Clerk Assistant (Patricia Chaychuk): Order, please. Will the Standing Committee on Industrial Relations please come to order. We currently have a vacancy for the position of chairperson. Are there any nominations?

Mr. James Downey (Arthur-Virden): I would take the pleasure of nominating the honourable member for Gimli, Mr. Ed Helwer, who is a most capable chairman.

Clerk Assistant: Mr. Helwer has been nominated. Are there any other nominations?

An Honourable Member: No.

Clerk Assistant: Seeing none, Mr. Helwer, you are elected chairperson. Please come and take the Chair.

Mr. Chairperson: Good morning. Before we start the meeting, we must elect a Vice-Chair. Are there any nominations for Vice-Chair?

Hon. Vic Toews (Minister of Justice and Attorney General): I nominate the member for Arthur-Virden.

Mr. Chairperson: Mr. Downey has been nominated as Vice-Chair. Are there any other nominations?

An Honourable Member: None.

Mr. Chairperson: Agreed. Mr. Downey will be the Vice-Chair of this committee. Thank you.

Will the Standing Committee on Industrial Relations please come to order. This morning the committee will be considering the following bills: Bill 35, The Highway Traffic Amendment Act (2); Bill 39, The Medical Amendment Act; Bill 41, The Professional Corporations (Various Acts Amendment) Act, 1999; Bill 42, The Community Protection and Liquor Control Amendment Act; Bill 43, The Highway Traffic Amendment and Summary Convictions Amendment Act; and Bill 44, The Gaming Control Local Option (VLT) Act.

To date, we have several presenters to speak to the bills this morning. I will read out the list of registered presenters. For Bill 41, Dr. Phil Poon, who is the president of the Manitoba Dental Association. Also, on Bill 42, we have Harry Lehotsky from New Life Ministries who will be making presentation.

I also note that the committee heard public presentations on Bill 39 on July 7 when that bill was first considered by the committee; therefore, any other persons in attendance who would like to speak to one of the bills before the committee this morning and who have not already registered, please see the Chamber staff at the back of the room to register and your name will be added to the list.

In addition, there are a number of written presentations. If there are written items to be handed out to members of the committee, 15 copies are required. If assistance is required to make the photocopies, please contact the Chamber Branch at the back of the room and the copies will be made for you.

I would also note for the committee that a written submission has been received regarding Bill 35 from the Manitoba Association of Rights and Liberties. Copies have been placed on the committee table for committee members. Is there agreement that this written submission be included in the committee Hansard at today's meeting? [agreed]

At this point, the committee has one registered presenter on Bill 41 and one registered presenter on Bill 42. Did the committee have a preference as to which bill we hear the presentations from first or shall we go in numerical order? What is the preference of the committee?

Mr. Downey: Unless, Mr. Chairman, there is reason to do otherwise, I would recommend we do it in the order in which they are presented to us.

Mr. Chairperson: Okay. We will go in the order that they were presented.

Does the committee wish to present any time limits for the consideration of the presentations? No. Good. No time limits. We will now proceed with the consideration of presentations.

Mr. Chairperson: I would call Mr. Phil Poon to the podium, please. Mr. Poon, do you have a written submission?

Dr. Phil Poon (President, Manitoba Dental Association): Yes.

Mr. Chairperson: Do you have 15 copies?

Mr. Poon: Yes.

Mr. Chairperson: Mr. Poon, please proceed.

Mr. Poon: Good morning, everyone. My name is Phil Poon, and I am the president of the Manitoba Dental Association. It is on behalf of the membership that I am appearing before you today to speak in favour of Bill 41, The Professional Corporations (Various Acts Amendment) Act, 1999.

For a number of years, representatives of the MDA have been meeting with MLAs, deputy ministers and legislative draftspersons to discuss the development and introduction of a bill to allow dentists to incorporate their dental practices. At the start of this presentation, I want to confirm to you that Bill 41 does not change the fact that a dentist must be personally responsible for malpractice and/or professional misconduct and may not in any way lessen this responsibility through a professional corporation. Also, all voting shares must be in the name of a dentist in order that there is no hint that a practice is controlled by a nondentist.

Our support for Bill 41 can be summarized as follows: The Law Reform Commission Report on Regulating Professions and Occupations of October 1994 on page 86 stated: However, we are also convinced that the current ban, which is based on a traditional distinction between professions and occupations, cannot be sustained; moreover, we can find no other general rule which would provide a justification for banning incorporation and nonpractitioner involvement for some occupations but not for others.

The costs for young practitioners to establish anywhere are great, but Manitoba may be losing talented, capable professionals who, given the opportunity to incorporate in another province, are attracted to go there and leave Manitoba.

Other self-employed small-business owners who purchase goods and services pay taxes, buy equipment and supplies, hire employees and stimulate the economy in the same way as other professionals do and are provided legitimate tax and estate planning opportunities which most professionals are not entitled to. There are no disadvantages to the public since professionals would be fully accountable and liable for their services.

Again, quoting the Law Reform Commission report, page 155: The advantages for the public in permitting incorporation and the association of practitioners in a professional practice include the possibility of greater investment capital for practitioners.

This may enable greater numbers of practitioners to enter practice and may permit increased use of new equipment and technologies. It is also likely to result in greater flexibility in the provision of a service and may encourage the emergence of multidisciplinary firms.

One of the objectives of the agreement on international trade is to facilitate labour mobility and exchange of services between provinces. In order to level the playing field, incorporation opportunities for professions in Manitoba are necessary in order to be able to compete in their own province against incorporated firms coming here to do business from outside Manitoba. It is our view that allowing professionals to incorporate in Manitoba would be a positive statement to young people about the business climate here in our own province.

Again, thank you for the opportunity to speak in favour of Bill 41. If you have any questions, I would be pleased to answer them.

Mr. Chairperson: Thank you, Mr. Poon.

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Mr. Dave Chomiak (Kildonan): Thank you for your presentation, Mr. Poon. I would like to ask you the same questions that I asked other representatives, specifically from the Manitoba Medical Association, when similar legislation was being reviewed by committee here last week. Have you had the opportunity to discuss your legislation with other professional groups on a formal or informal basis?

Mr. Poon: On a formal and an informal basis.

Mr. Chomiak: Do you have any rough guesstimates, is there any kind of an accounting or any kind of a general number or provision or ramification in terms of what the cost implications might be by this move to allow dental practitioners to incorporate? Is there a ballpark figure or some kind of guesstimate or estimate as to what particular savings might be involved or attributed to this?

Mr. Poon: To the practitioner there are a number, based on the fact that if you are taxed at a corporate rate, there would be a significant advantage to the professional. The costs would be varied. I could not even begin to guess.

Mr. Chomiak: In that vein, I asked the president of the Manitoba Medical Association during a review of the similar bill–and I appreciate the difficulty–about the fact that it had been reported to me that for an average medical practice, the savings on incorporation might be in the neighbourhood of $25,000 in terms of tax benefit.

Do you have any comment on that figure or something along those lines, because I will indicate that the Manitoba Medical Association advised me that in fact they thought that was a rather high figure, and they did not have any countervailing figure to offer.

I wonder if you might, just in terms of my own guidance and perception, because while we are certainly supportive given the significance of the internal trade agreement and some of the other ramifications of competition and loss of professionals to other provinces–I mean there is a ramification in terms of the treasuring, in terms of revenue for the province, and I am just trying to get a picture of that.

Mr. Poon: I am trying to think of a dollar value that might even be–Mr. Chomiak, I am having a lot of trouble with the question because I had not really surveyed the different members to see what that might be.

Mr. Chomiak: That is fair enough, and I appreciate that. I will, just by way of notice, be advising the minister. I will be trying to get my hands on some sense of numbers in terms of what those numbers are if it is at all possible from the perspective of the province when we get to line by line, but thank you very much.

Mr. Chairperson: Are there any other questions of Mr. Poon? If there are no other questions, thank you very much for your presentation.

Mr. Chairperson: We will now proceed to our next presenter on Bill 42, Mr. Harry Lehotsky.

Good morning, Mr. Lehotsky. Have you copies of your presentation?

Mr. Harry Lehotsky (New Life Ministries): No, I did not have time to type something out. I just have a couple of notes, just a rough outline for myself.

Mr. Chairperson: Fine. You may proceed then, Mr. Lehotsky.

Mr. Lehotsky: Okay. This is one of the things that I have been looking into for about five years hoping that something would happen that would actually benefit the community in terms of community protection.

For 16 years, since moving from New York over here and having worked in the projects in Chicago, I have seen in those locales and here also in Winnipeg that the criminal law does not go far enough in terms of dealing with the stuff we are dealing with in our neighbourhoods. When you live there, you understand a little bit more of it, seeing some examples of how civil legislation was used in terms of going after criminal behaviour before it explodes into murder or culminates in a criminal–somebody getting busted for having the cocaine in their hands. There is a lot of stuff that leads up to that, that is not documented, that is not covered by criminal law, that the community desperately needs protection from.

I guess I was working with the wrong folks. I was trying to work with the City of Winnipeg on this, trying to get it implemented. The city's law department was pretty reticent, saying: well, anything we do might be challenged; we do not have enough authority. I said that it is there even now in your act. You can do some things. Anyway, it is just a really frustrating process; I kind of let it sit. It was a walk through the neighbourhood with someone in government just about three months ago that was incredibly encouraging to me, because he said actually we are kind of looking at something like this, and it is a good idea. Again, I did not know what would happen and then I heard about this bill being announced.

So basically what I want to do is, any way possible, I want to try to support this, make it even tougher if at all possible and just get it enacted as quickly as possible. We desperately need it. I have heard some of the comments of people opposing this, No. l, this is an invasion of peoples' homes or privacy, and that is baloney. Number one, we are not talking about how people live their lives in the privacy of their own homes here. We are talking about the behaviour and the actions of people in their homes that are spilling out onto their front lawns and up and down the sidewalks and streets. This is going beyond what happens inside the walls of somebody's house. This is not an invasion of their privacy. It is an invasion of ours that we are starting to deal with.

We are not also talking about opening ourselves here for frivolous complaints or vendettas that one neighbour has against another. We are talking here about something that has been designated with support from government, even in terms of investigators being assigned to it. We have lots of professionals in the community who would be able to supply some information relating to criminal activities or the stuff that leads up to it in our communities, anything from health professionals to school workers, guidance counsellors, teachers, police, residents. There are lots of calls to some of these addresses already, investigations ongoing by RCMP and police. They are not usually investigating fiction. Can we catch some of this stuff before it goes over the edge?

People who say existing laws are enough, I have read in the newspaper when this thing was first announced. Some law professors got on and they started talking about how existing laws are really enough to deal with all this. Well, excuse me, buddy. You know, I have a real problem here, because some of these people are talking about our communities. They do not understand what is going on. When is the last time they have seen a cocaine dealer in our neighbourhood? When is the last time they have seen that some of these guys have security cameras, so that they can see well in advance of any police coming with battering rams or whatever? They can see exactly what is going on. They have Rottweilers in their front yard. Some of them have steel barricaded doors. Tell me that there is enough time for the police to get in before the evidence is flushed down the toilet.

Criminal law, as I understand it, as a couple of vice cops have said to me in the past, well, Harry, do you have evidence? I said, well, what do you mean "evidence"? Well, we need to know for sure that there are drugs being dealt there. Okay, so what do you want from me? Do you want me to go make a buy? Do you think they are going to deal to the preacher? Under criminal law, that is the kind of evidence that is needed. Under common-sense law, we have everybody from first graders to old grandmas walking up and down the street who know what is going on. They feel jeopardized by the behaviour on the property, and there we are stuck and handcuffed. The police themselves are frustrated.

The police that have been most helpful to us in this are the people who are the closest to the situation all the time, and that is the community foot patrol officers. They see these people moving from one address to the other. Long before vice has the opportunity to move from a present investigation to a new investigation, the foot patrol officers are already aware of and have been notified by the community in terms of what is going on. We see the stream of hookers; we see the stream of buying traffic; we hear the resident complaints; we hear the noise late at night; we see the spotters; we see the guys with cell phones; we see the people at pay phones making phone calls; we see what is going on; we know what is happening.

There is precedent already made for some of these things, and I think we can follow through on that. This is a very reasonable extension of some of that. We already have licensing and zoning laws that identify things that are injurious to the health or interests of owners or occupants of adjacent property. The Residential Tenancies Act even identifies people who are jeopardizing the residents of properties around them, not just on their own property, as grounds for eviction but not giving us the right to have that person taken care of if the landlord is not interested in evicting that person, which we have often come up against. So this is an attempt and actually a good attempt at getting it more in that direction.

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I would like to have some things added to this, actually. Section 1, subsection 2, talks about peaceful enjoyment. I think that is a great phrase, one that needs to be seen again in the inner city. We want peaceful enjoyment of our neighbourhoods. Section 2, subsection 2, I would like an (f) added to that after the (e). What about guys who are regularly meeting in gang colours on certain premises? Is it possible to take action on those meeting grounds there?

There was a restaurant in our neighbourhood where the guys were coming consistently between two and five, six o'clock in the morning in colours having their meetings. Once they proceeded to do a home invasion, and another time they t-boned a police cruiser in the process of doing some other stuff they had planned while meeting at a restaurant.

I would like to see people who have gang meetings in places, in colours, it might be good to identify that as another hazard to the community, because let me tell you how people up and down the street feel about what is going on when those kinds of meetings are happening or storage of stolen goods. Another question I had is why only the owner, why not the manager, caretaker or tenant? I think those are the main ones there.

Some of you will have seen some of the stuff that happened over the weekend when I passed out this poster in the neighbourhood. This was the result of frustration, okay? This is a result of vice officers telling us we need time to mount an investigation, and seven years later the same guys are still dealing stuff out on the street, because they move from one address to the other, and it takes too long to switch the investigation, I do not know, but community officers have been supporting us. They have been going to the doors. They have been banging on doors, awfully frustrated; we are frustrated.

So I thought, you know, this is something that has been done before; let us just do it again. Crack cocaine for sale, extended hours, conveniently located in a residential area near you, superior quality control, pride in great customer service. That is the way these guys pass themselves off. Additional franchises available. So we had little tear-off tabs to identify it. Let us draw some real attention to this.

Does this open me up for something? You bet it does; you bet it does. Am I willing to take that chance? You bet I am. Are there innocent people living in some of these buildings who were not involved in this? Yes, but they are the first ones who would want to be protected by this and get that traffic out of there. You know, the problem is serious, and I do not think people understand how serious it is. It needs to be dealt with.

I will tell you how I open myself up to stuff. Some of the people who are doing spotting work and courier work for the dealers have said they wish the police would file a complaint against me and file criminal charges against me. Well, welcome, how about it, because maybe then the truth about them will come out. I am willing to take that chance. I have had personal threats. Some of the supposed innocent people from one of those houses came over stoned out of their gourds on Friday afternoon and said, if that stuff airs on TV tonight, you are dead.

I got home, and my kids were watching that, and I got a 12-year-old who started crying. He said: Dad, how come you had to do this? I said: well, who is going to do something? Are we always going to back down because of what is happening or are we actually going to take it forward?

At 4:30, just when all the reporters were starting to get done with their stuff and putting their stories together and I still was not sure how it was going to turn up, but I was thinking maybe I opened a box bigger than what I wanted by doing this. Some people from the neighbourhood came running to church and said: Harry, can you come over the Sherbrook and Ellice? They just hauled some kid out of the apartment block there in a body bag with drug overdose.

I went home that night knowing I did the right thing. No matter how the Free Press decided to write it up, I would do the same thing again. I do not know how much further we have to go, but you know what? Even with this, I know in my heart this is not the best way. I know in my heart I did the right thing at the right time with what we had. We have the potential to get some more over here, and that is what I hoping for, something more objective, something where we can involve some people outside of the situation that maybe are not as emotional about it as we are and get something happening on this.

So, I guess, this is potential for a team approach. We are already looking at other initiatives in our community that will tie in quite neatly to this and be supportive of it and get things happening quicker and some of the more objective evidence to go along with this as well. So there are a few things that as residents we are already planning and are well underway. It can be great; it can be a powerful tool if the foot patrol officers are waiting on you. The residents are waiting on you. Get it done, do it for us.

Mr. Chairperson: Thank you, Mr. Lehotsky. Are there any questions for the presenter?

Hon. Vic Toews (Minister of Justice and Attorney General): I just want to thank Reverend Lehotsky for his presentation. I appreciate the work that he is doing in his community over the last number of years. I know sometimes the law is frustrating. We always need to work within the law, and also legislators also need to respond to the specific concerns of neighbourhoods. Sometimes it is difficult to do.

This particular bill, Mr. Lehotsky, is a first step, and we see it as part of a broader approach. The legislation itself is unique in Canada, and I know you had certain questions and certain concerns about that. Those are some of the issues I know my department has struggled with. We feel at this time the bill, in fact, presents the best alternative that we can come up with in terms of a civil approach, but I think what needs to be said is that this bill will only work if we have the community support. I know the police are very supportive. I know the mayor has written me and indicated his support for this legislation. So if people like yourself and community members continue the support, I know that we will be able to use this as one of a number of tools to help accomplish what all of us wish to see. So thank you very much.

Mr. Chairperson: If there are no other questions, I want to thank Mr. Lehotsky for his presentation this morning. Are there any other persons wishing to make a presentation to the bills before the committee this morning?

Seeing none, is it the will of the committee to proceed with clause-by-clause consideration of the bills? [agreed] Did the committee wish to consider the bills in numerical order, or is there some other order which the committee would like to consider the bills? Numerical order? Okay.

Is there agreement that the clauses in the bills will be called in blocks of clauses, conforming to pages, with the understanding that the committee will stop at any clause where a member wishes to ask a question, raise a concern or move an amendment? [agreed] Is it also agreed that any amendments that may be proposed this morning will be considered to be moved with respect to both English and French languages unless otherwise noted?

An Honourable Member: Agreed.

Mr. Chairperson: Okay. We will start with Bill 35. Does the minister for Bill 35 have an opening statement? No. Mr. Toews? Does the critic from the official opposition have an opening statement?

Mr. Gord Mackintosh (St. Johns): We have distributed in advance to the committee an amendment that we are proposing to this legislation, and that will be to subclause 3(8). That follows on our concern that this legislation that has gone before is not focused in on the real remaining and serious challenge out there, and that is the hard-core repeat drunk drivers. The legislation has to be better tailored, and if this legislation is indeed to be tough, then let us work together this morning and toughen it up and make sure that the sanctions are enhanced for those who are seriously impaired, first of all, and, second of all, those who continue to spit in the face of the law and continue to drive while impaired.

Mr. Chairperson: Thank you, Mr. Mackintosh. The table of contents, the preamble and the title are postponed until other clauses have been considered in their proper order. Is there agreement from the committee to call the clauses in blocks of clauses, conforming to pages, with the understanding that the Chair will stop at any clauses where members have options, questions or comments or wish to move amendments? [agreed]

Clauses 1 and 2–pass; Clauses 3(1) and 3(2)–pass; Clauses 3(3), 3(4) and 3(5)–pass; Clauses 3(6) and 3(7)–pass. Clause 3(8).

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Mr. Mackintosh: I move

THAT subsection 3(8) of the bill be struck out and the following be substituted:

242.1(7.1) The reference in subsection (7) to "30 days" shall be read, in relation to a particular motor vehicle,

(a) as "60 days", if

(i) the particular motor vehicle was seized under clause (1)(c), or

(ii) the particular motor vehicle was seized under clause (1)(b) and the person because of whose conduct it was seized was found to have a concentration of alcohol in his or her blood in excess of 150 milligrams in 100 millilitres of blood;

and the person because of whose conduct the particular motor vehicle was seized is not a person whose conduct resulted in another seizure of a motor vehicle under subsection (1) within the preceding five years; or

(b) as "120 days", if the person because of whose conduct the particular vehicle was seized is a person because of whose conduct another seizure of a motor vehicle was made under clause (1)(b) or (c) within the preceding five years and

242.1(7.1.1) The number of days referenced in subsection (7), as determined under subsection (7.1) if applicable, in respect of a particular motor vehicle shall be increased by 60 for each time within the preceding five years that another seizure was made under this section and the person because of whose conduct the particular motor vehicle was seized is the person because of whose conduct a motor vehicle was seized in that other seizure.

Mr. Chairperson: The honourable minister.

Mr. Mackintosh: Just to speak to the amendment.

Mr. Chairperson: Okay, perhaps we will let Mr. Mackintosh speak to the amendment first, and then the minister will make his comments.

Mr. Mackintosh: I know the government for some time has been saying that Manitoba has the toughest drinking and driving laws in Canada. That is not true. It may have been true 10 years ago or so, and since that time other jurisdictions have surpassed us. In particular, what is defined as tough in other jurisdictions has not been defined as tough here.

If you are going to get tough on drinking and driving, it is important that we deal with that very small percentage of the population and indeed the small percentage of those who are drunk drivers who do not seem to be deterred by the changing legislation and, more particularly, the changing norms in western countries.

It is true that impaired driving rates are down across western democracies and western countries. There has been a change of attitude, and legislation has caught up to that attitude and sometimes in some places has led it. But Manitoba has not been faring as well as it should in comparison to other provinces in Canada, both in terms of the legislation and in terms of the decreasing of the deaths and injuries that Manitobans are owed as a result of government action.

About 1 percent of drunken drivers are the hardcore, repeat drivers, who do not seem to be deterred. These yet comprise or are responsible for 50, 60, perhaps more, percent of the injuries caused by impaired driving. All the statistics seem to indicate that these people have not changed. Those are the best statistics. We have to start to focus on those. We talked about this last year when the government brought in an amendment. Again, this year, it is critical that Manitoba move in this direction. This government has had 11 years to deal with that and has failed.

This is a start. This is within, of course, the context of this legislation, which is quite narrow, is within scope. So, keeping to that parameter, what we are proposing here is that if someone has a blood alcohol content or level of over .15–that is over twice the limit–the impoundment period will increase from 30 to 60 days. In other words, there is an increased sanction based on the BAC, which is what is being recommended by those who study this issue out there, those who want to see effective change.

The second area of change is, of course, refusing a breathalyser, and that has to increase accordingly. But what is also important is, with subsequent offences, it is not good enough simply to say your impoundment period will be 90 days. It is just a flat rate. In other words, your third, fourth, fifth and so on offences are basically not recognized under this legislation. So what we are proposing is that an additional 60 days be added on to every time that you are caught with offending.

So under this legislation you can see where the tiered sanctions are focused on those who do not pay respect to the law. We think it is the kind of change that is necessary in this province if we are indeed to, once again, or if we ever did, become the toughest province in Canada with impaired drivers.

I ask the minister to accept these amendments. The government, if it wishes more time to consider that, we would certainly be prepared to adjourn the committee, if it wants to look at it. I think, though, the principles are clear-cut. As I said, we did provide these in advance of moving the motion today.

Before concluding, I did have one other question for the minister. I will just perhaps pose it at this time, and that is: what is the consequence to innocent third parties, in other words, owners of motor vehicles whose vehicles were driven by an impaired driver, under this scheme, and second of all, an issue raised by MARL, and that is: what are the balances in place for those who are not subsequently convicted?

Hon. Vic Toews (Minister of Justice and Attorney General): Well, I have a few questions about the amendment raised by the member's comments, and if I could put those questions to the member in order to get some clarification: What other jurisdiction has this particular amendment that you are proposing in place today in Canada?

Mr. Mackintosh: This is a made-in-Manitoba amendment based on what is seen by national organizations and local organizations as the way we have to go in terms of focusing in on the repeat hard core drunk driver.

Mr. Toews: In order, just to clarify, no other jurisdiction has this. The second question, what other jurisdiction has the three elements: the seizure of the licence for over .08 administratively, the seizure of motor vehicles .08 administratively, and the seizure of motor vehicles for a suspended driver? What other jurisdiction in Canada has all three of those?

Mr. Mackintosh: You see, the minister wants to, instead of dealing with this change that has to take place–I am more than happy to be the Justice minister for today because it is good practice for the next little while, but I will tell you what, the minister should know full well what kind of legislation he is bringing in. What I am saying to the minister is: Can he possibly work with the opposition to make the impaired driving legislation in Manitoba actually work for the safety of Manitobans? I ask him that question.

Mr. Toews: Well, indeed, I think the member has indicated that other jurisdictions have this legislation. He said so in his comments. He indicated that Manitoba had fallen behind in this respect, and so all I need to know then is, in fact, is there another jurisdiction in Canada that has these three elements of this legislation? So that is all I have asked. The member has made certain statements. We can check that out in Hansard, what he in fact said. All I am doing is asking which jurisdictions have all three elements that I have set out, and if the member does not know that, that is fine, I can proceed then to answer his question.

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Mr. Mackintosh: We can talk about the other jurisdictions. I have a map in my glove compartment and I found that I was living in Manitoba, Canada, and that is really what I care most about, and that is what my constituents cared most about when they sent me down here. What I do know is that other jurisdictions have, for example, three-strikes-you-are-out legislation to deal with the hard core impaired repeat drunk drivers, and it is not Manitoba; it is British Columbia and it is Ontario. I know of some other jurisdictions that have tiered sanctions based on BAC. If the minister would like a list of all those, it is funny, because he has a multimillion-dollar department that I am sure he can rely on to give him that information. I have heard him come into the House, he does not even know how many cases have been heard under The Parental Responsibility Act, so if he wants to rely on my information, I can understand why he wants to do that, but can we just leave aside all this nonsense and deal with the legislation before us? Let us deal with the Manitoba situation and let us move ahead.

Mr. Toews: So the member does not in fact have any indication of what jurisdictions have these three administrative suspension processes, and it is unfortunate he would come here and suggest that there are other jurisdictions that have all three. That is certainly what I heard him say, and I was just curious what other jurisdiction has those administrative processes. I understand from staff, in speaking to these matters, and I am not suggesting that these are not good amendments, but one of the things that has in fact made Manitoba's program a very successful one, recognized by independent studies time and time again, compared to other jurisdictions like Saskatchewan and indeed like British Columbia, is the effective rate of reduction of deaths and injuries.

One of the points that has made this a successful program is the administrative simplicity of the program. I understand that there are significant concerns in respect of administrative difficulties in trying to implement this. So, while I would not be prepared at this time to delay this particular bill because I think it is an important one and needs to go ahead, we can take a look at some of those administrative difficulties to see whether legislation can be brought in in the next short while. So without commenting on whether or not this is desirable or administratively possible, I think that some more work needs to be done. So I thank the member for the proposal, but at this time I cannot support it.

Mr. Kevin Lamoureux (Inkster): Mr. Chairperson, I did have a question in terms of the third-party aspect. Can the minister indicate what does actually take place for someone that takes their friend's vehicle out, even if it is completely unknown to their friend, and they get caught impaired driving? What actually happens then to the vehicle?

Mr. Toews: How this particular administrative proposal works is that the seizures, whether it be of licence at roadside or whether it is of motor vehicles now where we are talking about the .08, they occur at roadside. They occur on the basis of the certificate of analysis or the admission of the particular driver that he or she is suspended. What happens then is there is a process by which, if the registered owner is not in fact the driver of the motor vehicle, the registered owner can make an application, I believe it is, to the magistrates, specifically designated magistrates, in the context of the seizure of motor vehicles. There are certain defences that the registered owner can raise in respect of–I will bring the member's attention to 3(5) which, 242.1(5): "Where, after considering an application under subsection (4) by an owner who was not the driver at the time the motor vehicle was liable to seizure and impoundment, the justice is satisfied that the driver was in possession of the vehicle without the knowledge and consent of the owner."

That is the situation I believe the member brought to my attention. In that case, the motor vehicle is released. So it is consistent with the process whereby the motor vehicle is seized from suspended drivers. The defences are slightly different given the nature of the issue being considered here. But there is a process in order to protect innocent third parties where their motor vehicles have been taken.

Mr. Lamoureux: Mr. Chairperson, I do have a question for the member for St. Johns, but prior to going on to that, is it possible, assuming that the minister has some statistical information from those that do drive and drink, repeat offenders and so forth, if there is statistical information that can be made available, not necessarily right now. I do not know if he has that sort of information at his finger tips, but if it is possible, I would appreciate very much getting a copy of it. Again, I am looking for repeat offenders, percentage of individuals that are pulled over more than once type of thing past the point of the .08, to first-time offenders, so we can get a better analysis, even if you are looking at the ownership issue, if that is possible. I do not know. I pose it to the minister, if his department can look into it and then get back to me at some point in time on it. If the minister wants to comment, then I will go to the member for St. Johns.

Mr. Toews: I appreciate the question from the member for Inkster. In fact, there is an independent study that has been done which focuses directly on Manitoba's laws. The Traffic Injury Research Foundation completed an evaluation of Manitoba's countermeasures program and found the vehicle seizure and administrative licence suspensions to be very effective, highly effective. In their recommendations for a balanced, effective countermeasures program, Manitoba was only lacking in one area, in their opinion, and that is the ignition interlock. That is something that the federal government now is bringing forward, and we want to see what the federal government is doing in that respect.

So Manitoba, in fact, has served as a model for Canada, quite recognized in the .05 area and the administrative countermeasures that we are bringing in that respect. Most other jurisdictions have followed Manitoba's model only in part, as I am aware of, and have added their unique elements. But in terms of an administrative process, I am not aware of anyone who would have received better appraisal of what has been done in this area, according to this independent study by the Traffic Injury Research Foundation. I will provide that to the member.

Mr. Lamoureux: I guess one final question comes out of the response. Given the amount of tourism that we are anticipating, both interprovincial, from the States, anticipating that there will be a lot of driver plates out there over the summer that are not from within Manitoba, what would happen for someone who is engaged in alcohol past the limit and they are out of province? To what degree does the government inform? Do we have signs at the borders, especially given the Pan Am Games, to inform people that their vehicles can be confiscated, that sort of stuff? I just look for a comment, and then I will leave it at that.

* (1050)

Mr. Toews: I thank the member for that question. It was a question also that the member for St. Johns (Mr. Mackintosh) raised with me during the course of Estimates. There is some information being prepared to provide, at various locations, people with the information related to some of the unique characteristics of Manitoba's laws.

Of course, in respect of this bill, this bill will probably not be in place before the Pan Am Games, given some of the training issues that need to take place yet. But the member's point is a good one, and we are trying to address that.

One of the points that I raised with the member for St. Johns was that every driver who gets into a motor vehicle in this province, whether they are from out of province or not, the obligation is on that driver to know what the laws of the jurisdiction are. So I would suggest that any driver, whether they are from Manitoba or from out of jurisdiction, ensure that they are completely familiar with the laws and if there are any questions to contact the Highways branch. But as I indicated, there is some very general information that is being distributed. I believe in one of the tourism books that I referenced to the member for St. Johns, there is reference on some of the laws that are unique to the province of Manitoba.

Mr. Lamoureux: Finally, with regard to the motion that Mr. Mackintosh moved, it would appear that the essence of the motion is just to increase the number of days. My question is where the member would have got the 60 days from. Is it just kind of a grab at a number of days? Is there some rationale why from 30 to 60? On the surface, it would appear, you know, government says it wants to get tough; well, we want to show we want to get tougher so we are just increasing the number.

Is there some research that was done to indicate that 60 days would be more effective, because then the next question would be is that if 60 days would be more effective, would 90 days have even been more effective than 60 days? What was the justification for 60 days as proposed in the amendment?

Mr. Mackintosh: Well, you could have up to 240 days, I suppose, depending on the particulars of the offence. I guess, first of all, it says that in 30 days how could someone deal or even be assessed with a problem. But it says that if you are driving over .08 and then get an impoundment of 30 days, if you are double that, you should get an impoundment of double that amount. It is based on that simple basis, based on the bill that is before the committee.

Mr. Chairperson: Any further debate on the amendment?

Shall the amendment pass?

Some Honourable Members: Yes.

Some Honourable Members: No.

Mr. Chairperson: All those in favour, say yea.

Some Honourable Members: Yea.

Mr. Chairperson: All those opposed, say nay.

Some Honourable Members: Nay.

Mr. Chairperson: In my opinion, the Nays have it.

An Honourable Member: On division.

Mr. Chairperson: On division. The amendment is defeated on division.

Mr. Chairperson: Clauses 3(8), 3(9), 3(10), 3(11), 4 and 5(1)–pass; Clauses 5(2), 5(3), 5(4), 5(5), 6–pass; Clauses 7, 8(1), 8(2), 8(3)–pass; Clauses 8(4), 8(5), 8(6), 8(7)–pass; Clauses 8(8) and 9–pass; preamble–pass.

Mr. Mackintosh: Two questions. First of all, what are the rates charged for impoundment now in Manitoba?

Mr. Toews: I do not have those statistics. I know that when those fees were originally made they involved extensive discussion with the industry, police and others, and I believe that there have been some amendments made. I know there has been an increase fairly recently in the administrative fee. I believe it is at $75 now, but, again, I will have to check into that. It is all set by regulation, and I will have one of my staff send the member a copy of the regulation which sets out the relevant fees.

Mr. Mackintosh: Further to that, in the earlier questions from the member for Inkster (Mr. Lamoureux), under the legislation an innocent third party can get their vehicle returned on application, but what happens to the impoundment fees there? Are they charged to the innocent third party?

Mr. Toews: I can get the member further information on that; but, generally speaking, the principle is that where the motor vehicle has been stolen, there is the process by which the car and the impoundment fees are either paid by the government or waived.

In respect of a situation where the motor vehicle is, in fact, given to the individual who is caught driving the motor vehicle, the owner would still have to pay the fees, but they have a right then to sue the driver who is either suspended or over .08 for those fees. We thought that that is the appropriate way, because it is the registered owner who is responsible for that motor vehicle and responsible for ensuring that the person is properly licensed or indeed does not breach any laws while utilizing that motor vehicle.

Mr. Mackintosh: How would the minister respond to the concern of MARL that says "especially troubling"–and I am quoting from their submission of July 12–"is that there is no provision in the Act to compensate owners of impounded cars if no offence is subsequently made out"?

Mr. Toews: Well, the problem with this submission is again it goes back to the early opposition to this type of legislation. There is a confusion between criminal law and administrative law. MARL points out: "We all have the constitutional right to be presumed innocent until proven guilty." That is absolutely correct, we do.

But, unfortunately, it has nothing to do with this legislation because this does not deal with guilt or innocence. It deals with the utilization of property on a public highway. So the submission demonstrates a lack of understanding of the constitutional basis for the legislation.

Mr. Chairperson: Title–pass. Bill be reported.

We will go on to Bill 39.

Mr. Chairperson: Does the minister responsible for Bill 39 have an opening statement?

Hon. Eric Stefanson (Minister of Health): No, I do not, Mr. Chairman.

Mr. Chairperson: Thank you, Mr. Minister. Does the critic from the official opposition have an opening statement?

An Honourable Member: No.

Mr. Chairperson: No. During the consideration of the bill, the preamble and the title are postponed until all other clauses have been considered in their proper order. With the agreement of the committee, the bill will be called in blocks of clauses with the understanding that the Chair will stop at any particular clause where members may have questions or wish to move an amendment.

Clauses 1 and 2–pass; Clause 3–pass.

Shall Clause 4, which covers from pages 3 to 18, pass?

An Honourable Member: Pass.

Mr. Chairperson: Clause 4 is accordingly passed.

Clause 5(1)–pass; Clauses 5(2), 5(3), 6(1), 6(2) and 7–pass; Clauses 8(1), 8(2) and 9–pass; Clauses 10, 11(1), 11(2), 12, 13 and 14–pass; Clauses 15, 16, 17 and 18–pass; preamble–pass; title–pass.

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Mr. Chairperson: Mr. Chomiak, you have a question on Bill 39.

Mr. Dave Chomiak (Kildonan): Yes, I have a sort of general overall statement that might come around as the question. I just want to–

Mr. Chairperson: Just a minute. Is there leave to go back to opening statements? [agreed]

Mr. Chomiak: With respect to this bill, I do want to indicate that, as you probably gathered from our questioning during the course of the committee hearings and as well during questions I had asked when the minister had indicated that there would be a bill coming in, where there were some concerns about our receiving notification of this bill and the ramifications of it because the ramifications are quite profound with respect to the amendments in this bill. I do appreciate the fact that we had considerable time to query Ken Brown, the registrar of the College of Physicians and Surgeons, on some of the specific aspects of the amendments, particularly those relating to the provision of physician extenders, which was the terminology used by Dr. Brown. For the most part, I think our concerns were addressed. The concerns were: (a) basically whether or not all of the related bodies and groups had been amply notified and advised about this change; and (b) precisely what this change would mean in terms of the future of medical practice and what the role of these particular individuals would be in regard to the medical profession.

We were concerned about the establishment of a new body of professionals that would exist, and certainly the assurances given from Dr. Brown were such that it does not appear that that is the intention. In fact, the intention, as I understand it from Dr. Brown and from discussions I have had with officials from the Department of Health, is that this new role is actually designed to fill specific needs in specific areas, such as that in the bone marrow clinic where specific requirements and needs need to be addressed, and this intermediate role could provide for that service. So, on that basis, we certainly do not want to hold up the provision of those kinds of services.

Dr. Brown forwarded to me a copy of a letter dated October 15, which is also copied to the minister, Susan Neilson, Barbara Hague, Ron Guse, and Dr. Robert Menzies, concerning the amendments to The Medical Act. In the course of that letter–and I do not have copies for members, but I hope they will provide me with the leave just to read into the record, since the minister has copies of the record–the fact that, and I am quoting Dr. Brown, we enjoy an effective working relationship with MARN, and I believe that we share a common philosophy with regard to the evolutionary of intermediary-level care practitioners, whether they be advanced practice nurses or clinical assistants. We have been reassured on several occasions by the MARN that the creation of the physician replacement is not their intent. We have accepted and continue to accept that reassurance. Similarly, we see the role of the clinical assistants as being compatible with the role of the nurse.

The nub of the issue there was, in fact, we were concerned that the newly found provision in the MARN act, which we have recently passed in this committee, that provided for a legislated role for nurse assistants or nurse practitioners, might be curtailed or come into conflict with this new position being structured under The Medical Act, but we have been given every assurance that that is, in fact, not the case. We will continue to pursue this matter and ensure that, in fact, that is the practice. But we have been given assurances from all concerned parties that that is not the intention or that is not the purpose of the department or of the college with respect to these amendments.

With respect to the other significant part of this bill–and it is significant–and that is the ability of medical practitioners to incorporate, again we queried the head of the Manitoba Medical Association, John Laplume, the executive director, with respect to that aspect. It certainly is a recognized need. It is something that I believe we would have liked to have pursued in more depth and perhaps tactically may have handled differently, but there is no question that, unless doctors in Manitoba are provided with this ability, the drain from Manitoba will continue, and doctors in Manitoba will be at a decidedly competitive disadvantage vis-a-vis practitioners in other jurisdictions. So, on that basis, and certainly with respect to the fact that we are allowing other professionals to incorporate, given the other act that we have seen before the committee today, it is very difficult to hold back or not deal with the issue of the incorporation of doctors and their ability to incorporate.

We have carefully reviewed the legislation, and we certainly are of the opinion that this in no way–in fact, we queried on this regard–would limit the liability or the provisions of liability with respect to acts of omission or other acts which have a civil remedy. We are also concerned about the ability of incorporated practices to be, in fact, bought up by other interests or interests outside of the jurisdiction, but a reading of the legislation–I will be querying the minister a little later on this in clause by clause–certainly indicates that that is not the intention or the case.

Also, and in addition, there are some concerns with respect to the issue of medical practices becoming such that the medical practitioner may, in some cases, head up an organization, hire employees and direct a little conglomerate wherein the medical practitioner does not have his or her hands in the day-to-day running of that operation. From the reading of the legislation, and the regulatory portion seems to me to indicate, to give assurances that, in fact, that would not be the case. Certainly the assurances given to me by Dr. Ken Brown with relation to the extended doctor provision, although it does not relate to this act, it indicates that the College of Physicians and Surgeons would not let that occurrence occur. I will also be querying the minister when we go to clause by clause just to ensure that the assurances that we have obtained from our questioning as well as from our reading of the act are such that that will not occur.

So, having said those few opening comments, Mr. Chairperson–

Some Honourable Members: Closing comments.

Mr. Chomiak: Opening or closing–are we closed already? Oh, we missed that. I was out.

Mr. Chairperson, just for the record, I wonder if we might have leave of the committee to allow me to address a couple of questions to the minister on comments I have made. I was out of the committee taking a phone call during the last several minutes and did not realize that the act, in fact, had gone through committee. I wonder if we might have leave of the committee to allow me to pursue a couple of questions in this regard.

Mr. Chairperson: Is there leave of the committee? [agreed]

Mr. Chomiak: Thank you, Mr. Chairperson.

I wonder if the minister can address the issues that I raised. I am not as much concerned with the issue of the physician extenders, because we have been given assurances from the college and from the minister that our understanding of the physician assistant issue is such that we need not be concerned.

But the two issues with respect to the ability of another corporation extraterritorially or otherwise to purchase and control medical corporations in Manitoba, my reading of the legislation is such that, in fact, you have to be licensed to practise in Manitoba in order to be a director and/or voting shareholder of that corporation, which would lead me to assume that, in fact, that could not occur. In other words, outside interests could not assume ownership. I just want assurances from the minister that that is the interpretation of the department.

* (1110)

Mr. Stefanson: Just very briefly on the issue of the clinical assistant, I think, as the member knows, the legislation is enabling legislation, and there is extensive work to be done through the regulations and a follow-up to the meeting we had last week. Again, I think as he is aware, the College of Physicians and Surgeons has established an ad hoc advisory committee to assist in the drafting of the regulations required for the establishment of the clinical assistant register. To date the committee includes representatives from the Manitoba Association of Registered Nurses, the Faculty of Medicine, the College of Family Practice, the Northern Medical Unit, the Winnipeg Hospital Authority and Manitoba Health, as well as, the college. It is certainly expected that that committee will be expanded even further to incorporate other elements as well.

In terms of the specific questions asked by the member, all of the voting shares of a professional corporation must be owned by licensed physicians or by other professional corporations which would also then have to meet that same criteria. All the directors and the president of a professional corporation must be licensed physicians, and the business of a medical professional corporation is restricted to the practice of the medicine and any activities directly related to the practice. So I think those three sections–they are in Sections 22 and 23–basically cover off the concerns that have been raised by the member.

The member asked a number of questions during the presentation about the financial impact. I think it is expected that the financial impact of this issue is fairly minimal, recognizing that at the end of the day, even though physicians and other professionals will be allowed to incorporate, it is basically a deferral because our tax system today is more or less fully integrated. What this would allow, I believe, the first $200,000 of earnings to pay a lower tax bracket. Ultimately, when that money is taken out of the corporation as dividends, based on an integrated tax system, the overall taxes end up being very, very similar. So it is not a tax reduction, it is a tax deferral. Obviously, that has benefits that allows doctors, physicians, professionals incorporating to put that money to use in a whole range of other activities to meet their needs, but in terms of the financial impact of incorporation, it is fairly minimal, Mr. Chairman.

Mr. Chomiak: Is the minister indicating that the cost of carrying on a business, which is presently the effect of carrying on a business by a medical practitioner now, the write-off, the tax provisions that presently apply, will not be enhanced by the incorporation process, that is, that the carrying on of business as a corporation will not provide for additional tax forgiveness, as it were?

Mr. Stefanson: All of the expenditures that would qualify as business expenses would continue to qualify. What ends up happening by establishing a corporation, I believe it is still on the first $200,000 of earnings that you pay at a lower tax bracket than you would if you were earning that money personally. Beyond that, over $200,000, you pay at a much higher tax bracket. The advantage of being incorporated for all intents and purposes vanishes, so the advantage to somebody to incorporate is on that first $200,000 of earnings that you pay at a lower tax bracket.

Ultimately, when you take those earnings out of the company, you take it out usually as a dividend and then you pay further taxes on that. So it really is primarily a deferral but that is certainly a benefit to be able to defer some taxes, as I say, to put that money to use to either pay down debt, reinvest elsewhere in your business, do a whole range of other things. But more importantly than that, it is the issue of competitiveness, as we discussed when we had the MMA up here. There are now, I believe, at least five other provinces that allow professional incorporation. When it comes to our doctors, our dentists, our accountants, our lawyers and so on, it is really an issue of competitiveness.

Mr. Chomiak: One of the concerns is the issue of, and certainly the definition says, carrying on of the medical practice. I mean, one of the concerns is whether or not a medical practice–

An Honourable Member: That is three questions.

Mr. Chomiak: Well, I understand from the member for Arthur-Virden (Mr. Downey) that this is a supplementary to the first question.

One of the interesting issues is the integration between, say, a physician that carries on a practice that has a private lab and then extends that into the medical practice. Has the ramification of that been looked at by the minister of the respecting corporation?

Mr. Stefanson: That issue has definitely been taken into consideration, and if the member were to look at Section 23(2), he would see: "Restriction on business of medical corporation. A medical corporation shall not carry on any business or activity other than the practice of medicine and the provision of services directly associated with the practice of medicine carried on by it."

So that is the enabling provision in this legislation.

Mr. Chomiak: The minister is convinced that by virtue of this incorporation, it will not allow–and I think I know the answer for this, from the College of Physicians and Surgeons via vis-a-vis regulations that it somehow will not have the ramification of allowing, say, a physician to open office A, B, C and D and only be located in office A and operate the B and C office in different locations with some other types of assistance and thereby extend one's practice, and yet not actually be in physical control of those particular operations. Am I clear in my example?

Mr. Stefanson: Mr. Chairman, that is covered off just as much under "corporation" as it is in terms of being unincorporated.

Mr. Chomiak: So I assume that is my assurance from the minister, is that correct? That it is in fact regulated by the College of Physicians and Surgeons and through regulation, so we do not have concerns in that regard?

Mr. Stefanson: The member is correct, and I know he also raised the issue of liability. Again, I assure him and all members that the professional responsibility and liability of a physician is not diminished in any way by allowing the practitioner to practise through a corporation.

Mr. Chairperson: Preamble–pass; title–pass. Bill be reported.

Mr. Chairperson: Okay, we will go onto Bill 41. Does the minister responsible for Bill 41 have an opening statement?

Hon. Harold Gilleshammer (Minister of Finance): Mr. Chair, this bill parallels the previous bill and refers to The Certified General Accountants Act, The Chartered Accountants Act, The Dental Association Act and The Law Society Act.

Mr. Chairperson: We thank the minister. Does the critic from the official opposition have an opening statement?

Mr. Gord Mackintosh (St. Johns): No. I guess, I will have one question. Why are other professions not included in this legislation?

Mr. Gilleshammer: These are the organizations who have presented a case and have made their case to government.

* (1120)

Mr. Dave Chomiak (Kildonan): I just have to clear that I indicated to the minister that I will be asking what I asked the Minister of Health (Mr. Stefanson). From my understanding, the tax ramifications for the province by virtue of this incorporation would only be through the deferral provisions that were referred to by the Minister of Health. Has the department done a calculation of what the tax ramifications would be to the province from the passage of this bill and perhaps the related health bill?

Mr. Gilleshammer: I listened very carefully to the Minister of Health (Mr. Stefanson), and I think he covered off that issue very thoroughly. It is minimal.

Mr. Chairperson: During the consideration of a bill, the preamble, the table of contents and the title are postponed until all other clauses have been considered in their proper order.

Is there agreement from the committee that the Chair will call clauses in blocks that conform to pages, with the understanding that we will stop at any particular clause or clauses where members have comments, questions or amendments to propose? Is that agreed? [agreed]

Clauses 1 and 2–pass; Clause 3–pass; Clauses 4(1) to 4(4)–pass; Clauses 4(5) to 5(3)–pass; Clauses 5(4) to 6–pass. Note, Clause 6 carries over onto page 11. Clauses 7 and 8–pass; Clauses 9 to 12(2)–pass; Clauses 13 to 14(3)–pass; Clauses 14(4) to 17–pass; Clause 18–pass. Note, Clause 18 carries over to page 23. Clauses 19 and 20–pass; Clause 21(1)–pass; Clauses 21(2) to 22–pass; Clauses 23(1) to 24(1)–pass; Clause 24(2)–pass; Clause 25–pass; Clauses 26 to 29(1)–pass; Clauses 29(2) to 31(1)–pass; Clauses 31(2) to 35–pass. Note that Clause 35 carried over to page 38. Clauses 36 and 37(1)–pass; Clauses 37(2) to 41–pass; Clauses 41(2) to 42(3)–pass; Clause 43–pass; Clauses 44 to 46–pass; Clauses 47 to 49(3)–pass; Clauses 49(4) to 51–pass; Clauses 52 to 53(2)–pass; Clauses 53(3) to 56(1)–pass; Clauses 56(2) to 57–pass; Clauses 58 to 60(1)–pass; Clauses 60(2) and 61–pass; Note, Clause 61 carries over to page 56. Clauses 62(1) to 63–pass; preamble–pass; table of contents–pass; title–pass. Bill be reported.

Mr. Chairperson: We will carry on to Bill 42. Mr. Toews, will you take the minister's chair here, please. Does the minister responsible for Bill 42 have an opening statement?

Hon. Vic Toews (Minister of Justice and Attorney General): I think I have made all my comments in the House, so I will not make an opening statement.

Mr. Chairperson: Does the critic for the official opposition have an opening statement?

Mr. Gord Mackintosh (St. Johns): Does the minister have a response to our issues that were raised at second reading in the House?

Mr. Toews: I am not proposing any amendments at this time.

Mr. Mackintosh: Well, we have a series of questions, then, following from debate on second reading because it is usual that the minister would respond to issues we raise at second reading in committee on a bill like this. First of all, can the minister tell us on which jurisdiction's statute, or if they are several of them, what states did he base this legislation on?

Mr. Toews: I am advised that staff looked at a number of jurisdictions including New York and California. I understand that they have civil gang abatement laws there, and those were considered in the course of drafting this legislation.

Also, I understand that the department specifically looked at some old Quebec legislation from the 1920s that dealt with bawdy houses, in particular, and that is, in fact, the piece of legislation that was considered by the Supreme Court of Canada in a case called Bedard and Dawson, which gives the province the constitutional jurisdiction to take steps similar to these.

I might indicate that, by and large, given the different issues that are being addressed in this bill and given the different constitutional jurisdiction of states, this act is unique. I am not aware of any similar legislation on a clause-by-clause basis even near to this.

Mr. Mackintosh: Well, in jurisdictions like California or New York, can the minister tell the committee who has carriage of the complaint there? Does the county or district attorney's office have carriage of the complaint, or is that left to a private individual organization?

Mr. Toews: I am not aware of that.

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Mr. Mackintosh: Clearly, when we go to a legislative framework for a cause of action, there can be greater certainty than the general common law tort, in this case, of nuisance and public nuisance. What are the significant differences between the law of nuisance as exists at common law and what is in this legislation in the views of the minister?

Mr. Toews: I do not believe I could give the member a detailed explanation of those differences.

Mr. Mackintosh: Well, can the minister tell us what the experience has been with this kind of legislation? I mean, I understand it is a very generic kind of legislation in, for example, New York or California. What successes exist? Indeed, I do not know how you can get into that without analyzing who has carriage of the complaint and who pays for the lawyers in those jurisdictions.

Mr. Toews: As indicated, I do not have that information. I understand from staff that there has been some measure of success with that type of legislation, but, given the constitutional differences between American states and Canadian provinces, I do not know how particularly helpful such comparison would be.

Mr. Mackintosh: What consultations in Manitoba did the minister have in putting this legislation together, specifically not with regard to legal advice in his department or on contract, but with community organizations?

Mr. Toews: The legislation was developed by my staff, and they had the consultations. I can see if I can get some of that background material for the member.

Mr. Mackintosh: Did the minister, the officials meet with residents' associations, for example, or Citizens on Patrol organizations, or perhaps CEDA or the north end development corporation?

Mr. Toews: As indicated, I will see what information is available.

Mr. Mackintosh: What strikes me about this legislation that, first of all, it may well be a tool that could be useful, but how well the tool is designed is where we have our concerns.

Certainly, with the common law tort of nuisance one can go to court and, on one application, get or seek all the remedies available, including damages and nuisance. Here one can go to court at the provincial court level and only get one specified remedy, and then one must go to another level of court, the Court of Queen's Bench and can only get a further two remedies on different applications or on repeated applications.

I am just wondering why the minister chose to propose such a complex form of redress in this legislation, and why can one not go to court and get one order and perhaps the order could even be contingent?

Mr. Toews: This act does not prevent anyone from utilizing common law tort, whether it is nuisance or otherwise.

Mr. Mackintosh: Can the minister explain to the committee how he sees this act as superior then to the common law tort of nuisance?

Mr. Toews: One comment that I can make, and I can get the member additional material, is that one of the concerns is that owners of these properties may not be familiar with the fact that these types of things are occurring. This sets in course an administrative process that directly contacts the owner through the process of being served with the concerns. It also provides a measure of government assistance so that the neighbours and community organizations are not left on their own.

Mr. Mackintosh: Well, the minister says that there is an administrative process that kicks in; I understood those were his words. I am wondering where the minister finds that administrative process. What I do see in here is really a private process. It simply says to neighbours who are being victimized: go sue.

Mr. Toews: In respect of an administrative process, what one sees here is the utilization of the Provincial Court which I think is unusual in these types of circumstances. Generally speaking, these matters proceed to the Queen's Bench, as the member knows, for the torts of nuisance and otherwise. What we have here is a preliminary process which provides notice and then allows for the posting of homes in particular situations where the threshold legal test has been met. By that, I mean the administrative process. The other point, of course, is the support that will be provided by the director of public safety.

Mr. Mackintosh: Does the minister not think that individuals would be dissuaded from using this potential tool when they may be personally pitted against neighbours who may, in fact, not only be difficult but dangerous? They have an obligation regarding posting; they have an obligation of other sorts, including the collection of any costs. Would the minister not consider changing this legislation so that the carriage of these proceedings can be by the Department of Justice?

Mr. Toews: Well, this is the administrative format that has been established by this legislation. Certainly, we will see what happens with this legislation in the process. I think the member heard the presenter this morning indicating that he welcomed this legislation. He felt, as I heard his words, that it was important for the community to be involved and for himself to be involved personally.

Secondly, I understand that police officers, generally speaking, that I have heard, are supportive of this legislation. Indeed, the mayor has written me a letter of support indicating he supports the legislation. So there may well be other changes that can be made in due course. I think, as with our administrative laws in respect of drinking and driving and suspended driving, we need to move very cautiously and carefully, and I think that given this legislation is unique in Canada, that we proceed in a cautious manner, and we will make adjustments as necessary.

At this time, I know the presenter today made some suggestions. Those suggestions might be helpful and I think can be considered in due course. I am just concerned about some of the overbreadth issues that might arise if some amendments were put into place. The presenter made two specific amendments or suggestions. One deals with why just the owner–and I think the point, just in respect of the owner, I know the legislation goes a little beyond simply the owner. For example, 18(2) deals with prohibition on others against ignoring the order. But I think the point that needs to be made is that owners are the people who are legally responsible for the property, and they are the ones who should be taking the first steps.

Nothing in this legislation stops any other legal process, whether it is by the Department of Justice, whether it is by the police, whether it is by by-law inspectors, whether it is in the old common law torts of nuisance or otherwise. This is an additional tool that we think advises owners that there is some untoward activity occurring on the premises that they are legally responsible for.

The other issue that the presenter raised was an issue that, again, on the face of it, has some measure of attraction and that deals with, he indicated gang members in restaurants. I think that it extends the scope of the act quite appreciably, and I am wondering whether even that amendment would be in scope at this time. I think that there are other issues that arise in that kind of a context that I would not feel comfortable on moving at this time. I know Mr. Lehotsky has indicated his support of this legislation when we announced the bill. I know that it was done in a building of an organization that was very supportive of this legislation, and the police were also represented there. I think what we need to do is to make sure that what we are proposing at this time will in fact work and give people that additional assistance that they need, and they obviously seem to be welcoming this piece of legislation.

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All I can say is that if there are improvements that need to be made to the legislation, we will find that out in due course. I think right now we are speculating on some of the concerns that might arise, and I am very cautious in this particular area of proceeding too broadly. It is one of the same issues that we met in respect of the seizure of motor vehicles for prostitution. We want to ensure that the legislation is squarely within provincial jurisdiction. I am comfortable, given the legal analysis done by my staff, as well as some of the precedents, the one in particular, Bedard and Dawson, that the legislation does in fact fall within the constitutional jurisdiction of the province.

So there are these two suggestions that were made. I take them very seriously. I think that Mr. Lehotsky has a great deal of experience and expertise in these matters at a community level. I want to ensure that the legal tool that we are providing him with is not flawed from a constitutional basis. If we are overbroad, I do not want to see every good aspect about this legislation struck down. So, with those comments, I think I would prefer to leave the bill without amendment at this time.

Mr. Mackintosh: What goes beyond speculation, aside from who is carriage of the complaint here, which is a private individual who is victimized, is the cost of proceeding. As I recall from my days of practice in a proceeding before Court of Queen's Bench on an application with affidavit evidence, you could be looking certainly in the range of $5,000. If there is an appeal, it can easily go to $10,000. I do not know how Mr. Lehotsky feels about that or where he can get the money for that kind of thing, but a lot of these neighbourhoods that are in distress are not ones with access to money, and of course money for this kind of thing, significant amounts of money. We know as well of course that civil actions cannot be the basis of an application, or a successful application at least to legal aid, so how can the minister deal with this concern of ours?

Mr. Toews: I guess the approach we are taking fundamentally shows a difference between the socialist philosophy of my colleague from St. Johns and our philosophy. Basically, we believe that there should be some ability of the community to proceed of its own accord as opposed to Big Brother or Big Sister, whatever the politically correct term is now, makes these decisions on behalf of the community. I would, however, indicate to the member that if he read the legislation carefully and took a look at Section 21(1), it indicates that the director of Public Safety "may apply for a cessation notice, community protection order or closure order."

So we do not want to impose these things upon the community. We want to work together with the community, so the community could in fact do this independently of government. I think we would all prefer that we work together with police, community and the Department of Justice. So I think 21(1) answers the issue that the member for St. Johns has raised.

Mr. Mackintosh: But that section, of course, provides a very, very limited or narrow window for the director. There can be no other person available to make the application. It does not speak to legal fees, the payment of costs or the carriage of the complaint in all other circumstances.

Now I wonder, under this legislation, I do not see where damages may be available. Does this legislation allow for damages to be claimed by an applicant?

Mr. Toews: No. Again, I think it needs to be pointed out that what the member seems to be wanting to do is create a tort that already exists in common law. If an individual wants to sue in terms of nuisance created–I use the term "nuisance" in a legal sense rather than in the vulgar or common sense–a person can bring an application for damages as a result of that. That is not stopped by the legislation.

The member somehow seems to think that as soon as this legislation comes into place, the common law is supplanted. In fact, the right to apply for damages still exists in the common law, separate and apart from any application that could be brought here. So I invite the member to read the legislation and take a look at some of the intent of the legislation and how that is expressed. If he feels that there are other amendments that could be made that are within scope and are not overly broad, those are things that members of my staff can consider over the next number of months.

I also point out some of the amendments that are being made to The Liquor Control Act where it talks about giving certain other authority to the appropriate licensee to request that the person who is conducting the unlawful activities to leave his or her premises. So I think these amendments are also important. They see the legislation not only working I think in a complementary fashion with the common law and increasing or providing an additional remedy, but it also works together with some of the statutory schemes or administrative schemes that are in place, such as The Liquor Control Act.

Mr. Mackintosh: Just in closing on these remarks, I think the legislation, while providing some potential, needs an overhaul in terms of providing a better refined tool for the community. I think, like many out there, if it is an additional tool, we will take it if anything will help, but I certainly have doubts, although we are going to support this legislation. I would like to have seen provision for the Department of Justice to have a more active role, and at a minimum, so that legal fees are covered. I do not understand why the complexity is set out here as it is, but we are prepared to pass the bill through committee on the understanding that we will make significant changes to this legislation to make it really work.

Mr. Chairperson: We thank the member.

During the consideration of the bill, the preamble, the table of contents and the title are postponed until all other clauses have been considered in their proper order. Is there agreement from the committee that the Chair will call clauses in blocks that conform to pages, with the understanding that we will stop at any particular clause or clauses where members may have comments, questions, or amendments to propose? Is that agreed? [agreed]

Clause 1(1)–pass; Clauses 1(2) and 2(1)–pass; Clauses 2(2) to 2(5)–pass; Clauses 2(6) to 2(9)–pass; Clauses 3(1) to 3(3)–pass; Clauses 3(4) to 5(1)–pass; Clauses 5(2) to 5(6)–pass; Clauses 5(7) to 6(4)–pass; Clauses 6(5) to 7(1)–pass; Clauses 7(2) to 7(4)–pass; Clauses 7(5) to 8(2)–pass; Clauses 8(3) to 8(6)–pass; Clauses 8(7) to 9(3)–pass; Clauses 9(4) to 9(7)–pass; Clauses 9(8) to 11(2)–pass; Clauses 12(1) to 12(3)–pass; Clauses 12(4) to 13(2)–pass; Clause 13(3)–pass; Clauses 14 to 16–pass; Clauses 17 to 19–pass; Clauses 20 to 23–pass; Clauses 24(1) to 25(2)–pass; Clauses 26 to 28–pass; Clauses 29 to 31(2)–pass; Clauses 32(1) and 32(2)–pass; preamble–pass; table of contents–pass; title–pass. Bill be reported.

* (1150)

Mr. Chairperson: Bill 43, The Highway Traffic Amendment and Summary Convictions Act. Does the minister have an opening statement?

An Honourable Member: No.

Mr. Chairperson: During the consideration of the bill, the preamble and the title are postponed until all other clauses have been considered in their proper order.

Shall Clauses 1(1) and 1(2) pass? [interjection] We are on Bill 43.

Mr. Gord Mackintosh (St. Johns): I just have some questions for the minister following on the second reading debate. What is the amount outstanding of traffic fines currently in Manitoba?

Hon. Vic Toews (Minister of Justice and Attorney General): I will get that information for the member.

Mr. Mackintosh: If the minister would also tell us what amount is outstanding in other summary conviction offences, I should say, provincial offences.

Mr. Toews: I will see if that information is available.

Mr. Mackintosh: The third category, if he will tell us what is the amount of outstanding fines in respect of Criminal Code offences.

Mr. Toews: I will see if I can get that information along with whether I can see if I can get the information for the other stuff.

Mr. Mackintosh: Well, can the minister give us a ballpark figure in terms of what the magnitude of the problem is that has to be addressed? Presumably he sees this legislation as one tool that he can use to reduce the amount of outstanding fines in the province.

Mr. Toews: I think the member is correct. These amendments will allow for more options to allow for the enforcement of fines and restitution. The member may know that we have currently the ability to withhold drivers' licences for unpaid highway traffic fines and have found that, of the defaulters, we could achieve a 65 percent payment rate. We anticipate that the tool will help with the collection of other fines, including Criminal Code and other provincial statutes. I might also add, with respect to restitution, changes to the Criminal Code in 1996 resulted in victims who were eligible for restitution having to collect civilly direct from the offender if the offender did not voluntarily pay. Having the additional tool of being able to withhold a driver's licence will assist in forcing the payment to the victims.

I think it is clear that the department intends not to use the power to withhold licences as the first option to force payment but as one of the tools available. The department will continue to use the civil processes available, including collection agencies and garnishments when appropriate. So we see that this particular tool, especially in the context of maintenance enforcement, has been a very powerful tool, and we want to utilize this tool in this context as well. That is why we are making these amendments.

I indicated earlier that we were very disappointed with some of the changes in the way we are now hampered in our ability to collect fines because of the limited ability to use default for nonpayment of fines by incarcerating. We felt that that was appropriate and necessary in certain circumstances. Given that we are no longer permitted to do that in the way that we were earlier, we have to find new mechanisms.

I have raised the issue with the federal Justice minister in respect of the changes to the Criminal Code. We feel that, especially with respect to restitution, victims are now put in the position of having to collect civilly direct from the offender, and we think that the better way would have been to have the criminal courts continue to make those collections through its process. So this is a reaction to a problem that has become increasingly more significant since the changes to the Criminal Code.

Mr. Mackintosh: Well, the minister did not address my question. What generally is the amount of outstanding fines, and how much does he expect to collect as a result of this legislation?

Mr. Toews: I indicated I would get that information. But, as I stated in my comments, and I will repeat those comments, we currently have the ability to withhold drivers' licences for unpaid highway traffic fines and have found that, of the defaulters, we could achieve a 65 percent payment rate. So there are still outstanding fines that do not lend themselves to this particular mechanism, but as indicated, we will also continue to use other civil processes, including collection agencies and garnishments where appropriate.

Mr. Chairperson: Mr. Mackintosh, we are coming to twelve o'clock. Is there a willingness of the committee to carry on until we complete these bills? [agreed]

Mr. Mackintosh: What I find unusual, and I addressed this in Estimates, is there is currently the legal authority for the government to withhold driver's licences for unpaid traffic fines. My understanding was that a number of years ago there was a system in place but it fell apart. Can the minister tell us what went wrong, and how can we now trust this government to implement change based on this legislation?

Mr. Toews: I can get that information, but what we are doing here with this legislation is expanding the ability to collect the fines from other provincial statutes as well through this mechanism and indeed working to assist victims in achieving their collection of restitution rather than proceeding directly.

Mr. Mackintosh: Well, I am just not getting answers. I understood there was a system in place that had an acronym to it. There was a lack or breakdown of communication between the courts and the licence suspension appeal body or the licence people. Now the minister is coming and saying, well, we are going to take it even further. Well, there was a breakdown already. How can we be assured that this legislation will actually end up being utilized for the benefit not only of revenues but for law enforcement and for respect for the law, for enforcing the law?

Mr. Toews: Well, that is why I am bringing forward this legislation. If there are issues related to the system that need to be improved, I trust that the Department of Highways will, in fact, deal with that, together with the courts.

Mr. Mackintosh: Is the minister aware of what is the outstanding amount of restitution orders currently in Manitoba?

Mr. Toews: I am not aware of that number.

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Mr. Mackintosh: Well, would the minister agree to bring that forward?

Mr. Toews: I will see if that information is available.

Mr. Mackintosh: Who would trigger action under this legislation as a victim of crime to obtain restitution? Will the court monitor restitution payments and let the Department of Highways know, or must the victim somehow do that?

Mr. Toews: Well, I can get some of the details on that. But as the member knows in respect of restitution, it is essentially a civil matter. If the person has not received restitution within a certain period of time, the way it works now is they can apply for essentially a judgment from the court, and it is at that time that I would think it would be the appropriate time to raise the issue about the failure to pay, that, in fact, the order is in default.

Mr. Chairperson: Clauses 1(1) and 1(2)–pass; Clause 1(3)–pass; Clauses 2(1), 2(2), 3(1) and 3(2)–pass; Clause 4–pass; preamble–pass; title–pass. Bill be reported.

Mr. Chairperson: We will go on to Bill 44. Does the minister responsible for Bill 44 have an opening statement?

Hon. Shirley Render (Minister of Consumer and Corporate Affairs): No, I do not.

Mr. Chairperson: We thank the minister. Does the critic from the official opposition have an opening statement?

Mr. Gregory Dewar (Selkirk): Mr. Chair, I do have a few comments to make regarding this legislation.

As the members opposite I am sure are aware, this legislation echoes our position on community control, even though as I am sure members opposite are aware, when VLTs were introduced to Manitoba in the early '90s, there was absolutely no community consultation at all with any Manitobans. As I recall back then, VLTs were introduced initially into rural Manitoba, and there was a promise made by the government at that time that all the monies generated by those VLTs, every cent generated by those VLTs was to be returned back to rural Manitoba.

Well, of course, what the government did not realize at the time was how popular these would be and what a significant financial generator they would be. They reneged on that promise and, regrettably, only put back a portion of that money. I would suggest over the last number of years, the government has received well over a billion dollars in revenues from gambling alone here in this province, and VLTs make up a significant amount of that revenue.

The bill deals with the embarrassment of this government to live up to its promise that municipalities would have choice regarding whether or not they wanted VLTs in their jurisdiction. It happened last year, of course, where the community of Winkler voted to remove the VLTs from their municipality, but there was no legal requirement for the owner of the particular establishment to have these machines taken from his establishment. Now this bill finally begins to deal with that. Regrettably, of course, there is also a clause which states that enforcement of the act will be delayed for another five months, which would put it well past a year since the community of Winkler, in a plebiscite, sanctioned supposedly by the government, voted to remove the VLTs from that community. So, a year later, the VLTs will finally be removed from that community.

So, with those comments, of course, since it is basically our policy which the government opposite have taken and put into legislation, we certainly support the principles behind this piece of legislation and will support it during this committee.

Mr. Chairperson: During the consideration of a bill, the preamble, table of contents and the title are postponed until all other clauses have been considered in their proper order. So is there agreement from the committee that the Chair will call clauses in blocks that conform to pages, with the understanding that we will stop at any particular clause or clauses where members may have comments, questions or amendments to propose? Is that agreed? [agreed]

Shall Clause 1 pass?

Mrs. Render: I have an amendment here. I move

THAT the definition "video lottery terminal" in section 1 of the Bill be struck out and the following be substituted:

Mr. Chairperson: Any debate on the amendment?

An Honourable Member: No.

Mr. Chairperson: Shall the amendment pass? The amendment is accordingly passed. Clause 1 as amended–pass; Clauses 2 to 5(2)–pass. Clause 5(3).

Mrs. Render: Just a housekeeping amendment. A word was left out. I move

THAT subsection 5(3) of the Bill be amended in the English version by adding "of" after "respect" in the part preceding clause (a).

Mr. Chairperson: Shall the amendment pass? The amendment is accordingly passed. Clause 5(3) as amended–pass; Clauses 5(4) to 6(1)–pass; Clauses 6(2) to 8(1)–pass; Clauses 8(2) to 12–pass; Clauses 13 to 16(2)–pass; Clauses 17 and 18–pass; preamble–pass; title–pass.Bill as amended be reported.

The time being 12:10, committee rise.

COMMITTEE ROSE AT: 12:10 p.m.

Re: Bill 35–The Highway Traffic Amendment Act (2)

The Manitoba Association for Rights and Liberties has one concern regarding the proposed amendments to The Highway Traffic Act.

We all have the constitutional right to be presumed innocent until proven guilty. The provisions in the proposed section 242.1 infringe that right by impounding someone's vehicle without that person being found to have committed a crime. Especially troubling is that there is no provision in the Act to compensate owners of impounded cars if no offence is subsequently made out. We ask this committee to address this issue, and we thank you for your consideration of this matter.

Yours truly,

Ken Mandzuik

Chair

Charter Rights and Legislative Review Committee