Hon. Ms. Friesen, Hon. Mr. Mackintosh

Bill 6–The Fortified Buildings Act

Madam Clerk Assistant (JoAnn McKerlie-Korol): Good morning. Will the Standing Committee on Law Amendments please come to order. The first order of business is the election of Chairperson. Are there any nominations?

Mr. Gregory Dewar (Selkirk): I nominate Mr. Martindale.

Clerk Assistant: Mr. Martindale has been nominated. Are there any further nominations? Mr. Martindale, please take the Chair.

Mr. Chairperson: We also have a vacancy in the position of Vice-Chairperson. Are there any nominations for the position of Vice-Chairperson?

Mr. Dewar: Mr. Chairperson, I nominate Mr. Schellenberg.

Mr. Chairperson: Mr. Schellenberg has been nominated. Are there any further nominations? I declare Mr. Schellenberg elected Vice-Chairperson.

This morning, the committee will be considering the following bill: No. 6–The Fortified Buildings Act.

Does the committee wish to indicate how late it is willing to sit this morning? [interjection] It has been suggested we sit till the bill passes. Agreed? [Agreed]

This committee had, on May 7, just commenced clause-by-clause consideration of this bill, but, due to expiration of time and a problematic amendment, did not complete its deliberations. I am hereby suggesting that the committee start the clause-by-clause process right from the beginning. Would that be satisfactory to committee members? [Agreed]

Mr. Chairperson: Does the minister responsible for Bill 6 have an opening statement?

An Honourable Member: No.

Mr. Chairperson: Does the critic from the Official Opposition have an opening statement?

An Honourable Member: No.

Mr. Chairperson: We thank the members.

During the consideration of a bill, et cetera. Is that agreed? [Agreed]

Clause 1(1)–pass; clause 1(2)–pass; clause 1(3).

Mrs. Joy Smith (Fort Garry): I move

THAT subsection 1(3) be replaced with the following:

1(3) Notwithstanding subsection (2),

Mr. Chairperson: It has been moved by Mrs. Smith that subsection 1(3) be replaced–

Mrs. Smith: The bill already operates to exclude residential buildings from the term "fortified dwelling," if the dwelling has been fortified in a manner that does not exceed reasonable security measures commonly taken for a residential dwelling. The amendment proposed above responds to the concern that businesses that take normal security measures such as installing metal bars, et cetera, might be caught by the term "fortified building" and thus subject to this act.

This amendment would prevent the director from designating a commercial building as a fortified building if the fortifications are not just reasonable security measures commonly taken for commercial buildings. The amendment includes any structure or premises, as in a commercial setting, that may be necessary for security purposes to fortify perimeter areas such as yards, fences, parking lots, et cetera. So the alternate wording near the end of clause (b) should be considered, due to the many different types of commercial buildings and the different security measures necessary for each type.

So, basically, what I wanted to do is to tighten up and strengthen the bill by having this particular amendment passed.

Hon. Gord Mackintosh (Minister of Justice and Attorney General): I think that the research that she did in this area–because it is certainly a legitimate area of concern when drafting the bill. I will just describe our approach on this one, and explain that, because of certain considerations, the proposed amendment would actually, in our view, weaken the bill, not strengthen the bill, and I will explain why.

There was a great deal of discussion when section 1(3) was put together, and the reason that commercial dwellings were not specifically referred to in that particular section, but dealt with in other sections, was because of a concern that organized crime has, Mr. Chair, from time to time, operated out of commercial establishments through otherwise legitimate kinds of commercial activities.

For example, if organized crime was conducting a commercial business, whether it is a tow truck company, or the sale of some other product, the premises could well be fortified. It was important that we not have any provision in the legislation which could disallow the application of this legislation to those premises.

It was then determined that the best way to proceed here, while recognizing the legitimate interests of legitimate commercial interests to fortify their buildings, while at the same time getting at organized crime using fortifications to conduct criminal activity, the checks and balances would be put in the act as a whole, and, in particular, we note, first of all, the checks and balances in section 4(1) in terms of issuing a warrant in respect of a fortified building; but more particularly under section 5(2), the considerations that may be taken into account in the exercise of discretion as to whether a fortified building is a threat to public safety.

That is the key section: 5(2). In 5(2), we have, for example, (h) or (g), where there must be an examination of the use of the premises and whether the fortifications, for example, relate to the purpose for which the building is being used; whether the fortifications are reasonably necessary given the purpose for which the building is being used. As well, the other considerations, which, as a whole, can, I think, lead to a fair and just exercise of discretion.

What the amendment would do, in our view, it may well undermine and weaken the act, and disallowing the identification of a threat to public safety at a building, simply because it has fortifications that may be common to certain types of activity.

In other words, there has to be a more holistic look at the uses of a building. It has been a very difficult balancing exercise. That is why I respect the concern of the critic. We had, as well, gone through this exercise, and we think, as a whole, the legislation does adequately recognize the usefulness and the importance of fortification for some commercial operations, at the same time allowing the department and officials to deal with fortified premises that are not actually used for the legitimate purposes of a commercial establishment.

Mrs. Smith: I must say that it would indeed surprise me if the Attorney General did agree with this amendment because, politically speaking, our amendments are always voted down. [interjection] Well, I say 98 percent of the time, although you protest too loudly.

The reason why this amendment came in, Mr. Chair, was with thorough consultation with very knowledgeable people in this area, and it was brought forth because of the concern that was there. I would take it that, again, this amendment would probably be voted down by members opposite. We recognize, politically, that no amendments that we put forward on this bill will probably be accepted, but it is on record that this is what we would like to see happen, and I appreciate that. That is the end of that discussion.

Mr. Mackintosh: I do know it was the practice in the former configuration here for Opposition amendments to be routinely voted down, and, I think, not considered, but I would know that we are certainly interested in any way that any member of the Legislature can improve a bill. I think that is very important, and I think last session and the session before there were amendments that were accepted, either as originally worded or otherwise.

I know the Member for Lac du Bonnet (Mr. Hawranik), for example, had an amendment that was adopted, and I think that that is the approach that we bring to bear. We do not have an interest in cutting off contributions from the Opposition, but I just say–I do not want say it to repeat what I have said earlier–in our view this would not strengthen the bill. It would, in our view, tend to weaken it.

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We have consulted, at length, with these difficult issues with, for example, the inspector in charge of the Winnipeg Police Service's Vice Division, the representation from the Winnipeg Police Service Gang Unit, from the Fire Commissioner's office, from the City of Winnipeg Zoning and Permits Administrator, and, as well, from certain provincial agencies, such as the Land Titles Office in the public Prosecutions Division, as well as our legal counsel.

So I think that we have a sure-footed approach to this one, and if one only confines their examination to section 1(3), their examination, I think, will be skewed in terms of the checks and balances and the ability of the act to get to the nub of the problem which is: fortified buildings which are being created, or fortifications which are put in there, to harbour criminal activity.

Mr. Chairperson: All in favour of the amendment, please say yea.

Some Honourable Members: Yea.

Mr. Chairperson: All those opposed, please say nay.

Some Honourable Members: Nay.

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

Mr. Chairperson: Clause 1(3)–pass; clause 1(4).

Mrs. Smith: I would like to move

THAT section 1 be amended by adding the following after subsection (3):

1(4) The person appointed as Director must be a person who has been employed as a police officer or who, otherwise has practical experience in police work.

Mr. Chairperson: It has been moved by Mrs. Smith

THAT section 1 be amended by adding the following after subsection 3:

1(4)–

Some Honourable Members: Dispense.

Mr. Chairperson: Dispense. The amendment is in order.

Mrs. Smith: I know we did speak on this formally, and I am sure that I will hear, once again, that they have consulted with every man and his dog, members opposite, and I understand that. However, I too have done exactly the same, excluding the dogs.

Having said that, I have been very strongly advised that the person appointed as the director must be a person who has been employed as a police officer, or who otherwise has practical experience in police work. The reason why this should be part of the bill is: fortified buildings need to be identified by people who have experience in that area. I know, last day, the Attorney General glibly put out: Well, we do not do job descriptions in bills, but it is not the intent in this serious bill to map out job descriptions.

It is to strengthen the bill, and to make sure that the fortified buildings aspect is one that is dealt with. I have to say members on this side of the House are supporting this bill, trying to work co-operatively with members opposite to make sure that the bill does have strength. It is not a political statement. It is a statement that we believe on this side of the House that it is very important that police officers and law enforcement people, who have been trained in recognizing fortified buildings, have the opportunity to take part in being the director of this kind of bill.

Having said that, I would also point out that fortified buildings, often, contrary to popular belief, are not buildings that are easily spotted. In actual fact, fortified buildings are buildings that people discover, or police officers discover, after they have attempted to enter the building. That is when they find the steel-enforced doors and things like that occurring.

So, knowing that the Attorney General (Mr. Mackintosh) would appreciate the fact that having this kind of background would be very useful, I think, in the bill itself, stating that some law enforcement, some police officer training, that kind of thing be very important for a director. Someone who does not have this kind of training might not bring to this bill the kind of expertise that is needed to be enforced.

Mr. Mackintosh: Yes, I did go over this at some length last time, but there are a few other points I can leave on the record. The position was established in 1997 under The Civil Service Act, and is responsible for developing, administering the legislation and activities related to public safety in victim services and crime prevention; some of that legislation being quite innovative. The director is supported by an experienced and specialized investigation unit that has been established in the Public Safety Branch, whose duties now include conducting inspections under this proposed legislation.

The Director of Public Safety is responsible for overseeing not only the departmental but the intergovernmental public safety, victims' services and crime prevention activities in the province. The legislation that is overseen includes the Safer Communities and Neighbourhoods Act, as well as The Victims' Rights Act. The position is responsible for the management of personnel and resources related to the front-line delivery of public safety initiatives, crime prevention and victims' services, as well as the liaison with community groups and municipalities, federal government, First Nations.

The act that is before us has the administrative and investigative backing of highly skilled individuals within the department. The investigators in the Public Safety Branch Investigation Unit will be appointed to conduct the inspections under the bill, which the members opposite may not have been aware of. The staff members have combined police experience, investigation experience, of over 75 years. These inspectors are highly experienced in dealing with various levels of fortification and will have knowledge of what constitutes reasonable residential and business security measures.

The inspectors will then, of course, report to the Director of Public Safety. That position then will make a decision as to whether, in his view, a fortified building poses a threat to public safety based on the information received from these highly qualified inspectors and other sources.

We have in the room today, for example, Mr. L. Cameron, a person of over 26 years of experience with the Winnipeg Police Service, including the sergeant in charge of the Street Gang Unit, the sergeant in charge of the Hostage Crisis Negotiation Unit, sergeant in charge of the Anti-Crime Tactical Unit, detective and robbery, homicide, polygraph examiner, as well as coming from general patrol duties. But he has extensive experience in the planning and the organizing, the co-ordination of special projects, such as Northern Snow drug projects, execution of search warrants and raids, high-risk arrests, evidence collection, court testimony. He is also qualified to speak as an expert witness on Winnipeg street gangs in court, which is a very rare recognition by the courts in this country.

Mr. Cameron is then supported by, for example, Mr. Ron Hodgson with over 25 years of experience with Winnipeg Police Service. I am sure members opposite, as well, know of his background. He was a detective sergeant in the Street Gang Unit and the Organized Crime Unit. He has particular knowledge of street gangs and OM, outlawed motorcycle gangs. He was an investigator in youth. He was an investigator in the Child Abuse Unit, investigator in district detectives on a general patrol, too. He, as well, is recognized as an expert on Winnipeg street gangs.

Again, Winnipeg Police Service has done an extraordinary leadership job in specialization and targeted activity at gangs, and this department is highly enriched by their joining the Justice Department and, as well, Bob Freeman with 28 years experience with Winnipeg Police Service. He was a sergeant in charge of vice, drugs, a sergeant in charge of District 5 detectives and, of course, was on general patrol as well. He is qualified as an expert on a range of narcotics issues and so, with that kind of background experience and expertise, I think that this legislation has the necessary administrative and investigative backing to fulfill its objectives.

Mrs. Smith: Well, I thank you for that background information. The purpose of this amendment was to ensure that the director, as you know, would have the law enforcement and the police expertise behind it. What the Attorney General has basically said this morning is that this expertise is already there, so could I ask the Attorney General–there are two issues here.

Number 1, as wonderful as this expertise is, there is no guarantee that this expertise will always be there in the Justice Department. I would hope that it would be. This amendment would ensure that someone with law enforcement expertise would always be available. I understand the credibility that the Attorney General is talking about right now, when he talks about these people who are so connected to the expertise that is needed in fighting crime, in fighting gangs.

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It is very gratifying to hear that they are in this room and very gratifying to hear that they have had input into this particular law. We all know around this table that, at this point of time, it is great to hear that this has happened, that these experts are here.

The fact of the matter is that laws live forever. What I would like to see is that, be assured that, the amendment that asks that the director have law enforcement expertise, law enforcement credentials be put on permanent record.

I commend the Attorney General for giving that kind of expertise in terms of this particular bill. It is not a bill that we are opposing at all, and it will not be opposed on the floor of the House. We want to give all the tools to the police force that we possibly can. I do, again, appreciate the fact that the Attorney General quite clearly has expertise in this room that can give advice and give director advice. I still have concern, and members on our side of the House still have concern, that the director do have law enforcement expertise, so it is always there when these people are someplace else, when these people are not available, that in the laws of Manitoba, the director will always have law enforcement education expertise, whether it be on the police force, or whether it be in some other way.

That is not to undermine the expertise that is already here. As I have said, I commend the Attorney General for that and I understand that the director is, in theory, supposed to have access to that kind of expertise. I, indeed, would hope that the director always would have access to that kind of expertise so, perhaps, could the Attorney General assure members on this side of the House, or how could you assure members on this side of the House that the director would always have this kind of expertise available to him or her and who would, because we do not know really who the director would be, how could we be reassured that that would be available at all times?

I daresay, on this side of the House, we really cannot be reassured unless we have it tied in to that particular amendment.

Mr. Mackintosh: The legislation before us as well as a safer communities act requires the rallying of the expertise that I have described. I think that it demonstrates a commitment to this profile and this capacity of expertise. The legislation itself, I think, is what can assure the member opposite that investigative expertise is what is needed. I will just say, this was not, of course, involving political decision makers; this is involving hirings under The Civil Service Act and has been not only to recognize the need for this expertise but to be able to recruit persons from among the very best in Canada.

Mrs. Smith: I will acknowledge that the Attorney General values the expertise in this room and values the police force. I can understand that. Mr. Chair, could the Attorney General then tell me what would be the problem with accepting this amendment? If the Attorney General is so supportive of all the expertise and welcoming all the police expertise, then why in the world can this amendment not go through to ensure that does always happen?

Mr. Mackintosh: Well, with the front-line work being done with experts, as they have been recognized and hired, it lies with the Director of Public Safety then to make decisions based on that expert information. The decisions will be as good as the information that comes from the expertise, but, as well, that position has a broader role and has a role in overseeing the delivery of certain programs related to public safety that requires a number of other kinds of expertise and approaches. I think it is important to recognize, too, though, that it may well be that someone from a law enforcement background would be highly qualified for this position, but that kind of expertise would never be screened out. I think there is always a recognition of the different qualifications and background that an individual brings to a competition when the decision is made to hire.

Mrs. Smith: To put some meat to this bill and to ensure that the bill is strengthened, and members on our side of the House definitely believe very strongly that the law enforcement and police expertise cannot be replicated. Knowing that the Attorney General is very, very supportive of the police force and recognizes the expertise that is there, why would the Attorney General leave it open to other people coming in with less expertise, and if the Attorney General is so supportive of the police element and the expertise in law enforcement, Mr. Chair, why in the world would the Attorney General not endorse this amendment and ensure Manitobans that the director here would be a person who is either from the police force or has law enforcement training?

Mr. Mackintosh: Well, first of all, I just want to assure the members that I have real confidence in the incumbent to do this kind of work. This is a person of outstanding ability, who worked under the former administration and the current administration in related capacities, and his appointment to this position–and I am uncomfortable getting into this, but I think I have to, just by the nature of the question–was won as a result of a rigorous process that members opposite know full well, how those checks and balances work. It was done with all of the techniques that are known to establishing a highly effective public service in this province.

I might just as well outline the job summary. It states the following: To effectively perform the functions of director, the incumbent must possess a thorough knowledge of management theories, budgeting process, and understand extensively the factors that impact the crime trends and victimization throughout Manitoba. The director also requires a working knowledge of related departments, law enforcement organizations and community-based groups to ensure a co-ordinated and effective delivery of multifaceted projects and services that are applied to the Justice Department. Mr. Chairperson, the knowledge of human resource management and the applicable policies and legislation and agreements are also required. A basic knowledge of information systems and the interlinkage between various systems utilized by partner organizations are mandatory to ensure that programming designs and initiatives do not conflict with the operations of other organizations.

The Director of Public Safety must ensure the co-operative and comprehensive delivery of the program areas within the mandate of the Public Safety branch be delivered through a series of program management skills, interpersonal negotiation skills, leadership skills, financial management writing and analytical skills, and the ability to motivate staff and communicate effectively and efficiently to ensure projects are delivered in a timely and efficient manner.

The comprehensive knowledge of Manitoba and the social democrat variances that exist is a must for this provision. The experience, as well, should be related to crime prevention and victims' issues across a broad spectrum, ranging from community approaches to the judicial process and a proven record that demonstrates the ability to communicate effectively in functioning in the demanding work environment is also required.

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So, again, the incumbent met that standard of qualification. I think it is important to remember that when we have these approaches, there are a number of different skills and backgrounds that could come to bear, when the collectivity, like the Justice Department, makes decisions under legislation.

I think, too, if this amendment was accepted, it would have the likely effect of excluding someone, for example, of the calibre of the incumbent, or others that come from similar backgrounds.

Mrs. Smith: I must say that members on this side of the House and I believe very strongly that the incumbent is a very, very competent person, and does the job extremely well. I have no argument. I have to say that this bill is not about right now. I am trying to look into the future, into what could happen with the strained police resources, with the challenges that are happening out there on the street. As lawmakers, I think we have to be very responsible and very careful with what we do. There is no doubt that the person presently in this position is extremely competent and very knowledgeable.

But, when we put a law in place in Manitoba, the law lasts for a long, long time, and those people are not always there. There are lots of things that could be done to ensure that, if this amendment were accepted, the current person would stay, and continue as long as he felt it was something he wanted to do. But to ensure the future, when we see the rising stats across Canada, when we look at the jury stats, and see the rising membership and gang activity here in the province of Manitoba, I guess, quite clearly I think it is very important that we make bills that do not allow for political hacks to come in and do things with them.

I think that, when you have a fortified buildings bill or any bill like this that is directly involved with police strength and police activity, it is important that we have someone with law enforcement background, not necessarily a police officer, but with police background, police training, that would be connected to the actual directorship of this kind of legislation.

As I say, it is not about the here and now. It is not about today. When we look at bills, we have to look into the future, and these past two years have seen many challenges. I am sure the Attorney General (Mr. Mackintosh) would concur with that. I know now we have a very good person, but in the future, often there are political appointments made, political things that happen, political hacks, if you will, that get into positions, that really do not have the expertise that we have right now at this point in time. And we do have this expertise. If I could be reassured, as the incumbent has, if I could be reassured, then I would not be worried about it. But there has been a pattern that has been set up, and I think that we need to be very, very careful to ensure that the police forces are strengthened in every way that we can.

The problem is, when police have to implement the policies that government officials make, out on the streets, it is very hard to do. I will acknowledge that the Attorney General is a lifetime politician. I am not. I taught school for 22 years and I am a recent politician and perhaps he can look at things a little differently. [interjection] Well, the majority of your political life, let us put it that way. I can understand the political input, and without mincing words, ladies and gentlemen, we have to put laws in that are solid and that do not have loopholes in them. I feel that very strongly. Members on our side of the House feel that if it is not connected to ensure that the director is connected to a person, either a police officer or someone who is connected to law enforcement, I think that we would be remiss in this bill. I am sorry members on our side will not be intimidated by anything else. The incumbent is very, very responsible, a great person to have in place at this time and should continue in that capacity, in my view.

The fact of the matter is we have to have an amendment in place that does connect it to law enforcement to ensure that this bill, when it sits in the Legislature, and over the years when it is employed on the streets, we have to have it connected to the police force in such a way that the director has this kind of expertise.

Mr. Mackintosh: Well, I will deal with a number of issues. One that is not relevant, but to characterize me as a lifetime politician, by the way, is rather humorous. I have been in this House for eight years and I am more than eight years old. The member should know my background. There is a biography available, but if she does not, she can know my background as a human rights officer, as a lawyer in a private firm, my work as a deputy clerk of the Legislature. So I do not know where that comes from or how relevant that is.

If the member, indeed, is of the view that the incumbent is a great and qualified public servant, and I would agree with that, then this amendment would have the immediate effect of dismissing the director from his duties. I think there is some inconsistency there. I will just conclude by saying that I find it difficult to accept that if this amendment was not agreed to that political hacks would come into this position, or, I mean, that is just not the way that this works. I think that is unfortunate. I will just conclude by saying, again, that this legislation is backed up by 75 years of combined police experience.

Mr. Chairperson: Shall the amendment pass?

Mrs. Smith: I realize the dilemma when there is an incumbent that does not have the police background, and probably has got a lot of the expertise, that I would have a struggle with, as well, because he is an extremely confident person. I want it on record that–I am trying to look at members on this side of the House–we are trying to look at the future, trying to look at the challenges that are there.

Yes, I am fully aware of the Attorney General's background and I do commend him for this particular bill, but the fact of the matter is that we need to look at legislation that lasts for a long time. We need to put it in to support the police force in their jobs. Members on this side of the House feel very strongly that this would enforce it and this would help to do that. We can continue now because I know very well that the amendment will be voted down.

Mr. Chairperson: Just so that Hansard knows what we are voting on, I am going to read. It has been moved by Mrs. Smith

THAT section 1 be amended by adding the following after subsection (3):

Qualifications of Director

1(4) The person appointed as Director must be a person–

Shall the amendment pass?

Some Honourable Members: No.

Some Honourable Members: Yes.

Mr. Chairperson: All those in favour of passing the amendment, please say yea.

Some Honourable Members: Yea.

Mr. Chairperson: All those opposed, please say nay.

Some Honourable Members: Nay.

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

Mr. Chairperson: Clause 2(1)–pass; clause 2(2)–pass; clauses 3(1) to 3(4)–pass; clauses 4(1) to 5(2)–pass; clause 5(3)–pass; clauses 6(1)–

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Mr. Mackintosh: We have an amendment to 6(1)(a):

I move

THAT clause 6(1)(a) be amended by adding "or the property on which the building is located" after "from the building".

Mr. Chairperson: It has been moved by Mr. Mackintosh

An Honourable Member: Dispense.

Mr. Chairperson: Dispense.

The amendment is in order.

Mr. Mackintosh: This strengthens the legislation somewhat and certainly clarifies the legislation to ensure that there can be an order requiring the removal of fortifications, not only from the building, but from the property around the building, where there may be in circumstances, for example, fencing or other construction, that should be addressed by way of an order.

Mr. Chairperson: Amendment–pass; clause 6(1)(a) as amended–pass; clause 6(2)–pass; clause 6(3)–pass; clause 7(1)–pass; clause 7(2)–pass; clause 7(3)–pass; clauses 7(4) to 9(2)–pass; clauses 10(1) to 11–pass; clauses 12(1) to 12(4)–pass; clauses 13(1) to 14(3)–pass; clauses 14(4) to 15(2)–pass; clauses 15(3) to 18–pass; clauses 19 to 21–pass; table of contents–pass; preamble–pass; enacting clause–pass; title–pass. Bill as amended be reported.

The hour being 10:45, what is the will of the committee?

Some Honourable Members: Committee rise.

Mr. Chairperson: Committee rise.

COMMITTEE ROSE AT: 10:45 p.m.