[ Page 12855 ]

CONTENTS

Routine Proceedings

Adoption Amendment Act, 1991 (Bill 11). Committee stage.

(Hon. Mr. Jacobsen) –– 12855

Mr. Cashore

Ms. A. Hagen

Mr. D’Arcy

Mr. Serwa

Mr. Barnes

Ms. Marzari

Third reading

Pension Benefits Standards Act (Bill 6). Second reading

Hon. Mr. Rabbitt –– 12867

Mr. Rose –– 12868

Ms. Marzari –– 12872

Hon. Mr. Rabbitt –– 12873

Land Title Amendment Act, 1991 (Bill 2). Committee stage.

(Hon. Mr. Fraser) –– 12873

Mr. Rose

Mr. Sihota

Third reading

Miscellaneous Statutes Amendment Act, 1991 (Bill 7). Committee stage.

(Hon. Mr. Fraser) –– 12874

Mr. Sihota

Mr. Miller

Third reading

Crown Counsel Act (Bill 10). Committee stage. (Hon. Mr. Fraser) –– 12878

Mr. Sihota

Third reading

TUESDAY, JUNE 18, 1991

The House met at 6:17 p.m.

HON. MR. RICHMOND: Now that we seem to be finished with the nonsense and the opposition wasting the time of this House, I would like to call committee on Bill 11.

ADOPTION AMENDMENT ACT, 1991

The House in Committee on Bill 11; Mr. Pelton in the chair.

MR. CASHORE: I seek leave to make an introduction.

Leave granted.

MR. CASHORE: We have visiting in the gallery today two people who are here with a third person seeking information about Bill 11. I would like to introduce them. They are Millie Strom, who represents the organization Missing Pieces Through Adoption; Kathryn Vea; and here earlier was Audrey Skammell of the Triad Society for Truth in Adoption. Would the House join me in making these people welcome.

On section 1.

MR. CASHORE: Section 1 — delegation by superintendent. Section 1.1 reads: "The superintendent may delegate any of the superintendent's powers, duties, functions and capacities under this act to any person, and that person shall be subject to the direction of the superintendent...."

Would the minister kindly give the House some examples of the categories of people who might fit into that definition of "any person"?

HON. MR. JACOBSEN: The answer to that is social workers and supervisors within the ministry.

MR. CASHORE: On that point then I think I would have to advise the minister that this leaves it open to the question of why that is defined in such a narrow way. And that is in no way meant to be any criticism of the persons whom the minister has mentioned.

Is it not correct, Mr. Minister, that all of us on the opposition and government have come to realize through debate on the issue of adoption registries since 1987 that there are some very well-informed people in society who have been involved in the adoption rights process? Often these are not only people who have worked as social workers or who have worked because of a bureaucratic interest in this subject, but are people who come from the ranks of adopted persons, birth parents, adoptive parents, birth siblings, adoptive siblings and so on. These people have had the added dimension of a tremendous personal concern with regard to these issues — to the extent that there are now organizations such as Parent Finders of B.C., Missing Pieces Through Adoption and the Triad Society for Truth in Adoption that have developed credibility.

I do know, Mr. Minister, that sometimes there are organizations who lack credibility because of an approach that for obvious reasons is not suitable. In the case of the organizations I have named and other organizations that have been working in this field, why would the minister exclude them?

HON. MR. JACOBSEN: We have not excluded them at all. There are many people who can contribute valuable service to this whole business of adoption. We've recognized that before. As a matter of fact, it's interesting because we've been criticized from across the way for including people who were not employees of government in the delivery of services to the public. It has been our position that there are many people who have a great deal to offer, and when it's appropriate, we will certainly use those services. You have to remember that this applies to the whole act, not just to the registry.

The specific intent of this was to cover social workers, because there have been cases where social workers acting within the confines of this act have been challenged as not having the authority. Under the Family and Child Service Act we have the permission to do that, but we do not have the authority under this act, and that's why it's included.

MR. CASHORE: When you answered my question, you defined the answer, as I recall, saying that this refers specifically to social workers. When I raised the question about people who have expertise and knowledge by virtue of their personal experience and the involvement that they've had in some of these organizations, your response was: "We have not excluded them at all."

Does this mean that when you gave me the initial definition of what is meant by the words "any person, " what you originally said wasn't complete, and what you are now saying is complete, that it will be social workers and all those others whom I have described that you have said that you have not excluded?

HON. MR. JACOBSEN: The member asked why this amendment is included within this act. The reason it's included is because we are specifically, at this point in time, concerned about providing the authority for social workers. That was why we have made the change, but it may have implications to other people. That's not something that I'm denying. It may well have, but it was specifically included here because we need to make the change in order for social workers to be able to carry out this function.

MR. CASHORE: Am I correct in interpreting your answer that, upon reflection, these words "any person" could be expanded beyond the definition of only social workers to also include these other groups that I've described?

HON. MR. JACOBSEN: There's no question about it. It certainly can be expanded to include that and

[ Page 12856 ]

probably will be expanded in certain instances to include other people.

MR. CASHORE: I would like to thank the minister for that answer. I'm prepared now to move on to the next section.

Section 1 approved.

On section 2.

MR. CASHORE: With regard to section 2, the definitions, we'll go down to the definition that begins "identification particulars." It goes on to say, "means the name of a person and other information that identifies the person." I want to ask the minister to give us an explanation or example of what "other information" might be.

HON. MR. JACOBSEN: It means all the identifying information that may be contained within the records.

MR. CASHORE: If it means all the identifying information that may be contained within the records, would an example be, for instance, the name that the person was given at the time of birth by the birth parent? Perhaps the minister could put that on the record.

HON. MR. JACOBSEN: Yes, that could very well be the information.

MR. CASHORE: Could there be other kinds of identifying information as well as names?

HON. MR. JACOBSEN: I think we're trying to get into details of cases that we haven't in fact dealt with under this particular legislation. There certainly will be requests for information, and it may be information other than names. We don't know at this particular time what information may be asked for, but this would provide for that information to be made available. Whatever information there is on the records that is to be made available can be made available under this particular section.

MR. CASHORE: I find it interesting that the minister is not sure what other kinds of information might be made available. I've come up with one example: the name given by the birth parent. Is it possible that the minister might know of some designation other than a name that might be there as identifying information, such as a number?

[6:30]

HON. MR. JACOBSEN: No, I'm advised that a number would not be given. But over the years various amounts of information accumulate in files which, I guess, has changed over a period of time. So it's hard to identify what kind of information may or may not be within the file.

I think the purpose here is that the act would be written in such a way as to make it possible to provide the information being sought. If you spelled out precisely only the information that could be given and there was then a need to give additional information that was available, it would be in violation of the act because that had not been specified. It says "other information" so that it covers any and all information that may need to be relayed to the other party

MR. CASHORE: Is it not correct that some of this information would have persons identified not by name but by number?

HON. MR. JACOBSEN: It would not include a number.

MR. CASHORE: I understand the minister is saying that it would not include giving out a number. But is it not correct that some people are not identified by name, but are identified by number?

HON. MR. JACOBSEN: In our records they are identified by both name and number.

MR. CASHORE: Does that mean that in some instances the name would not be given out for reasons known to the ministry in the administration of the act?

HON. MR. JACOBSEN: Yes, there are instances when the name would not be given out. That would be in the case where a veto would have been in place, and that's contained later on in the bill. But I did not say that the names would not be given out; I said the numbers would not be given out. I said names would be part of the information that would be given out. Unless the portion of this act which deals with the veto was in place, then the name would not be given out.

MR. CASHORE: Well, my last comment on that, unless other members have additional questions about it, is that it would appear that there are some human beings who, after going through this process, would not have access to either a name or a number. Is that correct?

HON. MR. JACOBSEN: I don't know how they would not have access, except if there was a veto by the other party. Then they would not have that. That is correct.

MS. A. HAGEN: I want to pursue this matter of the records definition for another moment, recognizing that the reason adoptees are seeking information may be to have an opportunity to know birth parents. But there is another kind of information they are seeking that may have to do with medical history of family and so on, and which may be in these records.

I would like to ask the minister if that kind of information is envisaged being in these records, and irrespective of the veto, which we will be dealing with in a later section of the bill, whether there's anything implicit or explicit in this legislation that provides adoptees with access to the kind of information that may be important to them as well.

[ Page 12857 ]

HON. MR. JACOBSEN: Mr. Chairman, we wouldn't really need this bill to provide that kind of information. As a matter of fact, we do give out all non-identifying information now that has to do with medical problems. As a matter of fact, we get about 100 requests each month for that kind of information, so we don't withhold that information at this time. But the bill will provide for a continuation of that. Even in the case of veto, people will still be entitled to that kind of information.

MR. D'ARCY: On section 2. First of all, I want to commend the minister for going at least a halting half-step forward in this important area. The concern I have, though, with the inadequacy of the registry is that a Canadian citizen living in British Columbia whose birth and adoption records lie within the authority of the province of British Columbia should have, once they have reached the age of majority, exactly the same right of access to that information as any other citizen who is not adopted. I'm surprised. It's probably one of the few things I would agree on with the second member for Kamloops. I don't like the idea of people running off to court on the Charter or anything else to test laws passed by duly-elected legislatures or parliaments. But I'm rather surprised that somewhere in Canada someone has not done a Charter challenge based on exactly that principle.

Any individual should not be a second-class citizen when it comes to knowing who their natural parents are, about their adoption records such as time, place and circumstances and about any siblings they may have and last known address. They should pay a fee like anyone else. But there should be no discrimination against any citizen in British Columbia who was born and adopted here once they have reached the age of majority.

I know it's pointless to propose such an amendment at this time, but having made this major step forward in this act that the minister put forward in 1990-91 — too bad it wasn't in 1891 or earlier, but sometimes we are 100 years too late in this province with a lot of things — I would hope that the minister would give it due consideration to bring in such an amendment or policy change on his own. I'm quite confident there would be very strong support on this side of the House, and I hope on the minister's own side, for such a change to make all citizens equal under the adoption laws of British Columbia. Hopefully it would be a move all other provinces in Canada would be shamed into adopting.

HON. MR. JACOBSEN: That's a very touching speech; I'm touched by it myself. But the thoughts expressed were not new. They were thoughts I debated long and hard when we were bringing forward this particular legislation. It was my purpose in bringing forward this legislation to give the adoptees of this province an opportunity to find their birth parents, because I know the anguish many people go through in wanting to know who their parents were, where they came from, what they looked like, what their circumstances were and many other things. I was very moved by the need for these people to have the information contained within this bill.

But while I was recognizing the rights of those people, I was also remembering the promises made to other people, who in good faith adopted children years ago, that applied to both birth parents and adopting parents, where commitments were made that it would be confidential, and there would be no information passed. On this side we do not take those commitments lightly. I appreciate that society changes as time goes by, but this particular legislation may well see an amendment that would further expand it.

But at this time you'd agree that we've taken a giant step forward. We will be a Canadian leader. The record you're talking about does not exist anywhere in Canada, and the kind of information we're providing here tonight is only available in the province of Quebec. We are among the leaders in Canada, and this House should take pride in knowing that we are. It doesn't matter whether we sit on this side or that side of the House: the people affected by this legislation don't care about that. What they care about is that their rights are going to be made available to get the information they justifiably deserve to have.

MR. D'ARCY: With respect to the minister, I appreciate his forthrightness on the matter and his recitations of the considerations that went into placing the limitations on these advances which he has put forward in this bill. The fact is, though, that if this chamber or any legislature or parliament refused to make changes based on the way things are or the way things always have been or what people were told at various times, nobody would ever make changes to anything. We all know that duly elected legislatures and parliaments can make changes at any time; that's the reason we have parliament.

I quite understand the concern of some natural parents who had their children adopted that they don't want to be searched out; they want to be left alone. Others would greatly like to be found by their offspring, or to find their offspring. I also understand the anguish and agony that some adoptive parents feel about the possibility of natural parents coming forth or the children — I want to emphasize, Mr. Chairman, that in my comments I recognize that this is after they become adults under the law — seeking out their natural parents.

The point I'm making is that if I as a citizen at some point chose to have a natural child of mine adopted out, when that child reached the age of majority, it wouldn't matter a damn what I thought or how I felt or how emotional I was on the issue. What matters, Mr. Chairman, is that that a free Canadian citizen living in British Columbia has the same right of access to his own birth records as I or you or any other member of this House has. That's the issue here. It is not what the parents think. With all the great respect that I have for adoptive parents and natural parents, it is not what they think about the matter. The only question at issue here is: what do adult citizens think, and do they have a right to know who they are and where they came from? That's the question.

[ Page 12858 ]

I'm very glad to hear that the minister has given these very difficult and emotional matters considerable thought. I hope that he would, as he is known to do, give some more sober second thought to the issue and realize that once the changes that I'm suggesting are made, it would be like so many other major steps forward in social legislation and social policy: everyone will say for evermore: "My gosh, how quaint it was that this change didn't happen in the past!" We'll look back and realize that this withholding of information, this making of second-class citizens of adults who were adopted as children Remember, they're not responsible for being adopted. Why should that be held against them? They didn't make the decision to be adopted out. We will look back on that and we'll say: "Why did it take so long?" We'll look back at it as some quaint practice from the past, like attaching leeches to the body to let blood for medical reasons, or some of those weird practices of 100 years ago.

I hope the minister will give these matters some sober second thought, and discuss it with himself or whoever he discusses these matters with, and in due course come back with the appropriate changes.

HON. MR. JACOBSEN: I just want to comment briefly on that, because I think it is an important point and should not be passed over lightly.

Yes, I recognize that government makes the laws and can do pretty much what it feels it wants to do, but I hope that in doing that we will all be sensitive to the fact that we are here to serve people, not to run roughshod over them and place burdens upon them that they may have difficulty dealing with.

The member opposite discounts any commitments, promises or pledges made in the past — fair enough. He can see it from that side. I don't think, although he suggests it, that he has a greater concern for the adult adoptee than I do. I would question that. I think that I have as much concern for those people as anyone in this House and that I've shown it by bringing this legislation forward. But we have made commitments.

[6:45]

There's also another side to this which we need to think about, and before we just open the records, as you're suggesting, even the people who advocate that agree that there should be a veto process in it so that if the birth parents for some reason did not want this information to be available, they could register a veto, which would block it from happening. We have the same provisions in here for a veto provision.

As time goes on and the situations change — as I said before, it may well be — the legislation would be looked at again and may be changed. I suppose all legislation is eventually changed and updated, but for today in British Columbia, Mr. Chairman, this is a giant step forward, something that we can all be proud of as the proper thing for today.

MR. D'ARCY: I'm not going to belabour the point. I think the minister and I understand each other fully.

I have to get one more thing on the record, though, Mr. Chairman, and that is that when we as individual citizens take it upon ourselves to have children or adopt them, those children are our responsibility, but we don't own them. When those children reach the age of majority; we definitely don't own them. And as free adults ourselves, we don't go around lobbying government — or certainly we shouldn't — to make policies which discriminate against our children but not against other people. Whatever promises were made to adoptive parents, whatever was said, whatever they thought the rules were then or were going to be, the fact is that when those children reach the age of majority, they are free citizens, and the parents do not own them anymore. Probably they never did.

HON. MR. JACOBSEN: Just quickly on that particular point, I think it's worth pointing out that this is not restricting the information for adoptees in the first place. Any adoptee can go and request the information about his birth parents, and the search will begin. The records will be dug out. The only time it would be stopped is if the birth parents have registered a veto and said they do not want to be contacted. Then, I suppose, the system would be that the adoptee would be told, "Yes, your birth parents have been contacted, and they have registered a veto," meaning that they do not wish to be contacted. That is an answer to the person. The person knows that there has been a contact, a request to see. So it does not prevent them from contacting; they will have the opportunity to do that.

It has precious little to do with the adopting parents. The adopting parents are really left pretty much outside of this legislation. It's only that we recognized that commitments were made in years gone by. I guess it's easy to say: "Well, forget about them. They don't really matter." I have to tell you that when I measured the rights of the adopting parents against those of an adoptee to know about his own background, I recognized that both have rights, but it was my view that the adoptee had the greater rights of the two, and therefore the bill before you. That is not to say that the other parties have none. I think that government may have made commitments in the past, and we can stand here today and say they shouldn't have been made, but they were. The honourable thing to do is to at least pay some regard — it's a small amount here — for the commitments that were made.

MR. D'ARCY: Mr. Chairman, the fact remains that if any member of this House, for whatever reason, had lost touch with their natural parents and had reason to believe their natural parents were still alive, and they went to the vital statistics branch to find out the last known address or addresses of their natural parents, those natural parents couldn't file a veto and refuse to give out that information.

MR. SERWA: Mr. Chairman, it's a pleasure to be able to speak here at the Committee of the Whole on section 2 of what I consider to be one of the most significant pieces of legislation that is going to pass in this House in the four and a half years that I've had the opportunity to be here as a private member. I commend the minister for bringing forward this legislation.

[ Page 12859 ]

I'm somewhat appalled by the hon. member for Rossland-Trail, who I normally have a high degree of respect for. He expresses the insensitivity and shallowness of the members of the opposition in matters that require a great deal of sensitivity. I'm very surprised and disappointed with his expression in the word "paltry." I think this is most significant legislation, Mr. Chairman.

Our family consists of six children, two of whom are adopted. Perhaps that gives me not a special insight, but some perspective of the adoptee and the parent and certainly a concern for the birth parents. The matter that has come before the House today is the evolution of a phenomenon that occurred not in recent history. It has been ongoing since the early 1900s and particularly after 1914, when a number of children in society were born as a result of the war, and there was the necessity to provide better homes for them with families. We have evolved a long way from that point when even the adopting parents were somewhat ashamed to make it public, because it indicated perhaps their infertility and inability to produce children. They were embarrassed by that, and because of the connotation on the children they were embarrassed with those references.

We have come a long way, Mr. Chairman. I recall a few years ago when the hon. member for Cowichan-Malahat provided a private member's statement that preceded the legislation that the House brought forward on passive registrations, which was, again, a milestone step with the potential of significant success. I don't think anyone in the House that day who saw the mother and recognized the story that the first time she tucked her son in bed he was 30-some years of age It was a very poignant story.

The section 2 that comes before us involves a lot of adoptees in the province. It's estimated that there are approximately one million adoptees in Canada. By interpolation, that means there are approximately 100,000 to 110,000 adoptees in British Columbia. When you consider the sons and daughters and the mothers and fathers who are thinking of each other and searching for each other, you can see the significant challenge to the minister and to the ministry in order to resolve this.

Each one of us is born with an inherent sensitivity to determine where our foundation is: who our family are, the origins, the relatives, all sorts of areas. We must have that foundation. Certainly it occurs in all of us independently. This particular legislation allows that opportunity to be successfully concluded. The passive registry, as far as I can gather, has not been altogether that significant. This really enhances the opportunity.

What we have to remember is that there is a cultural inertia in the whole thing. You can't turn people off and on like a light switch. It is as we cross this major river that we have to take stepping-stones, because people resist change and people resist the rate of change. So it's entirely correct that we set up a series of steppingstones such as the passive registry and the active registry; and in the future, as society and culture change again, perhaps we will achieve what the member for Rossland-Trail is seeking, the open registry system, which will be the ultimate goal.

Approximately one in five people in the province of British Columbia has a direct relationship of either knowing an adoptee or being a relative of someone who is an adoptee. This is a significant proportion of the population.

The search for blood relatives will be greatly enhanced by this legislation. I'm particularly pleased with section 2. But I do have a question for the minister. In view of the large number of adoptees living in the province of British Columbia, do we have the capacity within the ministry? I expect a veritable flood of applications to come forward in the search for their past, for siblings, for parents. I would ask the minister to respond.

HON. MR. JACOBSEN: I appreciate the comments by the member, and I think he shares a good insight into this whole issue. He asks if we will be able to handle the amount of backlog that is presently waiting for this legislation to take effect. We recognize that there's going to be a very big demand for the service. We know that it's also a labour-intensive process to carry out this search. I want to say that I'm very sensitive to the fact that the people who will register when this legislation becomes effective are people who have been waiting for a long time, and they will be very anxious to get the information that they're seeking.

I have discussed this at length with the ministry, and I can assure you that we are making the plans and taking the steps that will be necessary to handle a very substantial volume of people once the act comes into effect.

MR. CASHORE: I've been listening to the discussion very carefully, and I was interested in the comments of the second member for Okanagan South when he referred to my colleague from Rossland-Trail as making statements that weren't sensitive. I was at a loss to understand what particular sentiments or statements he was referring to that were insensitive, if indeed he was implying that there was an insensitivity to persons who might be at some risk or might have some concern with regard to information being made available. It opens up a question that we have to look at of how we view ourselves as adults. I see the member is shaking his head, so I hope he will explain himself later in the debate.

But we have to recognize that this debate goes right to the very root of the question: what is confidentiality? What is it to be able to keep something confidential? For instance, in section 2 where it refers to identifying particulars referring to other information, can that be justified? But that means by definition that the other information is other than a name.

What kind of sensitivity could ever justify that some people in our society are treated as though they don't have a name or they can't find out their name? How can that kind of insensitivity ever be justified? It is true, if we look at our somewhat recent history, that women have been seen as property, children have been seen as property, and while we have recognized....

[ Page 12860 ]

Yesterday our critic — the hon. member for Surrey-Guildford-Whalley — did say to the minister that she found this legislation was a step in the right direction, but it simply isn't good enough to say that this is better than Saskatchewan, Manitoba or something like that when we're looking at this in the context of what might be.

All of us have to recognize we have a lot more homework to do; we have a lot more to do putting in place a policy that recognizes the fundamental rights of human beings to have access to the information that is the very ground of their being. What could be more fundamental than being able to own a name? There are some people in this world who don't own anything except for their name. For some people that's the only possession they have.

[7:00]

When my colleague from Rossland-Trail said that we don't own our children, it put me in mind of some words that were written by Kahlil Gibran, and they go something like this: "Your children are not your children; they come through you but not from you. They are the sons and daughters of life's longing for itself." Perhaps we have to think about that long and hard as we seek to put in place something that affirms the right of people to that very basic information that is their self-esteem, self-respect, need to know who they look like and need for medical information. Who's to say what that has to do with?

Yet within this act those decisions on behalf of an adult are often left in the hands of a medical practitioner — information that an adult is quite capable of dealing with and information that another adult might be somewhat surprised to receive a phone call on. Being an adult, he is eminently capable of dealing with information whether it's happy or sad information.

We are a society in which we expect our adults to be able to deal with information. We only have to look at the history of our country; people have dealt with tragic information, and they have survived. They haven't fallen apart. Surely the information that somebody has found me who has been looking for me might cause me some embarrassment, but we're adults, and we're capable of handling that experience of embarrassment.

Mr. Chairman, the point was made that compared to other jurisdictions in Canada this is a major step in the right direction, and I don't question that at all. I think that in the spirit of this debate we are welcoming the minister's willingness to recognize what the minister in 1987 was not willing to recognize. At that time this member, along with others, argued passionately for a much more open process that moved in the direction of an active registry.

Just to recall a bit of history, at that time this minister's predecessor had commissioned a study that was conducted among people who were involved in the sphere of adoption — adoptees, adoptive parents and others who had knowledge of the situation. This was a government commissioned study. When the passive legislation was brought in, the minister at that time stated in this House that the study supported a passive registry. At that time I revealed in this House that the study in fact overwhelmingly called for an active registry So the fact is that we've gone along since 1987 with something that was not requested by society It was not requested by the people who were surveyed by this same Ministry of Social Services and Housing.

I would like the minister to respond to this, and it relates to the question just asked by the member for Okanagan South. It's my understanding that under the present legislation it's taking almost two years to get non-identifying background information in B.C. That's a long wait, Mr. Minister. My question is: in what way will this legislation, which is expanding this process, exacerbate the situation that is requiring that lengthy wait?

HON. MR. JACOBSEN: Mr. Chairman I suppose that we could go back and debate the history of the province and what we should have done three years ago, six years ago or ten years ago. It's interesting. If you look at the whole business of adoptions, I understand that the records go back to the early part of this century — 1903 or 1905, somewhere in that area — when we started registering adoptions. So it has been going on for a long time.

In 1972, '73, '74 and '75 there was also a need for information. If people on your side of the House were so much more compassionate and saw greater human need than we on this side of the House, you had an opportunity to correct it at that time. But it was not corrected. I don't fault the government of that day for not doing it, because circumstances were different. But I don't think that you should now profess to be holier than thou and say that it's only because we lack sensitivity that it's 1991. I think that British Columbia can be quite proud of its performance here.

As a matter of fact, it has been three years since we brought in the passive registry, and tonight we're here debating an active registry. By comparison, Ontario had a passive registry for six years. When they brought it in, they did not bring in an active registry; they brought in a semi-active registry that disallows the birth parent the right to track their children. Only the adoptee has the right in Ontario. I don't hold you responsible for that. But in a comparison of provinces, that's the way it is.

I'm not sure what the question was that the member had. The delay in the non-identifying information. Yes, admittedly, there was a very long time-lag in it. That was a concern. We hired additional people to get involved in the process, and that has changed dramatically. I don't know if it was quite two years. I know that right now it's somewhere around 90 to 100 days.

MR. CHAIRMAN: Just before we proceed, I would like to remind hon. members.... I certainly appreciate the sincerity with which this debate has proceeded to this point, but over the last ten minutes we have in effect been doing second reading debate on some of the points we've been discussing. I'd just like to remind members that we are in committee dealing with section 2. I believe the member for Maillardville-Coquitlam seeks the floor again.

[ Page 12861 ]

MR. CASHORE: The question was: what does he see in this legislation that will facilitate the information coming forward more quickly than has been the case under the passive registry? What increases in staff are going to be required to make that possible? Is it not correct — and this is a question that has to do with the taxpayers' money — that if there was not a legislated need for so many go-betweens, the taxpayer, by affirming the ability of adults to handle information that is sometimes difficult, would actually save money?

HON. MR. JACOBSEN: Could you repeat the last couple of words, Mr. Member?

MR. CASHORE: Given that this is an active registry, as defined by this government, which is going to require an infrastructure to facilitate the go-between function of managing to get person A together with person B, is it not true that if it were a more open process, it would be less costly and less requiring of that kind of bureaucratic support?

HON. MR. JACOBSEN: I suppose that could be argued. But then some of the difficulties or problems we would hope to avoid would be brought into it.

MR. CASHORE: I'd like to ask the minister to refer to the final definition — "veto" — which shows up elsewhere in the bill. It's defined here as meaning "a veto under section 13.4." We'll go to 13.4 in a couple of moments, but since the term "veto" is used in more than one place in the bill, I was wondering if the minister would just share with the House his understanding of the concept and scope of "veto," insofar as this act is concerned.

HON. MR. JACOBSEN: My understanding of it is just really what I would assume the word to mean: the person has made a conscious decision that they do not wish to be contacted. They veto the other person's invitation to contact them or their request for contact; they say no.

MR. CASHORE: If there are no other speakers on this section, Id be willing to move on to the next section.

MS. A. HAGEN: One of the things that so often happens with an amending bill is that.... There are a whole number of sections under section 2. I think that the member for Maillardville-Coquitlam has been trying to deal with those in an orderly way rather than ranging broadly through them as we sometimes do. What we want to do now is move to other parts of section 2. We've been dealing with "Definitions for reunion purposes," which is the amendment to 13.1 of the Adoption Act. We do have some further questions. I know I have some under 13.3, but I'll take my seat in case some people want to raise issues under 13.2.

MR. CASHORE: Yes, Mr. Chairman, I wish to thank my colleague for that. I misread the numbering, and I was taking section 2 as being the definitions. But my colleague is quite correct.

Turning now to the 13.2 section of section 2, we're dealing with a section under the heading "Passive Registry." With regard to this section, when a person applies for non-identifying background information, would the minister not agree that an adult adoptee should be able to receive their full name at birth rather than just a number? This was the situation prior to 1967, and at that time an amendment was brought in to change it. So would it not be appropriate that when people are receiving this information, they could at least have access under this section to know what their name was as given by the birth parents.

HON. MR. JACOBSEN: Mr. Chairman, a few minutes ago you mentioned that you thought that there was a need for the debate to be focused on the sections being debated. I have a very hard time to see where that question has any relevance to 13.2(l). I just don't see that as part of this section.

[Mr. De Jong in the chair.]

MR. CASHORE: Yes, Mr. Chairman, perhaps I can help the minister. Section 13.2 (l) says: "If an adult adoptee and a birth relative have each applied to the superintendent in prescribed form directing that his or her identification particulars be provided...." So my comment was bang on. I was asking why it would be that in receiving identification particulars in some instances an individual would not be able to know what their own name was. That's what Id like to know. Why can't adults be given their own name?

[7:15]

HON. MR. JACOBSEN: The member, Mr. Chairman, chooses to quit reading in the middle of a sentence. It says: "...his or her identification particulars be provided to the other person...." Now he's asking why the individual asking to be registered under the passive registry can't get all of the information concerning himself or herself? That isn't the purpose of the passive registry. The purpose of the passive registry is to place on record that you wish to contact your birth parent or your adopted child.

MR. CASHORE: I do understand, as the minister is saying, that he continues with that section with regard to a passive registry, but it goes on to say: "...if one is dead, disclose only the fact of this death to the other." Again, it would seem to me so if it's an adult who's being deprived of identifying information.

I'd like to move on now to the active registry section, and refer the minister to 13.3(l), on the second line, where it refers to birth sibling: "If an adult adoptee applies to the superintendent in prescribed form requesting active assistance to contact a birth parent or a birth sibling who was also placed for adoption, the superintendent must...." Then it goes on to what is required. But would the minister not agree that birth relatives should be able to request a search for an adoptive relative, and that a birth sibling

[ Page 12862 ]

should be able to search for an adoptive sibling? Would the minister not agree that this is restrictive, and how does he justify that?

HON. MR. JACOBSEN: Before we get to the part that the member is now in, I want to go back to 13.2(l), because the member chooses to try to leave that as though somebody has been denied some information that they should have been entitled to and didn't get. Can I remind the member and the House that this particular section applies to a passive registry? The member suggests that if the other person is dead, they should then be able to get all of the facts. Well, if the person making the request wants that, all they have to use is the active registry provided for here. This person, remember, has chosen to use a passive registry. But if they want that particular information, they should use the active registry.

The member asks if I do not agree that there should be others included within the scope of the act. We have a number of cases — illustrations of who can contact whom. An adoptee can contact another brother or sister who is adopted out. That is provided for here. No, I don't agree that it should be broadened and expanded to cover beyond what is in this act. This is what we propose as the act.

MS. A. HAGEN: I am trying to see the rationale for both the passive and the active registry, recognizing that there is, implicit in the act of registry, staffing to assist with making the connection between the adoptee and the birth parent. I'm just going to keep it between those two people at this stage of the game. Perhaps the minister can give us a rationale for maintaining what was the first step in this process that we looked at a couple of years ago.

HON. MR. JACOBSEN: I'd be very happy to provide that, because it illustrates that when we sit here in this Legislature, assuming what's required and wanted by the people of the province, we could easily just strike out the passive registry, because now we have an active registry and that will take care of all the needs. But the fact is that there are a number of people who will choose to use the passive registry, even though the active registry exists, because there's a sensitivity in this whole business that some people feel so strongly about that they will only make a move to contact a birth parent or an adopted child under the circumstance that the other party has also indicated that they too want a contact. If that doesn't exist, they wouldn't want to proceed with the active search. We have not denied people who feel that way the opportunity to have their search carried out in that way. That's the purpose.

MS. A. HAGEN: I appreciate the minister's answer, but recognizing that we're sitting here looking at a bill which has all of these procedures outlined, and that people out there don't always have an understanding of the bureaucratic or the procedural processes through which they have to go.... Let me put it this way: what about the veto? Does a person who registers through the passive registry process automatically have added to the record a veto on an active registry? I presume that at this stage of the game the passive registry requires two for a reunion to take place. That match may or may not happen, because there's no active search to check out whether somebody else might be interested in a reunion if the person was approached. Will there be an automatic veto registered on the active registry part of the record if people are in the passive registry?

I may be missing something here, but it seems to me that there are some connections here that are not clear.

HON. MR. JACOBSEN: I can understand that you would like the clarification of that. I think that's what this whole discussion is about, and I'm happy to provide that.

It would not be an automatic veto. Under the passive registry, nothing happens unless both parties have indicated an interest in meeting one another. It's not necessary to have a veto under those circumstances. The people who are registered today.... There are a lot of them registered under the passive registry. Many of them will want to register under the active registry. We will contact each one of those people to advise them that the new legislation is in place, and ask them if they now wish to use the active registry to seek out their birth parent or their adopted-out child.

MS. A. HAGEN: I raise one other point which I think applies particularly to this section. Whichever way you're looking at this, you may find that to the best of anyone's knowledge, the birth parent or the adoptee is dead. It appears that at that stage there's closure on access to records.

I heard a rather moving story on the weekend about native adoption and the fact that many native children were taken out of their cultural native communities and adopted by non-native people. It was a story of the sister of an adopted brother who had decided that this young man, who at the time was around 18 or 20 and was having a lot of trouble in his personal life, should have an opportunity to meet his natural family. He was adopted in Quebec. I don't know all of the laws that cover people, but I understand that the minister noted earlier that Quebec has an open registry. Whatever the process, that family of siblings was able to make contact, but the mother and the father were dead. The story was a story of a young man united with a family of nine, of which he was the youngest brother. Social workers had deemed, for whatever reason, that he should be taken from his family.

My concern here is that the family be a broad definition of family; that it not just be parents, but that there be a recognition of the fact that there may be not just siblings who were adopted out, as the adoptee may be, but siblings who may have stayed with the birth family and who may indeed be interested in wanting to make some connection.

I'm not clear from the legislation, so perhaps the minister can explain whether that option would be there if, as in the case of the story I've just told, the mother and father were both dead, and the only

[ Page 12863 ]

members of the family still there were siblings and a large extended family that this young man came to know as a result of an open process which enabled him to reconnect and reunite with them.

HON. MR. JACOBSEN: Well, that's a good point. So that there is no confusion in the debate, I just want to state that the member mentioned that the province of Quebec has an open registry. They have exactly the same kind of registry that we're proposing here tonight: an active registry. The provisions provided in the particular legislation you're talking about are also provided here. If the birth parents have died, the adopted-out child can search for its birth siblings and can find the family. The same provisions are there.

MR. CASHORE: In 13.3(l) (a) it says: "...if a veto does not apply, inquire discreetly to ascertain whether the birth parent or birth sibling wishes to be contacted by the adult adoptee." Is it not true that the veto in this instance de facto returns this into being a passive registry? Where the veto exists, then in actual fact doesn't it become a passive registry?

HON. MR. JACOBSEN: Yes, I guess you could say that, but there is a very big difference. There is certainly no contact made if the veto is in place. The person has an opportunity to make the request for the contact, and they are told that yes, there is a veto. They know then that the contact has been made, so it's not as though they don't have an opportunity to trace the family. But when a veto is in place, of course, the information will not be given out.

However, I have not heard very many people — even the ones who debate the benefit of an entirely open registry — who will deny that there's value in the veto process, because it is a highly sensitive, emotional situation, and it's hard to predict every circumstance when you draft legislation. They vary a great deal. So I think there's a need for the veto provision.

MR. CASHORE: I'd like to say to the minister that I'm aware that the issue of the veto is somewhat controversial in that adoptive groups are coming down on both sides of the issue, and I wanted to canvass that with him so that his perspective would be on the record.

It does leave the question that again this is making a decision that an adult is not going to have access to a certain-type of information. When it says that someone will inquire discreetly, it raises the questions of who is going to do that and how it will be done. The minister referred to that in the definitions earlier, but it looks as though there's a great deal of leeway there and that, presumably, there are adults who are quite capable of handling that — being the adults who are seeking the information. We've canvassed this, and it's just a rhetorical question, but it leaves the question: why not just give the information to the person requesting the information in the first place?

Going on to (b), it says: "...if the birth parent or birth sibling wishes to be contacted by the adult adoptee, assist the two to meet or to communicate...."

Again, we have the prospect of two adults who are perhaps going to be meeting. There's a need for someone to act as the go-between in this process; that's the assumption behind this. I'm wondering on the basis of what studies and what data has it been ascertained that that is the best way of going about it. The phrase comes to mind: "The helping hand strikes again." Sometimes the helping hand, because legislation requires it to be there, is really not the most helpful process.

[7:30]

I would just like to mention that my adopted daughter Cecelia registered with Parent Finders of B.C. She tried to go the passive registry route and found that it was hopeless, so she registered with Parent Finders. She phoned me and said: "Dad, I've registered with Parent Finders." I thought that was interesting; we're going to find out something maybe within a year. Two days later she phoned me back and said: "Dad, guess what? They have found my birth mother, and we're going to be meeting tonight." She went on to tell me that they were getting together at this location in the lower mainland. My daughter, her husband and her little boy went out to meet her. That was one story that worked out in a very happy way. I understand that they're not all happy stories. Because she was able to register with this organization that did not require a go-between, these adult people demonstrated that they were perfectly capable, assisted by the computers in the Parent Finders organization, of making that contact. As a result of that contact, it also led to Cecelia reuniting with her birth father, which has all turned out to be very worthwhile. I understand that's not always the case.

It meant that she knew who she looked like. She was finding out some answers to questions that had been with her all of her life. It seemed to be so simple, that within two days.... It turned out that her birth mother had registered in 1980 and had been looking for her all this time. When they met, her birth mother gave her a photograph album she had been saving for her. She gave her some poems she had written for her during those years, hoping that someday they would be reunited.

It concerns me to think that a process, because of the go-between system built into it, could result in it taking so much longer. It seems so unnecessary. Perhaps the minister has the data and can cite the studies that would justify going this route.

I would just like to say that the minister compares B.C. with other provinces. But in a recent article in the Vancouver Sun written by Millie Strom on this topic under the title: "Mother and Child Reunions, " she states: "However, British Columbia's closed records policy turns birth-relative searches into clandestine, tedious and at times expensive affairs. Countries such as England, New Zealand and Australia have opened their records, and others such as Scotland, Israel and Finland never closed their records."

So my question to the minister is: what studies has the minister referred to, or can he relate to the House, that would support the need for having a go-between, as opposed to having two adults be able to effect a

[ Page 12864 ]

reunion themselves by having the information they need?

HON. MR. JACOBSEN: First of all, if we want to get involved in reading articles concerning the legislation, I could read some too. I'm not sure that we want to spend the time of the House doing that, because probably most of us read the articles when they came out in the newspaper anyway. So I'll resist the temptation to read an article that talks about adoptees getting a break in British Columbia.

With regard to the studies we have done, we are putting in place a system to handle the number of requests we will receive. As for anticipating what kind of structure we will need to handle that, we know approximately how many people we can anticipate asking for information at the outset. We also know approximately how many people one worker would be able to handle efficiently through the process. It becomes rather simple, then, to determine what kind of organization we will require in order to facilitate the requests for information.

I am not in any way ruling out that it may be.... We will make whatever adjustments we need, and there are people who can certainly assist us in the process. But I think we have a pretty good idea of what the requirements are going to be.

The other point I would like to make is that.... The question of the veto has been referred to several times by the member who just left the House. It's always referred to in the sense that it somehow provides a bit of a violation for the adoptee getting the information. But I want to tell you that there are circumstances, and there will be circumstances, where the veto will be applied exactly the opposite way: if you give one side of this active registry the right to veto, you presumably give the same right to the other side; otherwise you're beginning to discriminate as to who has what rights. So you would have to provide the right for the adoptee and the birth parent to use the veto.

I can tell you that we fully expect that there will be a number of adoptees who will choose to register a veto. They will say they have had enough; they don't want to go back into their past; they don't want to redo history; they're happy with the people who adopted them; they love their family; as far as they're concerned, they have a mother and dad, and that's as far as they want to go. They will register a veto, and I believe they have a right to do that.

MS. A. HAGEN: I think that the issue that some of us are trying to get at in this discussion about the potential for a reunion is how it will in fact play out in real life. The member for Maillardville-Coquitlam talked about his adopted daughter, who had been registered in a passive registry for some time. For whatever reason, that had not brought about a reunion — which, registered with another agency, occurred in a couple of days.

We're talking here about people who have been separated from one another for 18 to 20 years in most instances — a long time. The information that we might have if we imagine this situation where an adoptee is looking for birth parents.... The records that the ministry has about birth parents are very old. They may be records of a person whose name is not the same, and certainly the likelihood of an address being the same is very remote indeed.

What kind of resources does the ministry see having in place to be active in a search? If we're talking about an active registry, there is implicit some commitment on the part of the ministry to go looking. We know that the nature of that looking is a sleuthing kind of exercise for the many people who have been actively involved in trying to find either adoptive parents or birth parents.

It's an exponential kind of thing when you think about it. The minister talks about having figured out how many staff they need in order to accommodate the kinds of requests that we're thinking about. But you know, adoptions run across a wide range in terms of where people have moved. I wonder if the ministry is prepared to make clear what resources they are prepared to put into the search. Is it a token search where they will go looking, and if it's a dead end, nothing more happens? The adoptee or the birth parent is left high and dry at this stage of the game, because they don't have that information without an intermediary who is going to act on their behalf.

That is one of the things that we're struggling with, supportive of the legislation as we are. We've got a bureaucratic process here that may grind to a very quick halt, because the very nature of the task that the bureaucracy is taking on almost defies the usual processes of bureaucracy, which is that they have a lot of work to do and that it's hard to get through it all. This doesn't fit into that usual kind of clear methodology unless you are going to make a commitment to make that search a really active sleuth-like research that requires a lot of intuition and putting together of bits and pieces to be the effective intermediary to bring these people together.

Can the minister give us some idea of what commitment he expects his staff to make toward actually bringing about a contact between the two parties?

HON. MR. JACOBSEN: We have clearly in mind the type of staffing and the system that we would bring together. We recognize the extent of the effort that's required in order to bring some of the searches to fruition. We start off with the ministry having files on people who have been adopted out, and so we have the benefit of that. But it's not always easy. I was touched when I heard the member for Maillardville-Coquitlam talking about how quickly it worked in the case of his daughter. It's beautiful when they end like that; it happens so easily. But they don't all happen that way, and it can be a very extended period of time before you actually make contact. We're preparing for that. I'm not sure just what we'll do. Other provinces have regulations that say that they will search up to six months to try and find the person they're looking for. In some jurisdictions they found that the average search may take as much as two months to bring to a conclusion. We're aware that it is not a simple process to find a missing relative.

[ Page 12865 ]

On the question of the passive registry, I recognize that it did not work very well. There were some contacts made, but there were far too many people who requested information who were unable to get it. It didn't really fulfil the purpose we wanted. That's the reason we brought this forward tonight.

We have a pretty clear view of what's required, and it's our intention to put that in place. We may very well get the assistance of other people who have some expertise in this particular area that would assist in the process.

[7:45]

MR. BARNES: I'm sorry I missed the second reading last night, Mr. Chairman. This is a fascinating debate and one of the most touching and penetrating I've heard over the years I've been in this Legislature. It's clearly a very sensitive subject, because it involves the feelings of so many parties. Not knowing what those feelings are and not wanting to assume to know what all the concerns are, we try to create a piece of legislation that will assist whatever those circumstances may be from one individual situation to the other.

It's really quite a challenge. I can see this is an evolving process. Obviously, we're still proceeding, as I've gleaned from the debates, from passive to a more outreach or aggressive approach to bring together those parties who may wish to link up with their past.

It should be pointed out as well that people do mature and go through changes, as long as we can keep recognizing there are probably mixed emotions of how people feel about the issue from time to time. I just want to be on record as having been here listening to this rather historic occasion, but not as an expert.

For instance, when we think of the efforts of Alex Haley when he was searching for his roots.... We all remember how the expression "roots" got started: it was his burning passion to find out where he came from. I suspect everybody has this to one degree or another, but depending on circumstances within the reality of their situation, they may or may not want to do very much about it. What the legislation is attempting to do is help those who would like to reach out, but at the same time try and protect those people who may not be quite ready.

I just want to commend the minister. Although my colleagues have been argumentative from point to point, I know they have generally agreed that this is a step in the right direction.

I had a phone call from a constituent who asked about this legislation. I was away last night and was unable to be here for second reading. He said: "My daughter is champing at the bit to find out whether this legislation will permit me to search and see if my parents are alive." This is a 62-year-old man who says that he would like to be able to satisfy his daughter's desire to know more about her roots, her past. He said: "What's going to happen if my parents are dead when I start doing my search?" I said that I wasn't sure but I would check the legislation and see what the options are. I see you've covered his concerns with respect to siblings and other close relatives in the family who may have been around at the time and that there is some flexibility to it. I'm going to send him a copy of the bill. I think he'll consider it a very exciting period.

I am not going to say much more than that from a critical point of view. I just want to say that I think this is a very special time in the Legislature with what we're attempting to do. I just listened to the comments by members on both sides of the House. I'm sure that the people out there in the audience who may be watching this — probably not that many — whoever they may be or wherever they may be, are fascinated by how complicated something like this can be. Obviously there are a lot of details involved, and when you stop to think about them, they really take a lot of thinking, because it's not a simple thing that we're attempting to do, that this legislation is attempting to address. [Applause.]

HON. MR. JACOBSEN: Mr. Chairman, I'm tempted to applaud too. The remarks made by the second member for Vancouver Centre I know were made with a great deal of sincerity. I think it's a discussion that more properly belongs with the second reading, although that member was not here last night when second reading took place. I'm pleased and happy that he made the comments he did, because it shows a great deal of sensitivity on his part. It's not the first time he's shown that. He has stood up in this House many times to defend the rights of those whose rights need defending, so it's not new for him. I thank the member for that.

I have to ask your cooperation now, Mr. Chairman. One of the concerns I have is that we are beginning to lose track of what section we're on. We should get back to sections so that we can find our way through. Otherwise we will spend the rest of the evening telling one another how good this legislation is. We want to get it passed so that we not only express sympathy for the people that are going to benefit from it but we also do something to help them. So if we can move it along.

MS. MARZARI: I wanted to ask a question here regarding 13.3(5): "The superintendent need only inquire under this section to locate a birth father if information on file with the superintendent indicates that the birth father acknowledged his paternity of the adult adoptee." This clause seems to say we're going to contact the siblings, whether or not their names are on a birth registry or on an adoption document. We're going to contact the mother, because obviously her name is on birth papers or on adoption papers. But section 5 seems to make an automatic assumption about the birth father. If the birth father's name is not on those original papers, whether it be a birth certificate or whatever, the superintendent seems to have the option of being able to say we won't bother pursuing the father. We're going to make the assumption right off the bat that the father does not want to be contacted, or because he did not acknowledge his paternity at the very beginning, that he doesn't have any obligation or paternity at all.

I say this because it's quite possible that the birth father may well want to be approached, might have

[ Page 12866 ]

changed his mind since that signature was not signed 20 years ago. It may be, on the other hand, that the father doesn't even know about the existence of a child. That's entirely possible too.

But what I'm asking is: why set up this particular clause which excludes the father by giving the superintendent the right or the ability not to pursue the birth father if he wasn't acknowledged on those original documents?

HON. MR. JACOBSEN: The purpose of this Section is to make this consistent with the other sections of the Adoption Act, which does define who is legally recognized by the courts as the father. It does not prevent people from searching for their father, providing that their father is identified.

The other question that you ask is: supposing that he wishes to be contacted? If he comes forward and acknowledges that he is the father of a child and would want to contact him, we will search for him.

MR. CASHORE: I think that was a very important point. Say someone is a twin and the twin sibling had been adopted by a different family. It may be that the one twin would be a sibling who wanted information that might not otherwise be available. So I think that we get into a lot of intricacies when we start thinking of the interests that other siblings have besides the one who is making the application.

I just want to make one point in conclusion, Mr. Chairman, moving on to section 13.4, veto. This deals with compelling medical need that would be a reason for information being made available.

HON. MR. FRASER: On a point of order, Mr. Chairman. With respect to the sensitivity of this particular issue, we are in committee, and we should be doing it clause by clause. It strikes me that we're not on section 4. We're on section 5.

MR. CHAIRMAN: We're on section 2, but it has a number of different numbers.

HON. MR. FRASER: Where are you? All over the place.

MR. CASHORE: It's my understanding under the rules of the House that when you're on section 2, you could be anywhere in section 2, but we've chosen to follow this sequentially with the subsections. So we're in the last section of section 2, which is 13.4 under section 2. That's where we are. Okay?

This is dealing with veto and the compelling medical need that could result in this decision being made to give access to certain information. The point I want to make is: who decides? What gives perhaps a medical practitioner or some other professional a greater authority to decide what the medical need is, than the individual himself or herself? It might not need to be medical records that are contained within a doctor's office; it might just be that the person needs to have access to information of a much more general scope that could be provided by family members. It would seem that those people, by virtue of being people who through circumstance have been adopted, would be denied that particular scope.

I want to conclude now, because I have no other points. I want to express my appreciation to the minister for the way in which he has responded to the points on this bill. I've very pleased that the bill did not slip through in a few moments. I think that the debate in the House has reflected the fact that on both sides of the House there is respect for this bill. It's been extremely important that we canvass some of these issues, because, as the minister said in his opening remarks, we could very well be considering the next stage. I think that while this is about to become legislation, we have to be thinking about the new direction we might take, given what we are learning.

HON. MR. JACOBSEN: I just want to assure the member that the medical information you asked about is provided under the legislation. It is not particularly or closely limited medical information. In fact, some of the information that you suggested should be available is available today under the passive registry and will continue to be available here.

Having said that, and in response to the final comments of the member, I too am pleased that we have taken some time to debate this legislation. I guess it's natural for any minister who brings a bill to this House to feel that there's an importance to the bill and that there's something worthwhile about the legislation.

I happen to feel particularly strongly about this one, not because it was brought in here by me and my staff — who have worked very hard on bringing it to this point — but because I think it benefits a lot of people who deserve to be recognized and have their needs recognized. It's with pleasure that I've brought it forward. I thank the members of the opposition for the good input that they have given in this instance. I think good and honest dialogue has taken place back and forth.

[8:00]

Sections 2 to 5 inclusive approved.

Title approved.

HON. MR. RICHMOND: Mr. Chairman, I move that the committee rise and report the bill complete without amendment.

Motion approved.

The House resumed; Mr. Speaker in the chair.

Bill 11, Adoption Amendment Act, 1991, reported complete without amendment.

MR. SPEAKER: When shall the bill be read a third time?

HON. MR. RICHMOND: With leave of the House, now, Mr. Speaker.

[ Page 12867 ]

Leave granted.

Bill 11, Adoption Amendment Act, 1991, read a third time and passed.

HON. MR. RICHMOND: I call second reading of Bill 6, Mr. Speaker.

PENSION BENEFITS STANDARDS ACT

HON. MR. RABBITT: In introducing second reading, I would first like to express my sincere appreciation to the government and my personal thanks to the 31 individuals and organizations who submitted comments on Bill 44 and to those who responded to Bill 89. I particularly wish to thank Prof. Emeritus Robert M. Clark for his very comprehensive and thoughtful brief. Professor Clark retired from UBC faculty as a well known pension expert.

The total number of Canadians covered by pension plans rose from about 2.3 million in 1965 to 4.5 million in 1980. Since 1980, pension coverage has been declining, both in absolute numbers and in the proportion of paid workers who are plan members.

There are 45,000 fewer pension plan members in British Columbia now than there were in 1980. This is despite a substantial increase in the number of paid workers. It is important, therefore, to take a very close look at the impact of regulation on the employment pension system.

It seems that some governments are making it difficult for employers to establish pension plans for workers. There have been extensive changes made to the federal Income Tax Act. Along with those changes, complex and costly new pension standards have been introduced or proposed in some other jurisdictions. This appears to be discouraging new pension plans.

The main impact of this increased regulatory burden has fallen on the sponsors of defined benefit plans, which cover a large majority of the members of medium- and larger-sized plans. Some employers have opted to discontinue their plans. Others have changed to define contribution pensions or group RRSP arrangements. I note that our government has taken notice of these trends.

The major provisions of Bill 6, such as eligibility conditions to join a pension plan, survivor benefits, portability, locking-in and minimum employer contributions, all remain virtually unchanged from Bill 44. Many of these provisions are uniform with pension standards in other jurisdictions.

To date there has been very favourable reaction to the proposed pension benefits standards advisory council. The government intends that the council will include broad representation from plan members, retired workers, employers, labour organizations and pension professionals. A number of organizations have volunteered to be represented on that advisory council.

We have built in clear safeguards on the type of information that may be disclosed under this section. Personal data on an individual will not be disclosed.

Also, confidential financial statements for privately owned companies will not be disclosed.

The bill begins with a vesting rule of five years of continuous service. Continuous service by an employee prior to January 1, 1993, will count in meeting this requirement. In 1998 this vesting rule changes to two years' continuous plan membership. This is both sound and responsible.

Five-year vesting will cost some plans substantial amounts, including public sector plans. Pension sponsors will have an extended period to plan for two-year vesting. Appeals on decisions of the superintendent of pensions will be heard by a commercial appeals commission instead of in the courts. The commercial appeals commission will provide a fair, fast and less costly appeal.

While our goal is to minimize regulation, you will note that we have added a provision to allow the minister to suspend or replace a plan administrator where circumstances warrant. It is expected that this power would be used only in extreme cases, where a plan is in deep trouble.

Announcement of the moratorium on surplus withdrawal and an arbitration process to deal with disputes among the parties has attracted some attention. There have been a number of long, bitter and costly court battles over pension surplus in other jurisdictions. An arbitration model allows the parties to set up a procedure to select a neutral third party to resolve such issues. The introduction of an arbitration procedure demonstrates the government's intent to stay out of the surplus questions. The arbitration alternative provides an appropriate mechanism to decide contentious issues. Members will also note that there have been a number of changes in Bill 6 to the moratorium with respect to contribution holidays.

With regard to the board representation on multiemployer plans, there is a requirement for at least an equal number of member representatives on the boards of trustees of multi-employer plans. But this does not apply to all plans. Two points: first, every administrator is also bound by the Trustee Act; and second, many plans have no employee contributions. I anticipate that the advisory council may wish to provide guidance on other complex issues relating to multi-employer plans.

The issue of guaranteeing pension benefits in whole or in part was raised and considered. As far as we know, pension plan members in this province have been receiving their benefits. Our advice from actuarial professionals is that most pension plans in B.C. appear to be financially sound. There is always the possibility that in the future some plans may be unable to meet their obligations; therefore, I will ask the advice of the advisory council on the issue of a guaranteed fund.

A number of submissions objected to the exclusion of designated public sector pension plans from two of the act's requirements. Administration of the act and pension branch will be self-financing through registration and annual fees levied on pension plans based on the number of plan members.

[ Page 12868 ]

I believe this to be good legislation that will serve British Columbians for many years, and I look forward to the debate. I move second reading of the bill.

MR. ROSE: I, too, look forward to the debate. I'd like to tell the minister that this bill — I guess the first that he's stick handled through the House — will probably remain indelibly impressed on his memory for the rest of his life. I'd also like to tell him that we have no intention of giving him a rough ride here; only a moderate one when we get into committee, because that's really the place to examine the warts and the beauty of this particular piece of legislation. We'll get down to the heavy breathing when we get into committee stage, because there are some serious imperfections in the bill.

The minister is a perfect example of an understatement when he talks about the controversy over surplus funds and why the government would prefer to stay out of those controversies. I don't blame him a bit, but it tends to be ducking the issue not to have a much firmer grasp and legislative mechanisms to deal with this. It's really a cop-out. I'm sorry to say this, but.... I remember when the former leader of the NDP, David Lewis, had something particularly vicious to say, he would always preface it by saying: "Mr. Speaker, it pains me to say this; however...." That's when the zinger came. I'm not going to unleash the zinger right now, but there are some serious imperfections in this legislation.

I like the idea of the broadly based council involving the experts in the pension field, employers and employees. Pensions are really deferred wages, and those people who are about to receive those wages upon retirement should have a much greater say in the disposition of those contributions to pensioners, the investment practices and all those sort of things, because it is their money.

You start your bill — and this is a major imperfection in the bill, as I see it — based on the assumption that goes back perhaps 100 or 200 years that pensions are the generous contribution of a beneficent employer or a charity. It's time we got away from that attitude and looked upon pensions as a right and the fact that they are deferred wages, and therefore much more control should go to those people in investment and other matters on the board, because it's their money.

Ann Finlayson of Maclean's magazine began to look into her pension plan. I know exhibits are not really welcome here, but she wrote a book called Whose Money Is It, Anyway?, and anybody who is interested in pension plans and the controversy surrounding them would be very wise to have at least a glance at Ann Finlayson's work.

Pensions really are full of jargon: commuted value, vesting, contribution holiday, surpluses and all these things. It's really guaranteed — to those of you out there in videoland — early to bed on this issue.... It tends to be quite complicated, and a lot of people think they're never going to need a pension — young people especially. They think they're going to live forever, and therefore they're not concerned about that.

I find that even people who should be concerned about it don't really take a very close look at it. I don't blame them for that, because it can be a very complex mind-boggling maze, and we haven't been encouraged to look at it. The people who have been in charge of pension funds — insurance, annuity and trust companies — don't want the average person to know too much about pension plans, because if they control the billions that are in pension plans, the funding and the investments, then why should anybody want to know about it? Why would the poor schnook who happens to be a contributor be interested in that? They'll look after it for him. It's an elitist, patronizing approach.

The minister of higher education, then the Minister of Health, might recall my speech on this subject two years ago. I haven't given it many times, but it's one of my favourites. I introduced a private member's bill, Bill M234, An Act to Reduce Poverty in Old Age. No one implied...the former Minister of Health over there and hopefully not to myself either. Nevertheless, it's really quite important.

[8:15]

The minister made some comments about the number of people not covered by pensions. He states that we find a declining number of people covered by pensions. I didn't know that, and I'm sorry to hear it. So I guess it is about time to regulate. But he also intimated that because we have regulations in other provinces, some people have gotten out of the pension business. I don't approve of that at all.

Anyway, I put forward this bill two years ago. I'm really glad to be emulated finally by the government in the lead I took two years ago on this subject.

I don't know if the minister knows this, because he cited some other figures. In B.C. there are 600,000 people covered by pension plans. But there are a million dependent on just the basic federal necessities, plus some provincial ones such as the old age pension, the guaranteed income supplement and GAIN, which is provincial legislation. What does that really mean in this country? A million people are vulnerable to poverty in old age. It's a very serious matter. Across Canada there are approximately 2,500,000 people older than 65, and there are going to be more of them. Of those people, well over 50 percent — roughly 60 percent — not only get the old age pension, which everybody does, but they also get the supplement. How do you qualify for the supplement? It means you're broke. In order to get the supplement or parts of it, you have to be practically destitute. And that's the state of the elderly in this country, in spite of all the efforts of Knowles, Woodsworth and other saints of the past in the CCF and the Independent Labour Party — and of other people interested in this sort of thing. We have no monopoly on righteousness. Sometimes I think we have a monopoly on self-righteousness, but I don't think even that's true. But people in other parties have been concerned about that.

The important point is that most people over 65 in this country are broke, because they qualify for the supplement.

I've got a note here. I don't know what it says, because I can't read the writing. I think it was written

[ Page 12869 ]

by an illiterate, but I don't know who he is. Oh, the Attorney-General — I see. But in case I got his message here, I'd like to say that I'm designated speaker and that if I need more time....

Interjection.

MR. ROSE: All right. If I can manage that, I will. I have a great deal to say about this bill tonight, and I intend to say it.

Public service pensions are generally adequate in this country — the superannuation people. But a lot of the private people are not covered at all, and I just gave you the numbers. Less than half of the total number are covered by any kind of plan. The other thing is that most of the elderly people who receive pensions or government pensions, such as the old age pension, are women. So most elderly women in this country are broke — because if they weren't broke, they couldn't be eligible for all these other things like supplements and GAIN.

I don't think that's necessary. I think what we need is a pension plan for everybody. We've got a Pension Benefits Standards Act being introduced here tonight. What am I going to say? Am I going to make the usual speech: "It's too little and too late"? The fact is that we are the only province across Canada without one. That progressive province of Alberta has had theirs since 1967. How long ago was that? A generation. Guess when it came in in Ontario. In '63. Little Prince Edward Island adopted one most recently, and now here we are: leaders again. We're the rear admirals of the pension schemes across Canada. That's what we are.

Anyway, I'd like to see the pension plans democratized. I don't think they should be controlled just by the employers, and I'll go into that a little later. I think we need a superannuation commissioner to set up a plan for British Columbians and not this nonsense that we got through the mail the other day from the Minister of Women's Programs and Government Services. This came out to everybody at government expense as if we had this thing for everybody. We don't have it at all. It might have been introduced, but certainly it's never been debated. So it's a fraud. I think this thing should have been brought up under truth in advertising. We've probably got a case here. There's a federal law about truth in advertising.

We don't have a comprehensive pension plan in this province. One has been announced — and I guess it's the old political adage of "never spoil a good promise by acting on it." But that's just nonsense.

This is the grandson of Bill 44, the son of Bill 89, and now in its new and appealing wrapping it comes out as Bill 6. We're pleased to see it again even though it has come out of the cocoon about three or four times. But we might make this, or we might not. This might be something that we're going to proclaim, or it may die But it won't affect the advertising during the election one iota. It will be saying, "We introduced this," like we did in the prorogation address by His Excellency the Lieutenant-Governor. "We introduced this pension plan for everybody. We introduced the Pension Benefits Standards Act." They didn't say: "Well, it hasn't really been proclaimed, of course. But we introduced it." That's true; they introduced it.

So I think we should give the government good credit for good intentions. Why are we seeing this now? We saw Bill 44; we saw Bill 89; and now we see Bill 6. Why now, oh Lord? Well, the "why now" is that around the corner there's an election. We don't know how far that corner is, but we know that if you want to have a corner on policy, then the thing to do is bring out all these goodies just before an election. That's why we've got it now. We've been calling for this bill for many years. It's been in Ontario since '63 — standards for private pensions so that contributors are protected. I think it's a very important bill.

This wimps out on a good many good points, and I'll try to cover them in a little while. Mr. Speaker, we're going to support this bill — with all its warts. But I'd like everybody to know that we think it has serious deficiencies.

I talked about my bill a little while ago and the difference between what I have proposed and what ends up in this bill. One in five elderly in this country lives below the poverty line, so pension standards are needed. Just to relate back to the bill, Mr. Speaker, in the event....

MR. SPEAKER: Well, since you brought the subject up, I would remind members who wish to discuss these things that the Chair has taken the liberty of perusing the bill. You have talked at great lengths about whether or not proclamation will be brought into place, and there is no proclamation Section in this bill. Of course I would only have known that from having spent so many years in the Chair and knowing how to read these. But it was out of order, I guess, to discuss something that's not in the bill. The member continues — on this bill, not on the other one.

MR. ROSE: What I would like to do, Mr. Speaker, without trespassing on your very genial nature and your refined gentility — being in the sugar business for many years — is explain that we have pensions because people who can no longer earn their living need to have an income. I consider the income of a pension as deferred earnings, and I also think that it's a method by which we could prevent poverty in old age.

The rules by which pension plans are governed in this province are extremely important, in my view. I think we can reduce the cost by having proper pension legislation providing comprehensive pensions such as the ones described here but not produced — and this is not the debate for that; there will be other times for that. I think we can cut down on the cost to the public treasury. So I think it's extremely important not only from a social point of view but also from an economic point of view.

Let me tell you what the imperfections are in this particular pension plan. The pension plan that I called for calls for the participation by workers less than full-time on a pro-rated basis. Does this plan do that? Yes, it does, but it requires 35 percent. Some of the people who work in Woodward's or any of the large stores as part-time workers, or even in the smaller

[ Page 12870 ]

stores, do not work 35 percent of a month. Therefore they will not be participants in this; therefore the poorest members of our society do not and cannot belong to this because they can't make the contributions if their service is less than 35 percent. I think that would be worth looking at.

I think it's consistent, though, with the Ontario legislation brought in a number of years ago. They had a royal commission on this whole pension thing about four or five years ago under the Peterson government — it may have been under the Davis government; I'm not certain. But that's where the 35 percent figure came from, in my view. I don't think that necessarily gives the poorest of the working poor in our country the protection I was talking about when it comes time for them to retire. That's point one.

My pension proposal calls for portability of contributions without penalty from one plan to another on change of employment, at the employee's option. Does this plan measure up to this? Partially but not fully, I'm sorry to say. It's possible but it's not guaranteed. There are some things that we could talk about when we get to committee stage.

Point three: vesting after two years. Provincial superannuation has vesting after two years. In the case of the MLA’s pension, it has vesting after seven years. This calls, at the moment, for vesting after five years, going to two years in 1998. But a provincial superannuation.... The minister particularly mentioned the public pension schemes. Provincial superannuation is the biggest one in this. It covers municipal people; it covers people who work here and people who work in our constituency offices. It seems to me that it's not too much to ask to have earlier vesting.

What does vesting mean, to those people who are not familiar with the jargon? It means that both the employer's contribution and the employee's contribution become the property of the employee after two years. That's basically what it means. I think to wait until 1998 for this is hardly the most progressive move I've ever heard in my life.

We all know what happens to our incomes through inflation. In our lives, both the federal old age pension and the GIS are indexed to inflation. If you don't index, within ten years — according to the inflation we've had — it's cut in half. Without indexing, your plans certainly lose their value over the years, if the history of the last five or ten or 20 years means anything at all. So indexing, or at least partial indexing, should be a feature of these plans. I know there are certain costs associated with that, but there are also certain social costs for people who think they've got adequate pensions, and then their last breath and their last cent run out at the same time, because their pension is increasingly inadequate as they get older. I don't think that's a very good feature. Indexing is something that my plan called for, but this plan does not call for, and we're concerned about that.

"Participants...to determine the investment policies and govern the day-to-day operations of the plan on an equal basis with the employer, or completely control the investment policies of the plan."

What does this say? This follows from the assumption that a pension plan is really deferred wages. If I get deferred wages, should I not have a real voice in how my deferred wages are invested? That's the background of that. That's what's behind this. That's what I called for, and that's not what this plan calls for, I'm sorry to say. You could do it. I'm not saying it's not possible under this plan; I'm not making that charge at all. But I am saying that it does not require it, and I think that's important.

[8:30]

Let me go to another thing that my plan called for that I don't see in this plan. My plan called for prohibiting contribution holidays for employers. Most people know that the employer deducts the pension portion from the cheque of an employee. In the case of any company or corporation — Seagram, Air Canada, it doesn't really matter — they don't in turn put aside an equivalent amount of their portion in some kind of bag, or bury it in the back yard in a tobacco can; they don't do that at all. It's a credit. When they look down the road and they see what they've got in the plan, and their bookkeeping of that money, they say: "Oh, my God, we've got all kinds of extra money to cover our obligations. Therefore we're going to have a contribution holiday" Guess for whom. For the employees? Of course not. They're going to have a contribution holiday for themselves. There are many examples of this happening.

It seems to me that if you've got a contribution holiday, it should be the contributions of the employees and the employer, in consultation with the employee. What other options are there? Well, the option is: instead of taking a contribution holiday, wouldn't it better to increase the benefits? Maybe the employees and the employers could get together and say: "Look, we've got all this extra money. We've got money running out of our collective ears. Let's increase the benefits." Do they say that? Not on your life buoy! They don't do that at all, Mr. Speaker. The most common custom is to take a contribution holiday.

Is that clear, colleague? Because you were asking about that earlier. Mr. Speaker, my colleague was asking about that a little earlier.

This pension plan that you put forward.... What kind of standard is it? It permits contribution holidays. I'm not going to say it's obscene, but it's unacceptable. In this day and age it's unacceptable, and we don't like it one bit. The whole plan is flawed because of it.

"Prohibiting the transfer of alleged surpluses or other funds by the employer from the pension fund to other purposes."

We had the celebrated case of Dominion Stores. You remember our good friend, that good old socialist Conrad Black? He discovered when he bought Dominion Stores that there was a gold-mine in the pension plan.

MR. BARLEE: That's why he bought it.

MR. ROSE: He probably bought it, as my colleague says, just for the purpose of getting his hands on the pension fund. As soon as he got his mitts on the pension fund, he decided it was a surplus. The employees contributed to it all their lives; they worked for Dominion Stores all their lives and gave them their

[ Page 12871 ]

blood, sweat and tears in loyalty. And who wanted to scoop out $60 million? None other than our good friend and socialist benefactor, Conrad Black. Dominion Stores employees went to court over that, and they won.

A local example: a little while ago under the madness of privatization, we had the sale of the Bank of British Columbia to the Hongkong Bank. Guess what the purchasers from Hong Kong wanted to do. They wanted to scoop off $25 million of surplus funds out of the pension plan.

Now, if you've got surplus funds, one of two things should happen: either cut the premiums or increase the benefits. Because those are deferred wages. They don't belong to Conrad Black or the Hong Kong megabuck guy who happens to come in here as an economic immigrant. No, not at all.

You know what? Mr. Speaker, I'm sorry to say this; it pains me to say this. But do you know what? This plan allows it. This plan allows a company to come in with a big scoop shovel, take those surpluses and divert them into other purposes. What's the surplus, and who owns the surplus? Do you think it's the money of the company? No, because theirs is stashed away somewhere in a ledger. It's the money that has been deducted week after week, month after month and year after year from the employees. That's not good enough, and that's another thing wrong with this bill.

It's tied to income. I suggested that we should prohibit the payment of lower benefits based on gender. This should appeal to your feminine heart.

MS. MARZARI: It does indeed.

MR. ROSE: Doesn't that warm the cockles of...?

MR. SPEAKER: Order, please. Please address the Chair.

MR. ROSE: Doesn't that warm the cockles of your generous female heart, Mr. Speaker?

This doesn't prohibit the payment of lower benefits based on gender, and I think that's a bad feature of it too. We all know that the contributions from women are going to be lower, because they don't earn as much. They earn about 60 percent of what men earn, and it's dropping. That's not good enough.

The other thing is that I called for prohibiting the use of pension funds to satisfy the debts of an employer or plan sponsor who becomes bankrupt. Why should the creditors of a particular company that has gone bankrupt be able to attach and bring a judgment against...? I think my legal terms are probably a little inaccurate, and I might be offending the expert at the chair here; but, in all sense, why should somebody who happens to be a creditor of a company that's gone belly up be able to attach deferred wages? That's nonsense, and this plan does not prevent that.

Another thing I could talk about is definition of spouse. After two years, you've no longer got a spouse. If your wife or spouse leaves you, after two years they're no longer a spouse — no responsibility at all for that person. In our own plan of superannuation for MLAs, you can't even get a pension without your spouse's signature on that particular pension which provides for survivor benefits. I think that's reasonable. To eliminate a spouse, blot out a spouse after two years — I don't think it's human or civilized in terms of our particular culture and society.

Those are the main things. I could talk about this for much longer. I just hope it is proclaimed. I hope it's not a show-and-tell kind of bill, like this thing — now you see it and now you don't. You think you've got it and then you haven't. I would like to make sure that what we pass after all these years.... We're going to pass it. There's an old adage sometimes in politics: in the Legislature you speak against it and then vote for it. I don't like that particularly, but I think it's better than nothing. We haven't had any, so anything is going to be an improvement.

I just want to say that the biggest disappointments to me are these. Make mandatory the provisions of pensions either through a plan established under this act or through contributions to the B.C. pension plan. Nobody, in my view, should be left uncovered. Establish that pension funds belong primarily to the employees. I'm going to speak about that in just a moment. Provide for indexing. Impose permanent prohibition on the transfer of surplus assets. Disputing the transfer under section 62 is not effective if the assets have been spent trying to prop up a company that's gone bankrupt — which the company can do without reference to the employee. I think that's an important thing. The moratorium on contribution holidays has been moved ahead, which gives them more time to scoop out the money. I don't like that. I don't know what pressure the minister has come under to allow that particular stunt to proceed, but it's not acceptable to this side of the House.

In conclusion.... This is about the time I usually get the applause. [Applause]. Thank you very much. I think what's wrong with the plan is that it's based on a flawed assumption. The flawed assumption is the failure to declare that pensions are really deferred wages and therefore the property of the workers. This is what's wrong with the thing. It looks the wrong way. It's the top-down, ass-backward kind of approach to this kind of legislation which is archaic — almost colonial. If we're going to bring in a plan for 1991, I think it should be a little bit more contemporary than it is.

Wages deferred are the property of the workers; they're not some charity extended by some employer who happens to be particularly generous, even though they contribute completely to the plan. They do that to retain valued employees. I don't object to that; nevertheless, in my view, that's part of the employees' wage package, whether they pay it or not. If you do not believe what I've talked about as being deferred wages but believe it's some gift or charity, the composition of the board becomes quite different. The investment decisions are left to people other than those whose wages we're talking about. What happens to the surpluses? Do they reduce the benefits? Yes. Do they

[ Page 12872 ]

reduce the premiums? They could. And increase the benefits? Yes. The whole idea of a moratorium on scooping these things out would be quite different if the attitude was that these were really deferred wages and not a charity, not belonging to the employer or not even shared with the employer.

Indexing would be quite different, because people have a right to have their deferred wages invested in recession- or inflation-proof surroundings, whatever those are. You can probably do that better through investment decisions rather than putting them in the bank. You might as well put it in a garbage can and bury it in the back yard as put that kind of stuff in the bank. Indexing and investing.

Mr. Speaker, these are our general views on the plan. We're glad it's here. I don't think we can equivocate on that. We're going to be making some amendments. I hope, like some ministers.... In the eight and a half years that I've tottered around here, I've seen relatively few on that side — the former Attorney-General Brian Smith was one — who had enough security of person and were willing and able to accept reasonable amendments to this. Not reasoned amendments — we've been through that once already, and I would rather not have that experience again.

I hope the minister will be equally open, because we won't be throwing him any curves. We've put on the table tonight — at least I hope I have — most of the things that concern us about the bill, and there's little more that we can say about that. My colleague is going to speak on it. We don't intend to hold it up unduly, but we certainly want to give it more than a cursory examination.

MS. MARZARI: To add to some of the comments my colleague has put forward is almost redundant at this point, because I think he's covered the bill exceedingly well. But I must put forward and repeat some of the points he has made. I'm hoping that the government might see fit to seriously consider some of the amendments which we will be putting forward tomorrow.

I would also ask that the minister involve Dr. Robert Clark in looking at some of the amendments we might be putting forward, because it seems to me that someone of Dr. Clark's stature would have a lot of input or should have a lot to say about these amendments. If he has contributed to the formation or writing of this bill or has submitted a brief on this bill, I think he would be equally interested in seeing some of the amendments and might have something to say.

It's quite apparent from reading Ann Finlayson's book called Whose Money Is It, Anyway? that pension schemes in Canada have become regarded by the corporate sector as an investment for them. In fact, there are a number of ways corporations and employers have found to skim off the pension plans. It's not surprising, because pension plans have not been properly regulated in this country. Now that other provinces are coming on stream, it behooves British Columbia to be there and come up with decent pension standards.

[8:45]

According to Ann Finlayson, in 1986 the 20 largest plans in the country had total assets of $47 billion, with 16 of the plans reporting assets of more than $1 billion each. All of the plans boasted substantial surpluses — once again that word — and all of their sponsoring companies insisted that the surpluses belonged to them: the employers and the companies. Many employers have used their windfalls to beef up their plans, and some have passed along extra money to their pensioners — although not many, according to Miss Finlayson.

Here's another quote: "The only 'good' pension is one that retains its purchasing power after you retire. More than 90 percent of all private sector pension plans in Canada have no inflation protection at all."

Many corporations still regard the pension plan as a gift to them and not as deferred earnings of their employees. If we are to do anything with our pension standards legislation, it should be to curtail the assumption that pension plans are there for the employer and not the employee.

For employers, one of the two most favoured vehicles for skimming the plan is the contribution holiday. I gather what happens in a contribution holiday is that the employer ascertains that there is a so-called surplus and then calls off further contributions. The employer and the employees don't put contributions into the plan. That saves the employer money — to the detriment of the employee. The other technique of skimming a plan is basically to absorb the surplus — to withdraw it and spend it by investing it back into the company or walking away with it.

As my colleague has pointed out, the whole assumption rests on the notion that there is such a thing as a surplus in a pension plan. And if you can swallow that notion, then it's game over. In the opinion on this side of the House, there is no such thing as a surplus. Any money made by the pension plan, whether or not the actuarial tables tell you that it should be absorbed one way or the other, belongs to the employees and should be distributed among the employees by an enriched pension plan.

So when we read sections 43 and 78 of this pension document, when we read that in section 43 there's a contribution holiday coming down the pipe for employers, which can happen when the plan has a surplus, when we read in another section — section 2, I believe — that the superintendent can have some role in determining whether or not a plan has a surplus, and when we read in section 78 that there is an ability to withdraw or pay out a surplus, we have to ask the question: what is this pension standards document for? Who is it serving? Is it serving the employees who are demanding some pension standards? Or is it basically serving the interests of employers and corporations who want an extra document, a superintendent, a piece of standardization that is actually going to legalize what they have been doing already?

The moratorium itself, as spelt out in section 78, has been postponed three times. On this side of the House, when we go into committee stage, we have to ask: why has it been postponed? And more important, why does this bill allow for a window from January 1, 1993, until

[ Page 12873 ]

March 1, 1993, for employers to come forward to the superintendent and ask for surpluses to be declared surplus so that they can be withdrawn? You're leaving a three-month window, as far as I can read this bill, for employers basically to come in and skim off the top.

Those are two basic concerns here: the skimming and the contribution holidays. The moratorium is not enough of a guarantee that this skimming is not going to take place.

I add to that section 3, the advisory committee, which is supposed to be advising the minister. The advisory committee lacks certain functions and certain powers that I would hope we should be able to see in a pension board. In fact, it might be more advisable to take the advisory committee out of this bill altogether and create a pension commission, which would sit as an administrative tribunal and actively be involved in advising and working on and regulating pensions. Such a commission could report to the Legislature and hold meetings and hearings for updating and changing the act itself. It would be a public body and accountable to the public.

Under section 2, when we describe the role of superintendent, there are certain involvements of the minister, Mr. Speaker, which I don't think this side of the House takes lightly or would ratify or condone. We have the minister able to involve himself or herself directly in major decisions around definitions of surpluses and around the administration of this act. If anything, we should be setting up a regulatory body which is at arm's length from the actual business of regulating the act itself. The superintendent is much too involved and much too interrelated with the minister here in this act.

So there are a number of areas which I hope we can canvass more thoroughly when we get to the committee stage — which suggests to me that we started with the wrong assumptions here. We started with the assumption that there is such a thing as a surplus in a pension fund, and that surplus can be tampered with, can be withdrawn, can turn into a contribution holiday. As I said before, as long as we have those assumptions and carry those assumptions, we're not going to be much further ahead in really protecting employees when they look forward to their retirement.

With those few comments, Mr. Speaker, I hope that I'll have some participation in the committee stage of this bill tomorrow. I would hope that the minister takes some of these comments and perhaps calls Dr. Clark back into the picture to see if we can improve this bill before it's finally ratified.

MR. SPEAKER: Pursuant to standing orders, the House is advised that the minister closes debate.

HON. MR. RABBITT: Mr. Speaker, I certainly enjoyed the comments put forward this evening. To inform the opposition House Leader, I'm very pleased to say that this is my second bill, but I'll still remember it for just as long. Last year I was given the opportunity to bring forward a very important bill which was dealt with in a very satisfactory way and was passed, as I am very hopeful — if we don't have an election call in the next few days — this one will be passed.

On the request for amendments, I would like to suggest that you let me have a look at the amendments as soon as possible. I will not commit myself now to accepting or not accepting them. If the amendments are in tune with the context of the bill and don't substantially change the bill, then certainly we'll have a serious look at them and consider them.

I would like to also suggest that the reason this bill is being brought forward now is that I have made it a priority. I've talked with both my caucus and cabinet colleagues, and they understand that pensions are a priority and having standards and regulations brought into the province is a priority. To the best of my ability, I'm going to see that this becomes law.

There have been a variety of issues raised today, and I was making a series of notes; I was going to endeavour to answer them. But it would be better to deal with the individual subjects specifically when I have my experts in the House, because this is a very intricate bill. It has a lot of very defined sections to it, and I would not want to mislead the opposition House Leader or the critic in any matter relating to the bill. I want to make sure we have a complete and full discussion on this.

Vesting, indexing and contribution holidays are matters that can be addressed. I'm sure some of your concerns will be alleviated. This is a good bill; it's a good act. I'm sure you'll be able to support it with a lot warmer heart than what you may feel this evening.

I would just like to bring one point to clarification with regard to vesting provisions in the public sector. I believe the opposition House Leader said that there was a two-year provision; it's actually a ten-year provision. I just wanted to make that note. On doing that, I would move that the bill now be read a second time.

Motion approved.

Bill 6, Pension Benefits Standards Act, read a second time and referred to a Committee of the Whole House for consideration at the next sitting of the House after today.

HON. MR. RICHMOND: Committee on Bill 2, Mr. Speaker.

LAND TITLE AMENDMENT ACT, 1991

The House in committee on Bill 2; Mr. Pelton in the chair.

On section 1.

MR. ROSE: Well, I would just call for maybe a five-minute adjournment — and I don't think it needs debate. [Laughter.] I don't know how the other side feels about this, but I'm a very sensitive man, and ridicule just cuts me to the quick.

What I'm attempting to do on section 1, which I haven't read recently.... I'm doing my level best here

[ Page 12874 ]

to permit our critic.... The order of this bill was changed. We were going to have the Range Amendment Act, 1991, but our critic was not in the House at the time. I wouldn't want to be accused of throwing him a curve, because Home on the Range over there just told me a little while ago that there was going to be a change in the order. I was so impressed, immersed and fascinated by the speech of my colleague on the pension bill that I forgot to tell him. But he's here now.

MR. SIHOTA: I do appreciate the comments and the great defence of my colleague the opposition House Leader.

Could the minister explain the purpose of section 1?

HON. MR. FRASER: Section I simply states that we're amending it by striking out "transfer of an estate in fee simple" and substituting "transfer of a freehold estate."

[9:00]

Sections 1 to 8 inclusive approved.

Title approved.

HON. MR. FRASER: Mr. Chairman, I move the committee rise and report the bill complete without amendment.

Motion approved.

The House resumed; Mr. Speaker in the chair.

Bill 2, Land Title Amendment Act, 1991, reported complete without amendment, read a third time and passed.

HON. MR. RICHMOND: I call committee on Bill 7, Mr. Speaker.

MISCELLANEOUS STATUTES
AMENDMENT ACT, 1991

The House in committee on Bill 7; Mr. Pelton in the chair.

On section 1.

MR. SIHOTA: I was looking at section 1, and my question to the Attorney-General is: could he advise whether the British Columbia Railway was incorporated in the schedule to Bill 82?

HON. MR. FRASER: Mr. Chairman, I believe it is, but I can confirm it later, if you wish.

MR. SIHOTA: Assuming that that is the case, could the minister please advise as to the reason behind this provision in section 1?

HON. MR. FRASER: Mr. Chairman, the explanation is simply that the Compensation Fairness Act is being substituted for the Compensation Stabilization Act. It seems reasonably straightforward.

MR. SIHOTA: Will the minister confirm that the purpose of this section is to bring into play the provisions of the Compensation Fairness Act as it relates to B.C. Rail?

HON. MR. FRASER: I would be happy to do that, Mr. Chairman.

MR. SIHOTA: The minister having confirmed that, and given that B.C. Rail is already attached to Bill 82 in the schedule, why do you need this amendment?

HON. MR. FRASER: This is simply to avoid any possibility of confusion, Mr. Chairman.

MR. SIHOTA: Mr. Chairman, that doesn't make any sense at all. If that is the position the minister is taking, then why are you not introducing amendments to the Compensation Fairness Act with respect to all the other bodies created by statute?

HON. MR. FRASER: Mr. Chairman, this particular amendment amends the British Columbia Railway Act.

MR. SIHOTA: That's right. The minister says it amends the British Columbia Railway Act. That doesn't answer the question I just put out. I take it that the British Columbia Railway Act creates the B.C. Railway Company, which holds investments in various companies — BCR Properties and B.C. Rail Ltd. Am I correct in that?

HON. MR. FRASER: Yes.

MR. SIHOTA: Mr. Minister, we could get to this awfully quickly if you just answered the question, because you know exactly what I'm trying to get at. If the employees of B.C. Rail are already covered under the provisions of the Compensation Fairness Act, the legislation just introduced some time ago, known as Bill 82, then why do you need this amendment?

HON. MR. FRASER: Mr. Chairman, the British Columbia Railway Act refers to the old act. This is an amendment to make it refer to the new act.

MR. SIHOTA: The British Columbia Railway Act, as the minister says, refers to the Compensation Stabilization Act. That's what the minister is saying. He's also saying that the purpose of this amendment is to substitute the words "Compensation Fairness Act" for the words "Compensation Stabilization Act". The purpose of that change, as I understand it — and as the minister has confirmed — would be to bring the British Columbia Railway Act under the purview of the Compensation Fairness Act. If employees governed under the British Columbia Railway Act — in other words, employees of B.C. Rail — are already covered by Bill 82 by virtue of the schedule, then why do you need to make this change?

[ Page 12875 ]

HON. MR. FRASER: As I mentioned earlier, this is simply done to eliminate any possibility of ambiguity.

MR. SIHOTA: Thank you, Mr. Minister. If it is the case that you wish to eliminate any ambiguity, what is the ambiguity that you are seeking to eliminate? Why would you not introduce, for example, a similar provision with the B.C. Ferries act?

HON. MR. FRASER: It would relate directly to whether or not the B.C. Ferry Act mentions the B.C. compensation act.

MR. SIHOTA: So the minister is saying that the only reason you want to bring in this legislation is that this is the only legislation governing a Crown corporation that makes specific reference to the Compensation Stabilization Act. Is that correct?

HON. MR. FRASER: I'm simply saying that this one does, and that's why we're amending it.

MR. SIHOTA: If the Compensation Fairness Act substitutes in general legislation for the Compensation Stabilization Act, why would you need this amendment? What would be the effect if the House declined to pass this amendment?

HON. MR. FRASER: The amendment would not pass.

MR. SIHOTA: If you want to get into those kinds of games, I guess we'll never get through this stuff. In fairness, Mr. Minister, you are bringing forward to this House an amendment to legislation. Let's be serious for a few minutes. We're serious about this kind of stuff. You can give me the cogent legal effect and we'll get on with it and go through the various bills. If we want to get into that kind of cheek, I guess we'll be here for quite a while.

A simple question. What would happen if the House declined to pass this amendment?

HON. MR. FRASER: Mr. Chairman, let's get this done and get this straight. I'm a man of infinite patience. I have all summer. If that's what you want to do, I can stay here. What I told you already is that this was put in here with the intention of eliminating any possibility of ambiguity. Simple enough.

MR. MILLER: I've been listening with interest to the questions posed and to the answers given. The minister, I think, is being rather glib and appears to be quite deliberately so. The answer that he just gave, I think, is proof of that. I would think it would take no more than a few minutes, if the minister wanted to answer the questions that were put, rather than go through this glib routine. If that's any help to the minister, perhaps he could do it.

I guess the question my colleague had asked is in trying to understand the nature of the amendment, and not getting a forthright answer, he asked it in reverse. What would be the impact if the amendment were not passed? We know, Mr. Minister, that it wouldn't be passed. That's not what we're seeking. What would be the impact if this were not put into legislation?

HON. MR. FRASER: To repeat the answer I've already given: there would be a possibility of ambiguity if this amendment was not passed.

MR. MILLER: What specific ambiguity is the minister referring to?

MR. SIHOTA: Let me ask the minister the question in a different way. Is the advice to the minister such that this amendment is required, because if this amendment does not pass, then Bill 82 will not apply to B.C. Rail employees? Is that the reason? Is that the ambiguity you're seeking to clarify? If that's the case, just say so, and we will deal with the issue.

HON. MR. FRASER: Mr. Chairman, the British Columbia Railway Act refers to the Compensation Stabilization Act, and that act refers to the British Columbia Railway Act. The amendment will simply cross over and say that the railway act now refers to this, and the other one refers to the railway act. How simple can we make it?

MR. SIHOTA: Mr. Minister, you can make it really simple if you just say this is the case. Just confirm that this amendment is required to ensure that the Compensation Fairness Act applies to the employees of B.C. Rail. Is that the reason why? Do you want absolute, total certainty that Bill 82 applies to B.C. Rail, and is that the reason you're bringing forward this legislation? If that's the case, just say so.

HON. MR. FRASER: I repeat: that is my understanding.

MR. SIHOTA: It took, by my calculation, about 12½  minutes to get that out of the minister. Okay. If that is the case, is it also the view of the minister that the purpose of this amendment is to make sure that it also applies to the two subsidiaries owned by the B.C. Rail Company — namely, BCR Properties and B.C. Rail — and their employees?

HON. MR. FRASER: I will bring back an answer to that tomorrow in order to be absolutely certain that we've got it right for you.

MR. SIHOTA: Is the minister saying that he wishes to stand down this section until we get that answer? I'm not clear what he's trying to get at.

MR. CHAIRMAN: Does the minister prefer that we continue on with this section or stand it down and deal with it tomorrow when he can bring forth the answer to the...?

HON. MR. FRASER: Well, whatever the members want is what we will do. I have no problem with it. I've answered a number of questions a number of times. I'm

[ Page 12876 ]

prepared to answer them as long as I have to, obviously. I will repeat the answers over and over again, if that's what I must do. It was deemed to be necessary to have an amendment to make sure that one act reflects and relates to another. That makes some sense, and that's what we're trying to do.

MR. CHAIRMAN: Then it would appear that we will stand down section 1 and proceed to section 2.

On section 2.

MR. SIHOTA: If it might expedite the process, Mr. Chairman, let me deal with sections 2 through 5 by making a general comment at this stage. If I do that, I think the minister will agree, with your indulgence, that we could then proceed right from sections 2 to 5 and resolve that aspect of it fairly quickly.

[9:15]

MR. CHAIRMAN: Is that agreeable to the Attorney-General? Okay.

MR. SIHOTA: Let me just say in a general way that these sections, in my view, are necessary and appropriate and overdue. There is a lot of concern in my mind about the Family Maintenance Enforcement Act and its general provisions. I have no difficulty, on one hand, supporting these amendments, because I think anything that can be done to secure payment of maintenance orders is appropriate. It's certainly one of my pet projects in terms of wanting to see the government proceed with a strong Family Maintenance Enforcement Act. Unfortunately, your act doesn't achieve the objective for which it set out. Although the act is flawed, I think these sections are required. We'll support them, Mr. Chairman.

Sections 2 to 5 inclusive approved.

On section 6.

MR. MILLER: I'm sure I know the answer to this, but I wanted to get the minister on record in terms of extending the moratorium on the issuance of new tree-farm licences — that this would have no impact at all on existing tree-farm licences in their length of term or any other part of the description in the Forest Act.

HON. MR. RICHMOND: That's correct.

Sections 6 to 10 inclusive approved.

On section 11.

MR. SIHOTA: Am I to understand that the intent of this section is to amend the Industrial Relations Act in consequence of the introduction of the Compensation Fairness Act in March, and that this section is in the dispute resolutions part of the Industrial Relations Act? Subsection (3)(a) prevents the arbitration board from making awards that would be inconsistent with the regulations and guidelines of the Compensation Fairness Act. Is that what we're dealing with here?

HON. MR. FRASER: That's correct, Mr. Chairman.

Sections 11 to 20 inclusive approved.

On section 21.

MR. SIHOTA: Mr. Chairman, I think we can deal very quickly with sections 21 to 26. As I said during the initial debate on this, these are certainly needed and are appropriate housekeeping amendments. I have no difficulty with going through those.

Sections 21 to 25 inclusive approved.

On section 26.

HON. MR. FRASER: Mr. Chairman, I move the amendment standing in my name in Orders of the Day.

[(a) in the proposed section 67(2.1)(a) of the Personal Property Security Act, S.B.C. 1989, c. 36, by deleting "section 58(2)(a), " and substituting "section 58(2)(a) with respect to the consumer goods,", and (b) in the proposed section 67(2.1)(b) by adding "consumer" before "goods".]

Amendment approved.

Section 26 as amended approved.

On section 27.

MR. SIHOTA: I just want to ask the minister what is contemplated now under this section as to the requirement of justices of the peace. What do you now expect them to do that they are not doing?

HON. MR. FRASER: Justices of the peace can act under the jurisdiction of a number of acts, and this extends their jurisdiction to the act mentioned here.

MR. SIHOTA: I understand that, but what are you now saying? Are you saying now that under this act a justice of the peace can deal with all matters that arise under the Family Maintenance Enforcement Act? If not, are you saying that they can only deal with preliminary matters? And if it's preliminary matters, what do you mean by preliminary hearings under the act?

HON. MR. FRASER: All that information is contained in section 25 of the Provincial Court Act.

MR. SIHOTA: My question is: what new duties are you now giving to the justices of the peace which they did not have before? Could you just amplify your answer, Mr. Minister?

HON. MR. FRASER: They have no new duties. Their duties are simply extended to the Family Maintenance Enforcement Act.

[ Page 12877 ]

MR. SIHOTA: So what does this now allow a justice of the peace to do with respect to the Family Maintenance Enforcement Act?

HON. MR. FRASER: It will refer to such issues as setting a date for hearings and things like that.

MR. SIHOTA: I just want to think this through for a second while I'm on my feet — presuming my right to speak on this. I'll let the officials talk, because it may actually help in expediting a reply.

Out of courtesy, Mr. Chairman, I'm just giving the officials a chance to talk so that the minister might be fully apprised. It might expedite the process.

MR. CHAIRMAN: I think we can proceed now.

MR. SIHOTA: I see the minister has now been briefed by his officials. Let me just continue. A justice of the peace on criminal matters can do things like fix dates for trials, deal with adjournments of matters and perhaps — if memory serves me right — deal with applications by counsel to be off the record or on the record, as the case may be. But they cannot adjudicate on the merits of the application.

So am I to assume that, really, it's those procedural matters which I have enumerated that are now being vested in the justice of the peace, so as to prevent taking up the time of provincial court judges in dealing with those routine dispositions — to transfer to a justice of the peace those types of dispositions? In other words, are they limited just to procedural issues along the lines that I've enumerated, or do they go beyond that? I would hope not, but I just want to get clarification from the minister on that point.

HON. MR. FRASER: That is essentially the case: dealing with the enforcement sections, issuing of warrants, releases and that sort of thing.

MR. SIHOTA: Am I correct in understanding that up until now the practice with respect to family maintenance enforcement applications concerning these procedural matters has been that the person is obliged to go in front of a judge to make these applications?

HON. MR. FRASER: The justice of the peace had the authority under the Offence Act before, and now he'll have the authority under the Family Maintenance Enforcement Act.

MR. SIHOTA: I'm not totally clear on this, but if he already had the power under the Offence Act to do all this, why isn't he bringing it into the provisions of the Family Maintenance Enforcement Act? Is there some problem there that you're trying to remedy?

HON. MR. FRASER: The inclusion of the Family Maintenance Enforcement Act was intended to have taken place some time ago. It was not included when that legislation was brought forward, and this is to bring that into line with the previous actions.

MR. SIHOTA: That doesn't quite answers the question I put to you, Mr. Minister. I'm just trying to find out what the problem was. I take it that before you could not go to the justice of the peace, obviously, under the act for this kind of stuff. But am I correct in assuming that you could go to the justice of the peace under the provisions of the Offence Act for these applications? If that was the case, and I see your official nodding, then why was it necessary to make the amendment under the provisions of the Family Maintenance Enforcement Act?

HON. MR. FRASER: It was, as I said, an oversight. It was intended to be included in previous acts of the House. It's basically for clarity reasons that it has been put in here today. We're glad to have your support.

MR. SIHOTA: If you had the right before under the Offence Act — you always had that, you could always do this — then what new right are you giving the people in the Family Maintenance Enforcement Act? I take it that somehow the minister does not wish to deal with that issue. I will give him another opportunity if he so wishes.

Let me then digress for a moment and just comment on what I believe is being done here in terms of the procedural changes. In my mind, this obviously makes a lot of sense. You don't want to unnecessarily take up time in court with respect to an application under the Family Maintenance Enforcement Act. The minister knows, as do all members of the House, that members of this House constantly get complaints from people as to the length of time it takes to process an application in the Family Maintenance Enforcement Act. Lord knows there are all sorts of problems out there in British Columbia. I need not recite them today to the minister. I will do that if we get to the estimates of the minister, and we'll have a full and extensive debate at that time.

Any steps that will expedite the process and solve some procedural issues — and obviously I can see why it is that certain procedural issues should fall within the purview of the justice of the peace, as is contemplated here — are things that I'm going to support. The principle of what you're trying to do is something that I would endorse now that you've explained it in the fashion that you did.

You told me that that right existed all along in the Offence Act, so I'm still at a loss to understand what new right now has accrued or what procedural impediment is being remedied by the "oversight" that you referred to. If you wish to answer that, that's fine; I would hope that you do. If you don't, you have my comment on record in terms of my view of why it is appropriate to bring those kinds of matters before the justice of the peace, so that in courthouses like Victoria they can be dealt with quickly and expeditiously first thing in the morning, when the JP hears a number of procedural applications. I think that's good. I think it's wonderful, and it's an appropriate application.

I was surprised that you said that that right always existed in the Offence Act and that you were simply transferring it here. I assumed that you were making

[ Page 12878 ]

the change because the right did not exist and therefore you wanted to provide it — and it's a right that clearly should be provided.

With those comments, I will conclude on this issue. I would hope that the minister will take the time, in the spirit that I put it across, to deal with my question. If not, that's fine.

HON. MR. FRASER: The changes suggested here are primarily to make sure that justices of the peace can issue warrants for the arrest and release of those arrested under the enforcement provisions in sections 5 to 12 already agreed to by the opposition.

We're making the amendments because the Family Maintenance Enforcement Act was not listed, because of an oversight. Quite simply, that really tries to make it easier for people to proceed with the Family Maintenance Enforcement Act. I actually agree with the member opposite that the things we do here with the Family Maintenance Enforcement Act are good. I'm also advised that we have a very good Family Relations Act system here and that it's working very effectively relative to many other places. So I'm pleased that we're having some support from all of you.

[9:30]

Section 27 approved.

On section 28.

HON. MR. FRASER: I move the amendment standing in my name on the order paper.

[Section 28, by deleting the proposed section 50 (10) of the School Act and substituting the following:

(10) For the purposes of subsection (9),

(a) a reference in the Vancouver Charter to an elector shall be deemed to be a reference to an elector as defined in this Act, and

(b) a reference in the Vancouver Charter to a resident of the City of Vancouver shall be deemed to be a reference to a resident of School District No. 39 (Vancouver).]

Amendment approved.

Section 28 as amended approved.

Section 29 and 30 approved.

HON. MR. RICHMOND: We would like to revisit section 1, Mr. Chairman.

HON. MR. FRASER: Mr. Chairman, let me try one last time, and we'll see if we can do it a little better.

The Compensation Fairness Act refers to the British Columbia Railway Act. The British Columbia Railway Act refers to the Compensation Stabilization Act. We want to change it so that the acts refer to each other, so that there will be no suggestion of ambiguity or any confusion at all. If that makes the members happy, let us proceed.

MR. MILLER: I'm curious why the act applies to companies that essentially have no employees. Section 1.4 essentially says the act applies to a subsidiary and its employees. As far as I'm aware, the subsidiaries of B.C. Rail don't have any employees. Are you contemplating creating some?

HON. MR. FRASER: It would refer to any subsidiaries of B.C. Rail and any employees, if there were any.

MR. MILLER: I hark back to the beginning of this discussion when the minister, responding to one of the questions from this side, said that the change was for the purpose of clarity. He's now advising us that the act applies to subsidiaries who have no employees, but if they did have employees, it would indeed apply to them. Mr. Chairman, with that kind of clarity and logic, I can't think of any other questions that I can ask.

Section 1 approved.

Title approved.

HON. MR. FRASER: Mr. Chairman, I move the committee rise and report the bill complete with amendment.

Motion approved.

The House resumed; Mr. Speaker in the chair.

Bill 7, Miscellaneous Statutes Amendment Act, 1991, reported complete with amendment.

MR. SPEAKER: When shall the bill be read a third time?

HON. MR. RICHMOND: With leave of the House now, Mr. Speaker.

Leave granted.

Bill 7, Miscellaneous Statutes Amendment Act, 1991, read a third time and passed.

HON. MR. RICHMOND: Committee on Bill 10, Mr. Speaker.

CROWN COUNSEL ACT

The House in committee on Bill 10; Mr. Pelton in the chair.

Section 1 approved.

On section 2.

MR. SIHOTA: Mr. Speaker, section 2 basically spells out what occurs in all other jurisdictions — probably everywhere in Canada, but that's neither here nor there. I just want to ask the question of the minister in terms of the policy of the ministry. I think this thing will come up over and over again, and if I could put it in its simplest terms, it really relates to the dovetailing of Mr. Owen's recommendations with the provisions of this statute.

[ Page 12879 ]

One of the things that is clear out of this section is that, as I recollect the section.... Of course, the minister will agree that any person can come before a JP and lay a private information. That right will continue to exist under this act because it flows from the Criminal Code.

It also tells us that the criminal justice branch will at this point move in and take over the conduct of the matter. That means, of course, nothing more will happen with the charge unless the branch decides to proceed with it. That's fair enough.

Mr. Owen, in his recommendations, indicated that if a decision was made not to proceed with a matter, or at least with the laying of a charge, then there would have to be public disclosure of the reasons therefore. Does the minister consider that that recommendation will apply now to this situation — namely, the situation where the Crown takes over a matter and then decides not to proceed? Will it then now be obliged to disclose the reasons for not proceeding with a charge?

HON. MR. FRASER: It would depend on the circumstances involved in the case, as the member would know. If it was a serious matter involving someone who was very well known, that very likely would be the result. If it was not a celebrated case, it's highly likely that there would be no declaration, no public knowledge, very much in keeping with the spirit of the Owen report, the protection of reputations in the community and that sort of thing.

MR. SIHOTA: I want to thank the minister for that answer. What I was really looking at was whether or not the spirit of the Owen report would be continued, because it does raise an interesting point. This specific issue wasn't captured by Mr. Owen in his report. But I agree with the minister that that would be the way it should be handled, and I thank the minister for that clarification.

With that said, unless any of my other colleagues have questions on section 2, I have nothing else to add on that section.

Section 2 approved.

On section 3.

MR. SIHOTA: I raised a point yesterday about delegation of authority. The Criminal Code, of course, delegates administrative responsibility and so does the.... Sorry, the constitution delegates authority to the Attorney-General to administer the Criminal Code in the province. The only area where I can best fit in this argument is this section, although one could try to find a couple of other sections where it happens. But you are now effectively re-delegating some of those responsibilities to the Assistant Deputy Attorney-General. I don't have a real problem with that at all. I would anticipate that the constitutional argument about redelegation could be raised. I don't think it applies in terms of my reading of that area of the law. Of course, I would always bow to the experience of the Deputy Attorney-General on this matter, because I know his background. He has studied this kind of stuff in far more detail than I have. But is that a concern at all?

Interjection.

MR. SIHOTA: I have done more studying than the minister has, who learned all of his law at engineering school at UBC. But I wonder if the minister would care to advise the House as to whether or not the ministry even considers that to be an issue.

HON. MR. FRASER: Mr. Chairman, that's not considered to be an issue in this question.

Section 3 approved.

On section 4.

MR. SIHOTA: Section 4(4) obviously is wedded to section 7 5), I believe, and we will get to 7(5) a little later. Section 4(4) says: "The Attorney-General may establish an appeal process under which law enforcement officials may appeal the determination of any Crown counsel or special prosecutor not to approve a prosecution." Hence section 4(4) makes it possible for that to occur. Section 7(5), which we will debate later, goes back to 4(4) and says that there can be an appeal under 4(4). So if you raise the issue under 7(5), you go back to 4(4). Section 4(4) doesn't create an appeal process in law. The minister, I'm sure, can agree with me that there seems to be a flaw in section 7(5) as it relates to section 4(4). Could the minister advise what appeal process the ministry intends to establish under this section? Have you given thought to that, or do you intend to maintain the current appeal process that is in place right now?

HON. MR. FRASER: This is a particularly important point for the members of the House and the general public to understand. The police can always approach the Deputy Attorney-General with respect to this issue. We want to make sure everybody involved in the justice system has a complete understanding of why decisions are made, if there is any doubt. In answer to the member's question, the current process will stay in place.

MR. SIHOTA: That's an interesting response, Mr. Minister, and I thank you for that. But let me say this to you: during the course of the Owen inquiry, the police expressed considerable frustration with the process that was in place at the time. I can't recollect the specifics of Mr. Hughes's recommendation, but Mr. Hughes also dealt with the issue in terms of the appeal process. I can't remember the number, but in any event, that's neither here nor there. The point is that the RCMP particularly expressed great concern about the process that was in place. In light of that, could the minister explain why he did not choose to change the appeal process from that which now exists, in light of the expression of discomfort that came from the police during the course of the Owen inquiry?

[ Page 12880 ]

HON. MR. FRASER: I'm not convinced that the police were disappointed about the process at all. They may have been disappointed with the answer. The member doesn't agree with me, but that's my understanding. They always had an appeal. As I said a minute ago, we want to make it very clear to police officials that appeals to senior staff are very much in order. We will do what we can from the ministry point of view to make sure it's working smoothly and everybody understands their respective roles.

[9:45]

MR. SIHOTA: I think the minister is wrong on that point. It was Inspector MacAulay — if memory serves me correct, and I'm quite confident of that — who made reference to that issue during the course of his inquiry. I don't want to belabour the point, but I would encourage the minister to review the evidence of Inspector MacAulay around that issue.

We can deal with it again during estimates, so I'm not going to hold up passage of the bill on that point. But I hope that between now and your estimates you get a chance to review it. If you reviewed that, you would agree with me that there was frustration expressed — not with the outcome, but with the general process. During that investigation, it also came out that there was a limited utilization of that appeal because of the lack of confidence.

Finally, let me say that if you read carefully Mr. Owen's report and the recommendations contained therein, there were several comments made with respect to the need to keep the police informed as to why certain decisions were made. That was reflective of the concern Inspector MacAulay expressed and to which I refer in the House.

With that said, Mr. Chairman, I have no further comment, unless the minister has something else on section 4.

Sections 4 to 6 inclusive approved.

On section 7.

MR. SIHOTA: Section 7, as all members know, is perhaps the most important portion of this legislation. I would like to know from the minister the basis for the ministry's decision to insert the words "where the Assistant Deputy Attorney-General considers it is in the public interest" and not to insert the words "in all cases, " which appear in Mr. Owen's recommendation. Why did you go with the public interest test as opposed to the mandatory test?

HON. MR. FRASER: It's very important to make sure the whole system can work. If we had definite circumstances about how everything is going to work, then we might restrict the activities of the justice system. We don't want to do that. So with careful thought and the concurrence of Ombudsman Owen, this section is now the consequence of that consultative process between senior ministry officials and Mr. Owen himself.

MR. SIHOTA: Would the minister care to give an example to the House of what fact pattern led them to conclude that the mandatory test originally recommended by Mr. Owen would not be applied?

HON. MR. FRASER: The essence of the decision to go the way we've gone now is that it's much too difficult and impractical to legislate matters that involve a certain exercise of discretion. So you want to make sure you have the discretionary powers to do the job that you wish to do. As opposed to having a format for how to do it, you want to be able to do it regardless of the format.

Secondly, to legislate a specific list is very difficult — who should be on the list, who should be off the list, what might happen to people who are obviously innocent and who are on the list. The protection of people's reputations is very important, so rather than having a hard rule that may make lives more difficult, it was deemed better by all concerned — all senior officials — that we go the way the ministry has gone.

MR. SIHOTA: That is an interesting explanation, Mr. Chairman, but I'm sure the minister would agree with me that it does water down the original recommendation. If you don't, then I guess you can say why. Before the test was mandatory, and now you're making it discretionary.

Secondly, I would hope the minister would agree with me on this point, that nonetheless, whatever the test is, the Assistant Deputy Attorney-General would still be guided by Mr. Owen's original recommendation — albeit that he may have some discretion now. He would still be guided by the list enumerated and the spirit of Mr. Owen's recommendations. The minister can simply nod, and I can get on to my next point. I take it there's no difficulty with that.

Interjection.

MR. SIHOTA: The minister says that he has no problem with that, and he gives me a measure of comfort by confirming that.

The other question I have, then, is that when the discretion is exercised by the Assistant Deputy Attorney-General. Am I correct in concluding that the only person accountable for the decision is the Assistant Deputy Attorney-General, or does the minister foresee that it would be the Attorney-General himself or herself who would be accountable at the end of the day for that public interest decision?

HON. MR. FRASER: The point of the exercise of this legislation, the Owen report and all those things is to make absolutely sure that there is no political input into issues of justice in this respect. We've made it quite clear, as clear as we possibly can, that it will be a non-political decision; it'll be a justice decision.

MR. SIHOTA: Yes, but who will be accountable at the end of the day for the decision? If a decision is made "in the public interest" not to implement section 7, who will be accountable for that decision?

[ Page 12881 ]

HON. MR. FRASER: At the end of the day I guess the accountability of the system would have to rest with the minister.

MR. SIHOTA: You have to take the answer you just gave and compare it with the answer you gave to the question immediately prior to that. You talked about the politics and you talked about accountability, and you're now saying that the accountability rests with the minister, although obviously, in fairness, you will not wish to incorporate — and I'm sure this is what your deputy is telling you right now — political variables in the decision.

The reason why I say that is that it highlights the point I was trying to make yesterday during the course of a rather extensive discourse, if I can put it that way, by myself on this matter. It highlights the point that it really demonstrates the tension that has historically existed within the ministry between the prosecution side and the political side of the minister's responsibility.

Quite frankly, I think that the minister's answer is the correct one, if I may say so. Many will seek to criticize that, but I think that the answer you've given is the one that I would give if I was asked the same question. But I'm telling you that there are many out there who will question that conclusion. I think at some point, at the end of the day when all is said and done — if I may quote Brian Smith when he was Attorney-General — "the buck stops at his desk." I agree that when all is said and done, at the end of the day the minister should be accountable for that decision, because only he or she is answerable in this House to questions that may arise about the exercising of that discretion. So I think it's important for the minister to have said what he has on the record. Let me say that I concur — albeit both of us expose ourselves to criticism when that happens.

Let me ask this question of the minister. I will tell him that this is the last area that I want to canvass. Fortuitously it is five to ten in any event. In this section you have not put in the requirement for disclosure. In other words, if the Assistant Deputy Attorney-General makes a decision to refer a matter in the public interest, an investigation happens and the special prosecutor decides not to prosecute, Mr. Owen in his recommendations says that the reasons for that non prosecution will become public. You didn't put that in this legislation. I take it that that will still remain the policy of the ministry. Am I right on that? And could you explain why you chose not to put it into the legislation?

HON. MR. FRASER: This is a very sensitive area, and it's very important that everybody understand. In cases where it's known that an investigation is taking place, then there will be some disclosure of why there was no decision to proceed. In cases where it is not known, in order to protect the reputation of those people who are innocent, then it will not be made public. The whole design of the system, which took some months, was carefully, thought out in order to make sure that the assistant deputy minister of the criminal justice division could do his job without interference.

Unquestionably, if the system isn't working well the minister has to take some responsibility for it. But the administration of justice, quite clearly, is placed in the hands of the senior staff who run the ministry in that way.

MR. SIHOTA: Mr. Minister, you've just recited No. 8 of Mr. Owen's recommendations. I just wanted to know why you chose not to embody the requirement in recommendation 8(2) in legislation — namely, that where a decision not to prosecute has been made the public is entitled to know adequate reasons for not doing that.

HON. MR. FRASER: That recommendation was made when it was known that there was an investigation taking place. I was talking about where it was not known as well as known. There's a separation there.

MR. SIHOTA: I clearly understand that, Mr. Minister. What I'm trying to say is that in those cases where a decision not to prosecute is made and where the public is aware, you chose not to put that situation into the legislation. Are you saying that you just did that in the exercise of your discretion, but nonetheless the policy will remain? Is that, in a nutshell, your position?

HON. MR. FRASER: Maybe I should answer instead of just nodding.

The whole issue here is to make sure that people believe and understand and have comfort with the idea that justice is being done. The whole process was put in place to make sure that there wouldn’t be any doubt cast over the justice system. So clearly, in order to satisfy.... Where it's public knowledge that there's some investigation taking place, undoubtedly there will be some public accountability.

MR. SIHOTA: First of all let me quickly thank the minister for that explanation. It's important that it be on the public record that the recommendation still stands, so that if there is a problem in the future, it can be referred to. That's point number one.

Point number two is this: quite frankly, I would have preferred it be in the legislation. You should put that scenario in the legislation to enshrine it and to achieve the purpose of this legislation, which is to give that level of confidence — that it's actual law and not simply policy. In this case we saw that policy did not necessarily carry the day. With that said, I thank members of the House for their indulgence, and I conclude my comments with respect to Bill 10.

Sections 7 and 8 approved.

Title approved.

HON. MR. FRASER: Mr. Chairman, I move the committee rise and report the bill complete without amendment.

[ Page 12882 ]

Motion approved.

The House resumed; Mr. Speaker in the chair.

Bill 10, Crown Counsel Act, reported complete without amendment, read a third time and passed.

Hon. Mr. Richmond moved adjournment of the House.

Motion approved.

The House adjourned at 9:59 p.m.