[ Page 6489 ]

CONTENTS

Routine Proceedings

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

On vote 13: minister's office –– 6489

Mr. Sihota

Mr. Cashore

The House met at 10:05 a.m.

Prayers.

HON. MR. COUVELIER: It's my pleasure, on behalf of myself and the second member for Saanich and the Islands (Hon. Mr. Huberts), to introduce some visitors from Saanich and the Islands, a group of grade 5 students from St. Joseph's School. These enthusiastic young people are accompanied by their teacher, Mrs. Sylvia Scudamore. I would ask members of the House to join us in giving them a welcome.

Orders of the Day

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).

MR. SIHOTA: We left off yesterday talking about the Sandra Dick case. I'm going to continue this morning by asking the minister some questions with respect to that case.

Could the minister confirm that the decision to proceed with a direct indictment was a decision that emanated from the Attorney-General's office — namely, the minister's office?

HON. S.D. SMITH: Yes, all direct indictments are signed by the Attorney-General.

MR. SIHOTA: Was the decision to proceed by way of direct indictment made exclusively by the Attorney-General or was it based upon representations made by staff?

HON. S.D. SMITH: As I indicated yesterday, the Crown makes a decision about whether or not charges will proceed in British Columbia. It makes that decision based upon the information it gets from the various investigating agencies the Crown works with. In the case of a direct indictment, as I said yesterday, the decision follows this process: the Crown, primarily responsible, will make a recommendation; that will go to the regional Crown office, following which it goes to the associate deputy minister and the deputy minister; and the Attorney-General ultimately signs it.

MR. SIHOTA: In this instance, was it the recommendation of staff that it proceed by way of direct indictment?

HON. S.D. SMITH: Yes.

MR. SIHOTA: Could the minister tell the House who did the investigation?

HON. S.D. SMITH: The investigating officers were from the RCMP detachments in Sandspit, Queen Charlotte City, Masset and Prince Rupert.

MR. SIHOTA: Did they recommend that it proceed by way of direct indictment?

HON. S.D. SMITH: Well, it would be highly unusual for an investigative agency to make a recommendation about the process of the direct indictment.

MR. SIHOTA: Did they recommend that charges be laid?

HON. S.D. SMITH: Yes.

MR. SIHOTA: Is it true that there was subsequently a treatment team sent up to the community? If that is true, could the Attorney-General tell me what their recommendations were?

HON. S.D. SMITH: There was a physician involved in the process, yes.

MR. SIHOTA: Could the Attorney-General elaborate and tell us who else was involved in the treatment? Was it just a physician, or were there social workers and other professionals associated in the investigation that formed part of the treatment team?

HON. S.D. SMITH: I don't have any information about the treatment team.

MR. SIHOTA: Is it the Attorney-General's view that the only people involved at the front end of this investigation were a physician and the RCMP?

HON. S.D. SMITH: No, that isn't my view.

MR. SIHOTA: Maybe the Attorney-General could elaborate by telling us who else was involved.

HON. S.D. SMITH: I don't have the names of the other people who were involved in the investigation and, as I said, I wouldn't know who was involved in treatment.

MR. SIHOTA: Is the minister aware of whether or not a team of special social workers was dispatched to the community to conduct an investigation?

HON. S.D. SMITH: I am not aware, quite frankly, whether or not, as part of the treatment, the Social Services ministry dispatched a team that the member describes. He might wish to ask the Minister of Social Services (Hon. Mr. Richmond) that question.

MR. SIHOTA: I would suspect that that minister would say it is a matter for the Attorney-General ministry. It is my understanding that Dr. John Gossage was involved, and he is a pediatrician with experience in dealing with sexually abused children. It is also my understanding that Thom McGuire, a social worker dealing primarily with sexually abused children, was also dispatched to deal with this situation.

[ Page 6490 ]

I don't know if that was part of the investigation or not. Could the Attorney-General confirm that those people were involved?

HON. S.D. SMITH: As I indicated earlier, there was a physician involved and, yes, I believe it was Dr. John Gossage.

MR. SIHOTA: Okay. That's fair enough. What about the other individual that I named?

HON. S.D. SMITH: I'm not familiar with the name that the member stated.

MR. SIHOTA: Could the Attorney-General confirm that after the charges were laid, the accused agreed — an unusual step in my mind — to offer herself to a polygraph test on this matter to give the Crown an opportunity to assess her innocence in the matter?

HON. S.D. SMITH: The answer is no.

MR. SIHOTA: Is the Attorney-General saying that no such offer was made to Crown counsel by the accused?

HON. S.D. SMITH: No, Mr. Chairman, I'm simply answering the member's question. He asked me if I could confirm it; the answer is no.

MR. SIHOTA: The Attorney-General has before him the file. I gave him notice on Friday, Mr. Chairman, that I would be raising this issue. I would have expected that the Attorney-General would have made himself familiar with the facts surrounding this matter. Can the Attorney-General confirm, then, from his review of the file, which I assume has taken place, that the individual made that offer to Crown very early on in the proceedings?

[10:15]

HON. S.D. SMITH: No, I can't confirm that.

MR. SIHOTA: Does the Attorney-General have the file here, and is he prepared to go through the file and ascertain whether or not that offer was made?

HON. S.D. SMITH: The answer is no.

MR. SIHOTA: We are not going to get finished until we get some answers on this matter, because I want to know what transpired with respect to this incident.

Interjection.

MR. SIHOTA: No, I'm not trying to conduct a court case here. I'm simply trying to find out what happened in this case, because this was a case, inevitably, as I said yesterday, wherein the system did not work, where an individual who made a number of offers to try to substantiate her innocence was dragged through a fairly significant sexual-assault trial which took seven weeks and cost the taxpayers a fair bit of money. I'm sure that that money is in the millions of dollars, somewhere between $1 million and $2 million just in terms of rule of thumb of trying to figure out what it costs us to run a court. That being the case, I think there ought to be some legitimate explanation by the Attorney-General as to their conduct of this matter and why it was that they rejected a number of the initiatives taken by the accused to speak to her innocence in advance of having to be dragged through the trial. This is a charge which carries with it a number of negative attributes. If people are unduly charged, then they are stuck with the stigma for the rest of their lives.

Now in most cases I wouldn't argue too much with the ministry with respect to the laying of charges in sexual assault. In most cases I would be prepared to accept the basis upon which a decision is made to prosecute, and I would not expect that in every decision, at the end of the day, the person would be convicted. Of course there are going to be cases which result in acquittal. However, it seems to me that this is a very peculiar case, given the actions of the accused throughout the trial and, more importantly, before the trial, in terms of the offers that were made. It raises some questions as to why the Attorney-General's ministry proceeded with this matter with the vigour that it demonstrated throughout.

I want some answers from the Attorney-General, and that is why, in fairness, I tried to give the ministry advance knowledge that I was going to be raising this matter. Having given that notification, one would expect that there would some expansion in the Attorney-General's response to the issues that I raise. If he is not prepared to do so, I would ask him to make himself familiar with the case over the lunch hour so that we can resolve this aspect of the estimates. I am quite prepared to move on to something else. I will give the Attorney-General an opportunity to comment with respect to what I have had to say to date. If he can add light to the questions I am asking, it is great, and if not, we will come back to it after lunch. I hope by that time the Attorney-General will have made himself familiar with the case.

HON. S.D. SMITH: Mr. Chairman, I am prepared to stay here until the cows come home to answer the member's questions. The member is on a fishing expedition in search of a headline. He has had full answers to this matter for the last two days. That he is not satisfied is fair enough; it is his choice. I will stay here and continue to answer his questions. I'm not moved by his opinions, because that is all they are. They are worth exactly that: the value of his opinions.

He is of the view that the system did not work. That's fine; that's his opinion. He was of the view two days ago in this chamber that what is going on in the Chief justice's court is a matter of legal harassment. That was his opinion too. I didn't accept it then; I don't accept it now; and I don't accept his opinion that the system did not work.

He can stay here and offer his opinion continuously, and I'll try to answer his questions to the best

[ Page 6491 ]

of my ability. But I can assure him that he will not persuade me that the system did not work for the following reason.

There were, in fact, 27 people interviewed in this matter: 21 of them disclosed allegations of sexual abuse. They did so on videotape. Fourteen involved the person he is talking about. Originally there were two co-accused in this matter, and ultimately the charges were severed. The information surrounding the co-accused involved many allegations of similar events.

When they were severed, one of them was found guilty, the other not guilty. The one found not guilty was found so by a jury. The jury took 24 hours of deliberation before it came up with the not-guilty verdict. If the member feels that somehow it was some simple sense of not doing much work in advance, of the system not working, of someone being harassed and so on, if he can offer that opinion about the system, then fair enough, let him offer it. But the facts simply do not bear out what he's saying.

MR. SIHOTA: I find it repugnant that the Attorney-General will stand here and suggest that this is some kind of fishing expedition for headlines. We're trying to get some answers about the behaviour of Crown counsel in this matter. It's my information that there was a lot of pressure put on the community to find a scapegoat, and the scapegoat happened to be this woman.

The Attorney-General has ample opportunity to deny it, if he makes himself familiar with the case, but it's my information that there was no investigation beyond the initial taking of statements from those 27 children. If there was, there was very little beyond that.

It's my information that there was a lot of pressure put on from the minister's office to proceed by way of direct indictment. There's more, and I will proceed with it. What concerns me far more than those factors I've mentioned so far is that there were a number of initiatives taken by the accused to try to assert her innocence by making offers to Crown counsel prior to being dragged through this small community with a sexual assault trial. I want to know why it was and on what grounds it was — and this is my primary interest — that those offers were turned down by Crown counsel. The Attorney-General is not even prepared to come in here this morning and confirm that some of those offers were made — be it polygraphs or other things. That's all I want confirmation of. When we get that confirmation, we'll deal with the matter of why that was turned down.

My question to the Attorney-General again is: were there offers made to take polygraphs in advance of this matter going to trial, and if there were, why were they turned down?

HON. S.D. SMITH: Mr. Chairman, I will say again — and we can stay here, hopefully until Friday, and maybe continue on with this....

I do not have any material for the member to corroborate what he's saying. I can tell you what the process is. The Crown makes a decision. Whether someone offers to take a polygraph or protests their innocence are all taken into account by the Crown. The Crown makes a decision on a two-part test — as 1 have tried to explain to this member for the last seven days — based upon their judgment of the public interest and the likelihood of conviction.

That is the test they apply when they make a decision about whether to proceed, whether they should put before a tryer of fact — be it a judge alone or a jury — the circumstances and the information they have to determine whether or not a crime was committed. The tryer of fact makes a decision. That is the process in every single criminal case.

In this instance the Crown made a decision to proceed jointly, originally, with two co-accused. They had perhaps the top prosecutor in this area in Canada personally interview the witnesses, on videotape as well. They had the benefit of a physician who had been in the area and had discussed with the same witnesses, had the benefit of the police reports and all the other investigative material that went along and made a decision to proceed by way of direct indictment.

I said yesterday that one of the considerations in the direct indictment process was the impact on the children of having to go through the preliminary hearing and then go on through another hearing, because these kids were already put through — because ultimately the charges were severed — a court process several times through the investigation and videotaping, as well as the court process. As we all know in this chamber, there is a serious impact on children when this happens.

The Crown made a decision in two cases to proceed, and in each case they made a decision to proceed by way of direct indictment. In one instance a jury, after deliberating on the evidence for 24 hours, found the person to be not guilty. In the other instance, the individual was found guilty. So I'm not prepared to accept the opinion of the member that the system didn't work. I'm certainly not prepared to accept the member's opinion that Crown and police were trying to scapegoat somebody. I think the member correctly described that scenario when he said he thought it to be repugnant. It is.

MR. SIHOTA: Let's try dealing with this in another way. In the past there have inevitably been a number of situations which I have privately canvassed with the Attorney-General's ministry to ascertain whether or not a particular matter was handled properly. There have always been the usual agreements and undertakings in terms of confidentiality on those matters.

If the Attorney-General is not prepared to sit here today and read the file, make himself familiar with it and answer all the questions, is he prepared to send it over and let us take a look at it with the usual understandings?

HON. S.D. SMITH: I don't know about these usual understandings. But I can tell you that if the member

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is suggesting I'm not familiar with the file, he's wrong. If he's suggesting for some reason I'm not answering his questions, he's wrong. The problem he has is that I don't accept his opinion. Further to that, I think the motivation for this whole exercise is not to seek facts but to try, for his own personal reasons, to dramatize a situation — and these are all difficult situations, all of them — where two people were investigated on perhaps the most serious charges involving children that there can be. Originally the two individuals were co-accused. The top prosecutor in this area in Canada personally interviewed the witnesses following what had been presented to her by police and by a physician and put on videotape the statements of the children –– 21 children. Following that, a decision was made, on the two-part test that I've described, to go ahead with charges against two individuals.

[10:30]

The counts were severed: one individual was found not guilty; the other individual was found guilty. That, to me, does not disclose any process other than the right process, which is for the Crown to take the information that it has and, using their judgment, to make a decision based on what they have in front of them, based on the two-part test of the likelihood of conviction and the public interest to proceed, making a reasoned and rational judgment to do so. They have done that. I am not prepared to stand here and agree with this member that the Crown or the police were ill motivated or that they made an improper decision. They exercised their judgment to the best of their ability, and in one case there was a conviction and in the other there was an acquittal.

MR. SIHOTA: There were two separate cases, two separate trials involving two separate sets of circumstances relating to the accused. I said yesterday to the Attorney-General that the purpose in raising this — and I was very upfront — was to see what policy changes the ministry has come to in light of this experience. I made that purpose very clear when we started yesterday.

If there were some efforts to dramatize this, we could have chosen not to give you notice of it on Friday. But we gave you notice of it because I wanted to find out what you've learned from this experience This comes in the context of other cases that I've raised here during the course of estimates to ask the Attorney-General what you've learned from the experience. I asked you the other day what you had learned from the experience of the oil spill and what type of negotiation or litigation was being contemplated by the government. I asked you the other day about the Everywoman's health clinic and the matter of civil injunctions, a matter which we really did not complete and which maybe we'll complete. In fact, I'll deal with it this morning, because I want to try again to see what the ministry has learned from the experience.

The purpose in asking is in terms of what policy changes are emanating out of the ministry's department. If your answer is that you have not learned anything from this experience, namely the Sandra Dick case; if you do not intend to ask questions of your staff in terms of how it was that this case went off the rails to the extent that it did; and if you're not prepared to take some action, then I would suggest that you're missing the point of why we're raising these matters. But more importantly, you're not doing your job in terms of making those who are responsible to you accountable for some of the things that transpired.

That's it. The Attorney-General doesn't have to agree, nor do I expect him to agree every hour on the hour with every suggestion that I make or every opinion I offer. But this is a case where legitimately he should be asking questions. Either he has asked questions and isn't prepared to share it with the House — and I would suggest that if he has nothing to hide he should be quick to share it with the House — or it's a case where he hasn't done his job. It's one or the other.

Interjection.

MR. SIHOTA: I've still got the floor. The Attorney-General says: "Let me answer this one and stay on it." Fifteen minutes ago I was asking some questions. I couldn't get any answers directly from the Attorney-General on aspects of this case. I'll take my time, and you've got your time to address these issues. But 15 minutes ago we weren't getting any answers. If you want to go back to the question I asked 15 minutes ago, I'll ask it again and see if this time we get an answer.

HON. S.D. SMITH: What are you asking now? The same one?

MR. SIHOTA: If the minister chooses to answer the questions, then I guess we'll be able to move along. But if he chooses to go over the same territory, saying the same thing over and over, I guess we won't. Some offers were made by the accused in this instance, and I just want to know why the ministry chose not to act on those offers. When at least three or four offers — to my knowledge — are made by the accused to test her innocence prior to the matter going to trial, it raises some questions as to why the Attorney-General's department did not act upon them. And if they didn't, I'd like to know why.

It's a simple question, but it's one that, despite the simplicity of it, the Attorney-General seems to have great difficulty responding to. If he wants a chance to respond, go ahead and we'll see what you've got to say. I will look forward to an answer on those offers.

HON. S.D. SMITH: I am delighted to be able to take my place today and answer the same question in the same way I did yesterday on this same topic.

Interjection.

[ Page 6493 ]

HON. S.D. SMITH: I'll try. Obviously there is a problem in the reception rather than the transmission. Let me go over it again.

The Crown makes a decision to proceed on a two-part test: (1) if there is sufficient information and circumstances converted to evidence, it would drive you to the conclusion that there is a likelihood of a conviction; and (2) is it in the public interest? The answer to the question on the public interest test is that these questions of sexual abuse are very much in the public interest to proceed with and, indeed, are a matter of some considerable priority.

On the question of whether there was a likelihood of conviction, obviously that is ultimately deterred by the tryer of fact. But in this case, we started with a co-accused situation. The same witnesses, or some of them, were involved in both trials. In one instance there was a conviction; in the other there was an acquittal.

In the course of making that decision, all kinds of material will come to the Crown. There may very well have been an offer to the Crown from a person to say that he didn't do it. Based on that, the Crown has to make a decision as to whether they have before them enough information and circumstances which, in spite of what has been said, would allow them to make that discretionary decision. That's what they did: they made a judgment call to proceed.

The member for Esquimalt-Port Renfrew has asked me now over a considerable period of time what policy changes we have made as a result of what we learned from this case, and I have answered him equally often with the following: in every case, I think it is safe to say that we learn something. Hopefully that is the case for all of us all the time. Have we made any policy changes with respect to what we learned from this case? The answer is no. The answer is: we still make a decision to proceed on that two-part test, as we have always done.

Did this case go off the rails? I believe it did not. Obviously the member believes it did. Fair enough. We have a difference of opinion on that matter. Was there, as the member has accused, a scapegoating, a desire to scapegoat this woman and proceed with this case? The answer, emphatically, is no. I would say further that it is somewhat perverse to even raise the suggestion. Nevertheless the member has raised that suggestion and built most of his argument around it.

That is his opinion. I don't know of any other human being I have talked to about this issue who shares that opinion. Was there a sufficient amount of investigation in this case? There were RCMP Police officers from no fewer than five detachments involved in the investigation. There was an eminent physician involved in dealing with the witnesses. One of the pre-eminent Crown counsels in the area of sexual abuse was involved in interviewing all the witnesses and doing so on videotape.

It wasn't until after all that occurred and until there was a recommendation from the policing authority to lay charges that this matter proceeded. Why did it proceed by way of direct indictment? In part because of the concern for the witnesses, so that you would not have to go through a preliminary inquiry and put those young people through all that exercise in the courts. I said that yesterday.

What was the result of this case? Originally there were two co-accuseds. There was a severance based on much of the same testimony, and certainly from the same people. One of the accused was convicted as charged; the other was acquitted. And that is the sum and substance of the story.

MR. SIHOTA: There is more to it than that, and maybe through other means we will have to get to the additional substance of the story. I guess the Attorney-General's comments are on record, and it won't be the first time that a minister has stood up in response to questions I've asked in this House and said, "Well, that's the totality of the story," and more emerges.

I can think of situations involving this Attorney-General when I have made suggestions that there was more to a particular story, and it turned out that we were right. I guess we will have to deal with this one in the same fashion that we've dealt with the other ones if the Attorney-General is not prepared to answer the questions we raise.

HON. S.D. SMITH: Go ahead and ask them.

MR. SIHOTA: Let me go to another case.

HON. S.D. SMITH: Ask me some more questions.

Interjection.

MR. SIHOTA: Look, I've asked the Attorney-General probably five times, at least four times this morning, about offers that were made by the accused through defence counsel.

Interjection.

MR. SIHOTA: If you answer the question you might find out, but you haven't answered the question yet.

HON. S.D. SMITH: I have not answered the question?

MR. SIHOTA: You have not answered the question. You've just answered questions about process. Don't tell me you've answered questions when I've phrased it three or four times in a very simple way.

You're right: the problem is with reception on your side. It's unfortunate, because in the past I've been used to dealing with an Attorney-General who is quite prepared to be upfront in answering questions. This year there's a bit of a change in style, and we're just not seeing the same cooperation that we've seen in this House before.

HON. S.D. SMITH: I've been waiting patiently for seven days....

[ Page 6494 ]

MR. SIHOTA: Fine, I guess you got it, and I guess the truth hurts sometimes, doesn't it? Sure it does.

MR. CHAIRMAN: Could the debate proceed through the Chair, please.

MR. SIHOTA: If the Attorney-General would care to behave himself, perhaps we could do it in that fashion.

Could the Attorney-General tell me which administrative judge was responsible for setting the trial date for the Bennett-Doman case?

HON. S.D. SMITH: I can't tell the member, because I simply don't know. It's not something I would know. In any event, as the member might be aware, the matter is still before the courts.

MR. SIHOTA: I'm not asking him to talk about any of the evidence that's before the courts. Would the Attorney-General agree to let me know later in these estimates who the administrative judge is?

HON. S.D. SMITH: Absolutely not. As the member ought to know, but obviously as a young practitioner doesn't know, that is something that we don't know and we should not know. The determination about what judge hears what case is dealt with entirely internally by the judiciary. It goes to the root of their independence and is something that we don't know and something I would never presume to ask. Certainly that member, who I know hopes to sit in this chair... That's the sort of thing that with maturity he will come to understand.

[10:45]

MR. SIHOTA: There was a time when I suggested that charges should have been laid on the front end with respect to the acquisition of shares. The Attorney-General's department said originally that the matter had been investigated; there was no basis for the laying of charges with respect to the front end, and that allegation was made with respect to the people that have been charged on the front-end share acquisition and violations of the Securities Act under that. From the time that we originally raised that matter publicly with the Attorney-General to the first date of trial, could he confirm.... I'm not asking exactly what evidence; I'm simply asking him to confirm that new evidence came to the attention of the Attorney-General's ministry that would warrant the laying of charges on the front-end shares.

HON. S.D. SMITH: Mr. Chairman, this whole matter is before the courts, and it's a line of questioning which is totally inappropriate. What I will do if that member wishes.... He and I had an exchange of correspondence on the issue of the front end of the charges, and if he wishes I'm quite happy to table those letters in the House and let the public make a decision about the process. We've had extensive correspondence on the issue, and I'm quite happy to do that.

MR. CHAIRMAN: Just before we proceed, hon. members, the Chair has been listening closely, and if I understand the discourse between the learned gentlemen, it would seem to me that this is an issue where sub judice should be applied. I leave it up.... It's the Chair's opinion.

MR. SIHOTA: My question did not relate to the filing of correspondence. The Attorney-General knows full well what I said in some correspondence with him. Because of one personal matter, I chose to ask for confidence with respect to the matter that I corresponded with him on.

Secondly, and more important, if he's not prepared to answer it yet, we will ask him questions later in relation to additional evidence which may have come to the Attorney-General's knowledge between the time in January when we raised the matter and the laying of charges on the first day of the trial.

I will take what the Chairman has to say, and will ask about the matter once the appeal period expires, or I'll see what happens with the judgment.

I'll ask another question of the Attorney-General. It relates to a matter which I was unable to continue because we ran out of time last Thursday, and because other members wanted to speak on Friday, I didn't get a chance to pursue it further. Again, it relates to the matter of civil contempt. Could the Attorney-General advise me...? In the past, police enforcement orders have been used to deal with matters of contempt. That wasn't the case with respect to Everywoman's Health Centre protest. Could he explain why?

HON. S.D. SMITH: Perhaps the member could rephrase his question. I'm not quite sure what he's talking about. Just before he does that, I'd be quite happy to answer the questions he has raised in due time. But I should also state that because there have been a lot of press conferences and so on that were sort of timed around the correspondence to which I refer, I think that when the time comes, it would be appropriate to table everything so the public knows cleanly and clearly what information went where and from whom.

MR. SIHOTA: It's my understanding that in matters of civil contempt, police enforcement orders are issued. I just wondered if that had been the case with respect to Everywoman's Health Centre. If not, why not?

HON. S.D. SMITH: I'm sorry, Mr. Chairman. I'm not quite certain I understand the question, but I'll guess at it. I think what the member may be referring to is that in matters of civil contempt, we have.... As I have said several times during the course of this discussion, our policy with respect to civil contempt is really emerging and is, we think, on balance, the right way to go in dealing with matters of civil disobedience. One of the emerging factors or processes is that originally what would happen with a civil contempt order would be to go to court, get the order and then, sometime subsequent to that, go back and

[ Page 6495 ]

get a further order — assuming the people didn't respond directly to the order — to enforce the original order. That order would authorize the police to make arrests under the civil contempt. There developed the so-called Clayoquot Sound process, which enabled the person seeking the order to simultaneously seek an enforcement order without that intervening step, Obviously that speeds the process up and allows for quick action.

In the case the member is referring to in Vancouver, the Crown office provided to the private parties the precedents that were used to proceed to get the order. When the private parties attended court to seek that order, they asked for that Clayoquot Sound order, the enforcement order, with it. It is my understanding that the city of Vancouver solicitor — Mr. Bland, I believe — rose in the court and asked that that enforcement order not be granted. He was there presumably on behalf of the interests of the Vancouver city police, who would be enforcing it. I gather that his concern was constitutional, in part, and procedural, insofar as whether the court had the authority to grant those two orders back to back. So he asked that it not be granted, and it was not.

Even though the applicant had sought it, if the city representatives there asked that it not be granted, the court naturally took that into consideration and did not grant it. So you had then the pre-Clayoquot situation: an order was granted; the parties left; the order was served and put on notice, and so on; the people involved did not respond to that order, so the parties had to go back into court again to get the enforcement order.

During that intervening four, five or six hours — whatever it was — a tremendous amount of activity took place. Much of the miles of film footage that have been recorded was recorded during that time. Because this area is little understood by most practitioners, and indeed, I would dare to say with the greatest respect, even by some members of the bench and certainly members of the public — because it's not a usual process — during that time there was some suggestion of a reluctance to enforce the order or some desire not to have the police do their job, and so on. All of that impression was left, and I can understand how it would be left.

In fact, what happened was that the applicants sought an order, and simultaneously sought the right to enforce it. As I say, one of the parties intervened and asked that it not be granted, and it wasn't. The order was granted, and they went ahead. They served the order and put the notice up. In the interim, the policing agency stood by and watched what was going on, but they were not empowered to move in and do anything. They had to go back to court and get that order. Subsequent to that, the police took the action they did.

MR. SIHOTA: You've described a fairly convoluted process, which I think reinforces my point in terms of the next question I want to ask. Could the Attorney-General explain why the government waited until it was requested by the courts to deal with the situation as one of criminal contempt?

HON. S.D. SMITH: In fact, if you are referring to Mr. Justice Finch's words in that regard, they weren't fully supported by all the activity that was going on, nor could they have been at that time. The issue of criminal versus civil contempt is one in which, by practice.... Generally in British Columbia the court converts a matter from civil to criminal contempt, and the Crown stands in as a friend of the court to prosecute the matter. The reason for that, of course, is that the contempt is directed to the court, and the court makes the determination about whether or not the attitude shown by the parties towards the court is sufficiently grievous for the court to wish to convert it to a criminal contempt matter.

[11:00]

People frequently confuse the matter of criminal contempt with the business of bringing criminal charges. That is, of course, an entirely different process. The discretion for making the judgment call to bring criminal charges rests with the Crown. That is one of the reasons why I said the other day, when we discussed this matter quite thoroughly — in this chamber, in these estimates — that we in B.C. have taken the view, in the reviews that have been going on nationwide as to whether you should codify that criminal contempt process or whether there should be residual power left with the courts, that that should always remain with the courts. We are reviewing that in the criminal justice review that's going on across Canada. Most other jurisdictions don't share our view.

In light of events that have taken place over the last number of months, we too are reviewing that, because it may be that it should be codified and that the discretion should rest solely with the Crown as to when to advance criminal contempt proceedings. Quite frankly, I can easily see both sides of that picture. I can understand why there is sound reason for that residual power to rest with the court, so it can, I suppose, protect its own interest, in some sense. On the other hand, the reason we have a Criminal Code — the reason we codified the criminal law in the first place — is so that people know in advance the laws and procedures that are going to apply, and you don't have laws made off the top of someone's head, to use the vernacular to describe it.

It's an area of some discussion and debate. On the issue of the determination to convert something from civil contempt to criminal contempt, that frequently and by practice has rested with the courts.

MR. CHAIRMAN: Just before we proceed, hon. members, the Minister of Agriculture and Fisheries has asked leave to make an introduction.

Leave granted.

HON. MR. SAVAGE: It's indeed a pleasure today for the second member for Delta (Mr. Davidson) and me to welcome 28 students from Sands Junior Secondary School and their teachers, Mr. Salt and Mr.

[ Page 6496 ]

Paterson. Would this assembly please make them very welcome.

MR. SIHOTA: Is it the Attorney-General's position that in the future, with respect to these types of matters, the government will not act until such time as it has been requested to by the courts? The reason I ask is that I don't think there was much of a thorough discussion in the context I raised it in. I only had five minutes on it the other day. It's my concern that these matters are going to come up again — either environmental matters or matters akin to the Everywoman's Health Centre. Is it your view that you will move on these matters only when requested by the courts to do so?

HON. S.D. SMITH: Actually, I had a discussion with the member for Atlin (Mr. Guno) about this matter and, I believe, the member for Burnaby North (Mr. Jones). We had quite a lengthy discussion on the issue. As well, I think the first member for Vancouver-Point Grey (Ms. Marzari) and I had some discussion about this issue.

I would be pretty silly to fetter the Crown's discretion and say that as a matter of course we would never take action. Certainly our experience is that we ought to proceed through the civil process in response to matters of civil disobedience. Where there is then contempt of the courts, that elevates the matter again to a somewhat different level. Where the court makes a determination that the contempt it sees has gone past the bounds of civil contempt and has the imprimatur of criminal contempt, then I can assure the member that we will stand in and act as a friend of the court and pursue those matters as we ought to. That discretion rests with us, but I can assure the member that we will always exercise our discretion to support the courts in that regard.

Whether or not there are situations that arise where criminal proceedings per se would issue at the outset, that of course one would have to make a judgment about in terms of the activities that were going on. I really wouldn't want to fetter the Crown's discretion in that regard. It is generally our experience that matters of civil disobedience ought, certainly initially, to be responded to through the civil process.

I might also point out that in other jurisdictions where they have initiated criminal action, they have found that it does not do the job that they want it to do, which, after all, is to try to keep the public peace They have been examining what we have done in British Columbia over the last number of days and weeks, and they have now brought, I believe in Ontario, an application that is rooted in the same process that we have been undertaking here. They have done so because they found that the other method did not work.

MR. SIHOTA: It is a tremendous burden for a private litigant to bear. That is why I asked the question. It seems to me that it is asking for too much to wait until such time as the courts make a request of the Attorney-General ministry.

1 should also say in passing that I think the handling of the matter by the ministry after the courts asked for it has been exemplary. I think the way they are handling it now and since that time is very good. I give credit to those people who are doing the work for the ministry now, in light of this matter.

Is the minister now prepared to concede that in the instance of the Everywomen's Health Centre the government really did, quite frankly, wait too long before choosing to intervene?

HON. S.D. SMITH: No, I don't agree with that. As I said at the outset, the Crown provided the advice in terms of the materials prior to there being any matter taken into court. I can understand why the member would suggest that there wasn't any involvement, but it would be erroneous to leave that impression, because there was.

In my view — and this is 20-20 hindsight — had the court been able to make the enforcement order simultaneous with the initial order, matters would not have escalated in quite the way they did. That is perfect 20-20 vision. I look at the result and I compare it to other locations. I think the decisions taken were the correct decisions. I believe that what you must do in these situations is not, through the discretionary exercise of process, exacerbate the problem.

As I said yesterday in discussing this very same issue with the member for Burnaby North, you don't want to throw gasoline on hot embers. You also don't want to start with your biggest cannons. What do you do for an encore? You are dealing with something quite different. You are dealing with civil disobedience. It is a phenomenon that we see in environmental issues, in land use conflicts, in some labour-management disputes and in a number of areas. It is a question of trying to keep the public peace and of ensuring that the law is obeyed. I suppose everybody who has an opinion is pretty willing to offer it. All sorts of people out there — particularly the people who thoughtfully write on these matters in some of our publications — offer the view that you should move quickly and make arrests quickly and you should do this, that and the other thing. As I say, that process has been tried in other jurisdictions and now they're out looking at what we're doing. It tells me that perhaps we've been on the right course. I have no difficulty with the decisions I made in this matter and that have been made in my name. I think the results of what has transpired attest to that.

MR. SIHOTA: I don't think it's a big surprise that I disagree. I think you should have moved with greater dispatch. I can certainly accept the need for some patience at the front end and for some allowances to be made, but I think the situation went way beyond what one would expect. It is quite unusual that the court would make the request it did. Be mindful of the fact that when I make that comment I'm aware that at the pre-trial discussions similar requests were made of the Crown, and I think that was appropriately and diplomatically communicated at that time. With that in mind, it would seem to me that the

[ Page 6497 ]

Crown ought not to have put the court in the position of having to make the request that Mr. Justice Finch did subsequent to the pre-trial discussion.

In December a number of people were picked up, booked and identified with respect to the incident which occurred outside the Everywoman's Health Centre. I take it that no charges have been laid with respect to the original incident. I'm wondering what the policy determination was in deciding not to proceed with charges at that time.

HON. S.D. SMITH: As I said, it's our view that the response we are pursuing is the preferable way of dealing with the issue. However, the time for making a decision has not gone by, and there are some considerations still being taken into account, so I think I should leave the process to run its course.

I would like, just for the record, to disclose.... I know the member has some views and assumptions, and naturally they couldn't be based in fact, because he isn't a party to what goes on. The pre-trial discussions were underway before Mr. Justice Finch made his comments, and without getting into any more detail than is appropriate, when Mr. Justice Finch did make his comments he could not have been aware of discussions that were going on within the justice system on how to respond to this issue. I would also note that Mr. Justice Finch was not seized of the matter the next day following his comments.

MR. SIHOTA: He made those comments, and I think it's well known that there was a fair bit of concern in the judiciary as to what was happening. If he made those comments unaware of the pre-trial conference, that's one thing; but it's certainly another in terms of the fact that he made those comments. It would seem to me rather a bold move on the part of the court, if I can put it politely.

On the matter of the charges in December, the Attorney-General says there are still some considerations that apply in deciding whether to proceed with those charges. I can see defence counsel thinking of a Charter defence in terms of the timeliness of the Crown's actions. What are some of those considerations?

HON. S.D. SMITH: I don't discuss the considerations that are taken into account before charges go forward. It would be bad practice to do that, and I'm not going to start now.

On the matter of Mr. Justice Finch's comments, there was nothing especially bold about them. There have been other instances in this jurisdiction within recent memory in which the court indicated it would be converting matters to criminal contempt and advising the Crown publicly that the process was going to happen. As I said at the time, the comments correctly noted that compelling the Attorney-General to take action is beyond the authority of the court. I have said before publicly, and I'll say it again in here, that we have two very important notions that underpin the ability of our justice system to be evenhanded and to appear to be evenhanded. One of them is the separation of the judiciary, and the other is the maintenance of the independence of the Crown to exercise its discretion about when to charge; and the Crown has a responsibility to defend its independence in that regard against all who would have opinions — members of the public, members of the opposition and, indeed, members of the judiciary — and I will have no hesitation in doing that. As I have said, timing of any intercession by the Crown would be made in the usual way by the Crown, consistent with the policies it has previously developed in those kinds of matters.

[11:15]

One of the things that one has to take into account in making a decision to proceed, particularly in matters of civil disobedience, is the issue of timing. As I said yesterday, you can move too rapidly too far too early and have the effect, thereby, of putting gasoline on hot embers. That is something that has to be exercised as a matter of discretion by the Crown. It was for that reason I noted that the comments of the court were both untimely and unhelpful. The people who had the responsibility to make those decisions were in fact making the decisions, were indeed communicating them, were setting down the times for pre-trial conferences and were well aware of the court's concern.

The court was well aware of the concern of the Crown to support the court, and that is something that Justice Finch could not in the circumstances have been aware of. It was something that people naturally grasped onto. It doesn't make it any more right. It was not helpful and it was not necessary and it didn't help the process. In fact, one could make the argument that because it moved the debate off into something that was quite extraneous, it was somewhat unhelpful to the process. As I say, I noted that Justice Finch was not seized of the matter the following day, and I think that was an interesting thing.

MR. SIHOTA: I'm sure Mr. Justice Finch would be interested in hearing those latter comments.

There have been situations in the past where the government has moved too quickly with respect to criminal proceedings: namely, charges with respect to mischief and trespass. That has often happened in the environmental sector. What different considerations were applied to this abortion protest which differ, in the Attorney-General's consideration, from the environmental matters?

HON. S.D. SMITH: As the member knows, some of these environmental matters have been dealt with in precisely the same way. The one at Clayoquot Sound, in fact, preceded the one we're talking about.

As I said at the outset of this discussion, this is an area of emerging law, and we're learning. I know the member is concerned about some of the issues, and members opposite have written me letters with respect to Strathcona Park, where there were charges outstanding, and they frequently make the comparison.

[ Page 6498 ]

I can only tell you that in my view — and this is a matter of public record, and I will be seeking to conduct myself accordingly — it is more appropriate and more beneficial to society to respond to civil disobedience through the civil law. That said, I want to be very clear so that if there is an incident somewhere down the road where it is deemed appropriate that criminal charges issue, I don't appear to be fettering the Crown's discretion. The Crown must always maintain its discretion, but as a general policy, it is our experience and our emerging knowledge that a preferable way to deal with these matters is through the civil side, and we will be doing that.

I have also said that in some of these areas I think the matter of cost may sometimes be more effective in causing people to refrain from pursuing some of these activities than the kind of martyrdom some of them assume as a result of being put in jail. That was certainly reflected in Justice Lloyd McKenzie's decisions.

MR. CASHORE: Continuing on this line, it's an interesting thought that civil disobedience would be dealt with under civil law. The fact is, though, that there is this term "civil disobedience." It's an interesting point that when a pulp mill knowingly violates its waste management permit or illegally dumps a toxic effluent, someone at some time might say that is an example of civil disobedience, or that somebody is overtly choosing to ignore an existing law.

I am not sure that there is a hard and fast definition in the law of civil disobedience, but certainly in terms of the dictionary definition, that might be applied there. So I thank the Attorney-General for bringing up the matter of the 64 Strathcona Park protesters.

In a matter that was brought up by the member for Esquimalt-Port Renfrew the other day, we know that Mr. Peter Ryan brought charges against the Western Pulp Partnership mill at Woodfibre, and that those charges were squashed in Squamish when somebody from the Crown prosecutor's office went in there and stayed those charges. This is not consistent with the comments that the Attorney-General has been making, that in cases where charges are laid, they should proceed to an ultimate conclusion. There is a precedent in the process of the wise, even and judicious administration of the law that in many instances a decision is made to stay charges. The point that the member for Esquimalt-Port Renfrew raised about Mr. Ryan's case is a very good one, because here we are dealing with not merely a citizen, but a citizen who happens to be trained in the law and happens to be a lawyer. Still, the charges that he was able to bring were deemed by somebody in the Crown prosecutor's office to be insufficient. Yet we hear rhetoric coming from government indicating that private citizens are urged to participate in the process of reporting pollution offences. Indeed, in some jurisdictions there is actually a financial benefit to help cover their costs when they are successful in that type of endeavour.

To cite another case where the Crown has stayed charges.... It's a notorious case. Charges were brought, I believe, by personnel in the waste management branch, again against the Western Pulp Partnership mill. In this instance, among other things.... I want to make this very clear: I have heard it said that there were other elements to this decision to stay the charges that had to do with the preparation of the case. These were charges under the federal Fisheries Act that were brought in November 1987.

A very interesting thing happened in that case on the basis of a March 30, 1971, letter by the then minister of the Crown, Hon. Ray Williston, to the Hon. Jack Davis, who was the Minister of Fisheries federally at that time. He referred to an offer that had been made by the company to deal with air emission problems prior to dealing with effluent emission problems. I guess the operative paragraph in that letter is: "The offer has been made that an immediate effort will be made to control discharges into the air if agreement can be secured that further changes to the water effluent can be delayed until the work on the atmospheric controls is completed." In this case we have a letter that is at best a technicality and that remained on the books for 17 years, which was able to be used as an argument for staying those proceedings in that instance.

What we're talking about here, when we're dealing with environmental law, is the evenness of the administration of our judicial system. That is the point I made to the Attorney-General in my letter of October 24, where I requested that the outstanding charges against the 64 citizens who had been arrested as a result of protesting mining in Strathcona Park be stayed. The point I was making was that there certainly had been progress in the decision on Strathcona Park — something we were all happy to see. Indeed, the issue that was the target of their protest had been resolved or at least was in the process of being satisfactorily resolved. Some of us would like to see more progress in that. It was certainly a step in the right direction. The point I made in my letter was that, while those charges had been brought.... I'll just read this paragraph from my letter:

"It has been reported that an exploration company recently ignored a cease-and-desist order from the Parks branch and that no charges were laid. Further, it has been alleged that a mine violated permit conditions by discharging contaminants into a healthy stream feeding the Campbell River domestic water supply and that no actions were taken."

Given that justice must not only be done but be seen to be done, we have a situation where these people were involved in this activity that resulted in charges being laid but could not understand why nothing was done about these other allegations of illegal activity. It would seem then — this was the point of my letter — that a reasonable and wise application of the powers of the Attorney-General at that point, since the issue had been resolved at least to some extent, would have been to stay those charges, save the taxpayers the incredible amount of money that it would cost to proceed with those charges, and

[ Page 6499 ]

recognize that in the whole issue there were concerns on both sides about the application of the law and whether it was being applied fairly with regard to the decision to lay charges in the first place. Therefore the public was left with the feeling that the law was not being applied fairly, both in the laying of the charges in the first place and in the refusal to withdraw the charges in the second place.

The Attorney-General made the point to me in his letter that it was important to follow through. In fact, he said in his letter of October 25: "Hundreds of people hold very strong views about various issues, including how to develop Strathcona Park. Sixty-four chose also to contravene the law." That was an unfortunate sentence. I must, to put it in context, read the next sentence — which somewhat mitigates that unfortunate sentence — where you went on to say "Those 64 will be prosecuted for their alleged contravention of the law." So that term "alleged" did get into the next sentence. It certainly left me with an impression with regard to a mind-set when it comes to environmental people on the one hand and, on the other hand, people who represent some of the corporations.

There was another point made that I wanted to refer to, and it just escapes me for the moment, but I'm hoping it will come back to mind. I'll come back to that. I think what I'll do is just listen to the Attorney-General's comments at this point, and then I'm sure that I'll find that other point.

[11:30]

SOME HON. MEMBERS: Aye.

HON. S.D. SMITH: Oh no, we've got lots of time.

Let me try to deal with a number of the issues that have been raised. Maybe I could begin with the matter of the issue you talked about with respect to.... I believe his name is Mr. Ryan.

HON. MR. STRACHAN: Peter Ryan.

HON. S.D. SMITH: Yes. It wasn't just any old Crown counsel. I don't think we have just any old Crown counsel; I think we have extraordinarily competent Crown counsel. Nevertheless, the Crown counsel involved is Mr. Alan Blair, who is a very senior and very competent and highly regarded Crown counsel who has developed some expertise in that area.

What, again, the process is.... I know some of you start to nod off when I talk about process, but the truth of the matter is that process is critical to our system. In many respects, it is our system. It's what protects us within our system. So I think it's important that we pay some attention to process.

The Crown — whatever be the investigative agency, be it the Ministry of Environment's officers, wildlife officers, policemen or Securities Commission people, or whoever it is — applies the same two-part test in deciding whether to advance charges. In the case you refer to with respect to Mr. Ryan, the Crown was of the opinion that there was not enough information or enough circumstances to put to the court by way of evidence that would result in a conviction, so they decided not to proceed.

I would point out to you that on January 2, Mr. Ryan wrote a letter to Mr. Blair in which, in part, he said: "I agree with your statement that 'based on the information you have compiled alone, the Crown would not be successful in prosecuting the company.'" The complainant himself agreed with that proposition, so I don't think there is anything particularly insidious about the Crown's decision not to prosecute in this case.

They have to make a judgment about whether there is likely to be a conviction. I don't expect our Crown to sort of walk along like Wyatt Earp with little notches on their guns for wins and losses. I think that's a fatuous way of viewing the role of the Crown. The Crown's role as a prosecutor, in my view, is to work with the investigative agencies to make a decision about whether or not to prosecute — that's an extraordinarily important, pivotal decision in our society for which they have properly a wide degree of latitude and independence — and then to fairly put before the tryer of fact the information, the circumstances they have and the evidence that they wish to adduce. That's their job. We should not put them in the position of running up a column of wins and losses. If high-powered defence counsel want to see themselves in that light, that's fair enough; good for them. But I certainly don't want the Crown counsel to see themselves in that light, because I don't think that's the way Crown properly should operate. I don't think that's the way our Crown operates; certainly it's not the way I want them to operate. I want them to do their job evenly and to put the material before the tryer of fact, be it a judge alone or a jury, and let the court make a decision about whether someone is or is not guilty.

Generally on these areas that you are referring to, these statutory offences or quasi-criminal offences, some call them.... I don't know why they call them quasi-criminal offences. I suppose it's because the process followed to adduce evidence and the standard of proof is parallel to the criminal law, because in effect I think they are often more akin to civil offences. That's why we're looking right now, as I said to the member for Coquitlam-Moody (Mr. Rose) the other day, at ways in which we might be able to recover costs in matters where we have a successful prosecution. You see situations where you get a conviction, and whatever the fine is.... The Minister of Environment (Hon. Mr. Strachan) announced last December that he was going to bring in legislation to increase those fines to a maximum of $1 million.

Interjection.

HON. S.D. SMITH: The Minister of Environment announced that on December 5, just seven days short of that great anniversary, December 11, 1975— that great day in the history of British Columbia. One of the things I know he'll be pleased about is that the Leader of the Opposition has indicated he supports the Minister of Environment in his work. That en-

[ Page 6500 ]

enhances the kind of consultative process we want, and it's good.

That aside, the process we're into is procedurally akin to the criminal process, but effectively, in terms of the consequence, it really is kind of a civil result, because it injures property and people in that sort of way. We're looking at ways in which we might recover costs. The Ministry of Environment, the minister and I, and our staff are looking at that, and cabinet is deliberating on it right now. I'm sure that will give some pause to members on all sides of the House. If we're able to do that and enshrine some legislation responding in that way, it will move us significantly away from the present system. What I want to look at is accommodating the actual cost of prosecution and investigation in some way, because the fines frequently just don't do that. The larger the fine, the more difficulty I'm sure we'll have in terms of the process of prosecution.

So when you talk about those matters, you're right, in the sense that there is discretion exercised. It's exercised in the way of the criminal process — the two-part test used by the Crown to advance criminal charges. That's quite correct, and I think that's the right way to go, on balance. You're also right in terms of the analogy to the civil side, the costs and so on. We're looking at ways we can deal with that.

Regarding your concerns about Strathcona Park, I don't want to get too far into this, because I don't want to prejudice the fairness of trials that may be before the court now. Indeed, I believe some of the last ones will be tried on May 8. Let me say this about it. In my view, this is an example of what I was talking about earlier: the more effective way to proceed with civil areas is with civil remedies. These charges were processed in January 1988, in some instances, and here we are in the summer of 1989, and they're still proceeding.

That's as it should be. The defence has every right to use all the benefits of the system on behalf of their client. For instance, in the case in Vancouver, the action occurred, and the result was rendered in less than 14 days through the civil side. I think that speaks for itself. It was Justice Lloyd McKenzie who was entirely on the civil side.

What you have to know about the matters in Strathcona — so you don't confuse the two issues — is that the matters before the court deal with the enforcement of a court order. They followed the apparent refusal to obey a court order, and a decision was taken to go the route that has been taken.

I have a different view of that, and I hope to proceed civilly without fettering the discretion. Most importantly, it has to be restated as I tried to in that letter — and perhaps I failed — that it is very important that in some way or other, be it that route or the civil route, the Crown should be seen to enforce orders of the court. The court doesn't command an army; it's the Crown that commands the figurative army in our society. If the Crown declines to enforce court orders, then the court will be reluctant to make orders. I think we have to be conscious of that.

MR. CASHORE: Mr. Chairman, I found the other point that I wanted to make from the Attorney-General's letter of October 25. In that letter the Attorney-General pointed out to me a matter that I don't think can ever be determined, so it becomes a matter of opinion depending on where you're coming from. For the record, he stated: "As part of an ongoing review of various governmental policies, it was determined that mineral exploration in Strathcona Park should be discontinued. This review of policy was not in response to, nor does it excuse, alleged criminal activity." The point was that the issue that the people had been protesting had been resolved and it was no longer an imminent, urgent situation.

I do think that when we're talking about the perception the public has of the administration of justice, there is no doubt — apart from all the technical explanations that our learned friend can make, and I'm sure that our other learned friend understands — that it appears that the polluters are getting a break, but the people who are trying to stop the pollution are having an extremely difficult time getting their case heard. If they're trying to stop the pollution or if they are trying as those people who were involved in those activities at Strathcona Park were, they are nevertheless aware that in some cases the Crown moves in and stays the charges, but not in their case.

It seems to me — and I think here I'm representing the average citizen — that the wise and judicious thing would be to recognize that in some instances such as this, when there has been a great deal of pain and a great deal of wounding among members of society who have felt so keenly about this issue, it is an opportunity for healing. It's an opportunity for a proactive, thoughtful and beneficial decision to stay those charges. I can't emphasize that strongly enough, and I would certainly continue to urge that even at this stage that be done. I think there are some 30-plus cases still to be heard, and I really cannot believe that there is a societal gain in proceeding with those charges at this time, especially in view of the blatant examples that I have cited of charges being quashed on the basis of the technicality of a letter that goes back to 1971, where, because this company never did finish cleaning up its air emissions, it couldn't be charged with not having dealt with its effluent emissions. That is an incredible situation. In the eye of the public it means there's one law for one part of society and another law for another part of society. No matter how technical an explanation can be given with regard to violating court orders, etc., the fact remains that there is an interpretation of a gross miscarriage of justice when it comes to the way in which the law is applied so unevenly.

[11:45]

I'm glad the Attorney-General mentioned the December 5 announcement of the Minister of the Environment. I think it's a case in point. It's a situation where the minister has announced.... Even though I think he had trouble finding the news release this morning, I remember it and have a copy of it. This is a really important fact, and I hope the minister and the Attorney-General are listening: never in the his-

[ Page 6501 ]

tory of the province have the maximum fines that are presently on the books been administered. I know the Minister of Environment will disagree. He'll say: "In my riding in Prince George there was a fine of $65,000, and that is the exception." But he is not correct, because the $65,000 fine was actually three fines over three days. I don't have the exact numbers, but it was something like $20,000, $35,000 and whatever else adds up to $65,000.

The maximum penalty is actually $50,000 under the existing legislation. Never in the history of the province has the maximum fine been imposed. Now the minister, whose news release was referred to by the Attorney-General, has stated that the fines are going to increase; but in the exercise of bringing charges to bear, they have never demonstrated the political will to produce fines that approach the maximum. As a matter of fact, the average fine over the last two years has been about $45,000 in total, and that's incredible. So here we're talking about raising fines. What was the maximum fine going to be?

HON. S.D. SMITH: One million.

MR_ CASHORE: We're talking about raising fines to $1 million, but in an entire year the total amount of fines was just under $80,000. And if you remove that $65,000 in fines over three days....

HON. MR. STRACHAN: Wrong again.

MR. CASHORE: Mr. Chairman, I know that there is some dispute over this, but I am using documents that come from the Ministry of Environment when I say this.

HON. MR. STRACHAN: You never get it right anyway.

MR. CASHORE: I do have it right, and I am using the minister's own documents. But even if he were to quibble and say, "No, the total is $84,000," instead of $73,000 or whatever it is, the fact remains that in an entire year there has never been a total amount of fines that would amount to one-tenth of what he is now beating the drum about, saying he is going to invoke $1 million fines.

They're hollow words, and I think the Attorney-General is in a very difficult position in this province in trying to administer the law, when there isn't the political will coming forward from the investigative aspect of this and where the political agenda has been able to interfere with the responsibility of that ministry to bring the right investigation to bear.

It's simply sabre-rattling; it's posturing. And it's absolutely meaningless. I am glad that the Attorney-General brought up the point about the Minister of Environment's announcement, because it's an announcement of non political will.

HON. S.D. SMITH: I don't think that the Minister of Environment's words on December 5, nor the Leader of the Opposition's words yesterday — both concurring that million-dollar penalties are appropriate — were hollow words. They said the same thing. I am surprised to hear the member for Maillardville-Coquitlam refer to his own leader as being hollow, but that's his choice.

MR. CASHORE: There's political will on this side of the House, not that side of the House.

HON. S.D. SMITH: I would say this to the member: the matter of fines, obviously, is determined not by the Minister of Environment but by the courts. The case is that more resources should be put into the investigative side, and the Minister of Environment, I can tell you, fought hard and successfully with his colleagues to get that additional money out of the treasury and into his budget this year, and that is to his credit.

Goodness, gracious me, I don't think you should be hitting him with what happened in 1971; you should be hitting him with what he is going to do in 1989-90. That's what you should be worried about. You know, he would be happy to be debating those estimates, and I am sure he will be next Thursday or Friday or whenever we finish these ones. But I'm sure that the member will be delighted with it.

May I get back to his point on the business of public perception. He's quite right when he says the public perception is that there's a dual system in the law. I agree with him entirely, and that concerns me as much as it concerns him. One of the things that I think all of us as legislators ought to do wherever we can, because the law sometimes is overly complicated and not easily understood, and it's easy for us to manipulate the understanding of the public by simply not disclosing all the pertinent information.... And that impacts public perception.

So when we compare, for instance, the Strathcona situation with a pulp mill, we can easily manipulate public perception and mislead them, because they're totally different things. The reason for the charges in Strathcona is because a court order apparently was disobeyed; that has nothing to do with the issue of whether the land should be used as a park or a mine. It had to do with the response to an apparent refusal to obey a court order.

We would be an oddball society if we sat around and decided to trade off court orders against land use decisions. We have to support our judges when they make orders because, as I said, they don't command armies. But more importantly, as legislators we should not confuse those issues, because it does mislead the public, and it does injury to our system. We can help by not letting that kind of information get out.

You're quite right when you say it's better that we jawbone and solve these issues before we go to court. I could not agree with you more on that, but the time to do that obviously is when you're talking about land use issues. I've said that many times. If we don't resolve our land use disputes and conflicts, then I get to deal with them as a problem of law enforcement. You're bang-on. That is why the Minister of Environment set up the round-table process that he's into,

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and that is why on a number of land use issues I see progress in this province. I think we should acknowledge the progress where people are talking about land use issues, so that they can make decisions that don't result in this endless round of confrontation where we all say, on parallel lines: "We're right. There's no compromise. We don't ever have to adjust our thinking and realize that we have to live together." I couldn't agree with you more.

But when we don't do that, for whatever reason — and I don't think it serves any useful purpose to apportion blame.... But when that happens, and the court takes a decision and people apparently refuse to obey the court, then we have a responsibility to enforce those orders. Otherwise there's no sense in the court making decisions. It further follows that those of us who know that to be the case should make certain we don't ever confuse the public by getting the issues mixed up; because they're very important, but they're also quite independent issues.

MR. CASHORE: I want to set the record straight in response to something the Attorney-General said. It's interesting that he tried to turn my words around and make it sound as though, because the Leader of the Opposition had brought in a bill that would increase pollution penalties, my comments would also apply to him. The difference, of course, is that the experience of this government with the public has been that it has lacked the political will to enforce its own existing laws.

The minister talks about improving the laws, but this government hasn't been able to enforce the existing laws. It has not been able to make wise and judicious use of the existing penalty structure, and now they're talking about increasing the penalties. Certainly hollow, meaningless words when this government's track record demonstrates that it lacks the political will.

On this side of the House our leader has demonstrated that he does have the political will, and it is going to be applied in a fair and evenhanded manner so that sustainable development will be not a mere slogan but a meaningful, participatory value that all of our society holds dear and which carries forward in sustainable policies.

We cannot manage the environment, whether it's in the judicial system or in the waste management system, by public relations. We must manage it through having the political will to make use of the existing laws and make them work and bring in better laws and make them work too.

HON. S.D. SMITH: I don't want to belabour the point, and I won't, but very clearly you're right. Political will is important, and it's also right to judge political will by the performance, not by 20-20 hindsight of former governments in 1971, '69 or '75 or even '86. Judge people by their performance. The performance you will see and you are seeing is this: the Minister of Environment has, for enforcement purposes — and that's the only reason I mention it, because it relates to the Attorney-General's ministry in terms of how we have to advance charges — an increase of 40 percent of the budget. That is as clear a demonstration of political will as you can get.

We have put together an interministerial process so that we can better advance the process you're talking about, from the time of collecting information to that of making charges. We have appointed Mr. Peter Ewert, the senior Crown counsel in this province, to head up a section that deals specifically with environmental matters. We have six other Crown counsel who will be taking a high profile in that area and who will specialize in it. Very clearly, the political will is there, and I know that all members in this House applaud that.

MR. SIHOTA: In many ways, those are still words. We'll wait to see what the prosecution record is like; we'll wait to see what the submissions are like with respect to fines. You are correct: all we can base this on is performance. The performance to date has been incredibly poor. You get an "F," to my mind, with respect to that kind of stuff. An increase of 40 percent in the budget doesn't mean a damn if you don't clean it up

I'll give the minister one example. In my riding, at Millstream Creek, there was....

HON. S.D. SMITH: Mr. Chairman, on a point of order, could we try to stick to debating the estimates of the Ministry of Attorney-General?

MR. CHAIRMAN: The member continues, with relevancy being the byword.

MR. SIHOTA: Let me ask the minister this, then. There was a spill some time ago at Millstream Creek in the Western Communities. The environmental people have been out investigating; they investigated on several occasions. We've been told week by week that charges are about to be laid. Again, if we're looking at performance, could the minister explain why his newly established unit in charge of environmental matters hasn't laid any charges with respect to the Petro-Canada oil spill at Millstream Creek? When can we expect those charges to be laid? Now, I hope.

HON. S.D. SMITH: I don't have the details, obviously, of that particular incident before me. Of course, the member would know that. If he were to give me a few moments, I'll get them so we can deal with it this afternoon.

One of the things that is most important for us to do is to make sure when we do advance charges that we have some confidence of success. That is part of the two-part test of the process that I have enunciated several times, and the Crown will make that determination. They will not be driven by the determination of the members opposite to try to put pressure onto headlines or to claim they're not taking action or so on. Thankfully they're independent of that. Thankfully they will do their job appropriately. Thankfully we have put more resources in to reflect our political will.

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I know that the members will drag up past sins of omission and commission, and I know, as well, that the number one incident they will drag up is the issuance of a licence to build a major manufacturing plant in the Cowichan estuary in 1974 which would have destroyed the estuary. The government following in '75 cancelled that licence, and thankfully did. It was the most important environmental decision taken on Vancouver Island in the last two decades.

MR. SIHOTA: I'll tell you what the most important decision is that should be taken on Vancouver Island with respect to environmental matters, and that is this government provincially taking action against Washington State for the damage caused to our beaches from the oil spill that occurred in December. We're still waiting, Mr. Minister, for your department to begin the type of action that's required in that regard. If you want leadership, we're looking for leadership, and the type of negotiations that are going on, I guess, behind the scenes don't tell us much in terms of where the government is coming from. That was a disaster which struck Vancouver Island, and we still wait to see what action the ministry takes with respect to that.

Interjection.

MR. SIHOTA: No, if the minister wants some time to answer on Millstream Creek he can answer later on, and he can reply to this situation, as well, when we get together again at 2 o'clock or 2:30. Mr. Chairman, I move that the committee rise, report progress and ask leave to sit again.

The House resumed; Mr. Speaker in the chair.

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

Hon. Mr. Strachan moved adjournment of the House.

Motion approved.

The House adjourned at 12:02 p.m.