Thank you. The motion is in order. To the motion. Member for Thebacha.

Mr. Chairman, the new section submitted in my amendment under (1.1), I believe, forces the Legislative Assembly to make a determination where there is a discharge or an indictable offence and the addition of "or discharge of' in subsection (2) does the same thing where there is the discharge of a summary conviction offence.

I think, for further clarification, if I may, I will ask legal counsel to explain this. It's basically allowing the Legislative Assembly to be able to determine where there is an indictable offence discharged to be able to find out whether it's in the public interest to remove that Member. If I may, I will ask legal counsel to further explain, Mr. Chairman. I would appreciate that. Thank you.

Thank you. Ms. Stewart, legal counsel.

Thank you, Mr. Chairman. As the Member has indicated, the motion has the effect of requiring the Legislative Assembly to make a determination of whether or not it is in the public interest and in the interest of the Legislative Assembly to expel the Member if he or she is found guilty of and is discharged of either an indictable or a summary conviction offence. It is broken into two paragraphs because the present Bill 32 deals with each type of offence separately.

Thank you. To the motion. Mr. Allooloo.

Mr. Chairman, how is this amendment different from the original? Could somebody explain to me what the differences are between the motion and the bill?

Thank you. I recognize legal counsel.

Thank you, Mr. Chairman. The bill as it stands provides that if a Member is convicted of an indictable offence, first of all, then they will automatically lose their seat. If they are granted a discharge, that provision will not apply because they are not considered to be convicted of an offence.

Similarly, in the bill under consideration, where the Member is convicted of a summary conviction offence, the Legislative Assembly has to make a determination of whether they ought to be expelled. Under the motion, it will cover both the situation where they are found guilty and convicted --in other words, under those circumstances, if they are convicted they are automatically expelled --or if they are found guilty of and discharged, then the Legislative Assembly will have to make a determination whether they ought to be expelled, in both the circumstances of an indictable offence and a summary conviction offence.

So, under the bill, it's automatic if they are convicted and nothing happens if they are discharged. Under the motion, if they are discharged, then the Legislative Assembly has to make a determination, so it's forced to make a determination in the event of a discharge.

Thank you. To the motion. Mr. Lewis.

Mr. Chairman, I thought that one of the things that this act did, and it may be one of the most significant things, is that, because of the work that's gone into this, we've suddenly been brought face to face with the fact that as a Legislature, we have all kinds of powers. They already exist, and they are not enshrined anywhere. It's just that convention means that we can do all the things that this particular amendment would achieve anyway. So I would like to ask, Mr. Chairman, what in this particular amendment can't be achieved under 6.2, because under 6.2, as I understand it, we can do all the things that are referred to in this amendment?

Thank you. Ms. Stewart.

Thank you, Mr. Chairman. The Member is correct that under 6.2, the Legislative Assembly can do everything that it can do under the motion. The motion forces the Assembly to make the determination. That's the only difference between the motion and 6.2.

Mr. Chairman, there has been a lot of work done on this bill by the committee and by counsel for the Department of Justice, and I think we have a good bill that is acceptable.

I am a little leery about amendments that are brought on the floor without much notice. I am satisfied from the last question that Mr. Lewis asked, that, under the present bill before us, section 6.2 gives the Assembly absolute power to consider every situation that might involve Members' conduct, whether that situation leads to a conditional discharge or an absolute discharge, or whether that conduct even comes to court.

I don't think we should fool around with that inherent right. It's spelled out clearly in 6.2. I don't think the future Assembly needs to be told, you have to use it in this situation. You shall use it in this situation. I trust the good judgement of the Members of the Legislative Assembly to exercise that inherent right where appropriate and as appropriate.

So I find the amendment superfluous and unnecessary, and I am going to vote against it. Thank you.

Thank you. There was no question from Mr. Patterson. To the motion. Mr. Whitford. No? Make up your mind, Mr. Whitford, yes or no. Thank you. To the motion. Mrs. Marie-Jewell, and then I have Ms. Mike. Mrs. Marie-Jewell.

Thank you, Mr. Chairman. I find some of Mr. Patterson's comments to be somewhat offensive. I expressed these concerns in the Standing Committee on Legislation, and Mr. Patterson is on that committee; well, you hung around that committee enough.

---Laughter

A committee groupie.

Mr. Chairman, I find that this bill ...If Mr. Patterson is talking about the inherent right of this Assembly, this bill and the intent of this bill is already in the act of the Assembly; all we're doing is making it more specific. What I'm doing is trying to attempt to close a loophole. For example, nothing is stopping some sophisticated individual from this Assembly from being found guilty of an offence, getting a good lawyer --whether it's O.J. Simpson's lawyer or whomever --to come in and basically plead for a conditional discharge, taking into account that the Member could lose their seat, they could be publicly embarrassed and the judge may have sympathy and give that Member a conditional discharge after that Member may have slapped his or her spouse around.

I think the intent of this bill was to remove Members who conducted themselves in that manner. If you get a conditional discharge, basically you're allowing those Members to sit in the House. I think we're, again, creating double standards for ourselves. What I'm trying to do is be specific: it you're found guilty of a violent offence of or an offence involving sexual exploitation of children, then you're guilty and you should be out of the House. No ifs, ands or buts. That's the intent of this amendment.

Mr. Chairman, I think I've made it fairly clear that I don't think we can allow ourselves to set double standards among Members because no Member is better than the other; we're all elected by our constituents to represent them. I certainly hope that Members will consider this amendment and support the amendment. With that, Mr. Chairman, I would like to ask for a recorded vote. Thank you.

Thank you. I would like to remind the Members, without taking the Member's right to freedom of speech, not to make a statement that may provoke argument in the committee. On the list I have Ms. Mike.

Thank you, Mr. Chairman. I have a few comments to make to remind the Members here that I think our Assembly has a fairly good track record of Members stepping down. As I recall, one Member resigned a seat even before the court appearance, as soon as the complaint was laid against him of sexual assault. There were two other Members after that. I agree with Mr. Lewis that we do have the convention that we can do just about anything in this House if we are not happy or not satisfied with the way Members conduct themselves.

The other thing, as well, is that last fall we passed a bill that allows inmates to vote, which is part of a democratic right. Here we are sitting down, basically trying to halt the democratic process that Canada has been so famous for. With this particular amendment, the way it is, I have a problem supporting it. Thank you, Mr. Chairman.

Thank you. To the motion.

Question.

Question has been called. It is a recorded vote. All those in favour of the motion, please rise.

Recorded Vote

Mrs. Marie-Jewell, Mr. Dent.

All those opposed to the motion, please rise.

Mr. Patterson, Mrs. Thompson, Mr. Ballantyne, Mr. Koe, Mr. Allooloo, Mr. Arngna'naaq, Mr. Ng, Mr. Pollard, Ms. Cournoyea, Mr. Morin, Mr. Todd, Mr. Nerysoo, Mr. Whitford, Mr. Lewis.

All those abstaining, please rise.

Mr. Zoe, Mr. Antoine, Ms. Mike, Mr. Pudluk.

Thank you. We have two yeas, 14 nays and four abstentions. The motion is defeated.

---Defeated

For the record, at the witness table we have Mr. Dent and Ms. MacPherson and we are dealing with clause 2 of Bill 32. Mrs. Marie-Jewell.

Thank you, Mr. Chairman. I recognize that under the current Legislative Assembly and Executive Council Act, the Members of this Assembly have under convention as it's stated by other Members, the ability to punish Members who have been convicted under the Criminal Code. Whether the Members decide to do so is up to the Members of this Assembly. I've been a Member for the past eight years and I've noted that whether a Member gets into any type of trouble with the law, when it comes into the public forum all Members stay quiet about it. Members may apologize to the House or whatever, but whether we actually enforce that act or not is discretionary.

I would like to ask legal counsel whether there is a need for this particular clause since it's my understanding that under our current act, we can discipline a Member accordingly. I would like some clarification on that. Thank you.

Ms. Stewart, the legal counsel.

Thank you, Mr. Chairman. As has already been mentioned by a number of the Members, in fact, clause 2 is a very specific instance or a specific example of a power that already rests in the Legislative Assembly. The Legislative Assembly has the power, has the right to expel Members for such reasons as it sees fit, provided that it does not attempt to limit the ability of the Member to run again and be re-elected. That's how it does exist in the Legislative Assembly at the moment.

Thank you. Clause 2. The Member for Thebacha.

Can I get clarification? Under the current act that we're amending, the Legislative Assembly has the right or the power to expel a Member if they feel it's in the public interest to remove that particular Member. Is that correct?

Ms. Stewart, legal counsel.

Thank you, Mr. Chairman. I'm sorry, I wasn't perhaps as clear as I might have been. The power does not exist in statute or in the Legislative Assembly and Executive Council Act. The power is an inherent power. It exists to protect the honour and the integrity of the legislative Assembly so it does not exist in the act. It is an inherent power and it does permit the Legislative Assembly to do the things that are set out in clause 2, whether clause 2 exists or not.

Thank you. Member for Thebacha.

Mr. Chairman. I'm just trying to determine...It is not currently in our act to discipline other Members, is that correct?

Ms. Stewart, legal counsel.

That's correct. It's not set out in the act. It is one of the privileges of the House, in the same way that the House might have a privilege with respect to defamatory statements that might be made in the House, control over publication, the ability to exclude strangers from the House, that kind of matter. It's an inherent power, an inherent privilege of the Legislative Assembly.

Thank you. Clause 2. Mrs. Marie- Jewell.

Thank you, Mr. Chairman. I'm trying to get some clarity about how to avoid double standards, where Members are convicted by the law. Can we get some kind of legal opinion with respect to double standards being created by this clause, in the event it passes? There may be cases where Members are found guilty of an offence and where other Members are found guilty and given a conditional discharge; the Member found guilty and convicted cannot sit as a Member, and the other Member found guilty and given a conditional discharge can sit. Therefore, is it correct to state that clause 2 can cause double standards in the amendment to the Legislative Assembly and Executive Council Act that is being put forth?

Legal counsel, I don't know if you can answer the question about double standards in a legal aspect.

To the extent where there's a legal interpretation, Mr. Chairman, the interpretation would be that clause 2 creates one single standard. If the person is convicted, they will be dealt with in a certain way, depending on whether or not they're convicted of an indictable offence or a summary conviction offence. I suppose if there is a double standard, it would relate to the disposition of the person in the court but not in the Legislative Assembly. The single standard applies where there is a conviction.

Thank you. Clause 2. Member for Thebacha.

So, if that's the case, Mr. Chairman, how does it apply to Members who are found guilty and given conditional discharges?

Thank you. Ms. Stewart.

A person who is given a discharge is considered, in the eyes of the law, not to be convicted and therefore does not fall within the provisions of clause 6.1.(1) and 6.1.(2), Mr. Chairman.

Thank you. Clause 2. Member for Thebacha.

Thank you, Mr. Chairman. I would like clarification on clause 6.1.(2) where it reads "...where a member who, after his or her election, is convicted of an offence under the Criminal Code punishable on summary conviction." There is a section reading the following: "The Legislative Assembly shall, as soon as reasonably practical, determine whether it is necessary in the public interest and in the interest of the Legislative Assembly, to expel the Member from the Legislative Assembly and to declare that his or her seat is vacant."

Is this particular clause correct that the Assembly can remove an elected Member provided they are found guilty? If they are found guilty and given a conditional discharge, then they cannot remove that Member.

Thank you. Legal counsel, Ms. Stewart.

Thank you, Mr. Chairman. That interpretation of the Member is correct. If they are convicted, the process will ensue where the Legislative Assembly must make a determination. If they are found guilty or plead guilty, are found guilty and given a discharge, they are not considered to be convicted and no determination need be made under that section, although there is always the remedy under 6.2.

Right.

Thank you. Clause 2. Mrs. Marie-put Jewell.

So does that mean that if a Member is found guilty and given a conditional discharge, if this Assembly decides to remove that Member, in the event this bill passes, 6.2. will remove that Member in totality from his seat?

Thank you. Ms. Stewart.

Thank you, Mr. Chairman. That interpretation would be correct; 6.2. would permit the Legislative Assembly in those circumstances to expel the Member from the Legislative Assembly.

Thank you. Member for Thebacha.

"Expel" meaning to remove them totally from their seat. There would have to be another election for that riding.

Thank you. Ms. Stewart.

That is correct. "Expel" meaning to remove them from their seat.

Thank you. Clause 2.

Agreed.

---Agreed

Member for Thebacha.

With that, Mr. Chairman, I just want to indicate the intent of the amendments were to attempt to do that without having the Members forced to do that. That was the intent of the amendment. I have never yet, in my eight years being an MLA, ever seen this Assembly attempt to discipline their Members accordingly. I just find that when we are forced to discipline a Member, I find it unfair. I thought that the intention to explicitly read it out and place it into the bill would have avoided creating that animosity among the Members of the Assembly.

Thank you. Clause 2. Mr. Patterson.

I don't want to start a debate, Mr. Chairman. I think the Member's motions have been dealt with. However, for clarification, there have been two occasions in my time in the Legislature where the Assembly has employed its inherent powers to deal with Members' conduct. In those two cases, which I need not spell out, Members were stripped of their committee memberships. So just for the record, that has happened on two occasions since I have been a Member, Mr. Chairman. Thank you.

Thank you. I believe there were no questions there. Clause 2. Mr. Antoine.

Thank you, Mr. Chairman. On Bill 32, An Act to Amend the Legislative Assembly and Executive Council Act, No. 2, I have received a lot of form letters from my constituents. Someone must have done a good campaign on this one. I have a concern about clause 2. I have no problem with a Member not sitting as a Member if the Member is convicted of an offence under the Criminal Code, prosecution by indictment involving the sexual exploitation of children.

The second one is in the commission of which violence against a person is used, threatened or attempted. In (b), I understand Mr. Dent's arguments and I understand the majority of the people who support this one in this House. However, one area I'm concerned about is, as an aboriginal person --and this happened across Canada already --in some areas where aboriginal people do not like what the government is doing in their territories, they take up action against the government in the form of roadblocks; taking positions on what they believe in. This is the area that I'm concerned about, that if a Member of the Legislative Assembly --and the majority of these people take a roadblock action against the government John Todd were to get his northern accord through but the Deh Cho didn't agree with it, if he were to permit oil companies to go in an area and people take action --that may be a bad example, but let's say that's an example that could happen -- the Members of the Legislative Assembly who represent these people would want to be with their people. If that happens, then what would happen to the Member in this case if they were convicted by taking such an action against the government? Would that person lose his seat because he has taken action with the people who he is representing?

I wonder if this Assembly or the Standing Committee on Legislation has ever looked at that part of this legislation, because it could happen, it has happened across the country. Because such an action, if people are convicted under the Criminal Code, such as has happened in other parts of the

country...A good example, I'm told, is that in the beginning of this country, Louis Riel, the founder of Manitoba, was elected fairly and squarely by the people in Manitoba. When he went to Ottawa, the government of the day would not allow him to take his seat because he was convicted under the Criminal Code; something to that effect. This is quite an extreme, but we're setting this bill up for the future and we have to be careful how we do it. This is the part of the bill I have had concern with. In talking to other people and my constituents about this, there is no problem with the intent of the other parts of this bill, but I'm concerned about that part of this bill ... if that scenario has been explored; if not, why? If you have, can you tell me, if you could find out if this concern has been addressed? Thank you.

Thank you. I believe that is sort of in the area of democratic rights to exercise their rights. Ms. Stewart.

Most of the offences involved in establishing roadblocks are offences that do not involve the commission of an offence in which violence against a person is used, threatened or attempted. They would be such things as unlawful assembly; trespass; breech of a court order; that type of an offence.

If the line were crossed into an offence involving violence such as rioting or attack as we have seen in Yellowknile itself where there have been roadblocks established at the mines here, there have been assault charges arising. Those are offences in which violence is used. But simply the act of establishing a roadblock or manning a roadblock would normally not be a type of offence involving violence used against a person, either threatened or attempted.

My recollection of the discussion in the Standing Committee on Legislation was that this matter was not specifically addressed but perhaps Mr. Dent would care to elaborate, if there was some consideration of that in the preparation of the bill, as it is his bill.

Thank you. Mr. Dent.

Thank you. Clause 2. Member for Nahendeh.

Thank you. Another example would be where recently, the Member of Parliament from BC, Svend Robinson, got charged with helping a blockade. He was found guilty and got to stay in the House of Commons as a Member. I don't know it this was passive resistance or not, but something like that is what I'm concerned about. It is going to be left up to the Legislative Assembly, I guess, according to the bill, to determine whether a person would be expelled or not. It is still a concern of mine. I've thought about it and it is going to be a difficult one to judge.

Today the make-up of the Legislative Assembly is a majority of aboriginal people, but as we go on and after 1999, I understand this bill is going to stay there but the make-up will change. I am concerned about the future. You may understand what I am trying to address. In the future, it will be different. So I have a concern about that. Thank you, Mr. Chairman.

Thank you, Mr. Antoine. Mr. Dent.

MR, DENT: Thank you, Mr. Chairman. I believe Mr. Antoine is referring to Svend Robinson. 9 my understanding of the situation is correct, he was involved in a blockade in which an injunction against a blockade had been issued. He was charged and convicted of criminal contempt, but there was no indication of any violence having been used. So in a similar situation, this bill would not necessarily have any effect. That is what I was saying when I answered the first time, Mr. Chairman. If a Member of this Legislature were involved in a civil disobedience or a civil unrest situation in a passive role, there would be no effect resulting from this bill even if criminal charges were laid because to have this bill take affect, there has to be some violence used against a person.

Thank you. Mr. Antoine and then Mrs. Marie-Jewell. Mr. Antoine.

Thank you, Mr. Chairman. The example is civil disobedience. If the government of the day decides to be contrary to a group in one particular area, then there is some action taken. Sometimes there are roadblocks. We are just using that as an example. As a Member of the Legislative Assembly and a resident of that area, I would be expected to participate with represented people. In a situation like that,

things could escalate from civil disobedience in a passive way. If people start shoving each other around or threatening each other, it could be used as a threat. It says, "In the commission of such violence against a person is used, threatened or " There will be a very fine line if this person is going to be found convicted under this offence. It is a very fine line. Thank you.

Thank you. Clause 2. Mr. Dent.

Thank you. Clause 2. Member for Thebacha.

Mr. Chairman, just to follow up on my colleague's comments, Mr. Dent indicated that the Member's charges that fall under this bill are violence against a person, but in the event that a Member partakes in some type of roadblock or protest, etcetera, and there are threats being exchanged without any physical violence being exchanged, is it not correct that with the threats alone, the Member can be charged. Can I get clarification on that?

Thank you. Are you asking the mover of the motion? Mr. Dent.

Ms. MacPherson.

Thank you, Mr. Chairman. In the example that Mrs. Marie-Jewell described where violence is threatened against another person or persons --in the plural - for example in a picket line or in a blockade, yes, it is possible that charges of assault could be laid. The Criminal Code defines assault as a person who commits an assault when he applies force intentionally to another person or he attempts or threatens to apply force intentionally. So if there are threats of violence being levied at a picket or in a blockade, then an assault charge could be laid and if a person were convicted, the provisions of Bill 32, if passed, would come into effect. Thank you, Mr. Chairman.

Qujannamiik. Clause 2 of Bill 32. Member for Thebacha.

Just for further clarification, Mr. Chairman, if I could ask the mover of the bill, could they give an example of when violence against a person is used or attempted? Can they give an example of clarification on the word "attempted"? What's attempted violence, when you lift up your hand toward striking a person or make a motion towards

walking towards them? Can they give us an example of attempted violence. Thank you.

Thank you. Can you substantiate, Mr. Dent.

Thank you. Legal counsel, Ms. MacPherson.

Thank you, Mr. Chairman. Mrs. Marie- Jewell is correct. If I lifted up my hand to try to strike somebody else, that would be an act of violence because I would be attempting to strike somebody else. A case where violence is threatened is where I sit here and I say I'm going to hit you but I don't do anything. I'm threatening an act of violence as contrasted with a physical move which is captured under the heading of an attempt. If I move towards Mrs. Marie- Jewell in a threatening fashion, that could be construed as an act of violence. Thank you, Mr. Chairman.

Thank you. The honourable Member for Thebacha.

Can we get clarification from Mr. Dent's legal counsel on what is the definition of "threatened." How do you interpret it legally?

Thank you. Ms. MacPherson.

Thank you, Mr. Chairman. It can be interpreted in a number of different ways depending on the facts. It would be very dependent on the facts of each case. I can tell you that the Criminal Code states that the attempt or the threat has to be done in such a fashion that the person who is receiving the threat believes, on reasonable grounds, that the assaulter has the means of carrying out the assault.

So, if I'm here and I lift my hand towards Mrs. Marie-Jewell, there's probably not a realistic prospect that I could carry out my assault on you because of the presence of the Sergeant-at- Arms. It depends on the context in which the gesture is made. The person who is the target, if you will, of the attempt or the threat has to believe on reasonable grounds that I have the present ability to carry it out. There has to be some realism to the threat or the attempt in order for it to be caught under this section. Thank you, Mr. Chairman.

Thank you. Just like when we are playing baseball, when it's a strike in baseball, how far do you go? On clause 2. Member for Thebacha.

Mr. Chairman, I think it's important that these types of comments get on the record for future reference, especially in the event that a Member gets charged with any of these types of offences and that there's a clear understanding of what the public should expect. I would like to ask Mr. Dent's legal counsel whether or not there has been any case law reviewed and if there has been case law concerning the definition of "threatened" or attempted violence.

Thank you. Ms. MacPherson.

Thank you, Mr. Chairman. I'm confident that there is case law on this. The charge of assault is a very common one and it covers in it a number of different elements. I'm very confident that there has been case law that considers this section in many different factual contexts. It is difficult to deal with this section without having a factual context to place it in, because it depends so much on whether there is a reasonable belief that the assaulter has the means of carrying out the assault. That would very much be dependent on the facts in each and every case, as to whether your belief was reasonable and whether I had the means to carry out my threat or attempt. Thank you, Mr. Chairman.

Thank you. The time being 6:00 pm, I will recognize the clock and report progress. Mr. Dent, Ms. MacPherson, Ms. Stewart, thank you.

The House will come back to order. Item 20, report of committee of the whole. Mr. Ningark.