[ Page 6367 ]

CONTENTS

Routine Proceedings

Ministerial Statement

Organ donation. Hon. Mr. Ree –– 6368

Mr. Perry

Oral Questions

Fish-processing regulations. Mr. Harcourt –– 6368

Mr. G. Hanson

Mr. Gabelmann

Committee of Supply: Ministry of Attorney-General estimates. (Hon. S.D. Smith)

On vote 13: minister's office –– 6371

Mr. Sihota

Mr. Rose

Mr. R. Fraser

Mr. G. Hanson

The House met at 2:07 p.m.

Prayers.

HON. MR. RICHMOND: It's indeed a pleasure for me to introduce some longtime friends and residents of Kamloops, now retired and living in Celista. They're visiting this wonderful city and are guests in the gallery. I would like the House to welcome Joan and Archie Phillips.

MR. CASHORE: Mr. Speaker, visiting in the gallery today are two individuals who have provided outstanding leadership in the area of the environment and wilderness preservation — preservation of our parkland. I would like the House to join me in welcoming Colleen McCrory and Grant Copeland of the Valhalla Wilderness Society.

MR. PELTON: Hon. members, on behalf of our Speaker, I would like to introduce a couple of gentlemen here this afternoon from the city of Vancouver, Mr. Ernest Hui and Mr. Lyall Knott, and would ask that you make them welcome, please.

HON. MR. VEITCH: In the gallery this afternoon from the great Moscrop Senior Secondary School in Burnaby, in the great constituency of Burnaby-Willingdon, I would like to introduce to the House today a group of 29 grade 10 students. They are led by their teacher, Mrs. Morgan, and they are in the building today conducting a debate entitled "The Destiny of British Columbia: Confederation or Annexation." Those history buffs in the Legislature will realize that that debate occurred from 1866 to 1871. With this group today is a very special young person who worked as a work experience student in my office during the last election campaign, Farah Nazarali. I would like the House to bid them all welcome.

MR. PERRY: I would like to second the welcome to those two special guests from New Denver, Colleen McCrory and Grant Copeland, who have more to do than anyone but a few others with the Valhalla Provincial Park.

I would like also to introduce to the House, if she's here now, the new legislative assistant to me and the first member for Vancouver-Point Grey (Ms. Marzari), Arlene McAuley. She is a very welcome addition to the Legislature.

HON. MR. REID: It gives me a great deal of pleasure to introduce today two very prestigious people, both past governors of Kinsmen District 5, both very dedicated to the community's greatest needs: Rich Coleman from Aldergrove and Jim Watson from Port Coquitlam. Would the House please welcome these two gentlemen.

MS. EDWARDS: Japan, as a nation, is celebrating its international ice hockey diamond jubilee — 60 years of ice hockey in Japan. In honour of this, Japan is having an invitational hockey meet in the city of, I believe, Hachinohe. They have invited 14 teams from throughout the world, and the one Canadian team invited is the Cranbrook peewee team. I would like, when I send them a telegram when they begin play on the 30th, to say that all of the Legislature joins me in offering congratulations.

HON. MRS. JOHNSTON: I stand to speak as the minister responsible for sports. A very important announcement has been delivered to my office which I feel should be shared with all members of the Legislature. Informed sources have revealed that the team captained by the hon. Speaker of the Legislative Assembly defeated the team of lightweights purportedly headed by the second member for Boundary Similkameen (Mr. Barlee) at tennis at the Oak Bay bubble on April 25 and 26, 1989. When interviewed, the second member for Boundary-Similkameen conceded vanquishment and promised to abide by all rulings of the Speaker in the future.

MR. G. HANSON: In response and in fairness, it should be duly noted that the second member for Boundary-Similkameen used a gold-panning thing instead of a tennis racquet.

HON. MR. PARKER: I'm pleased to introduce to the House today Mr. Norman Slavik, president of Norvik Timber Inc., and Mr. Jim Watson, chairman of the board of the Man in Motion Society. With the cooperation of my colleagues the Minister of Regional Development (Hon. Mr. Veitch) and the second member for Vancouver-Little Mountain (Mr. Mowat), we have been working over the last several months with Norvik to establish an alder-manufacturing plant in the province. We are pleased to see that our discussions have brought together all the necessary elements for Norvik to purchase the Fletcher Challenge Tilbury sawmill. When this project is completed, approximately 90 sawmill workers presently employed in the Fletcher Challenge Tilbury operation will be employed with Norvik. They will be upgrading and modernizing the plant into a value-added manufacturing facility that will be operating on alder, and will hire additional workers, many of whom will be disabled. I would like the House to please make them welcome.

MRS. GRAN: In the members' gallery today is a very special lady from Esquimalt-Port Renfrew who I would like to pay tribute to. She recently retired after over 30 years of looking after geriatric patients with the kind of love and compassion that you seldom see. She raised six children and supported them on her own. Would the House please welcome my mother, Hilda Masson.

[ Page 6368 ]

Ministerial Statement

ORGAN DONATION

HON. MR. REE: On Monday, my colleague the Minister of Health (Hon. Mr. Dueck) clearly outlined the importance of organ donation and the need for all British Columbians to carefully review their feelings about organ and tissue donation. Unfortunately, at that time I was called away to Toronto and could not make a statement.

In support of the organ donor program, our Premier launched the B.C. organ donor registry in August, 1988. The registry operated by the motor vehicle branch of my ministry records the names of all those who wish to be organ donors. The registry, accessible to the British Columbia Transplant Society, gives them an indication of an individual's willingness to be a donor.

[2:15]

When an individual's driver's licence is up for renewal, he or she is sent a "Gift for Life" pamphlet to give them time to consider becoming an organ donor registrant. When individuals arrive at the motor vehicle licence office, they are asked if they wish to be donors. Upon their consent, they are included in the registry.

Research tells us that many people will volunteer to be donors if they are only asked. Once you have registered at the motor vehicle licence office, you receive a licence with the words "Organ Donor" printed next to your photograph.

Almost one-third of all organ donations occur as a result of sudden death from motor vehicle accidents. The licence an individual carries can serve as a signal for the doctor and the family of his or her wishes. Since August 1988, over 80,000 British Columbians have made the choice to register. British Columbians have shown, once again, that they care and are willing to make the difficult decision to register as organ donors. I wish to do all I can to help other British Columbians make the same decision.

In 1988 we began issuing a new tamper-proof security driver's licence and a B.C. identification card. Under our present program of asking each driver, upon renewal, if they will become an organ donor, it will take five years to fully canvass all drivers of this province. As an incentive, commencing May 1 and continuing for six months, anybody wishing to replace their driver's licence or B.C. identification card for the new tamper-proof security card may do so without paying the $10 replacement fee. They may do this by registering as an organ donor at any motor vehicle licence office. The new card will have the words "Organ Donor" imprinted thereon.

I wish to stress that it's only by attending a motor licence office that a new tamper-proof security card can be obtained. Also, the forgiveness of the fee applies only to the replacement card. If the individual requires other services such as change of address or renewal, they will be required to pay the usual fee This offer is one way of thanking those who have made the important choice to support the gift of life program.

To ensure that all British Columbians — not just drivers — can register, we have developed an organ donor registry card which can be mailed in by anyone who wishes to register. This card has been included in the "Gift for Life" pamphlet and is available at all motor vehicle licence offices, Autoplan agencies, health units, government agent outlets and hospitals.

Mr. Speaker, since a kit developed by the Ministry of Health and my ministry has been made available to all MLAs, I hope they will also be available at their constituency offices throughout the province and that they will support this program.

The Premier, the Minister of Health and I, just prior to the sitting this afternoon, signed up as organ donors. At this time and until 5 o'clock this evening, staff of my ministry will be in the Hemlock Room downstairs, where any member of this chamber or any member of the media may also go and sign up as an organ donor and receive, of course, the tamper-proof security driver's licence.

The proof of the importance of organ donation can be seen in faces, the faces of the family of the recipient of the recent heart and lung transplant performed at Vancouver General Hospital last week. My best wishes to that family, and my encouragement to others to register as organ donors.

MR. PERRY: I am delighted by the announcement and by the fact that the government has seen fit to deal with this issue on two occasions this week, which I think is appropriate. I would just like to say that I canvassed members of our opposition caucus, and many of us have already signed up. Our staff in the NDP caucus have been asking how they can sign up as organ donors as well, and I will be informing them of the opportunity this afternoon between two and four, which I assume is open to them as well.

HON. MR. REE: That's 2 o'clock and 5 o'clock.

MR. PERRY: Wonderful.

I'd like to commit myself as well to writing to the Canadian Medical Association Journal to inform the rest of the physicians of Canada of the initiative taken in this province, which I think is a wonderful example for the rest of the country.

Oral Questions

FISH-PROCESSING REGULATIONS

MR. HARCOURT: I have a question to the Premier. Today the federal government announced changes to the fish-processing regulations which would lead to the destruction of the B.C. fish-processing industry at the cost of millions of dollars and thousands of jobs. Can the Premier inform this House that he is now prepared to amend provincial legislation over fish-processing and buying to protect those B.C. jobs?

[ Page 6369 ]

HON. MR. VANDER ZALM: We have had discussions before today with Mr. Crosbie and others in the federal government regarding this matter. Yesterday I also spoke to Mr. Crosbie and urged him to come out here today with Mr. Oberle and explain to us just exactly what the government in Ottawa entered into with the U.S.

After a meeting this morning with Mr. Oberle, Mr. Crosbie and the ministers responsible in government and getting the details from him, I am terribly disappointed with what has taken place so far. It doesn't go far enough. We obviously now will have a landing requirement for salmon and herring. There will be provincial buying stations, and anyone, regardless of where they're from, will need to deal with these buying stations. That's one way of ensuring that there's proper conservation and proper management of the resource.

But when you're dealing with herring, you're dealing with more than just the herring; you also must consider the roe. Simply taking account of herring, or weighing the herring, doesn't go far enough. So we need to have a means of processing the roe right here in British Columbia — eviscerating, taking out the roe — in order to have a proper means of ensuring that we're managing the resource and conserving the resource for the industry and for the people of the province.

This morning Mr. Crosbie and Mr. Oberle assured us that before the end of June and before the herring season, they will take the necessary steps within GATT to make certain that we protect that right of being able to process the herring in order to remove the roe, as a part of that conservation and resource management process.

Based on that assurance, we're willing to see what happens as a result of what they do and how they do it before the end of June. Several suggestions were made. However, they must be within GATT, because we don't want to be faced with this again and again, or we'll have a totally uncertain industry. So it has to be within GATT; we were told it could be done within GATT. It will be done within GATT before the end of June and before the next herring season — food herring in the fall and roe herring in the spring of next year. It will be done before that.

In the meantime, we've made our displeasure known to the federal government, with the fact that they hadn't gone far enough. We'll await their further decision.

MR. HARCOURT: Mr. Speaker, to the Premier. Your government walked out of the talks with the Americans three months ago claiming federal incompetence. We'd like to know what specific measures you've taken since that time to protect these B.C. jobs and these millions of dollars that are going to be lost

HON. MR. STRACHAN: Give him the long answer this time, Mr. Premier.

HON. MR. VANDER ZALM: No, Mr. Speaker, I don't think I need to be too long in my answer; it's relatively simple.

If we took the approach as outlined by the Leader of the Opposition and said we were going to forget about GATT, free trade and whatever agreements happen to exist between nations or between various groups within the world economic community, not only would we endanger the whole of the fishing industry but we would endanger the forestry industry, the mining industry and the manufacturing industry. We would irresponsibly be putting every job and the future of every British Columbian at risk. Therefore we in government cannot take an irresponsible position. We have to act responsibly in these matters.

MR. HARCOURT: The Premier just said they haven't done anything except sell out the lumber industry and the fishing industry in the last year and a half. In November 1987 your fisheries minister said that if the free trade agreement was going to harm the fish-processing industry, we would reassess our support of the free trade agreement. Mr. Premier, are you prepared with this sellout by John Crosbie, rolling over Tom Siddon, to reassess your support of this free trade agreement?

HON. MR. VANDER ZALM: I think perhaps if the Leader of the Opposition has questions to ask of members on this side, he should get the information in order to properly ask the question in order for us to provide the necessary answers, because he's obviously not aware — and I would suggest he do some homework before he comes to the House — that this is not a free trade matter but a GATT matter.

MR. HARCOURT: Then why is it that all of the Maritime premiers were able to take care of their fish-processing industry and you left ours out to dry?

HON. MR. VANDER ZALM: It's easier to deal with ignorance than with irresponsibility, so I think I can answer this question fairly easily.

The reason that the matter of fish was dealt with differently for the east coast as opposed to the west coast is that during the time a free trade agreement was being negotiated there was already a GATT application in process. It's this GATT application that is now being dealt with.

The Leader of the Opposition is still confusing free trade with GATT. He's obviously not aware that if we do not act within the provisions of GATT, then every country could in turn retaliate against us. The retaliation — which could come from the U.S., obviously — would be or could be considerable. If we were to act irresponsibly and fly off the handle in such a way as has been suggested by the Leader of the Opposition, then we would be endangering not only the fishing industry — which I and every member on this side wish to see maintained in this province, and which we will fight to see maintained — but we would be risking forestry, mining, manufacturing, all other forms of industry.

[ Page 6370 ]

We owe it to our people, to our children, to our children's children, to act responsibly in this matter.

[2:30]

MR. G. HANSON: A question to the Minister of Agriculture and Fisheries.

It is apparent that the Premier doesn't understand that what we're fighting for is to protect B.C. jobs in the fishing industry. I want to ask the minister what specific proposals he has advanced to protect jobs. Fish could be trucked to fish processors at Bellingham in the United States. Fish processing ships from the United States could come into our waters and process fish. What steps have you taken to Stop that?

HON. MR. SAVAGE: Just to correct the statement of the Leader of the Opposition, first, that nobody had attended a couple, we did have staff at every meeting in the joint negotiating process.

To answer the question: what process have we taken? We do not license processing vessels in this province. We have not licensed them. Further....

MR. MILLER: You haven't refused to, either.

HON. MR. SAVAGE: I beg your pardon?

MR. SPEAKER: Order, please.

HON. MR. SAVAGE: We've never licensed one. On the other occasion you asked what we have done to protect, you said, jobs. To use that term is not GATT consistent, as the opposition well knows. We have stated very clearly that we are, as a government, coming wholly on-side with the Fisheries Council, the fishing industry and the UFAWU, supporting exactly what they're asking for. This government has shown leadership in that respect, and I commend the Premier and all the members of cabinet for doing so.

MR. G. HANSON: That minister was asked for regulations on the landing and evisceration of salmon and herring over a year ago on the floor of this House. Why did it take you over a year to do that?

HON. MR. SAVAGE: The jurisdiction is federal for landing requirements.

MR. G. HANSON: I want a specific response to this question: what action will be taken to stop processors from loading up fish in British Columbia and trucking them into the United States for processing?

HON. MR. SAVAGE: That question was answered previously. All licences have to be issued by this government.

MR. GABELMANN: I have a question for the Minister of International Business and Immigration. Several months ago, when the minister's representatives were in Washington negotiating together with Ottawa over this same issue and the talks broke down, the minister's representatives walked out of the meetings. Why didn't the minister's representatives walk out of the meetings with John Crosbie and issue a statement yesterday?

HON. J. JANSEN: I'm kind of curious as to the line of questioning here, because if there's one issue we've worked on very closely with industry, it's this entire question of getting landing requirements and getting requirements regarding our industry. As the member opposite knows, we have worked on trying to resolve a number of these issues and trying to ensure that the industry and the conservation and management, as the Premier has indicated, is protected. Perhaps the Premier has answered most of the questions in this regard and I can defer to the Premier to carry on.

HON. MR. VANDER ZALM: Perhaps this may clarify it for everyone in the House. Most here — and certainly all British Columbians — will remember the many debates and arguments during free trade. I can remember the NDP saying: "We don't need free trade; we have GATT." Today we have a decision by GATT, and where is the NDP, the wafflers? They are on both sides of the fence, as always. They can't make up their heads where they want to be. They're no place at all. They are living in the past. They're a bunch of has-dones.

Interjections.

MR. SPEAKER: Order, please.

MR. GABELMANN: During the FTA negotiations, the Maritimes and Atlantic Premiers made absolutely certain that their position was well protected in respect of GATT under the FTA. British Columbia did not even show up to protect its own position. My question to the Minister of International Business is: what steps has he now decided to take to ensure that these federal regulations will not be in place and, in fact, that proper regulations will be put in place by the federal minister at our insistence — at the insistence of all the people involved in this industry: the unions, the employers and all those many thousands of people who work there? What is the British Columbia government going to do to make sure those regulations are appropriate and effective?

HON. J. JANSEN: I don't know how many times we have to give the message over there. We have talked about this with the industry on a regular basis. We have put in place our position to the federal government. The federal government has given back a number of areas of regulatory response that are required. The Premier has indicated — and I repeat — that we are disappointed. We didn't get the number of areas that we wanted to see, particularly in grading and the herring issues, and we will continue to represent those. We hope that eventually we can see further resolve in these areas.

MR. HARCOURT: Mr. Speaker, I stand under the provisions of standing order 35. I move that the House do now adjourn to discuss a matter of urgent

[ Page 6371 ]

public importance: namely, the April 25, 1989 joint announcement of new federal regulations, done by the Ministers of International Trade and Fisheries and Oceans to permit the export of unprocessed B.C. salmon and herring.

As my motion indicated, I rise to seek leave for the adjournment of the House for the purpose of discussing a definite matter of urgent public importance; namely, the threat to the B.C. fish processing industry and the jobs of about 6,000 British Columbians — many of them women — as posed by the federal response to the GATT ruling.

The matter is urgent, because if we are to stave off his federally created disaster, we must put up a united front against Ottawa and let them know that their capitulation to the American demands is absolutely unacceptable to British Columbians. With the watering down today of the federal landing regulations, it's clear that no progress has been made in the last three months to protect B.C. jobs.

The conditions and concerns that prevailed in January prevail today. There is no other immediate or timely parliamentary opportunity to discuss this. We need to discuss it today.

HON. MR. RICHMOND: On a point of order. Mr. Speaker, if it will assist the Chair, I have just a couple of points. First of all, I think that the Leader of the Opposition's motion is flawed in that it says "a joint announcement of new federal regulations," and we would like clarification of that.

Secondly, I would submit to you, with all due respect, that the debate on this issue has just taken place in question period, and that the reasoned response of the government clearly prevailed.

MR. SPEAKER: I thank the Leader of the Opposition for giving me advance notice. I will take this under advisement and report later today.

Orders of the Day

HON. MR. RICHMOND: Before we get on to Committee of Supply, I would ask leave of the House for the Select Standing Committee on Agriculture and Fisheries to meet this afternoon as requested.

Leave granted.

The House in Committee of Supply; Mr. Pelton in the chair.

ESTIMATES: MINISTRY OF
ATTORNEY-GENERAL

On vote 13: minister's office, $254,015 (continued).

HON. S.D. SMITH: I know that members opposite are prepared with a number of questions that they want to send along today. While I am waiting for some staff to assemble, it would be appropriate for me to advise the House of some of the things taking place within the ministry, particularly as they relate to the office of the Crown counsel in the criminal justice branch of this ministry.

Upon assuming this responsibility, I said it was my view that we ought to buttress the resources of the Crown counsel's office to ensure that the Crown counsel's office understood its role in the criminal justice system. It would be one where we had a considerable number of people on contract — be they fixed-term contracts or ad hoc Crown counsel appointments — and also the Crown counsel's office itself would be a place where people might aspire to develop a continuing career in the public service.

One of the most important moves forward in that regard was the appointment of Mr. Bill Stewart as the ADM responsible for the criminal justice branch. Mr. Stewart has high regard throughout the system, not only by members in the Crown office, but also by those many members in the defence bar with whom he has come into contact, as well as members of the judiciary throughout the province of British Columbia who know of his work and his ability to lead within that Crown counsel system. So it is the case that in the budgetary allocation this year there are more resources, both in terms of funding and in terms of personnel, to improve the service levels and the ability of the Crown counsel office to perform on behalf of the citizens across this province. More about that will become known, in terms of the specific allocation of those resources, when we introduce in the next two or three weeks or a month the specific enactments associated with the justice Reform Committee report.

[2:45]

As well, I would like to apprise members of the House that during the next two days the Crown counsel of British Columbia are having a conference of some 250 members. They have chosen to hold that conference in the city of Kamloops. The conference is going to deal with a number of issues which I think are important not only to them but to many members of our community at large. There will be a session dealing with how one approaches and works with witnesses, particularly children, who are involved in matters relating to cases where there is a prosecution of sexual assaults.

It is probably one of the most challenging areas of all for the Crown office, because often the evidence of the witness is obviously critical to the advancing of charges and putting fairly before the courts the circumstances and information that has been collected by policing agencies. As well, that has to be done in a way that, above all else, shows a certain sensitivity to the age of the witnesses and the traumatic effects that may impress on those witnesses simply as a result of their being in the courts to begin with in that kind of a trial.

In addition to that, workshops will be held during this conference that will deal with three recent Canadian cases: the Thatcher matter out of Saskatchewan; the Nelles matter in Ontario; and the Marshall matter from Nova Scotia. The focus of those workshops will be on the issues of ethics and the liability, or potential liability, of Crown prosecutors, associated with their

[ Page 6372 ]

work, and the focus of that will be in relationship to those three relatively high-profile cases. In addition to that, there will be a number of other workshops dealing with jury addresses and matters involving impaired driving and the admissibility and interpretation of various kinds of evidence.

I would like, on my own behalf, to thank Jean Connor, who is one of our senior and very outstanding Crown counsel. In addition to her many other functions, she has taken on the task of organizing this very worthwhile conference that is going on as we speak in the city of Kamloops. I will have the pleasure of addressing the 250 delegates at some time over the next couple of days. That said, we'll carry on.

MR. SIHOTA: I will be commenting a little bit later on with respect to Crown counsel and some of the experiences in that office, and also in relation to the difficulties with sexual assault. We may, depending on how we proceed today, get on to those matters fairly early in the afternoon.

I have some thoughts I would like to share with the Attorney-General in terms of sexual assault and the way in which we handle those matters; specifically, lessons we have learned from one case in particular that I want to canvass in some depth with the Attorney-General.

Yesterday, I started off dealing with legal aid. After I had concluded my opening comments, some of my other colleagues wanted to speak. In order to facilitate them, I didn't really get into legal aid beyond duty counsel. I want to spend some time this afternoon talking about legal aid funding in particular.

In that regard, I note that the Attorney-General made several comments — during my absence, in part — with respect to legal aid, some of which I heard. I had the opportunity to read it in Hansard again today. It's interesting that the Attorney-General yesterday in his comments talked about a 56 percent increase in legal aid funding and omitted to indicate that in the case of family law alone the cases being handled by the Legal Services Society still, in numbers, fall below the '82-83 restraint levels, when all family law cases met the income eligibility standards and were being handled.

In actual numbers, my information is that we've dropped the second.... I'm not suggesting that there was anything intended here, but I think it should be clarified for Hansard and for the record. If you read the Attorney-General's comments from yesterday morning on page 8, you get the impression that funds for maintenance are going up at quite a level, and a level I wouldn't mind seeing. But it's not true — because the Attorney-General seems to have added numbers twice — that they are getting $640,000, as he indicated on page 8 yesterday, plus another $500,000. It's my understanding that the $640,000 that is being provided for maintenance includes the $500,000 that he seemed to add twice during the course of his comments.

Also, it's my understanding, with respect to the comments he made about young offenders, that that money is mandated through the federal legislation, which is then administered through the Legal Services Society. Anyway, those are just minor points.

Dealing with legal aid, I said yesterday that I'm going to be building the case that the government has severely underfunded legal aid in British Columbia over the years and certainly has not met the standard expected of it, both from the 1984 task force and with respect to the Hughes commission. I want to go through some of the matters, starting with non-family matters in the civil realm, to talk about where, as I said yesterday, the government is not meeting the statutory obligations.

The legislation is set out to ensure that legal services are available to all those who don't have the financial eligibility to secure service and are threatened with a legal problem. But under the legislation, provision is made, or the desire is expressed, that the service be provided to individuals when their family's physical or mental safety is at risk, and when their ability to feed, cloth and provide shelter for them and their dependents or their livelihood is threatened.

In 1984 the federal evaluation of legal aid identified in their study, which I'm sure the Attorney-General is aware of, the absence of an office in a community as a major deterrent to anyone seeking assistance for a legal problem who may be financially eligible for legal aid. There are a number of areas in this province where no civil assistance is available without substantial travel, and some of those areas are Vernon, Golden, Revelstoke, Invermere, Kaslo, Port Alberni and Sechelt. My question to the Attorney-General is: when is the government intending to provide service in those areas I've just enumerated?

HON. S.D. SMITH: We work with the Legal Services Society to identify the areas in which resources ought to be directed when we add services, community offices and so on. As I indicated yesterday, we are working with the Legal Services Society and presently adding the office component in Terrace, Maple Ridge and Cranbrook. In addition to that, I have entered into a whole host of discussions with the Legal Services Society and will continue to do that on alternative models of providing service in a number of areas, so that we might better use the resources that we have to provide a broader range of services around the province in areas that may now not be served.

Just so that the arithmetic doesn't get confused here, the $500,000 amount and the $640,000 amount are indeed separate. The $500,000 amount applies to social service matters for the family obtaining and varying family maintenance orders, and the $640,000 is for the non-social services.

MR. SIHOTA: The Attorney-General was talking about alternative models, and I know that his ministry looked at models in Cranbrook, Maple Ridge and Terrace for the provision of those services through

[ Page 6373 ]

the private bar. It's my information that the proposal with respect to that model in Cranbrook was not met with any degree of universal acceptance, and similarly in Maple Ridge there wasn't a tremendous amount of interest in providing that through the private bar.

I'm just wondering if the Attorney-General could elucidate, then, the government's intentions in that regard, given the reaction received in Cranbrook and Maple Ridge — and tell me if I'm wrong on that. Is the Attorney-General reassessing his view that these services ought to be provided through the private bar?

HON. S.D. SMITH: One of the things I have found most comforting — in some senses, I guess — about my work in relation to legal aid is the tremendously good relationship that has developed between my office, the ministry and the Legal Services Society I meet with them frequently, both formally and informally, and when I say that we're exploring a number of models, I mean just that. Some will be tried and found wanting, and others doubtless will be tried and successful. I think it's a good and useful part of the process, and it will continue. It's very helpful. As I indicated yesterday, when I think the member wasn't in the chamber, as much as we have done in substantially augmenting the budget for legal aid.... I'll go through it again in detail in a moment, all the matters that we've done with respect to tariff and non-tariff items and the money that goes in in an ancillary way from other parts of the provincial budget. As much as we have done in that regard, I want to see us do more, and we will do more. That's a responsibility I have. I believe very strongly in the proposition, and I know that the Legal Services Society does as well, because we've had many discussions in that regard.

One of the ways that we can best assist in enhancing the resources available to legal aid.... Some people have the view that those resources somehow go to fatten up a profession already too fat; I reject that notion, but it's fairly widely held in our society, and it knows no political boundaries. I'm of the view that one of my primary tasks is to be certain that the resources are available for us to be able to fulfill our commitment and our desire to broaden, enhance and augment people's access to justice.

In order to do that, it seems to me important to acknowledge successes where they occur and not simply to try to diminish the improvements being made. Certainly the Law Society, too, but I know the Legal Services Society and I have a good deal of common cause about that. We have put significant amounts of new resources into providing legal assistance to people. We've changed the flexibility so that the people at the margins, the working poor, are assisted. We've provided more discretionary authority and that sort of thing, but I would certainly like to do more.

[3:00]

MR. SIHOTA: I think we'd all like to do more, but I really take issue with the Attorney-General when he suggests that they've made steps to assist the working poor. We'll get to that in a minute, the lack of coverage for clients of modest means. I vehemently, in very strong terms, take issue with the Attorney-General on that matter. At the same time, I want to tell him that at the end of all of this, I intend to make some suggestions to him in terms of how to operate, because I believe that it's just not adequate for me to say more and more without offering some suggestions on how you ought to proceed.

Dealing with this matter of models, first of all, you say that you have reviewed many of these matters, Mr. Attorney, with the Legal Services Society and that there are several models. Perhaps you could indicate to me again what types of models you are actively considering with respect to the delivery of legal services.

HON. S.D. SMITH: One of the important components of a process of consultation that I like to embark on is to not presume that I have all the answers for all the models. What I have done, in fact, is say to the Legal Services Society that together we should look at ways in which we can deliver those services more effectively to the public, number one, and at a greater ability to use the resources, number two. They've made some suggestions to me and I've made some suggestions to them, and together we're going to continue to look at a whole host of ways we might be able to do those things. When we come to some specific conclusions, then of course we'll make everyone aware of them. That's the process going on, and I'm very pleased that they're willing to participate in it, because they have the same concern as I do that we have to maximize the use of our resources — and in part that will help us get more resources.

MR. SIHOTA: I don't think that's much of an answer in terms of what models you're looking at. That's all I was trying to find out. I know the Attorney-General has a bias towards making sure these services are provided through the private bar; he publicly expressed his interest in doing that to many forums shortly after he was sworn in. I think he would agree with me that experience has demonstrated that the bar is resistant to that mode of delivery simply because of what is required.

I would like to have heard the Attorney-General — and I will allow the Attorney-General an opportunity again, I guess — saying he now realizes that delivery of this type of service through the private bar is not the best way to do it and that the model we have embraced to date is indeed better. I will leave that up to the Attorney-General. I don't want to belabour the point.

I indicated during my earlier comments that without substantial travel, civil assistance is unavailable in communities such as Vernon, Golden, Revelstoke, Invermere, Kaslo, Port Alberni and Sechelt. I don't think this is an acceptable state of affairs. The Attorney-General replied that he was trying to remedy the situation, which the government cut back several

[ Page 6374 ]

years ago with respect to the elimination of the three offices in Terrace, Cranbrook and Maple Ridge.

Interjection.

MR. SIHOTA: That was the implication of what the Attorney-General had to say. If the Attorney-General does not believe that was the implication, then he has an opportunity to correct the record, and I invite him to do so.

HON. S.D. SMITH: Perhaps the best way to correct the record would be to invite the member to put accuracy on the record in the first place. That would be a more productive use of our time, particularly when the accuracy is staring one in the face.

I just want to clarify a couple of things. With respect to the expenditure of legal services money, the largest proportion of the service is, of course, spent in the private bar; that's who does the service. That is the model now used by the Legal Services Society. I don't have the percentages here, but the overwhelming proportion of the money that they spend goes to hire people in the private bar to provide the service The Legal Services Society and I sit together and try to develop where the resources might more appropriately go and where the priorities ought to be. I don't bring to that piece any biases about delivery of service. I try to bring to the piece some sort of ability to do a decent and honest analysis and to advise this House in a decent and honest way what that analysis is so that we can inform people and not in any way cause any opportunity for disinformation to get out.

There's no question at all that I want to get more resources for legal assistance, as I said yesterday. I want to do that not only from the public treasury, but we're looking as well at some of the other foundations — that is to say, the Legal Services Society and ourselves working together. I want as well to do my part to try to ensure that the public understands and that all politicians in this chamber understand. From time to time I have listened to several on both sides of the House who don't see the provision of public moneys for legal aid as an access issue; they see it as only an issue of paying money to lawyers. Of course, you do pay money to lawyers, but they somehow see it as a kind of guaranteed annual income for lawyers rather than as an issue of access for those who are served by lawyers. That's a real challenge which I know one will have to face as they seek those additional resources.

MR. SIHOTA: In terms of more money for lawyers — let's deal with that very quickly — it seems to me that the Attorney-General has his work cut out for him. I want to draw his attention to the debates of the Legislature during my comments on the budget on the afternoon of April 4, 1989. 1 was talking about the Premier and his attitude with respect to the provision of legal services in B..C., and in response to my request for additional assistance for legal aid the Premier said, if I may quote from Hansard: "More money for lawyers." On several occasions he indicated that I was asking for more money for lawyers.

HON. MR. VANDER ZALM: Some lawyers.

MR. SIHOTA: No, you did say that, Mr. Premier. Don't say you said "some lawyers." I've got it here in Hansard. The Premier said: "More money for lawyers." That's the Premier's interpretation of what legal aid is all about, and it seems to me that to begin with the Attorney-General has a selling job to do on the Premier in order to get some of these things through cabinet. If education begins, it must begin over there with the Attorney-General correcting what the Premier had to say on April 4.

In any event, having made that point with the Premier present, I'm sure he will recollect heckling me on that point, and I'm sure that now the two of you will be able to caucus and the Attorney-General will be able to draw to the Premier's attention the need for the Premier to understand what legal aid is all about. If he wishes to chastise the Premier in public in the House I invite him to do so, and if he wants to do it privately within the confines of the woodshed I invite him to do that as well. I'll leave that up to you guys to decide.

With respect to coverage for people of modest means, I guess I should get on with the point I was trying to make. I disagree with the Attorney-General. First of all, civil assistance is not available in the communities that I've outlined without significant travel; secondly, coverage is not available in a whole realm of civil areas where it ought to be available for people of modest income.

Coverage is not available in matters such as foreclosure. There are situations where people come forward to the Legal Services Society with a defence to a foreclosure that they're facing. I know the Attorney-General, during his time as a practitioner, and I myself, during my time as a practitioner, received many calls from individuals in communities wanting legal assistance with respect to a foreclosure matter. They may have a legitimate defence, but the bank has all the resources and the individual has few, and he cannot secure legal aid. Working people in this province who can't afford counsel can't get the legal defence they need on a civil matter to deal with a bank that wants to take their house away from them within six months, or sometimes less. Surely it ought to be a priority for government to begin to provide that type of service.

Nor is legal aid available when the Attorney-General suggests inroads are being made with respect to the people of modest means. Nor is service provided with respect to WCB matters; I elaborated on that yesterday. It is frightening for an individual to have his stream of income interrupted due to an injury at work, through no fault of his own, and to have to deal with a bureaucracy that turns him down — as the WCB often does — and then have to deal with that massive legal network at the Workers' Compensation Board and not receive assistance for legal aid.

If you're affluent, you can do it. When we talk about access to the courts, it seems to me that legal aid ought to cover those areas where individuals of modest income don't have access to either an admin-

[ Page 6375 ]

istrative system such as workers' compensation or to the courts in terms of foreclosure matters.

There are other areas. I think the Attorney-General would agree that in all our constituency offices we get a fair number of complaints on landlord and tenant matters. A quick survey of the bar would indicate the extent to which individuals require assistance in landlord and tenant matters. Little assistance is available in this area to tenants who wish to ensure that their premises are in a proper state of repair in order to resist an eviction application which may be wrongful.

There are other administrative areas. There is the whole matter of refugee claims and the area of unemployment insurance and appeals under the social assistance program. I am aware of several situations in New Westminster and Vancouver where people have been scoring close to 100 percent in succeeding for their clients through advocacy centres with respect to handicap allowance appeals. But again, there's no legal aid provided in that regard, nor is there the broad range of services that ought to be available in a community.

[3:15]

Someone served with an illegal eviction notice who is receiving UI at $850 a month often doesn't have a lot of options in terms of where to go should he be evicted. If that notice is not proper, clearly the person has a potential remedy, but he can't afford it because of the inadequacy of legal aid coverage.

I've talked about matters in the non-fairly civil end. My question to the Attorney-General isn't as to whether he'll provide these services overnight, because I don't realistically expect that either; but I would like to know whether the ministry has made a commitment to the Legal Services Society to a two- or three-year funding plan to begin to provide coverage in these areas.

It's great to say that the government is desirous of making sure that the service is provided, but the record of absence of coverage, of cutbacks between '82 and '83, and of neglect with respect to the task force recommendations in '84 suggests that the government has little commitment to beginning to provide services in these critical areas that other jurisdictions do.

My question to the Attorney-General is not so much will you begin to make inroads, but what types of commitment are you prepared to make to the Legal Services Society with respect to a financial plan that will see us getting to that level of coverage so that people know that the government will indeed deliver those services within a certain time?

HON. S.D. SMITH: Unfortunately some of these matters were dealt with yesterday. I know that the member had a lot of work to do outside the chamber, and so I will try to go through them again somewhat more briefly perhaps than I did yesterday.

In relation to the issue involving immigration matters, there is currently, as I said yesterday, a process being developed which is being headed by staff in the Premier's office working with Canada to develop policies for immigration matters generally. As part of that, any changes that are wrought with respect to assistance on these refugee claims, and so on, we would have to make consistent with that process.

One of the things that I want to correct for the record is in relation to the member's comments on the Premier's support for additional moneys for legal aid. I want the record to know — although I suppose I run the risk of touching on the outer limits of what is cabinet solidarity when I say this, but I've never been particularly disinterested in taking risks, so I will go ahead — is that the fact of the matter is, as I pointed out before, that there are members on both sides of this chamber who share the view that funding for legal aid is somehow fattening up the wallets of a profession that is already seen to be fairly well off,  thank you very much. It is not seen as an issue of access. Each of us has a responsibility to make certain that we try to negate that notion to the extent we can and advance the notion that is au contraire.

When I was able over the last ten months to get a significant increase in the coverage of legal aid in this province — and it has been a tremendously significant increase in terms of inside the system, inside Legal Services Society, money through the family maintenance enforcement program, eligibility criteria, new offices opened up, and so on — I gained a tremendous amount of support for that from the Premier of this province, in my discussions within cabinet and within caucus, and a very real and full understanding that that issue is one that deals with access.

When the Premier in this House, in response to some comments from the member for Esquimalt-Port Renfrew, asked the member if he was talking about wanting more money for lawyers, that's precisely the nub of the issue. When we increased our resources to legal aid, we made certain that the first thing we did was broaden the coverage and the eligibility; in other words, put the resources into the services, put the resources into those areas that were going to help people first, put those areas into providing new offices, put those areas in together. We asked ourselves whether, as a matter of priority, we should raise the tariffs first. Because it's important, and we have raised the tariffs. That's important. The money that is paid to lawyers is very important, and we asked ourselves that issue. We asked ourselves: which should we do first? Should we broaden the service coverage base, change the eligibility criteria to make that the focus of our initial buttressing and increase the lift in money to the Legal Services Society? Or should we make the initial focus the question of more money for lawyers and increasing the tariff?

You can make the argument for either one of those propositions. There is no question that there is a great deal of pro bono work done by lawyers. Lawyers contribute well in this society to subsidize legal aid greatly. Someone asks the question: "Do you want more money for lawyers — an increase in the tariff — or do you want it to reflect an increase in service to people?" It seems to me that is a perfectly legitimate question to ask.

[ Page 6376 ]

The point I want to make to the member for Esquimalt-Port Renfrew — and he should understand, because I think all members of the legal profession should know this — is that when I went, as I have on three or four occasions in cabinet, to get additional resources for legal aid, that was strongly supported by the Premier of the province. To no small extent, the success in that regard has flown as a result of that support.

To get to some of the other issues that the member for Esquimalt-Port Renfrew raised: there are a number of ways in which I think some of our programs that we are now looking at will go towards assisting on the civil side, in terms of cost. One of them, obviously, is the initiatives that have been taken by the Ministry of Labour and Consumer Services to provide a different system for recovery of damage deposits, so that people will be able to do that outside the system they are now doing it in and at some lesser expense.

The workers' compensation organization is providing more assistance — advisory people — to claimants who have appeals. Right now we are examining — and I am very inclined towards giving greater priority to this, because prior to getting involved in the public service, I was interested in it and tried to develop one — the provision of pre-paid legal service plans through the non-government agencies who have some collective strengths. I sought to do that and indeed initiated a program like that with the credit union movement on a lawyer referral service basis. It worked out well and expanded, actually, before I left the private practice, with a trade union organization that was looking at it. I know that the Law Society is looking at that.

We in our ministry are going to be looking at some very exciting options available to us to draw together the resources in the community to deal with legal services on a pre-paid legal plan basis. That would bridge some of the areas that now are not covered for people who simply don't have eligibility. But perhaps more importantly, that would provide an ongoing system on a pre-paid plan basis for those who might even be able to afford it.

Additionally, one of the most exciting things coming out of the changes to the system contemplated by the Justice Reform Committee report — which we'll see in the next little while when I introduce the new Supreme Court Act and other legislation — is the economical litigation program. The object of the exercise there is to reduce, the cost rather than to pay people to go in and do something and leave the same old system in place; to change the system around to reduce the cost in a way that will allow people either to go in themselves — in the case of small business people where they have liquidated amounts — or to allow the profession to undertake some of those matters, particularly on the civil side, at fees that bear some reasonable relationship to the amounts in dispute.

As the second member for Central Fraser Valley (Mr. De Jong) is well aware, in many instances someone may have a legitimate dispute but simply doesn't go forward with it, because they know that at the end of the day they're going to be paying out more in expenses than they might actually collect, assuming they're successful. I hope those initiatives will disclose some currency on the part of the government to look at some progressive ways to deal with these problems in that area. I suspect, without knowing the answer, that they may not be sufficient to satisfy everyone, or indeed the member for Esquimalt-Port Renfrew.

Certainly, we're alive and sensitive to the issue, and we're working at a number of ways in which to improve our system.

MR. SIHOTA: I'm not suggesting that you're not working at ways to try to resolve the system. What I'm asking for is a commitment from the government, because at the end of the day, all these things cost dollars. We need some kind of commitment on the part of government to enter into some type of plan to take us towards the provision of these services, as has been recommended to you in at least one study of the two done. It may well have been recommended in the second one; I can't remember.

I want to address several of the comments that the Attorney-General did deal with, but I want to come back and ask him basically the same question.

By the way, since the Premier is still here, let me say that I was here in the House and the Attorney-General wasn't, and I can tell you that the Premier pulled out a scratch pad and was mocking me about wanting more money for lawyers. I would suggest to you, sir, that it wasn't a matter of the Premier understanding the nature of legal aid. Of course, he had ample opportunity yesterday and that day to clarify his position.

All those alternatives that the Attorney-General went through as a way of addressing some of the matters that I talked about aren't working, and that's why we are raising them. If they were working, that would be fine. Let me give him examples of where they're not working and of how they could be dealt with.

The first one that the Attorney-General mentioned is the recovery of damage deposits. I assume — correct me if I'm wrong — that the Attorney-General is talking about the small claims process with respect to the recovery of damage deposits. The Attorney-General may not be aware of this, but the waiting-time in Victoria to get one of these cases set down is six or eight months. Most people, particularly in ridings like mine, where many people are in the Armed Forces and serve this country in that capacity, can't wait six or eight months to have a damage deposit of $300 or $400 resolved. They are on their way to Calgary or Halifax or elsewhere.

I assume that when you talk about damage deposits, you are talking about recovery of the same through the small claims process. There's a tremendous amount of revenue that remains fixed in landlords' hands because people just don't recover, because they don't want to take it to small claims. If

[ Page 6377 ]

we're talking about something different, then correct me.

The economic litigation program you mentioned is a good program, and I've already said publicly that I support it. I'm not convinced that it will do wonders in terms of opening up access to the type of people I'm talking about. It's a good program for what it desires to achieve, but it's not going to help a single parent whose income is around $1,200 a month, who faces an application to have a maintenance order reduced. It's not going to help that, and contrary to what the Attorney-General said yesterday, that situation in all likelihood would not be remedied by the flexible criteria provided.

[3:30]

Secondly, that economic litigation program is not going to help a separated individual, living in an interior community in British Columbia, who has a small business that's failing, deal with a maintenance application when his or her income is $700 per month. It won't help such people. They can't afford legal counsel, because their income is $700 a month and they are not eligible for legal aid under those circumstances. Economic litigation isn't going to help them, nor is it going to help someone on welfare, living in a community in British Columbia, who wishes to obtain a divorce and — particularly in the case of a woman — get on with her life. Economic litigation is not going to help such people.

Economic litigation is not going to help an individual who works periodically and sometimes collects UI, and who wishes to adopt some children, particularly children of someone he is married to. In those instances, because the requirement is not urgent, legal aid assistance is not available, and economic litigation is not going to help that type of person.

I would grant to the Attorney-General that the economic litigation program is a good one, and I would support it when legislation comes forward to make the appropriate amendments. It will help some people in some circumstances. It will help somebody deal with debt collection or builder liens problems — that kind of stuff. But it's not going to help those kinds of common, human examples that people face, such as I'm talking about here, which relate to maintenance, adoption and divorces. Those are things that people experience on an ongoing basis in this province.

To try to suggest that all this falls under the rubric of economic litigation is ignoring the fact that legal aid is not available — as I said at the outset — to those working people of modest income who can't afford counsel. Therefore they are left on their own to deal with it, whether it be a foreclosure or WCB problem.

On the matter of prepaid insurance, I agree that it is a good idea. I know that the Attorney-General in Kamloops and I in Esquimalt entered into those types of relations — with both, in my instance, trade unions and credit unions. The more of that we see, the better. I also know, as the Attorney-General I trust knows, that there are some problems with the super-intendant of insurance in that regard, and those things have to be worked out, and, you know, we'll let time run its course. That is indeed one answer. But the examples that I raise aren't covered by the models the Attorney-General put forward to remedy problems. They don't touch upon the types of problems that I've dealt with; they don't deal with a person on foreclosure or a person with those types of family problems.

In any event, the only thing I'm looking for is a commitment from the Attorney-General, through his ministry, for the 18 months or so between now and the next election, for the government to enter into an agreement with the Legal Services Society, a funding formula that will see a commitment from government to take us toward those task force recommendations so that we can provide some of those services that we're talking about. All I would ask is that the government make the commitment. Like I say, I would talk about the alternatives. We would be prepared to enter into a two- to three-year program to fund legal services to the point necessary. I've asked the former Attorney-General to do that in the last two years, and that hasn't happened, and I guess it won't happen until we're elected, unless this current Attorney-General wants to make some commitments.

I've dealt primarily with the civil end of the claim. You know, there is the criminal end of the service that requires coverage. Some very serious crimes do not get covered. A classic example is someone who's facing a charge of assault causing bodily harm — I've got two cases that I can refer to here — where a person earns about $875 a month and, again, is not eligible to have legal aid coverage in those types of situations. I don't want to belabour the point, in terms of legal aid. I get the Attorney-General's point that he's trying to do his best, and I can assure him I'm going to do my best to push the government along, as I have in the last two years, to begin to recognize the importance of beginning to deal with the requirement to provide assistance to that segment of the population that does not have eligibility to legal aid and hence no access to the courts, and to remedy the problem that those who can afford it get into the courts.

I do not intend to make any further comments with respect to legal aid, because I am mindful of the time and the need to canvass other issues. But out of deference, I will sit down for a second — maybe longer, I guess — and allow the Attorney-General the opportunity to respond to those points. Like I say, I think he's got my point and I've got his, and we'll move on to other matters. But I'll give him the chance to make a remark or two with respect to legal aid before I move on to some of the other matters I want to canvass.

HON. S.D. SMITH: Mr. Chairman, let me do them in reverse order. With regard to the criminal matters that the member raised, I quite frankly would have to respond in the specific. If there is someone who is being denied eligibility, then if I could get the particulars I will take a look and find out why. If there's

[ Page 6378 ]

some reason for it that does not accord with the policy of the Legal Services Society, then I'll deal with it.

The Justice Reform Committee report suggested that over the next three years we put ourselves in a position to implement the report of the legal aid task force to bring it up to some of the levels that are suggested there. We are in fact above the levels suggested by that task force in some areas now, and we are endeavouring to augment those services, as I've said several times.

With regard to the questions that were raised respecting a single mother whose income was a certain level, looking for enforcement of a court order, a family maintenance order, I said yesterday that I thought that that was covered, and I stand by that. If you register your court order with the family maintenance enforcement program, then the program takes steps to enforce it. I can't understand why there wouldn't be coverage in that situation. In addition, that program would respond by providing assistance in certain circumstances where there was an application for a variation of one of those orders in certain circumstances, and I think this would be one of those circumstances. I say that only because that program of family maintenance enforcement is very much part and parcel of providing the legal assistance that we want to provide — through a different program, albeit. It really does greatly enhance and buttress the legal aid services in this province.

Generally, we are going to go about fulfilling our desire to extend service and improve service in a number of ways. A couple of them I have mentioned with respect to some new programs that we are looking at. Some will be involved with the Justice Reform Committee; others we are working on together with the Legal Services Society in terms of finding better ways to deliver services that we now have.

I must make clear to the House that we work carefully with the Legal Services Society in this regard. The priority developed by them — and certainly endorsed by us — is that you seek to expand the flexibility of the coverage that we are now providing. That's the first priority — that's what we are doing. Secondly, you broaden the range of coverage. We acknowledge we don't cover every situation. It will be the case that every year someone, I am sure — given the nature of the law — would be able to stand up and point to a range of services that aren't covered. I accept that.

To give you some indication of how fast-moving this is, the member spoke eloquently about the difficulties of recovery of damage deposit for renters, and the tremendous backlog that we have in our small claims courts. The person moves to Calgary and so on, as he said, and they have to wait six months for the backlog in the small claims court.

I know we are not the best in the world at communicating, but we try our best. Recommendation 133 of the Justice Reform Committee report, which was released on November 30, recommended that we remove that damage deposit recovery process from the small claims division. That was something that I certainly endorsed, and so did the Minister of Labour (Hon. L. Hanson). That is why on December 29, 1988, the Minister of Labour announced that those changes had been made, that amendments had been made so that there is a new system for recovering damage deposits that will not involve the small claims division. That was done by press release in terms of informing the public. We'll see those legislative amendments going through the House this session.

MR. SIHOTA: We may be just dealing with a backlog then. Those cases keep on dribbling in. I wasn't intending to make any further comments on legal aid. I want to give the Attorney-General the final opportunity to comment on it. Now we can move on to other areas of coverage, an area that is similar, I think, in theme to legal aid, and it may be best to move on to that one.

It gets back to the equality rights provisions within the Charter. The heart of the Charter — as the Attorney-General is aware — is section 15, where all equality rights are guaranteed, and which prohibits discrimination on the basis of sex, age, racial origin, mental or physical disability.

[3:45]

Despite the debate we have had with respect to Americanization of the courts, that provides individuals with a tremendous level of protection. Recently I did some research into this matter and became aware of some issues that relate to section 15 that I want to raise with the Attorney-General. If you begin to take a look at who is taking advantage of section 15 of the Charter, it's obvious that those provisions are being utilized not by those you would think would be utilizing those provisions of the Charter — particularly the minorities and disadvantaged groups as they are defined in legal parlance — but, interestingly, primarily by corporate interests. It's companies like Safeway using it to challenge Sunday-opening bylaws; it's decisions with respect to marketing boards and the regulation of air landing fees; it's examples such as the manufacturing of pop cans. Those are the kinds of cases, to name a few, that come in front of the courts with respect to section 15 of the Charter.

A study was conducted recently by a group out of Ottawa with respect to who is challenging the equality provisions under the Charter and taking them to court. That study reviewed the first 600 cases that came up in the last three years. Of those 600 cases, 44 involved sexual equality — in other words, about 7 percent of all of the matters that have come before the courts — and 22 involved other disadvantaged groups. It's evident from the findings of that study that those who have the most need for equality guarantees have the least ability to utilize the Charter of Rights. They don't have the funds for litigation; indeed, the cost of taking a matter to the Supreme Court of Canada can go into the millions of dollars. Other provinces such as Ontario have funded Charter decisions and Charter challenges. Is this province intending to provide that same ability and opportunity to British Columbians?

[ Page 6379 ]

HON. S.D. SMITH: As the member probably knows, that is one of the matters in the justice reform report — which changes will, I've said, be announced in a couple of weeks. That's a matter of policy consideration. I don't know if the member was in the House yesterday when I referred to the Newfoundland case just heard by the Supreme Court which specifically addresses his problem — or the concern that he raised; I don't know whether he sees it as a problem or not.

Before I get to that, I want to clarify again something that comes up. A reference was made to my being concerned about the Americanization of our courts. just to say it again, perhaps in a way that will make it more clearly understood, my concern is about the Americanization of Canadian society. That is what I have said, and that is all I have said. The courts may very well find themselves taking on a more American tone, particularly in the appointment of judges, because of the kind of work they are now doing. But my concern, which I spoke about at length to a Charter conference at the University of British Columbia some months ago, is about the change that will, naturally, be wrought to our society, and the direction it will go. It will become more Americanized.

I think there is nothing particularly earth-shattering about that statement. That was an understood consequence of the adoption of the Charter. That's the difference between a parliamentary democracy and one that has its ultimate test of jurisdiction rooted with the courts. It's the society that changes The court may change as well, but the society is what changes first.

The Newfoundland Workers' Compensation Commission appeal that was heard by the Supreme Court — the decision was rendered just two days ago — deals with section 15 of the Charter. In fact, it restricts those section 15 applications to the matters that are enumerated in section 15, as well as those matters which might be — and I put it in quotation marks — "akin" to them. It precisely will not allow section 15 applications to come forward about pop cans and this, that and the other thing, which is the member's concern. That is in fact the position that has been argued by B.C. each time we've been involved in a section 15 application.

MR. SIHOTA: That's not my concern so much as it was an example of what the equality provisions were being utilized for, in terms of the examples that I gave. I also gave examples, ones which I'm sure the Attorney-General is aware of, with respect to things like Sunday-shopping legislation. I don't think the Newfoundland decision will endeavour to terminate those kinds of challenges, and that decision itself caused me some concern.

My point here is that there are all sorts of groups in society that one would have thought would take advantage of section 15, and it's turning out that they're not, largely because they can't afford to take the matters to court. The Attorney-General has said that there are some recommendations in the "Access to Justice" report in that regard. I'm just trying to find out whether or not this province is prepared to provide funding to groups who wish to utilize the benefits of section 15 in front of the courts. Will you either act upon that recommendation or, apart from that recommendation, provide financial assistance for groups who wish to take section 15 matters to court?

HON. S.D. SMITH: Mr. Chairman, I can't divine why people do or don't pursue a section 15 matter. But the member is not correct when he says Sunday shopping was a section 15 matter; it was, in fact, a section 2 matter of the Charter and related to a person's freedom of conscience and religion.

Our thrust with respect to section 15 has been to argue that there ought to be a relatively confined interpretation of that matter. I agree with the member that the Charter itself was not intended to enhance the corporate interests and the pecuniary interests of the relatively strong in our society. I understood that the Charter, if it was going to be anything, was going to be a vehicle by which those who had the view that their individual rights were somehow being adversely affected by the collective rights of society could pursue them through the courts rather than through their legislatures, as had previously been the case. It is interesting to see, however, how this thing has been interpreted.

MR. CLARK: It's democracy.

HON. S.D. SMITH: As the second member for Vancouver East says, it's a matter of democracy, and that's quite correct.

The Charter doesn't make anyone any more or any less free per se. What it does — certainly in the Canadian context — is impose a Franco-American system of law upon a British parliamentary system of government. It is also about power. It's about who exercises the ultimate authority and discretion to make certain decisions. Previously that had been exercised by legislators. Now, depending on how activist the judiciary is, the ultimate power rests with the courts, and that, I believe, will make our society a more litigious one. I believe that making our society more litigious is not a particularly welcome model.

MR. CLARK: Unless you're a lawyer.

HON. S.D. SMITH: Unless you're a lawyer. I also believe it makes our society more American. That's the context in which I say what I do.

If we examine some recent cases in that context, it's very interesting to take a look.... I know the second member for Vancouver East is concerned, and he and I have discussed this several times. Let's just look at the three big cases in B.C. and see what the decision has done in terms of power.

In the Sunday-shopping case we had the interesting situation where Canada Safeway was arguing freedom of religion. I hope they blushed when they made that argument. The consequence was that communities like Cranbrook, Williams Lake, Quesnel and Smithers, who had voted not to have that particular form of enterprise on the weekends, now have it.

[ Page 6380 ]

Who does that benefit? It benefits large corporate interests: Canada Safeway, Overwaitea, Real Canadian Superstore. Who does it adversely affect? Small business people and the people in the community who didn't want it. That was done in the name of the Charter of Rights and Freedoms.

MR. CLARK: Are you blushing when you say that?

HON. S.D. SMITH: No, I'm not blushing when I say that. Listen, I recognize the difficult situation I put myself in by arguing the position I take with respect to the Charter, because it's very unpopular. Politically it is an unwise thing to do, and I understand that. But I believe we have to warn ourselves about where we're heading.

Take a look at the billing-number decision. Whatever you may think of the partisan decision to have billing numbers — Bill 41, or whatever it was — what is the consequence of the decision? The consequence is that using the Charter the most wealthy and powerful profession in our society have had their economic rights advanced by section 7 and the adverse consequence rests with small communities in rural parts of the province who now cannot be guaranteed an equality of medical service.

Look at the decision we've just seen in the Dixon case, in terms of electoral boundaries. Look at the consequence of that. This is not a partisan thing. The two constituencies that were dealt with were Atlin and Coquitlam-Moody, by way of example. This Legislature, as a matter of historical record, has taken the view that the constituency of Atlin ought to have special consideration in terms of representation in this House. That is an historic consideration by all sides of this House. Why is that? Because you can't drive across Atlin from east to west continuously, even if you want to; from north to south it takes you goodness knows how long to get up and down it. It is an area as large as France to serve. It is an area where the largest numerical group is the Nisga'a and Tahltan people. It is a very difficult area to serve. It's not like the Victoria constituency, where you can ride your bicycle to the chamber in the Legislature by day and be home on your wee, little pillow that night. It is a very difficult one to serve, and historically that has been taken into consideration by this House.

You have to ask yourself who is best capable to take into consideration those kinds of anomalous factors, attempting to give some democratic expression to people in this society. Is that something that should be left to judges and lawyers, or should that be left to the Legislature?

[4:00]

Interjection.

HON. S.D. SMITH: It is not a specious argument, Mr. Opposition House Leader. You see, the fundamental error that those who supported that change in society never took into account is that, in addition to giving some expression and another vehicle through which people can advance their individual rights against the collective will — and that's what it does — it does ultimately shift power. It shifts power away from the people through their elected representatives to appointed judges. It makes your society more litigious. I don't think that's a desirable route.

So I just take those three examples.

Interjection.

HON. S.D. SMITH: You were in the House of Commons at the time that Charter went through. I'll bet you dollars to doughnuts — if I were a betting person, and I'm not — that no one in that House ever anticipated that section 7 of the Charter would be used to advance economic rights for a profession as wealthy and powerful as the doctors.

Section 7 was never intended to extend economic rights to groups who already have strong economic rights. I don't think anyone in the House with a straight face at that time could, in their wildest imagination, get up.... But that kind of thing is happening. So you must ask yourself who benefits. In the case of Sunday shopping, I put to you the proposition that the beneficiary is the large corporate interest. If there's a beneficiary, there's also a consequence. The adverse consequence is for the small business person in small communities.

In the case of Bill 41, the beneficiary is the most wealthy and powerful profession in our society; the adverse consequence is with medical services for individuals in small communities. In the case of Atlin constituency, the beneficiaries are those of us who live in more urban areas, and the adverse consequence is suffered by the Tahltan and the Nisga'a people. I don't think that is a desirable result.

MR. SIHOTA: The Attorney-General is full of doublespeak and double standards when it comes to talking about the Charter. His whole history of dealing with that issue is symptomatic of that.

Let's take those cases one by one and take a look at what the Attorney-General is saying. Of course, with respect to the Sunday-shopping decision, the parties that are really injured are smaller communities like Quesnel, Smithers and Vernon which like to close down operations on Sundays — or on Wednesdays. I can remember working out of Quesnel when everything used to be shut down on Wednesdays, because everybody decided that would be a good day to have a half-day or full day off. Indeed, my notes — later on we're going to get to Sunday shopping — to myself are in relation to the vested powers in terms of the large corporate sector, which the Attorney-General would criticize now, which have enjoyed access to the Charter in challenging those Sunday-shopping provisions. The two points were made.

If the Attorney-General is sincere in terms of his talk about the Legislature being supreme, then the invitation is extended to him to bring forward remedial legislation. He's got the ability to do that. In fact, many commentators with respect to that Sunday-shopping decision — constitutional lawyers; I don't have their work here with me, but I can bring it back

[ Page 6381 ]

to the House later on — have commented on the ability of the Attorney-General's department to bring forward remedial legislation. But instead, the Attorney-General's ministry has chosen to bow to those corporate interests; instead of fighting them through the legislation he could bring in, he has decided to vacate the field. If you want to articulate your supremacy, then bring forward the legislation.

[Mr. Rabbitt in the chair.]

Secondly, if I'm not mistaken, that decision was not appealed. The other option — and I stand to be corrected on this — was for the Attorney-General's ministry to appeal that decision. If it was so concerned about the powers that had been attributed to a large corporate interest like Canada Safeway, it could have exercised its option to appeal. That was a B.C. Court of Appeal decision, and it's my understanding that you chose not to appeal. I don't know if you got leave or didn't get leave; if you didn't, well, that's fine.

By the way, I should say that I did recognize that as a section 2 case, not a section 15 case. I should have made that clear when I was making my original comments. That's the situation with respect to Sunday shopping.

Then you have the doctors'-billings case. Again, many constitutional commentators have reflected on that decision. Your comments flowing from that, together with the comments of the good Minister of Health (Hon. Mr. Dueck).... You have juxtaposed those with your desire to entrench the right to property, and then have suggested that it is as close to a right-to-property case as one can imagine. I will bring that to your attention tomorrow. I don't have the article here, otherwise I would.

The point is that the Attorney-General, who talks about a litigious society and the expansion of litigation in this country — and his "unpopular position, " as he calls it, with respect to the Charter — would like to introduce amendments to expand the ability to litigate into the matter of the right to property. You want to have it both ways. On the one hand you want to play the politics of the right to property, but on the other hand you complain about the litigious nature of our society and your deep concern about the fact that we are becoming a society that is far more anxious to take matters before the courts.

Then there is the Dixon decision, which came down from the B.C. Supreme Court. It's a good decision. It remedies the intolerable situation in this province with respect to the gerrymandering activities that you, Mr. Attorney-General, are fully aware of from your tenure in the former Premier's office.

Interjection.

MR. SIHOTA: You, Mr. Attorney-General — through you, Mr. Chairman — created the problem with electoral boundaries.

Interjection.

MR. SIHOTA: I'm going to give the Attorney-General a minute. If he wants to listen to me, he can listen. If he wants to argue, he can wait.

MR. CHAIRMAN: I would ask the member to direct his remarks to the Chair.

MR. SIHOTA: The Attorney-General could have remedied that situation quite some time ago by not getting into the incredible entanglement of gerrymandering we've seen through the Eckardt commission, Gracie's Finger and Socred-only double-member seats. It is a web that the Social Credit Party tangled for itself. It's a web that it was politically ill-prepared to untangle, so the courts have called your bluff. The sting the Attorney-General feels with respect to that decision tells him that his party can no longer continue in the back rooms to tilt the electoral map to accommodate the government's political desires.

Interjection.

MR. SIHOTA: What I am saying to you, Mr. Attorney-General — through you, Mr. Chairman — is that if the government hadn't got into manipulating that electoral map, it wouldn't have been confronted with the crisis it now has as a consequence of the Dixon decision.

HON. S.D. SMITH: What's the crisis?

MR. SIHOTA: The crisis is that the government now has a map deemed to be unconstitutional, and it has to come forward with a remedial map at some stage in the game.

HON. S.D. SMITH: Is that a crisis?

MR. SIHOTA: It is a crisis for the Attorney-General and some of his colleagues, who are ill-prepared to walk into that committee in the Legislature and simply move the recommendations of the Fisher commission. We all know that there is an internal crisis in the Social Credit caucus with respect to the way in which those recommendations affect the political life of certain members of this House on the Social Credit side.

Our position with respect to that matter is very clear. We believe that the principles in Fisher are bang on. It creates a further crisis — if the Attorney-General would care to listen — within his own party, which took the position of there being a 25 percent variance one way or the other. It is a little obtuse for the Attorney-General to come into this House and be the defender of ridings like Atlin, when his own party, during the course of their submissions to the Fisher commission, asked that those principles that Fisher supported at the end of the day....

MR. CHAIRMAN: I would like to remind the member for Esquimalt-Port Renfrew that we are discussing the Ministry of Attorney-General's estimates, vote 13. Maybe we've strayed a little from that, and we could get back to the estimates.

[ Page 6382 ]

MR. SIHOTA: This is heading right back towards the question the Attorney-General has not yet answered. His own party went in front of that commission and asked for a 25 percent variance, knowing full well what effect it would have on ridings such as Atlin. It is hypocritical for the Attorney-General — who is well aware, I am sure, of the representations his party was making in front of the Fisher commission with respect to a plus-or-minus 25 percent variance, and that it would have an implication for Atlin — to be some type of defender of that riding.

MR. CHAIRMAN: I would just interrupt. It would be my interpretation that the issue involving the Royal Commission on Electoral Boundaries falls within the jurisdiction of the Provincial Secretary, not that of the Attorney-General.

MR. SIHOTA: It may, Mr. Chairman, but the point here is in relation to interpretation of the Charter of Rights. That's what we're talking about, in all respects. That's what allowed the Attorney-General to make the comments he did, and I am going to continue to deal with section 15 of the Charter. It is a decision in front of that ministry right now in terms of how it wishes to proceed — i.e., whether to appeal. That clearly is within the purview of the Attorney-General's ministry.

Threaded throughout all these comments is an argument with respect to who is benefiting from the Charter. The argument, which I initiated and which the Attorney-General appears to have accepted, is the fact that those groups which one would think would be able to enjoy opportunities through section 15 of the Charter have been unable to do so. Of the 600 cases that have come before the courts with respect to section 15, only 66 have been brought forward by what the study called "disadvantaged persons or groups": only one case on the matter of aboriginal ancestry; only four cases on the matter of mental disability; only four cases on the matter of national or ethnic minorities; and only one case on the matter of racial minorities.

The answer — as the Attorney-General correctly notes — to why we have this problem is simply that certain groups cannot afford to take Charter of Rights cases before the courts or to defend them. They cannot afford access to the courts with respect to section 15 litigation.

What got the Attorney-General off on the tangent — which I felt I must reply to — was his unwillingness to answer that question. You correctly note that there is a recommendation before you with respect to funding for section 15 cases. Will the government provide funding for section 15 cases to the types of groups I have outlined during the course of my introductory comments on this topic? Will you assist those groups which you suggest you are concerned about — the disadvantaged, ethnic minorities, racial minorities, native groups, women — who cannot secure access to the courts under section 15, and ask for advancement of their rights, which the Legislature here in this province is obviously unwilling to expand upon?

I don't want to get into the matter of the human rights commission, because it falls within the purview of the Minister of Labour (Hon. L. Hanson), and we will deal with it then. The simple question to the Attorney-General is: will he provide funding to those groups requiring assistance with respect to section 15 matters?

[4:15]

HON. S.D. SMITH: I am not sure how many different ways I can say it, but let me try yet another one. The matters that the member is referring to are presently under consideration and will be disclosed to the House as a matter of future government policy. I've said that three times now. I'll say it again if it is necessary.

I would add as well that since I have been Attorney-General, there have been no requests for assistance at all in any matter relating to the Charter. We frequently get requests from individuals who want us to be involved in a related action and in various ways in private litigation — in this ministry that's quite a frequent occurrence actually — and who have suggestions to us about matters that ought to be litigated.

We in this Legislature, when looking at the rights of individuals and the services that can be provided, should encourage people to look to the Legislature itself to advance their rights. I think that is one of our most noble and fundamental responsibilities. It is an ombudsman role, of providing additional services to people, and probably why many of us got here. I certainly would want to have the Legislature considered the place to do that, before I would shuffle people off to some litigation lawyer to follow that route.

Nevertheless, if I can say it again — because I don't want impressions to be left of lack of answers — those issues are under consideration, and in due course, when a decision is taken, it will be disclosed. I don't know what else I can do. I say that because it is — and has been — government policy, I suppose, since Confederation in British Columbia not to fund those or similar kinds of actions by all governments always in this House. So that's the answer.

MR. ROSE: I was provoked by some of the minister's responses. As he pointed out, I am probably the only one here that was in the federal House at the time of the Charter, and it's all my fault. It's not my fault that property rights weren't put in there, though; it was the fault of a lot of Conservative Premiers, including the one from Saskatchewan and the one from Prince Edward Island at the time. It had nothing to do with us in Saskatchewan — or anybody else as far as our governments were concerned; it was somebody else. But that's another debate.

I would like to say that Sunday shopping was a matter of freedom of the individual, and I agree. I don't think the Charter was necessarily intended for that or to protect people, but it was there to enhance the rights and freedoms of individuals so that they

[ Page 6383 ]

would know, in a written form — if you like, an American form, if that's not just a distraction.... You don't like some of the decisions so you call it American as a way of criticizing, which is a bit racist, I think.

AN. HON. MEMBER: Nationalist.

MR. ROSE: Nationalist, jingoist. We can all do that with great skill, since we're Canadians because we didn't want to be Americans some hundreds of years ago.

Sunday shopping. I think it would be very difficult to find a chamber of commerce person in a small town who doesn't parrot the old phrase about getting the government off the backs of people, out of business or out of their lives. They'll believe in that until they want protection against things, and then they want closing hours. When I was an alderman, I would say to those people who made those representations: "Look, I don't believe in cluttering up your lives. You're always calling for more freedom, so I'm not going to legislate you to stay open or closed at particular times." That was my attitude because I have a great feeling for freedom, especially when dealing with chambers of commerce.

The same thing is true of the freedom of the individuals. You spoke of a highly paid, lucrative, powerful, well-educated group that is hosting us for something next week. They can afford it and we'll probably go there, but they are individuals too. They have the right to have their rights advanced.

This applies, I think, to the election question about the Dixon case. What do you do if you have a Legislature with a powerful majority that can exert a tyranny over redistribution? We have seen that through a series of gerrymanders. I think the Attorney-General, in his former role as assistant to the Premier, knew well the result of creating 12 extra ridings. As a matter of fact, he bragged about it at the time with one of his colleagues, and it was reported to me. Do you know how it was done? It was done by the definitions.

HON. S.D. SMITH: What did I say?

MR. ROSE: You said that no matter how badly the Bennett government was doing, you need not worry because you would create 12 new double-member ridings.

Interjection.

MR. ROSE: No, it's you, Mr. Attorney-General. I'll tell you outside the House who it was and when it happened.

In any event, you succeeded. You did it by definition. As pointed out in the McLachlin-Dixon case, my riding is the largest in the province. It's got 460 square miles but it's the most populous riding. Central Fraser Valley has two members and 160 square miles. Based on population, it's lower and it's smaller This whole thing was engineered by definition to re-elect this government. I've got good news for you: you can't even change this thing for a couple of years, because you can't change the boundaries, even if mine grows, for two elections. Those boundaries have to last six years.

This is why we have reference to the courts. It's to get over and give the individual some rights against the tyranny of the majority, and we've had this kind of tyranny for a number of years now. I think that you, on other occasions, would be prepared to argue that that's what the courts are for: to redress unjust laws or unconstitutional positions, notwithstanding — and I don't use that in the legal sense — the fact that these were duly elected representatives, even if the election was rigged. That, I think, was all it was supposed to do.

I think to badmouth the Charter on the basis of an Americanization of something is really specious, and that's what I said earlier. I don't accept your premise at all, and I hope that you learn to mend your ways — like schoolchildren.

MR. R. FRASER: It's always a pleasure to address this chamber when you are talking about things to do with the Attorney-General's ministry and to hear the opposition refer to the courts and say things as lofty as "tyranny of the majority." That's the way this country runs, my friend. It's the majority. That's democracy and it always will be. Of course we can complain; of course we can go to the courts. Who would object to anyone having the right to do it? In this country anyone can go the courts.

Interjection.

MR. R. FRASER: I can't believe he would do that. No, the Attorney-General wouldn't do that.

We can talk about Sunday shopping. You're right: it should be left with the municipal districts, cities and things like that.

If you want to talk about charters, which we do occasionally, one thing that I find very frustrating about the Charter, about the laws in Canada at least.... I think the Attorney should think about it; maybe we should all think about it a bit more. How is it, for example, that criminals from other countries can come into this country and be protected by our laws against us? I don't like that idea, Mr. Chairman, and I think maybe the federal government should be approached by our Attorney and others, saying: "What are we doing to endanger our citizens by keeping criminals here?"

He said he didn't like dual ridings. We've had dual ridings in the province of British Columbia for 117 years, and they've done not too badly. I didn't see one word in the newspaper between '72 and '75 that said the NDP wanted to get rid of them. They liked them then, didn't they? If they ever won again, which is unlikely, they probably would like them again, but they don't like them now.

The member for Esquimalt-Port Renfrew (Mr. Sihota) some months ago said Fisher was not a realistic choice because he knew the Premier; therefore he

[ Page 6384 ]

would be prejudiced. Now he wants the Fisher report. Isn't it amazing how we switch like that?

I went to talk to the Fisher committee, and I said: "I don't believe in more than 69 members in this House. We've got enough politicians in British Columbia now; we sure don't need any more." For me to suggest that we should have 75 politicians in this House is not possible. I can't support that and I don't intend to support it, so we are going to have a lot of fun on that committee, although I suppose I could be removed by the member over there.

It's an interesting thing to have more and more people in public life. What we want is more and more people working, more and more people earning money, and a better organization here. That's what we want, not more and more people just because they think they might win one more seat. Go ahead; win one more.

MR. CLARK: Go back to the private sector.

MR. R. FRASER: A tempting idea. It was a lovely place, you know. I still like it. I might do it.

Oh, it's funny how they change. A little riding like Atlin. Maybe it's unrealistic to have a riding with so few people, but maybe in Canada, and in British Columbia in particular, we make special exceptions for people who are a long way from Victoria, the capital of the province. Maybe we try really hard to make sure they have representation. They might need a better representative, but they've certainly got representation.

For them to suggest that we're against Atlin is, of course, ridiculous. We've done a lot of things to help Atlin. You remember the former member for Atlin, who said: "I got a lot of things for my riding because I went to see the government." The opposition members would do well to visit the government from time to time, because if they did what our late friend did, things would be better in British Columbia.

Mr. Chairman, I would like to hear from the Attorney on some of those things.

MR. CHAIRMAN: I would like to remind all the members in the House that we are on the Attorney-General's estimates, and we are endeavouring to keep our discussions to those estimates.

HON. S.D. SMITH: One of the interesting phenomena associated with discussion of the Charter and its impact on the role of this office and the things we do in government is that there is such a dearth of understanding, in my view, of what the Charter does and was intended to do. You see discussions characterized as win-loss versus this government or that government or whatever, and it is characterized in a partisan way. That's interesting, but I think that over time what will happen is what has happened in the United States: it is not discussed in a partisan way but in terms of looking to — as they call it — the Bill of Rights for support. You don't see it in a partisan sense, and the debates aren't articulated in that way.

[4:30]

It's odd for me to be standing and arguing the position I am, when I speak of partisanship, because of course what a Charter does and is intended to do, as I said in the many discussions I have had with the second member for Vancouver East (Mr. Clark), is change where ultimate power rests. That's its purpose. It thereby enhances individual liberty and consequentially diminishes community rights, collective rights, societal rights. That's an interesting notion for me to have to argue against, since I believe very strongly that, because of the nature of our nation, the incredible geographic distances in our nation and our province, and the level of service that we have tried to get ourselves to — and have achieved.... One of the only ways we have been able to do that has been to make certain that we are alert to the need to have those societal rights and that kind of broad-base coverage — that we understand the community of interest — and to necessarily accept that responsibility, even where that diminishes individual rights. That is not something that one ought to characterize as good or bad; that is simply a choice about how you organize your society.

I know we'll never get rid of the Charter. I certainly will accept it, do accept it, and understand what it is and how it operates. I simply raise these issues because I think it is important for legislators to understand the direction we're going in. I don't argue the merits of the decision I've talked about. Once you get past the constitutional issues of whether the courts or the Legislature should make those decisions, I find the logic of the decisions themselves quite compelling. I don't have any difficulty with the logic of the decisions themselves, but to get to that logic in each instance there has had to be, by the judiciary, a certain interpretation of the Charter which lets them take those powers unto themselves. When you read section 7 of the Charter, you wouldn't immediately, through a leap of natural logic, conclude that it was designed for the purpose it was used for in relation to Bill 41. That is what I argue about; that's what I am trying to warn people about.

I think what will happen over time is that there will develop cases and a body of jurisprudence.... A lot of people are going to all of a sudden wake up and say: "Holy George, that ain't the way we thought our society was going to look. How did we get here?" In our own field, in the case of criminal law, again it's a matter of power. Yes, individual liberty is involved, but so is the protection of society. Every time the Charter is used to help a crook, it makes it tougher for the police to protect society.

I'll give you a simple example: Regina v. Dupont. An individual gave evidence admitting an offence — under oath, represented in court, and so on — and subsequently, through a second trial, the individual decided not to take the stand. It was given in our courts under oath, through representation. The Supreme Court of Canada said that in the second case that evidence could not be heard by the court. It is very difficult to understand how that enhances our society. Obviously the Charter can correctly be used to make that kind of interpretation; that's what it is

[ Page 6385 ]

there for. But surely to goodness it's legitimate for legislators to ask what is the best model to follow to develop, enhance, augment and protect our society. I think that question is worthy of debate and discussion. I think it's a question that, in fact, we should think about; I think it is an issue we should try to deal with.

There's no simple answer to it. You get into how many angels can dance on the head of a pin; I understand that. But I think it is fruitless for us, every time you raise the issue of the impact of the Charter on how our society operates, to immediately try to fudge the issue with some sort of personal attack on individual cases. That isn't the issue we're dealing with at all.

What we're dealing with here is a very fundamental change taking place in how our society is organized and the kinds of things we can do. I don't deny that there are incredibly compelling arguments to be made for the proposition that an individual should be able to go to the courts using something like the Charter to redress wrongs. Legislators make mistakes; so, Mr. Opposition House Leader, do judges. Where the hell do you go when they make a mistake under this new system?

MR. ROSE: You change the law.

HON. S.D. SMITH: The point is that under certain circumstances you can't; you don't have the power. You have to wait for the court to get another case up to the highest court so it can reverse itself. That's exactly what I was talking about yesterday with Brown v. the Board of Education in the United States. People use it, and I've used it, as a great example of how the courts changed the course of American history, certainly, and that of many of our pluralistic democracies, by accepting the proposition that separate was necessarily unequal.

We all applaud that decision; we all understand the reality and the logic of that decision. What we don't recognize in terms of process — I'm talking about process here; I'm not talking about the case — is that for the 80 years prior to that decision, the same Supreme Court was asked on several occasions to adjudicate on the same issue and came to the opposite conclusion. The legislatures in many states wanted to make the change, tried to make the change, and had laws struck down by that court. I am trying to say that as a matter of process we have to understand that we have been reduced in terms of the kinds of things that legislatures are going to be able to do. It is a change in our society. It is something we will learn to live with, that we are learning to live with. There are going to be times when you'll point to individual decisions and say: "Good on them for doing that." But over time, what we have done is to transfer ultimate power to nine appointed individuals. When you transfer power, you take power by extension somewhere else. What you have done is reduce the power of the people through their legislature. That is the purpose of it.

MR. ROSE: That argument was used throughout the debate.

HON. S.D. SMITH: Yes, I know it was.

You ask me why this government, having taken that position — and this government did; certainly I did, and many members of the former government did — has a concern to put property rights into the Charter. It's very simple. If you're going to have a Charter society, then you should have a full Charter society, not just a partial Charter society. The process that we're talking about here in terms of property rights is to protect one of the most fundamental values that citizens of our society have: the right to own property and to be certain that it cannot be taken away from them except in accordance with the due process of law, and to have that embedded in your constitution.

By creating the Charter society, what we have done is to create the system where things that are absolutely certain are no longer in the public domain but are inside the Charter. It's a Franco-American system of law imposed on a British parliamentary system of government, as I've said. Under the British parliamentary system, my friend, you have all those rights except that which the parliament takes away from you. Under a written constitutional system, your rights are to be enumerated in the written constitution. That's the difference. That's the purpose of it. That's the idea of it.

For you to have some absolute certainty, you have to embed those rights if you want them in your constitution. That is why it's important to put property rights, in terms of process, into the constitution. That's why it's important to put it into the Charter. That's why the resolution.

MR. ROSE: The right to a job. The right to clean air and water.

HON. S.D. SMITH: I'm talking to the process. The process of what you own, what you have, cannot be removed from you except according to due process of law. Then it is for the courts to interpret the meaning of property. That's what a property system is all about. That's what a Charter system is all about. That's the system we're now into. That's what we have to understand. There's no point being mean-spirited about it and partisanly objectionable with one another, because it is the system in which we now are rooted in Canada. It's a system about which we need greater understanding. It's not a question of good guys and bad guys; it's a question of understanding.

Interjection.

HON. S.D. SMITH: No, no, no. Not in a mean-spirited way at all. When I have spoken on the Charter, I have tried to address the philosophical notion of where it is we're going. I talk about the Charter not in a partisan way; I talk about the Charter because I want people to understand the kind of society we're developing. I run risks every time I do it because I

[ Page 6386 ]

expose myself immediately to the kinds of personal attacks I hear here today. I understand that, and I do it in spite of that. I tell you, I will continue to do it until the last bloody breath in my body, because I believe it.

MR. ROSE: As I say, even sotto voce the Attorney-General usually ends up provoking me. I can't be too partisan on this subject, but I would just like to remind him, whether he realizes it or not, that I can quote speeches he has made on this very subject — I can look them up in Hansard — where he has become intensely partisan and intensely aggressive on this. He's Mr. Moderate today, and Mr. Philosophical, but that's his new role. I've never seen him dressed quite like this before. I think it's an improvement, as a matter of fact. I think he should learn from it. He could become a really lovable fellow if he....

Interjections.

MR. ROSE: Everybody laughs, you see; they don't believe that. I'm glad to see him put away his hatchet and bring out his chamois and polish us all up for this. His lessons are just a little bit hollow, as far as that's concerned, when he talks about it.

As far as the Charter itself is concerned, legislatures had 80 years to do something about that. You use the example of the Brown case. It wasn't the courts that prevented the legislatures from doing things; it was the legislators. The only reason we had the Brown case as being successful was that there was no other way. That's why it's there.

As far as the Charter and its imposition on us in a parliamentary system, I don't think anything is perfect, and it should stand the test of time. I think that some of our rules here are pretty antiquated, too, especially the ones on rule 35. I'm going to be ruled out of order here — and the Leader of the Opposition — in a little while on the grounds that we are on the business of supply so therefore we can talk about fish any time. We've got all kinds of senseless, archaic rules by which we live.

I still maintain that the rights of the individual are paramount in society. I thought it would be argued there from across the way. I thought that we were the collectivists, or regarded as such, and therefore individuals didn't matter very much to us but the community did, or society did. So I think we have seen a reversal of roles. I welcome the minister's new one. I urge him to carry on with the practice. He'll get to like it.

HON. S.D. SMITH: I must say that I am happy to be partisan at any time if the member wants. Admittedly, as I have said on many occasions, I am a person who's fairly combative and, I suppose, a person who holds his views very strongly. I don't make any apology about that to anyone.

[4:45]

It troubles me when I hear about property rights as I did a few years ago — last year or the year before, I can't remember when it was — when I spoke in the Legislature. I had read some of the things that had been said and had been said in a partisan way in another chamber. I certainly responded to those things, and I don't make any apology for that. I'm a person who believes in playing the game according to the rules that the opponents want to play. If they want to play in a tough partisan field, I'm delighted to accommodate them. If they want to have reasoned debate on the philosophy of something, which I happen to like doing, I'm quite pleased to participate in that. I'm happy to respond to whatever avenue my friend wants to walk down.

The issue, though, that is important I think for all of us to try to.... Maybe it isn't. The member says there are some anachronistic rules here. I guess there are some anachronistic members in here too. Goodness knows, maybe I'm anachronistic before my time. I'm indeed taking a position that I well know is not considered to be the nouveau, progressive position. Well, fair enough. I believe it strongly. I believe very much that our society has benefited tremendously from taking the view that there are certain community rights that have to be advanced both in social and economic development. On the balance of convenience between that and certain individual liberties that can be put forward in opposition to them, we should probably opt for the greatest good for the greatest number.

Clearly, when you have a society rooted in that proposition, there rests a much greater onus on individual legislators to be alert and sensitive to the impact of those pieces of legislation on individuals. There is no question about that. I think Canada and this province have had an exemplary and honourable record in that regard. I think we have achieved many things that other societies in this world would want to achieve through a system that allows its legislators to pursue those societal developments and community rights and the enhancement of collective responsibility and services. At the same time, we have done it in a way that has been fair to individuals. We have made mistakes, goodness knows; of course we've made mistakes. But on balance our society has been a fair one; it has been sensitive to the liberty of others. On balance, as well, it can be properly stated that we have done more to enhance the real liberty of individuals in this society than almost any other society I can think of anywhere in the world. We have done that at the same time as being able to pursue our collective interests, our societal goals and the kinds of services we want for our community.

I understand, as I have said several times, that the position I take leaves me open for attack politically, personally and philosophically. It is something that if I were looking only at what is politically good for the second member for Kamloops I would avoid doing. I am not going to avoid doing it, because I believe it is something that we should be alert to and sensitive to and that we should understand can take us down the wrong path. The American model of social organization is not one that I want to pursue at all. I don't believe in it. I don't want it.

The effect of the Charter, not the individual cases.... I'm not attacking the judges; I'm not attack-

[ Page 6387 ]

ing their sense of history or their understanding of the issues. I am simply warning people that the process upon which we are embarked, because necessarily to change a process has moved power.... Power: it's always about power in this human world we live in. It has moved ultimate power away from the people, through their elected legislatures, to an appointed judiciary. It has augmented the power of lawyers. It makes our society more litigious. I don't think a litigious society is a particularly desirable society. I have said that in my view — as I have come out of the other side of the law, other than litigation, I may carry a certain bias — it's a lot better to jawbone than it is to litigate, and I think Canadians have been darned good at jawin' over the years, and we've built a darned fine place as a result of it; and we have in British Columbia. I hope we are sensitive to that reality, as we see the impact of the Charter take hold over the next number of years.

MR. CHAIRMAN: Before we proceed, I would just like to remind all the members that the Chair has been extremely lenient for the past hour in the debate going back and forth. I would like to remind members of the rules of relevancy, which I know all the members of this House are familiar with.

MR. SIHOTA: Mr. Chairman, please listen to the question that I arrive at at the end of all this, because it's going to be the same question. It deals with power, and real power.

I want to raise a number of points with the Attorney-General. First of all, I want to get on the record what the Attorney-General said, in response to some comments that the government House Leader made, that if he had been given the opportunity he would not have voted for the Charter, and indeed he does not support the Charter.

Interjection.

MR. SIHOTA: That's fine. I just wanted to make sure that that was.... It was the first time I had heard it.

The second point is this, from the Attorney-General, who would heckle now: when he talks in this new statesman cloth that he wears, saying he would describe our position on the Charter as a bit of a personal attack directed towards him.... I don't know what I said that he took personally, but indeed I find it passing strange coming from an Attorney-General who during the course of my comments on the Charter chose to mock me when I stuttered over a few words, and decided to get rather personal in his animations of me when I was stuttering over some language. If there was during the course of this debate an example of someone taking a personal shot at somebody, that was it.

I guess the Attorney-General now wishes to walk around instead of sitting and listening. The Attorney-General wants to have a philosophical debate on the Charter. I would at least hope for his indulgence. I didn't walk away and start to talk to others when he was up. I don't mind his walking around, but I certainly object to some of the rudeness that comes from turning a back on a member who's speaking, or walking off and talking to others. I've tried to be courteous, and when I've had to leave I've always explained to the Attorney-General why I've got to leave during the debate. Again, it doesn't mix with the cloth that he's trying to wear.

The Attorney-General is correct on this point: there is no doubt that greater power has been accorded to the courts because of the Charter, That is not to say, on the other hand, that power has shifted and ultimate power now rests in the hands of the courts as opposed to the Legislature. That's the flaw in his argument. I'll elaborate on that in a minute.

There is also another flaw in his argument — let me set it out at the front end — that we have somehow embraced a Franco-American system of jurisprudence and have left behind a century and a quarter of Canadian jurisprudence. Surely our Charter — and I will go through this in some detail — tries to strike an appropriate balance between those two systems of jurisprudence, changing our system, of course, shifting some decision-making, but not changing the fundamental nature of where power lies.

Let me expand on those comments. I think that those who drafted our Charter of Rights were very aware of the American experience, as concerned about it as I am, and as worried as I am about the rigidity of American decisions, and the rather confusing messages that somehow and sometimes come from the American courts; some very obtuse decisions that I don't think the public understands.

The drafters of our Charter of Rights had the opportunity to take a look at the Franco-American experience, to take a look at pronouncements of the American courts. And it is my submission to the Attorney-General that then, mindful of what the American courts had been doing, they chose instead to draft a charter that would prevent the situation in the United States from transpiring here in British Columbia. That's why the drafters of our Charter put in certain provisions. They put in a provision known as a notwithstanding clause that in many ways reflected their desire to maintain the supremacy of the Legislature, giving the Legislature the power to overrule a decision of the courts. This is a fundamental provision vested in our Charter of Rights which is not ingrained in the American experience or written into the American constitution. Indeed when there are obtuse decisions, then legislatures are free to take advantage of a notwithstanding clause.

One example is a rather controversial one in Quebec. Another example, which may have been utilized when the Attorney-General talks about criminal matters — and I too do not like technicalities and criminals getting off on technicalities.... I would remind the Attorney-General of the Sault Ste. Marie case in terms of how difficult the courts have now chosen to make that in Canada. Most recently in Saskatchewan the fingerprint legislation could have been deemed unconstitutional. If the same had happened in British Columbia, it would have been open to — as I know was considered by the Attorney-General's depart-

[ Page 6388 ]

ment — invoke the notwithstanding clause to overrule that. I think on the whole the public would not like to see those who are involved in criminal offences not to be attended to. That option was available but the provision of that very important clause — which interestingly now is the centre of debate at the federal level — provided for protections and prevented the ultimate shifting of authority to the courts.

As a further safeguard, avenues still exist for the Legislature to articulate its supremacy. To make the point again, when Sunday-shopping legislation was struck down by the courts in British Columbia — and the Attorney-General interestingly chose not to comment on this point — the provincial government could either have appealed or alternatively could have brought forward legislation to protect those interests of small business people and to reflect the community character of places such as Smithers and Quesnel through the provision of legislation in this House, much as they have done when the Charter has made other attacks on regulation — for example, motorcycle helmet laws.

There is the supremacy of the Legislature still vested in our ability, as elected officials, to enact legislation. It is bizarre for the Attorney-General then to argue on the one hand that he is opposed to a Charter and then on the other hand to say that if you want a full development of rights in the Charter and if you're going to go for a Charter, you might as well put the right to property in. It overlooks the fact that within our own Charter there exists the "right to use and enjoyment of property" clause. It overlooks that and yet that is a significant clause which we await for greater interpretation.

[5:00]

It also erodes the other half of the Attorney-General's argument with respect to the supremacy of the Legislature. We have chosen in this House to deal with the protection of property not only through that one clause that I've talked about in the Charter of Rights but through legislation like the Expropriation Act, the Land Title Act, the new Personal Property Security Act — all designed to protect individuals That's certainly an articulation of the supremacy of the legislature.

Those options are available, and indeed it is somewhat obtuse for this government to talk now about the introduction of new tougher environmental laws which limit the ability to deal with land. If you want to introduce that, then you had better think twice about what you want in terms of right to property in the Constitution. If you truly believe in the protection of the Agricultural Land Commission, then you must reconcile your desire to preserve that which you desire and on the other hand put in the right-to-property clause. Because those types of things, tougher environmental laws and the Agricultural Land Commission, are open to attack with the right-to-property clause.

You have the notwithstanding clause. You have the ability of the Legislature to introduce legislation. You have the difficulty that the government has, on one hand, to talk about its concern about Americanization of our society, and then, on the other hand, the introduction of right to property which would further Americanize — I would argue — in the fashion that the Attorney-General is advocating.

It all comes back to one single point and I agree with the Attorney-General on this. It comes down to power. We've chosen, as a society, to allow for power to remain ultimately in the hands of Legislature, as I have explained. But there are times when it is appropriate for the court to intervene. The nature of that intervention must then be looked at — not the good or the bad of the decision, but the nature of that intervention.

The Dixon case speaks volumes as to the nature of the intervention that our courts would like to engage in. An American court, acting with the boldness and the activism that we have come to expect from American courts, would have said that the entire map is illegal from the day of this decision on, and unconstitutional and void. A Canadian court took a pragmatic view. A Canadian court — pages 18 to 25 of that decision — reviewed our jurisprudence, compared it with American history, and chose not to go the American way. Then, in a very practical decision, they said, "Look, it is unconstitutional. But out of respect" — I underline these words — "to the supremacy of the Legislature, we will give the Legislature as much time as it reasonably needs to come up with a new map."

Surely that is an example, when we talk about the nature of intervention, of where our courts are prepared to go. They are not prepared to be active, as the American courts have; to be bold and aggressive, in the most liberal sense of those words, as the American courts have. That would offend the constitutional sensibilities we've developed in this country.

On the other hand, the courts are prepared to declare something to be unconstitutional, but then to deal with the practical effects of the same. That is not Americanization; that is trying to strike the balance which we as a society asked the courts to strike when the Charter of Rights was blessed by all provincial governments, including a Social Credit government in this province — through the advice, I'm sure, of the current Attorney-General in his capacity as political adviser to the Premier at that time — and of course the federal government. It gives me great comfort to read that type of decision and to see that our courts are not prepared to go as far as the Americans have.

When we get down to the matter of power, there are still going to be times — and I know my time is running out, so I want to continue — when legislatures are not prepared to deal with equality issues. There was a time, in this country, when people of my ancestry were not accorded the right to vote or the right to citizenship. There were times not that long ago when people from my ethnic background were not allowed to own land in Vancouver or to engage in professions as physicians, dentists or lawyers: those types of professions.

[ Page 6389 ]

MR. CLARK: Mr. Chairman, I see my colleague's time is up. I would like to hear him finish his remarks.

MR. SIHOTA: At the time, the Legislature did not have the political will, for several years, to remedy that inequity. Perhaps, through the existence of a Charter of Rights, the courts would have been prepared to intervene. In those types of situations, a Charter would have been of benefit. Those are the types of situations where it would be appropriate to have a Charter to allow for intervention.

There exist issues today which, in my view, are not as blatant in discrimination yet are worthy of consideration by the courts because they are not being dealt with by certain legislatures. One of those issues may well be pay equity as it relates to this province. I understand pay equity from a different point of view, if I may reach back into my heritage.

Interjection.

MR. SIHOTA: Or pensions; there's another good example. But I use pay equity as an example, and use it through my own ethnic heritage. People talk about pay equity as a women's issue, and I always chuckle at that, because I don't see it that way. It's an issue of rights and fairness. There was a time in this province when, if you were Asian or Oriental, you were paid ten cents an hour less to work in a sawmill than others. That was the law, and the Legislature wasn't prepared to change that law for some time. When people talk about pay equity today, they don't see it as a women's issue; they see it as an issue of fairness and justice and a matter of equal pay.

In the absence of legislative action, where the legislature refuses to move.... Some legislatures have; for example, the provinces of Ontario and Manitoba. If people feel compelled to deal with that issue and do not see the political forces moving, certainly they can ask for redress in front of the courts. I think that's appropriate, because we are all talking here about advancement of rights, collective and individual. In those instances, by providing for them in the Charter, we have provided people with a venue to accelerate the political process where it is not responding to some injustices which may exist.

Another example, as my friend from Coquitlam said, is pensions. Another example is provision of minimum pay standards for farmworkers. Those are all issues in society where today the Legislature is unwilling to move and where the people may want to consider litigation to try to get the Legislature to move. That's okay, as long as the Legislature behaves in the same fashion as it did in Dixon with respect to the nature of its intervention.

If at the end of the day the Legislature finds discomfort with it, it's got other powers — not in all cases, because the notwithstanding clause doesn't go that far, but in most. One fundamental problem remains with respect to the courts: only certain people in this society have access to the courts: namely, those who can afford to get into them.

As a consequence, groups which represent disadvantaged individuals, minority groups or natives, have had tremendous difficulty in being able to assert their section 15 rights, their equality rights, in front of the courts, because they cannot afford the funding required to go to the courts. They do not have the economic power that provides the key to the courts.

The Attorney-General, who earlier in the course of his comments would describe himself as a defender of those who are not rich, not powerful or not advantaged, is being asked at this juncture of this debate one basic question — though there are four or five others that I want to get to. That basic question is: this reasoned study, which I have now brought to his attention and which will be published in the fall but has already in terms of its contents been pre-released, demonstrates that of the 600 cases that have gone to the courts on the equality issue, only 66 have been triggered or initiated by disadvantaged groups or women.

Other provinces, such as Ontario, or other jurisdictions, such as the federal government with respect to federal legislation, have provided financial assistance to those groups in order to have access to the courts to seek a definition of their rights. It's not a question of future policy. It's a question of asking the Attorney-General whether his government will be, or is now, prepared to provide funding to those groups, to provide them with the power. It's a simple question. Or alternatively, do you wish to hide behind your position of not embracing the Charter as a reason not to fund those groups so that they may have access to the reality of the document that exists — namely, the Charter?

The question to the Attorney-General simply is this: will those groups be funded through a program established in this province?

HON. S.D. SMITH: I guess I will try for the fifth time to give the answer to the member. We've done two things with respect to the issue he raises — really, three things. First of all, the full answer is that the report on access to justice deals with the question and raises the issues that he has raised. It is under consideration, and I have said that we will be bringing in a series of changes in the next several weeks. It is, in fact, a question of future government policy for the very simple reason that he enunciates: it has never been the policy of the government, of any government, in the province of British Columbia to fund those kinds of matters.

[5:15]

The other thing, and perhaps as important in terms of that issue, is that we have argued against utilization of section 15 of the Charter in relation to all sorts of matters which tend to assist and support corporate vested interests and inevitably impact on individuals. We have successfully argued against that use of the Charter and, as I said in a ministerial way yesterday, by way of the Supreme Court of Canada in a decision on the Newfoundland compensation board.... This is an incredibly important decision, I

[ Page 6390 ]

might add, for the province of British Columbia, because it allows the maintenance of the integrity of the workers' compensation system as an insurance system.

[Mr. Pelton in the chair.]

On the broader issue that the member raises, it is very difficult for me to get into the issue in the way he might have thought he was inviting me to. I don't know where he studied his constitutional law, but suffice it to say that we've read different books. His understanding of constitutional issues, I think — with the greatest respect — is a touch deficient. On the ethnic issues he raised with eloquence and from a personal basis — that's fair enough — I would point out to him that every one of the wrongs he referred to was righted by a Legislature, not by a court and not by a charter of rights.

As well, while the member points to the great American case of Brown and the Board of Education as one of the tremendous advances in liberty for people in that country, I would point out to him that in this country, a parliamentary democracy, we never needed Brown and the Board of Education, because we never had that issue to face. Our democracy, our parliament, dealt with those issues without the need of having a court take one position for 80 years and then reverse itself ultimately in 1952.

On the issue of Sunday shopping, as I have stated many times publicly and written hundreds of letters about to concerned people, we are looking at a Sabbatarian clause. It's a model of organization that is under litigation now and inevitably would be litigated. But in addition to that, some of the communities that have been impacted by that decision have found ways, through their hours of shopping, to deal with the issue.

It's ironic that the member would today point to the Expropriation Act as the great doyen of property rights, when just yesterday the Expropriation Act was under attack by that same member as to its administration and the protection that would be given to the chairman of that act, because he does make quasi-judicial decisions. I said yesterday and will repeat today that when you are giving power to a group to make quasi-judicial decisions, it's very important to give to that body the kind of quasi-judicial integrity that they have by giving them a fixed-term appointment.

I must say again, as I said yesterday, that the most compelling argument I heard during the whole debate yesterday of why you should give fixed-term appointment to the head of that organization was the one raised in this House. Not a single word about the ability or integrity or schooling of the person, but indeed a criticism of the person because of their political beliefs. Frankly, I think that offends the most fundamental concepts in our own Human Rights Act in British Columbia as well as the Charter of Rights, and the people who make those kinds of attacks ought to reflect on that.

Sometimes we — all of us, I think — become a little full of ourselves, and sometimes we don't think clearly about what we're really saying. When you attack someone on the basis of their political beliefs or political standing as an argument in favour of their not being able to hold a job, then I think you're getting onto ground that you ought not to want to get on. When you want to change the terms of employment for someone because of their political beliefs, I think you're on grounds that you ought not to be on.

I want to say this in defence of Jack Heinrich: he doesn't need anyone to stand in his defence. I want to tell the House that Jack Heinrich — anyone who knows him, and a lot of people in this House do know him — should not ever stand accused by any member of not doing a full day's work for a half day's pay. Anyone who ever served with that man knows that when he was the Minister of Labour particularly, nobody in this place — bar none — worked harder than he did and still does. Anyone who could stand up with a straight face and suggest that that man doesn't earn his pay, quite frankly, either doesn't know the man or is indifferent to what they are saying.

To get back to the point at hand, it is interesting that there is an endorsement, I gather, from the NDP of the notwithstanding clause of the charter. I didn't know that was a policy.

Interjection.

HON S.D. SMITH: I'm sorry. Your colleague just made quite an eloquent plea as to how the notwithstanding clause protects our.... I don't want to put words into anyone's mouth, but I understood him to say that the notwithstanding clause preserves the integrity of our Legislature and parliamentary supremacy and is something that was presumably desirable. Therefore I presume it is the position of the NDP to support the notwithstanding clause. I don't know whether it is or not. Maybe I'll sit down and listen to the Leader of the Opposition just to find out if I am wrong.

MR. ROSE: The history of it — as I understand it — was that it was done in the kitchen late at night to save the accord. It was the provinces — including one NDP province — that sought that as a way out. It wasn't really wanted by the Prime Minister, nor was it wanted by many other western provinces. But the kitchen cabinet included the president of the Canadian Football League, the Attorney-General from Saskatchewan — and I've forgotten who the other person was; I think it was Chrétien: McMurtry, Romanow and one other. Really the deal was going to flounder until the provinces were guaranteed this kind of freedom.

As far as the NDP and the federal members were concerned, at the Premiers' conference we accepted that reluctantly. So I don't think there's any unanimity on the fact that one political party or another embraces the notwithstanding clause with great enthusiasm.

[ Page 6391 ]

You can hardly argue, now that it's in the constitution, that there is a power by the Charter, exerted over the provinces that are all-powerful — that there is this safety valve way out. Morally I think it would be very difficult, unless you're in Quebec and you want to protect some language legislation that I have no use for — and I don't mind how many people know that one. You would have a difficult time using it in the province on most issues.

HON. S.D. SMITH: I can tell you this, that I understood the member from Esquimalt to say — if he was not articulating the full position, then fair enough — that the notwithstanding clause was a desirable component of the Charter. The only reason I raise it is that, as you know, there is considerable debate in the country today about the propriety of a notwithstanding clause within a Charter system.

MR. ROSE: It was the only way to get it through.

HON. S.D. SMITH: I understand how it got there, why it got there and the reasons for it, and don't have any difficulty with those propositions. The only reason I raise it right now is that it is my understanding that the federal NDP has stated that they don't like the notwithstanding clause. I know the Prime Minister has also talked about it. I thought I understood the member for Esquimalt to say that this party here supports it. If that's not the case, then I stand corrected. I don't want to be accused of articulating the NDP's policy when I'm articulating it wrongly. I would be curious to know whether as a matter of party policy you do or you don't support the notwithstanding clause. The eloquence of the member's defence of the notwithstanding clause was certainly more fulsome than I have ever heard.

MR. ROSE: I'm sorry, Mr. Chairman, but I missed the eloquent talk on that, so I didn't hear him. But just to go back over the federal position, because I'm the only one in the room that was there at the time.... Other people, who were in a sense voyeurs, might know about it. I don't know how many of them read all the committee hearings, but it was imposed quite reluctantly on the federal parliament by the provinces. Yes, there was one NDP member there, one Liberal and one Tory, and we're all equally culpable.

The provinces were the ones that wanted it. I think it's interesting that you're asking the questions now; we over here should be the ones asking the questions. just to add to your fount of knowledge of constitutional matters, my recollection is that, federally, we didn't want it. The Charter of Rights and Freedoms, the patriation of the constitution and all of the things attendant thereon were about to founder, because the provinces — notably the western ones — would not accept the Charter without an escape hatch.

HON. S.D. SMITH: I don't want to belabour the point. The only reason I asked that question is simply that I have been trying to.... I get hit — don't misunderstand me; I'm not complaining — with this proposition that I am unnecessarily and unfairly putting words into someone's mouth when, in the course of debate, I take a statement that is made and run with it, you would say, into flights of political rhetoric. I think probably you would fairly say that sometimes; other times, I am not so sure that is so fair. Nevertheless, the arbiter of fairness, thankfully, in this House is Mr. Chairman.

I would be interested, and I am sure the people of British Columbia would be interested, because I think the Charter and the notwithstanding clause are issues with much currency right now.... As you know, it has been used three times: by the former Premier of Quebec in a blanket way; by the government of Saskatchewan — Grant Devine's government — following that, in relation to a labour matter, I believe; and by Premier Bourassa in relation to Bill 101. That has raised the whole issue.

I don't want to go off making great speeches about who says what about the notwithstanding clause if I'm wrong. That's the only reason I ask.

[5:30]

MR. ROSE: I am comforted by the fact that the minister is not going to go off making great speeches about things in which he's wrong. I hope he is loyal to that statement in the months to come, because there'll be some difficult times, and the temptation to say things that you may know are not exactly correct will be — or I think it could be — overwhelming.

It's interesting to me, since we're talking about constitution.... It's a game. It's a little bit like chamber music; it's fun to play, but hell to listen to. Nevertheless, I just thought I would like to give this parting shot since we're not going anywhere anyway today: that is, the right of Quebec even to use the notwithstanding clause since it hasn't signed the constitutional accord anyway and Meech Lake has not been ratified. So what they're using it for and how they can get away with it, notwithstanding the fact that they haven't signed the constitution, amazes me.

HON. S.D. SMITH: An interesting interpretation. I'm not an expert in constitutional matters, and I don't pretend to be, but with the greatest respect, Mr. Opposition House Leader, I think you're wrong when you intimate that because Quebec didn't sign the Charter, it somehow doesn't apply to the province of Quebec. As we would say in the Wells Gray hotel in Clearwater, that's the nuts of the issue.

HON. MR. RICHMOND: They wouldn't say that in Clearwater.

HON. S.D. SMITH: No? Sorry. That's the gist of the issue, they would say in the Wells Gray Hotel.

I would like to hear the member for Victoria, and I'll sit down and rest my vocal cords. I'm sure you'll be delighted.

MR. G. HANSON: I was listening carefully to the debate earlier in my office, and I was driven to come here because I heard the Attorney-General say that he was "for" discussion. In fact, I think the words he

[ Page 6392 ]

used were: "jawboning as opposed to a litigious approach to society." Where this seems to fall short is where it relates to native people. I'm sure he's aware of the thick lists of papers that relate to the court cases. The courts in this province are literally full of cases: civil cases, hunting cases, fishing cases, et cetera.

I want to ask a couple of specific questions. In light of the upholding on an interim basis of the McLeod Lake decisions of Justice Beverley McLachlin, I would like to know from the Attorney-General what the intentions of the government are. Will he then be going to the Supreme Court of Canada on the McLeod Lake band case with respect to the matter before the court? I would like to know his views in the settlement of the apportionment of lands and the settlement of those Treaty 8 lands. I would like to hear his views on the Ingenika situation and how that can be resolved. We were pleased to see, as we've been pleased to see on a number of occasions, the courts consistently signalling the government that the response in 1989 is to negotiate and not simply to constantly force issue after issue into the courts.

Given the theme I heard on the small speaker-phone in my office about the importance of jawboning, talking and reconciling through discussion and negotiation, I wonder how that relates to his approach to native matters and issues, because clearly there seems to be some cognitive dissonance there.

After I hear the response on McLeod Lake and Ingenika, I would like to discuss the Manitoba approach to the aboriginal justice inquiry there on some other matters.

HON. S.D. SMITH: I don't know if the member was here yesterday or listened to what I thought. I don't know how much I contributed, but certainly what I heard was just a darned good dialogue with the member for Atlin (Mr. Guno).

If you did not, or haven't had an opportunity to see in Hansard what was discussed, I can tell the member for Victoria that a lot of the substrata, the things you are talking about, were discussed at tremendously great length yesterday. In any event, may I just deal with some of the specifics of what you have raised.

With regard to the Ingenika, I ought to defer that to the Minister Responsible for Native Affairs (Hon. Mr. Weisgerber), my colleague, because he is, as we speak, in some very positive negotiations that hopefully will lead to a fair disposition of the matter by way of agreement.

On the McLeod Lake matter, I haven't been able to get the reasons yet for judgment, but I can tell you that my inclination would be to not seek appeal over that matter. I can tell you as well that in that particular instance those are the kinds of issues that make for tough law, because you've got a situation that on its fact pattern is pretty clear, with respect to the potential for being a precedent relationship to the ownership of the wood under the Forest Act; and you also have the obvious desire on the part of everybody, especially the courts, to be fair-minded about the disposition of the issue. Quite often it is the case, as we said yesterday at great length.... It was raised in relation to a comment that was made in this chamber that we were engaging in legal harassment of the native community. I said then and I'll repeat now that my view of the process is to try to do more jawin' and less litigatin'. I believe that there are all kinds of things about which we can negotiate agreement. I believe that the model being followed in both Idaho and the state of Oregon is one from which we can learn. Certainly I can learn and I intend to.

I also have to say that there are times, not just in relation to any single group in society, where government has to defend what it understands to be the legitimate proper interest of the society as a whole. To back yourself into the proposition of somehow condemning yourself for using the service of the court to adjudicate matters of fundamental principle, matters of great moment to our society, is not a very wise thing to do.

In terms of the Gitksan case yesterday, the proposition had been put that there was legal harassment going on. That really is an odd thing to say about a case that was brought by the native community in response to a decision of the Supreme Court of Canada in the Nisga'a case which left hanging the very question of whether or not there is existing in this country the notion of aboriginal title. It is a case which the chief justice of our province has characterized as the most important piece of litigation ever tried in the history of the province.

To call that legal harassment is not an appropriate way, in my view, to describe what is going on in Chief Justice McEachern's court and has been going on for four and a half or five and a half years. Our judges can't defend themselves in the public domain. That job rests with the Attorney-General. I do not want to get into some heated-up rhetoric on the issue, but I have to say as firmly as I can, without doing that, that it is an inappropriate way to describe the process going on in Chief Justice McEachern's court.

I was moved somewhat by what the member for Atlin said yesterday in our discussion. On a number of these issues I think his counsel and understanding would be most helpful. I have invited him to participate, and I hope he does. The invitation is sent because I can use the assistance; so can all of us. I see no reason why we ought not to pursue a host of options.

The Treaty 8 matter is also before the courts — not because we have a great desire to be there, but because there is a legitimate, honourable dispute between the parties. That's often how matters get into the courts. Among other things, the dispute is about the location of the boundary of that treaty. We have disputes on boundaries between the provinces that end up in court. We have disputes on boundaries between sovereign nations that end up in the courts.

In this case we have a dispute with people who may or may not be covered by that treaty, which is going to end up in the court. That's not an illegitimate process. The courts are an appropriate forum in which to resolve those kinds of disputes. After all, at the end of the day, the courts carry with them the

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moral authority that is often needed in disputes like that to come to a resolution that can be accepted by all of the parties. That's the value of our courts. It's something that I do not think we should denigrate. I believe strongly that in situations such as the one we are discussing, the courts are a valuable aid to the resolution of otherwise intractable disputes in our society.

Certainly we ought, whenever we can, to attempt to negotiate settlement and not pursue confrontation. I don't have any great difficulty with that whatsoever.

On the other hand, through our rhetoric and our partisanship, each time there is a legitimate, honourable dispute for which people seek resolution through the processes of our courts — which is a time-honoured way of doing it — let us not begin to attack the process.

I don't think it's fair for our courts to be characterized as a forum in which legal harassment is occurring, and I urge you to think about what that statement really means, because it's....

MS. SMALLWOOD: Is this a filibuster?

HON. S.D. SMITH: No, it's not. It's a very important issue that I feel very strongly and deeply about. As well, it's one about which no member of this Legislature should presume to have a monopoly on virtue and righteousness, because none of us do.

It's an issue about which we should give thoughtful and careful consideration — every single darned one of us. If you think my words are a filibuster, fair enough. They ain't; I mean them. I think it's important, as I said yesterday to the member for Atlin — and he agreed — that one of the ways we get resolution of disputes through negotiation is to build upon the blocks of success we reach.

We've had many successes. We don't litigate everything. It is a myth unworthy of broadcast in this province. We negotiate many things. We have negotiated settlements, and I went through the list over the last two days of a whole host of issues between the native community and this government which were without the capacity for resolution, apparently, not very many years ago.

[5:45]

As well, I have taken the position that wherever it is appropriate, I will sit down in a personal way with members of that community and begin to explore ways in which we can resolve issues. As I said in answer to the member's question, I did that with regard to the Saanichton marina. I am going to the Chilcotin to begin that.

I know the member wants to say some things about the way Manitoba has had the public inquiry. I've been invited to go ahead with that kind of inquiry, but before we embark upon any of those forums in which to resolve or try to improve matters, I want to see and hear for myself what we're dealing with and how we may best pursue it. I want to do that because I think there is some real and symbolic importance for the person who holds this office to take that office to the people most affected, and they are affected; they are adversely affected. There are problems. Some of them aren't very pretty problems, and we should be aware of them. I see nothing wrong with — in fact, I see some great benefit in — this office being taken to the people who are asking for a review of the justice they receive or don't receive so that they can begin that process of talking about ways we may be able to improve the situation.

The culture itself with which we deal has, as you well know, first member for Victoria, great traditions in the oral form of communication, and I think we ought not lose sight of that. There is much value in undertaking that kind of dialogue, and I am prepared to invest the time and energy to do it, because I think it is important and worthy of doing. I want to do it, and I want to pursue it.

Treaty 8 is a question primarily about boundaries, and the consequence of that is very simple. If you have....

Interjection.

HON. S.D. SMITH: Well, member for Burnaby North, a lot of us don't understand the consequence of that. Treaty 8 is essentially a prairie treaty. It comes into the Peace River, but it's prairie lands. You can throw up your arms and shrug your shoulders, but it's a very important consequence.

MR. JONES: You covered this yesterday.

HON. S.D. SMITH: No, I didn't cover this part yesterday.

If under Treaty 8 you award 128 acres per family of arable land, as was the case on the Prairies, and if you apply that awarding of land not to a prairie area but to the narrow valleys of a mountainous region, then you can see how quickly the consequences develop for your community. It's a legitimate dispute; it's not just sort of puffed up to be mean-spirited to the people making the claim.

The issue of the boundary will go to how the resolution takes place. When we developed reserves, and when we made agreements in this province to the extent that we did — except in the Peace River area — those agreements were predicated upon a different area, a different size of land mass than they were on the prairie, for obvious reasons. Where on the prairie you've got endless amounts of arable land, then 128 acres may make sense; but in narrow mountain valleys, 128 acres may make less sense. I think that kind of dispute legitimately should be resolved by the forum for determination that it's now in.

I move that the committee rise, report progress and ask leave to sit again.

Motion approved.

The House resumed; Mr. Speaker in the chair.

The committee, having reported progress, was granted leave to sit again.

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MR. SPEAKER: Hon. members, earlier today the hon. Leader of the Opposition, pursuant to standing order 35, sought to move adjournment of the House to discuss a definite matter of urgent public importance, namely the April 25th, 1989, joint announcement of new federal regulations by the Ministers of International Trade and Fisheries and Oceans to permit the export of unprocessed B.C. salmon and herring.

While the matter is undoubtedly one of great importance to British Columbia, any hon. member seeking to invoke the standing order 35 must bring himself within the ambit of the rules relating thereto. The general restrictions on motions for adjournment of the House are set forth in the sixteenth edition of Sir Erskine May's Parliamentary Practice, pages 368 to 374, as well as in numerous opinions given in this House from the Chair.

In particular, at page 371 of May, it is stated that motions under standing order 35 will fail when "an ordinary parliamentary opportunity will occur shortly or in time;" and, in particular, when the matter involved could be raised on estimates.

The estimates of the Minister of Agriculture and Fisheries have been referred by the House to the Committee of Supply and will provide an opportunity to raise the matter in the course of debate. Many applications of this particular restriction are to be found in the Journals of this House. At page 82 of the Journals, 1982, the rule is stated by Mr. Speaker Schroeder, and at page 226 of the Journals, 1975, is again stated by Mr. Speaker Dowding, who said: "The motion has been refused when an ordinary parliamentary opportunity will occur shortly, or in time"; and further, "the matter must not be offered when facts are in dispute." Further applications of the restriction may be found in the 1984 Journals at page 284 and in the 1986 Journals at page 95.

Hon. members will recall that during oral question period today it was evident from the questions asked and the answers given about the matter that many facts relating thereto were manifestly in dispute. The Chair, for these reasons, is clearly compelled to conclude that the application must fail. The Chair has also just been advised and notes that a similar application was made earlier today in the House of Commons at Ottawa, and the Speaker found that the matter did not qualify under the standing orders.

MR. ROSE: Without questioning your ruling in any way, because you are bound by the rules of the House, if anybody should be at fault regarding standing order 35, it is the members of the committee of reform that sat in 1985, of which I was a member.

The intention of this new rule was to give opportunities for standing order 35 to be put forward more frequently when cases were before us. As it stands now, we drafted it to make sure it couldn't go on and on. It was restricted to one hour, and there would be no vote. It was an opportunity to raise matters of importance as they came up. As it turned out, we didn't make it airtight. I won't go into the reasons for that, because I may be out of order myself in making this little speech.

If you think about it, you can't move a standing order 35 motion on opening day; you can't move one during the throne speech debate, because it's a very general debate; and you can't move one under the budget debate, because again, it's very general. It's argued by the Chair, and rightly so, that this could be done, and the debate could occur, in Committee of Supply. If you took at all those restrictions, and you think of Committee of Supply.... It goes from the throne speech until we adjourn for the summer. Therefore, if you want a strict ruling on it, it is very difficult to get a standing order 35 motion at all. Again, I'm not criticizing the Chair.

I think what we should ultimately do is to refer this whole matter of rule changes.... There are a number of things in here that I think would be helpful, and this would probably be popular with the government. They might need this protection in a relatively few months, without gloating too much over the four recent by-elections. We need to again refer the matter of the rules to the committee on Standing Orders, Private Bills and Members' Services. But I agree with you, Mr. Speaker, that this is a lengthy process and you can't do it all the time. In the meantime, if we are indeed in the Committee of Supply and if this is indeed an urgent matter for British Columbians — and we all believe it to be — then I ask the House Leader to bring forward the estimates of the Minister of Agriculture and Fisheries so that we can deal with it right now.

HON. MR. RICHMOND: With all due respect to my learned colleague the opposition House Leader, he does tend to exaggerate the shortness of time when a section 35 is allowable. The throne speech and the budget speech only last for a couple of weeks, and then on every other day that this House sits you have an opportunity to bring up a section 35.

MR. G. HANSON: How many have been granted? One.

HON. MR. RICHMOND: You brought it up today and the Speaker has ruled against it. You can bring one up tomorrow, and the Speaker may allow it or the Speaker may rule against it. You have to meet the criteria as laid out in standing orders, but you can bring one up every day of the week in this House. It's the Speaker who rules on it.

AN. HON. MEMBER: That was his ruling.

HON. MR. RICHMOND: The Speaker can rule as to the relevance of your emergency debate, and I do contend that you are lecturing the Chair on this.

Hon. Mr. Richmond moved adjournment of the House.

Motion approved.

The House adjourned at 5:56 p.m.