulls the football away. Now the member--and I am surprised at his naivety, and I do not believe he is that naive. I believe he is simply doing this for effect. The issue is this, and I am not faulting simply the Liberal government. There have been past Tory governments who have done exactly the same thing.
We have made agreements, province to federal government, not only agreements in respect of that. In respect of funding where it is an issue of the federal government says to us, look, you carry out the service and equate that to the administration here. You carry out the service and we will enter into an agreement with you for the funding of the service. I mean, look at health care, look at social services for natives off reserves, look at any number of areas, look at the CAP agreement. We are not only dealing with an agreement, but we are dealing with a statute where a specific statute said this is the basis upon which we will share dollars if you deliver the program.
So the province says, what a wonderful opportunity. Here we are getting fifty-cent dollars, and they race all over each other to get into these fifty-cent dollars to start delivering the programs, and then at the expiration of one or two or three years or the expiration of an agreement the federal government says, you know, we have kind of changed our minds. We really do not think that this is our responsibility. So those fifty-cent dollars suddenly become seventy-cent dollars and they become eighty-cent dollars, insofar as the province is concerned.
Indeed, in certain services such as social services to off-reserve natives, it has become a hundred percent dollars where the province suddenly is faced with a responsibility of paying for programs that the federal government used to fund entirely and said to the province, oh, we will enter into agreement with you, and you deliver the service, and trust me on this one, we will hold the football in place.
So here the member for St. Johns is saying, you know, trust the federal government on this one. Why do you not enter into an agreement with the federal government? Why do you not say to the federal government, well, you will pay 100 percent of it, we will administer it? What a wonderful agreement, and then suddenly they start withdrawing the funding. Well, if there is going to be an agreement, the province should not pay more than a dime. They should pay nothing, and if the province is not paying anything, why should they enter into an agreement, let the federal government. If they are carrying out the program or all the cost, why should the province administer it?
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So the only equitable solution, even if one were inclined to enforce this as the NDP are inclined to, it should be 100 percent federal funding. Well, if it is 100 percent federal funding, why would you say, oh, we will carry out your orders for you, we will carry out the program. Why not let them carry it out? So the reference to Section 95 makes absolutely no sense.
Mr. Mackintosh: I think the minister either misunderstood my question or is just off, I do not know, today.
I would like the minister to describe for Manitobans--the Manitoba gun owners--what is the practical difference of his statement that he would not administer or prosecute this legislation versus the federal government doing it. What is the difference? Are they not still going to be charged the same fees? Are they still not going to face the same sanctions and so on?
Mr. Toews: This is fundamental to the question of Confederation. It is fundamental to the question of Confederation. The question is this: If one government can do it all, why do we have 10 different provinces? It is not simply history. There are valid cultural and religious reasons--
Ms. Friesen: That is history.
Mr. Toews: The member for Wolseley (Ms. Friesen) simply says that religion is history. I do not believe that. I believe there is a much greater significance to religion than simply history, but that is her belief. I respect her belief. I do not agree with her belief.
Ms. Friesen: You are deliberately misquoting. You are misinterpreting it. Religion is part of history. Religious freedom is a part of the historical basis of Canada.
Mr. Toews: If she wants to give us a quote and a recitation of what she believes a religion to be in the greater scheme of things, she has a right to do it at an appropriate time. Right now, I am answering the question--
Ms. Friesen: Oh, no, I do not think so. You were back to launching 30 minutes of--
The Acting Chairperson (Mr. Dyck): Order, please. The honourable minister is attempting to give an answer.
Mr. Toews: And so I feel that it is fundamental to Confederation that the unique differences of each province are recognized as they were from the beginning. When we look at Quebec, for example, it came into Confederation under very strict conditions. There were a series of conditions that had to be met. Similarly, Ontario had similar conditions. Indeed, Manitoba had very specific concerns. For example, the reason that we have bilingual editions in our statutes is a direct result not of history, because if it was simply history, then 100 years might expunge that, but the courts were very clear that this is not a matter of history, this is a matter of Constitution, legal obligation to certain groups of people, minorities or other in the province that had to be recognized.
And so, each province came into Confederation with different expectations, different rights to be protected, and that was very, very important, and those rights and differences continue to a large extent.
I mean, talk to the SFM. If you think that the Societe Franco-Manitobaine do not think that French is important in Manitoba today and that it is more than a matter of history, the issue of French language and French culture is fundamental to those people, and they have certain rights under our Constitution.
It is not just a matter of history. It is a matter of constitutional obligation. The issue then is, he said, well, what difference does it make if the federal government enforces a law or the province enforces a law? It is fundamental to the operation of Confederation, because laws are a reflection of policy, and that policy is put through and is found in the law. So then to say that one government, a separate, independent, in a legislative constitutional sense, government, must carry out policy directives of another independent legislative authority, yes, within the context of Canada, but an independent legislative authority that the courts have recognized over and over again, destroys the very underpinning why and on what conditions these provinces entered into Canada. So for the member to even ask the question demonstrates a serious lack of understanding of what Confederation means.
I happen to have a great respect for individual provinces in Canada and, you know, equality is very, very important, but equality in what sense? Equality in the sense of being identical? No. Provinces in Canada have never been equal in the sense of identical, but they have been equal and must continue to be equal in the sense that each province has a substantive voice in the Confederation and, as much as people want to belittle the Senate, that was one of the original goals of the Senate, to ensure that there was this voice and this authority in Ottawa to ensure that the voices of the provinces were heard in the halls of those legislative bodies.
So I say that it is not simply an issue of legislation being carried out by one government or another. I see nothing wrong with that where the government consents, but to state that, well, simply because the Canadian government orders another province to do something, that province should do it or the Attorney General should do it, is not correct. What would happen if Ottawa said to Quebec, we are going to order you to do something which is properly in the constitutional and statutory jurisdiction of the Quebec government to decide. So the issue to begin with then fundamentally is, those who are responsible for legislation are the ones who enact that legislation because it is their policy goals that have driven that legislation through their legislative bodies.
So that is the first part of the answer. Maybe I have satisfied the member with my answer, but I am prepared to continue along that line.
Mr. Mackintosh: The minister better put away his summer vacation plans. We are going to be here for a while I think.
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My simple question was: Could he tell ordinary Manitoba gun owners what the difference is for them if his government refuses to administer or prosecute under the legislation. Is it not the case that the ordinary Manitoba gun owner will continue to face the same kind of administration and the same kind of fees, the same kind of sanctions as initially contemplated by the federal government under the legislation anyway?
Mr. Toews: I do not understand. If the member does not understand that there is a difference between the federal government carrying out a policy and utilizing resources and giving directions and the provincial Attorney General making appointments and administering the system, then I cannot help him. It is like saying, well, what is the difference between the federal government carrying out health care policy directly or the provincial government carrying out health care policy directly. Well, we know that there is a difference in the level of health care in each province, despite the fact that there are national standards. There are differences that develop simply by the administration, and one of the things I know that this government is very concerned about is to ensure that there are appropriate standards of health care in this province. We administer the service perhaps not in an identical way as Saskatchewan, and yet we operate under the same legislative authority. So there is a clear example of how administration by two different governments under the same legislation may result in differences.
So I am not going to speculate as to what differences may occur in the future. I do not know, but I know from the past that policy, which is a creature of the government administering a certain plan, will affect the delivery of any service, whether it is in the administration or otherwise. I do not know what the member's reference here is. It might be a veiled threat to put away my summer vacation plans. If the member has questions to ask, I will answer those questions, which I have been doing; and, if the member wants to sit and ask questions all summer and if that is within the rules, he can do that all summer. I do not mind.
Mr. Mackintosh: Is the minister aware whether the federal government so much as even cares whether the province administers and enforces this legislation? Has it expressed any opinion one way or the other on that one, or has it just simply said to the provinces: if you want, you could take over the administration, and we will pay you for it?
Mr. Toews: I have had occasion to raise this a couple of times with Justice Minister Rock. I have made it clear that, even if the courts held this legislation to be constitutional, our government would not be changing its mind in terms of this registration issue. He said, even if the court declares it to be constitutional? I said yes, because the one has nothing to do with the other, and that was the extent of our conversation on that.
So, whether Alan Rock cares, I do not know, but it is not a policy of our government. That is all I am saying. You know, there might be all kinds of legislation that are wonderful, that are great, and maybe the province should be administering that. There are many situations where the government of Manitoba enters into agreements with the Government of Canada. For example, the provision of Workplace Safety and Health officers in certain areas of the province that come under federal jurisdiction. There might be agreements, and the people who work in some of those mines are Manitoba citizens or residents. So we enter into these agreements because they are an efficient way of doing things and they advance mutually beneficial policy goals. But, in this particular case, and I want to make reference to a letter that our prior Attorney General sent to Justice Minister Rock, and if you will bear with me just for a moment, I will find this letter and take some quotes from it just to indicate why we disagree with the federal government. And this was last year that our former Attorney General wrote--
Mr. Mackintosh: On a point of order, I ask that the rule of relevance be applied here. I am not asking the minister anything about the reasons that the provincial government may have or concern about the federal scheme. I simply asked a question as to whether the federal government was concerned about the provinces or this particular province not administering or endorsing the act. That is all. I think for him to go off on all the arguments that have been canvassed well in this House and outside of this House, I do not think is relevant to the question.
The Acting Chairperson (Mr. Dyck): On the point of order, I would encourage the minister to, in the best way possible, try and answer the question.
Mr. Toews: I certainly do intend to answer that question. I think this letter is relevant to that issue and to other questions that the member has been asking. Our policy is to ensure that legislation in the area of criminal law in fact addresses the problem. How can we justify to our taxpayers the setting up and the participation of us as a provincial government with a registry that has nothing to do with crime prevention and, indeed, nothing that I can see to do with criminal law? This is simply, at best, a mental health provision, because if you hear the federal minister talk about it and if you hear other proponents of this, they say that the purpose of this is to keep guns out of the hands of mentally unbalanced people. So we set up a multimillion dollar registry system to keep guns out of the hands of mentally unstable people, when there is absolutely no evidence that this will in fact do this.
I note that the Justice minister has long since abandoned the argument that this has anything to do with preventing crime, which is another clear indication that this has nothing to do with criminal law. What we have made clear to Justice Minister Rock is that it is an unproven and ineffective means to reduce violence.
An Honourable Member: What is the argument here?
Mr. Toews: The member asked what the reaction of Justice Minister Rock was to our position. [interjection] All I can indicate is that in the conversations that I have had with him, I have indicated our position, indicated very clearly, and he has indicated nothing.
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Mr. Mackintosh: The minister a couple of weeks ago made statements that this province will not enforce and administer this scheme. It was an act of defiance. It was an act of saving taxpayer dollars. I think many Manitobans are under the impression that the scheme may not even be enforceable now because the province is not going to take a role. When in actual fact, and I am pursuing this, the federal government did not care less whether the province administered and enforced the legislation. In fact, they intended all along really it was going to be a federal scheme. It was going to be run like the Narcotic Control Act; the prosecution is that way, the federal registrar. The feds never intended the province to pick up the cost because under Section 95, if the province did get involved, if it wanted to, for whatever reasons, the cost would be compensated, so in fact nothing really has changed here. There was no great act of defiance because life is going on as contemplated by the federal government in any event.
I leave that observation with the minister, because I think that a lot of the reaction to what the minister said was based on the assumption that the provinces were actually obliged to administer and enforce the scheme.
Mr. Toews: My point exactly. The Free Press reporter came to see me on this issue and said, what is your position on gun registration? I indicated to her my position has not changed from Rosemary Vodrey's, the former Attorney General. I gave the Free Press reporter a copy of the letter that I was going to refer to to clearly set out what our position was.
The Free Press reporter indicated to me, well, why are you defying the law? I sat down with her and indicated to her that I am not defying the law. I am glad to see that the member for St. Johns understands more than the Attorney General Roland Penner did about the format of this act and certainly much more than the Free Press reporter did.
I never indicated that this was a matter of defiance. I indicated that this was an option that the province had under the legislation, under Section 2 and Section 116, it was a federal responsibility, and that we were not going to take the risk of tying up provincial dollars into this because, if the federal government wants to spend dollars, that is their business, but they will not be getting any dollars out of us on any agreement.
Mr. Mackintosh: But you would be compensated.
Mr. Toews: The member says, oh, you will be compensated. I have heard this from Liberal governments and from other federal governments for years, and that is the concern.
Mr. Mackintosh: How good was your agreement?
Mr. Toews: It does not matter how good the agreement is, because the courts have ruled that the federal government can unilaterally terminate agreements and indeed statutes that recognize specific obligations, CAP for example. That is the big case where not only an agreement was in place, a solid, five-year, no-cut contract deal backed up by a statute that had particular provisions governing how you would get out of the contract, and what did the federal government do? Unilaterally terminated it by statute.
And now the member for St. Johns is saying, well, go ahead, kick the football, see what happens, an analogy going back to the Lucy scenario. Well, I am not prepared to kick the football in the sense of signing the agreement so that the province gets back on the hook in terms of delivering this when the feds then decide to get out of this and for the province to sit there and answer all the concerns of all the hunters and saying, why are you bothering us, and all the farmers saying, why do you want to throw us in jail?
Well, I tell you, my problem is not with law abiding hunters and with farmers who use guns as part of the way of their life and with our aboriginal hunters. I do not have a problem with people who use guns for legitimate purposes, but obviously the federal government does, because they want them all registered, and they want them all treated as criminals. I say a law that turns our law abiding citizens into criminals is not a law that I would choose to enforce.
The member says I expressed defiance. I never did. I simply indicated to the Free Press reporter, who then came out with a large headline saying, Toews blanks gun control. These are the reporter's words. If you go through the entire article, you will find she does not even quote me. These are all statements, and I find it surprising, because she taped me throughout the whole interview, I assume, because the little tape was going, I am surprised she did not quote me as to what I said. Why did she not mention my position in respect of Section 2 and Section 116. I laid it all out before her and indicated I know what my responsibilities are; I know what my duties are in my office. But for some reason the reporter felt that this was an act of defiance and reported it in that way.
You know, I understand they have to make a living. What concerns me is that this whole issue is off on the wrong foot. It has nothing to do with Toews defying the law. What it has to do with is the province saying this is a foolish way to control crime. We do not want to make criminals out of otherwise law-abiding citizens, such as farmers and hunters. And if there is an option, we are certainly not opting in to enforce this as the member for Dauphin (Mr. Struthers) indicated in the same interview with the reporter from the Free Press.
So I want to make certain that the member for St. Johns at least understands what my position is, that it is not one of defiance but one of the legal exercise of rights under a statute, even if that legislation is constitutional. So let us assume that it is constitutional for the purposes of this argument. There is still no act of defiance when we say to the federal government, no, we will not exercise that option, and if it is unconstitutional, we do not even have to talk about this because the entire registry system will fail because there is no criminal law purpose to the legislation.
Mr. Mackintosh: So I get back to my original question is where is the provincial administration of the Firearms Act possible under the legislation? Can the minister simply give me the section number?
Mr. Toews: By virtue of Section 2(a) by the province designating a minister, the minister then has certain powers to appoint officers who then administer it as a provincial program not a federal program. Because if it was a federal program, why would there have to be any agreement between the feds and the province in terms of money? So it becomes a provincial program if the provincial government decides to opt in by designating a minister.
Mr. Mackintosh: I think the minister used the phrase "opting in" and I think a note should be made of that. I asked the minister this question. I am posing questions, by the way, and he is trying to construe that I am taking certain positions as I go here. I cannot recall about kicking footballs and so on, and I do not believe that is the case. I want the minister though to canvass, for a moment, whether by the province not opting in, as he said, the province may lose some discretion that could be available only in the event of provincial administration and whether it may lose the ability to apply local sensitivities, if you will, to the registration scheme.
Mr. Toews: The entire position of gun registry as formulated under this particular piece of legislation is a concept that our government does not agree with. It is wrong. It is a wrong approach. Essentially, universal firearms registration is unproven and it is an ineffective means of reducing violent crime. What we would see if we moved into the administration is the province becoming responsible for delivery of that service--if you want to call it that--and this is exactly what has happened in the area of health care where the federal government says you are the service provider. You will then deal with all the issues and the problems and the concerns, and the federal government slowly backs away from the agreements that it has made. [interjection]
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The member for The Maples (Mr. Kowalski) says this is like regional health boards. A fundamental difference between that and regional health boards, and I am sure that when he has a chance in Estimates to discuss that with the Minister of Health (Mr. Praznik), the Minister of Health will explain how in fact that is a much more responsive system of dealing with health care needs. More fundamentally, it is still the provincial government that is ultimately responsible for the delivery of the service--yes, through the mechanism of the health boards, and the health boards have certain powers which the minister does not interfere with.
But the federal Parliament has enacted this registry system and then, through a designation, attempts to get the province to carry out its responsibilities. In the area of the regional health boards, those regional health boards still are within the provincial jurisdiction. Here what we see the federal Parliament doing is moving its responsibilities to another level of government in an effort to avoid dealing with its responsibilities. What we in fact are doing on the regional health boards is not to avoid responsibilities but to ensure that services get delivered. That is the fundamental difference. But I was sidetracked there for a moment. Maybe another question.
Mr. Mackintosh: Well, the minister never came near the answer that I was looking for in my question. I simply asked whether he has not considered whether a provincial administration of this scheme would actually afford greater discretion and some local autonomy, local sensitivities. For example, I look at one section of the act here that gives the provincial minister the ability to allow an exemption in certain circumstances, and yet that power does not seem to be also available to a federal minister. I wonder if that has been canvassed. In other words, has the minister canvassed whether provincial administration of this legislation may, in fact, be fairer?
Mr. Toews: What an interesting proposition. It is like asking somebody would you like to go to jail. We will give you a colour TV if you voluntarily sit in jail for 10 years, and you can do all kinds of things in jail that ordinary people who are sentenced prisoners could not do. What I am saying is, why would I want to get into the jail when I have more important things to do in terms of dealing with real issues outside of that jail? And so I prefer to allow the federal government to administer its own registration plan, and similarly the governments of Saskatchewan and Alberta are opting out of the--
An Honourable Member: Are not opting in.
Mr. Toews: Well, opting in, opting out, I think the point here is there is a choice, and they are choosing not to administer, as opposed to choosing to administer, so is that opting in or opting out? I think it is opting out. But in this situation the government of Manitoba, government of Saskatchewan, the government of Alberta and I believe one or two of the territories. I believe the Yukon is opting out as well.
The point here is: Should our government take over responsibilities of the federal government? It is answerable through its M.P.s for the legislation it passes. What I do not want is the MLAs here to be responsible for federal legislation and federal responsibilities, so that is a fundamental question and a fundamental issue in our Confederation.
I want to say that even if the federal government mistakenly goes ahead and proceeds with the gun registration, if the courts say this is constitutional, then the issue it becomes, will the government of Manitoba advocate to ensure that the effects of this law do not work in justices or the residents of this province? Of course. We have a responsibility to continue to say to the federal government, what you are doing is wrong or what you are doing is hurting innocent people. We will continue to make our views known. We do not abdicate responsibility for the things that affect our residents simply because the fact that what is causing the damage comes from another government.
That would be as foolish as to say that, well, we do not care about the flood waters, because they come from the United States, 80 percent of them. It is not our responsibility. Obviously, our government has a responsibility to, as much as possible, deal with the consequences of dangers or problems wherever they come from, and I do not think that that is any different with bad laws from federal parliaments.
Mr. Kowalski: Is the minister going to allow police officers in Manitoba, whether they are under provincial contract paid by the provincial government, under municipal police forces who normally enforce laws, whether they are passed by city councils, whether they are passed by provincial government, whether they are passed by federal government, to enforce the law? Or, is he going to be aiding and abetting people to break the law by giving direction to police officers not to charge people, not law-abiding farmers or hunters but those who choose to break the law by not registering their firearms as the law will say they have to?
Is he encouraging a disrespect for the law, and is he going to direct police officers not to do their duties and enforce the law of the land?
The Acting Chairperson (Mr. Dyck): The honourable minister, with a very quick answer.
Mr. Toews: Well, this gets back to this defiance issue, and I think the member for The Maples has been reading the same article in the Winnipeg Free Press, where there is some kind of issue of defiance.
The Acting Chairperson (Mr. Dyck): The honourable member for The Maples (Mr. Kowalski), on a point of order.
Mr. Kowalski: I believe the minister is imputing motives in the fact that I am reacting to a Free Press article. I am asking a legitimate question, asking for a legitimate answer from the minister in charge of law enforcement for the province of Manitoba, if he is going to instruct law enforcement officers throughout the province of Manitoba to uphold the law of the land, or, if he is going to encourage disrespect for the law because he disagrees with it.
The Acting Chairperson (Mr. Dyck): The honourable member for The Maples (Mr. Kowalski) does not have a point of order. It is a dispute over the facts.
The Acting Chairperson (Mr. Dyck): Order, please. The hour being 6 p.m., committee rise. Call in the Speaker.
The Acting Speaker (Mr. Dyck): The hour being after 6 p.m., this House is adjourned and stands adjourned, as previously agreed, until 1:30 p.m. Monday.