March 5, 2018
HOUSE OF ASSEMBLY PROCEEDINGS
Vol. XLVIII No. 48
The
House met at 1:30 p.m.
MR. SPEAKER (Trimper):
Order, please!
Admit
strangers.
I would
like today to welcome some guests in the public gallery; first of all, Ms. Lisa
Crockwell and Ms. Annette Johns from the Newfoundland and Labrador Association
of Social Workers.
A big
welcome to you.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
Also, I'd like to welcome in
the public gallery a very important colleague, Dr. Suzanne Brake, Seniors'
Advocate from the Office of the Seniors' Advocate.
Welcome
to you.
SOME HON. MEMBERS:
Hear, hear!
Statements by Members
MR. SPEAKER:
Today we will hear
statements from the hon. Members for the Districts of
Lewisporte - Twillingate, Fogo Island - Cape Freels, Conception Bay East - Bell
Island, Placentia West - Bellevue and Virginia Waters - Pleasantville.
Before I recognize, I would like to point out our most important MHA visiting us
today, Mr. George Murphy, former MHA of the House.
Welcome, Sir.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
I do thank the Clerk for her very sharp eyes.
With that, I would like to invite the
hon. Member for Lewisporte - Twillingate for a Member's statement, please.
SOME HON. MEMBERS:
Hear, hear!
MR. BENNETT:
Thank you, Mr. Speaker.
Volunteer firefighters and first responders play a vital role in protecting our
communities and residents.
On
March 3, I had the honour of attending the Lewisporte Fire Rescue Annual Banquet
and Awards Ceremony.
The 32
member department responded to 43 calls last year ranging from house fires,
vehicle and snowmobile accidents, and other emergencies.
In
addition, they run a vigorous training program, involved in community events,
organize fire prevention initiatives and a very successful Junior Firefighters
Program. Together, they logged close to 10,000 volunteer hours.
Two
firefighters were recognized with long service awards. Brian Pardy received his
20 year service medal, while Barry Budden was presented with his 35 year service
bar.
The
highlight of the evening was the prestigious Firefighter of the Year Award. Dave
Ryan was given this honour for his dedicated service and actions that helped to
save the life of a person at a local restaurant.
Mr.
Speaker, I ask all Members to join me in thanking the Lewisporte Fire Rescue for
the devoted service, and Firefighter of the Year, Dave Ryan, for his heroic
efforts.
Thank
you.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Member for Fogo
Island - Cape Freels.
MR. BRAGG:
Thank you, Mr. Speaker.
It's
always a pleasure to rise in this hon. house and inform my colleagues of the
great events that happen in my district. I'm delighted to report that February
11-18 was winter festival week in Centreville-Wareham-Trinity and Indian Bay.
Lorraine Ackerman and her dedicated group of volunteers hosted the 25th annual
event. Their slogan was: keep the spirit alive in 25 – and keep it alive they
did.
The
opening ceremony attracted over 500 people. Their mascot, Wille Melt, led the
festival every day. If you ever wanted to see the perfect example of how to host
a successful event, visit these guys.
Good
fellowship and community spirit was always on the menu. The week was filled with
great food, great music and fun activities for folks of all ages. Although there
was no snow, this committee always had something on the go.
I ask
all Members to join with me in thanking the Centreville-Wareham-Trinity and
Indian Bay festival committee and their volunteers for another successful winter
carnival.
Thank
you, Mr. Speaker.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Member for the
District of Conception Bay East - Bell Island.
MR. BRAZIL:
Thank you, Mr. Speaker.
I stand
today to recognize a constituent of mine who earlier this year was appointed to
the Order of Canada. I speak of lifelong volunteer and community leader, Ms.
Joyce Churchill, of Portugal Cove - St. Philip's.
Joyce
has had a very active life as a full-time nurse, business woman, former mayor,
mother of a son with special needs, cancer survivor and community activist. She
has made both measurable and immeasurable contributions to the local and broader
community at all levels, and particularly in the content of individuals and
families struggling with severe medical or social challenges.
In
addition to the many roles she has played over her lifetime, Joyce managed to
find time to be a founding member of the Autism Society of Newfoundland and
Labrador. She also was a driving force in the establishment of the Elaine Dobbin
Centre for Autism and served as the president of the Autism Society for more
than a decade.
Her
contributions to our province were recognized with her induction into the
Newfoundland and Labrador Volunteer Hall of Fame in 2013.
I ask
all Members to join me in congratulating Joyce Churchill on being appointed to
the Order of Canada and thank her for her contribution to our province.
Thank
you, Mr. Speaker.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Member for
Placentia West - Bellevue.
MR. BROWNE:
Mr. Speaker, Team Broken Earth, under the leadership of Dr. Andrew Fury, has
offered a helping reach to many distressed parts of the globe.
I rise today to recognize Loretta Ryan of Come by Chance and Kelsie Lockyer of
Arnold's Cove who both recently joined fellow Lions on a Broken Earth mission to
Nicaragua, assisting in the eye treatment clinic which includes providing eye
exams, glasses and general information to those in need.
While in-country, this team performed 974 eye exams and provided much-needed
support to this impoverished country with autism specialists. Giving the gift of
a first pair of glasses to a child, visiting the school for the blind and
witnessing elders have their first visit of their lives with a doctor, both have
described these experiences as amazing and life changing.
Loretta has been a member of the Come By Chance Lions Club for over 21 years,
while Kelsie is a current member of the Memorial University Lions Club and was a
Leo sponsored into the organizations by none other than Loretta herself.
Mr. Speaker, I ask all hon. Members to join me in thanking both Loretta and
Kelsie for their unwavering sense of volunteerism and dedication to serving
those in their communities and the world who are most in need.
Thank you, Mr. Speaker.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Member for Virginia Waters - Pleasantville.
MR. B. DAVIS:
Thank you, Mr. Speaker.
I rise in this hon. House, Mr. Speaker, to pay tribute to the Chinese
Association of Newfoundland and Labrador and the fantastic evening they hosted
at the CLB Armoury on February 17 to kick of the Chinese New Year celebration.
This event saw approximately 375 people in attendance to join with the Chinese
community, making it the biggest celebration to date. The night also saw the
Chinese Association of Newfoundland and Labrador founder honoured with the
Senate of Canada 150 anniversary medal.
Dr. Kim Hong founded the association in 1976 and has watched the organization
and their presence in the community grow over the past 42 years. Dr. Hong
founded the Chinese Association of Newfoundland and Labrador with a vision to
“make us better citizens of the land. By trying to achieve that, you would have
social events and functions, integrate with the larger community and thereby
become better citizens.”
The
event certainly encompassed that value as we welcomed in the Year of the Dog,
which represents loyalty and hard work, making the entire evening and the
tribute to Dr. Hong extremely fitting.
Sharing
our cultures is what makes St. John's and our province the vibrant community it
is. I'm already looking forward to next year.
Gung Hay Fat Choy King Hong Fai La.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
Statements by Ministers.
Statements by Ministers
MR. SPEAKER:
The hon. the Minister of
Children, Seniors and Social Development.
MS. DEMPSTER:
Thank you.
Mr.
Speaker, I rise today to pay tribute to our province's social workers during
National Social Work Month.
Every
year in March, Canada celebrates the important contributions of social workers
to society. This year's theme, Bringing Change to Life, highlights their work
and the real difference social workers make in the lives of people, families and
communities throughout the country.
Mr.
Speaker, in Newfoundland and Labrador social work is a regulated profession
focused on ensuring quality service to the public through the work of more than
1,500 registered social workers. They practice within hospitals, seniors' homes,
adult and youth corrections, child welfare, addictions, mental health, community
centres, government departments, universities, private practice and consulting
businesses.
The
social work profession is incredibly diverse and the important and valuable
contributions of social workers help enhance the health and well-being of
individuals, families and communities in our society every day.
Social
workers perform their work with a high level of professionalism in what are
often challenging situations. Many social workers are employed with my
department and I have had the opportunity to visit a number of offices
throughout the province. These visits have given me a greater appreciation for
the valuable work that they do and I extend my personal gratitude to all social
workers.
Mr.
Speaker, I encourage social workers to participate in the many activities taking
place throughout the month to highlight the profession and ask all hon. Members
to join me in recognizing social workers for their ongoing dedication and
support.
Thank
you.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Member for
Conception Bay East - Bell Island.
MR. BRAZIL:
Thank you, Mr. Speaker.
I thank
the minister for an advance copy of her statement. Mr. Speaker, our caucus joins
with the government in recognizing the important contributions which our
province's social workers make to our province's families, communities and
society as a whole. Social workers often face challenging situations as they
carry out their day-to-day duties and keep the best interests of their clients
in mind.
Not
only would I like to recognize the social workers who work in our schools,
seniors' homes, correction facilities, hospitals and government departments, but
I also wish to recognize the team at Memorial University who train and educate
our social workers to be compassionate, professional and diligent in their
duties.
During
the National Social Work Month, I encourage all members of our community to take
the chance to recognize those social workers and provide support and advice.
Thank
you, Mr. Speaker.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Member for St.
John's Centre.
MS. ROGERS:
Thank you, Mr. Speaker.
I thank
the minister. As a result of cumulative budget cuts, more and more of our people
are having a harder time making ends meet or having their basic needs met,
especially seniors and those who rely on our social safety nets, like home care,
income support, housing, adult dental care, bus passes and more.
It is
our front line social workers, our brilliant problem solvers, all 1,500 of them
who are there advocating for our people. They are a veritable love army working
to ensure all people are able to thrive.
Thank
you, social workers of Newfoundland and Labrador. Thank you for your passion and
compassion.
Bravo!
Thank
you, Mr. Speaker.
MR. SPEAKER:
Further statements by
ministers?
The
hon. the Minister of Tourism, Culture, Industry and Innovation.
SOME HON. MEMBERS:
Hear, hear!
MR. MITCHELMORE:
Thank you, Mr. Speaker.
I rise in this hon. House today, on the heels of
celebrating the ongoing success of the province's tourism industry, to laud the
achievements of the Newfoundland and Labrador film and television industry.
A few weeks ago, joined by the Premier and the
parliamentary secretary for Tourism, Culture, Industry and Innovation, I had the
opportunity to visit Middle Cove Beach to tour the set of the successful
television series, Frontier.
Mr. Speaker, what an amazing backdrop for the popular
Netflix series, now filming its third season right here in our province.
The total production expenditure for three seasons of
Frontier is approximately $73
million. Of that, 62 per cent, or $40 million, was spent right here in
Newfoundland and Labrador.
Mr. Speaker,
Frontier is just one of the productions being undertaken in the province.
Just last week, two new programs launched on CBC:
Caught which stars Allan Hawco and is
based on the phenomenal book by local author Lisa Moore; and
Little Dog which is written by and
stars Joel Thomas Hynes and is produced by Sherry White.
I am pleased to note that the total production value of
film and television in Newfoundland and Labrador exceeded $50 million for the
first time in history in 2017-18.
SOME HON. MEMBERS:
Hear, hear!
MR. MITCHELMORE:
That is why our government doubled our Equity Investment Fund for Film and
Television production to $4 million in
Budget 2017.
Mr.
Speaker, this industry is a generator of well-paid, skilled jobs and leverages
new investment from sources outside the province.
Beyond
direct employment, the local film and television industry creates economic
spinoffs through spending on construction supplies, gas, car rentals, hotels,
food and a wide variety of other goods and services necessary to make a film or
a television show.
Mr.
Speaker, the Newfoundland and Labrador film and television industry is
experiencing a strong period of growth and success, and we will continue to work
to ensure that we capitalize on all these opportunities.
Thank
you.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Leader of the
Official Opposition.
MR. P. DAVIS:
Thank you, Mr. Speaker.
I thank
the minister for an advance copy of his statement today. We join with the
government in celebrating the achievements of the Newfoundland and Labrador film
and television industry, just one branch of a very successful cultural and arts
community that we have in this province.
He's
mentioned some of the more recent productions, Mr. Speaker, that have been
successful. We know that a tremendous amount of work and investment has gone on
over the last decade or so to continue to have inputs and increases in the film
and television industry. Those investments are paying off.
Mr.
Speaker, I'd be remiss if I didn't take a very quick second just to point out
that I was impressed to watch Sally Hawkins last night. She was on the stage of
the Oscars for her role in the award-winning
The Shape of Water.
But I
point out as well that Sally Hawkins spent time here in Newfoundland and
Labrador in the last couple of years in her role and a very powerful role in the
successful film Maudie that was shot
right here in our province. That was backed by a great production team,
including Mary Sexton and others.
I think
we should applaud them as well for their great work and achievements they've
done. They continue to put Newfoundland and Labrador on the map.
Thank
you.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Member for St.
John's Centre.
MS. ROGERS:
Thank you very much, Mr.
Speaker, and to the minister.
As a
filmmaker, it has been wonderful to watch our industry grow. Usually our big
film projects begin with a crucial, very small grant from NL arts for someone
like Lisa Moore with a vision and the seed of a story idea. Then it builds and
builds with more and more people being brought on the team to share their
creativity and expertise. Then we see the culmination of all that brilliance and
teamwork on the screen – hallelujah!
Caught,
Little Dog,
Maudie and the smaller ones, too, and
the TV series, congratulations to all those who have worked so hard with such
dedication and passion. I can't wait to see what's next. Bravo to my friends who
are making magic for us all!
Thank
you, Mr. Speaker.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
Further statements by
ministers?
Oral
Questions.
Oral Questions
MR. SPEAKER:
The hon. the Leader of the
Official Opposition.
MR. P. DAVIS:
Thank you, Mr. Speaker.
Mr.
Speaker, information contained in a recent RFP for an agency of record issued by
The Rooms read that it would be improper for The Rooms to enter into a contract
with a firm that's working in direct conflict with the provincial government.
So I
ask the Premier today: Premier, did your government provide any direction
whatsoever to disqualify marketing agencies from consideration if they have done
work which is viewed as being critical of government?
MR. SPEAKER:
The hon. the Minister of
Tourism, Culture, Industry and Innovation.
MR. MITCHELMORE:
Thank you, Mr. Speaker.
As I
said in response to the media on Thursday when this matter came to light that,
as minister responsible for The Rooms, I gave no direction, or had no insight.
The Rooms is an arms-length organization, as a Crown corporation. They have the
authority to operate and issue an RFP to procure the appropriate resources.
They do
not have to follow the Public Tender Act,
nor do they have to follow the Government Purchasing Agency. They do have to
follow Treasury Board guidelines, and this is something that The Rooms itself
has undertaken.
The CEO
of The Rooms has issued a statement highlighting an example that was in the Q&As
that highlights that they used a poor example. But they have highlighted that
the process was fair, open and transparent in awarding the contract.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Leader of the
Official Opposition.
MR. P. DAVIS:
Thank you, Mr. Speaker.
Maybe
the minister can explain how the example given can be fair and inclusive when it
actually excluded potential applicants.
MR. SPEAKER:
The hon. the Minister of
Tourism, Culture, Industry and Innovation.
MR. MITCHELMORE:
Thank you, Mr. Speaker.
I had
spoken to the CEO of The Rooms and they have identified that this was an RFP
that they had issued. It was a request for proposals to procure a marketing and
communications firm to do a specific piece of work. Any marketing agency or firm
had the opportunity to make a submission. There were multiple submissions and
that it was evaluated in a fair, open and transparent process in awarding the
particular contract.
If the
Member opposite has information to state otherwise, that there was a company of
record that applied, that was rejected or whatnot, an unfair process, then he
should bring that forward.
Thank
you.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Leader of the
Official Opposition.
MR. P. DAVIS:
Thank you, Mr. Speaker.
In the
RFP it's noted that an agency of record that represented a lobby group
protesting Muskrat Falls would be in a conflict of interest. There may be
companies – it could be virtually impossible for us to know if there are
companies who could have applied, so my question to the minister is: How are you
going to make sure it was an open, transparent and fair process if companies
chose not to apply or give it a second look because of this type of language in
the RFP?
MR. SPEAKER:
The hon. the Minister of
Tourism, Culture, Industry and Innovation.
MR. MITCHELMORE:
Thank you, Mr. Speaker.
I'm
certainly not going to get into theoreticals because there was no company that
has issued a concern with The Rooms itself in the RFP since this matter has come
to light. If there was, they certainly would have made that known throughout the
process.
When it
comes to conflict of interest, there are guidelines that are issued when it
comes to RFPs that agencies, boards and commissions would put into place. This
is not something that government directed; this is something that The Rooms has
done to procure a marketing and communications firm. They have done so in a fair
and open and transparent process. They have identified that they used a poor
example in their Q and A and that's something that The Rooms has since
apologized for. The contract has been awarded and a Newfoundland and Labrador
company, highly reputable firm, has been awarded this contract.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Leader of the
Official Opposition.
MR. P. DAVIS:
Thank you, Mr. Speaker.
No,
they certainly haven't apologized for the process they used; they only
apologized for the example.
I ask
the Premier, the deputy minister of TCII was a hand-picked Liberal connected
appointee who's appointed as deputy minister in the department and my
understanding still sits on the board of directors for The Rooms.
I ask
the Premier: Can you confirm that the deputy minister still sits on the board of
directors?
MR. SPEAKER:
The hon. the Minister of
Tourism, Culture, Industry and Innovation.
MR. MITCHELMORE:
Thank you, Mr. Speaker.
When it
comes to the board of directors of The Rooms, there is a position for
either the deputy minister or the assistant deputy minister that would have a
particular seat on the board of directors of The Rooms.
It's an 11-person board and we look forward to the appointments that will be
made for outstanding members of The Rooms
as well in the very near future.
Thank you.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Leader of the Official Opposition.
MR. P. DAVIS:
Thank you, Mr. Speaker.
Can the minister tell us if the deputy minister and/or the
assistant deputy minister sit on the board? Is it both or just one that sits on
the board?
MR. SPEAKER:
The hon. the Minister of Tourism, Culture, Industry and Innovation.
MR. MITCHELMORE:
A representative that would sit from my particular Department of TCII would
either be the deputy minister or the assistant deputy minister. The deputy
minister has been attending board meetings of The Rooms
that sits quarterly, but the correlation of this particular RFP is within
the role and the authority of the CEO of The Rooms. They had decided that they
would go out and procure marketing and communications contract that would be
required for them to achieve their strategic vision. This is not abnormal for an
agency, board or commission to go out and procure marketing and communication
expertise. Many agencies, boards and entities have an agency of record.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Leader of the Official Opposition.
MR. P. DAVIS:
Thank you, Mr. Speaker.
So the deputy minister sits on the board, has been sitting
and attending the meetings of the board.
Was the deputy minister aware of this and participated in
all, in the decisions of this RFP? I'm sure the board would have approved the
RFP before it was released. Did the deputy minister participate in that process?
MR. SPEAKER:
The hon. the Minister of Tourism, Culture, Industry and Innovation.
MR. MITCHELMORE:
Mr. Speaker, as I said on the onset at the beginning questions, as
minister, I don't approve or
manage the day-to-day operations of The Rooms, nor would the board. It is the
CEO and the management team that would be dealing with the day-to-day operations
of the board and the activities. They went out, through a request for proposals,
to procure marketing and communications expertise which they have done.
In
their Q & A that they put forward on their website, they highlight a particular
conflict of interest, that if somebody is going to go and do business on one for
an agency, board or commission and then have clients that could be in conflict,
then that composes a problem. The same way as if you were representing
government and you represent employees in negotiations.
You
can't represent both, and that's all that was being put forward. They used a
poor example, Mr. Speaker, and they apologized.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Leader of the
Official Opposition.
MR. P. DAVIS:
Thank you, Mr. Speaker.
It
sounds like the deputy minister was aware of it. It was a very simple question.
I'm trying to understand exactly what the position is on the minister of this
because he doesn't seem to want to give a direct answer. It sounds like the
deputy minister was involved with this.
Did the
deputy minister make you aware of it, Minister, before it went out?
MR. SPEAKER:
The Minister of Tourism,
Culture, Industry and Innovation.
MR. MITCHELMORE:
Mr. Speaker, I'm not sure
what I need to say further, but the day-to-day operations of The Rooms rests
with the CEO and his management team. He has the authority and the role to issue
a request for proposals to go out and procure an agency of record to fill their
marketing and communications needs and they've done that.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Opposition
House Leader.
MR. HUTCHINGS:
Thank you, Mr. Speaker.
Mr.
Speaker, on Thursday past when asked about the federal budget, the Finance
Minister said: We're still evaluating exactly what it means to this province, to
the Treasury and to business.
I ask
the minister: Have you identified what impact the federal budget and change to
retirement income and succession of small family business will have on the small
business community in our province.
MR. SPEAKER:
The hon. Minister of Finance
and President of Treasury Board.
MR. OSBORNE:
Thank you, Mr. Speaker.
I can
say that I did hear the board of trade speak publicly and were happy with some
of the announcements in the federal budget. Again, Mr. Speaker, we are going
through a process in our department and in government with my Cabinet colleagues
of putting together our own provincial budget. We're spending a considerable
amount of time on that.
We are
focused on putting that together. Part of that is evaluating what the federal
government has announced to determine exactly what it means for our budget
process. Once that's done, I'll be very happy to share with the Member opposite
what we've determined from that.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Opposition
House Leader.
MR. HUTCHINGS:
Thank you, Mr. Speaker.
Some of
these amendments or initiatives were identified in the bill previous some months
ago in the House of Commons, so this should be nothing new. Some of these moved
ahead in the budget in reference. I guess that's my point.
Also,
last Thursday I asked the minister about how the decrease in corporate tax in
the US and the more favourable regulatory regime compared to Canada would impact
oil and gas development in this province.
I'll
ask the Premier: Is there a risk with a more favourable climate in the US that
foreign investment will be affected? In light of no mention in the federal
budget, can you give an update on your lobbying efforts for the best interests
of the oil and gas sector in Newfoundland and Labrador?
MR. SPEAKER:
The hon. the Premier.
PREMIER BALL:
Thank you, Mr. Speaker.
I know
over the weekend, I've done a fair amount of reading on just trying to get an
assessment of what's been happening in the US. There's a significant amount of
analysis that would even challenge if it's actually gone from 35 to 21 per cent.
As a matter of fact, I saw an interview this weekend with Bill Morneau that
would suggest that it's actually not at 21 per cent in the US but substantially
higher.
I read
quite a bit about the tax impact and how we actually remain competitive. I know
for us, as Canadians, what we've seen is making sure that we have a workforce,
number one, that is available to actually meet the job skills of the future.
We've put in place Advance 2030, which is working with our offshore industry.
And it's not lost on anyone that it was the Fraser Institute that said
Newfoundland and Labrador is the fourth out of 97 jurisdictions to actually be
the most favourable province to invest in.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Opposition
House Leader.
MR. HUTCHINGS:
Thank you, Mr. Speaker.
Tim
McMillan, the chief executive officer of the Canadian Association of Petroleum
Producers said, referring to the Trump agenda in the US: “They are beating us on
regulatory times. They are beating us on tax policy, on capital cost write-offs.
It is across the board.”
Premier, how will this impact your plan to double oil production by 2030 and
continue to attract foreign investment?
MR. SPEAKER:
The hon. the Premier.
PREMIER BALL:
Thank you, Mr. Speaker.
Well,
as most people in this province would know, much of the debate within the last
number of months has been around how we actually get the environmental
assessment done on a timely basis.
I find
the question from the Member opposite – because it was back really in 2010 when
we talk about CEAA, the Canadian Environmental Assessment Agency, when even our
own agencies were taken out of the process. We have made some process on that,
so what we're looking at now is regional assessments. We think that is important
and the role for C-NLOPB.
Mr.
Speaker, we will continue to work with industry, like CAPP and others, and our
local industry players as well, to make sure the Newfoundland and Labrador is
positioned to be globally attracting the necessary investment to our offshore.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Opposition
House Leader.
MR. HUTCHINGS:
Thank you, Mr. Speaker.
In June
of 2017, the Conference Board of Canada gave the province a D grade in our
ability to attract foreign direct investment.
So I
ask the Premier again: How does this limit business growth and affect your
proposal and, as well, affect possible impact on new mining development in
Labrador?
MR. SPEAKER:
The hon. the Premier.
PREMIER BALL:
Thank you, Mr. Speaker.
Even
just last week, we saw many people involved in the mining industry actually look
to Newfoundland and Labrador as a place that's really open for business and
attracting investment, Mr. Speaker. Even late last week, I met with executives
from people who are looking at coming to Newfoundland and Labrador and setting
up business.
Mr.
Speaker, we've put a lot of time in making sure that the investment climate for
Newfoundland and Labrador is favourable and people are reaching out, just like
we saw last week. The mining industry is one example of where people are looking
at our province – as commodity prices change and increase – as a favourable
place to invest.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Opposition
House Leader.
MR. HUTCHINGS:
Thank you, Mr. Speaker.
Mr.
Speaker, Canada is the number one producer of steel into the US, with
significant exports of iron ore out of Labrador and, as we heard recently, a
possible report of 25 per cent tariffs on export to the US. This could be
detrimental, certainly, to iron ore production, certainly in Labrador.
I ask
the Premier: What advocacy have you had with the federal government to protect
such an industry, and what accommodations are being considered?
MR. SPEAKER:
The hon. the Premier.
PREMIER BALL:
Mr. Speaker, not just for iron ore but everyone in this province, everyone in
this country, as a matter of fact when you go around the world, a concern about
what's happening in the US, how they are actually not just literally building a
wall, they're actually putting barriers in place for people to invest.
It is
the number one trading partner with Canada, Mr. Speaker. It's a relationship
that has been fostered over generations. It's important, not just to
Newfoundland and Labrador but to every single province in this country.
This
tariff of 25 per cent, Mr. Speaker, no one wants to see that. Yes, it could have
a negative impact, but I will tell you, Mr. Speaker, based on the conversations
that I have, that Canada and all provinces are prepared to put in retaliatory
measures, if required, to make sure that trade relationship stay strong.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Opposition
House Leader.
MR. HUTCHINGS:
Thank you, Mr. Speaker.
Mr.
Speaker, since 1994 NAFTA has created one of the world's largest free-trade
zones. Our province exports $5 billion worth of products each year to the United
States. We know NAFTA is now uncertain. With no reference in the recent federal
budget, I ask the Premier what contingency plan is in place for our province's
industry if NAFTA does indeed fail.
MR. SPEAKER:
The hon. the Minister of
Tourism, Culture, Industry and Innovation.
MR. MITCHELMORE:
Mr. Speaker, one thing that
we are always doing, the Premier and all of our ministers, we're looking at
attracting investments through The Way
Forward and our plans. We're looking to diversify our economy. This is why
we've been doing trade missions in the UK and the Netherlands, where they are
our number three and number four trading partners. Canada, in the federal
budget, is beefing up investment into China as well. We did $800 million, as a
province, in 2016 in export. That's quite significant and substantial.
There
are lots of opportunities of which we can diversify our investments, but we're
also working very collaboratively with the federal minister and our Canadian
counterparts when it comes to trade opportunities in the US. But we're an open
marketplace here in Newfoundland and Labrador. We've always been reaching out to
new markets. Whether they be in the Caribbean, Guyana, Brazil, China, Asia or
Europe, we are open for business and looking forward to expanding.
MR. SPEAKER:
Order, please!
MR. MITCHELMORE:
Thank you.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Member for
Mount Pearl North.
MR. LESTER:
Thank you, Mr. Speaker.
(Inaudible) federal government efforts to (inaudible) there's a very real
possibility that the supply management system governing poultry, dairy and eggs
may be altered or even abolished. Being the highest cost of production
jurisdiction in the country, are there any changes to our supply management
system that could cause the immediate collapse to our egg, chicken and dairy
industries here in this province?
Minister: How do you plan to protect these industries, our food supply and the
supply managed sector's contribution to our economy?
MR. SPEAKER:
The hon. the Minister of
Fisheries and Land Resources.
MR. BYRNE:
Thank you very much, Mr.
Speaker, for an excellent question.
I think
that's a very important subject that needs to be addressed by not only this
jurisdiction but provinces and territories right across the entire country. We
are indeed working with the federal government as a leader in the trade
discussions, but, as well, our own minister here in Newfoundland and Labrador is
taking a very active role.
I can
say, Mr. Speaker, that I have had the opportunity myself to speak with key
federal ministers, as have other ministers and MHAs from this side of the House,
and I would encourage as well my hon. critic to work with us in supporting our
supply managed agricultural system.
Thank
you.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Member for
Mount Pearl North.
MR. LESTER:
Mr. Speaker, I acknowledge
the invitation and openly accept. But in light of that, in efforts to avoid
farmers and residents of this province falling victim to what we say in our
industry, closing the barn doors after the horses have escaped, has a plan been
pre-emptively developed in consultation with farmers, food security and interest
groups?
MR. SPEAKER:
The hon. the Minister of
Fisheries and Land Resources.
MR. BYRNE:
Of course, we're always
interested in expanding our export markets, including Europe and other
jurisdictions outside of the United States.
The
hon. Member will probably note that from a trade perspective there have issues
surrounding our supply managed system that predate this particular
administration, whether it be with the Trans-Pacific Partnership or other trade
discussions that have affected and continue to be a potential threat to our
supply managed system.
So,
obviously, I'd look to certain leadership from the former government as to what
exactly it did in terms of its contingencies. I don't believe there were any at
that point in time.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Member for
Mount Pearl North.
MR. LESTER:
If we do come up with a plan
to assist in the transition, heaven forbid, when supply managed does collapse,
will this plan include funding to directly assist the cost of production so as
to ensure our producers' financial viability and their ability to continue to
provide a top-quality consistent supply of milk, eggs and chicken to the people
of this province?
MR. SPEAKER:
The hon. the Minister of
Fisheries and Land Resources.
MR. BYRNE:
Mr. Speaker, regrettably the
hon. Member plans for failure. He's asking a hypothetical question which assumes
failure. I could understand where the hon. Member would come from that because,
of course, every initiative they have tried with the federal government in the
past has met with failure, but we are working co-operatively, collaboratively
with our federal government who is the lead on trade issues.
We are
supporting the federal government to protect supply management, and, yes, Mr.
Speaker, we will be very, very active in protecting and ensuring a stronger
foundation for supply management here in Newfoundland and Labrador and we'll go
beyond that to look for additional export markets from other jurisdictions
outside of the US.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Member for
Mount Pearl North.
MR. LESTER:
Mr. Speaker, I'm not
counting on failure, but as part of the farming industry and a business person
there always has to be a contingency plan that you have to be prepared for the
worst.
So, no,
I don't aspire failure but I do aspire to be prepared. How are you prepared,
Sir?
MR. SPEAKER:
The hon. the Minister of
Tourism, Culture, Industry and Innovation.
MR. MITCHELMORE:
Mr. Speaker, I work very
closely with the Minister of Fisheries and Land Resources, and one thing that we
do in terms of industry and looking at bolstering up our agriculture and working
with farms and working with all of those in the supply chain is we look at
improving productivity, competitiveness, whether it's technology and other
opportunities and looking at new markets as well. These are opportunities that
we work very collaboratively with to find ways to make sure that our businesses
are as competitive as they can be, whether it's using new research and
development, innovative processes, lean manufacturing and opportunities, and
we're seeing that. We're seeing a real transition when it comes to how farming
is done in Newfoundland and Labrador.
Thank
you.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Member for
Conception Bay East - Bell Island.
MR. BRAZIL:
Thank you, Mr. Speaker.
Mr.
Speaker, medical research company Sequence Bio has been waiting more than three
months for approval from the Health Research Ethics Authority for approval for
their medical research Genome project. The delay may result in Sequence Bio
conducting research in other provinces.
I ask
the minister: What is the typical amount of time it takes to get approval?
MR. SPEAKER:
The hon. the Minister of
Health and Community Services.
MR. HAGGIE:
Thanks very much, Mr.
Speaker.
The
approval comes through the Health Research Ethics board which is an independent
arm's-length body which was set up under previous legislation. They undertake to
begin consideration of applications within 30 days. As to the timing of a
decision, that kind of depends on the nature of the ethical questions and the
research in question.
My
understanding also is the Heath Research Ethics Authority are actually looking
at ways of altering their processes to improve these times, but currently this
is quite a complicated process and involves a lot of academic and research
input.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Member for
Conception Bay East - Bell Island.
MR. BRAZIL:
I ask the minister: Are you
concerned that this may drive industry and research out of Newfoundland and
Labrador because of the slowness for the authority to make improvements?
MR. SPEAKER:
The hon. the Minister of
Health and Community Services.
MR. HAGGIE:
Thank you, Mr. Speaker.
Unfortunately, it is sometimes challenging for a health agency and government to
work at the speed business would like. The Health Research Ethics Board was put
in place under legislation to protect Newfoundlanders and Labradorians from
questionable practices that may have occurred in the past.
I think
it's a balance that needs to be struck and at the end of the day I, as minister,
should not be involved in discussions around ethics. I would say that the
important thing is that the ethical and health interests of the people of this
province be preserved at all costs.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Member for
Conception Bay East - Bell Island.
MR. BRAZIL:
Thank you, Mr. Speaker.
Sequence Bio has said that the legislation, the
Health Research Ethics Authority Act,
is not consistently followed by the regulator.
I ask
the minister: Have you looked into this claim? What actions have you taken to
find a solution?
MR. SPEAKER:
The hon. the Minister of
Health and Community Services.
MR. HAGGIE:
Thank you very much, Mr.
Speaker.
I have
had two interactions with Sequence Bio; one at the beginning of February 2016.
The second was an email I received last week asking for a meeting between myself
and the chair of the board of Sequence Bio. Doubtless, this will be a topic he
would wish to discuss at that point and I look forward to that conversation.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The Member for Conception
Bay East - Bell Island.
MR. BRAZIL:
Thank you, Mr. Speaker.
This
sounds all too familiar. Just a short time ago, we discovered that the new green
biofuels project for Botwood was lost due to what could only be described as
government departments' administrative chaos. Here we are again on the verge of
losing yet another project.
Will
the minister commit to immediately resolving this unreasonable delay faced by
Sequence Bio, ensuring another company doesn't close up shop and leave this
province?
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Premier.
SOME HON. MEMBERS:
Oh, oh!
MR. SPEAKER:
The hon. the Premier.
Order,
please!
PREMIER BALL:
Thank you, Mr. Speaker.
I'm
going to rise to this question because that question itself is just completely
unfair. It doesn't reflect the amount of work that officials within government
and these ministers and MHAs put into this file, Mr. Speaker. What the Member
opposite doesn't know is that it was actually the company themselves that
voluntarily withdrew their application.
To
actually claim that this is as a result of this government is completely unfair.
I would suggest that the Member opposite would be aware of that. This is the
same person that said this week in a media outlet not working with businesses in
Newfoundland and Labrador. This is the very minister that just a few months ago
was over in a video in Romania launching ferries.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Member for
Conception Bay East - Bell Island for a quick question, please.
MR. BRAZIL:
I just have to clarify his
statement there. This was years ago to supply a service for the people in
Newfoundland and Labrador.
MR. SPEAKER:
Quick question.
SOME HON. MEMBERS:
Hear, hear!
MR. BRAZIL:
So I want to clarify your timelines there.
But I
do ask – it's continuously that we're losing businesses here because of the
administrative chaos on that side of the House and their inability to govern –
will you come up with a strategy that ensures companies that want to stay in
Newfoundland and Labrador to do research, create jobs, have an ability to do
that? I ask that to the minister.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Premier.
SOME HON. MEMBERS:
Oh, oh!
MR. SPEAKER:
Order, please!
PREMIER BALL:
I will outline three plans, Mr. Speaker. Since September of last year, it's
called the agriculture sector, it's called the technology sector – we're been
working with Aerospace – and it's called the aquaculture sector where it is
driving investment in Newfoundland and Labrador.
This
government is open for business, Mr. Speaker, and we will do whatever we can to
clean up the mess. They talked about contingencies a few minutes ago. Where were
the contingencies for Muskrat Falls, Mr. Speaker? It is clearly on the backs of
Newfoundlanders and Labradorians.
SOME HON. MEMBERS:
Hear, hear!
AN HON. MEMBER:
Oh, oh!
MR. SPEAKER:
Order, please!
The
hon. the Leader of the Third Party, please.
MS. MICHAEL:
Thank you, Mr. Speaker.
Staff
and parents of Bishop Feild School learned in a February 26 letter from the
English School District that there will be a one- to two-week delay in the
public receipt of the engineer's structural assessment of the Bond Street Bishop
Feild building and recommendations regarding necessary repairs. They are
concerned that this delay may mean that necessary repair funds may not be
allocated in the upcoming provincial budget, which is only weeks away.
I ask
the Minister of Education and Early Childhood Development: Can he assure the
Bishop Feild community that this delay will not affect allocation in the
upcoming budget for anticipated repairs?
MR. SPEAKER:
The hon. the Minister of
Education and Early Childhood Development.
MR. KIRBY:
Mr. Speaker, I'll leave it to the Minister of Finance and President of Treasury
Board to make announcements regarding the upcoming budget for 2018.
In
October, a portion of the ceiling in the gymnasium at Bishop Feild school
collapsed and, thankfully, no one was injured when that happened. Safety is
paramount to the provision of education in Newfoundland and Labrador. Since that
time, the Department of Transportation and Works has contracted with a company
to go in and have a structural examination done of the facility to ensure that
it's safe for children and staff to return to.
Until
such time that we determine that the structure is safe for children, students
and staff to return to, they will remain at the former School for the Deaf,
which is an excellent, world-class facility.
Thank
you, Mr. Speaker.
MR. SPEAKER:
The hon. the Leader of the
Third Party.
MS. MICHAEL:
(Inaudible) I would say on
the other side of the city, Mr. Speaker, from where these students live.
I ask
the minister: Will he assure the Bishop Feild school council that he'll work
with the Minister of Finance to ensure that the school district will have
adequate funds to do the necessary repairs to the Bishop Feild building?
MR. SPEAKER:
The hon. the Minister of
Transportation and Works.
MR. CROCKER:
Thank you very much, Mr. Speaker.
I thank
the hon. Member for the question, but the first thing we need to do here before
we can talk about budget considerations is find out what it is we're budgeting
for. So we're in doing an assessment right now. The assessment did become a
little bit delayed due to the fact we ran into some environmental concerns
around lead paint. So it's taking a little bit longer than planned.
Until
we actually have the assessment completed and we know that children can safely
go back in that school and what's going to be needed, at that time we will take
the necessary conversations with the Department of Education, the school
district and all those involved to make sure for a safe return to that building,
Mr. Speaker.
Thank
you very much.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Member for St.
John's Centre.
MS. ROGERS:
Thank you, Mr. Speaker.
The
Minister of AESL just released today names of nine people appointed to
Memorial's Board of Regents and the College of North Atlantic's Board of
Governors, of the nine only two are women.
As we
move into International Women's Week, can the minister justify why only two of
nine positions are appointed to women?
MR. SPEAKER:
The hon. the Minister of
Finance and President of Treasury Board.
MR. OSBORNE:
Thank you, Mr. Speaker,
When we
look at appointments to boards, we can't isolate one board in particular.
There's been a very balanced approach to the boards that we've announced through
this government.
In
fact, Mr. Speaker, let me point out, not only within our boards but within core
government. We have judges, 50 per cent of them are women; our executive, 57.1
per cent are women. That includes deputy ministers, ADMs and other executives.
We look at professionals within government, 60.6 per cent of them are women.
Mr.
Speaker, we take gender equity very seriously on this side of the House. You
can't isolate one board in particular when you look at the appointments to
various boards throughout the province.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Member for St.
John's Centre for a quick question, please.
MS. ROGERS:
Mr. Speaker, last year we
debated the IAC act and myself and my colleague for St. John's East - Quidi Vidi
debated the need to have gender and diversity embedded as values in our IAC act
to reflect the diversity of our population.
I ask
the Premier: Will he bring the act to the House again for amendments to ensure
that legislation will ensure that population is represented in appointments to
our agencies, boards and commissions?
MR. SPEAKER:
The hon. the Minister of
Finance and President of Treasury Board.
MR. OSBORNE:
Thank you, Mr. Speaker.
Again,
I want to point directly to this specific board, Mr. Speaker.
MS. ROGERS:
(Inaudible.)
MR. SPEAKER:
Order, please!
MR. OSBORNE:
I'd ask the Member, if she's
serious about getting an answer to this to allow me to answer it without
heckling.
Mr.
Speaker, this specific board, as it now stands, has equal representation. It's
50-50. So even with the change it just made to this board, Mr. Speaker, there is
gender equity.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The time for Oral Questions
has ended.
Presenting Reports by Standing and Select Committees.
Tabling
of Documents.
Notices
of Motion.
Notices of Motion
MR. SPEAKER:
The hon. the Member for
Torngat Mountains.
MR. EDMUNDS:
Thank you, Mr. Speaker.
I move,
seconded by the Member for
Stephenville - Port au Port, the following private Member's resolution:
WHEREAS gender-based violence remains a reality for many women and girls in
Newfoundland and Labrador; and
WHEREAS Indigenous women across the country experience a rate of violence three
times higher than non-Indigenous women and are murdered at a rate of six times
higher; and
WHEREAS the Moose Hide Campaign is a grassroots movement from indigenous and
nonindigenous men taking a stand against violence against women and children
across Canada; and
WHEREAS the Moose Hide Campaign helps promote the wearing of a small piece of
moose hide signifying the wearer's commitment to honour, respect and protect the
women and children in their lives, and to work collaboratively with other men to
end gender-based violence; and
WHEREAS the Moose Hide Campaign movement has spread to over 350 communities
across Canada and distributed over one million moose hide pins;
THEREFORE BE IT RESOLVED that his hon. House encourages all Members of the House
of Assembly to support the Moose Hide Campaign and work towards ending violence
against all women and children in Newfoundland and Labrador.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Minister of Finance and President of Treasury Board.
MR. OSBORNE:
Thank you, Mr. Speaker.
I give notice that I will move that this House resolve itself into a Committee
of the Whole on Supply to consider a resolution for granting of Interim Supply
to Her Majesty, Bill 36.
MR. SPEAKER:
The hon. the Government House Leader.
MR. A. PARSONS:
Thank you, Mr. Speaker.
Pursuant to Standing Order 63(3), the private Member's resolution entered by the
Member for Torngat Mountains shall be the one that is debated this Wednesday.
Further, pursuant to Standing Order 11(1), I move that the House do not adjourn
on Tuesday, March 6, at 5:30 p.m.
Thank you.
MR. SPEAKER:
Further notices of motion?
Answers to Questions for which Notice has been Given.
Petitions.
Petitions
MR. SPEAKER:
The hon. the Member for Conception Bay South.
MR. PETTEN:
Thank you, Mr. Speaker.
To the hon. House of Assembly of the Province of Newfoundland and Labrador in
Parliament assembled, the petition of the undersigned residents of Newfoundland
and Labrador humbly sheweth:
WHEREAS Route 60 is the main highway that runs through the Town of Conception
Bay South and is a vital artery in the provincial road network; and
WHEREAS Route 60 is one of the most heavily travelled roads in the province and
where Route 60 has been deteriorating and requires major upgrades;
WHEREUPON the undersigned, your petitioners, humbly pray and call upon the House
of Assembly to urge the government to allocate funds to upgrade Route 60.
And as
in duty bound, your petitioners will ever pray.
Mr.
Speaker, I, once again, present this petition. It's one that I've presented many
of and I'll continue to do so. Route 60 has become my rallying cry to the
minister and his officials in the department. Constituents that make it a daily,
sometimes an hourly occurrence, Mr. Speaker, are contacting me about the
condition of Route 60.
I'd
like to be on record so people in this House can understand I have been
contacted – since Saturday evening until last night 20 tires were blown, rims
and tires, and the number is counting. It's going up. I can show you
documentation.
I've
spoken to the minister, I've emailed the minister and I've emailed his
officials. My assistant has emailed. I've spoken on social media about it. I've
spoken to the local media about it. I've spoken on
Open Line about it. I've spoken in
the House of Assembly about it. Mr. Speaker, I'm getting to the point now I'm
getting tired of speaking about an issue.
There
are 20,000 vehicles a day. It's not 20 – 20,000. The people in CBS – it's the
second largest municipality in this province – deserve better treatment. I give
the minister credit. I speak to him and he's very receptive to my conversation.
I get that and I respect that, but actions have to match the words, Mr. Speaker.
I feel
very tired that it's falling on deaf ears. I'm constantly out saying it. I don't
mind getting answers; I want action, Mr. Speaker. Friday I was told the potholes
are going to be fixed. I'm telling you there's a crater in Foxtrap. It's not a
pothole; it's a crater. I'm not exaggerating. I challenge any Member opposite to
go and drive it. It's disgraceful.
It's
absolutely disgrace for a community, for a road that's so busy travelling. The
people in that area pay their taxes and they deserve better, Mr. Speaker. Forget
about me being a Tory MHA, the people in CBS deserve better. They elected me,
but this government represents the people of this province, including CBS and I
call upon them to take action and take action now.
Thank
you very much.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Minister of
Transportation and Works for a response, please.
SOME HON. MEMBERS:
Hear, hear!
MR. CROCKER:
Thank you very much, Mr.
Speaker.
I thank
the hon. Member for the petition. I'd like to remind the hon. Member these road
conditions didn't happen in the last 24 months. Mr. Speaker, I reference a
letter from April 14, 2015. The text of the letter is: Potholes are not as
simple as you would think. This letter was actually written by the former
minister, the Member for Conception Bay East - Bell Island. His EA of the day
was the current Member for CBS.
They go
on in this letter to explain that fixing –
SOME HON. MEMBERS:
Oh, oh!
MR. SPEAKER:
Order, please!
MR. CROCKER:
Mr. Speaker, they go on to
explain in this letter that pothole issues are something that we do encounter
typically from March to May.
Mr.
Speaker, I do agree with the Member that there are issues on Route 60. We have
crews on Route 60 today addressing these issues. We'll have the hot asphalt
recycler on Route 60 tomorrow addressing these issues.
I look
forward to meeting with the Town of CBS tomorrow to have a discussion on Route
60, Mr. Speaker. Government has invested tens of millions of dollars –
SOME HON. MEMBERS:
Oh, oh!
MR. SPEAKER:
Order, please!
MR. CROCKER:
The government has invested
tens of millions of dollars in Route 2, a bypass road for that heavily travelled
area. And our primary concern is Route 2; that's where we've invested our money.
I look
forward to a conversation tomorrow with the Member and with the Town of CBS on
the future of Route 60 that goes through, like he just said, the largest town in
the province. I look forward to a conversation tomorrow with the Town of CBS on
the future of Route 60.
Thank
you very much, Mr. Speaker.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
Further petitions?
The
hon. the Member for St. John's East - Quidi Vidi.
MS. MICHAEL:
Thank you very much, Mr.
Speaker.
To the
hon. House of Assembly of the Province of Newfoundland and Labrador in
Parliament assembled, the petition of the undersigned residents humbly sheweth:
WHEREAS
deaf and hard of hearing children in the public education system of Newfoundland
and Labrador are not receiving full and equivalent access to a quality education
because of the lack of appropriate full-time resources; and
WHEREAS
from 1964 to 2010, deaf and hard of hearing children were provided with a
full-time, quality education in the Newfoundland School for the Deaf, but deaf
and hard of hearing children currently placed in mainstream schools receive only
a fraction of a school day with a teacher qualified to instruct deaf and hard of
hearing children;
WHEREUPON the undersigned, your petitioners, humbly pray and call upon the House
of Assembly to urge government to undertake an immediate, complete and thorough
assessment of the supports in place for deaf and hard of hearing children by a
committee of at least two independent and recognized experts in the field of
deaf and hard of hearing education and to accept the recommendations of these
experts and, in the interim, take measures to honour the support commitments
made to all current and future students upon closure of the School for the Deaf
in 2010 to ensure that all deaf and hard of hearing children are provided with
access to a quality education equivalent to hearing classmates, as well as
access to sign language.
And as
in duty bound, your petitioners will ever pray.
Mr.
Speaker, this is an ongoing issue. I've stood a number of times in this House
with this petition, signed by many people from around the province. And once
again today it's mainly people from the St. John's area, but also from
Carbonear, Musgravetown and Lethbridge.
The
evidence is out there, as is mentioned in this petition, that the children in
the public education system who are deaf and hard of hearing are not getting
what they had in the School for the Deaf. The call that's here for a study to be
done by independent and recognized experts is something that this government
really needs to pay attention to. The deaf and hard of hearing children were
ignored really by the task force on education. No reference was made – well, one
sentence. One sentence, not even a full sentence on deaf and hard of hearing
children was in their report, though they did have representation made to them.
Government has a responsibility to listen to what's being called for in this.
These children are not getting what was promised when the School for the Deaf
closed, as the petition points out. They aren't getting the same services.
Thank
you very much, Mr. Speaker.
MR. SPEAKER:
Further petitions?
The
hon. the Member for Ferryland.
MR. HUTCHINGS:
Thank you, Mr. Speaker.
Mr.
Speaker, I rise today to present a petition on behalf of residents in my
district related to Route 13, the Witless Bay Line. It is certainly a
significant piece of infrastructure. It connects Route 10, the Southern Shore to
the Trans-Canada Highway.
Therefore, we petition the hon. House of Assembly upgrade and perform immediate
maintenance to this significant piece of infrastructure to ensure safety of
drivers and improve the flow of traffic to and from the Trans-Canada Highway.
As I
said, this piece of infrastructure is significant for the region, for commerce,
for people who work on both sides of the highway and the region commuting back
and forth, certainly the tourism industry. We have a vibrant tourism industry on
the Southern Shore right along the Irish Loup, and it certainly leads to a large
amount of traffic each year from one region to the other.
I have
had discussions over the past number of weeks with the minister in regard to
getting some immediate repairs done. He has committed that indeed that is to
take place. We are certainly appreciative of that and have asked him to do some
initial assessment on doing some preparatory work on that piece of
infrastructure in the upcoming construction season.
Over
the past couple of years we have, on two occasions, done two significant pieces
of infrastructure upgrades to the highway and certainly calling on the minister
– and I do recognize he has done an assessment and he's looking at what
possibilities would be for the upcoming season, as well in doing some immediate
maintenance repair with potholes and that sort as well.
So I
recognize that and look forward to seeing some results in the very near future
on the immediate concerns and something, as we move into summer construction
season, recognizing that not all of it needs to get done but certainly the worst
parts, and work with the minister and the department to see if we can get some
of that accomplished as well.
Thank
you, Mr. Speaker.
MR. SPEAKER:
Further petitions?
The
hon. the Member for Conception Bay East - Bell Island.
MR. BRAZIL:
Thank you, Mr. Speaker.
To the
hon. House of Assembly of the Province of Newfoundland and Labrador in
Parliament assembled, the petition of the undersigned residents of Newfoundland
and Labrador humbly sheweth:
WHEREAS
infertility is not an inconvenience, it is the disease of the reproductive
system that impairs the body's ability to perform the basic function of
reproduction; and
WHEREAS
infertility affects men and women equally; and
WHEREAS
treating infertility is excessively expensive and cost prohibitive; and
WHEREAS
infertility impairs the ability of individuals and couples to conceive children
and begin to build a family;
WHEREUPON the undersigned, your petitioners, humbly pray and call upon the House
of Assembly to urge government to implement a program that assists individuals
and couples, allowing them to access affordable in vitro fertilization services.
And as
in duty bound, your petitioners will ever pray.
Mr.
Speaker, I had the privilege this week of meeting with a couple, who after two
attempts to have a child and hundreds, and I mean hundreds and hundreds of
people very expressively supportive and happy for this couple who wanted to
start a family, in the later stages of their age that you would think as
parents, but have been trying for a number of years. They have gone out of their
way to mortgage their home to be able to do this, to travel out of the province
to do the multiple attempts to have this done.
It
speaks highly of people who are very diligently committed to starting a family
and being a part of our bigger picture here. Keeping Newfoundlanders and
Labradorians in Newfoundland and Labrador and as part of our population growth,
ensuring that the next generation of Newfoundlanders and Labradorians are from
here are here and have access to that.
It's a
whole big picture here. We are open to immigration, it's very important to us,
but we should be also open to supporting our local people who may have some
restrictions due to, in this case, a medical ailment to be able to do it; and
because, as I noted earlier, it's cost prohibitive, because it's not offered
here, because of the cost, particularly around the travel and the attempts. In a
lot of cases it doesn't take the first time; it doesn't work out. The in vitro
fertilization doesn't work and it's always a second, and in some cases three
times.
The
number of people – it's amazing, in a good sense, of how many calls I've gotten.
The notes you can see on this particular Facebook of this couple about those
other people who are trying and who, while it's cost restrictive, go out of
their way to do it. There are other people who do note that if they had the
ability – after the first time they had no financial ability to be able to try a
second time.
So I
think we have a responsibility because it's a medical situation here. It's a
medical aliment that should be addressed. We've done yeoman service over the
last number of years of adding other types of treatment and other types of
support to ensure that people have a quality of life. Well, this is a quality of
life in many ways because it adds to our Population Growth Strategy. It adds to
Newfoundlanders and Labradorians being able to start families here and it adds
to families being broader in their community.
Mr.
Speaker, I'll have an opportunity to speak to this again. I do encourage
government to take a serious look at supporting, in some way, shape or manner,
financial supports for families in these situations.
Thank
you, Mr. Speaker.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Government
House Leader.
MR. A. PARSONS:
Yes, Orders of the Day, Mr.
Speaker.
MR. SPEAKER:
Orders of the Day.
Orders of the Day
MR. SPEAKER:
The hon. the Government
House Leader.
MR. A. PARSONS:
Mr. Speaker, I call Order 2,
third reading of Bill 32.
MR. SPEAKER:
The hon. the Government
House Leader.
MR. A. PARSONS:
Mr. Speaker, I move,
seconded by the Minister of Health and Community Services, that Bill 32, An Act
Respecting The Newfoundland And Labrador Centre For Health Information, be now
read a third time.
MR. SPEAKER:
It is moved and seconded
that the said bill be now read a third time.
Is it
the pleasure of the House to adopt the motion?
All
those in favour?
SOME HON. MEMBERS:
Aye.
MR. SPEAKER:
All those against?
This
motion is carried.
CLERK (Barnes):
A bill, An Act Respecting
The Newfoundland And Labrador Centre For Health Information. (Bill 32)
MR. SPEAKER:
This bill is now read a
third time and it is ordered that the bill do pass and its title be as on the
Order Paper.
On
motion, a bill, “An Act Respecting The Newfoundland And Labrador Centre For
Health Information,” read a third time, ordered passed and its title be as on
the Order Paper. (Bill 32)
MR. SPEAKER:
The hon. the Government
House Leader.
MR. A. PARSONS:
Mr. Speaker, I call from the
Order Paper, Order 5, second reading of Bill 34.
MR. SPEAKER:
The hon. the Government
House Leader.
MR. A. PARSONS:
Mr. Speaker, I move,
seconded by the Minister of Education and Early Childhood Development, that Bill
34, An Act To Amend The Legal Aid Act, be now read a second time.
MR. SPEAKER:
It is moved and seconded
that Bill 34 entitled, An Act To Amend The Legal Aid Act, be now read a second
time.
Motion,
second reading of a bill, “An Act To Amend The Legal Aid Act.” (Bill 34)
MR. SPEAKER:
The hon. the Government
House Leader.
MR. A. PARSONS:
Thank you, Mr. Speaker.
It's
always a pleasure to stand here in this House and speak to legislation.
Particularly, in this case, I'm very happy to speak to this particular amendment
to the Legal Aid Act.
I'll
apologize to my colleagues across the way. I'll certainly try my best to be as
coherent and as streamlined as possible in explaining what we're doing here, but
I think people will get the gist of where I'm going with this particular
amendment.
Basically, we're here today to discuss Legal Aid. It's something we're all
familiar with in this province. It's something I'm especially familiar with,
especially from my practising days where I handled many files on the other side
of, individuals from Legal Aid, especially on the family side, just seeing the
work they did on the criminal side and other matters.
One of
the things anybody who's ever dealt – especially in practice – with Legal Aid
would tell you is that Legal Aid lawyers are some of the hardest working, most
conscientious lawyers that you ever see. The work they have to do, the hours
they have to keep – I'm just looking at the lawyers I used to deal with back
when I practised. They would, in many cases, have long drives over the highway
all times of year. You'd see them come into court with bankers boxes full of
files. You'd see them handle Duty Counsel where people would show up and present
their matters to them and they had to provide advice.
They
are excellent lawyers and, in many cases, they go above and beyond the call of
duty to do their work. It's something I've said since the time I started
practising and I maintain that now. Legal Aid lawyers across this province
handle a wide number of matters.
While
we're doing it, I'd also like to throw a shout-out. It's not just Legal Aid, but
we're also lucky to have an executive for Legal Aid who handles this. This is an
extremely busy group. What they do – again, I don't say there's an MHA in this
House that hasn't had a constituent contact them to discuss Legal Aid. I don't
think there's an MHA who hasn't been contacted to say, can we look into this
matter or deal with this.
Certainly, I deal with them on quite a frequent basis. I've contacted them and I
know my constituency assistant herself has said the interactions she's had with
Legal Aid have been tremendous. The fact that when you contact them they get
back to you especially quickly, and I'd like to echo that. The work they do for
their clients and our constituents is beyond reproach, and I thank them for what
they do.
Many
times when you're dealing with these people – I just had an individual last week
on a family matter. These people are often going through the most stress they've
ever been through, if they're going through a marital breakdown, dealing with
custody and access as it relates to their kids, or if they've been charged with
an offence under the Criminal Code of Canada. It's extremely, extremely trying.
We also
have a Board of Legal Aid, of individuals who have taken it upon themselves to
contribute back to their province and to provide us that overseeing mechanism.
So we're very lucky in this province to have a very good organization with a
great board. The men and women that are doing the work out there on the ground
are doing a fantastic job. There's absolutely no doubt about that.
If
there's one issue with Legal Aid, and I'm going to echo the comments made by our
– well, if she's not retired she's in the process of retiring. I know she's out
doing speaking engagements now, but that's our Chief Justice Beverley McLachlin,
who actually did a speech back here not that long ago. A tremendous, tremendous
individual.
She
mentioned in her speech there that Legal Aid was under resourced. That's
something that, you know what, I'm going to echo. The fact is Legal Aid in this
province and across our country doesn't have the resources it needs. In many
cases I get contacted by individuals who are at that threshold. Again, when you
look at the caseload these lawyers carry, it's absolutely – in some cases it's
beyond belief how many files they can juggle and handle and you throw in the
other constraints that come with it.
Just on
Friday, I was in Corner Brook and I visited the Legal Aid office in Corner
Brook. Not only do I speak to the lawyers there but I also like to speak to the
staff, especially the intake personnel, because these are people who are
handling very sensitive matters, very tough matters and making that decision on
whether Legal Aid can be provided or not provided.
Legal
Aid dealt with this I'd say since their existence, and it's something we've
dealt with as well. It's something that when I look at the justice system I'd
like to think we could use more on all facets, but there's an argument that can
be made that that's the same for education, that's the same for health. Again,
as it relates to the justice system, it's something that I'm so involved in, and
have been since I got out of school, I'd like to think that it does apply, and
we continually do our best. We've worked with the feds to see increased funding
there.
The
amendment that we're bringing forward today is something that will help
alleviate that concern, but this is not just an amendment that's being brought
forward for financial reasons. This is an amendment that is being brought
forward for bigger reasons than that.
What I
want to do is begin by just looking at the bill itself. As I'm prone to doing
whenever I stand in the House, I look at the bill and I say whether it's – this
one is fairly thin. There are only just a couple of sections there. Just to read
it out for the record: Subsections 31(3.1), (3.2) and (3.3) of the
Legal Aid Act are repealed. Then it
says: Nothing in this act affects a certificate that was issued by the
commission to an applicant for professional services and is completed and signed
by the solicitor in private practice and returned to the commission.
So,
what is it that we are debating here today? Well, what I'd like to do is go back
to 2008; 2008 is when the sections that are being repealed here were originally
brought in by the previous administration. What we saw basically in 2008 was a
change, in many ways, to the in-house counsel model that is currently provided
by our Legal Aid Commission.
In
2008, what was changed was there was the addition of the choice of counsel. That
was proposed and brought in, in 2008, here in this House of Assembly. I have
taken the time to review the Hansard
from that time and read the debate on both sides.
It's
funny because you can sit here years later and I can say well, we would do this,
we would do that, but I can understand some of the logic provided at that time
made sense, for reasons that were provided. But I'd like to think that with 10
years since that, we've discovered that the move was not, in fact, positive
overall and that it has had effects that maybe were not contemplated when this
amendment was originally brought in.
A
couple of things – so what was added was a choice of counsel where a person that
was charged with certain offences, murder, manslaughter or infanticide, was
basically entitled to select their own private counsel, outside of Legal Aid,
but still funded by taxpayers, still funded by Legal Aid.
Legal
Aid, you would go there and basically they pay the bill, very little control
over what the bill is, and it became statutory. It's by law. This clause was put
in saying anybody charged with those three offences was guaranteed their choice
of counsel.
There
were a number of different arguments made for it at that time. One was, I think,
that they thought it might speed up matters going through the courts. One part –
I wouldn't have agreed with it then and I certainly don't agree with it now –
was that by doing so, it might improve the perception of Legal Aid.
What I
can say here, Mr. Speaker – I've read the
Hansards – is that this clause – take away the money, take away any other
concerns, any other issues – to me, has done significant damage to both the
morale and the reputation of Legal Aid. The fact that people are coming in
without having met a Legal Aid lawyer, spoken to a Legal Aid Lawyer, and just
saying they want their choice of counsel and the law gave it to them. What it
did, it contributed to the perception that Legal Aid lawyers were not as good as
the private counsel.
This is
not a shot, in any way, at private counsel – not at all. What this is doing,
we're taking this out for a number of reasons but one of them is Legal Aid are
excellent lawyers. People who qualify for legal aid under any of these charges
are still going to get an excellent lawyer funded by the state; that is not
being taken away from them. What's being eliminated is their statutory right to
choice of counsel.
There
are a couple of things I'll throw in there for people to understand and to
contemplate as they look through this. One of the things that we've noticed is
that this provision is not found in any other province, except Quebec. If it was
there before, it was eliminated. In fact, some provinces referenced our province
in a report that was done, that I'm going to refer to now shortly, the Roil
report from 2013.
There
is no statutory right to choice of counsel anywhere else. I think Quebec has a
sort of a mix there. Some might question: Is there some kind of constitutional
right here? My answer is an unequivocal no. No, there is not. This is not an
issue anywhere else.
I want
to go back to that report that was done. Back in 2013, I would note that it was
a particularly tough year on justice as it related to the budget. Anybody that
was involved in the field will recall that. There were a number of, again, sort
of familiar, trying financial times, a lot of decisions made and there was
certainly a lot of backlash within the justice and within the legal community.
One of
the groups that was affected – and there were a number – was Legal Aid. The
province, on June 13, the government of the day commissioned an outside counsel,
external review, by John Roil to come in and look at legal aid. The report was
quite, quite comprehensive with a number of suggestions, recommendations, a
number of thoughts, and I would note that again it was this report that PEI
looked to when they repealed and replaced their choice of counsel provision.
Choice
of counsel is specifically referenced by Mr. Roil in this report. Right here it
says: “The current legislative regime calls for a legal aid client to be
entitled to choice of counsel only the case of charges for murder, manslaughter
or infanticide.” And there's one part that I want to refer to here, because he
actually uses the word here. It just hit me when I was reading through. What
this change may have done in 2008 was may have unwittingly – that was the word,
quote from Mr. Roil – led to that negative perception that exists of Legal Aid
lawyers. It was perpetuated by the change, in many ways, that government made in
2008.
So
government back in 2013 got the report, external report, and that report came
back and said we recommend that you get rid of choice of counsel. So I've read
the Roil Report, I've gone through it, and that's something that we took to
heart when we reviewed this as well.
The
other thing that I would note here is we have to look at – one of the big
issues, obviously, like anything that a government does, is that we have to be
responsible with the money that we spend, the money that we allocate, because
everything we have through our Treasury is taxpayers' dollars. One of the things
about this choice of counsel is that in many ways the cost is uncontrollable.
Legal Aid has no control, we have no control and it depends on the number of
cases coming in.
So we
look at what's been spent over the last eight, nine years, and it actually adds
up to, under choice of counsel for these charges, $1.338 million, which is a lot
of money. It's not ridiculously huge, but it's a lot of money. Now, just so
people know, Legal Aid often and will continue to still refer matters to outside
counsel for any number of matters. It could be conflict of interest. In fact, in
some cases, if they feel that it falls outside there area of expertise, they
have that ability to refer out. They've done that in the past; they'll continue
to do that. Depending on where the matter's heard, depending on the roster of
lawyers, there are a whole number of things. They control that; they make that
choice.
So what
I would like to point out, though, I just gave that number. Right now, on the
books for the current choice of counsel, individuals that we have the
certificates out for, we're currently on the hook for $1.395 million. So right
now, at this exact moment, we're on the hook for more than was spent in the last
eight years on it. That's a tremendous, tremendous amount of money.
Like I
said, we cannot control that. Anybody looking at the court docket or watching
the news will note that we've had, unfortunately, a number of high-profile,
serious cases of murder and manslaughter, which nobody likes to see. There is no
statistical basis or analysis for this as of yet. This is something I've
discussed on many occasions with our director of public prosecutions. I've
discussed it with our police; but, the fact remains, these people need counsel.
They do need a lawyer. We would never want to see anybody not have the right to
counsel, especially in a serious charge.
What we
are suggesting here is that automatic right to a choice of counsel is not
something that should be automatic. It shouldn't be in the statute. It should
not exist. We will guarantee you the right to counsel, but it's not going to be
who you choose. You will get a very fine lawyer, in many cases, from the Legal
Aid Commission which is still paid for by all the taxpayers. That's what we're
doing here.
If
anybody says: Why would you do this? Every other province in Canada seems to
have moved down this route. I don't know why we went there in 2008. All I can
say is while we're here, while we're making decisions, this is one we're making
in the best interest of not just taxpayers, but even within the court system.
I'd like to think that in many cases people will tell you that the choice of
counsel provision – because we also had, from an inquiry we had, the Lamer
report, we also have usually two counsels.
You'll
see in most cases now, it's two Crowns, two defence counsel. In many cases this
can lead also to delays in court. It's our belief that by repealing this and by
eliminating this we are not going to do anything to jeopardize wait-lists in the
courts. This is not going to have any sort of Jordan effect. We're still going
to do everything we can to ensure that Legal Aid has the resources to continue
to provide the tremendous legal support and legal advice they have been and will
continue to do. We're going to make sure that continues.
Mr.
Speaker, I'll just take a minute now. I'm going to go through – I've gone on now
for about almost 20 minutes and I want to go through my notes to make sure I
cover off some of the other points.
It was
only through research I found out the part that we're moving in line with the
other provinces. This was something I was very happy and very anxious to make
happen for a long time now. This is something I wanted to do for some time. The
fact that other provinces have already gone there only strengthens the position
that we felt.
We have
a staff solicitor model here in the province. This is just going back to more of
a backdrop of Legal Aid and how they operate. We have a director who appoints
in-house counsel based on resources, counsel experience, expertise on the
charge, the geography, the location, you name it. Where circumstances warrant,
they can go outside and still get outside counsel for any number of matters.
It's happened every year. It will continue to happen. That's the nature of it.
We had
the amendment in 2008 which gave individuals who qualified for Legal Aid who are
charged with murder, manslaughter and infanticide the power to select private
counsel and have the commission pay. We have a report by Mr. Roil QC in 2013 who
recommended – and this is his words – consideration be given to curtailing
entirely the choice of counsel provision saying the provision was problematic as
it perpetuated the inaccurate negative perceptions of Legal Aid solicitors.
Again,
I say, Mr. Speaker, I've had the opportunity to work with them, to work against
them, and clients and constituents have come in and had them. I say in every
case, you're lucky to have that legal experience on your side. You're extremely
lucky to have that. The fact it's paid for by the state, I think we're very
lucky to have that. I wish we could do more. I wish we could do more but that's
the situation we live in.
I know
after I'm done speaking, I'm sure Legal Aid, if they are listening, will say: We
agree, we need more, too, can we work on that? We will do that. We have to. I
think we've had a great relationship doing that and advocating to the feds to
pay their fair share. The feds have to continue to do their part.
I would
also note to people that if they haven't ever done it, the Roil report gives a
great history and background of Legal Aid, how it came about in the province,
how it was originally created by the Law Society. Then we have the
Legal Aid Act of 1975 and then the
creation of the commission. It's interesting to see the rates that lawyers got
then and the rates they get now.
What
else do I have here, Mr. Speaker? In a time like this, where it's no secret of
the fiscal situation and capacity of this province, we cannot continue to have
situations that are out of our control and that are not an efficient use of the
money we have. I say this here in the House and I would say it anywhere: In no
way is anybody's right or rights affected negatively in any single way, shape or
form.
We want
to look at the money. We have staff solicitors at Legal Aid with decades of
experience. They're charging – in many cases, the rate works out to $85 an hour;
whereas if they go outside, you might not get a lawyer with that experience
charging $135 an hour. Again, this is on the taxpayers' dime.
What we
did is we looked out – and this was quoted in the
Hansard from 2008. The minister at
the time, he estimated about 300 hours was what was required for one of these
types of trials. He would know. He was an excellent lawyer then, he's an
excellent lawyer now and he's done plenty of these trials. Certainly, he would
have the background to be able to discuss that.
Under
our Legal Aid Act, both, not one,
both private solicitors representing a Legal Aid client qualify for up to 200
hours each of prep time plus any additional hours spent attending court. In
complex cases, which many of these murders are, the hourly maximum can be
increased at the discretion of the commission's provincial director. The
commission tells us, and they're experienced, the cost of providing private
counsel to a person facing a murder charge is upwards of 50 per cent higher for
private than a staff solicitor. It's not sustainable. Mr. Speaker, it is not
sustainable. It's straining the resources of Legal Aid.
What I
would say is it is also having a negative effect. These lawyers often handle not
just the criminal side but the family side. The work of the family law, the
lawyers that are doing – whether it's over in the UFC. The support they provide
to other groups and agencies is affected negatively by the money that's going
out that can be controlled going to these types of cases, I would suggest, Mr.
Speaker.
Since
2008, government had to come up with the extra $400,000 a year to the
commission's operating grant to offset the costs, but it's not being sustained.
It can't be met, even providing that and continuing to provide that. Legal Aid
now with this will be able to take what they have and create a serious crime
unit to deal with these cases. Again, we still have that money that's going out
to these solicitors. It's just over and above that. Right now on the hook,
almost $1.5 million.
In
closing, and I think I've spoken to this, but I look forward to the commentary
from my colleagues across the way. This amendment will not impact the quality of
legal representation provided to the accused and appointed by the director.
The
other thing I would note, and this is important, anybody currently on a
certificate will not be affected. This is not meant to affect people that are
currently on a certificate with outside counsel. Somebody that's on a
certificate now for one of these charges who has private counsel retained will
not lose that private counsel. We will not interrupt the solicitor-client
relationship because of this. This is for ongoing.
This
will not impact Legal Aid's ability to appoint external counsel in appropriate
circumstances, and this will – and this is very important as well, and I know
the Minister of Finance is encouraged by this – reduce an unpredictable and
significant expense, which allows the commission to better manage their
resources and their demand. They do tremendous work with the resources they
have; this will give them better control and allow them to do an even better job
than they are already doing.
As the
minister I can tell you, I have the utmost faith in the staff at Legal Aid and
the solicitors at Legal Aid. I'm encouraged by the work that they are doing,
especially in the last few years. Just having been here and having had a chance
to even go over and visit, to see the headquarters and talk to them is
absolutely tremendous.
In
closing – and I look forward to speaking again after and answering questions
when we get to the Committee stage – what I would suggest is that, as a
government, we're very committed to providing a fair and equitable justice
system, one that has justice for all, and we feel that this amendment to the
Legal Aid Act that we are proposing
will do that, will not affect that negatively in any way and will only enhance
what we are trying to do as a government, which is providing more justice to all
for Newfoundlanders and Labradorians.
Thank
you, Mr. Speaker.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Leader of the
Official Opposition.
MR. P. DAVIS:
Thank you very much, Mr.
Speaker.
I thank
the minister for his introductory comments and the entrance of debate on Bill
34, which is a bill to amend the Legal
Aid Act. As laid out by the minister, the bill pertains to a removal of
subsection 31(3.1), (3.2) and (3.3) currently contained in the act, which is a
provision which allows for an applicant for legal aid, who is charged with
murder, manslaughter or infanticide, to select a solicitor in private practice.
Under these sections, a person who is charged with one of these very serious
crimes, murder, manslaughter or infanticide, can select a private practice
lawyer outside of Legal Aid itself. There is tariff system put in place for
charges, and I think the highest level right now is $135 an hour that can be
charged under that particular tariff.
Mr.
Speaker, I join with the minister in his commentary surrounding the respect and
acknowledgement for the good people in Legal Aid who do fantastic work in
Newfoundland and Labrador. They provide a great service to people who can't
afford to retain their own private lawyer, or private solicitor matters. The
majority, or quite extensively the work they do, would be legal matters, when a
person is charged with an offence.
We know
that when a person is given and provided with their Charter of Rights under the
Canadian Charter and by police in a time of detention, they are notified of
their right to representation or get advice from legal counsel, which is a Duty
Counsel, free of charge. They provide those types of services as well.
I go
on, again, to join the minister's commentary that they have some very capable
and qualified lawyers. I know that from my own experience in my former career in
law enforcement, I dealt with Legal Aid lawyers numerous times. Some of them
were engaged in work with Legal Aid because of the very nature of their work
because it was criminal in nature and, in many cases, focused on their client.
We know
there's a lot of work. You talk to private practice lawyers and they'll tell you
there's a lot of work just managing a practice and managing the affairs of a
practice, whereby a Legal Aid lawyer doesn't have that aspect of a practice that
they have to have oversight on and focus on their clients.
I
always try to stay away from naming names in these types of circumstances but
one lawyer comes to mind, Derek Hogan, who's been with Legal Aid in this
province for probably 30 years, Mr. Speaker – 25 to 30 years for sure. My
understanding is that Mr. Hogan has actually been to the Supreme Court of
Canada, I think, nine times through his career.
Probably many, many lawyers never go to the Supreme Court of Canada. I'd say
most lawyers never end up in the Supreme Court of Canada but Mr. Hogan, I
understand, has been there about nine times through his legal career. I think
that speaks volumes about the experience that Mr. Hogan would have and his
abilities as a criminal lawyer.
Having
gone to the Supreme Court of Canada nine times is a significant amount. When I
heard that number, I was a little bit taken aback. I wouldn't have thought that
anyone would be before the Supreme Court that many times, but Mr. Hogan has
been. He's a Legal Aid lawyer, a well-known Legal Aid lawyer and does really
good work. So I join the minister in his comments about praising the good work
they do.
I
wasn't around here in 2008, but I'm sure that the amendments that were made in
2008 on choice of counsel in no way were designed or intended to create any
hardship or a degrading of morale in any way, or to change the perception that
people have of Legal Aid lawyers. I'm sure it wasn't that.
I know
that at the time there was significant pressure on our legal aid system. There
was a resource issue and that's not isolated to 2008. For several years, we've
heard, from time to time, concerns and complaints from people trying to access
adequate and quality legal counsel when the legal aid system is overburdened and
a very busy process.
During
this debate and process of this bill, I intend to ask the minister about what
changes have taken place to deal with the pressures. As recently as just about a
year ago, just a little bit over a year ago, in the fall of 2016, there was a
story by CBC where they were talking about Newfoundland Legal Aid, in
particular, and the story reads: “Recently, legal aid has been swamped with a
slew of applications for assistance.”
Mr.
Nick Summers, who's the commission's provincial director, was interviewed and he
used words like: “At the moment” – in that particular time, just a year ago –
“we seem to be experiencing a particular large wave.” Later in the story by
Glenn Payette of CBC, the story talks about the $135 an hour, which I previously
referenced, and also a comment by Mr. Summers: “We don't have 50 files that we
have to get rid of by next Wednesday or something like that. We have a problem;
it's a growing problem right now. One of the solutions is going to be to send
some of that work out to the private bar.” So that's a commentary which is
related to this particular bill today. I would anticipate that the minister and
the government have a plan on how to deal with this.
During
an opportunity for a briefing with the department – and we thank the minister
and officials of the department for a briefing that took place – there was
reference to a senior lawyer counsel office. I thought I might hear from the
minister on that today. I'm sure maybe in closing he can reference it or when we
get to Committee stage, we can talk a little bit more about that, how that's
going to work; has it already been established; have staff resources been
assigned to it; and give some more details on what that plan exists.
The
minister referenced Mr. Roil's report in March 2014. I had a look at some of
this as well, because he talks about choice of counsel and he recommends
curtailing entirely the so-called choice of counsel. That was a recommendation
to him. What we would like to know is if you're going to do this, we're going to
pass this bill and change these parts of the act, then what next; how are you
going to deal with these necessities.
In our
society today, in recent years, we've seen all too often cases that are before
the courts, murder and manslaughter types of cases. We also know, as the
minister referenced, in some of these cases a person is looking for or feels the
requirement or the need exists to have two lawyers representing each client. I'm
sure that can be a significant burden and cost on government. However, in order
to make sure that the services are going to be provided, we'd like to know a
little bit more about what is going to happen or what the options are going to
be available to them.
Some
lawyers I've spoken to have suggested that this will wind up with applications
being submitted to the Attorney General for outside legal counsel, a process
that an accused person would have to generate and undertake themselves, as I
understand it. The minister can correct me if that's not what is going to take
place. And what would be the cost in those types of cases.
If a
person is charged today, this section is removed. They have to go through a
process. What process will they have to go through if they feel the need to seek
outside counsel? Then what would the cost – would the tariffs still apply that
exist under the choice of counsel sections, or will there be a different process
set up? We'd like to know what those costs will be to have an alternative
approach.
Mr.
Speaker, I thank the minister again for his comments. I'm sure we're going to
have lots of discussion in Committee and I look forward to further debate on
this, this afternoon.
MR. SPEAKER (Reid):
The hon. the Member for Cape St. Francis.
MR. K. PARSONS:
Thank you very much, Mr.
Speaker.
It is
indeed a pleasure to get up today to talk on Bill 34, An Act to Amend the Legal
Aid Act. I want to thank the minister for his statements beforehand.
It's an
interesting bill we're bringing in here today. I have a couple of concerns that
I will be asking the minister about when we do get to Committee, just some
questions I have.
Any
time we talk about the justice system my concerns basically come back to me to
make sure that people are getting the best possible justice that's out there,
representation – no matter what it is – in our courts to ensure that everybody
gets treated fairly. I know sometimes people look at our court system and they
shake their heads and wonder why this person is getting representation and
another person is not. The Legal Aid system we have in this province, we're very
fortunate to be living in a country like Canada that supplies legal aid to
people who can't afford it and to people who do need the assistance.
I know
the minister has gone back and talked about 2008 when this was brought in first
to change the Legal Aid system for private lawyers to be able to represent
people. I can remember back – and I know the minister, obviously, he has more
information being a lawyer himself – in the day, there were some very serious
situations in our province where people didn't have, not only in the Legal Aid
system, but didn't have confidence in our legal system in the province, where
there were three or four at the time, in that era – I think it was around, I'm
not sure of the years – of that time when people were found guilty and then
later it was overturned when new evidence came forward and people that were
guilty and in jail were found that they weren't guilty at all.
I think
the confidence in our legal system at the time – and since then I'm sure has
gained a lot of respect for our legal system and people see it a little bit
different, but at that time, it was a time in our province when our legal system
was questioned by the general public. I know a lot of people had questions back
and forth back then. I do believe one time there was probably about three cases,
maybe four cases – again, the minister would know more about it than I would.
The
minister spoke about the Legal Aid system and I do tend to agree with him. We
have a great Legal Aid. Our lawyers at Legal Aid are qualified. They're
excellent lawyers and they do a fantastic job.
When
you look at what is happening in our court systems today, it seems like there's
a backlog. People are going through the courts – to me, I don't know, maybe it's
just that I watch a little bit more these days. I don't know, but it seems like
we're at a stage in our society where major crime seems to be the essence of the
news. Every single evening it seems like there's a murder trial or there's a
serious incident that's on the go in our courts. My only worry about anything is
that – again, I believe every person deserves the best possible defence or
representation that they can get through our court system. I think it's
important that we make sure they get it.
I know
the minister, while he was doing his statement I believe – now, I could be
corrected. I'm sure the minister will correct me. There are a pool of lawyers
that are outside the Legal Aid Commission who also – I believe what I've heard
is there are 20 in the province who are private lawyers. I'm not sure if that
would still continue to exist where if there is a backlog and if there is
representation somebody needs or for some reason there could be a conflict in
some way or another, it could be that they could still avail of that pool of
lawyers to be able to defend them and represent them in the court of law. That
will be a couple of questions that I do have to ask the minister.
I know
it's the responsibility of us as a society and as a government to ensure that
everybody gets treated fairly in this province. I think it's important that we
make sure the best possible representation is there. Everybody deserves to be
treated equally, whether you need legal aid or you're a person who just can
afford a lawyer and maybe can afford a high-priced lawyer, but everybody
deserves to make sure they do get proper representation.
The
only other thing I would be concerned about is the resources. I know the
minister spoke of it and said it was a major concern with the justice system,
whether Legal Aid had the proper resources and proper personnel. Things that are
given to them, whether they can do the proper investigations, and the expertise
sometimes that's needed in a court of law.
Especially when you deal with murder trials, for example. We watched it in the
courts. It always amazes me, the experts that come in to the court system. I
know they're available for everyone, but sometimes it takes a little bit of
digging. I'm not sure if there's any monetary or anything involved in getting
people involved in the – again, the minister can answer that question also –
people to get involved in giving their expertise in the courts when it comes to
serious incidents like that. So I just want to make sure.
Also,
when I looked at this bill, I thought maybe the minister would do some kind of a
pilot project just to see this and see how it would work. I know he said that in
every other province – other than I believe, Quebec is what he said – don't have
this system. It goes back to the same system we had before 2008. Again, maybe
there is some way that we could look at this over the year and just see what the
system can be and do a pilot on it to make sure we're doing the proper thing, to
make sure that people get the proper representation.
Also,
the other thing is – and I know the finances of the province plays a huge part
in what's introduced here today, and finances, obviously, is on the minds of
everyone in Newfoundland and Labrador. I'm wondering if any of the money that
would be saved through this process would be reinvested probably back into Legal
Aid, into ensuring that resources and what they need to make sure they represent
people at the best they can possible do would be given to Legal Aid to be able
to do that.
I
think, Minister, maybe that's a part of what the process would be, to ensure
that – we're all about making sure that everybody in this province gets treated
fairly, and I mean everybody. I just don't mean people who are on Legal Aid, but
anybody who goes through the justice system. We want to make sure that if they
go before trial they get ample opportunity to prove themselves, their innocence
or whatever.
We
don't want to see, like I said first when I started and when I first read this
bill what my concerns were. I go back to a few years, and I'm not really sure
when those years were, but I know of three for sure that were overturned in the
court of law. I'm not saying anything about Legal Aid. I'm not even sure if
Legal Aid was the representation at the time, but I know the general public out
there were: What's happening to our justice system? That's what we want to make
sure that everybody out there, if they're on trial, that they get the best
possible legal advice and legal representation that they have.
I'm
sure the people at Legal Aid do a fantastic job and there are great people down
there too. But again, I think that we should look at this and if there are any
monetary savings, invest it back into our justice system so everybody gets fair
trials.
Thank
you very much, Mr. Speaker.
MR. SPEAKER:
The hon. the Member for St.
John's Centre.
MS. ROGERS:
Thank you very much, Mr.
Speaker.
I, too,
am happy to stand and to speak to this bill. It's a Legal Aid bill and this
bill, in and of itself, covers some very complex and tangly issues. I believe
that has been highlighted by both the Minister of Justice and my colleagues in
the Official Opposition.
Two of
the issues that we deal with are perception and actuality. I would like to thank
the fine folks in justice who gave us a very thorough briefing on this bill. I
believe that they, too, acknowledge that there are some tangly issues here that
will need to be dealt with.
I also
want to thank the director of Legal Aid who I had an extensive conversation
with, Mr. Nick Summers, who has done an incredible job under, often, very
difficult situations. We heard the Minister of Justice today talk about how hard
Legal Aid lawyers work. He said they work so hard and he often sees them
travelling around the province with bankers boxes full of material. Their
caseloads are pretty heavy.
Are
they heavier than the private bar? I'm not so sure, but we do know that they are
incredibly busy and that they work hard making sure that the people of
Newfoundland and Labrador who are eligible to avail of their services are
represented with expertise, with care, with consideration and with compassion.
I would
like to state, Mr. Speaker, once again, the gratitude on behalf of the people of
the province for the incredible work that the lawyers who have dedicated their
careers to the public as defence counsel for the people of Newfoundland and
Labrador. So I will return to that issue as well.
I also
would like to thank the lawyers in the private bar who I also consulted with. I
consulted with a number of lawyers in the private bar who as well work very
hard, very, very hard in their defence of people who are accused and also in
representing people in all aspects of justice, who do it as well with expertise,
with compassion and with commitment. They, too, work very, very hard on behalf
of the people of the province.
Mr.
Speaker, what we're looking at here is whether people feel that a certain right
– now, we're talking about cases that are extremely complex, extremely serious,
where people may be sentenced for life for something they have been accused of.
We are talking about people who have been accused of murder, who have been
accused of manslaughter, who have been accused of infanticide. I don't have to
stress how complex that it, how important that is and how serious that is.
We've
had, since 2008 in our province, choice of counsel legislation, which means that
if you are accused of murder, manslaughter or infanticide, you have a choice of
who to represent you. You can go to the private bar or you can have a lawyer
from Legal Aid who will represent you.
There
is often a perception that anybody who's a Legal Aid lawyer is because they
can't make it in real life, that they can't make it out there in the private
bar. There is also a perception when you look at our public service that so
often there's this false perception. I'd like to stress again, Mr. Speaker, that
perception is not based on reality.
There's
also a perception that floats around about our public sector workers; people
work for the public sector because they can't get a job anywhere else. Our
public sector workers are among the best educated, the most dedicated and
experienced people who have a desire to work in the public sector.
The
same with our Legal Aid lawyers who have so much experience because they spend
so much time in litigation; they spend a lot of time in the court room. There is
a lot of respect for them in the legal community and in the judiciary as well
that they work hard, they have expertise, they are well educated and they are
dedicated.
I would
like to say, Mr. Speaker, that we are talking about whether people are
represented by the private bar or whether people are represented by a Legal Aid
lawyer that people have expert representation by credible lawyers. There is a
task ahead of Legal Aid, there's a task ahead on behalf of public sector
workers, all around, of dispelling those myths that those folks who work in the
public sector do not have what it takes to work outside the public sector. As a
matter of fact, they have oftentimes more than what it takes because they have
worked in such a concentrated manner.
Mr.
Speaker, what Legal Aid is proposing is that they will set up a special defence
unit of more senior lawyers, of three senior lawyers that will deal with cases
of murder, manslaughter and infanticide. Also currently for someone who appears
before the court, someone who is accused of either of these crimes, they have a
senior lawyer and a junior lawyer both representing them. So we know that there
is a team of lawyers.
What
Legal Aid is proposing is that they will set up a special defence unit of three
senior lawyers who will be available to anyone who is accused of murder,
manslaughter or infanticide and that there will also be a junior lawyer
appointed as well. So it can be a junior lawyer from Legal Aid. I was also
informed that there would be a possibility of, instead, a junior lawyer from the
private bar, if there's a junior lawyer who would like that additional kind of
experience to work with a well-experienced senior lawyer.
There
will also be times, still, when there will be a lawyer from the private bar that
will be appointed, depending on certain circumstances, even outside someone
having to make application for an Attorney General application for a lawyer of
choice.
But,
Mr. Speaker, what we have again in terms of the perception is that I have people
calling my office saying they can't get hold of their Legal Aid lawyer because
there's a perception that their Legal Aid lawyer is too busy. Whether or not the
expectation of access to their lawyer is unreasonable or not, it's hard to say
but I do know that when we do contact Legal Aid, that Legal Aid will follow up
when we call on behalf of folks who feel that they can't get hold of their
lawyers.
Chief
Justice Beverley McLachlin has said publicly, as she tours the country, that
Legal Aid has been and continues to be, across the country, under resourced. It
is people without the private funds who count on access to Legal Aid in order to
have fair and comprehensive representation. The Minister of Justice himself
today said that Legal Aid lawyers work so hard. He sees them travelling across
the province with banker boxes. They work long, hard hours. They're extremely
busy lawyers. Their caseloads are beyond belief, he said, at times. The number
of files they juggle is really high. We know that, and we've heard that from the
director of Legal Aid himself.
So
that's a concern. Whether or not they're not able to fully represent and
comprehensively represent people in these very complex cases, that's a question
that needs to be answered, because again we know how under resourced our Legal
Aid has been. We also know that – Mr. Summers has told – there has been a 20 per
cent increase in Legal Aid applications. So that's 20 per cent more people in
the province who are applying to Legal Aid for representation in the past year.
It's in different parts of the province. Now, this could be because of people
coming back from Saskatchewan and Alberta. So it becomes a strain on the system.
So we know that our legal aid system is strained.
Chief
Justice Green also said, in the Pardy case, that he believes that the issue of
confidence in the lawyer who's representing you in these cases is very
important. So he supported the issue of choice of counsel if you are accused of
murder, manslaughter or infanticide. So that's an issue to look at.
Mr.
Speaker, I believe that Legal Aid lawyers are experienced and have the necessary
education and legal experience to be able to represent folks who have been
accused of murder, manslaughter or infanticide. I believe the private bar has
the experience and the education to be able to do so.
But
what I am concerned about and what my caucus is concerned about is whether or
not the resources that are needed by Legal Aid in order to fully represent these
particular accused members of our society, whether Legal Aid will be given
resources that it actually needs in order to do this project properly so that it
doesn't fall off the rails. We have seen the budget for Legal Aid shrink over
the last few budgets.
Is
there a possibility of phasing this in? The other issue that we are dealing with
is the issue of perception, the perception out there that Legal Aid is too busy
or the perception about the qualification of our Legal Aid Lawyers. So there is
a lot of work to be done in terms of looking at those perceptions and how to
counteract those perceptions. That just doesn't happen overnight. Will
government agree to phase this in and in the meantime do a campaign that helps
build the profile and the confidence of the people of this province in our
excellent legal aid system?
These
are important issues. We know that Attorney General applications – for people to
be able to go to the Attorney General to ask for representation by a private
member of the bar – are still possible. We also know for those who are already
in the process of their trial and they have a choice of counsel, a lawyer from
the private bar, it will continue until their case is wrapped up.
We also
know that there will be exceptions, that the director of Legal Aid has some
discretionary powers. He has assured us he will at times allow for choice of
counsel under certain circumstances, which means that an accused would not have
to go to the Attorney General. He also said if an accused person has a history
with a certain lawyer, then the director of Legal Aid can issue a certificate.
He also
said that we are reasonable – this is Mr. Summers – always looking for best
representation. I believe that, Mr. Speaker. I believe the administration and
the staff at Legal Aid are always looking for best representation for people
but, again, my confidence is shaky in the government providing adequate
resources. Not just resources where people can just hang on, where Legal Aid can
just keep its head above water.
These
are very serious issues. They're very complex issues. We need assurance from
government that they will fully resource Legal Aid. We've already lost the
family resource section of Legal Aid because of budgetary considerations. What
else will we lose?
We have
been warned that there was a 20 per cent application in those who are looking
for legal aid in the past year. We also know that Legal Aid has had to turn down
people that they may have taken in other situations had they not experienced
budgetary cuts.
These
are valid points. I believe they are valid points made by groups on the opposite
ends of the spectrum. They are valid points that need to be addressed and we
understand – all of us in this House – the need to save money. We believe that
with correct supports and investments Legal Aid could do this work, but it
cannot be just enough money to keep their head above water.
We also
do not believe or have confidence that government has a proper plan in place to
implement such a change. Again, it is not a simple change. It's about perception
and it's about the actuality. People may feel that in fact a right has been
taken away from them, that this is simply a budgetary cut. Because issues are so
complex, so tangly, so serious, the issues of manslaughter, murder and
infanticide, we cannot err on the issue of perception.
Government has to have a plan in place to address this; otherwise, we will
constantly hear people banging on the doors saying that they did not have
access, the same access to justice that people who are poor, who are
economically poor, do not have the same access to justice as somebody who has
money. We, as a society, cannot tolerate that. We have to ensure that is not
what's going to happen.
We have
to make sure that the resources required to make sure this doesn't go off the
rails is in place. Also, at the end of the day, are we really saving money or
will be have appeals based on perception?
The
other issue because this is so complex, because it is so tangly, government
should have done stakeholder consultation on this matter to try and identify a
proper course of action. I am not convinced, because the lawyers from the public
bar that I have spoken with did not know that this was being introduced. This
was new to them. Why wasn't proper stakeholder consultation done? Again, because
this is so serious – and who knows what may have come up if proper consultation
with stakeholders would have been done, consultation with the expertise and the
private bar who have been doing this defence for years.
There
are a handful of private bar lawyers who have been doing choice of counsel
representation. Why were they not consulted? This is a reasonable discussion
that could have happened, Mr. Speaker, and a way forward may have been found
that may have been a phase in, for instance, so that we could deal with some of
these issues.
This is
about building a solid confidence. We know how important it is for our society,
for our communities, for our people to have solid confidence in our justice
system. That's what stakeholder consultation would have done, ensured that there
is solid confidence in our justice system, because these are such tangly, such
serious, such complex matters.
Mr.
Speaker, I rest my case. It is my hope that government will look at the whole
issue of perception. If people feel that only people with money have access to
real, full representation and a lawyer who has adequate time to represent them,
I would think that government has to deal with those issues. Government has to
ensure that the resources are there so that we have a strong, healthy, thriving
Legal Aid system where the people who have dedicated their lives to the legal
justice system of the province have the resources they need in order to continue
to do the very important work that they do, not on their backs but in a fair and
just manner to the workers in the system and also to the people who have been
accused.
Thank
you very much, Mr. Speaker.
MR. SPEAKER:
The hon. the Member for
Mount Pearl - Southlands.
MR. LANE:
Thank you, Mr. Speaker.
I'll
take a couple of minutes, I guess, to give my perspective on Bill 34, An Act to
Amend the Legal Aid Act.
First
of all, Mr. Speaker, I want to say that listening to my colleague here from St.
John's Centre, I totally agree with her from the perspective that legal aid has
to be properly funded and so on and have the appropriate resources. I agree that
legal aid is something that could impact anybody.
I know
there's a perception out there that there are members of the general public –
I've talked to people in the past who have taken umbrage with the fact that some
people could just get a lawyer of their choosing, and particularly some of the
individuals and high-profile cases, individuals who may be repeat offenders and
in and out of the system all the time – and there are people in the general
public that take offence to that.
I think
it's important for us all to realize that anybody – it's not just someone with a
criminal record that's three or four pages long that could potentially face a
serious charge of murder or manslaughter, it could happen to anybody. Anybody
could, under the right circumstances, whether there's alcohol involved, whether
it be in a heated discussion – I mean manslaughter is basically an accident.
Somebody dies as a result of an accident, so to speak. There may have been some
aggression but it wasn't a case of first or second degree murder, someone
planning on murdering somebody.
These
things could potentially happen to, what I will term as, your average
law-abiding citizen. Somebody could be accused of something who was totally
innocent, someone who is normally considered a law-abiding citizen. When we look
at legal aid, it is important that we ensure it's done properly, that people
have fair representation and the resources are put in place for everybody,
because it could be anybody who may need to use it.
It's
important to make that point. This is not just about the guy you see doing the
perp walk on NTV who's covered in tattoos or whatever and has a record a mile
long. That's not what it's about. Those individuals could be involved, but it
could impact anybody.
When we
look at the justice system, the legal system in general, I think it's always
important to bear in mind a lot of times we hear about people getting off on
technicalities and stuff, on different things and we say: My goodness, how could
that happen? Why are there so many appeals? The thing we have to bear in mind is
that's put there for a reason, to protect us all. Whether we have a history of
criminal activity or we don't, it could impact us tomorrow. We could be falsely
accused of something. If God forbid that ever happened, we would all want to
make sure that we receive justice, that we were treated fairly, that all
provisions of the Criminal Code
were followed and that we had proper legal representation.
While legal aid is tied to income, again, we can't get
caught up in the idea of only certain people would be availing of legal aid.
There are lots of people, plenty of people that meet the means test, if you
will, for legal aid that are good law-abiding citizens and they could have to
use it. It's important that everybody be treated fairly by the system. That's an
important point.
Where I to take, not exception, to what the Member for St.
John's Centre is saying, I agree
with a lot of what she's
saying. I think the point, though, that we need to get back to here is while
it's a good opportunity in speaking to this bill, I suppose to talk about those
general principles and so on, that's really not what this bill is about. This
bill really has nothing to do with resources and whether or not we have
appropriate resources. That's a budgetary issue.
If we
don't have appropriate resources then obviously the minister, through the
budgetary process, should try to have additional resources, or if we're not
satisfied with the resources when budget time comes around we can certainly
speak to the resource issue and encourage government to put in appropriate
resources. That's not what this bill is about. This bill is simply about the
right of an accused, someone who has been charged with murder, manslaughter or
infanticide to select a private lawyer versus a Legal Aid lawyer. That's what
this bill is about.
Now, if
I for one second thought, and I know there's a perception, it's been talked
about already. There's a perception out there by many people in the general
public, I'd say most people in the general public to be honest with you, that
somehow legal aid is a lesser – the lawyers and the system is less than what you
would receive should you go to a private lawyer, particularly one of the
high-profile, I'll call them, celebrity lawyers, for lack of a better term.
They're
known in the public. They're the ones whenever you see the big cases on TV and
so on, murder cases, high-profile cases. We all know who they are. We don't need
to name them, but there are probably three or four, in particular, individuals
who are lawyers that people consider that somehow they know more than the other
lawyers. I'm not saying they don't. I mean they're all great lawyers. I'm not in
any way comparing them. I don't know how they stack up against some Legal Aid
lawyers.
In
speaking with Mr. Summers, who I had the opportunity about a year ago – not when
this bill came forward. About a year ago I had the opportunity to go down and
meet with Mr. Summers down to Legal Aid. We had a great chat about the Legal Aid
system, how it works and so on, because I had that perception myself to a
certain degree. I didn't exactly understand how it works, but as the minister
and others have said, the lawyers down at Legal Aid are just that. They're
lawyers and they're trained. They have all the credentials the same as a private
lawyer would have. A lot of them have been there for a long time. It's not a
case of I'm going to go to Legal Aid until I get a better job. No, no, that's
not the case at all.
There
are lawyers who've been there for a long period of time practicing, and they're
very experienced and they're very professional. They do a great job and they
represent people well.
If I
thought for one moment that the intent here was to somehow take away the rights
of an individual to have competent counsel, then I would not support it, if I
thought that's what this was about. But I believe, in speaking to Mr. Summers
and looking into it, and listening to the minister and others and certainly
looking at how it works in other provinces as well – it's not just
Newfoundland and Labrador. As a matter of fact, we're the only province I think
– and there's some exception, there's some difference in Quebec, I'm not sure
exactly, but it's a different system in Quebec, to some degree.
Beyond that, we're the only province that allows an accused
to select a lawyer of their choice versus the Legal Aid lawyer. I am really not
sure why we ever changed that to begin with. I think it probably did more harm
than good in the sense that it only added, as the minister said, to the
perception that somehow Legal Aid lawyers were not as good as private lawyers.
Because if not, why would you even do it.
I think it makes sense to do this. Is it going to save the
taxpayers some money? Yes, it is, I believe. And that's not a bad thing either.
We have to be mindful of that. Now, if we were going to sacrifice someone's
rights to save a few dollars, again I wouldn't support it. But that's not the
case.
I think the important thing to note here, a couple of
things, is that first of all if somebody already has a private lawyer, and they
had the certificate that you're given to get a private lawyer, if you already
had a private lawyer, you can continue to retain that individual. So if they're
in the middle of a case, we're not going to just whip it out from under their
feet and say here, he's gone or she's gone, and here you go, you got him or her.
That's not going to happen. They're going to get to keep that lawyer to see the
case through and do appeals and whatever the case might be.
Also, important to note, just because this particular
ability to choose a lawyer is going to be removed, that's not to say that
private lawyers will never be used by Legal Aid, because they very well may. It
may be a case of Legal Aid is looking for someone that has some specific
expertise in a particular area. There may be some perceived or real conflict
with utilizing Legal Aid in a particular case. And speaking to the issue of
resources, there may be a case where there are cases backed up and so and there
are not enough resources on staff at Legal Aid and, therefore, Legal Aid would
still have to contract out services to private lawyers to get through that. We
know since the Jordan ruling, for these type of cases, timeliness of getting the
cases through and so on is a real issue. So sometimes there are probably going
to be cases where private lawyers will still be used by Legal Aid for any of the
reasons that I already mentioned.
With
that said, Mr. Speaker, I think the bill makes sense. It's not going to take
away, in any way, from the rights of the individual to be well represented, to
be fairly represented. I don't think it's going to back anything up or slow
anything down, per se. If there is a resource is, there's a resource issue.
Whether we have this provision or not, there could still be a resource issue.
How Legal Aid responds to that resource issue and how the minister responds to
the resource issue if Legal Aid should come to him at some point and say we
don't have enough resources, that's not going to change one way or the other
based on this particular change. It has nothing to do with it. That is simply a
resource issue, possibly a budgetary issue, and that will have to be dealt with
in another way.
As I
said, the bill makes sense. I don't see it in any way doing any harm to anybody.
It's going to save the taxpayers a few dollars, perhaps, that's always a good
thing and I will be supporting the bill.
Thank
you, Mr. Speaker.
MR. SPEAKER:
The hon. the Member for St.
John's East - Quidi Vidi.
MS. MICHAEL:
Thank you very much, Mr.
Speaker.
I am
happy to have the opportunity to stand and speak to this bill. It's an important
bill and one that, along with my colleague for St. John's Centre, I have studied
carefully and looked at both sides of the issue. The bill itself which deals
with amending the Legal Aid Act to
repeal the provisions which allow an applicant for legal aid who is charged with
murder, manslaughter or infanticide to select a solicitor in private practice.
Mr.
Speaker, the issues for me have to do with questioning the reason why the bill
is being brought in at this point in time. As I've studied these situations, as
I've studied the bill, as I've studied the issues that have come up around the
bill, I can see the two sides of the argument because there are two sides to the
argument of not having this provision and having the provision. We've heard the
arguments with regard to the fact that we're the only province and jurisdiction
in the country that has it the way that we have it. We've heard several
arguments around that.
We've
heard arguments with regard to the qualifications and the expertise of lawyers
inside of Legal Aid and I absolutely believe that – I know a number of lawyers
in Legal Aid. These are not people who aren't full lawyers; they are. As has
been indicated by some of my colleagues in the House, there are perceptions
around Legal Aid which you just wonder where they come from.
The
issue with lawyers inside of Legal Aid is that they are absolutely overworked
because there are not enough resources. Sometimes when we have calls from
constituents upset because they aren't getting calls back et cetera, it's not
because the Legal Aid lawyer doesn't know what he or she is doing, it's because
they are so overworked that they may not have the time to get back in as timely
a fashion as the client expects to happen. The issues around Legal Aid are not
the qualifications of the lawyers. That's for certain, and that I absolutely
believe.
What
concerns me with regard to the bill is that there's been – I'm not aware of it
because if it happened we would have gotten it in the briefing, I think. But no
analysis has been done, as far as I can see, of the program as we have it now
where people who are qualified for legal aid can choose a lawyer in the private
sector. We haven't had an analysis of how that worked over the last 10 years,
the benefits or are there negative sides. The only analysis we have is the
financial one, the argument that approximately $3 million of the $18 million
budget of Legal aid is going towards allowing for this.
That
concerns me that that's the only argument that we've heard from government. I
would have liked to have seen an analysis done of the program as it exists, an
analysis from all perspectives, not just from a financial perspective. So I'm
really concerned about this legislation coming in quickly without that analysis.
That analysis could have included, as my colleague for St. John's Centre has
said, speaking with stakeholders on all sides, doing statistical examination,
presenting statistical facts to us with regard to the program as it exists, not
just statistics of how much the money costs.
If an
analysis showed that in actual fact – whether it exists elsewhere or not – it's
working in this province, if an analysis showed that, then it wouldn't be on the
shoulders of Legal Aid to come up with the money. Government should put extra
money in to pay for the program. We don't have an analysis of it, and that's
what bothers me, Mr. Speaker.
All we
have is $3 million is going towards it out of Legal Aid and it being done more
cheaply. The thing is we don't have an analysis of the figure showing it will be
cheaper as well. There have been some lawyers in the private sector who have
spoken out who have pointed out that – and they've given an analysis of why it
might happen – it could end up being more expensive.
It's
very problematic from that perspective. I'm not saying it's problematic from the
perspective of taking away choice or saying they're not going to get as good a
treatment or the expertise they get outside of Legal Aid if clients of Legal Aid
now who are charged with murder, manslaughter or infanticide now will be using
Legal Aid.
I
understand the office that will be set up here in St. John's; I understand there
will be allowance made for some use of private lawyers in that setting. I
understand all that, but we don't know if it was necessary to do this, and if a
full analysis had been done, in actual fact, was the system working.
From
that perspective, I'm not ready to vote on the legislation. There could be a
time, if I had more information. If I knew exactly how government was really
going to support this, I might vote for it. Right now, I can't see voting for it
because of the fact that it just seems to be a way to save money without even
the proof that it's going to save money, Mr. Speaker.
It
concerns me without a plan – government seems to be repeating the kind of thing
that's happening with cannabis for example. There, again, no plan in place.
We've raised that here in the House, no plan in place.
We
don't know if government is going to make any money from cannabis. We know who
is going to make money from the cannabis sales in this province, the production
and sales, but we don't know how much government is going to make. We have no
idea.
As a
matter of fact, the different analyses that are being done around the country is
the one who is least going to make money, both on a federal level and a
provincial level, is going to be governments. It's going to be those who produce
it who are going to be really making the money. It won't even be the retailers
who are going to make it.
This is
what has concerned me about the government. Is this going to be something else?
Is this removing the provision for Legal Aid clients to be able to use private
lawyers? Is this going to go the same route?
No plan
in place, no analysis of how the system is working at the moment, and not seeing
any need to put any more money in to Legal Aid to deal with this. All of this is
problematic. Where's the analysis that shows the $3 million that is now going
out to the private lawyers, to the private sector, that that's going to remain
at $3 million as this moves inside of Legal Aid? We don't know.
So I'm
not against the principle of what the government is trying to do with this
legislation. I'm against the fact they're bringing it in without a full
analysis, without a full detailed plan that shows us it is their responsibility
to make it work. It's not the responsibility of Legal Aid to say, okay,
government has done this now, so we have to make sure we don't spend any extra
money.
They
shouldn't have to wait. Government is the one who is responsible for doing this.
There should have been an analysis to show, will what is in the budget now for
Legal Aid meet the need with the change in the way things are happening. What
was it like 10 years ago before the change happened, before that provision was
brought in? No analysis whatsoever.
So
without all of that, Mr. Speaker, while I do not speak against the principle of
this legislation I wouldn't be able to vote for it at this time.
Thank
you very much.
MR. SPEAKER:
If the hon. the minister
speaks now, he will close the debate.
The
hon. the Minister of Justice and Public Safety.
MR. A. PARSONS:
Thank you, Mr. Speaker.
Thank
you to my colleagues for their commentary on this particular piece of
legislation and their thoughts. From what I can gather, I know the Official
Opposition stood up and spoke about this. I appreciate their comments.
I know
the Leader of the Official Opposition is looking forward to the Committee stage.
He's indicated he has some questions to ask and I'll certainly do what I can to
answer them.
The
Member for Mount Pearl - Southlands stood up and indicated his support for the
bill, which I appreciate. I like the fact that he laid out, if you had done
this, we wouldn't be supporting it, but from what I can tell this is where it's
going.
The
Third Party, the NDP, has indicated they will not be supporting. What I want to
do, and I'll have plenty of time in Committee, I want to talk about some of the
factual inaccuracies in what they just said. I have to point that out. I think
that's important, because that's what it is.
AN HON. MEMBER:
(Inaudible.)
MR. A. PARSONS:
And not the last Member who
spoke, the first one; the first one, St. John's Centre. The Member for St.
John's Centre said there's been a trimming of the Legal Aid budget over the last
few years. That is not true. That's not correct.
I would
suggest that if we're going to have a debate, let's do it on actual facts. The
one that was suggested – and do you know where I got that information? From
Legal Aid, so Legal Aid has said that to me. I would note Legal Aid was at the
briefing and was free to answer any questions.
The
other thing, I think it was brought up about cases being overturned. I would
note – and this is not so much of an inaccuracy but just pointing out – Legal
Aid lawyers weren't involved in those cases. Let's keep that in mind.
What
else was there? The stats that were referenced by the Member for St. John's
Centre as going up, those are wrong. That's the year before. The stats last
year, they're going down. We have to get the facts right if we're going to have
a proper debate. The Member talks about perception. She is perpetuating the
perception that this amendment is trying to get rid of.
We
talked about consultation. I actually spoke to one member of the private bar. He
had a similar suggestion to what the NDP did, which is if you want to fix it,
give us more money. I would suggest, Mr. Speaker, that's not a fix. That is not
a fix. How does more money fix the existing perception that Legal Aid lawyers
aren't up to snuff or aren't equal to their colleagues at the private bar
because that's false.
I would
note, and I have to say this for the record. I didn't say a word while they
spoke. Already, we talk about decorum in the House; I can hear them asking their
questions while I'm speaking. What I say to the Members opposite is: We're going
to have Committee, ask away, but, right now, it's my turn to speak. I'm going to
keep speaking.
Thank
you.
SOME HON. MEMBERS:
Hear, hear!
MR. A. PARSONS:
The other thing I would
point out here is they talk about there was no analysis done. There was no
review, why are they doing it now? I referenced this earlier; I'm going to
reference it again. In 2013, John Roil QC did a province-wide external review of
Legal Aid in this province which was actually commissioned by the previous
administration. It's right here.
This is
one of the pieces of analysis that we looked at. I'm going to quote from Mr.
Roil's report which I would imagine – I know Mr. Roil, I've dealt with him
before. He's done work for administrations, for private companies. He's got a
tremendous reputation.
On page
73, here are some of the things where he specifically talks about the Choice of
Counsel Mandate. He talks about the fact that why are these the only three
offences: murder, manslaughter and infanticide? Why are these the only three
that are covered off? Why not dangerous offender applications, which can carry
with them a significant higher penalty?
There
are many serious provisions contained within Canada's
Criminal Code. Why other offences or
applications with serious consequences are not included is a matter that must be
left to some speculation.
The
right to choice of counsel, which was introduced as an amendment, is perhaps a
recognition that some serious charges bring with them additional rights.
Otherwise, it cannot be rationalized. This is again Mr. Roil. It's not us; this
is Mr. Roil.
“As has
already been noted, legal aid staff solicitors have significant amounts of
experience in handling serious crime defenses…. This 'choice of counsel mandate'
in the Act may even be unwittingly
supporting the ill-conceived notion that legal aid lawyers are not 'real
lawyers', an issue dealt with earlier in this Report.” So he mentions it
specifically.
The NDP
are saying this is all about money. Why hasn't it been done before? Well, I'll
tell you why. It was brought in in 2008. John Roil did a report for the previous
administration in 2013. We got in government December of 2015 and, now, we are
ready to move this forward because we've spent the last two years looking at the
different pieces of information that come to us: Legal Aid's budgets, working
with Legal Aid – who I would note are extremely happy to see this and have told
us that they will ensure that everybody – they don't need new resources to cover
this off. The 400K that's allotted will continue to be used and they're going
to, in fact, comprise a serious crime unit made up of senior solicitors that
will handle this.
Now,
going back, this is not just about savings. I don't want to just see this money
get saved and thrown into the Treasury and leave Legal Aid out hanging in the
wind; I want to continue to work with Legal Aid to help them be even better than
what they are now. They're excellent. I've said that I'll continue working with
them. I've said that we know they have challenges. There are challenges felt
everywhere, Mr. Speaker. There are challenges felt in the education system.
There are challenges felt in the health care system, and there are challenges in
the justice system. These aren't challenges that just exist now.
Chief
Justice Green was mentioned earlier. I sat down with Chief Justice Green who
showed me writings from the 1890s talking about the challenges in the justice
system here in this province, talking about the courthouse, how we needed a new
one. That still exists. We know that those challenges are there. Chief Justice
McLachlin stood up; I agree with her. I'd like to continue to do more and we'll
continue to do this, but this provision – the Members opposite talk about the
effect on Legal Aid. Legal Aid wants this. I want to work with Legal Aid to make
this happen, and we've taken the time over the last two years to look into this.
I know
who's not going to be happy: private solicitors; that's who are not going to be
happy, I know that. I know they're not going to be happy; that's fine. And we're
not taking away anybody's right to a defence; they're still going to get one
that's paid for by taxpayers. They're still going to get it. It's not just a
defence; it's the best possible representation you can get. We talk about the
Pardy case; the Pardy case is referenced here where in that case it didn't come
down to the Legal Aid lawyer. This individual wanted his lawyer. He wanted his
lawyer. There was a roster of lawyers presented, nope, can't work with them –
can't work with them. And in that case it was ruled against, because they saw
through it and saw it for what it was.
So, Mr.
Speaker, I've got a whole number of other points here that I want to reference.
Again, Legal Aid talking about that they can handle any of these new murders
with the resources. If they have a challenge, I'll work with them. I'll work
with them to make sure this happens. This change is to prevent people from
having an uncontrolled right to private counsel – their choice of counsel – at
taxpayer expense with no controls whatsoever to Legal Aid or to the taxpayer. If
it's an issue, apparently it's not felt by every other province, except Quebec,
who 53 per cent of their work goes to private counsel.
Every
other province, if they had it, they got rid of it. And there's a reason they
got rid of it, because you can't control it. You can't control the number of
murders happening. We can't control that. Right now, we've seen that number
spike. I'd like to see it decrease, but that wouldn't be just the driving factor
here.
It's
not just about the money, as the NDP would like you to believe. They say there
was no analysis; I've pointed out the analysis. This is about the perception.
They keep talking about perception. Well, the fact that they're going to vote
against this means that they continue to perpetuate the perception that Legal
Aid aren't up to snuff. I'm getting rid of that. I'd like to work to get rid of
that, because they can do these cases.
So, Mr.
Speaker, on that note, I'm going to sit, and I'll be happy during Committee to
answer any of the questions and to make sure that we get the actual, accurate
facts out on this. I look forward to support from the other side.
Thank
you.
MR. SPEAKER:
Is the House ready for the
question?
The
motion is that Bill 34 be now read a second time.
Is it
the pleasure of the House to adopt the motion?
All
those in favour, 'aye.'
SOME HON. MEMBERS:
Aye.
MR. SPEAKER:
All those against, 'nay.'
This
motion is carried.
CLERK:
A bill, An Act To Amend The Legal Aid Act. (Bill 34)
MR. SPEAKER:
This bill has now been read
a second time.
When
shall the bill be referred to a Committee of the Whole House?
MR. A. PARSONS:
Now.
MR. SPEAKER:
Now.
On
motion, a bill, “An Act To Amend The Legal Aid Act,” read a second time, ordered
referred to a Committee of the Whole House presently, by leave. (Bill 34)
MR. SPEAKER:
The hon. the Government
House Leader.
MR. A. PARSONS:
Mr. Speaker, I move,
seconded by the Minister of Education and Early Childhood Development, that the
House resolve itself into a Committee of the Whole to consider Bill 34.
MR. SPEAKER:
It is moved and seconded
that I do now leave the Chair for the House to resolve itself into a Committee
of the Whole to consider the said bill.
Is it
the pleasure of the House to adopt the motion?
All
those in favour, 'aye.'
SOME HON. MEMBERS:
Aye.
MR. SPEAKER:
All those against, 'nay.'
This
motion is carried.
On
motion, that the House resolve itself into a Committee of the Whole, the Speaker
left the Chair.
Committee of the Whole
CHAIR (Warr):
Order, please!
We are
now considering Bill 34, An Act To Amend The Legal Aid Act.
A bill,
“An Act To Amend The Legal Aid Act.” (Bill 34)
CLERK:
Clause 1.
CHAIR:
Shall clause 1 carry?
The
Chair recognizes the hon. the Member for
Topsail - Paradise.
MR. P. DAVIS:
Thank you, Mr. Chair.
As the minister referenced in second reading just a few moments ago, I have just
a few points and questions I'd like to put to the minister. The minister
referenced – I think the number he used is $1.338 million last year in choice
for counsel. I think in the first year, in 2008, it was around $400,000 was the
actual budget. So we know from 2008 to this past year, there was a significant
increase.
Minister, I think you referenced $1.338 million, but is that what you anticipate
the actual savings are going to be? What will happen with that $1.338 million?
Is that just going to be a significant savings or is it going to be
redistributed through the system in some way to (inaudible).
CHAIR:
The hon. the Minister of Justice and Public Safety.
MR. A. PARSONS:
Yes, thank you, Mr. Chair.
I appreciate the question. Right now, yes, the $1.338 million is the amount
that's actually been expended since 2010-11 on choice of counsel. As it stands,
we have a future liability of $1.395 million. That's in the cases that are
currently booked, the certificates are done.
We also know we've been investing since 2008, $400,000. Again, that's something
that's up for debate about what you do with the savings. Does it all go back in
the Treasury? Does it all go back into Legal Aid? That's a debate that has to
happen internally.
I'd
like to be able to invest more in Legal Aid. In a lot of cases it depends on
what comes up. I'd like to see the number of cases of these types of nature go
down; but, right now as it stands, we know Legal Aid has been basically getting
by with the amount of monies that is there. So that's a discussion that will
happen.
The
other thing is the money they're currently receiving, the $400,000, they've
indicated it will cover the murders that are there. What they're going to do is
basically create a new unit to handle that. If something else arises we'll deal
with it and discuss it and figure out where we want to go with it.
CHAIR:
The hon. the Member for
Topsail - Paradise.
MR. P. DAVIS:
Thank you, Mr. Chair.
I take
it, Minister, when you say the new unit, you're referring to the senior lawyer
counsel office – I think is the way it was referred to in the briefing.
Can you
give us some more details on the senior lawyer counsel office, how that will
operate? Will it be staffed from within existing resources within Legal Aid, or
do you see that as a new entity being established and then being resourced
separate from or up from what currently exists?
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
Yes, thank you.
From my
understanding, and I would be happy to suggest that – I believe Legal Aid was
present at the briefing, and I'm happy to do my best to help accommodate if
there are questions specifically for them. Again, Legal Aid makes their
operational decisions. It's not a ministerial mandate.
What I
have been told is the new defence unit will have three senior lawyers who will
coordinate the involvement of any other Legal Aid lawyer that's needed to handle
the case. They also handle the training and mentorship that goes with it.
Whether that requires in house counsel right now that they already have, or the
requirement to go out and hire new people, I'm actually quite not sure. What
they say is the $400,000 will cover what's currently on the books.
I'm
happy to refer anybody to Mr. Summers and the rest of the Legal Aid to have this
discussion, but this is the plan that's been indicated to me.
CHAIR:
The hon. the Member for
Topsail - Paradise.
MR. P. DAVIS:
Thank you.
Minister, I'm just trying to understand; if we're going to change this
legislation then the process that currently exists for a person making a request
in these very, what quite often are very high-profile cases, very serious cases
and, obviously, the most complex cases. If this is to be eliminated, if the bill
passes and eliminates it, what will happen then the very next day? If the senior
lawyer counsel office hasn't been established, what will happen the very next
day in the case of a person who finds themselves charged with one of these very
serious offences and wants to find an alternative to legal aid representation?
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
Yes, thank you.
Anybody
that's charged can apply to Legal Aid to see if they qualify. Again, I would
point out that if you're paying your own bill then you're free to go wherever
you want. In this case, you're going to make the application for Legal Aid. This
is something that's been contemplated for some time. It's not like we just threw
this bill on the table and there it is. We've been working with Legal Aid to see
this advance for some time. They're prepared for the possibility.
As it
stands, if somebody comes in now there are a number of counsel within Legal Aid.
It's not just one, in most cases it's two as recommended by Lamer. There are
going to be various counsels that will be assigned, depending on the caseload,
depending on the location, the facts, circumstances. These are all duties and
questions that will be put to the provincial director who makes these
assignments and handles that.
What I
can say is I have every confidence that if somebody were charged tomorrow with
one of these offences or any offence, they will have excellent representation
when it comes to Legal Aid, all at the taxpayers' expense.
Thank
you.
CHAIR:
The hon. the Member for
Topsail - Paradise.
MR. P. DAVIS:
Thank you, Mr. Chair.
My recollection or understanding is that prior to this existing back in 2008, a
person could make an application through the Attorney General to seek a private
lawyer to represent them in cases such as these. Will that be a primary default
position for a person who is seeking a private lawyer? Is that the process we
followed?
CHAIR:
The hon. the Minister of Justice and Public Safety.
MR. A. PARSONS:
Yes, that's correct. That's still open.
In the past, people would make an application to the AG, the Attorney General,
for funding. It would go to court and they would make a decision. In many cases
they did not rule in their favour, but that's still open.
If somebody still feels they can't form a solicitor-client relationship, that
the counsel is not – they just can't form that relationship or don't want that
counsel, they still have every right to make that application to a court and to
have the AG select AG fund to counsel. We'll see how that goes and we'll deal
with it. In this case, we're removing the statutory right to automatically
happen.
CHAIR:
The hon. the Member for Topsail - Paradise.
MR. P. DAVIS:
Thank you, Mr. Chair.
My purpose for questions this afternoon, for much of it, is to clearly
understand what process will be in place once the bill is changed.
Do you have any understanding or recollection of – my understanding is back in
2008, during the debate, and the minister of the day, who was Jerome Kennedy, he
was minister of the day. If I remember correctly, he made some commentary about
the length of time it was taking for a process, that there was a delay in
process. We know we have Jordan now in place, which was nowhere in consideration
back in 2008, but we know we have a Jordan ruling in place now which puts time
limitations.
Do you anticipate that the approval or the application process through the
Attorney General could in any way impact Jordan? Of course, I would think then
that an appeal process would go to the Supreme Court, if I understand correctly.
How would that impact Jordan at all?
CHAIR:
The hon. the Minister of Justice and Public Safety.
MR. A. PARSONS:
Certainly, the Member makes a very good point.
In
2008, when this was brought in, the Jordan case was not something that was on
the radar. It's not something we had to deal with. Now we know we have the hard
and fast caps that are put in place.
What I
would suggest is that every decision we make within the department and
everywhere else within Justice, whether it's private counsel, you name it, has
Jordan in mind when it comes to these criminal matters. What I would suggest is
that we keep this in mind – excuse me, I'm just going to refer to my notes for a
second, Mr. Chair.
What I
would suggest, as it relates to the Jordan case, we have every assurance that
the court matters will not be delayed. This is something we keep in mind. There
were issues back in the court process then. We still have them now, but the
problem is we have that hard and fast rule that we have to deal with.
Again,
from what I've been told by Legal Aid, this will not affect the process. In many
cases the delay is not just when it comes to this assignment of staff and
solicitors. In many cases the delay can come from a whole number of fronts. It
can be defence induced by private counsel, it can be Crown induced, you name it.
It can come from all over the place but it's something that guides us, and Legal
Aid will certainly be aware of that.
CHAIR:
The hon. the Member for
Topsail - Paradise.
MR. P. DAVIS:
Thank you, Mr. Chair.
Again,
thank you, Minister.
Also, back in 2008, I know you referenced there's no other jurisdiction that has
this, but during debate the minister, Mr. Kennedy at the time, made commentary
in – when I had a review of Hansard
of what was said back then and how it was presented, he said: “Mr. Speaker,
Saskatchewan, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador
were the provinces where there was no counsel of choice provision. However, Nova
Scotia and Prince Edward Island, by way of policy, allowed counsel from the
private bar to represent eligible legal aid clients at $85 an hour. The
Provinces of British Columbia, Alberta, Manitoba and Ontario all rely upon mixed
model to deliver legal aid services. Therefore, counsel of choice is not an
issue. In Nunavut and the Northwest Territories, resident lawyers are relied
upon in the delivery of legal aid services.”
So
there's a variety of models around the country. When this was brought in, in
2008, there was a tariff established – and I believe the minister referenced
that earlier – $135, I think, is the top rate currently for lawyers.
If
we do away with the current choice of counsel provisions in the current
legislation, am I to think the tariff will be gone as well, or will that tariff
remain in place? If a person applies to the AG to say, I can't develop that
relationship with a lawyer, I'd like to have this particular lawyer represent
me. Will that then be fixed at the – well, if it's a lawyer with 10 years plus,
$135 rate, or will it be another rate or a negotiation to decide that?
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
Thank you.
The
Member references the tariff which did come about – we had a debate a couple of
years ago on that where the rate raised from, I believe, $60 to $135. My
understanding is that the tariff will still stay the same.
One of
the big things that we note is that private counsel is costing about 50 per cent
more in some cases. What I'm being told is that average in-house counsel staff
solicitor, even senior, can do these cases for roughly $85 an hour on average is
what it works out to, as opposed to the $135 you're paying outside counsel.
What I
want to do, I also want to go back; we talked Jordan delays. What I'm being told
is that in many cases the small contingent of lawyers who are handling the
murder files may actually cause more of a delay than the fact that we have 64
lawyers in Legal Aid, the vast majority of whom can handle a file like this. So
there is just as much of a delay to be found in the fact that there are not that
many lawyers handling the murder files you see, especially – I think Member for
Mount Pearl - Southlands referenced – what you see on the news. So the delay can
be just as prevalent within private counsel as opposed to in-house or legal aid.
CHAIR:
The hon. the Member for
Topsail - Paradise.
MR. P. DAVIS:
Thank you very much, Mr.
Chair.
Minister, as well, you referenced private counsel lawyers who could be impacted
by this. I understand that.
Did you
do any consultation with private counsel lawyers in our province to discuss this
potential change? If so, what type of consultation occurred or what did you
learn from that?
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
Thank you, Mr. Chair.
I did
very little consultation with the private bar for this because I knew what the
answer was going to be. In fact, I had one conversation and the lawyer's
suggestion was: Well, you just got to put more money in it. That's what I was
told.
When
you're bringing in an amendment like this, you know what various members of the
private bar are going to say. They'll make any number of arguments, and that's
fine; but, in this case, we have a duty to do what's right for the people of the
province, including the accused. That's why we went ahead with this.
We had
the Roil report done, which was done back in 2013 by the previous
administration. I know there will be a number of people who are opposed to this,
but I would bet you, Mr. Chair, that the vast, vast majority of those are
private counsel who, again, this is something that may affect them.
There
is it. I'm putting it out there, very plain.
CHAIR:
The hon. the Member for
Topsail - Paradise.
MR. P. DAVIS:
Thank you, Mr. Chair.
The Law
Society of Newfoundland and Labrador, I think, represents all lawyers, including
those who would work within Legal Aid. There's the Canadian Bar Association.
There's also a group I learned about: the Canadian Council of Criminal Defence
Lawyers.
Did you
do any consultation with any of those groups before you considered making those
changes?
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
No, I didn't speak to the
Canadian Council of Criminal Defence Lawyers. I certainly didn't speak to them.
This is something I have mentioned to members of the CBA and members of the Law
Society, where every one of the Legal Aid lawyers also belongs to the Law
Society.
What I
would say here is that seeing the fact that this is not a constitutional issue,
nobody is going to have less representation than before, which would be an issue
to me. This is not about lesser representation.
Again,
I did have, like I said, the one contact, and I've spoken about it to many
people. We've had debates over the last two years within the department about
it. This is something that we felt was necessary in moving forward. It's going
to improve Legal Aid, it's going to improve representation for those people who
require it and it's not going to do it at the expense of anybody that requires
representation.
Thank
you.
CHAIR:
The hon. the Member for
Topsail - Paradise
MR. P. DAVIS:
Thank you again, Mr. Chair.
Thank you, Minister, as well. Minister, in our discussions about establishing a
senior lawyer counsel office and I referenced in second reading comments made by
Mr. Summers as recently as the fall of 2016, just over a year ago regarding what
he referred to – they were, at the time, experiencing a particularly large wave
is what he said.
I'm just wondering if you can give me a breakdown of staffing levels today in
Legal Aid services. And with the establishment of a senior lawyer counsel, how
are they now compared to, say, even as recently as 2016? Have staffing levels
changed? Have there been resources for more staffing? How are we going to create
that office? I know you commented on it earlier, but maybe if I can give you an
opportunity just to give us more comment on it, I'd appreciate that.
CHAIR:
The hon. the Minister of Justice and Public Safety.
MR. A. PARSONS:
Thank you, Mr. Chair.
Right now, we do have 64 lawyers. With the creation of this office, we'll
probably see some backfilling going on where there will be senior lawyers that
move into this new unit and we will need to fill those positions. I actually
can't tell you – I know that in the last two years we have not reduced Legal Aid
in any way, shape or form. I'm not sure how 2013 was for Legal Aid; I can't
recall exactly what the effect was. I do know, as was referenced earlier, there
was a spike in cases a couple of years ago. That number has gone down according
to Legal Aid.
Speaking generally about it, I've had a number of conversations with Legal Aid.
I've spoken at their AGMs, I've met with their board on multiple occasions and
we know that there are pressures. What I can say is that I know there are
pressures in Legal Aid but I have people within the judiciary, people within the
Crown, Victim Services, you name it, there are a lot of pressures there within
the justice system that we face and we try our best to deal with what we have.
What I will say is I will continue to work with Legal Aid. Legal Aid is telling
me, with this move, this will make them more efficient and better able to handle
the clientele that they have. This is something that they certainly want,
they've been advocating for and they're very supportive of this move.
CHAIR:
The hon. the Member for Topsail - Paradise.
MR. P. DAVIS:
Thank you, Mr. Chair.
Minister, a little bit earlier you referenced current liabilities of $1.395
million I think is the number, if I copied it down right, the current
liabilities for choice of counsel. How many certificates are currently underway,
and do you have any idea of how long before – maybe it's impossible for you to
say, but I was just wondering, how long do you expect before those cases may be
cleared up?
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
Thank you, Mr. Chair.
I don't
know that number offhand right now. I think it's 21 to 22 right now. How long
they're going to take, I don't know. I don't know where they are, what process
they are, if they're in the Supreme Court.
I will
tell you that the Supreme Court has a very large number of jury cases this year
compared to what they normally have. That's what we're seeing. The Supreme Court
is certainly feeling some pressure with what they have. So that's the number as
I have it right now.
How
long it will take to get past that amount, depends on the case. It's hard for me
to speculate on what it's going to take.
CHAIR:
The hon. the Member for
Topsail - Paradise.
MR. P. DAVIS:
Thank you, Mr. Chair.
This
may be my last question for the minister. This will create a change in how
services are delivered from very serious files on homicides, manslaughter and
infanticide cases. I'm glad we don't see that very often, but homicide cases,
we've seen what seems to be a daily occurrence and discussion in public media
today about cases of such matters.
The
government and Legal Aid has a responsibility to make sure these services are
provided. There are great people – as I've said in second reading and I
reiterate here now, in the 64 lawyers that they have at Legal Aid, I know many
of them would be very competent, very capable, well experienced and have their
best interests of their clients in mind.
I don't
like to talk about or push on failure too much, but, Minister, do you have a
process in place or what you anticipate would be a process to observe as things
happen just to make sure we don't get back to where we were, just as recently as
2016, when there were serious concerns expressed? I wouldn't want to see a
process go back.
What
would take place if you saw, all of a sudden, we had a run on – as Mr. Summers
talked about in the fall of 2016, he saw what was an increase in a need for
Legal Aid services. He used the words: We are experiencing a particularly large
wave. He said other things besides, but if that's the case and it happens again,
then I would think they're going to need the support from government, especially
that now the option for outside counsel is not going to be permitted as a matter
of regular court but there will be an application process.
So,
Minister, I don't know if you can comment on that. If I'm not making myself
clear, let me know, but my concern is that government has a responsibility to
make sure the services are provided. Are you going to be able to roll with the
punches if that wave continues as been seen in the past?
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
Thank you, Mr. Chair.
I'll
certainly try my best to answer that as much as I can. I may miss a few of the
points. I will go back to one thing earlier; there are actually 26 certificates
for 13 accused. That's the number right now as it stands. So my apologies; I got
the accurate information right now, which I feel a duty to put out there.
One
thing to keep in mind, the director always has the discretion to retain whatever
counsel they feel necessary to ensure that the accused have the best possible
representation. So depending on any particular set of circumstances, any
particular case, if somebody is off sick, if there's a case being held somewhere
else, they have that discretion. That director can make sure that the person
gets representation, and that can still be private outside counsel.
What
we're saying here is we're removing the automatic right to that private outside
counsel. I would say that it's a duty, an incumbent on every single lawyer in
this province, no matter who you are or what you do, if you're a member of the
Law Society, you have pretty strict standards governing you. You have to ensure
that you provide the best service possible to your client; you're not going to
provide a service that you don't feel can be up to snuff.
I can
tell you that if somebody came to me back in the day for certain offences, I
probably would have steered them on somewhere else, because who wants to take on
the responsibility of not being able to do what's best for your client. It
happens right now, in many cases, where somebody will come to you, they want
representation on a certain matter, that's not my area of expertise; I'm going
to refer you elsewhere.
In this
case, we have 64 lawyers in this province who handle criminal and family
matters, and I'm especially positive that they'll continue to be able to do
this. I'm not even worried about 2016 because there hasn't been a crisis in
justice. A crisis in justice, I'd go back to 2013 when we had the guts cut out
of it. I'd go back to 2006 and 2007 when we had the Lamer inquiry. That's what I
go back to; that's was a huge turning point in this system. That's why we went
to two Crown counsel and two defence counsel; that was one of the
recommendations.
Since
that time, look, we have financial challenges; we do the best we can. We've
handled one of the biggest cases to come out of the Supreme Court as it affects
courts: Jordan; we've handled that. I don't have the stats here but if you talk
to the director of Public Prosecutions Miss Jennifer Mercer, QC, she'll tell you
that we've handled every one of them. This is something that every jurisdiction
is grappling with – every jurisdiction.
I go up
and speak with my counterparts across the country, and I see some of the stories
that they have to go back and tell people, people that have had their cases
tossed out because of these timelines. We haven't had to deal with the same
level of difficulty, we'll say here, but I agree with the point that the Member
is making. The point is that if it got to the point where we felt there was a
challenge and Legal Aid felt there was a challenge, I can guarantee you they'll
have no difficulty coming to me or whoever is in the department and I would have
no difficulty working with them to make sure that people get the best possible
counsel here.
I think
this is a responsible move that fits every criterion. I think this is the right
thing to do. Again, we've got external counsel telling us this is a good thing
to do. We've got departments and legislation across the country saying this is
the way that we're going and we have a Legal Aid Commission here that I think is
fantastic.
The
Member's concerns are very right. They are right; we need to have that concern.
Do you know what? I share that because at the end of the day one failure in the
system is not something that any of us wants to see. It does bring down the rest
of the system.
So we
strive to do our best. I think this is a move in the right direction that will
help ensure that we have the best possible system.
Thank
you.
CHAIR:
The hon. the Member for Cape
St. Francis.
MR. K. PARSONS:
Thank you very much, Mr.
Chair.
It's
just interesting listening to the answers and the back and forth dialogue here.
I've learned a lot, actually, this afternoon.
Minister, you said that it costs 50 per cent more for private versus the legal
aid system when there are trials. Can you elaborate on the cost, why it would be
50 per cent more? Is it because of the cost per hour? Is that one of them? Or is
it the different resources that are available to Legal Aid versus the private
lawyers in the province?
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
That's a good question and
one that Legal Aid would probably be better off to tell you why. What I can tell
you is that we have a tariff rate that goes up to $135 an hour. Everybody that
works within Legal Aid is on salary. It doesn't matter how much work they do,
that's salary. So it's not like a billable hour as it is on the outside.
If you
do the math looking at $135 an hour, for 200 hours for two lawyers for each
case, plus the court time and extra time and they can get that approved, Legal
Aid can pretty accurately book what it's going to cost for one murder for two
counsel based on that rate. Then you look at the Legal Aid rate of you know what
the salary is. These numbers come directly from Legal Aid. That's why it is more
expensive the private counsel way.
The
number we have is that it used to be $60. Right now we're saying $85 an hour is
what Legal Aid works out to be and $135 is what the tariff is now since 2014-15.
CHAIR:
The hon. the Member for Cape
St. Francis.
MR. K. PARSONS:
Just another question here,
too.
When we
look at a lot of trials that are on the go right now, there are all these expert
witnesses brought in. This is just a question. I don't know, you're a lawyer,
you know more about it than I do. I'm just wondering those costs for those
experts to come in to a trial; I know that probably private would have a certain
unknown budget, what we're paying them. Is there a cost to Legal Aid for getting
the experts to come to trials like they do with the private industry?
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
Yes, there is. If you have
your own counsel that you're paying for, you can pay for whatever witness you
want. At the end of the day, it's all on you. You determine what witnesses you
can call and bring in, or your lawyer does, and they can be quite significant.
In this
case, these people who have Legal Aid that would be one of the costs that has to
be covered. The lawyers will make the decision based on who should come in, who
is necessary. In a lot of cases – and not just criminal, this could be
especially civil or anything else. Money does play a significant role in who you
bring in, but it's not inexpensive is what I would say.
CHAIR:
The hon. the Member for Cape
St. Francis.
MR. K. PARSONS:
Again, just to that point,
Minister. I think the idea of this is to make sure everybody gets the best
possible representation that they can. I don't think any legislation is brought
in for criminals to get off with anything. It's mainly to protect the innocent,
we'll say.
My
question beforehand; if you say it's $85 an hour for Legal Aid, that's basically
the cost, is that included in the experts? Is that where – it's not included in
that at all. Where would the extra funds come from if – like you see on these,
I'm just watching TV, watching TV regularly on the evening news. Especially in
the trial we just went through, there were so many experts. Every evening there
was a new expert brought in.
I'm
wondering if this would still be available for someone to get – because they
need the experts to come to be able to justify what the lawyers are trying to
say. I'm wondering where the funding would come from in order to be able to pay
for that.
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
When they bring an expert
in, it's also done on the certificate as well. My understanding is it's not just
any cost. The lawyers that take this work on do it at the Legal Aid tariff rate.
The experts would have to do it as well. Maybe it's lower than what they
normally charge.
The
other thing is at the end of the day the provincial director determines which
experts are going to come in or not. It's not free reign where people can call
in every witness they want at the taxpayers' expense. The lawyers are going to
do, and the office, the Legal Aid Commission is going to do what they have to to
ensure the best possible representation, but there also has to be a
reasonability to it.
CHAIR:
The hon. the Member for Cape
St. Francis.
MR. K. PARSONS:
This is the last question.
On Legal Aid right now, I'm sure there are lots of wants and needs as there are
in every department in government, and the justice system is no different.
When
this is passed, or if it gets passed, is there any request from Legal Aid to up
their resources in any way at all to make the cost so they are able to do what
we want them to do?
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
No, Legal Aid has indicated
they're able to handle this with the savings.
Now,
we're probably not going to see any savings right away because right now we've
got X number of certificates – 26, I think mentioned – booked for however long.
So that cost is still ongoing. That's what's actually booked right now. It's
just about $1.4 million. That's an estimate. Actually, that's probably
conservative. It could probably go higher than that.
Again,
we have to see where this goes. Going forward, if this amendment is passed, and
I'd like to say it should be passed, what we're going to see is a better ability
going forward to gauge what the costs are going to be, and then Legal Aid –
Legal Aid has always been fiscally responsible. It's not like they have an
endless pit of money where they can do what they want. They've also ensured that
they're very responsible with the funding they get, and I'm sure they're going
to continue that. With the savings that come out of it, at whatever time, that's
a discussion: what do you do with this? Where does it go, reinvestment, you name
it.
The
other thing about the legal system, the justice system, is things change
sometimes very quickly that we don't anticipate or can't anticipate. So what we
have to do is deal with these situations as they come. If you look at this,
their numbers went up. Nobody can tell you exactly why. There was some talk
earlier – and Legal Aid, I think, was sharing the sentiment that the increase
might have been the Alberta effect for people coming back. It might have been an
increase in family cases, an increase in criminal, you name it but there's no
way to say exactly whether that's the case.
If we
look at murder files, that's an anomaly. That's a spike like we've never seen.
Hopefully, we'd like to see that go down but we can't anticipate exactly. We'll
see where it goes.
Thank
you.
CHAIR:
The hon. the Member for St.
John's Centre.
MS. ROGERS:
Thank you, Mr. Chair.
Earlier
in debate, I had mentioned that the provincial director for Legal Aid had said
to me that the cases have gone up by 20 per cent and that, in fact, there is a
wait list. Then just referring back in July 20, 2017, when he spoke to media, he
spoke again about the increasing workload of Legal Aid. They actually had to
close the family and child office on July 31.
I would
ask the minister, Mr. Chair, the provincial director does believe that the
caseloads have gone up and that the strain on the workforce for Legal Aid is
significant. There is a waiting list for some cases. I'm just wondering what the
minister would have to say about how that squares with bringing these cases back
into – by eliminating choice of counsel, bringing these cases back into Legal
Aid. I know what will happen is three additional junior lawyers will be hired
and three senior lawyers will be moved to the special defence unit.
I'm
just wondering what the minister thinks about how that squares with the
increasing workload that Legal Aid seems to be under.
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
Thank you.
The
office that the Member references, the family child office, which I've had an
opportunity to speak to these people, it wasn't closed due to workload. It was
closed for a reallocation of resources. That's exactly why we're here.
We are
here to help them become more efficient with the resources so that they can
continue to provide the work. It wasn't just a caseload issue. Mr. Summers, who
I have met with on a number of cases – and we've discussed this and talked about
the caseload which did spike last year. All I'm going to say is this: If they're
worried about the caseload, why are they coming to me saying please bring this
in?
Legal
Aid wants this. I mentioned this at their AGM and got a round of applause. For a
group of people that are concerned about caseload, they have a weird way of
showing it is what I'm saying. I know I'm being a facetious.
They do
have a tremendous caseload, but this move is not something that's going to
prevent them from being able to do their job. This is about Legal Aid has X
number of dollars to do their work. This will allow them to better handle the
resources they have, be more efficient and to continue providing top-notch
service.
That's
how this squares. We're making a move that's going to allow Legal Aid to
continue to do the good job they're doing.
CHAIR:
The hon. the Member for St.
John's Centre.
MS. ROGERS:
(Inaudible) Mr. Chair.
I
really acknowledge and thank the fine folks at Legal Aid for the incredible work
they do with the resources they have and the increasing push on their resources.
The expertise they bring to all cases, I cannot stress that enough.
My
other question for the minister is earlier my colleague, the Leader of the
Official Opposition, asked the minister: Did you consult with private counsel
about this? That was a question I, too, wanted to ask. The minister answered: I
did very little consultation because I knew what their answer would be.
I would
be curious to ask the minister, in fact, what did he think their answer would be
and why. Why not do that consultation with the Newfoundland section of the
Canadian Bar Association, the Law Society of Newfoundland and Labrador and the
defence attorneys association. I'm just wondering why he didn't and what he
thinks their answers might have been.
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
Thank you, Mr. Chair.
I did
speak to the Law Society about this some time ago and mentioned what I was going
to do. They're not really an advocacy body in the sense of saying whether they
approve something or not approve something. Legal Aid belongs to the Law
Society; private counsel belongs to the Law Society.
I've
spoken to the CBA. I've mentioned this. This hasn't been a secret; I mentioned
what we were hoping to do some time ago to Legal Aid. Some of Legal Aid actually
belongs to the CBA. So it's never been an issue brought up to me.
I did
mention it to one private counsel, whose name I don't need to reference here,
and that private counsel said to me: Well, there's a solution to it: Put more
money in it.
Now, at
the end of the day, we have a responsibility here. I have no doubt there are
members of the bar who may come out and not be in agreement with the amendment
that we're bringing forward. That's fine. That's certainly their right. But
right now, we're doing what we think is the best move, is the right move, for a
number of reasons that I've laid out ad nauseam.
I would
tell these individuals the same thing. This is something that's right for the
people of the province. It's certainly right for the taxpayers. I think this has
no negative effect in any way, shape or form on individuals who avail of Legal
Aid resources.
Thank
you.
CHAIR:
The hon. the Member for St.
John's Centre.
MS. ROGERS:
Thank you very much, Mr.
Chair.
I guess
the question I had was really why not do a real consultation with stakeholders
because it may very well be the right thing to do. We have a situation where we
still will need Legal Aid counsel and also the private bar to work together.
That will be the reality of the situation. There will be some crossover. So I'm
surprised.
I would
say to the minister: Why not do a real consultation so that it can be a smoother
transition?
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
Mr. Chair, I don't know
where the Member is getting that it's not going to be a smooth transition. I
don't get that. Who said this is not going to be a smooth transition? This is
just something that's being put out by the Member without any substantiation
whatsoever.
Right
now, Legal Aid is prepared – tomorrow, if this amendment came in – to handle any
case that comes in. So to insist that there might not be a smooth transition
continues what I'm saying about the NDP, which is that they perpetuate the myth
that Legal Aid can't handle it. I don't know why.
We talk
about consultation: External Review of
Legal Aid in Newfoundland and Labrador by John F. Roil, QC. He went around
the province, and this wasn't even commissioned by our government. It was
commissioned by that crowd. I praised them for doing it.
SOME HON. MEMBERS:
Oh, oh!
CHAIR:
Order, please!
MR. A. PARSONS:
I don't know what else we're
supposed to do here. I don't know why they're not supportive of Legal Aid. I
don't know why they're not supportive of taxpayers. I am boggled here.
The
stuff that they're saying: There's not going to be a smooth transition. They
might not be able to handle the caseload. What are you trying to say, that Legal
Aid can't handle it? I disagree.
Thank
you.
SOME HON. MEMBERS:
Hear, hear!
CHAIR:
The hon. the Member for St.
John's East - Quidi Vidi.
MS. MICHAEL:
Thank you very much, Mr.
Chair.
I just
want to ask a question of clarification of the minister. In responding to the
Leader of the Official Opposition who asked questions about the cost of experts,
I'm really not clear. If experts have to be called in – which is allowed for and
I'm glad that's allowed for – it's still not clear to me what the cost of those
experts will be because these are going to be counsel from private practice.
Will there be a contract with them?
The
tariffs that exist right now are tariffs that exist as part of the provision
that's in place for people to go out and get private counsel instead of using
Legal Aid. Is the minister saying that those tariffs will still be in place for
the use of experts? If not, how will Legal Aid decide how these experts get
paid? Will it be if their fee is $400 an hour, that's what they'll get? I'd like
clarification on that, please.
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
Certainly, I have no issue
providing clarification. There's absolutely no change as it comes to the
practice regarding experts – no change whatsoever. Any changes we're discussing
here today have only to do with private counsel and Legal Aid lawyers. It has
nothing to do with expert witnesses that are brought in. The provincial director
still has discretion. They'll be handled on certificate; the cost varies. Again,
what we're suggesting today will have absolutely no change on expert witnesses.
CHAIR:
The hon. the Member for St.
John's East - Quidi Vidi.
MS. MICHAEL:
Mr. Chair, I think we may be
speaking about two different things. I use the word expert because I heard it
used. What I'm talking about is if it's decided that the unit that is going to
deal with murder, manslaughter and infanticide needs to have a private counsel
brought in to work with them, when that happens, what will be used as the basis
for paying the private counsel?
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
Thank you.
This
would be decided by the provincial director and the tariff rate would still
apply.
CHAIR:
The hon. the Member for St.
John's East - Quidi Vidi.
MS. MICHAEL:
Just to be clear, the tariff
rate as it exists right now?
MR. A. PARSONS:
Yes.
MS. MICHAEL:
Thank you.
CHAIR:
Shall the motion carry?
All
those in favour, 'aye.'
SOME HON. MEMBERS:
Aye.
CHAIR:
All those against, 'nay.'
Carried.
On
motion, clause 1 carried.
CLERK:
Clause 2.
CHAIR:
Clause 2.
Shall
the motion carry?
All
those in favour, 'aye.'
SOME HON. MEMBERS:
Aye.
CHAIR:
All those against, 'nay.'
Carried.
On
motion, clause 2 carried.
CLERK:
Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative
Session, convened as follows.
CHAIR:
Shall the enacting clause
carry?
All
those in favour, 'aye.'
SOME HON. MEMBERS:
Aye.
CHAIR:
All those against, 'nay.'
Carried.
On
motion, enacting clause carried.
CLERK:
An Act To Amend The Legal Aid Act.
CHAIR:
Shall the title carry?
All
those in favour, 'aye.'
SOME HON. MEMBERS:
Aye.
CHAIR:
All those against, 'nay.'
Carried.
On
motion, title carried.
Motion,
that the Committee report having passed the bill without amendment, carried.
CHAIR:
The hon. the Government
House Leader.
MR. A. PARSONS:
Yes, I move, Mr. Chair, that
the Committee rise and report Bill 34.
CHAIR:
The motion is that the
Committee rise and report Bill 34.
Shall
the motion carry?
All
those in favour, 'aye.'
SOME HON. MEMBERS:
Aye.
CHAIR:
All those against, 'nay.'
Carried.
On
motion, that the Committee rise, report progress and ask leave to sit again, the
Speaker returned to the Chair.
MR. SPEAKER (Trimper):
The hon. the
Chair of Committees.
MR. WARR:
Mr. Speaker, the Committee
of the Whole have considered the matters to them referred and have directed me
to report Bill 34 without amendment.
MR. SPEAKER:
The Chair of the Committee
of the Whole reports that the Committee have considered the matters to them
referred and have directed him to report Bill 34 without amendment.
When
shall the report be received?
MR. A. PARSONS:
Now.
MR. SPEAKER:
Now.
When
shall the said bill be read a third time?
MR. A. PARSONS:
Tomorrow.
MR. SPEAKER:
Tomorrow.
On
motion, report received and adopted. Bill ordered read a third time on tomorrow.
MR. SPEAKER:
The hon. the Government
House Leader.
MR. A. PARSONS:
Thank you, Mr. Speaker.
I would
call from the Order Paper, Order 4, second reading of Bill 33.
MR. SPEAKER:
The hon. the Government
House Leader.
MR. A. PARSONS:
Mr. Speaker, I move,
seconded by the Minister of Municipal Affairs that Bill 33, An Act To Amend The
Access To Information And Protection Of Privacy Act, 2015 be now read a second
time.
MR. SPEAKER:
It is moved and seconded
that Bill 33 entitled, An Act To Amend The Access To Information And Protection
Of Privacy Act, 2015 be now read a second time.
Motion,
second reading of a bill, “An Act To Amend The Access To Information And
Protection Of Privacy Act, 2015.” (Bill 33)
MR. SPEAKER:
The hon. the Government
House Leader.
MR. A. PARSONS:
Thank you, Mr. Speaker.
Again,
I am happy to stand here in this House today and speak to an amendment to the
Access to Information and Protection of
Privacy Act, 2015. It's a little bit complicated, so I'm certainly going to
try my best to make sure I can explain it so that even I can understand it,
which sometimes can be tough.
Without
belabouring anything, we know the history in this province of access to
information. Most Members in this House have had a lot of debate on access to
information and it's a topic that when people in the general populous hear it,
it's something that they think about now probably more so than they did even 10
years ago. It's a topic, when it comes up, people are more aware.
What we
have is the ATIPP Act, ATIPPA, which was assented to June 1, 2015. I don't need
to get into the history of the piece of legislation, but what I would say is
that the version we have now is certainly extremely, extremely broad.
So what
we're doing here today is we're trying to bring in an amendment to this piece of
legislation that would basically add the Muskrat Falls inquiry to Schedule B of
this act to be included as an exempted body. Basically, to be exempted from the
ATIPP Act. Now, when you say that, it sounds certainly like it could be
something that's contentious. What I want to try my best to do is to give some
history and background as to why we are here today debating this and how this
arose basically.
Just to
give some background to ATIPPA itself. ATIPPA 2015 applies to public bodies, as
defined in section 2 of the act. So public bodies can include your core
government departments, Crown corporations, municipalities, college, House of
Assembly, statutory offices. It actually excludes certain offices from ATIPPA as
well. There are certain exclusions such as constituency offices that are
actually excluded. The courts are excluded from the act. I think there's some
law enforcement application to this. And the purpose of this is just to add in
that simple exemption that is Muskrat Falls inquiry to this.
Just so
people would know, right now – and there are two sides to ATIPPA. We often get
caught up in the access to information side, which is one that certainly I think
the public is more aware of, and then there's the protection of privacy. Under
the access to information, as I said there, most public bodies – a person can
make an application to get certain information. Again, there are certain
limitations to that. There are certain bodies that you cannot get information
from. What we are doing, upon request, I would note, is adding the Muskrat Falls
inquiry to that.
What
I'd like to do is provide some background as to the request, why the request was
made, who made the request and why we are here debating. What we have here, we
all know in the public, certainly everybody in this House knows, is that there
was a Commission of Inquiry that was commenced, I guess appointed, and terms of
reference drafted for in November of 2017. This Commission will be headed by
Justice Richard LeBlanc, and he now has in place Commission counsel, Kate
O'Brien and Barry Learmonth.
They
received the terms of reference on November 20, 2017. They also have an end
date, which is some time in 2019 – I think it's December 2019, but if I'm wrong,
I certainly welcome correction on that. It's started and we know what the end
date is. In that period of time, there's a significant amount of work that has
to be done.
I'm not
going to, at this point, get into what's going to be done and what the terms of
reference are. What we're talking about is why are we proposing an amendment to
eliminate that inquiry from the application of access to information
legislation. In December 2017, Justice LeBlanc wrote to the Department of
Justice. It was Justice LeBlanc who asked for this exemption under ATIPPA, under
section 4 of the act.
I have
the act here. I just want to refer to section 4. As you can see this is a
substantive bill. Section 4 says: “When the House of Assembly is not in session,
the Lieutenant-Governor in Council, on the recommendation of the House of
Assembly Management Commission, may by order amend Schedule B, but the order
shall not continue in force beyond the end of the next sitting of the House of
Assembly.”
What
the act expressly permits is for the Cabinet, on the recommendation of the
Management Commission, to amend this act, the Schedule to it, to add parties to
it. Where that's done outside of the House of Assembly, it does not survive the
ending of the next session. It has to be brought to the House to be debated here
in the House on the floor.
We also
talk about what this act applies to. That's under section 5. We talked about the
exemptions here. I have a list here. I think section 27 is one exemption under
here. Cabinet confidences is one exemption. Actually, there are local public
body confidences. Section 31 is disclosure would be harmful to law enforcement.
Just so
people understand, access to information is not unlimited or universal; there
are some cases where the disclosure of said evidence would be harmful. Those
were contemplated by former Chief Justice Clyde Wells when he drafted up this
piece of legislation.
Justice
LeBlanc wrote to me in my capacity as the minister for the Department of
Justice. He asked for an exemption for the Muskrat Falls inquiry. I have a copy
of the letter here. It's dated December 21, 2017.
Basically what he's saying is that he wants a partial exemption to the
Commission. The exemption being sought at this time “relates to the ongoing
investigation including requests and disclosure of documentation as the
Commission investigates for the purposes of responding to the Terms of Reference
for the Inquiry. We are in no way seeking exemption with regard to
administration or finances with regard to the ongoing Inquiry. We are seeking
the type of exemption that is permitted with regard to investigative bodies that
provide a privilege so that the Commission staff can appropriately and
effectually investigate the matters required under the Terms of Reference.”
Justice
LeBlanc wrote in and said he wanted this exemption for the inquiry. Now, he
wrote in again after that. This was a decision that, as I referenced in the
legislation, went to the Management Commission of the House. So that wasn't a
government decision.
Anybody
in this House understands what the Management Commission is. It's a group of
MHAs made up from the all sides of the House, including the Speaker, and they
make decisions on a whole range of matters that, basically, in many cases, guide
the administration of the House, statutory offices, you name it.
Because
the session wasn't on, because the House did not open until last week, February
26, they had no choice because the Commission wanted this done as soon as
possible. They had to send it to the Management Commission where it was heard on
February 1 and then brought into force. It says quite clearly there: While that
decision cannot survive the ending of the next session, herein lies why we are
here debating this amendment.
So we
go back to where Justice LeBlanc wrote this request and asked for this. The
House is not in session, he brings it in, we send it off immediately and have
that meeting. From my understanding – and I appeared at that meeting; I was on a
teleconference – I believe Commission counsel were here to actually answer
questions that were asked of all parties about why we were doing this; what's
the purpose; what's the effect; what does this mean.
As I
said, this was done February 1 and the committee recommended at that time the
requested exemption. An order-in-council was issued on February 8 to add the
Commission to Schedule B.
Now, in
that letter, Justice LeBlanc asked for the exemption and he gave three reasons
for the exemption. One was the impact on the Commission's ability to carry out a
thorough investigation. Again, I would point out to anybody that is watching or
listening or taking this in, this is the independent Commission of Inquiry led
Justice LeBlanc who is independent, making the request. They're the ones coming
here to this House and saying this is what we want.
If the
Commission is required to respond to ATIPP requests during the course of its
investigation into the Muskrat Falls Project, its investigation may be hampered.
The Commission's investigators must be able to carry out their work in
confidence, with the full freedom to explore all avenues and with assurance that
all relevant evidence is preserved and available. This is similar to other
investigatory bodies for which ATIPPA provides protection from disclosure, like
the police or statutory offices or this House of Assembly.
The
application of ATIPPA could impact on the Commission's ability to collect
evidence. The Commission's Rules of Procedure require production of all
documents to commission counsel, even those to which legal privileges may apply,
solicitor-client privilege.
I would
note, we have another piece of legislation on the Order Paper here that we need
to discuss that is relevant to this in that particular request.
If the
Commission cannot assure parties that documents received will not be subject to
release under ATIPPA, parties may be less willing to co-operate, leading to time
consuming legal challenges.
Justice
LeBlanc has made clear on a number of occasions, he has a very strict timeline
that he must follow if he wants to get this in on time. In fact, when this was
announced there was some significant pressure: why couldn't it be done quicker?
Not
granting this amendment would significantly delay this investigation,
significantly delay the commission of inquiry, and this is according to the
commissioner. The commissioner himself is saying this. What's going to happen is
if people don't know they're exempt or if their privilege is going to survive,
they're going to be less likely to comply with the request that's gone out.
The
Commission has gone out and made an actual request throughout all of government
for any document that may be relevant. Again, that's something I'm going to
reference when we discuss another piece of legislation that we'll be debating in
this House this week.
The
impact of ATIPP requests on the Commission's resources would be significant. So
what they've basically advised is in order to do this we would require
significantly more staff, including additional legal counsel, just to deal with
the ATIPP requests.
They
are anticipating that during the life of this inquiry they will receive well
over a million pieces of paper, a million documents during the investigation.
That's not an insubstantial amount of paper, that's tremendous, that's huge. If
you have to take the resources you have for the investigation and put it right
into ATIPP, you're going to be delayed and you're going to have significant
cost. Again, I would note, this is not a government directive. This is the
commission of inquiry saying this is what we want, this is why we want it.
It's
important to remember, Mr. Speaker, a commission of inquiry under the
Public Inquiries Act is a tool
designed to allow for openness and transparency. As a government, and as the
government that commissioned this inquiry, we want the information. We want
everything out there in the light of day. That's what the people want, that's
what we want. That's why we commissioned this inquiry. This is a plea from the
commissioner to say allow us to do this. The public record that results from the
hearings will include published exhibits, testimony of public hearings and the
commissioner's full report and recommendations.
The
Commission itself with this amendment would be exempt from ATIPPA. Any records
in the custody or control of any public body – including any department,
including Nalcor – which pertain to Muskrat Falls or the Commission, will remain
subject to the act. It's not like they're going to end up in some void where
they're not going to be disclosed. That is not the case at all. The exemption
being requested here is temporary. It only has effect while the Commission is
doing its work.
Section
28 of the Public Inquiries Act says
that once the Commission is finished its work, the records get turned back over
to government. Once they're in government's hands, ATIPPA applies. Any fear that
they would be going into some black hole never to be seen again is not accurate,
not real, not even close to being real.
One
thing I would point out – it's very important here. It's very important. I think
this is something we need to make sure is on the record. One thing we did do was
consult with the Office of the Information and Privacy Commissioner, Mr. Donovan
Molloy. We consulted, got the letter back and the commissioner put out his own
press release. I think it's important that we put that out here.
“Commissioner Molloy has received a number of inquiries in regards to the
announcement of the agenda for today's meeting of the House of Assembly
Management Commission.” This was discussed pretty extensively in the House here,
roughly three hours. There was a good debate by the Management Commission on the
request that came in.
“The
OIPC views exemptions of the Commission of Inquiry Respecting the Muskrat Falls
Project as appropriate and consistent with the treatment of similar records
pursuant to section 5(1)(a) of the
ATIPPA, 2015. The OIPC anticipates that consistent with recent commissions
of inquiry, exhibits will be available to the public via the Commission's
website ….
“Any
present exemption effected pursuant to section 4 … ceases at the expiry of the
next sitting of the House of Assembly.”
In
considering any amendment to the ATIPPA to exempt the Commission of Inquiry from
ATIPPA, the OIPC – Commissioner Molloy – again would view that treatment as
appropriate and consistent with the treatment of similar records pursuant to the
act.
Here's
an important sentence: “This treatment would allow the Commission of Inquiry
Respecting the Muskrat Falls Project to proceed more efficiently and
expeditiously. At the conclusion of the Inquiry, the Commission's records will
be under the custody and control of the Department of Justice and Public Safety.
At that time, all of those records will be subject to access to information
requests pursuant to the ATIPPA, 2015.”
I think
that's pretty important, Mr. Speaker. Donovan Molloy, an Officer of this House,
Statutory Office, under no influence from anybody, looked at the legislation,
looked at the request and said: I agree with it. I think it's appropriate. I
think it's consistent with the act. He has no fears – not a single fear. We
consulted to make sure that would be the case, and that is the case. I'm going
to continue on.
We had
the meeting on February 1, which was a good thorough meeting, lots of questions
asked, hopefully questions answered. Commission counsel were there to answer
these questions and layout why they wanted this. Commissioner Molloy released
his report, and that leads us to where we are.
One of
the concerns brought up during the Management Commission meeting was: Is your
government going to bring this forward or is it just going to die? Again, we are
here; we brought forward that piece of legislation the first week the House was
open. We brought it forward. We've provided briefings to government caucus, to
all Members of the Opposition. Everybody's had a significant opportunity, I
would suggest. Today is Monday, this was done last week. There's a fair amount
of time put into this and allow for people to consult, to ask questions and to
look into this. Commissioner Molloy has already put his input into this.
What I
would note is let's get down to why we're here. We have a commission of inquiry
into the biggest, single project in the history of this province, one that right
now is well over $12 billion. A lot of questions, a lot of questions.
What
we've done as a government is we've decided it is worthy of an independent
commission of inquiry under the Public
Inquiries Act. It's a pretty substantial terms of reference that's out
there. I don't need to reference it right here. It's available online to anybody
who wants to see. At the end of the day – again, I've had the experience now of
going through one commission of inquiry that we commissioned and finished. We
have this one, I've reviewed old ones.
To me,
an inquiry has two points: (a) what happened; and (b) what do we do to avoid a
similar situation from happening in the future? What are the recommendations? We
want nothing more than a full, thorough, open, transparent investigation by an
independent justice, and we couldn't have anybody better than Justice Richard
LeBlanc. Anybody who knows him, knows his thoroughness, his efficiency. He has
indicated in the letters, which are public record, he wants this exemption to
allow him to get the work done and done on time as quickly and efficiently, as
expeditiously as possible.
They
recommended it. It was voted on by the Management Commission here. We're here
today to have a vote to make it effective. It will last for the lifetime of the
Commission. At the end of the day, all the documents come back to government and
they will be ATIPP-able. People will have access to this information. You know
what, people will see it before then. Because the whole purpose of an inquiry is
to do things in the light of day. That's the whole reason for this. I want
nothing more than all the information out there. We want that. We wouldn't want
anybody to be hoodwinked. We don't want that.
So, on
that note, what I would suggest is that – I can't say it better than Mr. Molloy:
Any present exemptions ceases at the expiry and, in considering any amendment,
we would view that treatment as appropriate and consistent.
Mr.
Speaker, I think we've covered all the bases here for what it is we are doing,
why we are doing it, who is requesting it, what it's going to mean, how long
it's going to last and how does it apply. I think we've covered that off.
With
that being said, I do look forward to the commentary from my colleagues across
the way. I believe there are some Members on our side who may speak to this as
well. Certainly we'll hopefully move forward into the Committee stage.
I'm
going to take my seat now but, prior to the Member standing, I would like to
move a notice on the Paper.
MR. SPEAKER:
The hon. the Government
House Leader.
MR. A. PARSONS:
Yes, I would adjourn debate
on Bill 33.
MR. SPEAKER:
All those in favour, 'aye.'
SOME HON. MEMBERS:
Aye.
MR. SPEAKER:
All those against, 'nay.'
Motion
carried.
The
hon. the Government House Leader.
MR. A. PARSONS:
At this time, Mr. Speaker, I
move, pursuant to Motion 1 on the Order Paper, that this House – and pursuant to
Standing Order 11(1) – not adjourn at 5:30 p.m. today, Monday, March 5, 2018.
MR. SPEAKER:
All those in favour, 'aye.'
SOME HON. MEMBERS:
Aye.
MR. SPEAKER:
All those against, 'nay.'
The
motion is carried.
The
hon. the Government House Leader.
MR. A. PARSONS:
Thank you, Mr. Speaker.
I call
from the Order Paper second reading of Bill 33, An Act To Amend The Access To
Information And Protection Of Privacy Act, 2015.
MR. SPEAKER:
The hon. the Opposition
House Leader.
MR. HUTCHINGS:
Thank you, Mr. Speaker.
I'm
pleased to rise today to speak to Bill 33, Access to Information and Protection
of Privacy. I just listened to the minister take us through, I guess, the
previous discussion we had in the Management Commission in regard to this
particular piece of legislation – well, at that point, the provision was because
the House wasn't sitting that, on a temporary basis, to entertain the exemption,
it would go to the Management Commission. At that point in time, any decision
made, if it was approved, would be in place on a temporary basis until the House
of Assembly sat and it could be brought forward here as an amendment, as the
minister has done.
At that
particular time, we did sit here, and probably for a couple of hours, had a very
good discussion on the content on a bill, certainly the intent. We also, prior
to it, I think had requested that Judge LeBlanc attend. And recognizably, due to
various reasons, he could not, but the co-counsels that were appointed did
attend.
I have
to say, in my 11 years sitting here and the privilege of sitting in the
Legislature, I thought it was an excellent exercise in terms of bringing in,
from the committee perspective, experts or people who could draw on their
knowledge and expertise and give some reason and rationale from what we were
discussing. It was a great discussion, as I said, a couple of hours, that we
asked direct questions to the co-counsels for the inquiry and, I think, went to
the breadth and scope of what we were trying to discuss and making a decision on
what was put forward to the Management Commission.
At the
end of the day, there were diverging views on what the intent was being asked
for and what was voted on. There wasn't full agreement, but that was fine. I
think the real point here I want to make and to recognize is that it was a very
good exercise in terms of moving forward with it and having a discussion.
So the
exemption to the Commission of Inquiry respecting the Muskrat Falls Project and
the Access to Information and Protection
and Privacy Act, 2015, basically was looking at, during the inquiry – and
the minister went through and talked about Judge LeBlanc and his three criteria
that he had wrote to the Minister of Justice and Public Safety, I think it was
in December, and asked to entertain this exemption and, in particular, it
related to an investigative component of the inquiry and that information is to
be accessed and how it can be accessed. There was concern expressed in regard to
the volume of information and compared it to other inquiries we had in the
province. I could be corrected, I don't think the – well, the ATIPP Act was
amended in 2015 but, since then, any public inquiry, it is my understanding,
hasn't asked for that exemption.
Some of
the issues that were brought forward in regard to the reason for it were related
to the volume of information that would be made available and would want to be
collected, the investigative process that would be required and would that be
interrupted and would it cause concerns in regard to due process and what the
inquiry had to do, co-counsels and a part of that investigative component of
what they needed to do to access the information.
As I
said, there were concerns about the large volume of information under the ATIPPA
legislation while the inquiry was going on. I remember the co-counsel talked
about three stages of the actual inquiry. The first stage was the investigative
component where you look at extracting information, looking at who has
information, what information is relevant and trying to obtain that information
and get access to it. I remember asking: Is that a continuation through the
inquiry process? I think Ms. O'Brien indicated, yes, it is, but the real focus
is at the first of those three components in terms of the investigative nature
of the process.
That
was the discussion about you have this vast amount of information during the
inquiry, if someone was to exercise the provisions under ATIPPA and ask for or
ATIPP certain documents that the inquiry may be pursuing and may be
investigating, the question fundamentally became – and as parliamentarians we
have to decide would that infringe on the process and the inquiry. As opposed to
the importance of total openness, transparency and that all information that
anybody would want during the inquiry could be ATIPPed and it could be made
available during the inquiry. That information would be out in the public domain
for people to see, for people to engage in and to pass any judgment on that and
that would be available.
That
was one of the issues that we talked about in the Management Commission. The
other issue that was brought up relates to, I think it was about 80 per cent of
the documents would be coming from Nalcor and/or government. There was some
discussion about that volume. There was reference to in the process of the
inquiry if the issue of privilege is brought up and what can be designated by
the inquiry at a particular time, what would be privileged and what would be
not. That would be exercised with the exemption in place.
There
would be an evaluation of the documents that were obtained. Determination would
be made, if it was a case of privilege, and then some would not be made public.
It could be solicitor-client privilege, it could be something like commercial
sensitivity, one of those areas like that where there could be a determination
made.
The
decision to provide the exemption would mean that information, or an ask for
that information at that particular time during the inquiry, wouldn't be
allowed. The questions we asked related to that from co-counsel was – not that
it wouldn't be made available, but possibly after the inquiry. What would
happen, we were told, is that if the exemption was in place after the inquiry,
all the material I guess would be boxed up and whatever, accumulated, and sent
off to the Department of Justice and Public Safety. I understand they would be
the holders of that information at that particular point after the inquiry.
I think
the recommendation is that the inquiry would conclude and make recommendations
in late 2019. At that point, the information would be sent on the Department of
Justice and Public Safety. Somebody who wanted information that was relevant to
that inquiry during the process, would have to apply under ATIPP to access that
information.
Some of
the questions we had about that, and I asked one of the co-counsels in that
regard. Information that's reviewed by the inquiry at a particular time during
the process, if there were issues in regard to information that was redacted,
information that was not in regard to whether a privilege was exercised by an
individual or a group, would that automatically be made available after the
inquiry?
The
response was no, that cannot be guaranteed, because there's a secondary process
that would happen after the inquiry. After all that information is gathered it
would be referred on, I think under the control of, as I said, Justice and
Public Safety. Then there would be a process in and of itself at that time to do
an ATIPPA request for that information.
That
was of some concern because the issue here is the availability of information,
access to it. People want to know as the inquiry goes on what information is
available and how that relates to conclusions or decisions that may transpire
leading up to any possible interim report, or certainly leading up to final
recommendations and findings by Justice LeBlanc in late 2019; or, if there's
some delay, maybe early 2020.
As we
look at the whole issue of the records of inquiry and the issues of legal
privilege, that was one of the things that was talked about. The other issue, in
terms of the volume of information, there was some discussion about making it
efficient and expeditious. There was some conversation: Is this an issue of cost
or is it an issue of making sure it's fully open and the information is made
available? The issue was brought up about what would be needed if there was no
exemption provided to entertain those requests that could come in from ATIPPA
during the inquiry.
I think
the co-counsel for the inquiry indicated that it could be a possible four other
individuals, somewhere in the range of $300,000 to meet the needs or the
expected needs, because no one really knows. No one really knows how many
requests are going to come in for ATIPPA for that particular period of time. I
know the previous Dunphy inquiry, I think we asked and there was none for that
particular inquiry in regard to ATIPPA requests.
This is
trying to project, and respectfully, those who are involved with the process and
those who were here in the Chamber answering our questions, trying to project
what the amount would be. No doubt, there could be hundreds of thousands. I have
no idea of the number of records and documents. The issue then they're trying to
project: What would it take when you're looking at ATIPPA requests during that
period? That was some of the discussion we had as well and some concerns in
regard to that and how we do it.
In
regard to ATIPPA requests during the inquiry and the possible cost, I guess the
other point is this. Even after the inquiry is over those costs are still going
to be incurred, because whether there are a few or a lot, whether it's during
the inquiry or after the inquiry, when the documents are with the department,
those requests will still come. The only difference would be after the fact that
information is made, after the inquiry is over and after recommendations have
been made.
As I
said before when we went through, there was a very good discussion in regard to
various aspects of the inquiry and what that would mean. Some very good answers
given from the co-counsels in regard to some of the issues that came up.
From
counsel's perspective, they wanted to ensure that investigators had the ability
to carry out their work in confidence, both to give the investigators full
freedom to explore avenues of investigations to help ensure that all relevant
evidence is preserved and available. Judge LeBlanc added that the inquiry will
need the full co-operation of key players. If the inquiry is unable to assure
parties that the documents provided will not be potentially subject to an early
release of ATIPPA requests, I expect we'll lose some or much of the co-operation
needed.
We had
a discussion on that point as well, and when asked counsel could not – they're
expecting that if there's an issue someone brings up related to solicitor-client
privilege and if that individual or persons don't see there's an exemption, they
may be reluctant to bring that information forward; yet, at the end of the day,
if this proceeds as described, that information or that presentation of
information, that allowance of information to come forward, I guess voluntarily,
is still going to have access to the public domain after the public inquiry.
Because from what we're being told, that information is going to be accessible
even though we would have to make a particular ATIPPA request to do it.
We
certainly had discussion about that in regard to what that would mean. As I
said, there was no clarity in regard to that particular aspect of it.
The
minister went through and talked about – I won't repeat that – the reasoning for
Justice LeBlanc. I respect, obviously, his knowledge and expertise and his
reasoning in regard to some of the information he had particularly talked about.
He talked about, too, the assurances that the documents provided did not get
released, other than through the procedures they developed. That was tied to the
co-operation of those individuals in regard to the information and how it would
be released.
I just
wanted to go over a couple of other points in regard to what was discussed and
some information that was relayed back to us.
It was
talked about in 2015, we know the ATIPP legislation was amended. At that
particular time I believe it was – yeah, the Chair was a former Chief Justice
Wells. In that particular review, I think he did contemplate whether an
exemption should be a part of the legislation automatically. There's some
reference to other jurisdictions and the fact that it exists in other
jurisdictions.
I do
believe Justice Wells went through that, looked at it and determined it should
not be part of it, and it wasn't part of it when the ATIPP legislation was
amended in 2014. I guess 2015 was the final report. He didn't see that an
exemption, or the committee did, should be part of the legislation at that
particular time. It would be something that would be outside of that.
I think
there was some reference, too, if I remember correctly, to his decision making
and thought making process related to a prior judicial inquiry that I think
formed the basis of some of his recommendations and some of his thoughts on
that. I think it may have been the Cameron inquiry and some of the discussions
that were there about access to information and what that would mean. He had
used that in the review of the legislation, not to include an automatic
exemption in regard to the information at a particular inquiry.
As we
go through this, certainly, there will be questions as we go through and go
through Committee. This has been dealt with through the Management Commission on
a temporary basis. Now we're back here in the Legislature, as required, to make
a final decision on this information and making sure where it goes from here.
I think
it's incumbent to make sure in the process, at the end of the day, that the
public feels comfortable that all information will be made available at the time
of the inquiry. If there's information to be accessible, that it is accessible
and people have the confidence in the due process. I say that as a
parliamentarian with full respect for the co-counsels that came in and shared
their expertise with us, with Judge LeBlanc and with respect to Justice Wells
and the report he had done in the review process in amending of the ATIPPA
legislation, which is recognized now, I think, as one of the best reflection of
ATIPPA legislation in the province.
These
are points we'll have discussions on as we go through. I'm looking forward to
debate from all Members of the House on this issue as we move forward with an
inquiry that we, as an Opposition, have certainly called on and supported. I'm
looking forward this evening as we move on with debate.
As
we're nearing the supper hour, Mr. Speaker, I would propose that we adjourn
debate on Bill 33.
MR. SPEAKER:
The hon. the Government
House Leader.
MR. A. PARSONS:
Yes, thank you, Mr. Speaker.
I would
suggest, with the consent of my colleagues, that we recess now for one hour and
then come back to the House at 6:30 p.m.
MR. SPEAKER:
This House stands in recess
until 6:30 p.m.
March 5,
2018
HOUSE OF ASSEMBLY PROCEEDINGS
Vol. XLVIII No. 48A
The
House resumed at 6:30 p.m.
MR. SPEAKER (Trimper):
Order, please!
The hon.
the Government House Leader.
MR. A. PARSONS:
Thank you, Mr. Speaker.
At this
time, I would call from the Order Paper second reading of Bill 33.
Thank
you.
Motion,
second reading of a bill, “An Act To Amend The Access To Information And
Protection Of Privacy Act, 2015.” (Bill 33)
MR. SPEAKER:
The hon. the Leader of the
Third Party.
MS. MICHAEL:
Thank you, Mr. Speaker.
I'm
pleased to stand and speak to Bill 33, which is the ATIPPA exemption for the
Muskrat Falls inquiry. This is the second time some of us have had a chance to
speak to this issue because as a Member of the House Management Commission we
were asked by the Commissioner of the inquiry to allow, actually, for this
exemption that we are talking about here this evening.
At that
time, all that the House Management Commission could do was to – because the
House wasn't opened and the Legislature wasn't sitting – give temporary
permission to the Commissioner. For it to go any further, it had to come back,
of course, in here to the House of Assembly and had to come back in the form or
legislation from government.
What
we're looking at tonight is a bill that would amend Schedule B of the ATIPP Act
to exempt the Muskrat Falls inquiry from ATIPPA so that the inquiries records
will not be subject to freedom of information requests throughout the inquiry.
The
rationale that we heard in the House Management Commission – I'm sorry,
actually, not everybody could have heard it. They could have heard it because it
would have been livestreamed. They could have followed it and maybe a lot of the
House did, but we got interesting information at that time. The rationale that
was given was that the ATIPPA request
would slow down the work of the inquiry, cost more money and most important,
discourage corporate entities such as Nalcor from handing over sensitive
documents.
My
position at that time, as a Member of the House Management Commission, was that
I was quite disturbed, actually, by the fact that the Commissioner of the
inquiry was put in the position that he was put in because he is actually asking
to act differently than other inquiries by asking for this exemption to happen.
If we
pass this tonight and the Muskrat Falls inquiry is exempt and becomes the first
item on Schedule B of the ATIPPA bill,
if that happens, the inquiry will be going a different route from other
inquiries. I think it's important to point this out.
In the
Public Inquiries Act – and I should
have had that in my hand, here we go – which covers all inquiries, it says that,
subsection 1 of section 12: “A person has the same privileges in relation to the
disclosure of information and the production of records, documents or other
things under this Act as the person would have in relation to the same
disclosure and production in a court of law.”
The
subsections that I'm particularly interested in are subsection 2:
“Notwithstanding subsection (1) but subject to subsection (4), a rule of law
that authorizes or requires the withholding of records, documents or other
things or a refusal to disclose information, on the grounds that the disclosure
would be injurious to the public interest or would violate Crown privilege, does
not apply in respect of an inquiry under this Act.”
And
going with that: “Notwithstanding subsection (1) but subject to subsection (4),
a person shall not refuse to disclose information to a commission or a person
authorized by a commission on the grounds that the disclosure is prohibited or
restricted by another Act or regulation.”
What
this is saying is that Nalcor, which is protected by the
Energy Corporation Act, that Nalcor without the inquiry going on
Schedule B, would be open to having everything requested, whatever the
commissioner wanted requested from it. However, section 13 says that “A person
may apply to the court for an order excluding a person or a record, document or
thing from the operation of subsections 12 (2) and (3), and the court may, after
considering the application and the submission ….” Well, it goes on, the court
may say: Yes, you have to give what they're looking for or, no, you don't.
Now,
when I brought this up, when we met with the co-counsel for the inquiry, and I
think the commissioner also said it publicly in releases that he made, what was
concerning him was that if the inquiry went the route of other inquiries and fit
in with this definition, then he would have the right and, not only that, he
would be covered by the legislation to ask Nalcor for whatever he wanted to ask
it for, or anybody else as far as that goes, but, obviously, Nalcor is the key
thing when we are talking about in Muskrat Falls. Nalcor would have the right to
say: Well, we're going to the court to find out if we have to do this.
So what
Commissioner LeBlanc pointed out was that he was in a very tough spot because
he's been given a two-year deadline by the government to do its work, to do his
work and the work of the inquiry. By the end of December 31, 2019, he has to
have his report in place.
With
that time constraint, he felt he had no choice but to ask for this exemption
because, you know, his fear – and I think fear is the word to use – is that
people would come looking for information under ATIPPA, but for him – I'll come
back, I've shot ahead of myself – the fear is that he would want things from
Nalcor that they might say no to and things would go to court. Then he, of
course, as a lawyer and a judge understands how long that process could take.
He was
put in the situation by the government's constraint that was put on him that the
report had to be done in two years. Other inquiries that I'm aware of have run
their course, done their work and put in their report. Government could have
asked him two years prior to do this, to do this kind of an inquiry. He would
have had a longer period of time and they wouldn't have had to get the exemption
that he's looking for.
What
really concerned me when we discussed this at the House Management Commission,
and why I voted against the resolution, was that he was being forced to do this,
not because it was necessary but only because it was necessary because of
constraints put on it by government. I still feel the same way. Forcing the
inquiry to be the first entity to request ATIPPA exemption on Schedule B does
not help to build public confidence in the inquiry or in the government. That's
a real concern I have.
Let's
look at the issues, then, that I had when we discussed this in the House
Management Commission and which I still have. I do understand, as has been
pointed out by the minister, the exemption that would happen now because of this
bill would only be in effect until – no, the permission we gave in the House
Management Commission would only be in effect until the end of this session.
Well, I saw publicly today this session is going to end on March 12 so now we
know why this bill is coming to us now. What we're facing here now is putting in
place the exemption that will go to the end of the inquiry which means until
December 31, 2019.
People,
I think – and I've had people say to me – are concerned because they thought
they might have been able to finally access Nalcor documents, not themselves
personally, but through the inquiry. Documents they've wanted to learn about,
they'd be able to finally get them to see them. This is debatable.
The
Privacy Commissioner has noted that even had the inquiry not been placed on
Schedule B, Nalcor docs could not have been accessed through an ATIPPA request
to the inquiry because of the Energy
Corporation Act. In actual fact, they could be. They could be demanded by
the commissioner, as I said, but could end up going to court and taking time to
make it happen.
Regardless of that, the option now has been totally eliminated with the inquiry
going on Schedule B. It's on Schedule B temporarily; government is going to move
tonight, obviously, that it be there until the end of the inquiry. The concern I
have – it was explained to us by the co-counsel and I questioned them quite
heavily on this – is that at any time during the inquiry the commissioner can
release whatever he wants to release. He can do that. He can make public
anything that comes to him but he's going to be constrained. Documents that
Nalcor is protected by right now, under the
Energy Corporation Act, he won't
release them, most likely, during the inquiry.
What
we've been told is that we shouldn't be upset because at the end of the inquiry,
all the documentation from the inquiry will go into the hands of government. I'm
presuming it will be the Department of Justice and Public Safety. That would
seem like a logical place. The minister did say in presenting the bill that all
of those documents then would be accessible under ATIPPA.
I have a
question or I have a concern. The concern is: Who owns the documents once
they're released by the inquiry? Is it totally under the Department of Justice,
that no matter what those documents are they will be able to be accessed through
ATIPPA? Or will Nalcor be able to say: No, now that those documents are no
longer with the inquiry, they are our documents and they'll still get protected
by ATIPPA?
That's a
question I asked of the co-counsel when we had the discussion here in this room.
The co-counsel said they did not know the answer to that question. I could see
why, for them, it wouldn't be an issue because once the inquiry is over they're
no longer responsible; it's out of their hands. But it's an issue that I have, I
didn't get an answer from them and I will be hoping to get clarity on this from
the minister.
If it so
happens that at the end of the inquiry there were documents that weren't
released by the commissioner and people start to learn what maybe some of those
documents are that weren't released – and then you get to the end and the
documents go back into government to the Department of Justice and people are
now told: Oh no, you're not going to be able to get the documents that Nalcor is
protecting because now they belong to Nalcor again. If that happens, people are
going to be extremely upset. They thought this inquiry was going to be an open
process, that it was going to be transparent and that they were finally going to
be able to get to materials to answer questions they've had for years.
I am
proposing that because of the way government has set this up with the restraints
that were put on the commissioner in terms of the time – and his point is valid.
If something has to go to court because he has said to Nalcor, I want what they
have and they fight it in court – if that were to happen, he was right, that
would take time and he doesn't have the time. So because of the constraints put
on him by the government, then people are going – possibly, if the answer to my
question is that those documents will actually be Nalcor's again – to not get
the full answers they're expecting. They will have to go by whatever report the
judge gives us without being able to look at documents themselves. If that
happens, that's going to defeat the whole purpose of this inquiry – one of the
major purposes of the inquiry – and it really and truly upsets me.
The
final point I want to make is the one thing that has to happen – and this could
happen, actually, prior to the report coming out – is that government has to
take the step to remove Nalcor's exemption from ATIPPA that is present in the
Energy Corporation Act. If that
happened, if that happened prior to the report coming out, documentation then
that would go from the inquiry to government would be completely accessible.
Under
ATIPPA, there could be documents that will be commercially sensitive and it will
be decided by the – if Nalcor said no to people requesting some documents, it
would be decided by the Office of the information and Privacy Commissioner
whether or not a document is commercially sensitive, but at least the
Information and Privacy Commissioner would be able to make a judgment. Right
now, you ask Nalcor for something and you don't get it because it's commercially
sensitive and nobody can challenge them.
If their
protection under the Energy Corporation
Act were removed, then that would end. As I said, that can happen
prior to December 31, 2019 so that the documents would then be at least
accessible and one could, if they needed to
fight something with Nalcor – have the Information and Privacy
Commissioner be the one to make a determination, not Nalcor.
I
understand why the commissioner made the request that he made. He was put in a
situation where he had no choice, I don't think. But it's government's
responsibility that he's there and government can change the rules of the game.
So it's still in government's hands.
The
other thing I would like to see government do – and they could do this as well
before the end of December 31, 2019 – is to change the whole protection that
Nalcor has now, away from the Public Utilities Board that they are not under,
the aegis of the Public Utility Board, when it comes to how they operate. Not
with regard to Hydro and rates and that kind of thing.
What we
have here is something – three issues are in government's hands and they could
change the timeline. They could say that we are going to go after the future and
take Nalcor's protection from the Energy
Corporation Act. They could also say that Nalcor has to come under
our Public Utilities Board.
I put this to the minister. I look forward to further
discussion of these issues, particularly, my point about what will happen to the
documents when the inquiry passes them over. Will they belong to the Department
of Justice or will the documents belong to the different bodies that gave them
to the inquiry?
Thank you very much, Mr. Speaker.
MR. SPEAKER: The
hon. the Member for Mount Pearl - Southlands.
MR. LANE: Thank
you, Mr. Speaker.
I'm glad to speak to this bill. Mr. Speaker, I want to say,
first of all, when this request first came out, I had concerns, I think, like a
lot of people did. But I took the opportunity to call Mr. Molloy, the Privacy
Commissioner, and we had a good chat. I called him a couple of times, actually.
When he explained it to me, any concerns I had were really
gone, to be honest with you. I don't see, really, where there's a big issue with
what is being requested and what's being done. I think the part we have to bear
in mind, as it was described to me at least, is that you cannot get information
through the back door that you couldn't otherwise get through the front door.
In other words, if there was information that came out, the
commissioner, as I understand it, under the
Public Inquiries Act can obtain
information that if you or I tried to obtain that information through Nalcor, the
department or whatever, we may or may not get that information. Certainly we
know we wouldn't get anything from Nalcor, very little because of the
Energy Corporation Act, but there
would be things we could get from the Department of Natural Resources, the
Department of Finance and so on, that would be subject to ATIPPA.
When the
inquiry starts, that same information that someone may want to ATIPP from the
inquiry, they could still make that same ATIPP request to the department and the
same rules would apply. So applying to the Commission of Inquiry is not going to
really change any circumstances. I think where people are disappointed is that
people felt that once the commissioner got all this information through the
Public Inquiries Act, 2006 then we
could get all the information that we had gone to Nalcor looking for and they
said no, now we can just simply ATIPP the inquiry and receive all the
information we wanted that we couldn't get before.
In other
words, get it through the back door what you could not get through the front
door. I think that's what a lot of people were kind of hoping for, but that's
not the way it works. That's not how the inquiry of that works. It's not how
ATIPPA works. It's not how the Energy
Corporation Act works.
As the
Member for St. John's East - Quidi Vidi just alluded to, really what needs to
happen if we want to get more information – for example, the information on the
embedded contractors that the Premier had said at the time didn't pass the smell
test and he was going to get it and he couldn't get it. He would prevent it from
getting that because of the Energy
Corporation Act.
Specifically, according to Mr. Molloy – I think it was section 4(2), if I'm not
mistaken, which is the section the Member for St. John's East - Quidi Vidi just
alluded to – that basically under ATIPPA we can request information. If we're
turned down from a department, you have the option to go to the Privacy
Commissioner and say, I asked for some reasonable information, I was turned
down. I don't think it's reasonable, and I could appeal that.
The
Privacy Commissioner can look at that situation and say to the department, yes,
the information this person was looking for should be released. He can advise
them, they need to release it. If they say, no, we're not releasing it; then the
Privacy Commissioner could take that department to court. That has happened in
the past with ATIPP requests, where the Privacy Commissioner has indeed taken
the government of the day to court and actually got information which was
publicly released.
The
problem under section 4(2) of the Energy
Corporation Act is if I asked for information – as an example, the embedded
contractor information – Nalcor can just outright say, no, you're not getting
it. They don't have to give a reason. There's no requirement to give a reason or
any rationale and there's no appeal. They can look at it and say, no, you're not
getting it.
Every
single request that goes to Nalcor, under the
Energy Corporation Act, they can simply say you're not getting
anything. They don't have to explain it, they don't have to give a reason and
there is no appeal; just go away, I don't want to be bothered, you're not
getting it.
If we
were to change the Energy Corporation Act
similar to the ATIPP Act, that's all we would need to do is make an amendment to
section 4(2) that says if Nalcor says no, the same as ATIPP, then we could
appeal to the Privacy Commissioner. The Privacy Commissioner could look at the
request and then the Privacy Commissioner could, in theory, instruct Nalcor to
provide the information because he felt it was reasonable and there was no
reason why we couldn't get it. If Nalcor says no, then the Privacy Commissioner
could take Nalcor to court, the same as he could take a government department to
court.
If we want to get information out there, that's what we
need to do. As the Member said, it has nothing to do with this inquiry.
Legislation could be brought in tomorrow to change that section of the
Energy Corporation Act and a lot more information that people are
looking for would be put out there.
That's not what we're here to discuss tonight. We're here
to discuss the request from the commissioner to exempt the inquiry from ATIPPA.
Based on the parameters that are there, based on the law, based on the
Public Inquiries Act, based on the
Energy Corporation Act and the ATIPP
Act, I really don't see – as much as we would have liked and hoped that we could
get all this additional information through to ATIPP the inquiry, unfortunately,
that's not the way it works.
Even if we weren't exempted, instead of the Department of
Natural Resources saying, no, you can't have it because it's commercially
sensitive, the commissioner would be guided by the same policy and he would have
to say, no, you can't have it. Instead of Nalcor saying, no, you can't have it
because of the Energy Corporation Act
the commissioner would have to say, no, you can't have it.
If the commissioner can't give you anything additional that
you wouldn't already get or not get through Nalcor or through the department,
then why waste your time, why waste his time looking for information through the
back door that you couldn't get through the front door? I think that's the whole
point and I think that makes sense.
As much as I would certainly – and I'm sure everyone would
like to see a situation where we could obtain more information, unfortunately,
that's not the way it's going to work.
Will
there be more information that will come forward through the inquiry? I'm sure
there will be. There's going to be information that will be obtained by the
commissioner. It will come through the inquiry and it will be discussed
publicly. There will be a number of public exhibits.
I'm
told, in speaking with Mr. Learmonth who I've spoken to now on a couple of
occasions, that those public exhibits are going to be posted on a website for
the whole world to see. So anybody will be able to go in to the inquiry, they'll
be able to listen to the inquiry, they'll be able to go into the website and any
public exhibits – and that's the key – will be made available.
That
doesn't mean everything is going to be made available because when the
commissioner is determining what – he gets all the information. When he's
determining what will be public, the counsel for Nalcor, for the Department of
Natural Resources and the Department of Justice could say to the commissioner:
You can't release this information. Obviously, they would have to – through
their lawyers interacting – decide whether or not it could be made public or
not.
It could
go to the courts. The commissioner could say I intend to make this part of the
public documentation and Nalcor's lawyer can say: Oh no, you're not, Mr.
Commissioner, take it to court and let a judge of the court decide whether or
not it's going to be public or not.
There's
going to be a lot of stuff that people are hoping was going to be seen that
isn't going to be seen. There's no doubt about that. I guess the concern the
public has on a lot of this is will any of that information, will any of that
evidence be what some people would view as the smoking gun. Some people believe
there are some smoking guns here. Whether there is or isn't, who knows. I guess
we'll find out, hopefully. People feel there will be information that Nalcor
won't release and documents that will be hidden from the public, hidden from the
inquiry, not made public because it's going to implicate certain things, certain
people. It could implicate the government.
I can
understand why the government – by the way, I had discussions with officials in
the Department of Justice on a subsequent bill we are going to be talking about
regarding client-solicitor privilege and all this stuff. I can understand their
concerns about not wanting to make every single thing public. I get it because
there could be some legal opinions thrown into this inquiry that could have –
for argument sake, there could be a legal opinion on where we stand legally with
Quebec on some of these issues that could be totally detrimental, in theory, if
it fell into the hands of Hydro-Québec or whatever in some other subsequent case
that has something to do maybe with the Upper Churchill.
I
understand the reason why they can't just simply take every single document and
throw it all out there for public consumption and let anyone take it and use it
any way they wish. It could result in lawsuits against the government which is
not in the best interests of the province. I get that.
It is a
balancing act. That's why the commissioner is there to balance those things and
make those calls. Like I said, if there are things that he wants to release that
the province or Nalcor feels he shouldn't because they feel it will be
detrimental in some other way, they can certainly argue that point. They can
certainly go to court on that point. But there's no doubt there will be things
that are not going to come out in this inquiry and I understand people are not
happy about that. Again, it's going to be a balance, there's no doubt.
As for
this particular request, as I said, I was initially concerned, but after
speaking to the Privacy Commissioner, understanding the fact that this is not
going to stop information from coming out any more than would have come out
anyway – but, again, it's just saying if you want information, you're entitled
to it. You can go to the department and do an ATIPP. If you want to go to the
commissioner, he's only going to apply your request for that ATIPP the same as
if you had applied through the department.
Why not
let the department do it instead of tying up the Commission of Inquiry doing the
same thing? That's the rationale. The rationale makes sense to me. I'd love to
see more information out there. Unfortunately, there are going to be some
constrictions there, no doubt about it – some restrictions, I should say. I
guess we'll see how it all plays out.
At the
end of the day, I don't see anything unreasonable about the request other than
the disappointment in knowing – and the public would have – that not everything,
not every shred of evidence they were hoping was going to come forward for the
whole world to see, is likely not going to happen. Hopefully, all the important
stuff does come out.
Hopefully, the Commissioner is going to apply good judgment in this whole
process. Hopefully, if there are things that come out that show things weren't
done properly and not done above board, then there will be accountability for
those involved. That's all we can ask and hope for and I certainly hope that
happens.
Thank
you, Mr. Speaker.
I will
be supporting this bill.
SOME HON. MEMBERS:
Hear, hear!
MR. SPEAKER:
The hon. the Leader of the
Official Opposition.
MR. P. DAVIS:
Thank you, Mr. Speaker.
I'll
just take a few minutes this evening to discuss this matter. It was discussed at
great length back on February 1 at the Management Commission. The Management
Commission met in a public meeting here in the Chamber. Co-counsel of the
inquiry, Kate O'Brien and Barry Learmonth, attended. We had a very lengthy
discussion at the Management Commission.
Mr.
Speaker, I remember the result at that point in time of the debate. The decision
came down to – it was a split vote. Actually, I know the chair of the day, the
Member for Springdale – is it just Springdale – was Chair at the time and broke
the tie on the vote.
I'm not
going to repeat everything that everyone has said here today because there seems
to be – there are two positions here in the Chamber, Mr. Speaker: you're either
in favour of exempting the inquiry or you're not. It's been a discussion, I can
tell you, that my colleague who sits on the Management Commission with – he and
I had extensive discussion on this. I've talked to colleagues on this side of
the House on this; we've had extensive discussions on it as well. So it's
something that has been talked about publicly as well, not just amongst Members.
It's a very difficult decision.
One of
the aspects of the conversation that I find myself going back to is back to
2014-2015 when Justice Wells did a full review of the access to information
legislation. I don't need to remind Members because they still like to remind us
about how we came to a point where Justice Wells carried out a review of access
to information. What resulted – and I think everyone universally agrees with
that, within the province and outside the province. What Justice Wells delivered
was seen as the best legislation anywhere in the country today and I believe
that.
I also
believe legislation that provides the tight timelines, the access to information
that exists in Newfoundland and Labrador today, also comes with a burden in a
sense, to government who has to provide that information and meet the timelines.
I know there have been challenges within government to make them. They generally
meet those timelines and get information out as has been requested on time. But
I know sometimes it's a challenge for government to do that, especially if they
have an influx of access to information requests after a particular event or a
topic or a policy discussion takes place.
Justice
Wells also considered – and one of my colleagues brought this up at the
Management Commission – recommendations from Justice Cameron and discussions and
considerations that Justice Cameron brought forward. The conclusion was Justice
Wells decided to leave the legislation as it is today. It was this type of a
topic of discussion that took place.
Mr.
Speaker, there's one aspect of this is cost, I'm going to get to that in a
minute, but one is about access to information. I think that if we're going to
change what Justice Wells had done, then there is pretty serious consideration
that has to be made or taken to do so. It's one that, as I said, created great
conversation and hesitation in changing this.
I've
heard arguments about timelines. My colleague for Mount Pearl - Southlands just
talked about what's the difference if it's done through the inquiry or done
through Justice after. As Ms. O'Brien mentioned during our Management
Commission, she said when the inquiry is over they box up all the materials and
they send it to the Department of Justice. Anybody who wants to ATIPP the
Department of Justice at that point in time can do that and follow the ATIPP
rules as they exist.
For
example, if using contractors – as the Member for Mount Pearl - Southlands
talked about – then very easily the decision could be made, well, it's
commercially sensitive information, or for some other rule you're not going to
get the information, the information is not going to be released. Whereby, I
have to wonder if it was happening during the inquiry, would there be a
different approach or different implications to that.
Some
would argue, I'm sure – the minister may argue – no, it wouldn't change
anything. Some others may say: Well, let's just think this through; it may have
a different outcome. That's where I'm hesitant to agreeing with adding the
exemption under the act. If something could potentially be dealt with
differently through the inquiry process than afterwards through the Department
of Justice, and there could be a change or difference in that response, then
that's something we have to consider.
There's
been some discussion about cost. I know it's not the main point, but during our
discussion co-counsel for the inquiry suggested that in their estimation it
could be somewhere between a $300,000 and $400,000 cost to process ATIPP through
the inquiry. Again, I'd say if it's not going to happen in the inquiry, it could
very well happen with the Department of Justice.
Access
to information legislation is a costly process. We know democracy can be a
costly process, but access to information, as part of that, is a costly process.
The cost to do it, the work, resources necessary to process requests, shouldn't
be a prohibiting factor from someone making the request or accessing the request
as well.
Mr.
Speaker, I'm not going to comment or repeat what everyone else has already said
here. I've listened attentively to all of the debate, the minister as well, as
well as Members on this side of the House, but I just wanted to take a few
minutes to point out some of those concerns that still remain for me.
Thank
you, Mr. Speaker.
MR. SPEAKER:
If the hon. the Minister of
Justice and Public Safety speaks now he will close debate.
The hon.
the Minister of Justice and Public Safety.
MR. A. PARSONS:
Thank you, Mr. Speaker.
I'm
happy to stand here and speak to the conclusion of second reading of this
particular bill. I appreciate the comments from my colleagues across the way and
their input in this piece of legislation.
There
are a number of points and questions referenced. I think perhaps the best bet to
ensure that I answer them is to wait until the Committee stage to do so. I
certainly hope we'll have a thorough debate where we can ask the questions and
I'll certainly endeavour to do everything I can to provide answers.
I will
reference the comments made by the Member for St. John's East - Quidi Vidi. One
of the comments that the Member makes is that she was concerned about the
position that the commissioner was put in and feels that the commissioner only
did this because of government putting him in this position, put in a tough
spot, and about the timeline and everything else.
What I
would suggest is that Commissioner LeBlanc, Justice LeBlanc would not have
signed up for something that he did not think feasible or doable. He had every
opportunity to have input and to know the timeline. Again, Justice LeBlanc felt
this timeline was doable. So this was not a case of government saying: Well,
here it is, take it or leave it. Because if that's the case, I'm pretty
confident Justice LeBlanc would leave it.
These
commissioners need to have input on this. It bears their names. It's a
tremendous amount of work. It's a huge commitment of their time. So to suggest
that Commissioner LeBlanc was forced into this and had no say is simply
incorrect. Government did not put anybody in a hard position here.
All
government wants is to get the information here, to have the inquiry proceed as
quickly and expeditiously as possible, to comply with what Justice LeBlanc wants
and what our Commissioner of Information and Privacy, Mr. Molloy, is also saying
is quite appropriate.
Thank
you.
MR. SPEAKER:
Is the House ready for the
question?
The
motion is that Bill 33 be now read a second time.
Is it
the pleasure of the House to adopt the motion?
All
those in favour, 'aye.'
SOME HON. MEMBERS:
Aye.
MR. SPEAKER:
All those against, 'nay.'
This
motion is carried.
CLERK (Murphy):
A bill, An Act To Amend The Access To Information And Protection Of Privacy Act,
2015. (Bill 33)
MR. SPEAKER:
This bill has now been read a
second time.
When
shall the bill be referred to a Committee of the Whole House?
MR. A. PARSONS:
Now.
MR. SPEAKER:
Now.
On
motion, a bill, “An Act To Amend The Access To Information And Protection Of
Privacy Act, 2015,” read a second time, ordered referred to a Committee of the
Whole House presently, by leave. (Bill 33)
MR. SPEAKER:
The hon. the Government House
Leader.
MR. A. PARSONS:
Thank you, Mr. Speaker.
I move,
seconded by the Minister of Municipal Affairs, that the House resolve itself
into a Committee of the Whole to consider Bill 33.
MR. SPEAKER:
It is moved and seconded that
I do now leave the Chair for the House to resolve itself into a Committee of the
Whole House to consider the said bill.
Is it
the pleasure of the House to adopt the motion?
All
those in favour?
SOME HON. MEMBERS:
Aye.
MR. SPEAKER:
All those against?
The
motion is carried.
On
motion, that the House resolve itself into a Committee of the Whole, the Speaker
left the Chair.
Committee of the
Whole
CHAIR (Warr):
Order, please!
We are
now considering Bill 33, An Act To Amend The Access To Information And
Protection of Privacy Act, 2015.
A bill,
“An Act To Amend The Access To Information And Protection Of Privacy Act, 2015.”
(Bill 33)
CLERK:
Clause 1.
CHAIR:
Shall clause 1 carry?
The
Chair recognizes the hon. the Member for St. John's East - Quidi Vidi.
MS. MICHAEL:
Thank you very much, Mr.
Chair.
The
minister heard me speak to this question so I'm going to put it to him now and
hope that he'll have an answer that we couldn't get from co-counsel of the
inquiry. Rightly so; I understand why they wouldn't have had the answer to it.
Minister, what I'm looking at is when the documents from the inquiry get turned
over to the government: number one, is it a correct assumption that they will go
to the Department of Justice; and then, number two, what will be the protection
for those documents?
Will
they be totally in the hands of Justice? If ATIPPA requests get made, it's the
Department of Justice that will make the decision around responding to the
ATIPPA? Or will the documents, while they're maybe in the Department of Justice,
are still under the authority of where they originally came from which would
mean Nalcor would be protected outside of ATIPPA?
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
Thank you, Mr. Chair.
It's a
good question by the Member opposite. It's my understanding the information will
be governed by section 28 of the Public
Inquiries Act, which means that Cabinet will dictate the policies and
procedures which guide the information.
With the
Cameron inquiry, my understanding is that information did go back to the
Department of Justice with a letter from Justice Cameron basically saying what
could be released and what could not. For the Dunphy inquiry, the information
went back to Justice. Right now, there is nothing set in stone as to what would
happen. It's my anticipation that it would likely come back to the Department of
Justice similarly with a letter explaining what can be released and what cannot
be released.
I
believe the information for Cameron was people's personal health information,
stuff that nobody would anticipate or expect to be released. The rules have not
been totally laid out. What I can say is that once it comes back, though, it is
governed by ATIPPA.
Your
question is if you have Nalcor information under Justice, is it governed by
Nalcor or governed by Justice. What I would suggest is that there are certain
pieces of legislation even then that supersede ATIPPA. I think the
Energy Corporation Act that you
referenced, section 5.4 says that there's certain commercially sensitive
information that cannot be released.
There's
still a little bit of work left to be done on that, but it's my anticipation
that it would come back to Justice, that it would likely be held by Justice. But
depending on the third party information, there may be some further
conversations that have to happen and then we have to look at the legislation
there as well.
MS. MICHAEL:
Thank you.
CHAIR:
The hon. the Member for Mount
Pearl - Southlands.
MR. LANE:
Thank you, Mr. Chair.
Mr.
Chair, a question for the minister. I just want to clarify this point. I made it
in second reading; I just want his view if I'm on the right track on it.
As
indicated, and when I certainly spoke to the Privacy Commissioner, my
understanding of it is that if the inquiry, for example, didn't get this
exemption and hence they were required to abide by ATIPPA, then if I made a
request to the inquiry, the same rules are going to apply if I had made it to
the Department of Justice or Natural Resources. In other words, the whole notion
of applying to the inquiry versus the department is really kind of a waste of
time, it's redundant anyway.
I
wouldn't get anything extra from the inquiry even if they were deciding to
entertain ATIPPA because they'd say if something was deemed commercially
sensitive or private information or whatever in the Department of Natural
Resources, whatever test they would use to make that determination, the inquiry
would use the same test. It's not like we're depriving anyone of any additional
information. All we're saying is anything that you would want to ATIPP the
inquiry for, you would get the same thing if you just ATIPPed the department
anyway. So why go through that extra step.
CHAIR:
The hon. the Minister of
Justice and Public Safety.
MR. A. PARSONS:
Thank you, Mr. Chair.
I'll try
my best to answer that. I certainly understood the question that the Member
asked.
What
Justice LeBlanc has said is, yes, we want to be exempted from ATIPPA because we
do not want to have to comply with the provisions which demands a lot of time.
He's saying I want to get it done within the two years. We all know the
limitations, the rules and responsibilities that ATIPPA places. I think the
Leader of the Official Opposition mentioned it, that when you apply there are so
many days and everything else. They're saying we do not want to have to deal
with that, that's going to prevent us from doing our job.
A couple
of things: (a) that exemption only lasts while we're there; (b) as you say, the
information will go back into the department and then ATIPPA would apply. It's
the same way now. If you made an access to information request to Justice for X
documents, then ATIPPA applies, but there are also certain pieces of
legislation.
Like if
you were to look at Schedule A of the ATIPP Act it lists out all the different
pieces of legislation which take priority over ATIPPA. I'm not going to
reference the sections, but Adoption Act,
Adult Protection Act,
Energy Corporation Act,
Evidence Act,
Fish Inspection Act, Highway
Traffic Act. There's a whole bunch of different pieces of legislation that
already have that priority there that cannot be revealed for various reasons.
Whether there's health, safety, you name it.
So, I
think I agree actually with the point you're trying to make, is that this not
about preventing information from getting out. The information will get out
there. It's going to be put out during the Commission process. There is certain
information that will not be able to be released for various reasons, as they
wouldn't be now. Again, I can only state the overlying goal here for any
inquiry. I don't see why you would want to do an inquiry, unless you want to get
out as much information as possible with reasonable limitations.
CHAIR:
Shall the motion carry?
All
those in favour, 'aye.'
SOME HON. MEMBERS:
Aye.
CHAIR:
All those against, 'nay.'
Carried.
On
motion, clause 1 carried.
CLERK:
Clause 2.
CHAIR:
Clause 2.
Shall
the motion carry?
All
those in favour, 'aye.'
SOME HON. MEMBERS:
Aye.
CHAIR:
All those against, 'nay.'
Carried.
On
motion, clause 2 carried.
CLERK:
Be it enacted by the
Lieutenant-Governor and House of Assembly in Legislative Session convened, as
follows.
CHAIR:
Shall the enacting clause
carry?
All
those in favour, 'aye.'
SOME HON. MEMBERS:
Aye.
CHAIR:
All those against, 'nay.'
Carried.
On
motion, enacting clause carried.
CLERK:
A bill, An Act To Amend The
Access To Information And Protection Of Privacy Act, 2015.
CHAIR:
Shall the title carry?
All
those in favour, 'aye.'
SOME HON. MEMBERS:
Aye.
All
those against, 'nay.'
Carried.
On
motion, title carried.
CHAIR:
The hon. the Government House Leader.
MR. A. PARSONS:
I move, Mr. Chair, that the
Committee rise and report Bill 33.
CHAIR:
The motion is that the
Committee rise and report Bill 33.
Shall
the motion carry?
All
those in favour, 'aye.'
SOME HON. MEMBERS:
Aye.
CHAIR:
All those against, 'nay.'
Carried.
On
motion, that the Committee rise, report Bill 33 carried without amendment, the
Speaker returned to the Chair.
MR. SPEAKER (Trimper):
The hon. the Deputy Chair
of the Committee of the Whole.
MR. WARR:
Mr. Speaker, the Committee of
the Whole have considered the matters to them referred and have directed me to
report Bill 33 without amendment.
MR. SPEAKER:
The Chair of the Committee of
the Whole reports that the Committee have considered the matters to them
referred and have directed him to report Bill 33 without amendment.
When
shall the report be received?
MR. A. PARSONS:
Now.
MR. SPEAKER:
Now.
When
shall the said bill be read a third time?
MR. A. PARSONS:
Tomorrow.
MR. SPEAKER:
Tomorrow.
On
motion, report received and adopted. Bill ordered read a third time on tomorrow.
MR. SPEAKER:
The hon. the Government House
Leader.
MR. A. PARSONS:
Thank you, Mr. Speaker.
Given
the hour of the day, I'd like to thank my colleagues for their co-operation in
moving this legislation forward and I would move, seconded by the Member for
Torngat Mountains, that the House do now adjourn.
MR.
SPEAKER:
It
is moved and seconded that this House do now adjourn.
Is it the pleasure of the House to adopt the motion?
All those in favour, 'aye.'
SOME HON. MEMBERS:
Aye.
MR.
SPEAKER:
All
those against, 'nay.'
This House stands adjourned until tomorrow at 1:30
o'clock.
On motion, the House at its rising adjourned until
tomorrow, Tuesday, at 1:30 p.m.