[ Page 4373 ]

CONTENTS

Routine Proceedings

Election Amendment Act, 1984 (Bill 20). Hon. Mr. Chabot.

Introduction and first reading –– 4373

Human Rights Act (Bill 11). Second reading

Hon. Mr. McClelland –– 4373

Mr. Gabelmann –– 4375

THURSDAY, APRIL 12, 1984

The House met at 10:07 a.m.

Prayers.

HON. A. FRASER: Not often does the MLA for Cariboo have guests here, but in the members' gallery this morning is Mr. Don Lobb from my home town of Quesnel, who is with the local newspaper, the Cariboo Observer. On behalf of my colleague the Minister of Environment, Lands, Parks and Housing, and the MLA for North Peace River, I am happy to tell you, Mr. Speaker, that in the gallery this morning is a group of grade 11 students from Fort Nelson Secondary School, accompanied by their teacher Miss Kathleen Wiwchar. Would you be good enough to welcome these people who really have a trip to come down here.

Introduction of Bills

ELECTION AMENDMENT ACT, 1984

Hon. Mr. Chabot presented a message from His Honour the Lieutenant-Governor: a bill intituled Election Amendment Act, 1984.

Bill 20 introduced, read a first time and ordered to be placed on orders of the day for second reading at the next sitting of the House after today.

Hon. Mr. Hewitt tabled the annual report of the Ministry of Consumer and Corporate Affairs for the fiscal year ending March 31, 1983.

Orders of the Day

HON. MR. GARDOM: Leave to proceed to public bills and orders.

Leave granted.

HON. MR. GARDOM: Mr. Speaker, I call second reading of Bill 11.

HUMAN RIGHTS ACT

HON. MR. McCLELLAND: Mr. Speaker, I have the honour now to move second reading of Bill 11, the Human Rights Act, an act that I believe will help make human rights second nature to all of us here in British Columbia.

Equal rights and equal opportunity are fundamental to the freedoms we enjoy in this province: freedom, without limitation of race, colour or creed, to take part in all of the advantages society has to offer; freedom to make our homes wherever we choose, so far as our means allows us, and to advance in employment as far as our initiative, training and skills will take us; freedom to live without harassment or discrimination based on hatred, prejudice, bigotry, ignorance or fear. These are the basic tenets upon which all human rights legislation should be based. This new bill is the government's reaffirmation of these principles, as well as its dedication to provide direct and effective remedy to people whose human rights have been denied.

The community as a whole has a stake in the human rights of each of its individual members, for individuals are what make our communities strong. It has an important role to play in support of human rights in British Columbia, because human rights are not something that are acquired, not something we can buy, or earn from living here for a certain length of time, nor something we can trade away. They are something we have, each of us, in full measure. And they are something, unfortunately, that can be lost through ignorance or apathy. Ignorance never was much of an excuse for discrimination, and apathy has always been a major barrier in the way of human rights for all. So only the community, which means each of us and all of us acting together, can change that and turn it around.

During the 1970s, more and more under our present rules, more impossible grounds of discrimination were defined. The meaning of discrimination became less and less clear. How can society deal with really harmful cases of discrimination in employment, tenancy or access to facilities and services when members of the public are so unclear about what discrimination means? The whole concept of human rights and discrimination became diluted, to the extent that it now encompasses just about everything from the most trivial complaints to the most serious violations of human dignity. Who can define discrimination under those circumstances? And if we don't know what it is, Mr. Speaker, how can we ever hope to make progress toward eliminating it through — legislation or in other ways?

The Human Rights Code contained a number of serious defects in its content and in its administration. Chief among these are the uncertainty as to what did constitute discrimination under the Code, trivialization of our human rights process by allowing complaints which didn't deal with substantive discrimination problems, and the slowness of the system in resolving legitimate human rights problems. We found that we got bogged down in the bureaucratic process, trapped by the belief that there is a bureaucratic solution to the problem of preserving basic human rights in our society.

There is no question that discrimination does occur, and occurs perhaps all too often in our society. There is no doubt, either, that people's basic rights to equality of opportunity are often denied to them because of such discrimination. We found that the administrative structure and the legislative framework which have been in place for the past ten years were in need of review and change. The changes proposed here are designed to meet the needs of the people of British Columbia today and in the future. In this case the need is to reduce discrimination, and we had to find a more effective way to do that. By making the prohibited grounds of discrimination more specific, the act will strengthen available protection. There will be no doubt about what is unacceptable conduct in the community or the workplace. We are removing the element of uncertainty.

[10:15]

Protection of human rights under this act will focus on the real problems of discrimination — the serious obstacles faced by those who are denied opportunities for the basics of life because of prejudices. It will not provide for mediation of disputes at the taxpayers' expense between people who simply can't get along with each other. The new act enhances and

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adds to the protections already in existence. It provides specific protection for persons discriminated against because of physical or mental disability. Disabled people should have the same chance as anybody else to live and work in and make a contribution to their community. Having a job, being independent, being able to take an active part in what's going on — these things don't lose their importance just because one is disabled.

I want to speak just for a moment about the consultative process that has taken place in connection with this legislation. I have received numerous submissions, ranging from individual letters to briefs from organizations of one kind or another, most of which contain positive suggestions. I also formed a special committee to advise me on these matters — the Human Rights Advisory Committee. Some of the committee's recommendations — not all of them — are contained in the bill before us now. That process was useful and constructive, and it resulted in legislation that I believe is more finely tuned to the requirements of our province.

Among some of the suggestions accepted as a result of the briefs and the committee is that under Bill 11 employment agencies cannot refuse to refer individuals on the basis of discrimination. The council will be obligated to conduct an initial investigation before dismissing or redirecting a complaint. The council has been given the option of holding a hearing itself and making a final order itself. This was done in the interest of ensuring more prompt handling of complaints. Provision is made to specifically recognize that programs designed to assist the disadvantaged are not in contravention of human rights. In cases such as a mental or physical handicap, provision is made for a third party to file a complaint on behalf of an individual alleged to have been discriminated against. That third party may also remain involved in the proceedings to their conclusion. The legislation now contains tests that the council may apply before proceeding with a full investigation. Discrimination in employment advertising has been added to the list of prohibited actions, and the concerns of the insurance industry were heard and amendments made to recognize valid actuarial matters.

Strong enforcement of human rights will make people in the community sit up and take notice. The main objective in human rights legislation, or in the enforcement of that legislation, should not be to get vengeance. It isn't to get back at somebody. It is simply to get the people who are discriminating to stop discriminating and to not do it again. That's what we want to do under our new process. By placing that sort of emphasis, I believe that a much more telling message that human rights do matter, and that discrimination must be done away with, will start to filter through.

Appointments to the new Human Rights Council will be made as soon as practicable after the new act comes into force. Council members will bring to their new posts experience, integrity and credibility. That council will have the support of my office, the Ministry of Labour as a whole, and field staff in various locations throughout the province.

Speed will be one of the key features of the administration of our new act. In human rights cases, as much as or more than in any other type of dispute, time should be of the essence. Justice delayed here really is justice denied. Two and three years, and as much as six years, waiting for resolution has been routine under the system which has been in place for the past ten years. In one instance, I recall reading about a respondent who quietly went out of business while his lawyer played the waiting game. In another, the respondent, an employer, had an offer of settlement on the table for almost two years, an offer which would have put an end to the blanket discrimination in the workplace which gave rise to the complaint in the first place. Not only the complainant but many fellow workers would have benefited with a speedy resolution of that matter, but it didn't happen.

Time and time again, three, four and five years went by with no resolution of very important disputes. While those cases are waiting resolution, the complainant doesn't know where he or she stands, and doesn't know if protection from discrimination is available or not. The respondent doesn't know either — in many instances doesn't even know if the person is guilty or innocent, or how much the whole thing is going to cost in legal fees or in an award against it. The longer the delay the greater the uncertainty. In the end, one or two or five years later, what satisfaction is there in winning a case, in having been proven right, one way or the other? If the respondent wins, he's bound to feel the case never should have come forward in the first place. Victory is just as hollow for the complainant, who in all likelihood has found a different place to live or a different place to work in the meantime. The principle of human rights may have been preserved in some way, but no real justice was done and no real protection given.

Under the new act there will be no deal-making, because you don't make deals with discrimination, Mr. Speaker. The legislation also contains provision for the council to recommend the settlement of a complaint where that appears to be in the best interest of both parties. Acceptance of that recommendation would end the proceedings. The basis of the new process will be impartial, fair decision-making by the council in recognition of the need above all to resolve human rights cases quickly and fairly.

I have already met with influential members of the province's business and industrial communities, with the heads of landlord groups and with public sector employers. I have challenged each of them to design and bring forward plans by which their respective organizations intend to protect human rights, prevent discrimination and ensure the success of this new legislation.

My staff have met with representatives of the employer community. We are well on the way to developing a program to allow employer groups to take a larger responsibility in human rights matters, to protect human rights, to prevent discrimination and to ensure the success of our programs for the future. We're asking employers to take a higher profile, not just to pay lip-service to human rights, but to embrace this act as part of their employment policy. If employers or other groups don't do their part voluntarily, the full force of the law will be upon them, but I feel that employers will willingly take on this responsibility.

At this time, Mr. Speaker, I want to thank the members of the Human Rights Advisory Committee, who worked very well together and gave of their experience and expertise. I want to give recognition to Mr. Barry Sullivan, who chaired the committee, and committee members Lynn Smith, Jane Evans, Eric Powell and Jim Edgett. What was good about this committee was that they came to their assignment with no biases, only with the view of improving human rights in this province.

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I began my remarks today by saying that I hoped that human rights will become second nature to all British Columbians, that I believe this act can help make that come true. As we all know, government can bring in and enforce legislation, but in the difficult areas of human rights and morality standards of community behaviour government cannot bear the whole responsibility. This new act won't bring an end to discrimination by itself. Justice cannot be legislated into being; it can only be advanced, fostered and made accessible to all. All of us in this province are responsible for human rights. Each of us as individuals has a responsibility to overcome ignorance and apathy so that it becomes unthinkable for anyone to commit discriminatory acts. We want to promote this awareness, and to this end government is prepared to earmark funds to embark on an extensive human rights education program, which will begin immediately. Maybe some day human rights issues will become non-issues in British Columbia. I look forward to the day when human rights is left out of newspaper columns, simply because the whole thing is so basic, ordinary and dull that there is no point in talking about it anymore. We want this new act to quietly and effectively work its way out of existence, if it can, because we hope it might someday not be needed any more in our province — and I don't believe that's a vain hope. We could not leave a better legacy to our grandchildren and their grandchildren than a society free of discrimination, a society where human rights come naturally to all of us.

With that, Mr. Speaker, I move second reading.

MR. GABELMANN: Mr. Speaker, it is a bit difficult to know where to start this morning. There are at least four or five obvious starting points, in my mind. But I guess the first one that I want to register with the House, and with the government House Leader particularly, is that we on this side of the House feel the same as do countless hundreds and thousands of people in the community who object to the undue haste with which this bill is being presented. It was introduced for first reading at 6 o'clock on Tuesday evening, and on Wednesday those people who were able to receive copies of the bill by courier — from our office incidentally, not from the minister's — began to see for the first time the contents of this legislation and to begin a process of examination and analysis, which is still continuing. Here we are on Thursday at 10 a.m. beginning debate on second reading.

Often quick debate of a bill can be appropriate, but in a bill of this kind, where every British Columbian is involved — some more than others — it seems only appropriate that every British Columbian have an opportunity to read, examine and digest the bill, and to make comments to their MLAs as to what positions should be taken on the bill. I don't believe that very many MLAs have had an opportunity to have feedback from their constituents about the contents of this legislation. Most of our constituents have not yet seen the bill. Most of the people in our community who are leaders in human rights have only just begun an analysis and a look at the bill.

I suppose I could rant and rave and shout and scream about the unfairness of this undue haste, but it wouldn't do any good. It's not often my style anyway. But I want to say in the clearest, most definitive terms that it's possible for me to use that I believe this undue haste is wrong, undemocratic and unfair to those thousands of British Columbians who do want to have a look at it first.

[10:30]

There is one argument that could be made that it doesn't matter that it's brought in quickly, and that's that British Columbians have had since July 7 to examine this bill. There's some validity to that. British Columbians have in fact had since last July, when it was called Bill 27, to examine the contents of Bill 11. The minister didn't take very long in his opening comments to indicate to the House what the changes were between Bill 27 of last July and Bill 11 of this April, because there aren't very many changes. A couple of things that were forgotten in the haste of writing the bill last year were included this time — newspaper advertising that discriminates being the most obvious one. Some changes in the procedures by which the council deals with complaints were improved. I'm happy to say that. I think it's better than it was. It was lousy before, and it's marginally better now. The council, incidentally, still is both examiner and judge, which is a serious defect from any perspective relating to law, in my view.

[Mr. Strachan in the chair.]

Nevertheless, there were a couple of changes. But if the government wants to argue that bringing this legislation in as quickly as it has, in the sense that one full day has elapsed between the introduction and the debate.... They could argue, I suppose, that the public has had ample opportunity to study and to consider the legislation, because it is, in fact, the same as the legislation that was introduced last July. Despite all the rhetoric of the minister, and his earlier press release notwithstanding, it is substantially the same.

What happened last summer as a result of the introduction of Bill 27 was that, given the time that the community had to examine that legislation, it was apparent that the bill was not satisfactory. What we were doing in British Columbia was, in fact, going in a direction opposite to that taken by every other jurisdiction in Canada. And the community expressed its view. Not just activists in human rights, not just New Democrats, not just activist trade unionists, but a wide representation of the community said that Bill 27 was wrong and counterproductive in terms of developing proper human rights programs in British Columbia.

The government appeared to acknowledge that concern by not proceeding with Bill 27 in last year's session. In fact, it was discussed in the discussions that went on in various forms and various places with various people, concluded by discussions between the Premier and one of the vice-presidents of the B.C. Federation of Labour in Kelowna last November. At that time clear agreement appeared to have been reached that Bill 27 was inappropriate and needed to be substantially amended.

To that end, an agreement was made that a consultative committee would be appointed, and it was. The consultative committee wasn't able to talk to the community. Even now they aren't able to say publicly what their recommendations were. Supposedly, because presumably we still have free speech in this society, they are able to make their comments as individuals about what they feel this bill represents. But they're denied the right to say to me, the press, the public — or anyone else, for that matter — what it was they recommended, and what it was the committee had rejected by the ministry. That's one of the rules that was imposed upon this

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so-called consultative process. The committee was not allowed to hold public hearings. No knowledge exists in the community, that I'm aware of, of when the committee met and who they met with. The process was, in fact, one in which the minister could vet every suggestion or complaint or proposal that might come in. They had to come to the minister, and the minister would then refer those suggestions to the committee. It didn't matter what the committee proposed.

It strikes me as curious that a committee could still be meeting on Thursday of one week, and a bill could be printed and introduced by Tuesday of the next. Either somebody works very quickly or, more likely, the decisions about what would be in the bill had been made sometime earlier and outside the parameters of the consultative committee.

What we have here is a betrayal of the Kelowna Accord. This is a slap in the face to every one of those people who last year felt that they, through the exercise of their democratic rights in objecting to legislation, were participating members of society in a full and democratic way. Those people felt they were able to influence the course of legislation and, as a result, have an improved Human Rights Code in this province. What are they faced with as of Tuesday night at six o'clock? They're faced with the same legislation all over again.

There are some significant elements not contained in the legislation. The minister talked — I'll deal with this one first — about there being an education program starting almost immediately. There's no mandate whatsoever in this legislation for an education program. The minister wants to do it in-house in the Ministry of Labour. It's not contained in the bill.

As I read the bill, there's no possibility of assistance to the council in terms of staff in investigating complaints. The minister makes reference to staff all over the province. The only staff I can think of would be industrial relations officers who deal with labour matters, not human rights matters They're not trained to deal with human rights matters They're substantially different from each other. But the minister claims that the act will be administered by people — these weren't his words — in effect, all over the province. Those are industrial relations officers, who, as I say, are by their own admission, for the most part, not equipped or trained, and who certainly don't have time.

MS. SANFORD: They don't want to do it.

MR. GABELMANN: Yes, you're right.

The only appropriation section in terms of money to make this thing work, as I read it — apart from the ability of the council to be paid or to be a public servant — goes through to March 31, 1985. Presumably that means that in next year's estimates there will be a budget presented for this particular legislation, and we will have some number of dollars allocated to human rights under the 1985-86 budget. The minister didn't say so. There's no evidence of that whatsoever. I can only conclude that he does not intend for there to be a budget so this Human Rights Council can properly operate.

I'll go back later to the whole question of human rights education.

There is another major element that this bill does not include in its line of responsibility. The minister said that — again, I'm using my words and not his, but the intent, I think, is the same — the Human Rights Code needed adjustment and amendment. That's true; it did. It didn't have the disabled and handicapped section in it. It didn't have a number of other provisions in it that we all agree should be in. But it didn't have something else either that should be in, which is that it should be responsible to this Legislature, not to a political minister.

The Human Rights Council should be, in my view and in the view of our caucus.... It's one of the changes that occurs. Nineteen seventy-four is a long time ago, and the Code at that time was breaking new ground, and did so admirably, in my view. It was an excellent Code. But no one would ever argue that time doesn't produce the need for changes. One of the clearly evident changes that is required is the change that the council — or commission, or branch, or whatever term we want to give to the people who administer the legislation — needs to be responsible not to a minister but to the Legislature, in the same way as the auditor-general and the ombudsman are responsible to the House and in the same way that the federal human rights commissioner is responsible to the Parliament of Canada. That's a principle, I think, whose time has come. That's a principle which I think is accepted widely now by all political parties in this country except Social Credit — a principle that should be accepted, in my view, and is obviously not accepted by this government.

The minister complained that under the Code there were excessive delays. For the most part those delays were political delays by ministers before this one. I would grant that the current minister acted far more quickly in referring complaints to boards of inquiry than was the case in prior administrations. That was partly a fault of the Code, and I concede there was some problem with the Code in that respect. But it was primarily as a result of referrals to the minister sitting on the minister's desk month after month after month. I had once a case in my constituency that sat on the previous minister's desk for several years. That wasn't as a result of bad drafting of the Code. That was as a result of a lack of desire by ministers to proceed in some cases for political reasons.

MS. SANFORD: That's where the major delays were — on the desk of the minister.

MR. GABELMANN: The delays were on the desk; the delays weren't in the Code. This minister proved that, after he assumed the responsibility of being Minister of Labour, by quickly making referrals to boards of inquiry in cases where he felt that should happen, and dismissing, in effect, cases which he felt shouldn't be referred. He acted very quickly. If there is an area of agreement between the minister and I on this question, it's that speed is important — no question.

When you have political decisions made about things like human rights, you are inevitably going to have delays, because once in a while a political decision is going to have to be made that will trample on some political friends. That's going to happen once in a while. Those political friends are very likely, if they're at all alert, going to want to have a meeting with the minister about that particular case and to make representations about why that particular complaint shouldn't go ahead. The public will never know what the discussions were and why a board might not have been appointed. That occurred in the Code. That occurred in Bill 27 and that can occur in Bill 11, because the minister has that right, under one section of the bill, not to appoint a board of

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inquiry if he so chooses. That should not be a decision that's held by politicians.

One of the reasons that we so carefully maintain the independence of the judiciary in the courts is so that there cannot be an appearance of political interference; similarly with the ombudsman's office. It's important that there not be any possibility of political interference happening, or being seen to happen, or being expected to happen, or being assumed even when it isn't happening. In human rights the same principles apply as apply in legal matters and in matters that go to the ombudsman. The bill fails miserably in that respect, in that in many ways it enshrines and secures the power of the minister, rather than takes power away from him, as should happen.

The minister took some delight in suggesting that the government had, through this legislation, improved the rights for the disabled and handicapped by including them in the group of people who cannot be discriminated against. Everyone who is active in disabled or handicapped organizations says they had more protection under the Code than they will have under this bill. Why is that? Because the Code contained the reason....

HON. MR. McCLELLAND: There's one in here who doesn't agree with you.

MR. GABELMANN: That may well be. There's more than one disabled person in this room. We all are in one way or another — some of us mentally and some otherwise.

The member for Vancouver–Little Mountain may well have.... And I'm certain he will be speaking on the bill, and there's no question about that. I'm not saying that every person who is physically or mentally disabled in this province is going to take exactly the same view. Obviously they won't. But the organizations that represent, for the most part, mentally and physically handicapped people argue, I think properly — and I think they make their case successfully — that the reasonable cause provision contained in the Code grants them more rights than are granted by a specific inclusion in the group of people who cannot be discriminated against.

[10:45]

The other problem with eliminating the reasonable cause protection is that now there is a whole unnamed group of people in our society who are often discriminated against. Now those people are not protected whatsoever. There is no protection in the Code for those who feel they are denied a job because of their language impediment. Their English may not be sufficient, but it may be that you don't need to have "sufficient" English to pull lumber off a greenchain. Under the Labour Code it used to be, and still is until the Code is repealed, that people in that position were able to argue under the reasonable cause provision that they might have been discriminated against because of their failure to be fluent in English. There are successful cases on record. We had one in Tahsis recently; there was one in Prince George. There have been several cases where that point was made under the reasonable cause provision. It's not just people who may have problems with the English language who could be discriminated against; it could be immigrants; it could be somebody with a Cockney accent, who might argue that that's why he didn't get a job. They've got no protection now under any provisions of this code.

Someone who feels he is discriminated against in a tenancy.... For example, those trying to rent an apartment might be discriminated against because they are gay. There is no protection for sexual preference, none whatsoever; there was under the Code, because the Code allowed for reasonable cause to be applied as to whether or not one was being discriminated against. Under this section it's open season on the so-called gay community. There is now no protection whatsoever.

I would argue that under this section there is no protection for pregnant women. You can't discriminate on the basis of sex in most cases — fair enough — but you can in a job application form, incidentally, because that's not covered in this bill. Theoretically, you can't discriminate on the basis of gender. Everybody uses the word "sex"; I prefer the word "gender." Whatever words you use, it doesn't matter. But now in this province you can discriminate on the basis of pregnancy: I'm not going to hire that person because she might get pregnant. No doubt it will be argued when the cases come up that that's discrimination on the basis of gender; hopefully it will be successful. In the case of a person who might already be pregnant applying for a job, I suspect the case would be more difficult to prove.

There's no guarantee that boards of inquiry, or the council itself if it takes jurisdiction, are going to make the appropriate decision. They would have under the old Code. Under the old Code it was clear: you could not discriminate against people, and the rules relating to it were reasonable cause. Why would the government decide to remove that section from the legislation? Is it to pander to the racists in this society, like Doug Collins? Or is it to pander to the attitudes expressed so well the other day by the Premier when he refused in question period to make any statement supportive of the Japanese-Canadians' position in terms of reparations in this country?

That's racist. My stepfather was a German-Canadian. He didn't have his orchard taken away from him during World War II, but Japanese-Canadians had their boats and their homes taken away from them. We were at war with both countries. Why did we do it to the Japanese and not to the Germans? Because the Germans were Caucasians, and because we're a racist society. Given an opportunity the other day to make some small amends for that degrading episode in our history in this province, the Premier declined to take the opportunity. Is that the kind of racism that we're pandering to in this legislation? Is that why the reasonable cause provision has been eliminated?

There are now a variety of groups of people who are not named specifically in the legislation who can now be discriminated against. The minister talks about his hope that we will come to a day when we won't need legislation, and we won't need to talk about human rights because it will be boring. Mr. Speaker, we are a long way from that day. Why would the government, in designing new legislation, decide to take a step backwards, to move away from the direction followed by other provinces and jurisdictions? It is a baffling question, and my only answer, when I try to find out why they would deny the protection of the Code to those many people who are not named, and would limit the opportunities for people who are discriminated against, is that it is not just some members of the public who are racist and like to discriminate; it is also some members of the government. What other reason could there be?

[ Page 4378 ]

What reason could there be to include mentally handicapped and physically disabled people in the section relating to actuarial tables? Why can insurance companies now discriminate against physically handicapped people? I understand the argument about gender and the fact that women live eight or nine years longer than men — or whatever it is now — and that that affects actuarial tables. I understand the argument; I am not certain I agree with the implications of accepting it, but I do accept that there are legitimate points of view on both sides of that issue. But I do not understand why, in setting rates, the insurance companies of this province are now able to discriminate against people who are handicapped. Do they live less long? If that's the basis, we should say okay, let's take the proper and logical conclusion to its next step. People who work in places like the smelter in Trail also live less long than those who work in an office, so why don't we allow insurance companies to discriminate against workers in hazardous occupations? Why don't they discriminate against fallers in the woods industry, because they live fewer years than people who work in offices in the woods industry?

Interjection.

MR. GABELMANN: I'm talking about the discrimination factor.

Mr. Speaker, it is wrong to say, as this bill says, that mentally and physically handicapped people can now be discriminated against by insurance companies, or by anyone dealing with actuarial questions. That's not to engage myself in that fundamental debate about men and women. If we were to get involved in that debate, I suspect I would take the view that there should be no discrimination whatsoever, although, as I acknowledged a moment ago, there is a legitimate debate about that point.

When the minister closes debate, I would like to ask him whether or not he had a fair amount of lobbying on that particular point. Were there strong representations made to him about including in the act the opportunity to discriminate against mentally and physically handicapped people? If you are blind or deaf, why should you pay more for your fire insurance, leaving aside the question of life insurance? Or if you are in a wheelchair or have some mental handicap, why should you now be required — as you will be under this new act — to pay more for fire insurance? I suspect that if the minister thinks this particular question through he will recognize that the legislation should be changed.

I recognize that we are in second reading and that this is a debate on principle, but there are any number of principles in the bill; if you will bear with me, Mr. Speaker, I want to deal separately with some of those principles at this stage. Part 1 of the bill, which includes sections 2 through 9, lists groups which should not be discriminated against. They include on the basis of race, colour, ancestry, place of origin, religion, marital status, physical or mental disability, and sex. They don't include sexual preference. I know that's an issue that a lot of politicians like to steer away from, because it's not particularly popular. It is not an issue I feel particularly comfortable — politically — dealing with in logging camps in northern Vancouver Island. I certainly feel comfortable talking about sexual preference or sexual orientation — whatever words you want to use — and I want to for a moment. It is not a subject that has been properly aired in this Legislature, because there are a lot of feelings about that subject in society. I must say I've had many years' struggle with it myself, to try to come to grips with my own attitudes about people whose sexual orientation may be different from mine or the so-called norm in our society. It is not an easy subject to discuss, and it's one that would be very convenient for me to ignore; it's one that has been ignored, but one that I think needs some discussion. Nowhere in this legislation, under any aspect of it, is there any protection or any guarantees or any rights for people whose sexual preference or sexual orientation is different from the community norm.

[11:00]

There are some in our society who would argue that such behaviour is aberrant and wrong and unChristian and a whole variety of other labels. But the fact remains that there has been a percentage of our society going back all through recorded history who have chosen not to follow the norm in terms of sexual orientation and who have chosen a lifestyle that we now commonly call gay, homosexual or lesbian. That group in our society is commonly thought to be about 10 percent. I don't know, but that's a figure one hears bandied about. If that figure of 10 percent is accurate, we're saying to one in ten British Columbians: "You no longer have any protection in terms of job discrimination, in terms of purchasing accommodation or renting an apartment, or in terms of discrimination in public facilities. Someone who is openly gay can now, as a result of this legislation, be refused employment because he is gay. He can now be refused the right — that word is used too loosely, and I used it too loosely there — to apply to rent accommodation, because the landlord or the employer can say: "I don't want any gays in my apartment," or "I don't want any gays in my workplace." That will be legal now in B.C.

There is already enough discrimination despite a relatively strong, "reasonable cause" provision in the existing Code. There is already enough discrimination in our society against that group of people who have not had their fair representation in terms of advocacy in legislatures in this country or in any court of public opinion. I think it's shameful that that particular provision is not included. The minister saw fit to amend the group of classifications of people who could not be discriminated against by properly including the mentally and physically disabled in that list. But there were requests that two classifications be added to that group. The other is sexual orientation. Now politically, I guess, it's easier to go with the 90 percent of us who are heterosexual — more votes there. But that's not what human rights is about. When it comes to human rights you take unpopular positions, as the CCF did in the forties over the Japanese question, while all the other political parties played their racist games. There are countless examples of that in our history.

Mr. Speaker, I note the green light. I think I'll take advantage of the designated speaker provision.

There are countless examples akin to that sorry time in British Columbia when the Japanese-Canadians were discriminated against so overtly. It still goes on today with native Indians in my riding by people who don't believe they are prejudiced. It goes on occasionally around these buildings by people who don't believe they're prejudiced, in comments they make about groups in our society. But I'm digressing for a moment.

It's not politically popular, as it wasn't during the early 1940s, but sometimes politicians of every stripe have to take positions that are not politically popular. I guess that's why I

[ Page 4379 ]

would never describe myself as a populist, because I don't believe that MLAs or Members of Parliament should pander to every racist or prejudiced current that might be flowing through society at any given time. That's why Angus McInnis and all of the rest of them in the 1940s were right when they said the mass of the public was wrong in confiscating Japanese fishboats and Japanese homes, and moving them into internment camps in the interior of this province and into Alberta.

Mr. Speaker, that same point applies today when it comes to issues relating to sexual orientation. Probably politically in only one jurisdiction in North America is it popular to be a gay, and that's probably in the city of San Francisco. It sure isn't in our society. I run considerable political risk in a macho riding like mine by even making a decision to talk about this subject in this Legislature. But it's time we did. I would like the minister, in his concluding remarks, to give us a defence of why he feels that it's all right to have declared open season on gays in British Columbia, because that's in effect what we have done. It's a signal to the bigots in our community that gays no longer have rights by virtue of the fact of their choice in sexual orientation. They at least under the Code have some protection, under that very essential and important "reasonable cause" provision.

I could say a lot more about that, but I think having opened the discussion in what I hope is a responsible manner, and I believe in a manner that will allow some reasonable debate to flow, I hope that as we begin in our process of attempting to rid our society of racism, bigotry and prejudice, we will recognize that when it comes to the rights of homosexuals particularly, and lesbians as well, we still have not reached that happy day in this province where prejudice is absent. As a result of that, there needs to be protection written into the legislation so that the Human Rights Council, or any boards of inquiry that may be appointed, will have an opportunity to offer to that group in our society who are now discriminated against in so many ways an opportunity to have their rights protected as well. The failure to include in the legislation the phrase "sexual orientation" or a "reasonable cause" provision, in my view, Mr. Speaker, is simply an admission that the bigots are not just in the community, but here in this Legislature too. Why else deny that politically unpopular group the protection that they properly deserve?

It may well be that there has been discussion in the Legislature before about protection for citizens who choose alternative lifestyles in connection with their sexual preference or orientation. I'm not aware that there has been very much. Undoubtedly there's been some; I wouldn't presume to suggest that this is the first time we've had a discussion about it. But I would suggest that we've never had a full, fair, open and relaxed discussion about the issue. I think maybe that time has come in our society. As I said at the outset, it's not an issue that many of us feel comfortable with, me included, and it has taken me some considerable number of years to get to the position where I could say this. It used to be that for an MLA to stand up and talk about the rights and needs and required legislative protection for gays would leave that person open to charges that obviously would flow from that. I think we're past that now — we have made some progress — because I'm prepared to do it without feeling that that's the kind of charge that would be laid. But, you know, it's still very difficult to do.

I remember the day I learned that one of my best friends was gay, and the difficulty I had in dealing with that. But I learned to deal with it. However, there are still countless numbers in our society who have not learned to deal with it, and who do still discriminate: some consciously and deliberately because they believe, for moral reasons, that it's wrong' some consciously and deliberately because they can't handle it through their own macho needs; but many more who discriminate unintentionally, because they don't feel comfortable with the issue.

That leads me to the aspect of this legislation, that is also absent, which relates to intent. Under the Code, if someone felt that they had been discriminated against, and there was reasonable evidence to substantiate that, the person who did the discriminating had to prove that they did not. In fact, if they did discriminate but hadn't intended to, they still were judged to have been discriminating. That's what human rights is all about. It deals not just with overt and deliberate discrimination but also unintentional discrimination. The Code protected that. But this legislation, as with Bill 27, eliminates that provision and that concept. People will now have to prove to one of the council members, or perhaps later to a board of inquiry, that in fact they were discriminated against — that is, if they're in the group who are allowed protection by this legislation. If they're not allowed protection, they've got no rights.

There's an important concept involved in this subject. It's one that I had hoped to be able to develop more fully, because I really did think that the minister would allow us some more time for preparation in this debate — but I guess that was naive on my part. There really is some need to have a full discussion about the concept of discrimination. Is it, in fact, something that is done deliberately, overtly and consciously — as appears to be the intent of this legislation — or is it, as I believe this kind of legislation has to deal with, that unconscious racism, bigotry and prejudice, described as discrimination, that in some ways we all are guilty of? I certainly am guilty, in my life, of unconscious discrimination. Perhaps there is someone in this House with a halo so well-polished that they can say they're not, but I doubt it. This legislation doesn't deal adequately, if at all, with the question of systemic, unintentional discrimination. The Code did.

[11:15]

In many ways — not in every way — that's the most important discrimination to begin to deal with, because it's that systemic discrimination in our society that does the most damage. Some of the obvious, overt and intentional discrimination can be ignored by a person or a group of persons who are being discriminated against in that way, because they can say to themselves that this small group are bigots and not worth the attention that a response would give them. But it's that systemic, unintentional discrimination in our society that leads to so many situations, such as an unbelievable preponderance of native Indians in our jail population and the ghettoization by country of origin in jobs in this province. I lived with that, growing up in the Okanagan. The minister sees it in Langley, I'm sure. There is systemic, so-called unintentional discrimination rampant in our society. This legislation does not allow for that kind of discrimination to be dealt with.

In a most important sense, we're dealing with education. A schoolteacher who lives in a community in which racism is rampant — we all know examples of that — who wants to

[ Page 4380 ]

secure some information, some brochures and some films, perhaps, or educational programs or tactics in teaching which would normally come from the Human Rights Commission, and have come, until last summer, from the Human Rights Commission, now has nowhere to turn. The minister talks in generalities about an education program to be launched by his ministry soon. If my guess is correct, I suspect that will be an education program modelled on the one in Alberta, where television advertisements about bad discriminatory practices will be aired, making sure that there's full credit to the Social Credit Minister of Labour.

But while that kind of program can be important and useful, it's not what we're talking about when we're talking about human rights education. We need a branch or an organization or a commission, and it could be this council who have the resources — I'm not talking about a lot of money; considering the seriousness of the problems, we're not talking about very much money at all — to provide assistance, to do videotapes perhaps, to print brochures and to develop programs for teaching. There are communities unnamed in my riding and in most ridings in this province where that kind of material is essential in the schools in the earliest grades. A grade 1 or grade 2 child needs more than a 30- or 60-second television clip preaching against bigotry or racism or prejudice. They need far more than that. Nothing in this legislation sets up that kind of program.

Mr. Speaker, there is a section in the legislation, which we'll deal with in more detail in committee, which brings in a concept which I totally don't understand; I fail to comprehend it. In most areas of discrimination, if you feel discriminated against, you go to the council and you go through the process which we'll deal with subsequently. But if you're discriminated against in payment of wages, you have to go to court, under section 7.

The minister frowns and grimaces and doesn't agree with me, by his body language. Maybe I'm wrong. I've been wrong before, and I will be delighted to be demonstrated to be wrong in this.

[Mr. Pelton in the chair.]

This is a principled issued, so I'm not getting into committee debate here. This is a principle issue about courts versus the council. Subsection 7(5) says: "Where an employee is paid less than the rate of pay to which he is entitled under this section, he is entitled to recover from his employer, by action, the difference between the amount paid and the amount to which he is entitled...." I'm not a lawyer, but to me "by action" means in the courts — by filing an action in the courts. I asked some lawyers if that's what it meant, and they said: "Yes, of course it means in the courts." The minister shakes his head. I hope he's shaking his head because he didn't mean this to be in the bill, not because he disagrees with me about that concept.

We've had enough legislation lately in this House pushing things into the courts, on an already overburdened system. The other day we had landlord-tenant relations in the courts. We've had many others. One of the things we don't need to do is.... Let's say, for example, a woman who discovers she has been paid less....

HON. MR. McCLELLAND: It's the same words as are in the Code.

MR. GABELMANN: It may well be the same as in the Code. I agreed earlier with the minister that the Code needed to be amended. It's now ten years old. No legislation is writ in stone, except, I guess, for the Ten Commandments. The Code needed and required amendment. We've talked about some of the other changes it required. If the minister is arguing that this section should be in here because it was in the Code, then let's keep everything else that was in the Code too.

Let's take a situation where a woman....

HON. MR. McCLELLAND: Did they use to have to go to court to recover if they were being paid discriminatory wages? They never had to go to court.

MR. GABELMANN: I'm reading what this is. Let me read this again. Where an employee is paid less than to which he is entitled, he's entitled to recover the difference from his employer by action. By what kind of action?

HON. MR. McCLELLAND: Action under this act.

MR. GABELMANN: Judges dealing with this question in the future who may want to refer to the legislative debate for clarification of the intent of the legislation should know that the minister has just said that "by action" in this legislation means "by going to the council." I'm delighted to learn that. I hope that that's what does happen. As I said, in the brief time I've had to do an analysis of this legislation, I have checked with some lawyers about that question. My view was agreed with by them.

Here we have a good example of the problem of debating legislation so quickly following its introduction. It may well be that elements of the debate are conducted on false issues because there's been a lack of full comprehension. I acknowledge that in the course of this debate I may well be off track on a couple of these questions simply because there has not been the kind of time required to do a proper analysis.

I was actually pleased and surprised to hear the minister denounce what he calls the mediation process, commonly called the conciliation process. While in labour terminology the words are usually interchangeable, in human rights terms I think there's a significant difference between the terms "conciliation" and "mediation." I'm quite surprised to hear him make a ringing defence of the elimination of the concept of what he calls mediation and what I would call conciliation. I think it's a clear demarcation between us. Under the Code a grievor, or a complainant, had the opportunity, with the assistance of an officer of the branch, to discuss with the person alleged to have breached the Code the nature of the breach, to discuss possible remedies, to reach an agreement, to reach a happy solution, combined with the requirement that that kind of discrimination not occur again. It led to learning in a way that a blanket order without discussion does not. In this case I think we're dealing with issues that probably are more analogous to marriage than to anything else. The idea of mediation in a marriage is a bit repugnant, but the idea of conciliation is not. I also think that a manager of a bar who denies a native Indian the right to purchase a drink, and

[ Page 4381 ]

who is ordered simply not to do it again, by either the council or a board of inquiry, will not have learned as much as he or she might have learned through a process of discussion about the incident and the issue. I don't find any difficulty with those kinds of discussions or that kind of conciliation, which may well lead to a conclusion on the part of the bar manager, in this case, that he or she was wrong, and an understanding about why they were wrong, and therefore the likelihood of it not happening again. I don't have the minister's opening remarks before me, but when you have the arbitrary conclusion of a dispute handed down without any conciliation taking place, although discussion might — and we're walking a fine line as to the difference between the two — you don't have that opportunity for a better relationship between the two parties or for a fuller understanding of the motivation and the feelings of the person who was discriminated against.

Dealing with the council and its authority — this five-person body, which theoretically is going to have to handle all complaints, although there are vague references to the role of IROs and other people working around the province in the ministry — what is going to happen is that a complaint will find its way to the desk of one of the council members, if they have a desk. Some of them may not be full time and paid only on the basis of work done. The minister shakes his head, the implication being that they are all going to be full time. You can read section 10(3) either way, and I'm delighted to hear that the minister intends that these five people will all be full time; you can read that into that section by assuming that some are in the public service and some will be paid on a contract basis. I assume that is what the implication is. But it also allows for a member of the council to be paid just for the particular duties they perform, but in any event we'll see how that develops.

[11:30]

The complaint does arrive on the desk of one of the council members, hopefully assisted by some staff — a registrar or secretary, maybe. All these reports have to be in writing, so I assume there will be a secretary, although that is not clear. When it does happen, and if the council member has not already got a full desk and is able to deal with it quickly, he then makes an investigation to determine the facts, and he has a variety of options, which we will come to in committee. Among those options that the council member has, after investigating in the same way that an IRO or a police officer would, if it were that kind of thing, is the right to make a judgment. It's a little bit like me being picked up by a police officer for breaking the law. The police officer investigates the facts of the case and then sentences me to one year in jail, or this, that or the other. When a police officer stops me for speeding, I have the right to go to someone else to have my guilt or innocence determined, but not under this section of the legislation. A council member does the investigation, and then, while he has other options, he can nevertheless impose a settlement, in effect. That's a concept that I have some trouble with. It's not the most important element of the bill; I'm not suggesting that. But it's a concept that we in our society have learned to reject, and one that I think should be rejected in this particular legislation.

The minister took some delight in being able to say that the sections that were criticized in Bill 27 — last year's bill — that allowed for the immediate dismissal of frivolous or vexatious or trivial complaints had been improved, because now they have to be investigated first. I'm not really sure that the definitive and categorical statements made by the minister really apply when you actually read the legislation. Section 13 says: "The council may decide not to proceed with the investigation of a complaint where it appears to the council that the complaint" — and in subsection (c) — "is trivial, frivolous, vexatious or made in bad faith."

Then it's required to notify the complainant in writing of their decision not to proceed. This question is perhaps debatable, based on how one interprets "may decide not to proceed with the investigation." There may well be an argument made there that you cannot proceed, but you must have started an investigation before you stop proceeding. But we all know how that can be dealt with. The investigation could well be underway just by reading the letter of complaint. There's no requirement that the individual complaining has the right to come and talk to the council member doing the investigating. So I am not so sure at all that the concerns expressed last year about Bill 27 in respect to the dismissal of complaints are much better served by the process in section 13 of this legislation.

During the term of government of the NDP in 1972-75, when I sat over there, one of the debates that most frequently occurred related to the question of appeals. Every time we brought in a bill....

Mr. Speaker, I think the member for Vancouver South would like to interrupt me for just a moment, and I'm glad to agree to that.

MR. R. FRASER: I would begin by thanking the member for North Island for letting me interrupt his presentation. I ask leave to make an introduction.

Leave granted.

MR. R. FRASER: In the gallery today are some library technician students from Langara College, who are over from that great riding of Vancouver South to not only visit our library and talk to our great librarians, but also see how the House operates, how we think and how we make presentations, and to take a tour of the building. I would ask the members present to welcome them here today.

MR. GABELMANN: Dealing with the question of appeal, the word which was so vigorously used during the time of our tenure in government.... There's not much right of appeal in this legislation, Mr. Speaker. Under the authority of the council to undertake an investigation and make a determination of a complaint, the council can order that the proceedings be discontinued. Earlier on, as I mentioned, they could refuse to take the case. Where then does a complainant go? There's no reference in this legislation to a procedure for a complainant who may well feel that in making the complaint to a council member, the council member failed to understand the nature of the complaint, or that the council member didn't agree that it was a legitimate complaint and ordered that it be discontinued, or didn't take it in the first place. I suppose the complainant could make yet another appeal to, perhaps, the chairperson of the council. Maybe the regulations will deal with that. But there is nothing in the legislation, and that's what counts. Nothing in the legislation that I've discovered allows for that person to appeal.

[ Page 4382 ]

Later on, if the council refers the case to the minister for disposition, and the minister chooses not to appoint a board of inquiry but rather dismisses the complaint, where does the individual go to launch an appeal? The only avenue open that I can perceive is the political one. The complainant can go to his MLA, or he can go to the minister and ask the minister to reconsider. That's not in the legislation, but that's the only avenue that I can discover in this legislation. That's not really appropriate. There will be a lot of people, first of all, who won't know that they can go to their MLA. As much as we think that we are well known and important in our communities, there are still people who don't even know that they have an MLA. It's often those kinds of people who are the ones who are discriminated against. They may not have the language; they may not feel confident; some people are intimidated by that process.

If they don't get good advice — they don't go to their constituency office or to a lawyer or to a friend who is familiar with that kind of political remedy — they've got no option. They really don't even have the political remedy, if you read the legislation. Not that I'm saying the political remedy is appropriate, because I don't think it is. It's the wrong way to deal with human rights complaints. They don't have any place to go to appeal what they think was a decision that was made, perhaps, without all the facts; or perhaps it was made in a discriminatory way by a council member or by a minister who may well have some of that systemic, unintentional prejudice that I talked of earlier.

I'd like the minister, when he wraps up discussion in second reading, to talk about that particular, what I would describe as, failure in the legislation. Nowhere in committee could we talk about appeal, because there's no section dealing with that.

I want to talk next about what you might call the penalty section, although that's probably the wrong word to use; it's not described as such in the section dealing with disposition of complaints. Under the Human Rights Code, a variety of things can happen. We talked about the conciliation, and there are other options available. There is the option of a financial penalty on — I was going to say the guilty party, but that's not a word I like to use in this context — the offending party. Under the Code there is the possibility of a transfer of money from the offending party to the offended party. When it's an individual, that amount can be $1,000, and $5,000 for organizations, companies, corporations, businesses, associations, unions, or whatever. Those figures, which are low — but appropriate, in my view, because I don't like the financial penalty aspect of this kind of legislation particularly, although I recognize that it needs to be there — have been replaced with a flat $2,000. Thus an individual who is found to be in contravention of the legislation is subject to the same financial penalty as MacMillan Bloedel or Imperial Oil would be subject to, a penalty of up to $2,000. And that doesn't deal with whether financial transfers are totally appropriate in this question, but I'll leave that issue aside. It's in the Code, it's in this bill, and there are occasions when that makes some sense.

But there's nothing else. When you look at what else can be done, two things can happen. The board of inquiry — and as the legislation is written, this applies as well to a council member, who acts in effect as a board of inquiry — can do two things to deal with the contravention of the legislation.

Number one, they can make available to the person discriminated against the right, the opportunity or the privilege that in the opinion of the board was denied, contrary to the act. In other words, if you were to rent or denied the right to go into a bar, you would, as a result of that order, be allowed to do that. That's one thing they can do. The only other thing they can do — and they can do this as well, or one or the other — is compensate the person for any wages or salaries or expenses incurred. It doesn't make clear who pays that. Presumably it's the contravening party. But certainly it is clear that the contravening party can also pay a penalty of up to $2,000 directly to the offended party. That reliance on financial penalties, in my view, is too narrow. There should be other remedies available. One of the remedies used often under the Code was that, for example, in discrimination that might occur in the newspapers — particularly by, let's say, the publisher — the publisher would have to retract and apologize in print. That's an appropriate remedy, not available under this legislation.

[11:45]

HON. MR. McCLELLAND: It's as available as it was under the other legislation.

MR. GABELMANN: Not as I read the legislation.

HON. MR. McCLELLAND: You're reading it wrong.

MR. GABELMANN: Okay. As I said, if you only give us a day to study it we're bound to make some mistakes. I might be wrong about this, and I hope I am, but it seems to me that all that can happen is that costs can be recovered if you lose any money because you were discriminated against; you might get some money in the form of a transfer of up to $2,000 from the guilty party; or you might have the right that was denied to you made available. That doesn't, in my reading, allow for a board of inquiry to say to a newspaper that it has to run an editorial making up for the earlier discrimination. The minister says they can, and I'd be delighted to find out where that is in the act.

[Mr. Segarty in the chair.]

Mr. Speaker, much of the discussion of this bill needs to take place in committee. In the few minutes before lunch I want to talk about the concept of the independence of human rights officials. That concept deals not only with the political independence of the council and, as I argued earlier, the fact that it should be made accountable to the Legislature and not to a minister, but also with field staff. Karl Friedmann, the ombudsman in British Columbia, a man who is widely respected by independents in the community outside of Socred circles, argues — I didn't have this when I was making the argument earlier, and I want to refer to it now — in the context of the independence from government of people who investigate and make decisions about human rights violations or alleged human rights violations:

"An argument can be made for some independence of human rights officials from the executive arm of government to ensure the credibility and effectiveness of human rights enforcement against government itself when government agencies are accused of

[ Page 4383 ]

violating rights. I believe, however, that there is a more fundamental reason for seeking independence or at least a greater degree of independence for human rights officials from the executive arm of government.

"If we were all agreed that certain forms of discrimination are inappropriate and offensive to a person's dignity we would not need human rights codes or administrations."

I'm not going to read all of this. He goes on:

"I return to my earlier comments that codes of human rights most likely exist because we do not universally practise tolerance. It follows from that concern that the administration of human rights codes may need to be insulated from the daily ebb and flow of popular opinion. Such opinions are reflected by the executive arm of government and the daily application of existing human rights legislation to specific cases needs considerable independence from the executive like the judge needs independence from government to produce justice."

I didn't have this when I made that argument earlier, but Dr. Friedmann makes essentially the same argument I was making. He goes on later to say:

"On the assumption that the creation of human rights codes remains firmly in the democratic political process I would argue that the administration of the Code could and should be removed from the political process. Hence human rights administration and enforcement should be or become independent from the government of the day. Total independence from all authority is probably not acceptable and perhaps not even necessary." — I would interject that I agree — "Ombudsmen and even judges can be removed by parliament."

So they can and so they should when appropriate. He goes on:

"The obvious model that suggests itself is a human rights commission and administration, created by parliament (Legislature) and responsible to parliament (Legislature) along the lines of the auditor-general and ombudsman. Such a model ensures that human rights commissioners are (1) functionally autonomous, (2) external to the government of the day and (3) operationally independent of both the legislature and the executive.

"'Functionally autonomous' signifies that the human rights commission office is an independent organization in its own right. The staff may be small, but the commission office is not a dependent component of a larger organization (like the Ministry of Labour).

"'External to the government of the day' signifies that the commission represents the will of the parliament (Legislature) as a whole, not just the majority part of it.

"'Operationally independent of both the Legislature and the executive', this provision makes the important distinction between, on the one hand, statutory establishment and legislative selection of the commission and the commissioners, and on the other hand, the commission's ability to operate its office without interference from either the Legislature or the government. Responsibility of the commission to the Legislature is maintained through reporting, and the process of appointing and reappointing commissioners. Dispositional powers over cases would be in the hands of the commission who would appoint boards of inquiry or refer issues of principle to the courts.

[Mr. Speaker in the chair.]

"Ministers would no longer play a role in this process, thus eliminating political considerations from the enforcement of existing human rights acts.

"The ideal human rights commission would be selected and appointed by the Legislature or Parliament. Commissioners would hold office during good behaviour (like judges) and commissioners would be suspended or removed only by the Legislature (Parliament). The commissioners would hold a substantial term of office, anywhere" — he suggests — "from five to ten years. Parliament will directly consider the staff and budget needs of the office and attend to any issues brought to it by commission reports.

"Obviously" — he concludes — "these stipulations constitute the outline of the ideal human rights commission and its relationship to political structures. It is a model and can be modified in certain respects. I am personally convinced that any real institution broadly in line with this concept would produce an effective and acceptable human rights regime."

That very effectively sums up what I believe to be a prevailing opinion in the community: that human rights, like we do with the ombudsman and the auditor-general, should be dealt with not by the political arm of government but by the Legislature, giving it the independence that that implies. I'm going to conclude my comments by simply summing up what I think are some of the serious problems with this legislation. The first thing is that clearly this legislation is substantively and substantially similar to the legislation produced in July 1983 — legislation which met with virtually unanimous disapproval by British Columbians. I want to say again that I believe this legislation violates the accord, the agreement, the understanding that was reached following the community uprising of last summer and fall, because it does not in any significant way amend Bill 27. It takes away from fundamental human rights coverage one of the essential elements of any legislation, which is a provision to deal with complaints where there is reasonable cause to believe that discrimination occurs. I spent some time talking about how that applied to sexual orientation, but I want to make clear again that it applies also to other groups in our society who will now not be covered by this legislation. This includes not only people in the gay community but people whose facility with the English language is deficient, and could well include pregnant women, who as a group are no longer covered by this legislation.

The reasonable cause provision was in many ways the guts of the Human Rights Code. The failure to include that in this legislation is among the more important elements in this debate.

I talked at some length about the need for the council to have a legislative mandate for public education. I disagree entirely with the minister when he proposes that the Ministry of Labour can embark upon an advertising program dealing

[ Page 4384 ]

with human rights. That's not what is required. We need that too, but we also need an ability on the part of the council to do education in a variety of ways, aside from the kind of PR things that the minister would be inclined to do. I've talked at some length about the fact that I don't believe the council — or the human rights commission, as I would prefer to call it — should be accountable to a minister. It should clearly be accountable to the Legislature.

Interestingly, the Ontario Conservative government has had some experience with the type of legislation, not entirely the same but substantially similar, that we're now seeing introduced here in British Columbia, and they have rejected that approach and gone back to a model more similar to the one that we've had in place here in British Columbia for a decade.

In conclusion I just want to say that the bill is totally unacceptable to this side of the House. I believe that once the groups in the community have had an opportunity to look at it and study it and to realize how similar it is to Bill 27, they too will express their opposition to this legislation. I want to appeal to the minister to recognize that if he were to do a couple of things he could begin the process of making this legislation acceptable. He could return the "reasonable cause" provision; he could make the council independent, reporting to the Legislature and appointed by the Legislature, and he could give that council the right to have its own legislated mandate for education. If he did those three things in a proper way, he wouldn't make the bill perfect by any means — but then no bill ever is perfect — but he would go a long way to making the bill closer to being acceptable to the people in this province who are so affected by legislation such as human rights legislation.

Ms. Sanford moved adjournment of the debate.

Motion approved.

Hon. Mr. Gardom moved adjournment of the House.

Motion approved.

The House adjourned at 12 p.m.