1993 Legislative Session: 2nd Session, 35th Parliament HANSARD
The following electronic version is for informational purposes only.
The printed version remains the official version.
(Hansard)
WEDNESDAY, JULY 7, 1993
Afternoon Sitting
Volume 11, Number 24
[ Page 8313 ]
The House met at 2:04 p.m.
Prayers.
FOREST AMENDMENT ACT (No. 3), 1993
Hon. D. Miller presented a message from His Honour the Lieutenant-Governor: a bill intituled Forest Amendment Act (No. 3), 1993.
Hon. D. Miller: I realize that the introduction of another bill causes some difficulty, but this one's really housekeeping.
Bill 69 amends the Forest Act to improve tenure administration. Some of the amendments in the bill are intended to improve administrative efficiency and clarify existing government policy. Others provide the Crown with increased flexibility to manage forest tenures. In particular, Bill 69 allows for the reassignment of harvesting rights from one timber supply area to another, in specific circumstances and with the consent of the licensee. Bill 69 also makes provision for smaller tenures and short-term licences to be exempted from annual allowable cut reductions initiated by the chief forester, which are currently proportional. I believe that is well supported. These amendments will improve the administration of forest tenures and provide necessary powers to help deal with changing forest management demands.
Bill 69 introduced, read a first time and ordered to be placed on orders of the day for second reading at the next sitting of the House after today.
TATSHENSHINI DECISION AND ABORIGINAL INTERESTS
D. Jarvis: My question is to the Minister of Aboriginal Affairs. Your government has recently declared the entire Tatshenshini area as a provincial park. We understand that the same area is subject to an unresolved land claim by the Champagne-Aishihik people. Were the Aishihik people consulted prior to the provincial land decision?
Hon. A. Petter: I understand that there was communication with the Champagne-Aishihik people prior to the decision. The decision was made -- as all such land use decisions by this government have been made -- without prejudice to the resolution of the aboriginal title question.
D. Jarvis: My question is to the Premier. The Aishihik have indicated that should their land claim succeed, they would consider proceeding with the mine at the Windy Craggy site. Is it your government's policy to permit such development on native territory? And would such a mine still be subject to the provisions of the assessment act?
The Speaker: Another question, hon. member?
D. Jarvis: The Premier did not answer that question. I guess he believes it's a hypothetical situation. Either he has a policy or not.
The Speaker: Order, please. For the clarification of the member, expressed that way, that was a hypothetical question and would not be in order. I invite the member to ask his last supplemental.
D. Jarvis: Again to the Premier. The natives have a land claim of $8 billion in economic opportunities. Were they informed of this prior to your decision to make this a park?
KEMANO COMPLETION PROJECT
A. Cowie: My question is to the Minister of Environment. Will the minister commit today to honour a request by the Regional District of Fraser-Fort George that all the province's documents and information related to the Kemano completion project be released to the communities involved?
Hon. J. Cashore: This government has announced the process that will be followed with regard to anything further on the Kemano completion project at this time. That has been made very clear. That's old news. A review is being conducted by the B.C. Utilities Commission, and I would advise the member to follow that route.
A. Cowie: Thank you for the commitment. A supplementary question. The regional district, as well as the city of Prince George, have demanded that the documents of the federal government and Alcan be released for public scrutiny. Will the minister ask the federal government and Alcan to make available to the communities of north-central B.C. all the information on the effects the Kemano project will have on the Nechako River?
Hon. J. Cashore: Prior to announcing the BCUC hearing, this government was on record and had corresponded requesting that the appropriate information be made available. So we have already written to the federal government asking them to make those documents available.
WELFARE RECIPIENTS AND CLAYOQUOT SOUND DEMONSTRATIONS
J. Weisgerber: My question is to the Minister of Social Services. Under GAIN policy, the number one rule is that employable welfare recipients "must be available for and actively seeking work at all times." Can the minister confirm that this policy would preclude employable welfare recipients from participating in anti-logging demonstrations in the
[ Page 8314 ]
Clayoquot? Does she agree that these recipients should be actively looking for work rather than trying to prevent employed people from getting to work?
Hon. J. Smallwood: My answer is that the member correctly quoted from the GAIN Act.
J. Weisgerber: If the minister understands, as I do, the regulations under the GAIN Act, perhaps she can tell us what actions she is taking to ensure that these regulations are adhered to in B.C., particularly with respect to those employable recipients who are lying around in front of logging trucks in the Clayoquot instead of out looking for a job. Is the minister making any attempt to enforce the regulations under the GAIN Act?
Hon. J. Smallwood: First of all, the member is making quite a leap in saying that the protesters are income assistance recipients. Secondly, I want to assure the member that the programs this government has brought in to provide support and real options back into the workplace are effective and well received by people on income assistance. Indeed, we have waiting lists for many of our support programs. The wonderful program around silviculture that we recently announced is just one example. Our staff are actively working to support people on income assistance in finding work, and those people are actively seeking work.
The Speaker: A final supplemental, hon. member.
J. Weisgerber: The minister obviously thinks this is somewhat humorous. But let me assure you, many British Columbians working in the forest industry don't think it's particularly funny. The GAIN Act, section 18, gives the minister the right and the power to reduce welfare payments to those people who aren't actively looking for work. If it's clearly demonstrated that people in the Clayoquot are employable welfare recipients, and are either not available for or are not seeking work, will she take advantage of section 18 of the GAIN Act and reduce the amount of payments made to them?
Hon. J. Smallwood: The member can be assured that we will administer the act, and follow through with our legal responsibility in administering the act and its regulations.
PRIVATE ADOPTIONS
V. Anderson: My question is to the Minister of Social Services. Under the material the minister has supplied, the public is still concerned about the meaning of private adoption. Would the minister please define her understanding of private adoptions.
The Speaker: The hon. member for Vancouver-Langara.
V. Anderson: Since the minister is not willing to define private adoptions, will she indicate whether private adoptions refer to non-profit societies that are providing adoptions?
Hon. J. Smallwood: Through estimates and other questions in the House, we have thoroughly canvassed the issue of adoption. Also, a legislative review is underway in this province at this time. I'm not going to preclude that review, and I'm not prepared to discuss future policy during question period. I have said that to you before.
[2:15]
The Speaker: Final supplemental, hon. member.
V. Anderson: It's not future policy, it's correspondence from the minister to the community in which she said she is going to cancel private adoptions. What does she mean by private adoptions, as indicated in those letters?
B.C. RAIL LABOUR DISPUTE
D. Symons: My question is to the Minister of Labour. It has been confirmed that disgruntled B.C. Rail employees shut down B.C. Rail in Prince George with an unsanctioned picket line, while the mediator was still at work in this dispute. The revenue loss for that day is estimated at about $250,000. Can the minister tell us what steps he has taken on behalf of the taxpayers of this province to ensure that B.C. Rail, as a Crown corporation owned by the taxpayers, is not forced to accept this loss?
Hon. M. Sihota: Hon. Speaker, the ministry offers mediation services in the course of a dispute. There is a mediator involved. I understand that the parties have agreed to go back to the bargaining table, and that there will be no further action today or tomorrow.
The Speaker: Supplemental, hon. member.
D. Symons: I'm sorry, hon. Speaker, but I didn't get an answer to my question. The taxpayers of this province have lost regular revenue from that railway which is going to have to be made up. I want to know what steps the minister is taking to address that issue.
Hon. M. Sihota: I'm pleased to take this opportunity to advise the hon. member that the Minister of Transportation and Highways is running a very efficient and productive Crown corporation on behalf of the people of British Columbia. It regularly returns dividends. It is one of the success stories in British Columbia, and it is our belief that that success will continue under his strong stewardship.
BINGO IN KAMLOOPS
C. Serwa: My question today is to the Attorney General. Can the Attorney General confirm that he recently attended a joint meeting of Kamloops City Council and the Kamloops Indian band, in which he
[ Page 8315 ]
gave a verbal commitment to approve megabingos on band land?
Hon. C. Gabelmann: It would be easy for me to simply say no, but I'll expand a little further. There was no joint meeting of the Indian band and the city council of Kamloops. I was in a meeting with members of the band council, and the council raised some issues around gambling, which we talked about.
C. Serwa: Widely publicized last week in Kamloops were comments from band councillor Shane Gottriedson, who said that the band has in fact received verbal approval directly from the Attorney General to hold megabingos with prizes from $50,000 to $100,000 on band lands starting this August, and that part of the agreement was that the two commercial bingo operations in the city of Kamloops would be shut down for the two days that the band was holding their bingo. Can the Attorney General explain why he apparently left the band with that idea in mind?
Hon. C. Gabelmann: I was as surprised as perhaps the member was to hear press reports suggesting that I had given any kind of indication that might have led Mr. Gottriedson to that conclusion. Decisions in respect of gaming in this province are made by the Gaming Commission. I do not participate in those discussions.
The Speaker: Final supplemental, hon. member.
C. Serwa: Has the minister endeavoured to correct the impression that was apparently left with the band and band councillors? Has he formally done that?
Hon. C. Gabelmann: As soon as I first heard the press reports, I asked staff in the gaming branch to notify both the band and the Kamloops media, which they did.
EEC BAN ON GREEN LUMBER SHIPMENTS
W. Hurd: As the minister responsible for trade, can the Premier tell us what steps he is taking to defend B.C. lumber companies, who are being subjected by the European Economic Community to a capricious and arbitrary ban on green lumber exports?
Hon. D. Miller: I agree with the questioner. The ban is a trade issue; we have communicated that to the federal government. I have discussed the issue with my counterparts in the Atlantic provinces, who are taking actions. We are discussing it at the officials level, and we are prepared to jointly pursue the issue further, depending on the outcome of the current initiatives. We are also continuing to pursue an exclusion for hemlock. We currently have an exclusion for cedar coming out of British Columbia. A big part of the green lumber shipments that leave British Columbia is hemlock. We are confident that we will gain that exclusion, and thus mitigate the impact of the ban. Whether it's the Premier to the Prime Minister with respect to the softwood lumber issue, or the European issue, we have taken strong steps to defend British Columbia's trade interests.
W. Hurd: A supplemental to the Minister of Forests. Can the minister explain why his government would spend $300,000 on a Clayoquot Sound mail-out, and another $150,000 on posters and a letter on the Tatshenshini? Why is the government blowing $450,000 on puffery in B.C. instead of doing something in Europe where our products are being subjected to boycotts?
Hon. D. Miller: With respect to the lumber found to contain the nematode in the U.K., for example, we have discovered that in fact the logs came from Maine, which is a bit of a paradox.
But given the fact that the Liberal opposition has had months and months to arrive at a decision about Clayoquot Sound and has failed to do so thus far, perhaps they might want to take the time to read the information on Clayoquot. Perhaps they might even draw a conclusion on what their position is before the end of this session.
The Speaker: The bell signals the end of question period.
C. Evans: I ask leave to make an introduction.
Leave granted.
C. Evans: The Select Standing Committee on Forests, in its study of remanufacturing, recommended that awards should be given for innovative uses of wood. I hope the members for Surrey-White Rock and for Peace River North will agree with me that the member for Mission-Kent should be introduced as the person deserving the first award for the most perfect use of wood: he's wearing a wooden tie.
Hon. D. Marzari tabled the audited financial statements for the British Columbia Heritage Trust for 1992-93.
Hon. M. Sihota: I call second reading debate of Bill 61.
PHARMACISTS, PHARMACY OPERATIONS AND DRUG SCHEDULING ACT, 1993
Hon. E. Cull: The proposed Pharmacists, Pharmacy Operations and Drug Scheduling Act repeals and replaces the existing Pharmacists Act. The current statute has become outdated and inadequate, particularly in the provisions that authorize the College of Pharmacists of British Columbia to investigate and deal with complaints relating to pharmacy services. The bill clearly establishes that the duty of the college is to serve and protect the public and to use its powers to carry out its responsibilities in the public interest.
[ Page 8316 ]
The bill has four major components. Firstly, it establishes the responsibilities of the College of Pharmacists of B.C., including registering pharmacists, setting standards of practice and conduct, disciplining registrants where necessary and making bylaws and rules to govern the profession in a manner which protects the public. Secondly, it establishes the requirements for pharmacy operations. Thirdly, it maintains the drug schedules, a listing of drugs, including the terms and conditions for their sale. And finally, it provides for the sale of medicated feed and veterinary drugs by licensed dealers. These provisions, which are in part 8 of the bill, are administered by the Ministry of Agriculture, Fisheries and Food.
There are three key committees of the council: the board of examiners, the inquiry committee and the discipline committee -- all of which are set out in the legislation. The board of examiners is responsible for conducting both written and practical assessments in connection with registration, continuing competence and discipline.
The inquiry committee is a new, very important addition to the regulatory scheme for pharmacists. The inquiry committee will conduct preliminary investigations of complaints regarding pharmacists or pharmacy operations. It may also commence an investigation when a potentially harmful situation concerning the practice of pharmacy comes to its attention, regardless of whether a formal complaint has been made or not. This committee can instruct the college inspectors to undertake an aspect of an investigation and can then apply for a court order to enter and search premises specified in the order and seize records, drugs, devices and other things that might afford evidence relevant to a contravention of the legislation. The inquiry committee must decide whether a case can be dismissed, dealt with by means of an undertaking or referred to the discipline committee for a hearing.
The third committee is the discipline committee, which is charged with the responsibility of conducting hearings into serious allegations with respect to the competence or conduct of a pharmacist or a pharmacy owner, including a corporate owner. The hearings are formal, quasi-judicial proceedings at which the respondent may be advised or represented by a lawyer.
The senior administrative officer of the college is the registrar, who must be a pharmacist. The registrar is responsible for the mandatory registration and pharmacy licensing procedures. Where an applicant, registrant or other person is dissatisfied with the decision of the registrar, the inquiry committee or the discipline committee, the person has the right to appeal the decision to the Supreme Court, and the right to appeal the Supreme Court's decision to the Court of Appeal if a justice of that body grants leave to appeal.
A pharmacy must be licensed in order to operate. Licensure has two objectives. Firstly, it ensures that pharmacies must meet certain minimum physical and equipment standards. It also provides a record of all the pharmacies in the province, including pharmacies in hospitals, facilities and care centres, as well as the owners and managers of each one.
The bill establishes prohibitions and duties for pharmacists. Prohibitions include dispensing a drug in a manner other than is set out in the drug schedules or other than is set out on a prescription. Duties include providing supervision for qualifying candidates, students and support persons working in a dispensary, and protecting the confidentiality of patient records.
A variety of important public protection measures are included in the bill. For example, the council has the authority to apply to the Supreme Court for an injunction where it believes there is or will be a contravention of the act. Both the inquiry committee and the discipline committee have the power to suspend the registration of a registrant or the licence of a pharmacy during an investigation or pending a hearing or the outcome of a hearing.
Finally, the provisions relating to the confidentiality of personal information are consistent with those set out in the Freedom of Information and Protection of Privacy Act. Several provisions from the Health Professions Act have been incorporated into the bill to enhance the consistency of this regulatory scheme with others governing other professions in the health care field. In particular, the duties of the college are set out and a mandate statement is required. The composition of the council must include a minimum of one-third public representatives.
The college is required to submit an annual report to the Minister of Health. The Lieutenant-Governor-in-Council is authorized to request that the council amend existing bylaws or drug schedules or develop new ones. If the council does not apply, the Lieutenant-Governor-in-Council may, after 60 days' notice to the college, act on its own to make or amend the bylaw or drug schedule.
Part 8 of the bill strengthens existing regulatory provisions regarding manufacture and sale of medicated animal feeds and veterinary drugs within the province. The so-called lay outlets which sell these products are licensed to dispense non-prescription veterinary drugs and medicated feeds. Inspectors are authorized to enter these outlets and manufacturers' premises to control drugs that may be harmful to human or animal health and to generally enforce the act and regulations. Inspectors are able to seize and detain things that may contain unapproved drugs or stale-dated drugs when reasonable grounds exist to form an opinion that the thing may contain a harmful substance. The power of the Minister of Agriculture, Fisheries and Food to order the destruction of harmful drugs and substances has been enhanced.
[2:30]
I've noted that this legislation is intended to enhance public protection with regard to the dispensing of drugs and the delivery of other pharmacy services. An important part of that protection is public participation in the regulation of pharmacy practice through the council, the inquiry committee and the discipline committee of the College of Pharmacists. This public involvement to ensure improved accountability of the health professions is a guiding principle and a priority action of this government's new directions for a healthy British Columbia.
[ Page 8317 ]
Other safeguards include greater responsibilities given to the college, clear requirements for pharmacy operations and new measures for the control of drugs. This bill contains many important features, and I'm pleased to be able to bring forward the legislation at this time.
A few technical, minor amendments and inconsistencies in the bill have come to light in the last few days. As a result, I will be proposing amendments to several sections to improve their clarity and consistency. Details of these amendments appear in the motion standing in my name on the order paper and will be reviewed during Committee of the Whole.
Just before I conclude my remarks, I might say that the College of Pharmacists has worked very hard over a number of years with Ministry of Health officials to revise this legislation. They have been waiting a long time to see a new, improved act brought into being. I appreciate, and want to recognize now, the work that the College of Pharmacists of B.C. has done with my staff to put this bill together.
L. Reid: I am indeed pleased this afternoon to rise in debate on Bill 61, the Pharmacists, Pharmacy Operations and Drug Scheduling Act, 1993. The Liberal caucus stands firmly in support of public accountability. This bill, as it stands before us today, will move us down the road in terms of ensuring that the public has more participation in a regulatory college that will indeed allow the public to better understand how some of these services will be delivered to them in the future. Bill 61 seeks to establish the college's duty, which is to serve and protect the public. The Liberal caucus takes no issue with that. We believe that it is important and timely.
It is my understanding that this bill has come to us today after some 19 years without revision. It is important that we debate this bill in some detail in committee stage. I appreciate the minister's comments in terms of amendments coming forward. We have had discussion on the Liberal benches in terms of how important it is for the role of government to be one of setting standards. We believe this bill moves us down that road and will look at ensuring that the public can expect a certain level of service and, failing that, that they will have some ability to seek recourse surrounding some of those questions. That has not been particularly clear over the last number of years. It is an issue that is timely today, but it is also an issue of responsible government, and one we would like to see addressed but also embellished in some form. There are issues before us today which look at the rights of current patients, but there needs to be some work in terms of former patients -- i.e., if an individual has ceased to practise, can we flesh out some of these sections to ensure that they have some recourse and appeal around those questions?
A number of the changes are welcomed today by the Liberal caucus. It pleases me that the College of Pharmacists has been consulted on these changes and in fact stands behind a number of the changes that are coming forward. I am in agreement with the Minister of Health in terms of how this bill replicates some of the provisions of the Health Professions Act, and that speaks strongly to my original point about how important it is to put public accountability in place.
If I may speak briefly to a number of the sections that we may indeed be proposing amendments to, one section looks at sole proprietorships. Right now this bill suggests that if a pharmacist is deceased, the spouse or the other partner would only have five years to dispose of the business. Are we broaching on the ability of business in this province? Do we wish to regulate a profession to that extent? If that is the sole income, is five years a reasonable length of time? We are posing these questions in second reading debate, and we will seek clarification on those questions as we proceed into committee stage. One of the other overriding questions surrounding this piece of legislation is the ability of pharmacists to exercise some professional judgment. Does this piece of legislation in any way impede their ability to do so? There will be a number of issues surrounding that question that we will be seeking clarification on.
Section 32 refers to misrepresentation. We need to take a look at the significance of drug trials and research and development in British Columbia. Is it the intention of this piece of legislation to restrict drug trials or the use of placebos in a clinical trial? That section needs clarification. If that is indeed the intention of this minister, we will pursue that in more detail during committee stage of this debate. I am trusting that it is not the intention. I would like to see this government support research and development. That would be a barrier to continuing to have clinical drug trials in this province.
Section 76, which refers to committing an offence, may indeed create more problems for discipline committees in this province. Again, is that the intention of this bill? Without a stricter guideline around the definition of what constitutes an offence, are we muddying the waters? Are we allowing less definition to make the job of the individuals who will sit on discipline committees for these colleges more complex? I don't think that's the intention. However, I do not wish to see huge numbers of regulations and bylaws come forward in order to offset the fact that this is not particularly clear at the moment. I trust we can resolve some of these questions in committee stage of the bill. Certainly we will be seeking clarification on all the comments I've made today.
One of the comments the minister made in terms of the ability of this piece of legislation to destroy medicated drug products is that it is obviously in no one's best interests at the present time. We will be asking for clarification regarding a hazardous waste disposal plan. Will it fit in with biomedical waste or other hazardous drug disposal at the present time? We look forward to debating these issues in more detail.
In closing, the aspects of the bill that define and refine more clearly the aspects of public accountability are welcomed. I believe this will move us in a direction we wish to proceed in.
L. Fox: I'm pleased to stand up and speak in favour of this bill. In my short experience as an MLA and a
[ Page 8318 ]
member of this assembly, this is probably one of the first bills that have come forward where I haven't been able -- at least on the first go-round -- to find any government agenda. In fact, this is obviously an apolitical bill which would have been brought in irrespective of who was sitting on the government side. It has been a thrust by the pharmacists. I know they have worked hard to get it to this stage. I think tribute should be paid to the College of Pharmacists of B.C. for their dedication and hard work, as well as to the minister for recognizing the importance of bringing this legislation forward.
This bill sets out duties and objectives of the college, which I think is important because it's consistent with the Health Professions Act. The first duty is to serve and protect the public interest. I think that's very amenable and something that I look forward to discussing at some length -- the three committees and the design and functions of those committees -- during third reading. A major component of this bill is the new disciplinary procedures and a process to investigate those complaints. I think there will be a lot of discussion on those clauses in committee stage, and I look forward to that.
If there's one disappointment in the bill, it's that this government found it necessary to place the medicated feeds and veterinary drugs under this act, rather than put them in the appropriate act under the Ministry of Agriculture. I understand that when the Minister of Agriculture is up and ready we will see a transfer of this section or some amendments to reflect the interests of the Agriculture ministry and the interests of the agriculture industry itself, by having this placed within the Agriculture minister's responsibilities.
That being said, I look forward to committee stage and the clause-by-clause examination and discussions of several points, some of which the opposition critic has raised, and some of which I have some brief notes on.
D. Symons: I would just like to join the two previous speakers in commending the government for bringing this forward. I had the good fortune to be a teacher, and one of my students years ago is now a member of the pharmaceutical association. I happened to run into him a week or so ago while we were recycling our green garden waste, so I mentioned to him that I knew this bill was coming up. I asked him what input he might give me with regard to this bill. Basically he was complimentary of the way the ministry has worked with them over a period of time in order for them to bring forward their concerns on the bill. I again commend the government -- or whatever government started this process -- on that aspect. Your government carried it through to completion, and that's very good.
I have just one suggestion or criticism that I would care to make at this time. There may have been an omission, or it may be something that is coming down the tube a little later on. I guess we will get to this in third reading, committee stage. I wouldn't mind seeing something under section 37 about a central registry of prescriptions. Indeed, it seems that in our society there is more and more abuse of drugs, as the number of drugs proliferates. It seems that some people shop around at a great number of doctors and druggists and build up quite an arsenal of medication. When a druggist or doctor is prescribing something, they would be able to quickly look in a central registry to see what that particular patient has had. It would not stop people from intentionally trying to get around it and using drugs for illegal purposes, but it certainly would protect a good number of people in the province from unintentionally, and maybe in an ignorant way, taking drugs that are not really conducive to their health or that interact with each other and have a negative effect.
I wish that the government would consider putting in something to that effect under section 37, so that there would be the possibility for disclosure to another pharmacist. An extension of that would be: not only would that be there, but it would be incumbent upon a pharmacist to find out what other drugs the person had taken in the past year or two, in order to better serve the patient, the customer.
With those remarks, I would again commend the government for bringing this bill forward, and I look forward to third reading and passage of this bill.
The Speaker: The minister upon rising closes debate.
Hon. E. Cull: I would like to briefly thank the hon. members for their support for this piece of legislation. They've raised a number of issues that I know we will be able to discuss in more detail during committee stage of the bill.
I would like to now move second reading of the bill.
Motion approved.
Bill 61, Pharmacists, Pharmacy Operations and Drug Scheduling Act, 1993, read a second time and referred to a Committee of the Whole House for consideration at the next sitting of the House after today.
[2:45]
Hon. E. Cull: I call second reading of Bill 51.
HEALTH CARE (CONSENT) AND CARE FACILITY (ADMISSION) ACT
Hon. E. Cull: This bill, which I will be discussing for the next little while, is one of four and is part of a package that deals with adult guardianship. The Attorney General will be dealing with the other three bills later on in the session.
The Health Care (Consent) and Care Facility (Admission) Act, along with the other three bills -- the Representation Agreement Act, the Adult Guardianship Act and the Public Guardian and Trustee Act -- is the result of an extraordinary effort on the part of community agencies, advocacy groups, health care providers and government ministries.
I would like to begin by noting the cooperation and dedication of hundreds of individuals and organizations that contributed to the development of this package of legislation. Almost 3,000 people had
[ Page 8319 ]
input into the process of giving more options to British Columbians who need help making decisions about their health, financial situation, personal life and legal affairs. The dedicated people who worked on this process understand very well that our health system has to change if we're going to meet the needs of people who can't make their own decisions.
Like many British Columbians, the people involved in this process understood full well the recommendations of the Royal Commission on Health Care and Costs, particularly the following: the system has to be adapted to make sure that everyone in the province has fair access to health services and an equal opportunity to be healthy; people who are involved in obtaining health care services need to be able to get them closer to home; we need to have a greater focus on preventive care and the promotion of good health; and most importantly, we need to empower people to have more control over their own health care, to take a greater role and greater responsibility in making decisions that affect their health. This act will indeed make it easier for British Columbians to plan ahead for times when they are unable to make health care decisions alone, so it will increase their ability to participate in health care decisions that affect them.
Right now, if the time comes when we require health care or admission to a health care facility and we're not able to give consent for it, our family members or our close friends will often step in and make those decisions on our behalf. It's a very standard and common practice, but it's not recognized in law; at least, it has not been recognized until now. The Health Care (Consent) and Care Facility (Admission) Act, in conjunction with the Representation Agreement Act, will allow us, while we're still able and have competency to do so, to formally designate someone to make those health care decisions for us. In the cases where we have not appointed someone in advance, it sets out clear guidelines for having someone, usually a family member, give consent to care or withhold consent to care for a particular treatment or procedure on our behalf.
The act is based on several common-law principles that are set out in the legislation, including: the right of every individual adult to be presumed capable of giving or refusing consent to treatment or admission to a care facility; the right of every adult to make individual health care decisions based on personal views, including religious or moral views, whether or not they're shared by others; and the right to a fair process to determine capability where there are grounds for questioning this or looking into it. The act strikes a balance between protecting the autonomy of individual British Columbians and recognizing our responsibility as a society to look out for those who can't make decisions on their own. The intent of this act, with the three related bills tabled by the Attorney General, is to allow British Columbians to plan in advance for their needs to be met according to their wishes.
As much as we'd like to be able to plan in advance for times when we're not able to make decisions, it's not always possible, so the act sets out clear procedures for naming a temporary substitute decision-maker to make health care decisions when an individual has not appointed somebody in advance. The act states that this alternative decision-maker must be chosen from a list that starts with the spouse or common-law partner and then goes on to a child, parent, sister or brother, or anyone else related by birth or adoption. If there's no one on that list who can be found, the public guardian and trustee can authorize someone else to make health care decisions for that person. It could be a close friend or an advocacy organization.
An important safeguard in the act stipulates that the designated decision-maker must be someone who has been in contact with the adult within the last year, someone who does know something about that individual, and also someone who doesn't have a conflict with them. The act also incorporates procedures for ensuring that the current or previously expressed wishes of the adult, if they are known, are taken into account. Only as a last resort, when nothing else is known about the individual, will decisions be made in the best medical interests. The act sets out the factors that are to be considered when making that decision. The legislation makes a distinction between minor and major health care. In the case of minor health treatment, such as dental care or routine blood tests, it legitimizes the current practice of obtaining consent from a spouse or other close relative. But in the case of major health care -- which will be more specifically defined in the regulations -- it lays out clear protocols and important safeguards. Obviously, because of the greater risks involved, safeguards are needed in the case of major care, both to protect the patient and the care provider.
In the major health care situation, if the adult has not appointed a representative, then the health care provider has to take additional steps before providing that care. The provider must consult with another person who knows the adult, such as a spouse or a close relative, before determining if the adult is capable of making an informed decision. If the adult or person consulted objects to the decision and there's no one else to consult, then the health care provider must organize a more formal review of the adult's capability. In either situation, if it is determined that the adult is incapable, the health care provider must tell the adult of that decision and that a family member has been appointed as a temporary decision-maker. The act will also provide for a new health care review board, which may review and rule on any objections to health care decisions within seven days.
Besides minor and major health care, the act also defines emergencies more precisely in order to give better guidance and protection to health care providers. It sets out clear guidelines for health care providers to follow, not only to protect the people under their care but to give legal support to care providers when they believe they're acting in the best interests of their patients.
The act also deals with admissions to care facilities and provides a legislative framework for such admissions. No admission to care facilities will take place unless the adult, the spouse, a relative or another authorized decision-maker has agreed to a facility care
[ Page 8320 ]
proposal prepared for the person who's going into care. The care proposal will set out the type and levels of care, the activities provided and the policies followed by the facility. If the adult does not agree to the care proposal, when there is reason to believe that she or he would benefit from admission to a care facility, then there will be an impartial assessment of the adult's capabilities to make decisions. If the assessment indicates incapability, a substitute decision-maker chosen from the list I mentioned a minute ago would have the authority to accept or reject the proposal on the adult's behalf. Again, the act has the same provisions for a review of the decision, as well as for continued advocacy on behalf of the adult.
It's important to note at this point that the act does not affect people with mental illness who are involuntarily admitted to a care facility. I'm just going to repeat that again, because it's not that it doesn't apply to people who have mental illnesses; it does not apply to people with a mental illness who have been involuntarily admitted to a care facility. These individuals will continue to be governed by the Mental Health Act, at least for the time being. As members are aware, the Mental Health Act is still under review. It's been under a review process for some time, which may take up to a year to complete. If necessary, when the process is complete, the government will present amendments to this piece of legislation -- the Health Care (Consent) and Care Facility (Admission) Act -- to make it consistent with any changes to the Mental Health Act that may result from the review.
I would also like to point out that the act does not affect or reflect any of the issues that currently surround physician-assisted termination of life. As members know, physician-assisted termination of life contravenes the Criminal Code of Canada, and the provisions of this legislation do not allow such action. The procedures set out under this act only permit a family member or designate to act legally on the previously expressed wishes of the adult who has become incapable. If that decision-making should extend to the withdrawal of life support systems, members of the health care team must agree that the decision is medically appropriate.
I think that all members of this House will agree that the bill is comprehensive in its scope and compassionate in its intent. It recognizes the important role that our families, our friends and our communities have in helping us make decisions about our care. It's consistent with the aims of the New Directions strategy for health care in this province that was announced five months ago, and it's a continuation of the government's commitment to bring health care closer to home and to increase personal decision-making for health care. The intense effort of the many community groups, provider organizations, government ministries and others that have been involved in this process over the last several years is, I believe, a clear indication of the demand for a formal, less expensive and more timely procedure to meet the needs of dependent and vulnerable adults. This act is an important and positive step in achieving those objectives.
With respect to the extensive consultation that we've had with community groups, the government is continuing its consultation on this legislation. We have made a commitment to continue working with the groups with respect to the implementation of the legislation as we move forward in the months ahead. In the time between tabling the bill and today, we received some very good suggestions from external agencies with regard to changes to the legislation, so I will be proposing amendments to a small number of sections to improve their clarity and make the intended application of the legislation more precise. The sections to be amended involve exceptions to the requirement to obtain consent, rejection of a care facility proposal by an adult and the use of restraints. Details of these amendments appear in the motion standing in my name on the order paper, and they will be reviewed in more detail during Committee of the Whole.
L. Reid: I'm pleased to rise in debate on Bill 51, the Health Care (Consent) and Care Facility (Admission) Act. It's my understanding that the public would like to have seen the Mental Health Act precede this discussion. However, it wasn't to be. I look forward to that particular piece of legislation informing and finalizing a lot of the discussion that we're going to engage in today on Bill 51, and I believe that the same discussion will be fleshed out and embellished under Bill 48, the Representation Agreement Act, Bill 49, the Adult Guardianship Act and Bill 50, the Public Guardian and Trustee Act. This is a package, and I believe that the Mental Health Act will continue to frame the discussion and the comments of the minister on the amendments.
The Liberal caucus welcomes the refinement in where this bill can go, because it is definitely an evolution in terms of what society expects and has come to understand with regard to mental health issues, but surrounding more the care of the elderly and how best to seek some kind of balance and consensus around public safety and personal safety, which is somehow interpreted as patient safety. Those issues need to be expanded upon in debate, and we will look at them very carefully during committee stage of the bill. There are some questions, and we will be seeking a number of clarifications surrounding definition. Substitute decision-makers and assessment are two possibilities of where we hope to frame the discussion in committee stage so as to allow a better understanding of where we hope to proceed on this bill.
I commend the community groups that came forward to produce the framework for this legislation. When numerous agencies reach consensus around very complex questions, I believe we should stand together as legislators and commend their initiative and commitment to completing the task. The people who came forward and briefed members of my caucus and the New Democratic caucus have certainly done their homework. They've looked at the issues, and they've tried to be sensitive and thoughtful around very complex questions. I stand with them, and I hold them in the highest esteem, because how government presents itself can only be enhanced by the need and
[ Page 8321 ]
desire of community agencies to lend their support in bringing forward initiatives and allow their abilities to formulate part of where government wishes to go. I think it has been absolutely outstanding in this case.
[3:00]
The objectives of Bill 51 look at establishing strict legal limits for consenting to health care. As opposition, we seek clarification of some of those questions, but we stand firmly in support of the need to address those questions in legislation. It has often been a misunderstood area regarding who can and cannot access, and who has the ability, under diminished capacity, to reflect on some of those questions for you. I believe that will become a more significant issue as our population ages. It's an issue we need to address in some detail.
The minister made mention of emergency care and minor or major surgery, and those are very necessary definitions for the purposes of this act.
With regard to admission to care facilities, over the years there have been a number of questions surrounding admissions and informed consent. I believe those issues will be fleshed out under the new Mental Health Act. It is also my understanding that the conditions of the Mental Health Act which would impact on Bill 51 are frozen at the present time. I think that's a useful exercise in trying to rejig some of the current definitions and the current understanding of where we would like to go. This document may hold some vision for the care of the elderly in our communities.
I made the point earlier that this document must be understood in tandem with the legislation on adult guardianship. In this case, our concern has been driven by the community, and I believe that the community will monitor how this legislation comes to pass. It is going to be an evolution in how carefully and clearly we move forward, but I believe that society's expectations will only enhance how we refine this piece of legislation over time.
In terms of prescribing rights for substitute decision-makers, it's a useful exercise. This piece of legislation puts us on the right road to do that, and the minister and I have discussed accountability, outcomes and cost-benefit analysis. This legislation will look at establishing a review process to look at the rights and duties, and that is a very useful exercise. There is much that we don't currently understand about mental illness and informed consent, and the only way we can arrive at some type of consensus -- now that the community agencies have come forward -- is to debate this in second reading, but also to seek clarification in committee stage so that all people will benefit from this piece of legislation.
I believe that at the present time a number of individuals are looking to this piece of legislation for guidance. They have unanswered questions -- perhaps for a spouse or a family member, and frankly, sometimes for a very young child -- that have not been resolved on how they can access care and how that care can be monitored over time. If this bill moves us down that road in seeking resolution to some of those questions, we will be providing a very necessary level of comfort for care providers in this province, and that is absolutely the direction we wish to go.
I mentioned earlier that this is part of a multiple policy outreach. These bills -- Bill 51, the three that will look at adult guardianship questions and the Mental Health Act -- will impact on all members of our province, and I think you will see a number of other provinces looking to British Columbia as to how we implement this legislation. The drafting stage is now completed, and the amendment stage will happen -- probably in the next day or so. But the implementation will determine the success of this piece of legislation. A number of provinces have drafted what they perceive to be well-written legislation over time, and there have been difficulties in the implementation stages. What appears to be a workable, tangible idea seems to fall by the wayside when the definition needs refinement once it reaches the communities and individual care facilities. I believe it will allow families to have greater expectations for particular care facilities in their communities, and I think it will provide those who are offering care a clearer definition of what they need to provide regarding some of those questions.
We haven't addressed a lot of what we consider to be patient rights in this province. I think this discussion will certainly initiate the dialogue. We have much that needs to happen, and it will be done in concert with the Attorney General's office and perhaps with the Social Services ministry. It definitely is an interministerial approach to looking after individuals in our community who we believe are not necessarily in a position to make some of those decisions for themselves.
I believe the estimate from the ministry is that it will be three years before regulatory enactment becomes fully operational. Those three years will be absolutely critical to the success of this bill in terms of implementation. I am not taking issue with three years. I think it is necessary that we allow this legislation to come together for members of the various communities in this province with as much care and deliberation as we've allowed the first writing of this legislation. It's been a very long process at the community level. It spanned a number of years. I believe it would be foolish to move to the implementation stage without the same deliberation, courtesy and respect around some of those questions. It pleases me that we're looking at an extended time line for implementation before seeing this bill become fully operational.
I mentioned earlier that this bill is the end point after massive public consultation. The consultation began in 1989; we are now four years into this process. Hundreds of individuals and many interest groups in this province were participating in a process which culminated in the report entitled "How Can We Help?" I believe this report is the basis for this legislation. I would applaud the participants in the writing of that report. The premise for having such involvement was to ensure that all the questions were at least brought to the table for discussion. I don't believe that anyone in society expects every single question will have an immediate answer, but I do know they wish to see a framework, a structure in place so that they can at least anticipate where this government is headed.
[ Page 8322 ]
I believe this bill will give health care providers some confidence and assurance that the decisions they make regarding their own care facilities will be respected and honoured by this particular government. We're moving into an age of provider responsibility. We are placing expectations upon agencies which provide care that seemingly were not in place over the last number of years.
There's a 40 percent likelihood of dementia for people over 80 years of age. This bill speaks very clearly to the need for a legal framework. What we had in the past was inadequate in terms of how we dealt with some of those questions. The bill does suggest some sweeping changes to the issues surrounding the rights of the family and the family's right to intervene.
This bill does not cover the rights of life and death, but it certainly initiates the discussion. I personally think that is a healthy place for us to be at this time in terms of needing, as a society, to discuss some of those issues. I think that's where we need to be heading. As to whether or not this legislation is the stepping-off point for resolving some of those questions, no, I don't believe we're there yet. I believe we're a few years out from formulating some kind of reasonable response. I would also submit that perhaps this legislation will formulate a number of individual responses. I trust that cases will be taken on their individual merit. I would not wish to see any parliament prescribe a certain set of guidelines for individuals who wished not to be in the position where they were terminally ill and suffering. I think we need to be very cautious about some of those questions, but I'm pleased that we've at least initiated the discussion today.
Given that we're going to have a three-year operational time frame, we're looking at opportunities for regulations and bylaws that will be scrutinized by community agencies and by the public. These questions have often held great concern for families which, in the case of elderly parents, were leaving someone of 60 or 70 years of age who had always been the child in the family. They can now have some assurance that there's going to be some reasonable care provided and some ability to put in place monitors, interveners and the like.
We trust that this bill will create some legislative balance around some of these questions. I don't perceive it to be the last revision. Certainly there will be many revisions and refinements to this legislation as society comes to grips with some of these very pressing questions. In all honesty, I think that a lot of what we are doing today is an attempt to clarify the law surrounding how we deal with individuals who have diminished capacity. A number of these issues have come forward as a result of court challenges. That is the reality. How we respond to that to ensure appropriate care is in place will only be for the good of all individuals concerned.
I welcome the minister bringing this piece of legislation forward. I look forward to debating it in committee stage because the Liberal opposition is seeking clarification on a number of points. But we stand firmly behind the ability of communities and individuals to participate in making these decisions. This is where the process originates, where it makes the most sense and where it will be best understood by the largest number of British Columbians. We need to ensure not just that legislation comes forward, but that it is easily understood and somehow improves the delivery of care or accessibility around some of these questions. I believe this legislation is well on the road to doing that.
L. Fox: It's a pleasure to rise and speak on the philosophy and principles of Bill 51, the Health Care (Consent) and Care Facility (Admission) Act. As the previous speaker suggested, this bill is the first of a four-bill package we'll see this afternoon that creates adult guardianship legislation.
The bill describes adults' rights regarding the giving or revoking of consent to health care. That issue is a matter of some concern, especially around the treatment of schizophrenics. I'm very concerned about the lack of restraints on the general principle of giving more autonomy to the mentally ill or incapacitated. While this is a well-meaning and laudable intention, when taken to the extreme it means that people with Alzheimer's, for instance, could be allowed to walk off on their own. Or, in order to respect their wishes or rights, individuals with paranoid conditions could be allowed to refuse necessary treatment. The point that some people make bad decisions because of their illness is something that should be considered. Decisions made as a result of a mental condition, although they should be respected, should not be respected in the same way as the decisions of healthy adults. Those are some concerns that I have with respect to that area. We'll go into those at some length.
[3:15]
The bill allows health care providers to appoint a temporary, substitute decision-maker. This person is allowed to give or refuse consent on behalf of an adult, assuming the adult does not have a representative, guardian or decision-maker authorized to give or revoke the consent. I think it's a very worthy and desirable process. I look forward to more explanation on some of those on a clause-by-clause basis.
The system for deciding whether an adult should undergo major health care is a very complicated one. Will all health care providers be responsible for knowing the rules of this legislation? That is one question I have to ask. If health care providers do not know the rules, will that create chaos within the health care field?
The bill also establishes some rules respecting admission of adults into some care facilities. We look forward to going over that section too, in a very complete and satisfactory way, because we do have some concerns about that process. The operator of a care facility is responsible for providing an adult with a facility care proposal, which explains to the adult what type of facility it is and what the facility's policies are. We see that as a very good initiative, and in most cases, I believe that kind of policy is in place now within many of those care homes. If an adult is not capable of making decisions respecting the care facility, the bill provides for a mechanism whereby others can make those
[ Page 8323 ]
decisions. That, too, is something that we will deal with at some length in committee stage.
All in all, although I have many issues I want to deal with, I don't intend to go over them at any length. But I certainly look forward to committee stage, where I think much of the discussion on this type of legislation will take place.
V. Anderson: I rise to speak on Bill 51, the Health Care (Consent) and Care Facility (Admission) Act, because this has been a great concern of many people in our community over many years. It has become an increasing concern as we become more of an urbanized society, as we live longer and as people do not have around them as many family and friends as many people have had in the past.
In my own profession as a United Church minister, I have many opportunities to visit with people, both in and out of medical care, who have had concerns in this particular area -- concerns not only for themselves but for family and friends. This is definitely a move in the right direction, to try and respond to some of the decision-making which needs to be made within our community. We are very aware that there has not been any legal support for many of the decisions that have had to be made. Nor has there been support for friends or family who had to step in and make decisions when the need suddenly arose.
The system that we have in this particular act may be somewhat complex, but it probably needs to be complex for it to have the safeguards that people are demanding when decisions are going to be made for them on their behalf. This is particularly true if those decisions have to be made by people who are not close members of the family, or who are not even necessarily close friends within the community. It is important that there is a process which is clearly understood, and which everybody can appreciate and understand together.
One of the concerns that is not addressed directly in the act, but will no doubt come to the fore as the act is implemented, is the nature of care facilities themselves. We are seeing within this act that as a person is entering into a care facility, there needs to be a description of that facility and the opportunities within it. But we are all aware that the descriptions provided and the actual operations are not necessarily the same, so it's often after you get into a situation that difficulties may arise. Opportunities are built into this act to monitor those situations as they arise, to review and reflect upon them and to make decisions. That ongoing review of the situation is important.
Within this act there is a sense of ease, hopefully, for the persons who will be in need of care and who will need for as long as possible to make their own decisions and to have them clearly understood and respected. There is also ease of mind for families and friends who are vitally concerned with others. When family and friends disagree with each other as to what care should be undertaken, there is a way for those disagreements to be resolved and worked through. That is fundamentally important.
There is also a protection for health providers. Again and again, health providers have been in a very awkward situation in providing care and then discovering that family or friends would come against them because they did not agree with the kind of care they were providing. There was no place for them to turn for resolution. So although there are complexities within this act, which no doubt need to be looked at and worked out as the act is implemented and experience is gained with it, here at last is the opportunity to have a legal process for the care of all those in our society who need it either on a long-term basis or in emergency situations.
The minister has mentioned that religious and moral values and views will be respected. For that to be particularly mentioned within the act is very important. The religious or moral views, philosophical background, family characteristics or culture from which a person comes can be fundamental to the kind of care they would choose to have, which is not necessarily the kind of care that others would wish them to have. So there can be a great distinction between what a person wishes for themselves and what others in all good conscience are trying to do on their behalf. It is good for that stipulation to be there, so that the caregivers are aware that the priority is on the individuals themselves.
There is also the opportunity for a stage-by-stage process, and the stages are clearly spelled out within this act. First of all, the care is to be given at the decision of the individuals themselves. Secondly, those who are closest to the individual are to be responsible for deciding the care to be given. Beyond that, there is the opportunity -- and I'm glad to see it within this act -- of advocacy organizations within the community to have a fundamental role. I think the role of the advocacy organizations will be important not only in the caregiving but in the opportunity to educate the community to the care opportunities that are available. I'm very much aware that the use of this act will depend upon the education and awareness provided in the community at large before people have need of it. There is a great deal of misunderstanding and ignorance even as to the opportunities presently available to people in the community round about them.
The stages in this act also include the temporary caregiver, and there are certain definitions and limits to that. There are protections so that a person does not feel that once they have been locked in, in their mind, to a certain temporary position, it is permanent. They, or their friends or family, will have opportunities to have it reviewed again, or to step in and question what is happening. The opportunity for a formalized substitute decision-maker is very important, because that decision-maker is of benefit not only to the person who is in need of care but also to the family and friends. They will know who to go to when they have concerns about the particular person's needs.
I commend the community agencies and individuals who have worked so long and hard on the development of this bill and its presentation. I commend their continuing to act as the act is brought into being, to monitor and work with it and to work for changes should they be needed. I also wish to commend the
[ Page 8324 ]
Minister of Health, who has worked so ably with the community in this regard. I trust she will continue to work with them and represent their wishes here in this House. We will ask detailed questions for further clarification and understanding as we go through the committee stage, but it is a milestone to have this kind of bill come forward as part of the package of four that will be presented in this Legislature.
Hon. E. Cull: Once again, I would like to thank the hon. members for their support not only for this legislation but also for the community process that resulted in it coming forward today. The worth of any society is measured in how we treat our most vulnerable members. Indeed, this package of adult guardianship legislation will ensure that we here in British Columbia have some of the best, most progressive legislation, to balance the responsibilities of individuals and their autonomy and society's responsibility to look out for those who need some help in looking out for themselves. With that, I move second reading of the bill.
Motion approved.
Bill 51, Health Care (Consent) and Care Facility (Admission) 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. E. Cull: I call second reading of Bill 55.
HEALTH PROFESSIONS AMENDMENT ACT, 1993
Hon. E. Cull: The proposed Health Professions Amendment Act, 1993, is an extremely important bill because it is part of the legislation that is required for our New Directions for a Healthy British Columbia policy initiative. The government, as I think all hon. members know, defined a number of priority actions in our New Directions strategy that was released earlier this year. This particular piece of legislation addresses four of the priorities that were set out in that strategy. With our New Directions policy, the government made a commitment that, in consultation with all stakeholders, legislation regulating the health professions would be reviewed, and amended as needed, to ensure its consistency with provincially established principles regarding public protection, equity, due process, objectivity and accountability. To carry out this commitment, we propose in this legislation to expand the Health Professions Council, clarify the expectations of professional organizations and strengthen their accountability to the public.
[3:30]
This bill will allow the government to increase the size of the Health Professions Council, which is essential if the council is to take on the additional task of reviewing the scopes of practice and the existing legislation for regulated health professions in B.C. The council, which has served very well during the time it has been established, is composed of three individuals who have been working incredibly long hours, and very hard, doing good work for us. The bill will allow them to have a little bit of assistance so that they will not be shouldering so much of the workload. Currently, 15 statutes regulate 19 health professions in B.C. The council is now being asked to review that legislation to ensure that it sets up an appropriate regulatory framework which consistently serves the public interest. The council is being given the authority to sit as panels and review this so that they may get on with the job expeditiously and efficiently.
The bill also contains amendments to fine-tune the umbrella framework which the Health Professions Act provides for the regulation of new and emerging professions. Through an application process, the Health Professions Council reviews health professions that are currently unregulated and do not have self-governing status, to determine whether the designation of health profession under the act is in the public interest. The most recent example of an unregulated profession coming forward to the council is, of course, that of the midwives. The Health Professions Council had to review that application through a fairly extensive process to determine in the end -- and to so recommend to the government -- that it was in the public interest. That is the nature of their work.
Upon designation, a college is established to regulate the practice of the profession. This bill now contains a new section that sets out the duties and objects of the college so that there is no doubt that the duty of the college is to regulate the profession in the public interest. The bill sets out a number of objects that the college must fulfil in the performance of its duties. These include the following specific obligations: to superintend the practice of the profession; to govern registrants according to the act; to establish standards of education, practice and professional ethics; to establish a continuing competency program and a patient relations program in order to promote quality assurance and address sexual misconduct issues within the profession; and to provide information to individuals about their rights.
The development and implementation of protocols enabling British Columbians to have access to their own health care records was identified as a New Directions priority action. This legislation will mandate that action.
Also in the bill are provisions that expand the bylaw-making authority of a college established under the act. Among these are: the appointment of an auditor; the payment of special fees by registrants; and the establishment of two new committees -- a quality assurance committee and a patient relations committee -- a patient relations program and rules regarding access to health care records.
The other significant amendment to the Health Professions Act in this bill is the setting of a minimum proportion of public members on the board of a college. This bill would require that one-third of the members of a college board be public representatives. Again, this provision is one of our New Directions priorities and will ensure that there is an effective consumer voice on
[ Page 8325 ]
the college and a watchdog with respect to the regulation of every health profession in the province.
Other, housekeeping amendments contained in the bill include extending the filing date for annual reports from 90 to 120 days after the end of the fiscal year, providing for the transition of membership on both the Health Professions Council and the boards of professional colleges, and allowing only registrants to claim an association with the college.
I believe that these amendments will enhance the safe delivery of health care in B.C. by regulated health professions, and I move second reading of the bill.
[V. Anderson in the chair.]
L. Reid: I'm delighted to see the hon. member in the chair this afternoon.
In terms of responding to Bill 55, the Health Professions Amendment Act, 1993, we will be seeking a number of clarifications during committee stage of this bill. At the present time we stand in support of the intent of Bill 55, which looks at creating a framework to serve and protect the public. The Liberal opposition believes in serving the public. In terms of public accountability, any framework that can be put in place to ensure that that direction is enhanced, is supported by the communities at large and is supported by government is a direction in which we would like to see this government proceed.
I trust -- again, the hon. minister knows I have some interest in this area -- that we will be able to put in place a framework not just for current patients but for former patients. I believe we need to ensure that there is some recourse beyond the courts in this province for individuals whose practitioner has left practice. There seems to be some question about that. There seem to be some grey areas surrounding how individuals can seek recourse from a health care professional in this province who no longer practises. Does their governing agency -- their college -- have an ability to ensure that they are held accountable? There seems to be some clarification needed surrounding those issues, and if it cannot be resolved under Bill 55, we hope that it at least initiates the discussion and puts some teeth into the ability of the colleges to ensure that patient safety is always the number one concern and priority for any health care professional.
I understand from the minister that opticians, dental hygienists and midwives have applications in. I also understand that the association of marriage and family therapists is bringing forward an application. I would welcome those applications coming forward, because, again, it's an issue of public accountability. A number of individuals in this province have sought counselling services and were not able to ascertain whether or not the individuals who were offering themselves as counsellors had legitimate credentials to be engaged in that line of work. That is an issue because I believe people, particularly women, seek out those kinds of services when they're at their most vulnerable, and the ability to make decisions about somebody's legitimacy should not always rest with the consumer. I believe that the role of government is to set some of those standards. If the college framework is able to allow individuals seeking those services to have confidence around the individuals they select -- whether it be an optician, a midwife or, in this case, a licensed counsellor -- that is something the Liberal opposition would support.
It's really important that the public confidence is always the priority, and that there are some trust relationships that are highly regarded. Certainly, over time in this chamber you've heard me speak of the relationship between a student and a teacher. The relationship between a health care provider and a patient is an equally precious relationship, which I do not believe we can allow anything to tarnish. If this legislation allows individuals to have more confidence around these questions, the Liberal opposition would stand firmly in support of it.
One area that we will seek clarification on during second reading debate refers to the ability of professional organizations to conduct their business in terms of whether or not it positively reflects the public interest. On the surface, that is an acceptable principle. The issue becomes: who decides public interest? In this case is it solely the Minister of Health? Is it the Ministry of Health? Is there some way to broaden who may indeed make that kind of determination?
Let me give you an example that we would have some issue with. If colleges are able to determine competency around educational programs for their professionals, and if it is determined that that type of programming is not in the public interest, would it not be allowed under this legislation? That is the question we will be posing during committee, because we would hope that the public interest is clearly defined. At the present time we're reading it to be that the public interest will be defined by the Minister of Health. Indeed, if that was not to coincide with the government's view of the public interest -- and I refer specifically to educational programs -- and if the educational programs were somehow in conflict with what the minister determined to be public interest, would those programs be allowed to go forward? That is our concern, and it is an issue we will hope to examine in some detail as we move through committee stage on Bill 55, the Health Professions Amendment Act. Again, the power to determine public interest will determine the success of this piece of legislation.
It appeals to me in the sense that we must be accountable to the public. The expansion of the council to include lay members and non-care-providers on that council makes sense. It looks at ensuring that the public at large has a voice -- is not just perceived to have a voice, but truly has a voice. The nomination process as to how you end up on one of those councils can be refined to the extent that it is truly representative of different individuals and different groups in the community. I would like to see the rotation of those individuals continue to expand and continue to reflect a greater number of agencies and issues within various communities. I trust that this will be a timely body at all times, and that we will see new ideas, new expectations and new interpretations from the public reflect positively on the work of these various colleges.
[ Page 8326 ]
Right now I'm sure the minister is aware that there's a tremendous lack of public confidence in the college structure as it pertains to health care professionals in this province. I refer to the sanctity of those trust relationships, and if this legislation can somehow strengthen those relationships and return some level of confidence to the public, you will see the Liberal opposition support this piece of legislation.
L. Fox: It's a pleasure to rise and speak to the Health Professions Amendment Act, 1993 -- Bill 55. In reviewing this act, it's obvious that the Health Professions Council is going to have to be enlarged somewhat in order to look after its expanded mandate. It's appreciated by our caucus and recognized that it's very healthy to have health care deliverers be part of a health professional council or a college.
But what really rings a bell in this legislation, in my view, is something we've seen in most legislation from the Ministry of Health. While they're setting up a regulatory body which is supposed to be a body of professionals watching over professionals, this government, and this ministry specifically, has held on to the power within those organizations. In fact, it fosters the centralization of power to the minister herself by allowing her -- for instance, in this act -- the right to designate who the chair of this particular council is, as well as the right to always appoint the one-third lay membership of this particular council.
[The Speaker in the chair.]
It would seem to me that if this was truly a council representing the professionals and if the minister truly wanted lay people appointed to the board to look after the people's interest, then at the very least there would be a consultative approach used between the ministry and the professionals as to who those appointees might be. One would think the council itself would have the opportunity to choose the chair from within the structure, rather than the minister carrying the big hammer and the big stick and controlling the council by maintaining the right to designate who the chair is and appointing the chair through the Lieutenant-Governor-in-Council.
That to me is a disappointment, because I think what the bill intends to do is certainly the right thing. But what we see here is more centralization in power and the minister holding on to the big stick, so that she can have the last say and control this particular health council.
We will go over those issues at some length during committee stage of the bill, but obviously the intent of designing a council which encompasses more of the health care professionals and gives them a regulatory body for which to be responsible is a good move. I am just disappointed that the minister had to keep the big stick and the right to designate the chair and the one-third lay membership making up the council.
[3:45]
J. Tyabji: I want to comment, hon. Speaker, that your voice seems to have regained its natural lilt, compared to the previous speaker.
I rise to speak in support in principle of the bill. I appreciate that the bill is attempting to address some of the injustices that have been in the professional designation in the past, and how that has tended to break down by gender in a lot of cases.
One thing that I would like to flag as a concern is with regard to midwifery and the enabling legislation that we see before us for midwifery. The minister's intent, as I understand it, is to allow home delivery and, most particularly, to allow that in a pilot project.
I very much support the work of midwives and the move toward allowing them into the system. Where I have a concern is that it seems to me that there is going to be a great vulnerability among the midwives in advancing that concept. It is a new concept to B.C., in terms of legitimizing them and bringing them into the health care system. If there is a pilot project in home delivery, as I understand the minister is moving toward, whenever you have a pilot project, the reason you have one is that there is a reasonable expectation of the potential for failure. Where I have a concern is that there are many groups out there who would love to have a reason to not allow midwifery to continue. Home delivery is something that is potentially very risky, whereas allowing midwives to operate in the current environment that many of the health professionals operate in is, I think, the best short-term solution.
In terms of the enabling legislation and how it applies to midwifery, I hope the minister will consider what will happen if that pilot project doesn't succeed, and how any failure in that area is going to be used as a large black mark against the potential success of that group in the future. That is where I have a real concern. As I understand the minister's direction -- I very much appreciate the direction of the bill -- there is a risk in this one area. The risk that could be taken on by the midwives is in running before they walk. If it goes all the way to a pilot project and home delivery, and that project fails, that could then impact -- particularly if there were some kind of public relations campaign using that -- and it could make the entire group vulnerable in terms of this being a completely new concept that is being introduced to the health care field.
I want to flag that, because our Health critic has adequately addressed all the parts of this bill, but that happened to be an area that, from my perspective, should be talked about in terms of the potential that that group has to not succeed in the broader scope of things.
I look forward to the minister's comments in committee stage, as far as how a pilot project would be enacted, what the regulations would be, how the minister sees that translating in the event of the pilot project not being successful and how that would then be used against the ability of the midwives to be successful in the broader picture.
The Speaker: The minister upon rising closes debate.
[ Page 8327 ]
Hon. E. Cull: I could almost get used to this. This is the third bill I've brought in for second reading today that all hon. members are in favour of in principle. It's something that I hope we can continue.
I want to comment on just two things. One concerns the comments from the member for Prince George-Omineca with respect to the appointment of the chair. The history of this bill is a very interesting one, and I just went back to the statutes to make sure that I was correct in my understanding. The Health Professions Act, which was brought in by the former government, was unanimously supported by all members of this House when it was introduced. The provision that the member is objecting to is in the original bill. In fact, the clarification here is just to allow for more than one vice-chair. The only difference is with respect to the number of vice-chairs that are appointed. In any event, we can deal with that when we get to committee stage.
The other point is with respect to the comments we just had on midwifery. While they're very interesting and while I would be interested to debate the whole issue of midwifery with the member, there is nothing in this amendment that actually pertains to that. This amendment adds more members to the Health Professions Council so that they can do more work. It adds a requirement under the Health Professions Act that bodies that are set up to regulate health professions must have lay representatives on them and must meet a number of other requirements. But it's not in any way applicable to the question about the pilot project with respect to home births. I would like to suggest to the hon. member that if she would like to discuss that with me, I would be quite happy to talk to her about her concerns in that regard. With those few comments, we can deal with the rest of this in committee stage. I move second reading.
Motion approved.
Bill 55, Health Professions Amendment Act, 1993, 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. C. Gabelmann: I call committee on Bill 41, Notaries Amendment Act, 1993.
NOTARIES AMENDMENT ACT, 1993
The House in committee on Bill 41; M. Lord in the chair.
Sections 1 and 2 approved.
On section 3.
A. Warnke: Basically, what I would like to do throughout committee stage is seek some clarification. Under section 3 I want to focus for the first few minutes on section 43.3 entitled "Corporate registration." The new section 43.3(1)(b) indicates that "...all the voting shares are legally and beneficially owned by a member or members in good standing...." This section stipulates that the voting shares must be owned only by individuals who are notaries. Therefore I suppose it prompts one to ask: what if the corporation is partially owned by an individual who is not a notary? For example, the spouse of a notary may be part owner of a corporation, but the spouse may not be a notary. Therefore the question I would like to pose is: does this section preclude all non-notaries from being members in corporations?
Hon. C. Gabelmann: Section 43.3(1)(b) talks about voting shares. Non-notaries who may have an ownership in a company are not entitled to vote. They are not notaries, and therefore they have none of the rights conveyed by this statute.
The Chair: Just for clarification and to expedite what we're doing here, I think we'll call these sections as they appear here. We have passed over section 43.2, so with the indulgence of the committee we'll call section 43.2.
Section 3, section 43.2 approved.
On section 3, section 43.3.
A. Warnke: I believe the suggestion you put forward, hon. Chair, is a good way to expedite this process.
Still sticking with section 43.3, the way the section is worded, it appears that it would exclude the survivor control of the voting shares by a spouse, and so on, but these could be converted into non-voting shares under section 43.3(1)(c). Does this not limit corporate ownership and interests?
Hon. C. Gabelmann: Was the member's question: does this limit corporate ownership?
G. Farrell-Collins: Double negative.
Hon. C. Gabelmann: I should reply in triple negative and confuse us all. I'd like the member just to tell us a little more clearly, for my benefit, what he's getting at.
A. Warnke: Maybe the question could be rephrased as to the corporate ownership and interests with regard to those individuals in the example I used. Could we look at this section in such a context that the wording might actually exclude a survivor control of the voting shares by a spouse? I am wondering how these could be converted into non-voting shares under section 43.3(1)(c).
Hon. C. Gabelmann: The only surviving spouse who would have any rights is a surviving spouse who happens to be a notary. The bill governs notaries. It allows for the incorporation to include the people who are indicated in Section 43.3(1)(c). I think it's straightforward.
[ Page 8328 ]
A. Warnke: That's essentially what I wanted: some sort of clarification along that line.
I want to move further on to seek clarification on section 43.3(1)(e). I don't know if it's really necessary to repeat it here: "...all the persons who will be practising as notaries public on behalf of the corporation are members in good standing or" -- and this is what I want to emphasize -- "are under the direct supervision of a member in good standing." I suppose I'm seeking some sort of clarification here. Must a person who is providing the supervision be with the same firm as the person under supervision?
Hon. C. Gabelmann: I'm not certain I have this correct, but I'm going to try this answer, and I will be corrected on my left here if I'm incorrect. What we're talking about is ensuring that all people who are working in a notary office providing service to the public are under the direction of a notary when providing service that is connected with notarial activities.
C. Serwa: I have a couple of questions on section 3, section 43.3. It's difficult for me to understand why the name of the corporation has to include "notary" or "notaries." Was that brought in at the express desire of the notaries? Where did it come from? It seems to me that we have many other professional fields that do not have a similar type of restriction. This seems to be an anomaly. Perhaps the minister could clarify that for me.
[4:00]
Hon. C. Gabelmann: The way in which this wording was developed, as I understand it, was that when the request came in for the principle of incorporation to be included in the statute, the notaries were provided with standard language -- a draft provision -- which was based on other statutes such as the land surveyors, who have exactly the same provision in their statute. The draft language was given to the notaries. They looked at it and approved it, and they had no concerns about the use of those words.
C. Serwa: I appreciate the response from the minister. It's strange that members of his own caucus seem to find a great deal of humour in his response. I thought it was inappropriate. The response was fair and delivered squarely.
The second question I have is with respect to the restriction of ownership. There's some question in my mind as to why the ownership of a notary corporation should be restricted in such a manner. Was it an initiative of the notaries that they wanted the ownership restricted? Again, it seems very unusual. It's my understanding that all sorts of other professional corporations may be owned by other than the professionals in that corporation. They may be doctors, lawyers, engineers or any other professionally self-regulated department. Why is this ownership restriction placed on notaries?
Hon. C. Gabelmann: The same process of developing the language applied to that provision as in the previous one. This is comparable to other self-governing professions acts where incorporation is allowed. Again, the Land Surveyors Act is, I believe, exactly the same principle, and it's a sound principle.
What we're doing here is allowing professionals who offer a particular service that's governed by a statute to incorporate themselves. We're not talking here about a big company acquiring them and then using them as employees of the big company. That's not the kind of model that's envisioned. This is so that individuals who provide a professional service can incorporate themselves.
C. Serwa: Thank you very much for that explanation, hon. minister. I understood that a company was being incorporated rather than the individual. On that basis, then, I accept that.
V. Anderson: I read in 43.3(2)(b): "...a shareholder of the notary corporation was a shareholder of the notary corporation that previously had its permit revoked." If a person happened to be a minor shareholder in a corporation that did have its permit revoked, which was not the fault of that particular notary, is there a way for that notary to get back in? It almost reads that if you happened to be part of a corporation that had its permit revoked, you're prohibited from joining another corporation and coming back. I'm trying to clarify whether that's the intent, or whether there is a way for a person who has been in a corporation that lost its permit, for a reason other than that particular person, to come back in.
Hon. C. Gabelmann: This wording can be read on its face value. This allows the secretary the opportunity to refuse. It says that the secretary "may refuse" -- it doesn't say "must" -- permits to a notary corporation that previously had its permit revoked, and it also may catch a shareholder of a corporation that had its permit revoked. It's conceivable that the shareholder was not the cause of the revocation in the first instance; if that is so, the secretary wouldn't need to refuse permission upon the new application. But if there was some involvement, the secretary then has the ability to say no. It's a self-policing discretion, as we've established with quite a number of professional bodies.
V. Anderson: If the person were not allowed to come back in, my understanding, looking at 43.10, is that under section 36 they would be able to appeal that decision. So there is an option open for that.
Hon. C. Gabelmann: Yes.
A. Warnke: I also want to explore the exact section that the member for Vancouver-Langara raised. I suppose the question is: is this in all cases of shareholding? For example, if an individual has 5 percent or 10 percent of the shares, does it still disallow the issuing of a permit?
Hon. C. Gabelmann: My answer to the member for Vancouver-Langara applies to this question as well.
[ Page 8329 ]
It's a discretion of the secretary of the profession, and the appeal mechanism applies, as was noted.
Section 3, section 43.3 approved.
On section 3, section 43.4.
A. Warnke: This section stipulates that a notary corporation that holds a permit may provide only notary services, or it appears that way. Does this mean that a law firm that holds a permit can act as a notary, but...? Could the Attorney General submit to us some clarification as to the role of the law firm here?
Hon. C. Gabelmann: The member will tell me if this isn't the answer to his question. Sometimes I'm not precisely sure as to what the question is. Lawyers are able to do what is provided under their statute. They are notaries for the purposes of this legislation. Notaries are limited by the statute we have here in B.C. regarding what they can do, which incidentally is broader than anywhere else in the country. Notaries can do a wider variety of services here than elsewhere. I hope I've answered the member's question. Lawyers can do notary work.
Section 3, sections 43.4 to 43.6 inclusive approved.
On section 3, section 43.7
A. Warnke: This particular section stipulates that shareholders, directors, officers and employees may be required to produce all files and records for the purpose of the revocation of permits. We have seen on previous occasions that this is the general practice that is followed when a corporation is under investigation. The files and records are sealed when they are seized, and so forth. What assurances can the Attorney General give that this will be the case under this bill?
Hon. C. Gabelmann: Again, I think that the language, in our plain language style, is clear on the face of it. It provides a process for revocation which the directors will follow. There must be a hearing. They have other remedies. Maybe I didn't get the member's question clearly enough. I'm not quite sure what he doesn't see in this.
V. Anderson: On the same question, I understand that under the lawyers' fee bill, a client must give permission for files to be seized. Can the minister give assurance that it will be the case under this bill that the clients need to give permission before their files are inspected? What protection does the client have with regard to seizure?
Hon. C. Gabelmann: The frank answer is that I don't know. The principle is comparable to a doctor being investigated by the College of Physicians and Surgeons or a lawyer being investigated by the Law Society. When that investigation takes place -- as it will under this section -- there is an opportunity for the professional body to have the evidence it may need to pursue its case. In all those matters, the protection of clients is a paramount concern of the societies. Let's use the College of Physicians and Surgeons, because we have more experience with them than we do with the notaries. The college would not in any way jeopardize the confidentiality or privacy of a doctor's patient when they are doing an examination into conduct that might be under question -- similarly here. In principle, the rules and procedures are the same for all the self-governing professions. In a sense it raises the fundamental question of self-governing professions and if that is the appropriate way of dealing with this. As a society I think we have decided that it is, and you then have to allow them to properly conduct their investigation.
V. Anderson: I understand that when there are seizures, under Bill 8 there is a section which says that as far as lawyers are concerned, clients must act before those files can be inspected. They are sealed when they are taken, but the client must be asked. I am asking whether Bill 8 would apply here or whether there needs to be a similar provision comparable to Bill 8 that would apply to the notaries in that protection for the benefit of the clients.
Hon. C. Gabelmann: The member may have a point here which isn't addressed. That's the first thing I want to say, in all candour. As with most professional statutes, while it is a government bill, in many ways it's the property of the professional association -- in this case the notaries -- and this was the language that we agreed to introduce.
[4:15]
It is clear to me that the investigating arm of the association would never disclose or prejudice confidential records that may be seized as part of an investigation. However, I may not be answering this question to the member's satisfaction, and I'm not answering it to my own satisfaction -- I'll acknowledge that. I would like to propose that the precise question that both members have asked be raised with the association and that we see what their response is. By way of correspondence, I will undertake to get answers back. Following those discussions between all of us -- the members, myself and the association -- if we feel there is a need for further change, I would be very happy to consider that at the next session.
C. Serwa: I continue to read as we go through this bill, and I had asked a question of the minister on an earlier section. It is somewhat confusing to me, because as I read the bill section by section I note that most of the reference is to a private corporation rather than an individual being incorporated. From the minister's earlier response, it was my understanding that we were looking at an individual incorporating themselves. But as I read through section by section -- and certainly in 43.6 -- it appears to be more like a private corporation than an individual incorporating themselves. Would the minister just clarify that, because there is a substantial difference.
[ Page 8330 ]
Hon. C. Gabelmann: If an individual incorporates, that's a private corporation, so I'm not sure I understand the member's question. In respect to incorporation, nothing here is different, in principle, from the way lawyers are able to incorporate. By this amendment we are extending that option to notaries as well, and that's really all it is.
A. Warnke: I certainly appreciate the comments made by the Attorney General. To help the process just a little, I would like to propose an amendment to Bill 41, Notaries Amendment Act, 1993, and amend section 3, section 43.7 by adding section 43.7(5): "All files and records that are in the possession of the directors and that are about to be inspected, audited and examined under this act must be held in a secure manner until written permission is received from the client, or the file or record is otherwise dealt with on application to the Supreme Court."
On the amendment.
Hon. C. Gabelmann: I'm assuming it is in order, hon. Chair.
Interjection.
Hon. C. Gabelmann: I can see that it is intended as a friendly amendment.
My reaction is that this may or may not be a good amendment. It accomplishes an end that we have discussed and I acknowledge may well be an appropriate objective. However, given that this is a professional body's governing legislation, it would be wrong for me to proceed to change what we have reached by agreement without consultation with the professional body. I had offered earlier for all of us -- the members who are interested in this point, and myself -- to have these discussions with the notaries' society, and that offer continues. We can present this wording to them and see what they think. If they're in agreement with this or with wording similar to this that accomplishes that goal, I am quite happy to have that come back at the next session.
A. Warnke: Given the highly responsive response by the Attorney General, I'd be quite willing to withdraw the amendment at this time.
Section 3, sections 43.7 to 43.10 inclusive approved.
On section 4.
C. Serwa: I notice that this section 4 is in response to an oversight or mistake, perhaps, made in the 1981 draft of the bill. Were there other errors made in that 1981 draft that have come to the minister's attention that have not been recognized in this particular amendment?
Hon. C. Gabelmann: No. As far as we know, the government of the day only made one mistake in that bill.
C. Serwa: I should quit while I'm ahead.
It has come to my attention, for example, that due to an oversight in the 1981 draft, the Western Communities in the Victoria area do not have any notaries. I am somewhat surprised that this hasn't been brought to the attention of the Attorney General. That oversight should have been attended to in this same amendment.
Hon. C. Gabelmann: That wasn't as the result of an oversight. I'm not sure how well developed the Western Communities were at that stage as compared to now, given the growth in that part of the province. But the society has not identified any additional seals that need to be included, other than the one in Quesnel.
Sections 4 and 5 approved.
Title approved.
Hon. C. Gabelmann: Hon. Chair, I move the committee rise and report the bill complete without amendment.
Motion approved.
The House resumed; the Speaker in the chair.
Bill 41, Notaries Amendment Act, 1993, reported complete without amendment, read a third time and passed.
Hon. C. Gabelmann: I call committee on Bill 44.
LIQUOR CONTROL AND LICENSING AMENDMENT ACT, 1993
The House in committee on Bill 44; M. Lord in the chair.
On section 1.
C. Serwa: This section limits the minister's control over the general manager of liquor licensing to matters of general policy. Perhaps the minister could explain why we're transferring more authority from the minister to the general manager. It is not untypical of what has been happening in the government in terms of transferring responsibility to the bureaucracy. I would like the minister's response on this.
Hon. C. Gabelmann: What we've done is ensure that ministers responsible for liquor licensing will not by statute have the opportunity -- whatever word one might want to choose -- or be tempted to direct the licensing branch favourably or unfavourably on a particular application or amendment. Members who have paid attention to political history in recent years in this province will remember that ministers have occasionally found themselves in trouble by that kind of activity. It was a practice in the very last days and, I guess, last few years of the former government to have the minister responsible indicate by letter to the general
[ Page 8331 ]
manager that the minister would not interfere. I did the same upon taking my responsibilities.
I believe, and our government believes, that it's important that the statute be very clear. What we're saying by way of these amendments is that general policy direction and policy matters are in the hands of the government. We will provide direction to the licensing branch in that respect, but particular applications for licences, amendments to licences or variations or whatever will be dealt with by the licensing branch without any interference of any kind by the minister. I think that's the right public policy.
D. Mitchell: The hon. Attorney General, during second reading debate on Bill 44, was very brief in his remarks. Shortly after he assumed his responsibility as Attorney General he indicated that no changes would be brought in to the Liquor Control and Licensing Act without consultation. With respect to section 1 or, indeed, any other section of the act, could the minister tell the committee what specific consultations he engaged in with the hospitality industry, the hotel owners or the Neighbourhood Pub Owners' Association of B.C. prior to introducing Bill 44 in the House?
Hon. C. Gabelmann: As I think a lot of members know, there is constant discussion with the representatives of people involved in the liquor business in this province. There is a wide variety of interests, and they are all quite vocal in advocating their particular initiatives, causes and goals. With the exception of section 1, which is a government initiative and not something the industry has been consulted on particularly -- it's something we're going to do because we think it's the right thing to do, but certainly they know about it -- in general, discussions have gone on at great length, and a number of the amendments are in fact the result of representations and discussions.
Section 1 approved.
On section 2.
D. Mitchell: My understanding of this section is that the addition of subsection (2.1) to section 11 of the act will ensure that the general manager cannot impose conditions on a licence that are not already in the act and the regulations. What is the point of the general manager having the power to impose terms and conditions with this limitation now specifically imposed?
[4:30]
Hon. C. Gabelmann: This is to clarify and make lawful that the general manager cannot, by his own decision, go beyond what is allowed under the regulations. Believe it or not, I understand that some licence holders have argued that the general manager should in fact extend hours or add seating, for example, beyond what is provided for in the regulations. This is to make sure that the general manager does not have to listen to those kinds of representations. The regulations are what will apply, and if this passes, no individual exceptions can be granted by the general manager.
D. Mitchell: I take it, then, that the hon. Attorney General is saying this addition to the act is going to ensure that the general manager will follow the act or the regulations pursuant to the act -- will, in other words, follow the law. Can the Attorney General cite experiences in the past when the general manager has broken the law?
Hon. C. Gabelmann: I think it's simply to prevent people arguing that the general manager has discretion in this matter. It will be clear now that there is no discretion beyond the regulations.
D. Mitchell: Can the Attorney General tell us if discretion has been exercised in the past in such a way that has contravened the spirit of the act or its regulations?
Hon. C. Gabelmann: Certainly not in the recent past.
Section 2 approved.
On section 3.
A. Warnke: The amendment in section 3, which adds 3.1(b), stipulates that "a special occasion licence shall not be issued except to a person who is not a minor and who, although not a resident of the Province is approved for a special occasion licence by the general manager." Other stipulations indicate that the individual must not be a minor; however, in this amendment the stipulation is not a resident of British Columbia. Therefore I'm seeking some clarification.
For example, if a person from the province of Alberta who is 18 years old, the legal drinking age in Alberta, applies for a special occasion licence, will that person be able to obtain a special occasion licence?
Hon. C. Gabelmann: No, the law in respect of a minor would be the British Columbia law.
D. Symons: I have a very brief comment on the wording. I hope we're moving toward plain language, but I have difficulty with things like the special occasion licence shall not be issued except to these negatives. Often it's much better if you can get into positives; it makes it more clear and easier to understand. It's not very bad here, but in other cases it gets extremely difficult to understand.
Hon. C. Gabelmann: If the member would look at it, he would see that it is very hard to put that in the positive. You don't want to say that a special occasion licence shall be issued to a person who is not a minor. Sometimes we have to depart from the plainest of language in order to make sure that the law is clear.
Section 3 approved.
[ Page 8332 ]
On section 4.
A. Warnke: This particular section permits the general manager to take action -- with or without a hearing -- issue a warning, impose terms and conditions on the licensee's licence, rescind or amend existing terms and conditions on the licence, impose a fine within the limits prescribed and/or suspend or cancel the licence in whole or in part.
In the old section 20, the owner has a right to an appeal if the suspension is more than three days. The new section gives the general manager carte blanche in terms of discretionary power, but the owner is not given any opportunity for the case to be heard in an appeal. I would appreciate it if the Attorney General could clarify the intent of this section.
Hon. C. Gabelmann: The member may recall that last year Bill 58 amended -- or in fact repealed -- section 20 with some wording which the House passed, as I said. That was not proclaimed. What we've done with sections 20, 21 and 22 is take them out and replace them in order to make really clear what the rules are and what the rights of the general manager are in terms of action he can take. There are no new powers granted. I think this is really just to make it clear and evident as to what the powers actually are.
D. Mitchell: The new section 20(3) deals with the general manager's powers to suspend or cancel licences. I have a concern about whether this section is too restrictive in terms of the branch's ability to manage. Section 3(a) says that the general manager can cancel a licence if a person has been convicted of an offence against prescribed laws of Canada or British Columbia. Offence is not defined, and presumably that will be defined by regulation later on. I wonder if the Attorney General can shed some further light on this particular section and what is intended. What powers are being given to the general manager? In terms of my specific concern, I wonder if the general manager is being given power to suspend or cancel the licence of an individual who may have been convicted of an offence that doesn't have anything to do with his or her licence. It might be a driving offence that has nothing to do with their ability to manage the operation of an establishment. There could be myriad other examples of offences. I think the Attorney General can see where I'm going with this. There is potential abuse here with the ambiguity. What is actually intended by this section?
Hon. C. Gabelmann: First of all, let me back up a little. The member may have made a point that I want to consider. I didn't mean it that way -- I want to consider all points the member makes. The language is the same as it has been for many years. The old act says: "The general manager shall suspend or cancel a licence held by a person who has been convicted of an offence...." That has been in the provision, and that stays.
There is no prescribed list, by regulation, of offences that would be covered by this section. The practice is that somebody who gets a speeding ticket or that kind of thing isn't going to lose their liquor licence as a result. So the practice is to have this as an enabling part of the bill, to be able to give the manager the power that he needs in the event that an offence is committed that makes it a good public policy to take that licence away. That's what it's about. The "shall suspend or cancel a licence" is exactly the same.
D. Mitchell: I understand what the Attorney General is saying, but I think he would agree that the language is very extensive and very strong. I wonder if the Attorney General would consider an amendment to the word "shall." What is said here is that it will become incumbent upon the general manager -- it will become mandatory -- to suspend the licence of any individual who has committed an offence, even though offences are not defined. That could be for any conceivable offence, and I think that's rather too extensive and too restrictive on the branch and the general manager. I wonder whether the Attorney General would agree that an amendment might be in order to change the word "shall" to the word "may," for instance, which would allow some discretion, because I think some discretion is needed here. In other words, in section 20(3) "the general manager may suspend or cancel a licence" might be more appropriate than "shall." Would the Attorney General consider an amendment along those lines?
Hon. C. Gabelmann: The member was getting to me, and I was almost prepared to accept his recommendation. Before I do that, I just want to try the argument on. If you look at 3(a), it says: "...has been convicted of an offence against prescribed laws of Canada or the Province...." That requires us, by regulation, to develop a prescribed list, so the traffic ticket and that kind of item is not likely to end up on that kind of prescribed list. The provision that is there -- that the manager shall suspend -- has been in place for the longest time; it has worked and hasn't created a problem. No one has raised it as an issue until this very moment, to my knowledge, and the fact that it is working well tells me that we should probably leave it the way it is.
D. Mitchell: I take it, then, that the minister is saying that there will be a list of offences developed and categorized by regulation, and that these prescribed offences will be the ones that will become mandatory for the general manager to take action on, under this section of the act. Can the Attorney General tell the committee that when that prescribed list of offences is developed and made public by regulation, there will be no discretion left to the general manager in terms of any other offences for him to take action on under this section of the act?
Hon. C. Gabelmann: The member makes a good point, and that is one of the reasons why there has been no prescribed list of offences to date. Should some significant activity be taking place -- let's say smuggling -- we want the ability to prescribe it, to enable the general manager to have these powers.
[ Page 8333 ]
Cabinet would be able, by regulation, to prescribe a particular offence. The general manager would then be enabled to use this section. In the meantime, failing a list, the section can't be used.
D. Symons: With the minister's answer to that last question, I am even more concerned than ever, because it seems he is saying that we are going to change whatever inappropriate behaviour a person might have had in the past.... We can change at will what we decide makes a person liable to lose their licence or not. From the way this is worded and the way I would interpret it, the concern I have is for somebody who has committed a crime 20 or 30 years ago, because it simply says "has been convicted." They have served their time, or whatever; they have done their payment to society and are now trying to lead a rather clear life. You indicate that it is possible now, because smuggling is evident and they might have done some smuggling 20 years ago and have now reformed their ways, that suddenly the crime they committed will now be prescribed and they could lose the licence. They would have to lose the licence, according to the way this is worded.
[4:45]
Hon. C. Gabelmann: I suppose that, theoretically, it is possible it could apply to a conviction from long ago. That is certainly not the way it would ever come into play, and it hasn't so far.
What we want to try to accomplish here and what this Legislature has tried to accomplish for almost the last 20 years that the provision has been around, is to allow the general manager, should events occur, to have the authority to deal with a particular problem, together with cabinet. That is what this allows. There is nothing more to it than that.
A. Warnke: I just have one quick question to follow up on something I asked about earlier. I think the question I posed was rather long, and there were two parts to it.
In the old section 20, the owner has a right to an appeal if the suspension is for more than three days, and that would not go into effect until after the appeal. But the way this section appears to read, the owner is not given an opportunity to have an appeal to be heard. Perhaps the Attorney General could clarify that.
Hon. C. Gabelmann: This provision actually works better than the previous rules for licensees who face a potential suspension. I should say that this is consistent with the language in Bill 58, which we passed last year. It's the same provision.
What happened historically was that the suspension would apply and then the licensee would have up to three days to appeal. Under these rules the licensee can reopen the premise immediately upon launching an appeal. The three-day period is not there now; it's an immediate reopening, pending resolution of the matter.
C. Serwa: Section 20(3)(a) states: "...has been convicted of an offence against prescribed laws of Canada or the Province...." For my information, is that a new addition to this particular section?
Hon. C. Gabelmann: It's a new way of saying it. When we had sections 20, 21, and 22 in place, it was a more convoluted way of saying the same thing. We have tightened it up and made it clearer.
The old act -- which the member's colleague had the honour of administering not too long ago -- had the same provisions, but it took a few extra sentences to say it. It stated: "...convicted of an offence against those of the laws of Canada or the Province prescribed by regulation...." We have simply said: "...an offence against prescribed laws of Canada or the Province...."
Sections 4 and 5 approved.
On section 6.
D. Mitchell: Section 6 deals with public safety. I think this is an interesting section of the bill. I'd like to ask the Attorney General a specific question on section 24(1). It says that "where in a licensed establishment the conduct of the licensee's patrons or employees is of a riotous, violent, drunken or disorderly nature, or the safety of one or more persons in attendance at the licensed establishment is threatened," the general manager can then suspend the licence and order the immediate removal of patrons for 24 hours. These are rather extraordinary powers, and there has been quite a bit of commentary on how these powers would be exercised. First of all, who would determine what is disorderly behaviour? Who would provide advice to the general manager? Would the general manager decide on his own? On whose advice and recommendation would he be acting?
Hon. C. Gabelmann: The general manager makes the decision. I should point out to members that the old language was: "Where in a licensed establishment the conduct of the licensee's patrons or employees is of a riotous, boisterous, drunken or disorderly nature...." We took "boisterous" out. Members can perhaps understand why that was the case. We have added "or the safety...." We've put the safety provisions in, responding to concerns expressed by various people in recent years.
D. Mitchell: I'm not sure why the Attorney General took "boisterous" out. Presumably it was to safeguard members in our parliamentary dining room -- I'm not sure.
The issue is an interesting one. Presumably this section has been added to the act to deal with extraordinary circumstances, such as unfortunate incidents in recent years at the Kelowna International Regatta and the Penticton Peach Festival -- different events where disorderly conduct has given rise to riotous behaviour and public drinking. I suppose that in extraordinary circumstances like that, extraordinary measures are required. But these powers are rather scary.
[ Page 8334 ]
If the intention is to address those kinds of events, I'm not sure that section 24(1) really does it all that well. There is a question about who determines which event. There has even been some comment that the intention might be to address situations that might occur on what is sometimes called welfare Wednesday, when on the downtown east side in Vancouver some pubs are quite active and disorderly conduct occurs. Would it be the intention of the Attorney General that the general manager close down all those pubs on welfare Wednesday? If that's the case, wouldn't that just be moving the problem elsewhere? Who is going to determine what is disorderly conduct, and how is the general manager going to exercise this very extensive power responsibly? To whom is the general manager accountable, and how is it going to be exercised? That's what is not clear by this section at all.
Hon. C. Gabelmann: First of all, we're on subsection 24(1). I think the member is talking about subsection 24.1(1) as well. I want to make it clear which section the member is talking about.
If the member is talking about subsection 24(1), there is nothing new other than the elimination of the word "boisterous" and the addition of the words "or the safety of...." Otherwise, it is as it has been for many years. I don't think we've done anything in that amendment that changes much -- other than to ensure that safety can be a consideration if there is going to be a 24-hour suspension, which the general manager has the ability to delegate if warranted, for example, to the RCMP in a particular municipality.
D. Mitchell: The Attorney General is quite right: I was referring to the new section 24.1 in addition to this. Part of the issue is that this act gives the powers to the general manager -- and gives them to the general manager alone. That's one of the features of this bill. The Attorney General referred to that being one of the essential features of this bill during second reading debate, as well. Powers are taken away from the minister and given to the general manager -- rather sweeping powers.
There is the question about who defines "disorderly" under subsection 24(1). Under subsection 24.1(1), which the Attorney General has noted, the general manager has the power to "suspend or impose conditions" for 24 hours "if, in the general manager's opinion, it is in the public interest to do so." Who defines disorderly behaviour in subsection 24(1)? Who defines the public interest in subsection 24.1(1)? These are rather sweeping powers. They're given to an unelected official. It's rather scary. Can the Attorney General talk about the accountability?
Hon. C. Gabelmann: Sometimes events around these issues are rather scary too, and we need to find ways of ensuring public safety is protected.
Section 24.1(1) says that if it's in the public interest to do so, the general manager may suspend for up to 24 hours. That's the general manager's decision -- his alone. The minister doesn't make it, and that power cannot be delegated, as the power in the previous section can be. This is a power, I grant, that is new and is given to the general manager to protect the public interest.
If the general manager makes a decision to suspend a licence or licences for up to 24 hours, and the licensee who has had the licence suspended feels it was unjust or wrong or that there was a miscarriage involved, there is a civil remedy. The general manager is subject to a writ; damages could be sought. This is not a power that would be exercised lightly, because there are obviously potential economic downsides. This is designed to try to deal with issues which have been identified.
There was a report done, chaired by former Chief Snowdon of the Victoria police force and commonly referred to as the Snowdon report, which made a number of recommendations to government, most of which we have now implemented. Following the report, further discussions were conducted by the ministry. There have been ongoing discussions with various municipalities around these issues, and this was seen as a way in which we could ensure that the public interest could be protected. It's a limited period, and there are civil remedies if the use of the power exceeds appropriate bounds.
D. Mitchell: My concern about the section is that it certainly could be misinterpreted. I refer the hon. Attorney General to 24(1), which says that when "the safety of one or more persons in attendance at the licensed establishment is threatened," the general manager can take some action. In that specific case, who would determine whether or not the safety of a patron of an establishment was threatened? Would it be the police? Would it be the general manager? Would it be the owner of the establishment? Who would decide if someone was being threatened? I'm asking for something very specific here in section 24(1), where it says that a closure of 24 hours can be ordered by the general manager if "the safety of one or more persons in attendance at the licensed establishment is threatened." Who determines that?
Hon. C. Gabelmann: In 24(3) the delegated officers and peace officers would make that determination. I think the answer is the police.
D. Mitchell: Hon. Chair, I have some concerns about this. The hon. Attorney General is telling us that the police are now brought into the picture. It's not the general manager or the branch that has the ability to take the rather extraordinary action to deal with public safety in this amendment to the section that we're dealing with. Now the police are brought into the equation.
[5:00]
He referred to (3). He's quite right: the police are referred to there. In fact, it refers to specified officers and peace officers. I believe this is basically taken from the previous section, and it certainly has some merit. I think it pretty well repeats the old provision in the act. I wonder whether or not any consideration has been given, rather than indicating specified officers or peace
[ Page 8335 ]
officers, to naming liquor inspectors or referring to a position within a police detachment rather than an individual who may or may not be available or accountable at a later time. I wonder why these extraordinary powers are being delegated to the police force under this bill in this manner. If the Attorney General can shed some light on that, we might be able to proceed.
Hon. C. Gabelmann: The delegated or specified officers and peace officers would be the.... First of all, the peace officer would be the officer in charge of the detachment, if it was an RCMP jurisdiction, or the police chief in one of the jurisdictions the member represents. As far as specified officers, this would be senior.... Regional liquor inspectors could be so designated as well.
D. Mitchell: I'm not clear, then. The Attorney General indicated to the committee that it would be the police who designate action to be taken if disorderly behaviour takes place. But now he's saying it could be an individual liquor inspector as well. Is it one or the other? Is it both working in tandem? How would that actually function? What would be the mechanics?
Hon. C. Gabelmann: It could be either of the individuals, or it could be both of them working together. What we're looking at.... I know there's always a desire, and appropriately so, to protect the public interest against intrusive government. But on the other hand, we're also trying to respond to a very real concern on the part of some communities where, through either the chief officer of the local police detachment or the regional liquor inspector, we need the authority to be able to close down a potentially troublesome situation. It's for a limited period of time, and there's a civil remedy if it's done capriciously. That is an important arsenal in our hands in terms of trying to prevent the kind of disorder that has happened on occasion, and we want to make sure that it doesn't happen. I think all members would want to.... I don't want to disparage particular communities, but we all know there have been problems in some communities in recent years. If we can find ways of preventing that, we want to make sure that we do.
D. Mitchell: Could the Attorney General, then, in speaking to section 24(3), where the general manager has power to delegate to specified officers or peace officers.... Apparently there is no problem in delegating this power to an individual liquor inspector. But I understand there have been problems with naming an individual officer, such as Staff Sergeant Smith. Police from different forces have asked whether a position or a force could be specified. Why are we asking for a specified officer to be named under this section? Is there a reason for that?
Hon. C. Gabelmann: It's the designation of the position, not the name of an individual. So it would be the officer in charge of the detachment or the regional liquor inspector.
L. Fox: The Attorney General mentioned earlier that the only change in 24(1) was the fact that "boisterous" was taken out. Of course, later on we see in 24(3): "The general manager may delegate to specified officers...." I guess the first question I have to ask is whether or not there's going to be an increased emphasis on this 24-hour suspension process from what we've seen in the past. I've seen evidence over the years of situations where a licensed premise has allowed people to drink beyond where they should be, and then a barroom brawl erupted. Would this be used as a disciplinary action in those kinds of situations?
Hon. C. Gabelmann: I think members need to separate discipline from the immediacy of an issue, where you need to close it down because of an imminent problem. Discipline is a separate issue. I don't envision this being used as a disciplinary mechanism. Although it's possible that the discipline might end up being a 24-hour suspension, it wouldn't be as a result of this particular provision.
D. Symons: I just have three thoughts, and I'll put them all out together to save time. Firstly, I'm assuming from what you said just a moment ago that this is partly pre-emptive, because you have in the middle of section 24(1): "...establishment is threatened...." I am concerned about the response time here. I suspect that what would happen is that some event would take place at an establishment or on the streets, the police would be informed, the police would come and they would have to seek the authority to close it down. There would be quite a time lag, and so most of the damage or whatever could have taken place by then. So I suspect the important word here is "threatened." Would that be true?
Secondly, could it be a blanket suspension? It keeps talking about a licensed establishment, and I suspect that there could be a number of them. It might be necessary to close down every establishment in a particular town if the situation was getting out of hand.
Thirdly, would this close down the pubs in a particular area but still leave the liquor control branch's liquor stores open? I don't see that they're mentioned in this.
Hon. C. Gabelmann: Dealing with the issues in reverse order, liquor store closure is not included specifically in this. In situations of this kind, the local manager of the liquor store would be involved in the discussions with the police and whoever. If it was felt that it was necessary to close the store, then I have no doubt whatsoever that the liquor store manager would simply close the store -- and that's appropriate. Or the liquor store manager may take some other kind of initiative to prevent a run on cans of beer or something. There are mechanisms available there.
On the closing of several establishments at once, that would be done under section 24.1, not under 24(1) which deals with a particular licensed establishment, whereas 24.1 would allow, theoretically, a.... Let's just say that it was in the public interest to close every cabaret in a particular community in the Okanagan at a
[ Page 8336 ]
particular time. Then the general manager could do that under 24.1.
On the first question, I think the word "threatened" is there deliberately so that if the police feel that there is trouble brewing, they can act slightly in advance so that they don't have to try to pick up the pieces afterwards.
V. Anderson: In 24(1), the emphasis there is on: "Where in a licensed establishment...." I'm thinking of the complaint we often have in the city where an establishment closes down at one or two in the morning, and night after night the neighbours are disturbed. Does this enable something to be done? That's happening outside the establishment, but it's a result of what's going on inside the establishment. Is that covered here as well?
Hon. C. Gabelmann: The general manager of the liquor licensing branch has no jurisdiction outside the licensed premise. What happens on the street is a matter for the police.
J. Tyabji: I apologize to the Attorney General for not being able to participate in some of the debate, so I may be asking questions that have already been answered. Have we covered the definition of public interest and the extent to which public interest is discretionary?
Hon. C. Gabelmann: We have, in a general way, canvassed that issue. Definition of the public interest is for the general manager to determine in the first instance, but he would obviously do so in the context of the common law that has been determined over the years by various court decisions. Of course, as I said earlier, a decision of the general manager is always subject to a civil remedy if he is acting in a capricious manner. If there are some pecuniary damages to the licence holder as the result of an inappropriate closure, then there is a civil remedy for the licensee. The public interest is fairly broad, and I acknowledge that. It's to be determined by the general manager in the context of case law.
J. Tyabji: Will the Attorney General provide some guidelines to the general managers to assist them in their determination?
Hon. C. Gabelmann: I haven't considered that question. It's one that I think I will consider. Whether or not regulations should be attached to help provide guidance is not something we've looked at, but I'm quite happy to do so.
J. Tyabji: Section 24(1) talks about conduct "of a riotous, violent, drunken or disorderly nature." In what manner will the general manager be informed of this conduct? Will there be routine inspections of licensed facilities, or is it going to be when a complaint is called in? How does this happen?
Hon. C. Gabelmann: Again, we've really dealt with that. In subsection (3) the member will see that peace officers -- the local police or local liquor inspector, being a designated officer -- who are generally on the scene are available to deal with these issues. It's something that's going to be dealt with as it happens, presumably by the local police.
J. Tyabji: This may also have been dealt with, but 24(3) talks about specified officers. Has a definition been provided for that already?
Hon. C. Gabelmann: I appreciate that all members can't be in the House at all times so I won't pick on the member, but we have talked about that. We're talking about regional liquor inspectors in that case.
The other thing I should note for members is that because of the way we have constructed the amendments, for the most part we're actually debating existing statute law rather than amendments. In this particular case the law was amended in 1989. In almost all of these amendments we're talking about existing law, and because of the way we've constructed the words in order to clarify it and make it simpler we're actually going beyond the amendments.
J. Tyabji: A final question on the specified officers. Is the Attorney General confirming that there will be no discretion as far as who will be specified officers? There's a designated class of people, and it will be the regional liquor licensers. Is that the answer?
Hon. C. Gabelmann: As I understand it, the term "specified officers" was chosen to deal with communities where there may not be a liquor inspector. For example, my community and that of the member for Powell River-Sunshine Coast share a liquor inspector. He has a vast territory to cover. I think his coverage goes into the riding of the Chair of this committee as well. There may be instances -- although I don't have any in mind at the moment -- where the general manager may want the opportunity to specify some other person to act in a particular situation. It's the kind of provision that would be enabling.
[5:15]
J. Tyabji: In that instance, will guidelines be provided by the Attorney General's office to those areas where it wouldn't be...? For example, in areas where those regional licence officers are, would it be assumed that they would be chosen rather than someone else? Would there be discretion in areas where a licence officer does exist?
Hon. C. Gabelmann: The intent here is to allow for the officer in charge of a detachment or municipal force, and the regional liquor inspector. But we haven't named it specifically, to allow for the possibility of another individual or position being designated as a specified officer. The rules under which they would operate would be established by the general manager. And the rules the general manager imposes are the responsibility, in this case, of the Attorney General; therefore they would be my responsibility at this point.
[ Page 8337 ]
J. Tyabji: The way I understand it, then, is that each regional manager would be able to draw up the rules by which they would designate specified officers, for approval by the Attorney General. Would there be one set of rules?
Hon. C. Gabelmann: Let's just go back and look at what we're doing. We want to enable the local police or regional liquor inspector to shut a place down for 24 hours if there is a problem as defined in subsection (1). That power has existed before, and we're simply clarifying it and changing a few words which do not change the principle. The general manager of the liquor control and licensing branch will make the decisions about who is specified. It will not be named individuals; it will be named positions. It will be very limited, because in most cases the local police and the regional inspector are quite sufficient. I might say that all of this has been in place since 1975.
J. Tyabji: I understand that there is a principle involved here. I'm wondering, though, how that principle is safeguarded in this legislation. I'm not sure if I'm hearing the Attorney General say there will be set guidelines to limit who the specified officers are. If I'm wrong, maybe the Attorney General could correct me, but the way it's written here, it sounds like the principle is that there will not be regulations guiding the regional managers; that in areas where there isn't a licensing officer, the regional manager has discretion to appoint a specified officer, but there aren't any guidelines accompanying the bill as to who those specified officers might be. As the legislation is written here, it seems like there's the opportunity -- if that principle is not that well understood -- for there to be some room for the regional manager to manoeuvre.
Hon. C. Gabelmann: One of the problems we have with this is that in 18 years we've never used this power. Hopefully we will never need to use it. The member talks about regional managers. Let's be clear: we're talking here about the general manager of the liquor control and licensing branch having the authority to designate an individual -- usually the officer in charge of a detachment and/or the regional liquor inspector -- as a specified officer, to have the power to impose a closure for up to 24 hours, in the event that there is riotous or disorderly behaviour, or some concern about safety in an establishment. That's all we're doing here. It's a clarification of an existing procedure which hasn't been used.
L. Fox: I really don't want to belabour the point too much, and I recognize that the minister suggested this authority has never been acted on since 1975. I think the minister will agree that, with the general manager now having the ability to delegate these powers, rather than the process that was there before, and given that now there is a new emphasis placed on it, it may in fact be utilized. I have no concerns at all about the flow of the authority as it affects one establishment. The only concern I have is that if a decision is made by a peace officer to shut down all licences in a community, I see no provisions in this act for dialogue with the community leaders. Perhaps the minister might suggest, in policy or in regulation, that there may be some way of creating dialogue so that we don't have one officer perhaps overreacting to a situation and causing a riot because they shut down all the bars. I hope that there is some process for dialogue with the community leaders before that determination is made.
Hon. C. Gabelmann: The first point I want to make is that the delegating authority has existed since 1975. So that is not new; we have had that. The hon. member's colleague was responsible for that particular provision during his term as Minister of Labour and Consumer Services, I think. So that is clear.
The ability to shut down in the public interest for up to 24 hours is not available to a peace officer; it is only available to the general manager. That is section 24.1. Section 24, in the middle of the page, has the ability to delegate. That is only for individual licensed premises, in the event that there is a threatening problem, as defined in the legislation. A consultation with the mayor or council members in a community may well occur. Clearly, if there is a very significant public disorder problem developing, many mayors see it as their responsibility to head down there and talk to the police, and they have that kind of dialogue. Some mayors may not. The mayor may be out of town or unavailable. So you have to play these things a little bit by ear and give the police some authority to act in an appropriate manner. In 1975 the Legislature recognized that and gave that power; by these amendments we are not giving that power to shut down for matters of public interest. We are leaving that strictly to the general manager, and that is section 24.1.
L. Fox: I just have one follow-up. All I will say is that the general manager obviously wouldn't be in that respective community, and the dialogue would take place between the peace officer and the general manager. I guess the peace officer would be casting his judgment, interpreting it from his perspective, and passing it on to the general manager, looking for that authority. So you still have a situation where an independent peace officer could be determining that it is necessary and passing that emphasis on to the general manager. That is the only concern I have: that hopefully before a general manager would invoke that power, the municipal leaders would be contacted and some kind of dialogue would take place.
Hon. C. Gabelmann: Absolutely. So far I have refused to name particular communities, but let's just take Penticton in recent times. The general manager had one of his senior deputies in Penticton during the whole course of that weekend. The police, the mayor and probably some council members, and the liquor control and licensing branch were constantly involved in discussion about what to do and how to do it. That is the way it works. You cannot effect this kind of discipline and these kinds of procedures without having appropriate consultation with the community. We would be foolhardy to do it otherwise.
[ Page 8338 ]
V. Anderson: I raise a question which would apply to both section 24 and section 24.1. If the general manager is out of the country on holidays, what provision is there to replace him? There are none here in the act. Normally there's someone else.
Hon. C. Gabelmann: There's always a general manager. If the general manager is on holidays or out of the country, his deputy.... At least under the Interpretation Act, if there's no specific provision made, then there is always somebody who has the authority granted to the general manager.
J. Tyabji: I won't go back to that point, because I think we've canvassed it. I appreciate the Attorney General's answers, but it would be wise to have some regulations and guidelines that maybe speak to the common law to help guide the general manager.
Just for the information of the three previous speakers, everyone was talking about the general manager and the licensing officer using "he," so I'd just like to say "he or she" or "his or her," just for the record.
Hon. C. Gabelmann: In this case it is a he.
J. Tyabji: Well, maybe we have to provide for a more enlightened future.
I don't see a reporting process in place. I wasn't here for the debate on section 4. I wish I had been, because there is a lack of accountability and reporting process for the general manager in section 6 and in section 4 -- but we have passed section 4. So in section 6, where is the reporting process in the event that public safety is protected by these measures being enacted, recognizing they haven't been for 18 years? Is there going to be some audit or monitoring system? Will the Attorney General, for example, receive a report from the person who exercises these powers, with a written justification as to why it was done?
Hon. C. Gabelmann: First of all, the general manager is accountable to the minister -- in this case, the Attorney General, as it's now organized. I would imagine that if this kind of event happened, I would have a report on my desk giving me an explanation of what happened. I am accountable to the Legislature while it sits and accountable in the hallway every day of the year, so there is considerable accountability at the political level. The other accountability that is always available is on behalf of the licensee, because the licensee can either go to court or, if there is some continuing issue, there are provisions for hearings. All of those remedies occur, but if the member is asking for some further accountability beyond that, in my view the answer is that none is needed. There is plenty of public accountability in this respect.
We are not talking about somebody being shut down for a year just because there's trouble one Saturday night. In the normal course of events -- I can't believe we've gone on this long -- at 11 or 12 o'clock one Saturday we've got trouble brewing, and the police say: "Let's close this down before we have a riot." It's closed down, and the licensee loses two hours worth of business, and that's it; it's open again on Monday at 11 o'clock, or whatever. We're really making pitchers out of thimbles.
J. Tyabji: I'd like to step back a little bit and say that the reason I am raising these points is that it's not a case of whether it's one or two hours, whether there's one or two dollars lost, or whether this is a 24-hour shutdown. The point is that the rights of the licensee are being revoked by someone who has discretionary powers, albeit for good.... The reason they are given those powers is for public safety, but if there is no accountability....
Just to finish the point, the Attorney General has said that accountability exists by the licensee through court action or by the Attorney General through the political process, which is chancy. What I am seeing is a case where there is no formal reporting process within the ministry. I just assumed it was there and that it wasn't in the bill because it was part of the regulations or policy attached to it. This is very risky. Not only that, the licensee's rights are being revoked, and the only avenue would be through court, which is very expensive.
Hon. C. Gabelmann: The same person who gave the so-called right to the licensee has the ability, with this, to take it away for up to 24 hours. None of us has a right to operate a licensed facility. In some cases we are given a licence to operate that facility, and it has to be operated within a set of rules and guidelines. We're saying that it has to be done so that the public can be protected as well.
[5:30]
If the member argues that the rights of that licensee are superior to the rights of the community, then I reject the member's argument. We are trying to strike a balance here that protects the licensee. It's up to 24 hours; it's not for weeks on end, so it's limited. It's specific to the event that is occurring, so that trouble can be prevented. I have refrained from being political in this debate, because I don't think there is any need to be. It's a non-political issue, I thought. But if the member wants to argue with me about the rights of the community versus the rights of the licensee, I'll be happy to do that all night.
J. Tyabji: Not that I want to take the Attorney General up on his offer, but the principle here.... I'm not arguing the intent of the section; I agree with the intent of the section. I'm arguing the process, that's all. It seems to me that when we're sitting here in Victoria, we're subject to this ivory tower kind of concept. We take it for granted that people are acting in the public interest, and 99 percent of the time the decisions that are made are, no doubt, not only done in good faith but generally follow the public interest. In the event of this section being enacted -- not necessarily through the intent of the section but perhaps because ofsome individual's perception of events -- contrary to the public interest, because public safety wasn't at issue, there is no accounting process.
[ Page 8339 ]
Interjection.
J. Tyabji: Okay, I'd like to hear about it.
Hon. C. Gabelmann: There is a process. If the general manager revokes a licence for up to 24 hours, and the individual who holds the licence doesn't like what happened, that individual will be on the phone or will fax me within hours if there is a concern. That process is public if the licensee wants it to be.
If the member is arguing that we set up yet another bureaucratic structure and another process so that the general manager can report to somebody -- I don't know who -- about the fact that he has chosen to prevent a riot by closing a bar down for two hours, then the member and I are on different wavelengths.
Sections 6 and 7 approved.
On section 8.
A. Warnke: This is not a long section, although it is broken down a little. I would prefer to ask a number of quick questions through subsections (1) to (8). But if the Chair wants to go ad seriatim, that would be all right with me as well.
The Chair: The Chair thinks that would be inappropriate because we would then be cutting it down into subsections. So could we debate section 8, which really is section 31.
A. Warnke: I thought I would raise that, but I agree with you, hon. Chair.
I want to ask a series of very short questions. For example, section 31(2) removes the provision that requires the general manager to respond to an authorized request within 14 days. I'm just looking for clarification. What does this do to an establishment when its licence is suspended and the owner seems to have no recourse?
Hon. C. Gabelmann: A licensee who has a suspension can appeal immediately. Then the suspension is lifted pending the appeal.
A. Warnke: Okay, that's fine. I would also like to move to subsection (3). It's a point that passed by me until it was drawn to my attention. Does the government intend to impose a fee on an appeal of the general manager's decision?
Hon. C. Gabelmann: I understand that the current fee for appeal is $500, which is refundable in the event that your appeal is successful. Any amendments to that would be done by regulation, but I know of no plans at the moment.
A. Warnke: I understand; that's okay. I would like to move on to 31(7). Very specifically, when does the Attorney General anticipate those regulations coming into effect?
Hon. C. Gabelmann: Given that it is possible that this House might rise sometime this summer, it may take a few weeks longer than that. I would say hopefully by the end of the summer, or maybe a wee bit later.
A. Warnke: In section 31(8), the clause indicates that after considering an appeal, "the appeal board shall (a) dismiss the appeal, or (b) allow the appeal and send the matter back to the general manager for reconsideration." There is something I want to explore here. Does this mean that the general manager gets to reconsider the initial decision? Why is the appeal board not making the final decision in this case?
Hon. C. Gabelmann: It is up to the appeal board to determine whether or not the branch properly considered the matter, or perhaps made an error in law that requires a remedy. It is important for consistency in application of policy that the licensing body actually grant the licences, so that you don't have two different bodies making decisions and then have two different sets of policies, which would be very confusing to the public as to what the real policy of the government is. If the branch has made an error and the appeal board members send it back, they can send it back with their reasons for the error, and the branch can then respond to the appeal.
V. Anderson: First of all, for clarification, in 31(2) it says: "...the action, order or decision of the general manager or of any of the general manager's officers or employees...is final, and shall not be questioned, reviewed or restrained by a proceeding under the Judicial Review Procedure Act." Could you explain why those actions or orders of the manager, officers or employees are not able to be reviewed?
Hon. C. Gabelmann: The language is the same as it has been in the act for almost three years. The principle is that judicial review is available if there is no appeal process. But when an appeal process is available, you don't need judicial review as well.
V. Anderson: Section 31(6) says: "...no evidence other than the evidence considered by the general manager shall be considered by the board...." It seems to me to be restrictive. If the general manager does not have the evidence before him, or refuses to have the evidence considered, then it's prevented from going to the appeal board. It seems that the very reason to go to the appeal board is that there may be other evidence that should be considered that was ignored by the general manager.
Hon. C. Gabelmann: If evidence was presented and was ignored by the general manager, and the appeal board said that the law had been breached by the general manager, the appeal board could send the decision back to the branch with their reasons. What shouldn't happen, and what this amendment is designed to make sure doesn't happen, is an applicant going to the liquor control and licensing branch and
[ Page 8340 ]
being denied, then going to appeal and arguing a whole new case, and the appeal board -- which deals with a variety of issues -- making a decision based on new information. The liquor control and licensing branch should have all the information available to it. If it makes an error in law, or if its decision under the rules -- as spelled out in the statute -- is inappropriate, then the appeal board can refer it back. But to have two different bodies making decisions just doesn't work.
D. Symons: I appreciate that the minister is taking this time. I am sure he might get exasperated, but these are concerns that we have. One concern I have deals with section 31(2) in the old act, where there was a provision that there had to be a response within 14 days. That doesn't appear in section 31 now; it has been left out. It's section 31(3)(b). I'm just wondering why there is no mention of a time for giving a response to an appeal.
Hon. C. Gabelmann: Members will bear with me. If my exasperation shows, it's not aimed at anybody in particular.
The question of the 14 days is one that.... I'm going to be quite candid with members. I'm having trouble reading the notes in the handwriting of the general manager. His writing is worse than mine. He has indicated five separate reasons for this particular decision. I'm going to take a second here and delay....
J. Tyabji: I thought you wrote this bill.
Hon. C. Gabelmann: One of the things members will learn, if they are ever on this side of the House, is that you don't learn every issue intimately. It's just not possible.
First of all, the 14-day provision is not mirrored in any other act for a regulatory scheme. I guess the decision here was to make this consistent with all other regulatory bodies. If there is a delay that is unreasonable, then there is always remedy in the courts. Obviously if there's a practice or a pattern of delay, the courts are going to very quickly clamp down on us, and then that creates a law.
Apparently -- I learn something every minute in this job -- given the length of the application process, which I'm told is sometimes as long as up to three years, there is an ability for people to end up in effect jumping the queue by taking advantage of that provision.
Some note that the provision is unfair to lay applicants who may not be aware of the.... When I say lay applicants, I mean people who are going to make applications without a lawyer or a lobbyist, as it were -- someone who knows the Liquor Control and Licensing Act intimately. We want people to be able to apply without having to hire lawyers all the time. The rules need to be clear. Legal provisions shouldn't provide an unfair advantage to people who retain legal counsel. If the members are persuaded by that, I'm thrilled -- because I'm not sure that I persuaded myself.
[5:45]
D. Symons: I thought I understood what the old act was saying; I'm not quite so sure after that explanation. I notice that the little beam of sunshine that was shining on you from above has moved over. I don't know if that's a message from someone above that you've lost favour because of that answer.
Nevertheless, I thought that that part put an onus on the general manager to reply with a certain period. Having had a little experience in writing to ministers for answers to questions and finding out that those answers take a considerable amount of time to work through government, I think anything that indicates a time frame in which a response to an appeal must be given is a good thing to consider. I think something that prods people along so that it doesn't drag out is good to have. With that comment, I will sit down.
Hon. C. Gabelmann: I'm going to do this on my own this time and just have a look at the section.
Obviously what we're talking about is our request to the general manager to take some particular action. The requirement now is that that needs to be taken within 14 days. Given the often complex reality of liquor licensing matters, and the workloads and understaffing which are a reality of fiscal constraint, a 14-day period is not always a reasonable period in which to reply. Therefore some flexibility is built in by eliminating the provision. If there's an unreasonable delay, then people have several remedies. The best remedy is to write or phone the minister and find out what is going on. That will get the attention of the staff. The reality is that 14 days is just impossible to deal with.
L. Fox: I really think that this section is one of the more dramatic changes to this act. I guess one wants to reflect and try to understand why the minister is putting forward these amendments. The previous process for appeal was to the Liquor Appeal Board. I understand that part of the reason, perhaps, for this amendment is that the government actually lost a lot of the appeals; the proponents won quite a substantial number of those appeals. I'm wondering if this is a situation where we are looking at strengthening the process, rather than changing some of the appointees. Why the shift away from the appeal board to the general manager?
Hon. C. Gabelmann: I think I alluded to that earlier. The concern with the way it works now is that there are actually two places to go to apply for a liquor licence. That's the reality of the current system. You go the liquor control and licensing branch, and you apply. If you're unsuccessful, you go the Liquor Appeal Board and apply there, and you start all over again. They make a decision, based not on the policies and practices of the liquor control and licensing branch, but on their own feelings on that day, which may not be consistent at all with other decisions that are made for good reason throughout the province.
I just feel strongly that it is inappropriate for there to be, in effect, two separate places to get a licence. There should be one place to get a licence. The current process is that a licence is obtained by going to the liquor
[ Page 8341 ]
control and licensing branch and having the general manager grant the licence or amend it, whatever the case may be. To have an appeal board conduct what the lawyers call de novo hearings -- brand-new hearings -- with potentially new evidence, is just inappropriate. We may as well have two licensing bodies, and people can go to both of them and take their chances.
That's effectively the situation that we have, and it's inappropriate. Appeal boards should make sure that the decision was made fairly and according to the law; if it wasn't, then the appeal board can say that in its judgment the decision was made unfairly and perhaps illegally, and should be sent back for reconsideration, for the following reasons. You would have one licensing body, so that there is fair and consistent policy around the province.
L. Fox: But if the same individual who handled the original request for a licence handles the appeal -- that's what I understood you to say -- then obviously it's not much of an appeal. In any case, I think one of the real problems arises within section 31(6). You're not allowed an appeal in the form of any kind of new hearing; you can only resubmit the evidence that you submitted in your initial case. No new evidence is allowed. I have great difficulty understanding that there is any appeal process at all. You're only revisiting the same evidence, and to me that is certainly limiting the process.
Hon. C. Gabelmann: If a proponent who fails to provide all of the evidence to the liquor control and licensing branch doesn't get their licence, they can reapply to the branch at a later date with all of the new evidence and perhaps get their licence. It doesn't make sense to me that an applicant would present evidence to the branch and then, if they were denied, would go to the appeal body and present some additional evidence. Why didn't they present that evidence to the liquor control and licensing branch if it's good evidence to support their case?
Appeal bodies are not designed to re-try. When it considers an appeal from a Supreme Court decision, the Court of Appeal doesn't hold a new trial. It considers only the matters that were presented to the court in the first instance, and that's what we're doing here. If people who make an application determine that they failed to provide enough evidence -- because they forgot something or it wasn't presented properly -- and they would like to present it more adequately or add something, they can do that on a subsequent application.
That's not an appeal question. Appeals are not to hear something new; appeals are to consider the decision of the deciding body. In this case the appeal body, the Liquor Appeal Board, is going to be able to determine whether or not the general manager failed to observe either the law or the principles of procedural fairness. If in listening to the application, the general manager didn't give proper consideration to some of the evidence and dismissed it out of hand, refused to listen to it, or whatever, the appeal board could say that the general manager didn't decide fairly and send it back, instructing him to listen to that evidence.
But what I really insist on with this -- and the member is right; for me this is an important section of the bill -- is that there not be two bodies making decisions about liquor licensing.
L. Fox: I'm not a lawyer, so I can't comment on what kind of evidence is allowed in an appeal court case. But from reading, if new evidence comes forward, you can petition the court to have that considered. That's my understanding, at least. It would seem to me that you should have the same privilege in this appeal process: to be able to petition the appeal board and say: "I've come up with some new evidence. Would the board consider it? It's something that I wasn't able to supply at the time of the licence request." Why isn't that a consideration?
Hon. C. Gabelmann: It's not an appeal if it's something you forgot to present; it's a case poorly presented. Then you wait until you're able to go back and make an application with all of the evidence you want to present. The principle of an appeal is that there may have been a decision rendered unfairly or with an error in law. If you go to trial and present your case, and then you learn later on that there is new evidence, you may go to an appeal court, but the appeal court won't hear the new evidence. They will order a retrial back in the trial court. That's the principle. What we are talking about here is that if there is new evidence, the liquor control and licensing branch should hear it, so that they can make a decision based on the policies they have.
L. Fox: Could the minister suggest to me the difference in the time frames between going to an appeal and making a reapplication, so I could have some understanding as to what that means?
Hon. C. Gabelmann: The period for making new applications varies, depending on the licence category. It is generally from one to two years. If the applicant can make a compelling case to the general manager, however, that period does not apply. It is a discretionary matter on the part of the general manager, so the time frame could be compressed if there is significant new information or evidence.
L. Fox: That is why, at the very least, if you could go to the appeal board and provide new evidence and have the board suggest that the general manager should reconsider, given the new evidence, it would in fact short-circuit the process. But if the general manager wishes to live up to the time frames that are allowed for the different categories -- whether it is legislation or regulation, I'm not sure -- then the proponent is stalled. He has no other avenue. You have shut down the appeal process, because you have limited it to the same information the general manager has rejected it on. Yet there is no avenue in this legislation to allow the appeal board to give some direction to the general manager to reconsider, based on new evidence -- not to instruct an issuing of the licence, but to reconsider the application,
[ Page 8342 ]
based on the new evidence that was presented to the appeal board. That would seem to me to be a logical compromise that would allow the process to work smoothly and allow the general manager to shorten the time frames legitimately. Without that kind of process, if the general manager shortens the time frames for me, then he's setting the precedent for other individuals, and that would be something he would be hesitant to do.
Hon. C. Gabelmann: First of all, I think I've answered that question. The thing that we do not want is to have the appeal board hearing new evidence and making a decision, because an appeal isn't to do with new evidence. Appeals are about: was the evidence that was presented heard fairly? Did the decision honour procedural fairness, and was it free from error in law? Appeals aren't about: "Oh, I've got some new evidence. I'm going to go off to somebody else and ask them to make the decision." We don't want two different bodies making liquor licensing decisions.
[6:00]
Let's say there are particular requirements that a licence has to have or certain things that have to be available. I can think of examples, but I don't want to be precise. You have to have certain conditions before you can acquire a licence. If you make your application without those conditions and later on those conditions are met, you then go back to the branch and say: "I've met the conditions. I'm now applying for a licence." That's the process. You don't go to the appeal board and say: "I'm now meeting the conditions. Therefore I want to appeal to have the decision overturned." Instead, you go back to where the decision should be made, which is at the general manager's level.
I'm not explaining this very well, maybe because I'm tired. But it seems straightforward to me. You don't want two different bodies making decisions; you want one body making the decision. If there's new evidence, then the applicant should go back to the branch and say: "There's new evidence; I would like you to consider my case again." That's how it should work.
The House resumed; the Speaker in the chair.
The committee, having reported progress, was granted leave to sit again.
Hon. C. Gabelmann: I move that the House recess for 35 minutes.
Motion approved.
The House recessed at 6:03 p.m
The House resumed at 6:42 p.m.
Hon. C. Gabelmann: I call committee on Bill 44.
LIQUOR CONTROL AND LICENSING AMENDMENT ACT, 1993
(continued)
The House in committee on Bill 44; E. Barnes in the chair.
On section 8 (continued).
J. Tyabji: Just before the break, we were talking about section 31(6) under section 8 with regard to: "...no evidence other than the evidence considered by the general manager shall be considered by the board...." This was raised by the member for Vancouver-Langara and the member for Prince George-Omineca. We have canvassed this at some length, but one thing the Attorney General hasn't addressed in his comments -- and I know we have the esteemed general manager with us as we speak -- is that the general manager's decision may have been made on the basis of some personal disposition to favour one scenario over another. For example, the proponent of a proposal might like to be able to say to the appeal board: "We believe the motivation for the rejection was..." -- this, this and this. That's the extra evidence that I think should be allowed under this section.
Hon. C. Gabelmann: That's not a question of evidence; that's a question of perceived bias, as I heard the member address the question. If there is a perceived bias, the remedy exists by way of judicial review. If it can be demonstrated that the decision was based on the general manager's bias, the courts have the opportunity to provide a remedy. The act doesn't restrict their ability in that respect.
[6:45]
J. Tyabji: It seems that the Attorney General is suggesting that in making an appeal to the appeal board, if the people putting forward the proposal perceive that the decision was based on a bias -- and it might not necessarily be a bias other than the perspective of the general manager; for example, the proposal might be in a rural area, and the general manager's perspective is urban -- the only remedy for that is to go through the courts, which means litigation and an expensive process, rather than to the appeal board, where it could be argued that the people believe the general manager has an urban perspective, they have a rural proposal and these are their grounds for appeal. I'm raising that because under section 31(6)(b), it says: "...shall be an appeal on the grounds that, in reaching the decision appealed from, the general manager (i) erred in law alone, or (ii) failed to observe the principles of procedural fairness." There should be another section in there so that if the general manager acted on the basis of certain assumptions or a worldview that perhaps weren't relevant -- something along those lines -- those people would have the ability to argue that to the appeal board.
[ Page 8343 ]
Hon. C. Gabelmann: If there was an indication in the evidence that the general manager had a worldview which contained a bias -- the member talks about rural versus urban -- then that would be appealable to the appeal board. If in the evidence there is an impression that there was a bias, then procedural fairness requires that no bias be there. If it appears to be there, then that's grounds for appeal.
J. Tyabji: So the Attorney General is saying that if evidence of a potential bias needs to be introduced, it would be introduced under section 31(6)(b)(ii), procedural fairness. Is that correct?
Hon. C. Gabelmann: That's not new evidence. That's a question of whether a bias may have been shown during the course of the application and the decision. That's not new evidence; that's grounds for appeal. Because it's a procedural question, then it's a fairness question and clearly is grounds. New evidence would be if -- and I might be more specific; I was elliptical about this earlier.... In applying for a marine pub, let's say you need 500 feet of wharfage and you only have 100, and the manager turns you down because you only have 100. You can't go to the appeal board and say: "We think 100 is enough." The rule is 500, so you can't go.... Currently you can, and that is crazy.
J. Tyabji: What I would like to nail down, though, is in addition to it being grounds for appeal.... Let's use the same example of the marine pub. Let's say there is a general manager with the predisposition to not allow marine pubs within X number of metres of something else. I think the Attorney General is saying that that is by regulation, but there could be something that wasn't stipulated in the regulation. I know there are a number of regulations with the marine pub licence. But in the event of a judgment call by the general manager which is not necessarily a judgment required by regulation or law, how would that be introduced? Would it simply be grounds for an appeal, or would an argument be allowed? We can argue about semantics, but whether it is evidence or grounds for appeal, it is the same thing. But the way the bill is written leads one to believe that you can't then argue.... My own perspective is that it is new evidence if you are saying: "Here is our proposal, and here is evidence for a judgment that was made that is not necessarily consistent with the reasons for rejecting the proposal." That in itself would be new evidence. The Attorney General might say that is not new evidence, that is an argument on the grounds for appeal. That is fine, as long as there is a provision for it -- an ability to take that same proposal, and add the perception of the people who are putting it forward as to why there was denial and why this was perceived as unfair. If the Attorney General can let me know if that is allowed for, then I think we do, in effect, have the ability for new evidence.
Hon. C. Gabelmann: First of all, the act makes clear that the general policies that apply to the general manager are in the purview of the minister and/or the government, by way of regulation. That is what governs the decision. There is inevitably discretion in making a decision; there is in any decision that anyone makes. But the discretion has to be exercised within the available rules. If an applicant feels that there was a lack of procedural fairness -- not that they didn't like the decision; most people who lose don't like the decision -- they can appeal. They can't appeal because they don't like the decision, as long as it was made within the bounds of the policy, the regulations and the act.
J. Tyabji: As the Attorney General knows, in law there's a commonly accepted position that justice should not just be done but be perceived to be done. I'm assuming that this is what the Attorney General is talking about. Procedural fairness here seems fairly rigid in terms of following the guidelines. Where discretion is exercised, though, I would assume that the principle of justice being perceived to be done would prevail. Is that correct?
Hon. C. Gabelmann: I don't think it's possible for me to answer that question. Everybody -- not everybody, but most of us -- who loses a debate or a decision thinks that justice wasn't perceived to have been done. So perception of justice isn't a relevant issue here.
Let me just back up and try again to say what we're trying to accomplish here. It's important that applicants for liquor licences in B.C. know what the rules are. It's important that they know that decisions are made consistently and evenly across the province so that if an application is made to the liquor licensing branch, they know that the considerations in making the decision will be the same for everybody. That's the procedures we ensure by way of the act, the regulations and the policy. What we have now is something very different. If you don't like the decision the liquor licensing branch makes, you go to another body that has no expertise in liquor licensing and which rehears the issue. It's a new trial. Under the current procedure they are able to make a decision that may not be at all consistent with decisions made in the rest of the province in respect of the same issue. That's not fair. That's not fair to all of the people....
Interjection.
Hon. C. Gabelmann: You thoroughly agree. Okay. So now we're looking at what can be appealed. You don't like the decision. The applicant says to herself: "I applied, and the liquor licensing branch didn't consider all of my arguments." That has to be shown in the record. It has to be shown in the way the decision was rendered. If it can be demonstrated that there was a bias or something procedurally unfair, then there can be an appeal. But there can't be an appeal if the general manager makes a decision which is within the rules and follows complete understanding of the case. Then there is nothing to appeal. A new application can be made later if the conditions change, or if the applicant feels they want to take another shot at it down the road at some point. But you don't appeal that....
[ Page 8344 ]
Interjection.
Hon. C. Gabelmann: Well, then I don't know what members are talking about.
L. Fox: The Attorney General laid out a scenario earlier with respect to an application for a licence for a marine pub. I would like to lay out another scenario which was very common in my experience, and in fact, I think, will reflect the role that the appeal board played. When you applied for a neighbourhood pub licence, one of the regulations in that application was that you had to be a quarter of a mile off a main road or artery. This regulation obviously was designed as one regulation for British Columbia, but didn't make a lot of sense in a lot of communities, because a quarter of a mile off the road in many communities would put a pub out in the bush somewhere and out of the neighbourhood. I'm aware of a couple of licences that were not granted through the licensing process, but the applicants were able to go to the appeal board and showed how that policy made no sense in that community. The appeal board agreed with that, and therefore those individuals got their licence. In the situation before us, the policy would still have to be followed by the general manager -- and that same opportunity would not be there for those people applying for that licence. I'd like comments on that.
Hon. C. Gabelmann: I'm not sure the member has a specific example in mind that he's referring to. If he has, I'm not responding, because I don't know what it is and I wouldn't respond directly about a particular application. But if, for example, a quarter-mile policy is wrong because in rural areas it should be a half a mile, then it's the policy that should be changed, not the decision in a particular application. That's what's really fundamental here. If I'm hearing this correctly, the appeal board should not be able to render a decision that violates the policy. The proper remedy is to amend the policy.
On the other hand, if it's a matter of discretion within the policy, then that happens every day in regulatory frameworks, whether it's liquor licensing, gaming issues or motor carrier issues. Discretion is exercised, and it has to be exercised within the framework of the policy, the regulations and the act; and if it is, that's appropriate.
The appeal would come if there was some unfairness in the way the decision was reached, or if there was -- as I've said before several times -- some error in law. We may disagree across the floor on this issue, but I am not prepared to replace the discretion that's in the hands of the general manager with the discretion that may be in the hands of an appeal board, because we will not then have a consistent application of liquor licensing policy in British Columbia. It's important that discretion be exercised consistently and evenly, and it won't be if there are several decision-making bodies.
L. Fox: The minister is saying that if the policy is wrong, the policy should be changed, and I recognize that. The difficulty that I've had in local politics over the years is trying to design a policy with any kind of teeth in it or any kind of regulatory powers to it, and that makes sense in all areas of the province, never mind in one community -- it's difficult to do it within a community. So if the Attorney General is suggesting that the regulations and the policies are going to be flexible enough so that common sense can prevail in a particular community, then I can have some comfort.
Hon. C. Gabelmann: I grew up in a small town in the Okanagan, I have lived in the big city, and I now represent a rural riding. I understand exactly what the member is saying, and I agree. But the need, perhaps, for different policy applications in different parts of the province can be accomplished by a political decision on the part of the minister or the government to direct, by policy direction, the general manager to apply different policies in different parts of the province.
[7:00]
It may be that you want -- just to pick numbers off the top of my head -- a quarter of a mile in the city for a particular separation and five miles in the rural community, or vice versa. That can be accomplished by policy directed politically by the government, not by an appeal body that acts whimsically. There is no consistency if decisions are made in 99 percent of the cases by the liquor licensing branch and in 1 percent -- or 5 percent, whatever the numbers are -- by another body, because the consistent application of discretion within the policy is no longer there. That is crucial, otherwise the industry will never know what the rules are. It is important to know what the rules are.
Interjection.
Hon. C. Gabelmann: There is no denial of appeal. The opposition leader said across the floor that there is no appeal. There is an appeal, as there is in legal matters, and you always have the remedy of going to judicial review, should you choose to and if you have the grounds. If there is new evidence and a new examination of the facts, you do it at the licensing level. You do it the same way if you have a new trial: you go back to the Supreme Court. You don't go to the appeal court for a trial; you go back to the trial court. It is the same issue.
L. Fox: I have one follow-up question on that issue. If there is going to be a policy which is liberal enough -- and I use that word loosely -- to reflect the variances throughout the province, what role would the zoning and the policies of a community play in advising the licensing branch, and obviously the general manager, as to the wishes of that community? What role would that play in the determination of that licence?
Hon. C. Gabelmann: The member is moving into questions of zoning, land use decisions and municipal power. The general manager of the branch cannot override any of those considerations, obviously. In addition to that, all of the applications are always vetted and discussed with the local government. I'm not
[ Page 8345 ]
sure that question relates to this section -- unless I missed the question. I missed the question.
L. Fox: Just to clarify that question, I'll use the quarter-mile issue again. The regulations and policies suggest that a neighbourhood pub has to be a quarter of a mile off a main road. But a community may decide that it's in its best interests to locate a neighbourhood pub within the downtown core rather than a neighbourhood, because it would interfere less with the lifestyles of that community. Given that the general manager or the licensing branch is going to have new parameters for making a decision on that, how much credence is given to that community's preference in terms of where that licence should be? That was the actual question.
Hon. C. Gabelmann: If the municipality wants a variation on the policy, they should come to the policy-makers. The policy-makers are the government and the minister. If the government agrees that the variation makes sense for that municipality, we can direct the general manager to apply that policy in general. It wouldn't be for that municipality alone, because you would then get into directing on what may well be a particular application, which I will not do. The first section, which we did earlier today, makes that clear. But if it's a policy matter -- a variation that has some consistency and is not designed for one application -- then that's a political decision made by government. It is not a decision to be made by an appellate body who aren't elected to make those kinds of decisions.
J. Weisgerber: It seems to me, listening to the debate, that there are two ways to approach the kinds of unique licensing situations we have around British Columbia. They are perhaps more unique here than anywhere I can think of -- everywhere from Atlin to Pouce Coupe to 101 to heaven knows where -- and downtown issues as well; it's not only a rural issue.
It seems to me, in approaching this issue without allowing an appeal to people who are elected, there are really a couple of options. One is to make the regulations so broad as to give enormous powers to the manager -- powers that would be suspect by many people, I think. The government policy would allow for decisions to be made within such a huge range that I'm not sure you could have that kind of flexibility or ability to make decisions and still have any confidence that the system was fair and equally applied. On the other hand, if you make the policy and regulation the way it has consistently been applied, there has to be some appeal outside of that process.
What I don't understand -- and I heard the minister say it, in addition to those two possibilities -- is that from time to time the general manager should use his or her discretion. I think that's an enormous burden to put onto anybody employed in the bureaucracy. From time to time we see people who exercise that kind of discretion at their peril. Some new minister or government -- some difference of opinion -- has people go back and look at those decisions and say: "You didn't follow the regulations here. As the senior manager in the bureaucracy you moved outside of the regulations."
The point I'm making is that the regulations either have to be narrow enough to allow for appeal outside, or so broad as to put far more discretionary power in the hands of the general manager -- regardless of who he or she might be -- than I would like to see in the hands of a single non-elected official.
Hon. C. Gabelmann: I understand the point. I guess I have responsibility for several regulatory bodies that make sensitive political decisions. I say political because they end up in the political arena; they're not made politically. Obviously, as I mentioned before, that includes gambling, motor carrier and liquor decisions. We have inherited different decision-making apparatus in each of these areas.
I don't have a closed mind as to determining better, fairer ways of having those decisions made; I don't close my mind at all to that. The member makes a point that I'm not going to argue against totally, because I think there's some merit in the point.
The fact is that with this amendment at this point we're trying to correct a feature that has crept into the system in recent times, which is not part of the system historically. We actually are trying to go back to an historical system in which decisions are made by the liquor licensing branch -- hopefully fairly -- and an appeal exists, as spelled out in the act. But I am not prepared to allow the current situation to continue, because I've watched it now for the best part of a year and a half. The current situation is that people have two places to go to apply for licences. That's the reality of the current situation, and I can't live with that. I cannot live with a situation whereby the statutory agency for making the decision, the branch, has one opportunity to make a decision, and another body, which has no staff related to this subject and no practical experience on a daily basis of dealing with problems that come as a result of licensing, also has the same power as the liquor licensing branch. That's not right.
On the member's point that the current system may not be the perfect situation, I'm prepared to say yes, it may well be that there are better ways of doing this. I'm certainly open to that and in fact I put my mind to it often. I'm not sure I can add a lot more to this without repeating myself, other than this one final comment. The member should understand that the liquor licensing branch is bound by policies of the government and policies established by this Legislature; the appeal board is not, and I think that's not right. I think it's wrong to have decisions made in new hearings that are not constrained by the liquor policies of the government of the day, whether it's the former government or this government -- or, heaven forbid, that government. It's not appropriate. The government is elected to ensure that policies are developed and adhered to. This system now ensures that government policy is not adhered to, and that's wrong.
I'm prepared to admit that this may not be the perfect remedy, but what exists now is a long way from perfect and I can't abide it any longer, and something
[ Page 8346 ]
has to happen. I'm not going to say a lot more on this unless there are new points being made. But as far as I'm concerned, we need to do this now, and I'm going to continue my own assessment of the appropriateness of all the regulatory bodies we have to see whether or not they meet proper public tests. I'm not convinced that they're all in perfect shape at the present time.
J. Weisgerber: I have a good deal of respect for the minister and for the thought that he puts into this, so let me say that the current system is not perfect. What we are suggesting is that the proposed solution probably is at least as far from being perfect. I understand the changes that the minister's trying to implement, but I am convinced that you will find that the changes you are proposing aren't flexible enough to suit the needs of British Columbia -- not the political needs, but simply the contrasts and the different needs around this province. I will predict that before very long we will be back debating amendments again to the same act, because I just don't believe you can bring in a policy that only allows for political input in changing of regulation or policy. I think there are too many issues that require special consideration, too many policies that have to be looked at, and judgment that has to be exercised. So you are either going to put an enormous burden on the general manager or you are going to have such an inflexible system that people will be so totally dissatisfied with the process that we'll be back here debating it again.
G. Wilson: I'm delighted to have an opportunity to get into the debate in committee stage on Bill 44. I wish that I had been able to attend earlier. I certainly would have made my comments known about the incredible power being dumped into the hands of this general manager.
Interjections.
G. Wilson: I'm hearing from members opposite -- I think the words were: "Oh, good God!" So be it. This is a situation where a senior civil servant is being requested by this government to take on enormous power, much of which is done without right of appeal, as this act provides for. Some provides for an appeal process under subsections 31(3)(a), (b), (c) and (d), where the appeal is not allowed to be a new trial per se. The appeal can only be heard on the grounds that were used in the reaching of the decision by the general manager. For the purposes of the section, "the record on which an appeal under subsection (3)(a), (b) or (c) is to be conducted shall be prescribed in the regulations" by this government, and: "After considering an appeal brought under subsection (3)(a), (b) or (c), the appeal board shall (a) dismiss the appeal, or (b) ...send the matter back to the general manager" -- who made the decision in the first place -- "for reconsideration." What kind of an appeal is that? This is no appeal at all.
[7:15]
As we get into further discussion on the transitional section 10, it says that after considering an appeal brought under subsections (3)(d) or (e) -- which is essentially empowerment to close an establishment or go in and seize property -- that appeal is going to be heard by the appeal board, which may "confirm, vary or reverse the action, order or decision under appeal with or without conditions." What kind of an appeal process is that?
I really wish that I had been able to get into the earlier stages of this bill. This does not provide the kind of opportunity that I think most people would want to have for a fair, independent appeal when a decision has been taken by a senior civil servant who has enormous power and not only an opportunity to affect a business, in terms of its licence and ability to proceed, but also an opportunity to seize properties that that business has rightfully purchased and is now in a position of retailing. There is no fair and open appeal process in this, because under sections (a), (b), (c) and (d), this board can only dismiss it or send it back to the very individual who made the decision in the first place. The minister is saying: "Go through the judicial review process. Why don't you litigate that in the courts?" -- at the expense of small business, entrepreneurial people who are going to find that that decision is taken.... Who knows what the appeal board's record is in expediting hearings, and how many of these actions will be brought because of subsequent action? We will deal with that in the next section. I would warrant that most of the appeals will happen under (a), (b) and (c) of (3).
In my own community of Powell River I know that licences have been granted that have been anything but fair, and there have been licences denied that have been anything but fair. I know that the minister doesn't want to deal on a case-by-case basis, and I respect that, so I'm not going to get into detail here. But the process of appeal is now made far less attractive to a licensee when the general manager is given that kind of power. I would like the minister to explain -- if, under section 8, they have only two alternatives -- how he considers that to be a fairer process than by going to some independent board that may review all matters relevant to the decision, and decide whether or not there has been a fair and judicially proper rendering of the decision in the first place.
Hon. C. Gabelmann: I don't know how many times I have to say this over the course of several hours. If the appeal board concluded that the general manager had made a decision which was a result of not listening to the evidence properly, not providing a fair opportunity for presentation of the evidence or any of those kinds of issues, the appeal board can, and probably would, send it back with clear instructions that the general manager consider those questions. In all of that, there is going to be discretion, and there are going to be applications denied and approved which people don't like. Competitors won't like some decisions; applicants won't like other decisions; the public won't like yet other decisions.
I have a responsibility to make sure that the rules are clear, fair and appropriate, and then that they are followed within the discretion that inevitably occurs. If the decisions are made and those rules are not followed,
[ Page 8347 ]
or if people are being denied appropriate access to the decision, then the appeal board will direct -- not just ask -- the general manager to take those factors into consideration.
Is this the best system possible? Probably not. There may be a better system that could be achieved, and I would welcome -- over the next six months, in advance of the next session -- every member's ideas and views on how we can design a system that will ensure that government policy is adhered to, that there is consistency and that there is fairness to applicants. I am quite open to all of that. With that, I don't know what more I can say on this particular topic.
G. Wilson: That's a great idea, so why not just hoist this thing and let's have six months of sitting down and coming up with something workable, and we will put it in place. But of course, that's not so attractive, because then we would have to actually incorporate some of the ideas that might come from this side of the House.
Can the minister tell us: what was the rationale for putting in a distinction with respect to the processes for appeal and considering appeals under section 31(3)(a), (b) and (c), as opposed to the greater authority that an appeal brought under (3)(d) and (e) might have with respect to the appeal board? Why was that distinction made?
Hon. C. Gabelmann: The enforcement provisions that are contained in (d) and (e) are far more subjective than the objective criteria by which we make decisions in respect of applications. That is why the appeal provisions are broader in the enforcement area than they are in the area of the application itself.
G. Wilson: Can the minister tell us what section of this act actually governs the appeal board under section 31(9) when hearing an appeal brought under subsections (3)(d) or (e) with respect to the time of an application? Is that going to be consistent with the requirements of the appeal process under section 31?
Hon. C. Gabelmann: I'm not sure I understand the question.
G. Wilson: There is a distinction with respect to what is likely or able to come forward under section 31(6) -- and that makes it fairly clear.... Then section 31(7) says: "For the purposes of subsection (6)(a), the record on which an appeal under subsection (3)(a), (b) or (c) is to be conducted shall be prescribed in the regulations." That's clear. I am asking: what governs section 31(9), concerning (3)(d) or (e)?
Hon. C. Gabelmann: The member makes a point that I understand now. The references in 31(3)(d) and (e) do not have regulations attached to them. The reason for that is that the appeal board can set its own procedures, its own policies, in respect of the appeal. That's as it is now.
G. Wilson: As I understand this act, then, the minister is giving the general manager the right to remove a licence and enact seizure. It is left up to the appeal board to set its own rules and regulations as to how an individual may appeal actions taken by the general manager under the new powers given in this act. Is that right?
Hon. C. Gabelmann: The appeal board has had and will continue to have its own regulations, and it will operate within those. But the important distinction here is that the first three clauses -- 31(3)(a), (b) and (c) -- deal with a licence that is to be granted or not granted. What (d) and (e) deal with is taking rights away that somebody has already been granted. In that respect, there is room for the existing appeal process, with the appeal board operating under its regulations.
G. Wilson: But surely, if you're going to introduce in this act greater powers to take rights away -- and that's clear in the sections that have already been canvassed in this bill....
Interjection.
G. Wilson: Well, I would beg to differ. I hear the minister saying there are no greater powers. In fact, looking at the amendments here, I would argue that there are greater powers. But that's not the point. The point is that surely there would have to be some reason why.... If there was a concern about inconsistency in the existing regulations governing the appeal board for the granting of licences, the far greater concern would have to be where you are removing privileges or rights. Surely the government would want to have that much more clearly spelled out in regulations, through the amendment of this act. The minister made a long argument that the regulations governing the appeal board now create inconsistencies, and here we've got a situation where a person's livelihood is at stake.
Hon. C. Gabelmann: I'll try this in simple language, hopefully. It is far easier for government to establish policies about where licences should and should not be granted, and under what conditions, than it is to establish policies about the way in which enforcement measures are applied. Because of the need for greater discretion in the hands of the general manager with respect to enforcement, greater access to appeal is needed, and that's what's provided. The appeal process is established within regulations that cabinet has authorized. Actually, the former cabinet did it; we're still operating with those same rules. They're available for the enforcement-related issues, where a person's livelihood is possibly in jeopardy, or certainly at risk. In that case, this appeal process is available. That's not the case for new applications. We're simply responding to the fact that the new-application issue is completely out of control.
G. Wilson: Okay, I guess we can agree to disagree on the philosophy of it. But in 31(9), it says that "the appeal board may confirm" -- we can understand that, where they simply uphold the action taken -- "vary" -- and I know this is not inconsistent with the existing
[ Page 8348 ]
language; I'm aware of that -- "or reverse the action." Maybe this is better canvassed under section 10; I don't know. If it is, I'll be happy to do it there. But what is the minister's intent with respect to the word "vary"? Secondly, with respect to reversing the action, given that there could be some pecuniary problem and financial loss, is it intended that the board has the power to grant some restitution to an aggrieved licensee?
[D. Lovick in the chair.]
Hon. C. Gabelmann: What would more likely flow from the word "vary" is that the appeal board would turn a one-week suspension into a two-week suspension, or perhaps a two-day suspension. They would vary the suspension. In fact, they may decide to cancel it. That opportunity is there. Or they may decide the general manager is being too nice to the licensee and make it tougher. They can vary the enforcement.
[7:30]
G. Wilson: Maybe the minister or the general manager can tell us what the general time period is between an appeal, a hearing and a ruling. If you're talking about a two-day suspension, you're likely not to have the thing heard for a while -- if it's anything like the Motor Carrier Commission.
Hon. C. Gabelmann: We've done this before, too, earlier today. No suspension or penalty, as it were, for an enforcement violation can be imposed until after the appeal period is over. People don't have the two days and have to shut down and then go to appeal; they continue to operate, go to the appeal, and then, if the penalty is upheld, the two days occurs.
L. Fox: I think we agree to disagree about the appeal process. The minister suggested that he welcomes opportunities over the next six months for members to bring forward ideas about how the process might work better. An appropriate situation might be to refer the matter to a select standing committee, which is an all-party structure that could determine whether or not there are any recommendations that can be made. But I'll leave that issue.
I have a couple of questions. Given that we're obviously staying with this process, when an individual applies for a licence, I assume an application is filled out. I also assume that there is some dialogue between the individual requesting the licence and the individual accepting that application. Is that the case?
Hon. C. Gabelmann: Yes.
L. Fox: Given that this appeal process can only use the data given on the application for the licence, will it be necessary to have an official recorder record exactly what is stated at those meetings -- in order to make the same information available at the appeal?
Hon. C. Gabelmann: First of all, the issue of what's in the record is determined by regulation. If, as a result of listening to this debate.... I need to tell members that I take this process seriously, and I learn from it. I may not respond immediately, but I think about what I've heard and learned, and if I think there's some validity to it, I'll act on it. I mean that, because I've been in this chamber long enough to know that this is a very important process in terms of legislative development. We have an issue to determine there in terms of regulation -- that is, how that's done in terms of what the evidence is. That's how it would be done.
I think it's important to remind members, because I don't think this point has been made: the crucial, difficult and perhaps controversial decisions are not made by the general manager alone. A liquor licensing committee in government -- as I'm sure members of the Social Credit Party know, having dealt with it for years -- made up of very senior members of the ministry, is involved in making those kinds of decisions. This discretion is exercised with a broader base. Whether it's the best system.... I've said before that I'm not at all persuaded that we've reached nirvana here -- in fact, I know we haven't.
What I want to have happen at this session of the Legislature is an end to what's been happening in the last number of months and an opportunity to further review how we make these really important decisions in a non-political, non-partisan way that prevents special interest from being able to raise its head. My offer earlier to members of the Legislature -- I don't think by way of a Legislature committee, but by way of meetings or letters -- was that considered thoughts from members on this subject, about a structure that members think would be the appropriate way to go, are more than welcome. In fact, I urge members to help me with this process as we try to deal with what I think is, and should be, a non-political, non-partisan issue.
What we're talking about here, as we are in several areas, is the issuance of licences that are in effect an ability to make money. I think those kinds of decisions should be made outside of the political partisan arena. I extend a serious and genuine offer to all members to help me in developing this policy.
L. Fox: Just to follow up a little on the question, I'm aware that you can apply for a licence in various locations in the province, but in fact the licence is granted from a central location. That's my understanding of the process. Given that the verbal dialogue when you make that application is usually quite important -- because it fills in between the lines of the application or usually gives some description and explanation of the application -- and given this new appeal process, would the process be for the actual licensing body or authority itself to directly contact the individual making the request for the licence, so that he has the opportunity to give that verbal content to the application? He's not going to have that opportunity now to do it at the appeal board.
Hon. C. Gabelmann: The applicants have that right. If they didn't have and were somehow denied that right, there would be an absence of procedural fairness and an obvious right to appeal. Not only are
[ Page 8349 ]
applicants encouraged to do what the member is suggesting, but applicants do come and present to the licensing panel, sometimes accompanied by legal counsel. There's virtually cross-examination. It's a full opportunity to have presented to the general manager and the panel all the information that the applicant wants; it's all there. If there is any attempt to prevent any of the evidence from being presented, then there are very clear grounds for appeal.
K. Jones: With regard to the scheduling of this appeal process, I notice in this revision you've removed the requirement that the general manager respond to an authorized request within 14 days. I also see that the appeal has to be filed within 30 days of the date of action, order and decision of the general manager in respect of which the appeal is brought. I see no provision for the appeal board to respond within a time limit. If under subsection (8)(b) the appeal is allowed and sent back to the general manager for reconsideration, I see no time limit for the general manager to meet that reconsideration and report back. This process could be dragged out indefinitely. I think it's about time that we had some very tight scheduling in here.
I saw the situation in White Rock where the appeal process went on for six months, and it was deliberately at the convenience of the owners of the hotel involved. It went from their summer season into the middle of the winter season, and they had no problem taking their two-week shutdown. They didn't lose any money; their money was made in the summer season. I make this as a friendly suggestion to the Attorney General: a set of guidelines for reporting through each stage of this would be the appropriate and fair way, so that all parties would know both their commitment to get the job done and the conditions under which the appeal process would be handled. That way the people who are making the appeal would have a fair and judicious process and would not be abused. Could the minister give us some consideration on that?
Hon. C. Gabelmann: First of all, to establish in statute particular time frames may lead to a situation where the statute can't be adhered to because of the complexity of a particular application or appeal. So there is a variety of reasons why it would be inappropriate to have that contained within the statute. However, to have it contained within regulations may make some sense in some instances.
But in the final analysis, if there isn't a protection by either statute or regulation, any undue delay that is caused to stymie a decision or to favour one side or the other can be in the courts in no time at all. If the applicant has that kind of case to make, he won't have any trouble getting the court to order a decision to be made.
K. Jones: That would be contradictory to the intention of the minister in bringing forward this section of this bill, which was to keep this process out of the courts. It was intended to make it so that it would not be going through that other body. You wanted to keep it within the liquor control process. I heard you say that earlier in this debate. Could the minister explain to us how many difficulties in the past were experienced by the liquor control general manager in responding to the authorized request to respond within 14 days, as has previously been in the legislation?
Hon. C. Gabelmann: Just in the last week alone, there were seven.
The Chair: The member continues, with the caution to extirpate and expunge from your vocabulary the word "you," please, Mr. Member.
K. Jones: Thank you, hon. Chairman. I will be very happy to extirpate "you."
Could the minister give us some indication as to what caused seven cases in the last week to go that long in dealing judiciously with an appeal?
Hon. C. Gabelmann: Fourteen days is too short a period for complex matters.
K. Jones: Surely, if these matters are complex, we have a matter of decision-making; we need the decisions to be made. That is why we hire a general manager of the liquor control and licensing branch -- to make decisions. First of all, decisions of appeal like these aren't going to him; they are going to an appeal board, which should have sufficient time to do its job. Otherwise, we should have people in that job who have the time to do the job. Therefore you should be able to limit the amount of time needed.
Hon. C. Gabelmann: Several months ago, the hon. member's party lost its leader. The party didn't pick a new leader in 14 days. It takes a little time sometimes to make complex and difficult decisions. The same thing applies here. You can't always make important decisions in 14 days, and that is a reality. The 14-day provision was being used in a manipulative way by some applicants who had access to lawyers, unlike a lot of applicants who don't have the money to hire them.
[7:45]
K. Jones: If he feels that 14 days is inadequate, could the minister give us an indication of what an adequate amount of time would be for a decision on whether to allow an appeal or not allow an appeal? That is basically the only decision they have to make. Is it allowed or isn't it allowed?
Hon. C. Gabelmann: The answer to that is: as soon as possible.
K. Jones: I find that answer rather inadequate, considering that we are trying to have a fair and judicious process. Timing is the important factor in getting a judicious decision, and fairness is dependent upon time, so the minister needs to dwell upon how much time.... He says that it is appropriate to put it in regulations. Well, if it is appropriate to put it in regulations, how is the minister going to determine
[ Page 8350 ]
what it should be for regulations? Will he be able to use that same formula in legislation? Why would it be different for regulations than for legislation?
Hon. C. Gabelmann: No, I am not sure I said that this particular.... We have been talking about a number of different issues. I am not sure I said that this particular issue would be in regulations. What I think I said was that where appropriate limits or procedures or guidelines or rules can be incorporated into regulations, I am prepared to have a look at that and do that. The other thing about regulations is that if they aren't working, you can amend them rather quickly at the next cabinet meeting -- unlike legislation. We are going to have to wait until next spring before we come back at this again.
I don't know what more I can say to the member, other than that I am committed, as is the liquor control and licensing branch, to quick, judicious and fair decision-making. Everybody should have an equal opportunity to be given a licence or a decision in respect of a licence they already have. Speed is of the essence, but so is appropriate and carefully considered decision-making, and sometimes that can't be done speedily.
K. Jones: Just to clear the Attorney General's mind, I have been speaking on only one subject, and that has been related to this issue of time and process. The Attorney General did relate that he would put this into regulations in his first response to this question. Just to remind the minister, I was referring directly to your statement with regard to this issue. I appreciate your statement that it will be a matter of timing and judicious process, but I really am not satisfied. You can put it in regulations. Why can't you put it into the legislation if you can find a regulation time schedule?
Hon. C. Gabelmann: I apologize to the member if my first answer was confusing to him. We have been talking about a wide variety of issues, all of which are contained in section 8 of the bill. I will provide certainty to applicants and to licence holders by doing whatever we can by way of regulation and policy so that they know what the rules and time frames are wherever that's possible. Where it's not possible, the rule will be: we'll do it as fast as possible, but not faster.
K. Jones: Could the Attorney General give me an answer to the question I asked him in estimates last year with regard to the White Rock appeal process for the Ocean Beach Hotel? He has never replied, and it deals directly with this particular situation. It is relevant.
The Chair: Excuse me, hon. member. You will have to demonstrate to us very clearly how that connects with section 8 of Bill 44. Otherwise, the question is demonstrably not in order. So I would ask you to do that, please.
K. Jones: Hon. Chair, it is an example of the situation. The Attorney General and the general manager had been asked to submit a response about the delay of an appeal process which was to the advantage of the licensee; it was not responded to. This deals directly with the schedule for the appeal process. I almost get the impression that the general manager was involved in allowing that delay to occur.
Hon. C. Gabelmann: Just so we're really clear, this was well before the time of the current general manager -- so there's no misunderstanding about that point.
But beyond that, the member suggests that the appeal was in the hands of the establishment and that the delay was caused by the appeal board. It had nothing to do with the government or the liquor control and licensing branch, and probably is another good illustration of why we need these kinds of amendments.
K. Jones: That is exactly the reason why we have asked for a time limit on the appeal board having to respond, because, as you say, the delay was directly a result of the appeal board intentionally dragging out the process, perhaps to the advantage of the licensee -- maybe there was some interest between the two.
Hon. C. Gabelmann: The appeal board, then as now, determines its own procedures and rules within the regulatory framework that we establish. Time limits in that respect sometimes get in the way of a fair and judicious decision, and that would be a travesty if that were to be the case. My memory is that we actually wrote to the member, giving him a full explanation of everything that happened, as a result of his request in estimates a year ago. If I didn't do that, I will undertake to do it again.
The Chair: Mr. Member, with the caution that it seems to the Chair that we have indeed rather exhausted this rather small part of section 8, I certainly have no wish to impede the flow of debate, but unless there is some other dimension of the problem, it seems to me that we ought not to spend any more time on this section.
K. Jones: The only reason I rose was to thank the Attorney General for giving me the assurance that after a year and a half I am going to get a response to the question I asked. I hope that it will show a thorough investigation of that situation and indicate what rectifying actions have been taken so that the situation will not occur again.
Sections 8 and 9 approved.
On section 10.
A. Warnke: This is a transitional section, and therefore it's no big deal as far as I'm concerned. But a clarification is needed as to the transition period or whatever.
Hon. C. Gabelmann: This section is simply to ensure that people who are in the process now continue to operate under the old rules, not the new rules, and
[ Page 8351 ]
that they won't have the rules of the game changed on them in midstream.
Sections 10 to 12 inclusive approved.
Title approved.
Hon. C. Gabelmann: Hon. Chair, I move the committee rise and report the bill complete without amendment.
Motion approved on division.
The House resumed; H. Giesbrecht in the chair.
Bill 44, Liquor Control and Licensing Amendment Act, 1993, reported complete without amendment, read a third time and passed.
Hon. C. Gabelmann: I call committee on Bill 53.
LEGAL PROFESSION AMENDMENT ACT, 1993
The House in committee on Bill 53; D. Lovick in the chair.
On section 1.
A. Warnke: Let's see what happens here on Bill 53. The first section repeals the definition of "Canadian citizen." A number of people have brought to my attention that the intent here is quite unclear in terms of the specific reference to Canadian citizen. Could the Attorney General elaborate on why the definition of a Canadian citizen is being repealed? Further, why is it specifically a Canadian citizen? Is there a problem in terms of Canadian citizens versus American citizens?
Hon. C. Gabelmann: The reason for this amendment is that the Supreme Court of Canada has ruled that the citizenship requirements are contrary to the Charter of Rights.
A. Warnke: Just on that point, is this the Andrews case?
Hon. C. Gabelmann: I think members are indicating that the answer is yes.
A. Warnke: This particular section refers to new definitions of "retired member" and "non-practising member." Could the Attorney General perhaps clarify as to these new definitions?
Hon. C. Gabelmann: Procedurally, I think this might be better dealt with under section 12 of the bill.
Section 1 approved.
On section 2.
A. Warnke: I have no problem here. It's just that this particular section is so good, mainly because it has a very positive impact, that I can't resist suggesting that it needs enthusiastic support. Give credit where credit is due, I figure.
[8:00]
Section 2 approved.
On section 3.
A. Warnke: This section changes the provisions as to who may be a member of a committee of the benchers. In the current act the member of a committee must be a member of the society. The amendment changes the provision so that any person, not necessarily a member of the society, may be appointed to a committee. A simple clarification from the Attorney General would be fine.
Hon. C. Gabelmann: This will mean that members of the community who are not members of the society, such as judges, academics and others, may well be able to participate on Law Society committees.
C. Serwa: Just for my clarification, will the appointment of lay people as benchers on the committee be under the direction of lawyers of the Law Society?
Hon. C. Gabelmann: Is the member referring to committees of the benchers in section 3 of the bill?
C. Serwa: Yes.
Hon. C. Gabelmann: The committees of the society are appointed by the master treasurer, who is the chief elected officer of the society.
K. Jones: A question with regard to the appointment process: does this open up the opportunity for the government to appoint their own people to a particular committee of the benchers? By making it an imposition upon the legal profession to have so many representatives appointed by the government on a certain committee, does this then allow them to have people who are non-benchers?
Hon. C. Gabelmann: There is no reference whatsoever to the government in section 3 of the bill, which is section 7 of the act. These are internal committees of the benchers. The decisions to appoint committees are made internally by them, and the government has no role whatsoever in those appointments.
K. Jones: I realize that's what it says, but I'm wondering if this facilitates the ability of the government to make an appointment to a specific committee of the benchers, rather than just to the benchers as a body?
Hon. C. Gabelmann: The answer is no. The government has no power in this respect.
[ Page 8352 ]
Section 3 approved.
On section 4.
A. Warnke: Similar to the current section 8, with the exception of the defined terms, the current term indicates 12 years or six complete or partial terms, whereas the amendment indicates four complete or partial terms, which is a total of eight years. What the section does is reduce the period of time from 12 years to eight years for benchers to be given the honorary title of life bencher. Essentially, what I'm seeking here is a simple clarification on the reduction of the length of time.
Hon. C. Gabelmann: The Law Society determined that it would be in its own interest to enable more of its members to participate in the benchers' activities. Given that there are approximately 7,000 members of the society in British Columbia today, the sense that they had -- and we saw no reason to disagree with their request -- was to limit the terms of elected office in order to, as it were, spread the wealth so that more members of the society from more parts of the province could participate. Although, once people are elected, they can stay on in an honorary capacity.
Given that there are 28 members of the society at the moment -- three of whom are appointed by government and 25 come from an internal process that is established in the act, I think -- this is an attempt to spread it around a bit.
A. Warnke: Actually, I appreciate the answer given by the Attorney General, and I happen to agree with it. However, concern has been expressed to me from two areas. Certainly the public is sometimes suspicious of organizations that tend to feather their own nests, and that sort of thing. So we want to allay any fears that that may in fact be the case. Indeed, some members of the Law Society have suggested that the one thing they do not want to be perceived as is a group feathering its own nest.
[E. Barnes in the chair.]
From that kind of concern, I'm wondering if the Attorney General could elaborate, while the initiative has come from the Law Society, on why this should not be perceived as simply a measure to include more lawyers in the old boys' club and to feather its nest and that sort of thing. I really think it's extremely important to project some kind of rationale that would allay that fear for some members of the legal community and certainly allay some misconceptions -- I suppose some people would say. But the public has concerns, too, about such bodies perhaps wanting to enhance themselves.
Hon. C. Gabelmann: The first thing I have to say is that this section is not a matter of great government policy. We are responding -- as I think is appropriate for legislative governance of self-governing professions -- to a request from the Law Society that the limitations be changed on the number of times members can run for office. It has been and still is limited; it's just a shorter period now. That's the effect of this. As I said, the reason for it is that there was a sense there should be more rotation of leadership at the top. I don't understand the references to feathering of nests. I think that what this will do is help make the institution more democratic and give it more vibrancy and more life -- because it will constantly be injected with new blood, at a 50 percent faster rate than in the past.
A. Warnke: I was eliciting precisely those kinds of remarks, and I want to thank the minister for them.
C. Serwa: I'd like to ask a few questions, because it's an area that I addressed in second reading. I think that the Attorney General is well aware, as I am, that it's not the policy of government to restrict terms of members. If being a bencher is anything like being a politician, I don't know how anyone in their right mind could stand six terms. In any event, it's my understanding that the legislation presently on the books created a type of life bencher recognition at the end of six terms, which is 12 years. But it was also my understanding that the bencher was not restricted to a maximum of six terms -- that there was no maximum restriction. Is that correct?
Hon. C. Gabelmann: Yes, I may have confused the House in my earlier answer. The member is right; there was no restriction. It was just that after 12 years benchers had the right to be given the title of honorary life bencher. That was my mistake earlier, and I apologize to members.
C. Serwa: It also seems to me that the Attorney General and the government have as much responsibility to the people who are served by lawyers and benchers directing the operation of the Law Society.... I think the government has to ask itself whether the request that has been made is reasonable, fair and balanced. It may be appealing on the face of it -- and I recognize what my hon. colleague in the opposition stated -- but I think that the stature of a life member of the bench is quite significant -- perhaps in a smaller way, like a QC. If this initiative is to restrict the number of terms -- and to create more benchers who attain that status -- then I think it is somewhat flawed. From my perspective of the democratic process, it seems to me that it is in question. If the qualities, potential and ability of a bencher warrant the continued support of his peer group, it seems inappropriate to reduce that particular term. The designation of life member status is more or less academic as far as I'm concerned; if they wish it at eight years, that's fine. But the arbitrary reduction in the number of terms a member can serve seems to me unreasonable. In the end, I question whether it is of public benefit.
Hon. C. Gabelmann: I understand the member's concerns. He expressed them during second reading. Following that, I talked to a number of people to check out the concerns expressed by the member and to see
[ Page 8353 ]
whether I was on track. I concluded after second reading, as I had earlier, that there is no good reason for the government to reject the request of the Law Society to have this amendment, and I am therefore accepting it and putting it forward.
Sections 4 to 6 inclusive approved.
On section 7.
A. Warnke: Just a quick question. Section 7 has a paragraph that allows benchers to pass resolutions delegating any of their powers to a committee. I would appreciate a clarification.
Hon. C. Gabelmann: The ability to delegate was exercised in the past, but was subject to challenges because of defects in the way the delegation of power was exercised. This is to make clear, without any doubt, that the whole group -- being the full benchers' group -- can delegate to a committee of themselves certain powers that they ordinarily hold within themselves. This is something they have done before, but there have been some legal problems on occasion as a result of that exercise of a delegation.
Sections 7 and 8 approved.
On section 9.
A. Warnke: Again, I'm looking for clarification. The amendment deletes the clauses "on a particular matter" and "on a particular cause or matter" to allow lawyers from outside British Columbia to get permission to practise law for a period of time, rather than on a case-by-case basis. This section also adds a new subsection (6), which prohibits lawyers who have been suspended or disbarred, and who are no longer members of the society due to disciplinary proceedings, from practising law under any conditions, regardless of whether or not they have been paid. I would like to explore with the Attorney General whether some conditions apply retroactively, and also the specifications for not practising law. Is this applicable only to British Columbia? My understanding is that the purpose of this subsection is to make it consistent with other provinces. Do societies in other provinces have some sort of check as to whether a lawyer seeking membership in a society has been disbarred in another province? Perhaps we could have some clarification here.
[8:15]
Hon. C. Gabelmann: I'm sorry, but I can't answer the question in respect of what other provincial law societies do.
C. Serwa: This section seems to be somewhat redundant. Part of this section prohibits disbarred members and others who have lost their membership from practising law under any conditions -- even from giving free legal advice. It is apparently defined in the terms under section 1. If it is already against the law to do so, why do we have this aspect turning up again here?
Hon. C. Gabelmann: I gather that the enforcement of the prohibition from practising has been very difficult, because of it being very difficult to determine whether or not a fee was being charged or collected. This attempts to ensure that lawyers who have been disbarred actually do not practise law, period. That is the reason for this. The enforcement was apparently very difficult.
C. Serwa: Just for my clarification, let's say a disbarred lawyer drew up a will for his grandmother. Would he be subject to prosecution? The interesting thing is that I am not a lawyer, and I can draw up a will for someone. Surely that is not the intent of this particular bit of legislation.
Hon. C. Gabelmann: I gather that the disbarred lawyer would be prohibited from drawing up that will. The remedy to deal with that is presumably open to the Law Society -- to seek an injunction prohibiting that kind of activity by that former member.
C. Serwa: Does the Attorney General sincerely believe that this section could stand with the Charter of Rights and Freedoms? Every other citizen in Canada can draw up a will, even if they have never been a lawyer. Now, because of the self-policing legislation of the society, this disbarred lawyer who is also a citizen does not have the rights and freedoms and privileges of any other Canadian.
Hon. C. Gabelmann: I think the fair answer to that is that I don't know. I don't think anybody knows. If it was ever tested, the courts would determine it.
Section 9 approved.
On section 10.
A. Warnke: In section 10, the amendment adds (3)(c), which provides for benchers to make rules which would require members to apply to become a principal for articled students, for consideration of those applications and for appeals about those decisions. I seek some clarification on that.
Hon. C. Gabelmann: All this section really does is allow the benchers to establish the rules in respect of articling students, what the so-called principals' duties are, and the rules governing them in respect of their articling students. Unless I am missing the member's question, I think that is all it really does. It allows the society to review and approve or amend educational programs for articled students before they begin their articles, as members applying to be principals would have to propose a program for an articling student. I think it tightens up the procedures and gives it better focus.
[ Page 8354 ]
A. Warnke: Subsection (4) also indicates that the committee may conduct an investigation as to whether the member is fit to be a principal. I would like to pursue the clarification as to what the investigation would include and to what extent the investigation would be conducted. Would the investigation include only the person's professional record, or would it also include something in the person's private life? I think that needs to be clarified.
Hon. C. Gabelmann: The rules that would be inquired into are the rules that were established earlier in the section. The principal is to ensure that articled students are getting appropriate training so that at the end of their year of articles they can advance into the legal world properly trained and properly prepared.
Sections 10 and 11 approved.
On section 12.
A. Warnke: The bill would allow non-practising members to have membership in the Law Society. We have talked about that, and I have said how this is a very positive move in allowing members to interrupt their career and later return to active practice. Is there a time limit in which the individual may interrupt their career? Would, let's say, a ten-year interruption be permitted as opposed to a ten-month interruption?
Hon. C. Gabelmann: I think the member is asking what the time limit is for the period in which non-practising members can continue to non-practise. I don't know the answer, and I'm stalling for time here as we try to figure out what the answer is. If I were to say off the top of my head, I would probably get it wrong. The bill is silent on that question. It could be subject to the rules that are established by the society.
A. Warnke: I would like to get further clarification on the previous answer. I suppose this is a question that would be raised. I understand it's a grey area, and once one defines something definitively between black and white there is a problem. I am patient, of course, if there is some legislation that has to be drawn up appropriately later on. Nonetheless, I thought there would be something definitive as to what constitutes an appropriate duration of interruption in one's profession.
Another aspect I want to pursue is essentially a clarification of section (1)(b), which indicates that benchers may establish conditions under which a retired or non-practising member may apply for and be issued a practising certificate. What types of conditions would apply? Would the certificate be issued for a time period or on a case-by-case application?
Hon. C. Gabelmann: My expectation is that the benchers would establish general rules that would apply. Keep in mind that what motivated this particular provision is the report of the Hughes committee about gender bias and the recognition that women lawyers may want to take time off to enjoy the first few years with their newborns, or whatever, without having to give up their membership. That's what motivates us. Obviously the provision goes beyond that to allow for other purposes, but I would expect that the rules would be established to have a general application, and then hopefully people could fit into that.
Hon. Chair, I'm going to ask members if they wouldn't mind just having a one-and-a-half-minute break while we all consider what we're up to and take advantage of what other opportunities we might need to take advantage of. If members want to make a speech on section 12 they're welcome to, but I'm just going to exit for a minute. I'll be right back.
C. Serwa: What a splendid opportunity to deliver a statement -- made in heaven.
The Chair: Just keep it on the section.
C. Serwa: It's rather interesting that in this particular section, we can see one of the advantages -- there may be a very few -- for an Attorney General to be a non-lawyer. This particular case clearly points out one of the real advantages, because I note that the beneficiaries of section 12 are fairly notable in the government and the government caucus of the day. Directly benefiting from section 12 will be the Premier, the Minister of Labour, the Minister of Aboriginal Affairs and three other private members on the government side: the members for Parksville-Qualicum, Vancouver-Kensington and Vancouver-Fraserview. So in this particular section it is just interesting to note that the Attorney General comes through truly unscathed, straight as an arrow and untarnished.
A. Warnke: With regard to section 12, I appreciate the comments that the Attorney General has given us, and I believe we can move on.
Sections 12 and 13 approved.
On section 14.
C. Serwa: My understanding is that the constraints that were indicated for disbarred lawyers will be the constraints on non-practising members. For clarification, is my understanding correct?
[8:30]
Hon. C. Gabelmann: One of the rights of membership is the right to act as a notary. The right to act as a notary ceases during the period of the non-practising membership.
Section 14 approved.
On section 15.
A. Warnke: Again, I'm looking for a simple clarification of the reason for repealing this section. Probably it's repealed due to a provision that allows lawyers from outside the province to apply to practise
[ Page 8355 ]
in B.C. for a period of time. Perhaps the Attorney General might elaborate on that.
Hon. C. Gabelmann: Section 32 was ruled to be unenforceable by a court case -- the Martin case. As I understand it, section 32.1 was introduced in 1989, and it remains unproclaimed while discussions -- described in my notes as interjurisdiction negotiations -- continue. They have not concluded. They continue in order to determine a resolution to this issue.
Sections 15 and 16 approved.
On section 17.
A. Warnke: Is it safe to assume that the members on the credentials hearings are not the same members to hear an appeal?
Hon. C. Gabelmann: The appeal is to a different group.
A. Warnke: Subsection (3) indicates that if there are special circumstances, benchers may be permitted to present evidence that is not part of the record. Would this be -- or could this be -- new evidence that would not have been heard during the initial hearing? Also, could the Attorney General quickly describe what "special circumstances" might include?
Hon. C. Gabelmann: I think it's fair to say that subsection (3) is not designed to meet a particular situation that can be described. It is, rather, an enabling provision to give some discretion to the benchers, when they're hearing an appeal, to allow them to determine whether there are special circumstances that will permit the applicant to present additional information which may not have been presented to the credentials committee.
A. Warnke: Maybe I didn't quite get it. What might special circumstances include?
Hon. C. Gabelmann: I can't say what those special circumstances might be. They would be events that the benchers would consider to be special and therefore would allow this.
Sections 17 and 18 approved.
On section 19.
A. Warnke: I know I've got something to say about it. I believe section 19 kind of cleans up the appointment process. As I understand it, there's the appointment process, and then it has to be parallel to the credentials committee and two other committees -- a competency committee and a discipline committee. Perhaps the Attorney General could elaborate on it a little.
Hon. C. Gabelmann: As a result of this amendment, the competency committee would be structured in a way that's parallel to the credentials committee or other committees, inasmuch as it could be composed of members of the society as well as the benchers. So it wouldn't be limited just to benchers as it is now. It could include other members of the society, which is a parallel provision.
Section 19 approved.
On section 20.
A. Warnke: Section 20 gives the benchers, rather than the competency committee, the power to impose conditions on the practice of a member who returns to practice after not practising law obviously for whatever.... Essentially what I'm seeking in section 20.... Perhaps that just needs a bit of clarification on the intent, if the Attorney General could elaborate.
Hon. C. Gabelmann: Given the new provision to allow for the non-practising membership and given the fact that lawyers may be away from the practice for a considerable period of time, the benchers felt it was important to have the additional security that would be provided by giving the power to impose conditions to the benchers in these unusual cases where people have been away for a long time.
Section 20 approved.
On section 21.
C. Serwa: For my clarification, perhaps the Attorney General could advise me why this change is necessary or desirable with respect to rescinding a citation prior to a final determination. I would appreciate it.
Hon. C. Gabelmann: There's no ability now on the part of the discipline committee to judge a case and decide that a hearing should occur, but in the meantime the citation doesn't need to be in force. This gives them the option to allow that to happen, should the disciplinary committee feel that's appropriate. Right now there is no express authority to rescind the citation. This would give them that in advance of the hearing, which takes place under section 45 of the act.
C. Serwa: Perhaps the minister could give some example of an occurrence that would result in that. I mean, there has to be a substantial amount of concern before a citation is presented. What unusual occurrence would result in the rescinding of that citation? That's what I can't fathom at the moment -- when they're going through the course of a disciplinary hearing, for example.
Hon. C. Gabelmann: I can't either. I don't have a specific example at hand. I think what the benchers wanted -- for reasons which they might well be able to articulate, were they here -- was to have the option. It doesn't mean, of course, that a citation would be rescinded. It just gives them the option, should the circumstances occur where that might be necessary.
[ Page 8356 ]
Sections 21 and 22 approved.
On section 23.
A. Warnke: Once again I'd like to seek some clarification here. Sections 7 through 10 were eliminated. With the exception of section 8, these sections within the existing act pertain to a complaint process relating to the misuse of funds. I'm wondering if the minister could confirm whether the new section 52.1 -- "Claims on the special compensation fund," as found within this amending section -- replaces the sections that have been eliminated under the existing act.
Hon. C. Gabelmann: For the most part this new section 52 reorganizes the old sections 52, 52.1 and 52.2, and puts them in a more ordered and clear way. It also allows the benchers to establish a special compensation fund committee, to delegate certain powers to the committee, and to provide for appeals to the benchers from decisions of that committee. The committee, as I think the member knows, has a similar composition to the discipline committee in terms of credentials.
Section 23 approved.
On section 24.
C. Serwa: Subsection 24(2) says: "The competency committee may order that a member pay to the society the cost of an investigation or of implementing a remedial program under section 37 and may set and extend the time for payment." I hope this is not contagious. It seems to smack of unfairness. If somebody is charged with a criminal act.... It's akin and related to charging that individual for the investigation and court proceedings. In a self-policing body it seems to me there's a sort of insurance that this is a natural or needed function of that particular body, and the cost for this disciplinary hearing should be borne collectively by the body. It seems to be grossly unfair from my perspective. There's no question of guilt or innocence in this. It indicates clearly that the cost of investigation and the whole affair has to be borne, I suppose, by the member who has been served the citation.
[8:45]
Hon. C. Gabelmann: We're dealing here with questions of competency. I think the concern isn't as much with the investigation of the competency as it is with the remedial programs, which can be very expensive. I think the Law Society was finding that the remediation programs required in some instances were a very heavy drain on the society's finances. Of course, that leads to an increase in fees against all of the members of the society. The feeling was that the society should be able to recover some -- it doesn't say all -- of their costs for these remedial programs from which the lawyer benefits, because in a sense it is upgrading and training and bringing them back to competency. It is not entirely an insurance scheme. If someone requires remediation it is because they have been lax and haven't kept up; it is not the same as having an accident, for which insurance makes sense. They are required to upgrade their training, and they should bear some responsibility for that themselves. There is a bit of a user-pay principle here too.
C. Serwa: I certainly agree with the hon. Attorney General with respect to remediation. I presume that the disciplinary committee's investigation is with respect to the citation and that aspect. That is the area that I am fundamentally concerned with. Philosophically I have no difficulty with the latter part of what the Attorney General explained. It is the first part that I think smacks of unfairness. I can see someone trying to do that.... But it is grossly unfair when the situation hasn't developed -- whether the individual is guilty or not guilty -- to be charged with the cost of the investigation.
Hon. C. Gabelmann: I think the member actually makes a point that has some validity. I know that the benchers will review the Hansard of this debate and will note the point. The member should know, however, that they would argue -- and I agree with them -- that this is a discretionary provision. Certainly if an investigation takes place and there is no problem and no remediation is required, I would be very surprised if the cost of the investigation in that case would be charged to the lawyer. I hope that it wouldn't be. I think that it is discretionary. If it becomes a problem, I am sure we will see this section back again another day.
Section 24 approved.
On section 25.
A. Warnke: I cannot resist the temptation, of course, to mention the reference to "obscure legal Latin." Sometimes Latin is more precise than English -- but as everyone knows, that is a bias on my part. The attempt here to use plain language by removing the legal Latin references....
An Hon. Member: Put them back in.
A. Warnke: Well, I may say let's put them back in. I know there are a lot of people who disagree with that. In all seriousness, perhaps the Attorney General could elaborate on the intent of this section to try to put it into plain language. We will let it go at that.
Hon. C. Gabelmann: I know time is marching on, but I am going to take a minute to make it very clear why this section is included. This is how 56.1 reads now:
"On the ex parte application by the society, an applicant or respondent, the Supreme Court may order that a writ of (a) subpoena ad testificandum or of duces tecum shall issue to compel the attendance of a person, or (b) habeas corpus ad testificandum shall issue to compel the attendance of a prisoner...."
There are only two members of this House who understand that: one is the opposition critic and the other is the member for Nanaimo. Nobody else in
[ Page 8357 ]
British Columbia could understand it, therefore it has been changed.
Sections 25 and 26 approved.
On section 27.
A. Warnke: I thought the quotation to exemplify the changes in section 25 was perfectly clear, but there you go. I also compliment the minister for his excellent Latin. At any rate, I do understand that.
I'll just elaborate a bit on section 27. The amendment here makes three key changes. First, it stipulates that hearings between the solicitor and the client must be held in private, which amends the existing section which says that hearings shall be held in private. Second, on the request of the solicitor or the client, records pertaining to remuneration must be kept confidential. The existing section indicates that such records shall be placed in a packet and sealed by the judge. Third, information pertaining to remuneration may be published, as long as the names of the solicitor and the client are not disclosed. Why were these stipulations changed? Can circumstances pertaining to the case be released?
Hon. C. Gabelmann: Not if they would identify the parties.
A. Warnke: Another question that goes through my mind is: does this not to some extent breach, or could it be perceived as breaching, some provisions under the Freedom of Information and Protection of Privacy Act? Do the parties, solicitor and/or client, need to be informed of the release of such information?
Hon. C. Gabelmann: In fact, it's the other way around: the information can only be released upon the application of the solicitor on behalf of the client or of the client.
Sections 27 to 31 inclusive approved.
Title approved.
Hon. C. Gabelmann: Hon. Chair, I move the committee rise and report the bill complete without amendment.
Motion approved.
The House resumed; E. Barnes in the chair.
Bill 53, Legal Profession Amendment Act, 1993, reported complete without amendment, read a third time and passed.
Hon. C. Gabelmann: I call second reading of Bill 48.
REPRESENTATION AGREEMENT ACT
Deputy Speaker: On a point of order, the hon. member for Richmond-Steveston.
A. Warnke: It was indicated to me that the Minister of Health will be introducing amendments tomorrow to Bill 51, the Health Care (Consent) and Care Facility (Admission) Act. Considering that Bills 48, 49, 50 and 51 were originally presented as a package by the Minister of Health and the Attorney General, is it not feasible that second reading of Bills 48, 49 and 50 not be debated tonight until we know what the amendments are, since the amendments have the potential of affecting the other three bills?
Deputy Speaker: Hon. member, that is not a point of order that the Speaker is in a position to rule on. I would imagine that this is a matter that would be taken care of between the party Whips.
Hon. C. Gabelmann: Before proceeding with some comments, I would just indicate to members that there are a number of amendments being presented to all four bills, by both the Minister of Health and myself. None of the amendments will in any way modify the principle of this legislation. In fact, it is fair to characterize the amendments as minor and, for the most part, technical. There would be no resulting change in the debate on these bills. I think that the member may have simply wanted to go home earlier tonight; some of us would like to get on and do the work we were elected to do.
The Representation Agreement Act introduces a new legal document which will enable British Columbians to arrange how and by whom decisions about their life will be made, should they become incapable of making those decisions independently. This bill implements a key component of the new adult guardianship system described in the joint community and government report entitled "How Can We Help?" The report, and specifically the portion of the report dealing with representation agreements, was developed by a broad cross-section of people, all of whom have categorically stated their desire to have a recognized planning document brought into force.
Some background to this bill may assist the House in understanding the importance the community places on the legislative initiative. At present the Power of Attorney Act enables adults to arrange for a person, known as an attorney, to make legal and financial decisions on their behalf. When an enduring clause is added to a power of attorney, the authority of the attorney continues after the donor has become incapable of monitoring or directing the attorney, or of calling him or her to account. There has been criticism of the use of enduring powers of attorney as planning documents because there are insufficient procedural safeguards within the current Power of Attorney Act. This has exposed donors to financial abuse.
There is no similar legislation which allows adults to assign decision-making authority to another person for health care matters. Despite this fact, many thousands of British Columbians have created living wills,
[ Page 8358 ]
advanced medical directives, do-not-resuscitate orders and other forms of health care planning documents in an effort to make their wishes known. Since there is currently no enabling legislation, it is unclear whether these documents can be relied upon by family members or health care providers who are charged with carrying out the instructions. The purpose of this bill is to create a new legal document, a representation agreement, which will allow British Columbians to plan for their future decision-making needs. These needs will arise if age, accident, disability or illness result in the adult experiencing diminished mental capability.
In creating representation agreements, adults can select one or more persons as their representative to make decisions on their behalf. Those decisions may extend to one's personal and health care, financial affairs or legal matters.
I would now like to draw to the attention of the House several key features of the representation agreement:
1. The scope of decisions which representatives can make will be set out in the standard provisions of the representation agreement document. Alternatively, adults who want a representative to make decisions in areas not covered under the standard provisions, or who wish to give specific instructions to the representatives, will be able to modify the standard agreement.
2. In order for an agreement with modified provisions to be considered valid, an individual must have a higher degree of capability than an individual who makes an agreement with only standard provisions. These levels of capability are set out in the act.
3. The agreement may contain a trigger clause that defines a future event or date upon which the agreement will take effect.
[9:00]
4. As a safeguard, representation agreements must be signed before witnesses, and there is an option to appoint another person as a monitor to supervise the decisions made by the representatives.
5. To preserve the agreement in cases where the selected representatives are unable to act, the adult can select alternative individuals to serve in their place.
6. To facilitate their use, all agreements must be registered with the public trustee so that hospitals, financial institutions and others can verify such an agreement is in place.
7. If the adult is still capable of doing so, the agreement can be changed or revoked by the adult at any time.
[The Speaker in the Chair.]
Over and above these features, the act also sets out the duties of a representative. The bill will authorize the public trustee to investigate situations where the monitor believes that the representatives are not acting appropriately. This is consistent with the present authority of the public trustee to investigate powers of attorney.
A significant benefit will be derived from this bill. By using representation agreements it will be possible to avoid the costly process of applying to court for the appointment of a person to make decisions on behalf of an adult who has become incapable. Therefore, a critical factor in the success of this new representation agreement scheme will be the number of individuals who choose to plan in advance. To this end, it is the intention of the government to educate as many people as possible regarding this option.
As a matter of comparison, in 1989 the province of Quebec introduced a similar scheme with a document called a mandate. During the past year the province of Ontario passed new legislation that, when proclaimed, will give the citizens of that province similar rights to arrange their affairs in advance.
Upon proclamation of this act, the enduring clause in the Power of Attorney Act will be repealed. Powers of attorney will remain in effect to assist people in conducting business transactions. The bill provides for existing enduring powers of attorney and some health care planning documents to be registered as representation agreements. This bill enables British Columbians to exercise the ultimate right of self-determination, to plan in advance for a period of mental incapacity and to know that their instructions will be carried out.
I will be proposing several amendments to this bill. These amendments stem from further consultation with the affected community and professional groups which have been reviewing the proposed legislation since it was introduced on June 17. The amendments do not depart from the principles I have just described, nor do they alter the substance of the bill. Instead, the amendments are technical changes, primarily designed to add clarity to the authority and standing of representation agreements.
The immediate response of the community to this legislation is indicative of the initiative and commitment shown throughout this joint community-government collaboration. I am pleased to respond to the suggested amendments in order to ensure, at this stage, that the bill continues to reflect the community's viewpoints. Details of these amendments will appear on the order paper very soon.
A. Warnke: It is my pleasure to rise on this bill. From time to time -- especially last year -- whenever we got up and recognized a bill that was presented before the House.... I suppose after a while people get used to the idea that an opposition should oppose a bill no matter what it is, especially a bill introduced by the government. Sometimes in the past we have agreed with a bill that was initiated and presented by the government, and supported it. Consequently some people might think we're not doing our job as an opposition. So much for the concept of a kinder, gentler opposition.
This year, having found our role, I think we are able to identify some flaws and weaknesses in bills presented before this House. But this bill is quite different. It is one that I believe should be taken notice of, and not only by members of this chamber. I would go so far as to say that this bill provides British Columbians with a model of how to go about articulating a policy and bringing that policy into legislation. I'm most impressed with the various communities that have been involved in this particular
[ Page 8359 ]
bill, the Representation Agreement Act, and with all that has led to the package: Bills 48, 49, 50 and 51.
Earlier in the day we discussed Bill 51 on second reading. Some of the comments on Bill 51 certainly apply this evening. Having not been outside, I almost said this afternoon. I don't know what the state of sunlight is out there, but it's night. The members for Richmond East and for Vancouver-Langara spoke eloquently earlier today of the representation of these groups. In particular, the one group that should be commended by all members of this House, I would say, is the Project to Review Adult Guardianship. The contribution of these people over the years is to be highly commended. Their initiative began several years ago -- in 1989, I gather, and no doubt 1988, when some of the ideas began to crystallize in the minds of these people. They're to be commended for taking on the task, for recognizing that there is a problem with regard not only to an aging population and what to do about seniors in our community, but also to a variety of people who, for one reason or another, are incapacitated or are in a debilitating stage from which they become incapacitated. Once again, people who are concerned about that part of the population deserve our attention and support.
Over 70,000 seniors will be assisted by this legislation and over 100,000 people described as handicapped. To a certain extent, that has been seen as an unacceptable word, but it does convey a very clear impression of how a person can be so adversely affected. True enough, handicapped people, many of whom do not consider themselves handicapped -- and that's commendable as well.... Nonetheless, the needs and desires of over 100,000 people in that particular situation have to be addressed. It is not enough to just rely on the present system, so that any attempt to change this....
Interjections.
A. Warnke: Hon. Speaker, I'm surprised that on a very serious subject like this the House has gotten a little noisy.
At any rate, I want to point out this model of how people with a concern for people within their own community can embark on an initiative to establish a policy and see some result in terms of legislation. I think this particular project to review adult guardianship provides a very neat model for others to emulate. It is quite important, especially in this era of concern for participatory democracy and so forth. People are trying to find a way in which.... How do we realize our ideas and our aspirations in government? How do we influence government? Sometimes they're tremendously frustrated, and I'm beginning to understand why. They figure there's no response by government, yet this model clearly proves that there is some way for members of the community at large to have a concern about their fellow human beings and to initiate the kind of action that is necessary to realize their aspirations, however ambitious.
Incidentally, this particular project before us is not small. It's not frivolous; it's pretty major. The project is tremendously ambitious. On that scale, once again it proves that it doesn't have to be a small thing. It can be the large things in life, too, that can be pursued. In this context it's extremely important to open with those remarks and to echo what has been said by the member for Richmond East, the member for Vancouver-Langara, the Minister of Health and the Attorney General as well. The Attorney General made remarks along the line of commending this particular group.
This package actually allows a number of options. I'll elaborate on the specifics of Bill 48 in a moment, but when we take in context the entire package that's before us.... I want to mention at the outset that this is not just one bill that addresses one particular problem, and therefore everybody has to conform to it. For example, if we were to take some of the remarks prima facie, I suppose some people might ask whether this abrogates wills. I would say at the outset that people have to be reassured that it doesn't. The Attorney General has certainly made that clear, and I suppose it has to be made clear that this is not an attempt to suspend those provisions for the future, which obviously people have to plan for and so forth.
What this particular representation agreement does is allow individuals who can see a problem evolving, maybe due to health reasons, or who just feel they should plan for the future in case something happens.... This is indeed a very dangerous world in some ways. We certainly may not be killed, but we can be seriously debilitated as a result of a traffic accident or something happening at our workplace. There are many circumstances in our complex industrial society and economy, and anything can happen. Those individuals feel that just in case something happens, perhaps there should be the opportunity there to plan who can make decisions on their behalf and so forth -- a variety of decisions. Let's face it: for each of us, if we run into problems of incapability, it's not a minor thing. Our health and personal care and our legal and financial affairs are affected. When one cannot make decisions with regard to one's own personal and health care or one's legal and financial affairs, it is most advisable that someone be there to make a proper representation on one's behalf.
[9:15]
I see Bill 48 as a very positive step to put forward the option to individuals to seek such representation agreements so that their affairs can be handled appropriately. No matter what the circumstances or how adverse they may be in the future, they will be handled at a time when one is capable of making a decision. There are those who could see themselves going through a period of declining health, and while they have the capability of making decisions they can make a decision independently for themselves in their own best interests. This certainly takes the burden off the court system, minimally speaking. But in a sense it takes the burden off society as a whole, of having to make some very difficult choices with regard to individuals.
The nature of this bill -- and I actually commend the government for it -- is driven by a concern for the individual, something that I personally hold very close.
[ Page 8360 ]
Indeed, the principles of the community which have driven this bill.... First of all, the community has a concern about the Canadian Charter of Rights and Freedoms as it affects individuals. It's a premise that this community has operated from: whatever legislation is drawn up must be consistent with the principles as outlined in the Canadian Charter of Rights and Freedoms. I am most impressed that the attempt to encourage legislation has been in a context where individual adults achieve the most effective way of dealing with their personal concerns and, as has been described, the way that is the most effective, the least restrictive, the least intrusive by governments and other organizations, including corporations, and the least stigmatizing -- all in an effort to assist, support and protect individuals.
From that premise, my colleagues and I would like to support the bill. The proposed legislation is very balanced between protecting and enhancing the rights of individuals and the concerns expressed by the community. After all, we are seeing more and more -- very regrettably -- a greater isolation of individuals from their family and community. In my assessment, this legislation has every incentive to integrate the individual interest with the family interest and with the interests of the community. So in that context it's a very positive step, in that the community is no longer something ominous that has to set up some sort of bureaucracy or organization to protect individuals. We know how well-meaning but sometimes oppressive that can be. The attempt here is based on the premise that people must speak for themselves and individual concerns must be balanced with those of community-based groups, advisory groups and so forth. In that context, this particular legislation is certainly supportive.
This bill addresses a number of concerns with regard to health care, treatment and abuse. The abuse of individuals is certainly becoming more noticeable in our society. Whether or not it has always been there is, I think, a bit contentious. My personal evaluation is just intuitive, but it seems to me that a few decades ago the community was far more interested in some sort of social solidarity. It took an interest in individuals and families. Perhaps I'm wrong here, but the incidence of abuse seems to have increased. It has at least become more noticeable to Canadians and British Columbians. There are various kinds of abuses. There's obvious physical abuse, where violence is exercised. There's sexual abuse and also emotional, financial and material abuse. People in their senior years, or sometimes very young people, are extremely vulnerable to having their property taken away, and they're more vulnerable to theft.
The attempt here at a representation agreement addresses what we see as the increasing significance of abuse in our society. We're addressing the problem of the neglect not only of young people but of our adult population as well. The abuse and neglect of adults in our society is at least being perceived more than in the past. Should this always be subject to the courts? It's very easy for individuals to say: if there's a problem, take it to the courts. But the courts and the legal system cannot really handle this increased caseload, nor should they if it can be addressed in other ways. In that context as well, the attempt to address the concerns of adult guardianship is an extremely important and positive one, and Bill 48, the Representation Agreement Act, is part of that attempt.
I suspect there are a few concerned people who would say that this set of bills -- and this particular one -- may be ominous for individuals, and so forth. Without reading it, there might be a suspicion that there is going to be more government intrusion. I would suggest that on close examination of this.... Incidentally, there are a lot of areas with regard to Bill 48, more than with the others, where we want to see clarification of terms and concepts. We will do a lot of scrutinizing and questioning at the committee stage. But for the most part, in terms of the general principle of the bill, this is not a bill that is designed to strengthen government. Indeed, a very strong case could probably be put forward that it strengthens individual interests and maybe even weakens the power of government in relation to the individual. On that basis, I don't want to take up too much time. Normally, when the opposition supports bill, they say they support it and let's get on with it and so forth. I would have done a tremendous disservice if I did that without mentioning the contribution of the people involved here. This truly is a community-driven bill that, as I suggested earlier, needs to be commended.
With that said, we on this side of the House support the Representation Agreement Act, with the qualification, of course, that there are a few issues outstanding in terms of presenting the package. The member for Richmond East, our Health critic, noted this morning that some amendments to the Mental Health Act are missing. But our Health critic, our Social Services critic and I are under the strong impression that there will be appropriate amendments brought down later that will deal with the Mental Health Act and help facilitate this package. We will encourage that, obviously.
Having said that, while we'll obviously canvass a number of concerns at committee stage, for the most part we would accept this bill in principle. It's a good one. I would especially like to thank the community that has been involved and has been the main impetus of this particular bill.
C. Serwa: Hon. Speaker, as you requested some time ago, I want to advise the members here, for their knowledge and comfort, that I am in fact the designated speaker. I have approximately two hours of notes here, and with the indulgence of the Speaker, I would enjoy having the opportunity, starting at 9:30 p.m., to conclude my remarks at approximately 11:30 p.m. That is all said in jest, just to make the brave spirits who are here at this particular time feel a little better.
I am particularly pleased with the package of legislation that has been brought down when we look at the philosophy and the principles of this bill. I'll be speaking on that very shortly, but before that, I would like to say I am also particularly pleased with the comprehensive briefings that we were given. I thank the Attorney General and the Minister of Health for the
[ Page 8361 ]
courtesy displayed to Her Majesty's Loyal Opposition and the third party in opposition. It was certainly welcome. I am particularly proud of this package of legislation because it was started three and a half or four years ago by the former administration. I'm pleased that it was initiated under one administration, and happy that the merit of the initiative was grasped by the current administration and that the bill has been presented. It is my belief that what we are looking at is truly landmark legislation, and it should enjoy this support. It is very complex and very comprehensive, but it is needed.
The bill has been three and a half to four years in the making, and the program to review adult guardianship should be complimented. Forums have been held throughout this province, and what is particularly significant is that there is not simply the political element of information in it; all the communities have provided additional information and direction for this bill. There is a real need, as I said. These are changing times with changing needs. Medical science has changed dramatically, and we are living longer. We are getting into aging, and we recognize it. As a percentage of the population, we have among the highest percentage of seniors, age 65 and over, living in British Columbia, and there are many maladies and degenerative diseases that tend to take place.
[9:30]
The objectives of this bill were to confirm the right of adults to self-determination and the ability to remain independent as long as possible, to establish a new system of decision-making and to provide opportunities for pre-planning. In the four acts that work together, most of the intended objectives on needs have in fact been fulfilled. It is incumbent upon all British Columbians to recognize that they should plan for a state of incapacity. It appears that it is certainly necessary. The four packages in this set of legislation that complement one another are, in my mind, really quite excellent. As the Attorney General and the hon. opposition critic have indicated, there are sections that we will question in the debate in committee. There will probably be, as the Attorney General has indicated, changes and adjustments to this bill not only at the present session -- the amendments will come forward -- but probably also as we recognize shortcomings or opportunities where the control should be expanded.
We do have that aging population, and a growing number of dependent adults. The representation agreement will be used by a larger segment of the population of British Columbia, and agreements will be made well in advance on how decisions about their health care, personal care or financial affairs will be managed when and if they become incapacitated or unable to make decisions. We support the creation of representation agreements because, in principle, they enhance a person's means of self-determination. We also support any measures that enhance individuals' power over their own lives, and any measures that allow individuals to retain their own dignity. A representation agreement will allow an adult to put his or her trust in a family member or close friend. Again in Closer to Home, with the community style of health care that we are living and with the health care facilities, we are asking adults to have the opportunity to control their personal destiny for a longer and longer period of time. That is made available by the move away from institutional care, and that is a substantial reason for this type of agreement, and this legislative package, to come forward.
I think a number of checks and balances are in the legislation. We have some questions about a number of areas. While we're talking about the philosophy and principle of this representation agreement, there is an apparent lack of consistency. Last year we debated the Infants Act, and there was no opportunity to sign over decision-making to a more responsible or more informed adult. In this particular case, one adult can sign responsibility over to another adult. We have some concerns about that.
We have serious questions and reservations about what constitutes the capability of an adult. With mental illnesses, such as schizophrenia, for example, a person may or may not be deemed capable, depending on the situation. There are some inconsistencies in that. I don't know how that's going to be ironed out. It's very difficult to establish clear-cut lines. Obviously there is going to have to be some sensitivity.
There are other areas of capability or incapability. Perhaps states other than physical or mental illness, such as alcoholism, may overcome an individual and affect their capability. Drugs might also play a part in this type of situation. It may be dreadfully unfair to ask the representative to make a decision to authorize disconnecting life support systems. Decisions that are very difficult for families to make collectively could be even more difficult for an individual to make. Yet these decisions must be made as we move into the future. The need is there. As medical technology improves, ethics committees, individuals, families, politicians and medical practitioners are all called on to be part and parcel of more complex and more difficult decision-making processes. In many cases, we're moving much closer to what was formerly the Lord's domain.
Truthfully, there's not a great deal more that I want to say about this. I think that the intent of the package of bills is commendable. We will be addressing a number of issues as we debate.
In this particular series of bills I hope that all legislators in the chamber, on both the government and opposition sides, participate in the debate section by section. This is that type of package of legislation. It's not simply a government bill because the government has put it forward. It's part and parcel of our collective responsibility to look at the various sections. If we have questions and suggestions, then I would hope that we would have the full participation of all Members of the Legislative Assembly. With that, I conclude my second reading debate on the philosophy and principles of this bill.
V. Anderson: As has already been mentioned by the other speakers, this is a very important opportunity for all members to work cooperatively with each other. I have only one concern about that: that the Attorney General and the Minister of Health might get swelled
[ Page 8362 ]
heads because of all the praise that's coming upon them for these particular bills -- unaccustomed as they are, perhaps, to receiving this from the opposition members. I want to say first that we can't give all or the major credit to either the Health minister or the Attorney General. As they themselves have also commented very much, this bill has been thought up, researched, brought up and written by the members of the community who have worked at it together over many years.
I couldn't help but think, when the member of the third party indicated that the work began in the time of one government, that it continues in the time of the second and I expect it may find its final implementation in the time of a third government. So it would really be an all-party undertaking when that has been accomplished.
It's been my privilege and opportunity to live and work with many people, over the years I've been involved with community people. The opportunity for them to be concerned about their own care -- not only in relationship to themselves, but in response to their family over the years, as circumstances change in their lives -- is a very crucial one. Until now there has not been a good method in our society to respond to those particular needs.
The best method that we have had so far is the power of attorney, which the Attorney General has already mentioned, and within that, the enduring clause. I trust that all of the members of this House have had the experience of dealing with the power of attorney and the enduring clause, to really understand and appreciate the validity of this particular act that is before us. But I would also point out to them that, like so many other things in life, it is one thing to share this experience with somebody else as they go through it, but another to experience it for yourself. I took the opportunity to have a power of attorney written with the enduring clause, and I found it a very helpful, educational and satisfying experience. When you have gone through that and looked at the inadequacy of that particular vehicle -- although it was the only one available -- you really begin to understand and appreciate the validity of what we now have before us in these four bills.
One of the realities is that most of the people in our community are aware of the need to have a will. Even the people who haven't gotten around to having a will are still very much aware that this is something they should do sooner or later. People have put a great deal of time and thought into what happens to that which is precious to them after they die. But they have not had the opportunity to do the same thing with what is precious to them -- namely themselves and their family -- up until that time.
What we are talking about is how we live out our lives with each other, with the changing circumstances that are so unpredictable for all of us every day of our lives. In our youth we may walk down the street and be hit by a car, and suddenly we're not able to care for ourselves anymore. We may be driving with our family and have a car accident because a tire has blown out, and we're not able to care for ourselves anymore. I found from experience that most people are quite willing and eager to care for somebody else. But at the same time, they are uncertain about somebody caring for them because, on the one hand, they don't want to impose upon other people, and on the other hand, they want to be able to maintain their own freedom and their own ability to decide their future. All of these things can, in part, be resolved by this particular bill, the Representation Agreement Act.
If I can say it quite simply, it means that I sit down with members of my family, or with some friends with whom I'm very close, and I say to them: "If I give you the authority when something happens to me and I'm not able to do things for myself, will you do it on my behalf?" It will be written down. It will be made legal. You will be protected, and I will be protected, and we'll be able to go on with some kind of assurance. I know many people in our community whose friends are likely to say to them: "Well, yes, I will do that for you, if you will do that for me." They will take the opportunity to be representatives for one another, because they have shared so much of their time and energy with each other. So it creates a caring opportunity to share with one another the power of our lives. It gives us an opportunity to be responsible. It means that this particular agreement we have made is registered and documented properly. If by chance we lose it, there is a copy, and it's available to be looked at again -- you don't have to be very old to remember that you don't remember where you put things. So it's nice to know there is someplace where you can go and discover this very important document that you made ten years ago, when you knew you had no need of it. Suddenly it's come to light, and the opportunity to use it is there.
[9:45]
We have that backup and supportive system here. We might say it's user-friendly, since that's the word today. It's not a government bureaucratic document per se. It's a document that is made by the people and for the people. I think it's that way because of the people who were part of making this document -- the people who, apart from the government, came to sit down with us and explain and encourage us to be supportive of this document. It was brought into being by people who have had the difficulties of either being cared for themselves or of caring for other family members or friends, and of finding that there was no proper method to undertake this process. So out of their own bitter experience, they have brought forth a document that is extremely helpful to all of us.
To coin my own understanding of this, I would say it's a kind of living insurance policy, because it ensures that someone will care for me. I liken it to the aboriginal gentleman who one day talked about his life insurance policy. He was an elder, and the younger members of the community said: "What do you mean, insurance policy?" They were quite sure that he didn't have an insurance policy in the way we usually think of a formal insurance policy. He said: "Oh, it's very simple. All my life, every time I had something, I shared it with my family and friends. Now that I'm old and don't have anything, my family and friends give back to me what I gave to them, and they'll care for and look after me."
[ Page 8363 ]
This is the kind of thing we're talking about here. It's an opportunity for members of the community to share with each other in a semi-formalized way, so that the care of each individual can be undertaken with pride, dignity and assurance; and family members in another part of the country can be sure that if something suddenly happens, family members will be looked after. It is important to look at the opportunities that are here.
We will be raising questions about some of the meanings and activities. One that I would highlight so that the Attorney General might think about it is where it says that all of the people who are going to be representatives have to be together in one place at one time in order to sign the representation agreement. In our own family, where three daughters might be part of the representation agreement, it's very seldom that they're all together in one place at one time. But by notarizing, as is done under the present Power of Attorney Act, this kind of arrangement could be undertaken. I would encourage the minister to look at that particular section, because a slight adjustment could make its use much more meaningful and realistic.
One of the things that the Attorney General has commented on is the need to educate the community. Perhaps the real success of this will not be in the writing of the bill itself or in making it available in the community. The real success of it will be in the opportunity to convey it to the community at large. Initially I would like to suggest to the Attorney General that we might begin with the Members of the Legislative Assembly. These are the first 75 people who should take that message out to the community, because this is the group that has reflected on it, endorsed it and put it into practice. If we are the front line in conveying that message to the community, it will give it a strength that probably nothing else will.
Also, I want to comment, from community experience, that people have not been very anxious to care for somebody under the present Public Trustee Act, because they have been frightened by it. They have heard horrible stories about it and all of the legal and technical problems that it has brought. Because of that, the image of the public trustee in the community is not a very good one at the moment. One of the things we will have to do in putting this forward -- since one of the bills still refers to the public trustee -- is try and create a new image of the public trustee: a new image of confidence, trust and awareness. From my experience -- and in talking with many people who have been involved in it -- that trust, confidence and awareness is not presently there. No matter what we say about the validity of the bill, unless we overcome that negative attitude, the community will stay away from it. They will not even understand its validity for their lives. So I encourage us to look at this.
The other comment I would make about these bills is that before these bills came into being, those who were working on this wanted to bring into effect a revised Mental Health Act. But they were not able to do that, for a variety of reasons. They have reluctantly -- and I say reluctantly, and we need to be aware of this -- agreed that these bills would go forward as a step in that direction, but with the strong understanding, belief and commitment that a revised Mental Health Act will come forward as quickly as possible, built on the same principles as these documents. If we don't do that, then their confidence in these documents will be lessened considerably.
Finally, I think we need to highlight that the Representation Agreement Act is simply what it says. It is my opportunity, as an individual, to say who I would like to be my representative to do things on my behalf. And it can be done in stages. I can undertake, first of all, to have a representative to look after my finances. Many seniors already have somebody who looks after their income tax, and they trust them implicitly to do that -- partly because they don't trust themselves to do it, so they have to trust somebody else. They entrust people to do their banking; often they will give them signing authority at the bank to pay their bills and do their shopping for them. You can undertake to have someone represent you in financial affairs. You can go further and have someone represent you in health decisions when you are not able to make them for yourself, or to help you in making those decisions. Step by step, like building blocks, you can add the opportunities for persons to represent you in wider and wider areas.
It is also important for the public to know that if they have given this responsibility or opportunity to someone else, they can take that representation authority back at any time they wish. They can also very easily change it to somebody else, as circumstances change. So they are not locked into it. It is important for the public to know that it is fluid, flexible, changeable and usable.
That is why I have tried to say, again and again, as strongly as I can, that this is a user-friendly set of bills coming before us. I stress that, because there are not many people in the community who believe that there are many bills put forth by government that are user-friendly. I would like to say, as strongly as I can, that this is an attempt to have four bills -- as complex and as detailed as they are, and as they have to be -- be user-friendly for the well-being not of the government, not of the administration, not of any political party, but of the people in the community who will make use of them.
Hon. C. Gabelmann: First of all, I want to thank the members who spoke, and to thank them for thanking those thousands of people in the community who participated in the process that led to this legislation. It is work that began under the former government in 1989 and has continued in a very intensive way for the last three or almost four years now. The people in the community who have put so much into it deserve all the commendation that members have given them tonight. Once again, I extend my thanks to them for this remarkable work that we have the opportunity to debate and implement.
In addition to that, in my comments earlier I mentioned the amendments to the bill. In all four cases, they are on the order paper -- I hadn't checked today's order paper. With that, having moved second reading earlier, I would now call the vote.
[ Page 8364 ]
Motion approved.
Bill 48, Representation Agreement 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. C. Gabelmann: I call second reading of Bill 49.
ADULT GUARDIANSHIP ACT
Hon. C. Gabelmann: The Adult Guardianship Act, which replaces the existing Patients Property Act, has two main components. The first component describes new procedures leading to the court appointment of one or more persons to assist an adult who, because of diminished mental capacity, is unable to make independent and informed decisions. The second component of the bill sets out new provisions designed to resolve situations of abuse, neglect or self-neglect involving adults who, because of diminished mental capacity or severe physical disability, are unable to resolve such situations on their own.
In replacing the 30-year-old Patients Property Act, this bill responds to circumstances in our society not envisioned in 1963. The current circumstances include: a rapidly aging population; changes in the provision of residential care, by which more people with diminished mental capacity are living in the community; and the advent of the Charter of Rights and Freedoms, which has brought with it the need to review existing legislation, systems and procedures.
This bill is an important component in the package of adult guardianship legislation. It implements the recommendations contained in the joint community and government report on adult guardianship entitled "How Can We Help?" The key principles that underlie the provisions in this bill stem from that report and reflect the strong emphasis which the community places on the autonomy and rights of adults. A core principle is that adults are entitled to make their own decisions, provided those decisions do not harm others and the person is able to make those decisions in an informed and independent manner.
While we respect the independence of adults, it is recognized that because of age, accident, disability or illness many people will need assistance with making life decisions. When necessary and consistent with the principle of self-determination, these adults should receive the most effective and least intrusive form of assistance.
As a last resort, a formal substitute decision-maker may be required. This bill places an onus on the public trustee to ensure that all informal options for assistance are attempted before the more expensive and intrusive court process leading to the appointment of a substitute decision-maker, as set out in this act, is undertaken.
[10:00]
I would now like to describe the features of the court process that are contained in the bill:
1. Applications to court may occur only after it has been determined by an independent assessment team that there is a need for assistance and the adult is not able to make independent decisions on his or her own behalf.
2. Fairer procedures than those in the existing Patients Property Act are set out to protect the civil rights of adults whose ability and right to make their own decisions are being questioned. The procedures ensure that the adult is informed and involved as much as possible when evidence is being obtained and during the court hearing.
3. The Supreme Court of British Columbia will have the option to tailor a court order to fit the specific needs of the adult, thereby ensuring that assistance is effective but not intrusive. To this end, three different types of decision-makers are set out in the act. In addition, court orders appointing someone to act as a decision-maker must state that the authority automatically ceases on a particular date, unless someone shows the court that the adult continues to need assistance.
4. The duties of a person appointed to make decisions for someone else are also clearly set out in the act, along with the requirements for decision-makers to abide by the pre-expressed wishes of the adult. In order to ensure that decision-makers abide by these duties, the bill permits the court to appoint another person -- known as a monitor -- to supervise the decision-maker. As well, the public trustee has the authority to investigate reports of impropriety on the part of decision-makers.
Part 2 of this act speaks to the issue of abuse, neglect and self-neglect. It enables government agencies and community organizations to work together in a community response network to resolve situations of abuse, neglect and self-neglect. Under the act, a designated agency will have authority to investigate reports of abuse, neglect or self-neglect, and to provide assistance to the adult. Reporting is not mandatory. Instead, the bill is designed to encourage reports through provisions which protect the individuals who do report from civil suits or disciplinary actions. Mandatory reporting was not introduced because of the complexity of accurately identifying certain types of abuse and the concern that such a provision could result in erroneous reports leading to unnecessary intrusion into people's lives.
While we envision a system of support and assistance where an adult's right to self-determination will not be interfered with unnecessarily, the bill does set out specific steps which must be taken to protect an adult who is unable to prevent or resolve a situation of abuse or neglect because of diminished mental capacity or a severe physical handicap. These steps include the offer of services which, if accepted, would address the situation. However, should the adult refuse such assistance, there is provision for the community response network to seek a court order to require the incapable adult to avail himself or herself of services that have been designed to resolve the abuse or neglectful situation.
This bill is necessary to replace existing and out-of-date court procedures, and to respond to a growing problem: the abuse, neglect or self-neglect of members of our society who are least able to protect
[ Page 8365 ]
themselves. Overall, it reflects the community's perception of fair and appropriate support, and it contains similar provisions to legislation being adopted in other provincial jurisdictions in Canada.
Hon. Speaker, I will be proposing several amendments to this bill. These amendments stem from further consultation with the affected community and professional groups which have been reviewing the proposed legislation since it was introduced on June 17. The amendments do not depart from the principles I have just described, nor do they alter the substance of the bill. Instead, the amendments are technical changes, primarily designed to add clarity to the authority of substitute decision-makers and guardians.
The immediate response of the community to this legislation is indicative of the initiative and commitment shown throughout this joint community-government collaboration. I am pleased to respond to the suggested amendments in order to ensure that the bill at this stage continues to reflect the community's viewpoints. Details of these amendments appear in the motion standing in my name on the order paper and obviously will be considered during debate in Committee of the Whole.
A. Warnke: Essentially, the long remarks I made on Bill 48 were designed to cover the entire package of bills here. So my remarks will be much briefer on Bill 49, the Adult Guardianship Act. The thrust of this bill is if an individual who does not have a representation agreement requires assistance in making decisions, then the Adult Guardianship Act would apply. As pointed out by the Attorney General, this act has two parts to it. Any adult -- and I guess we'll use part 2 as presented in the bill -- may apply to the courts to be appointed a decision-maker, guardian or monitor. The bill has a provision in it to choose one of three decision-maker categories. Just to review that, an associate decision-maker assists in the process but has no authority to make decisions on behalf of the individual. That is extremely important for certain kinds of cases, so that those individuals who still have full capacity -- certainly their ability to make decisions -- still have their rights to make decisions protected. The second category is substitute decision-maker with time-limited authority to make decisions pertaining only to specified areas, and the third is a guardian with the authority to make most of the decisions over an extended period of time. All of this, of course, is a result of trying to come to terms with the needs and the necessity, as the community we referred to has put it. There are two thrusts here: the review of needs and assessment of capability to determine, first, whether an adult needs to make a decision and, second, whether the adult is capable of making that decision.
The bill also attempts to establish safeguards. One particular kind of safeguard allows for something called a monitor. The monitor is there as the monitor of the decision-maker and the guardian, and so forth. I suppose, if there is a potential problem that I would like to explore at committee stage, it's the potential problem here. Yes, it provides for a safeguard, but at the same time I hope we are not making the system more awkward or cumbersome by adding the monitor and giving certain kinds of responsibilities -- and perhaps ominous duties -- to the monitor. At committee stage we will definitely be exploring the nature of that particular role. All of this is new. As we have mentioned before, all of this is certainly commendable from our point of view.
But I think when we explore some of the roles in the Adult Guardianship Act, we recognize some of the difficulty in defining the relationship among these roles and what their natures are, and so forth.
In my opening remarks on Bill 48, I touched briefly on part 3 of Bill 49, "Support and Assistance for Abused and Neglected Adults." I failed to mention that not only are there individuals who are obviously abused and neglected, but there is also the question of self-neglect. At any rate, part 3 certainly does address the need to respond to all of these various cases of abuse, neglect and self-neglect.
On the whole, while we will be exploring it in committee stage, there are a number of questions and clarifications. Perhaps I could just flag section 25 for the Attorney General. There is a suggestion in section 25, which is aimed at protecting adults who are incapable of making decisions -- particularly pertaining to the disposal of assets -- that the disposition is void unless it is disposed of for not less than its fair market value; and a reasonable person would not have known that the adult was incapable. There is a question here of whether that might constitute some sort of loophole, but we will explore that, as well as other sections, in committee stage. For the time being, the comments that I have on Bill 49 are an extension of what I said about Bill 48.
V. Anderson: Bill 49, the Adult Guardianship Act, is one of the four acts that go together as a package to support people in changes that come upon all of us in our lives. This particular act takes us into the place where we are not able to make most of the basic decisions for ourselves, and someone else has to take the responsibility for that.
There are a variety of ways in which that is done, but I think it is important that we emphasize that even in the Adult Guardianship Act, the presumption is that any decision that individuals can make for themselves has priority over decisions that others would attempt to make for them, and that there is always a responsibility on the associate decision-maker, the substitute decision-maker or the guardian to communicate with them as much as possible in whatever manner is possible.
The four acts before us stress that the onus is upon the decision-makers and guardians to find a means of communicating with the person in a style and manner in which that person can best communicate. That's a very important function. In my own experience working with a person in a mental health setting, I know that after a time when you first meet that person no communication at all is possible. But after you have spent some weeks meeting with them regularly and listening, you finally begin to discover the communication system that they have established. Once you are able to buy into their system, communication is very
[ Page 8366 ]
effective and full. It simply means that they do not operate in the communication system that we usually do, and that's usually what breaks down -- wanting people to operate in our system. But when we are able to take the time and effort to move into their system, communication usually is quite possible and very effective in a surprising number of cases. As long as that communication system is established, then the self-determination of that person continues for far longer than we might deem possible.
But as well the legal documents, an educational and training -- for lack of a better word -- program will need to be put into place for those who would be associate and substitute decision-makers and guardians in order to help them understand this new rule. It's one thing to understand how you care for yourself. It's an entirely different thing to understand how you care for and work with someone else on their behalf, in their frame of reference, and do it in the way that they would have it done. That is not a skill that many of us have adopted. Perhaps those who have adopted it best are parents who learn to deal differently with each of their children, because the children wouldn't allow them to do anything else. Often, after we've gotten away from our children and become self-sufficient and independent, we forget how to undertake that. So it seems to me that one of the items not highlighted enough in this bill is the opportunity to educate, train and prepare those people who will become associates on others' behalf, because that is not a skill that many people have.
Having worked in the area where those kinds of skills are fundamental and important, I can assure you that that needs to be built into the program. In one way it is built in through the advocate groups, the designated non-government agencies. This also is a very strong, commendable part of the bill. There will be non-governmental, community advocate agencies -- ordinary, caring community people, volunteers for the most part, who are there because they want to be there -- doing it not because they're being paid but out of concern for and interest in the people with whom they live and work. It's that kind of participation that will be fundamental to the success of this program.
[10:15]
It's not seen as a bureaucracy but as a part of everyday living -- a caring undertaking in which there can be trust and cooperation between the decision-maker and the person they are caring for. I shouldn't even use the term "caring for," because everybody, in no matter what stage of life, is able to undertake some things for themselves; and they are able to undertake more things for themselves if somebody is doing it not for them but with them. If you're doing it for somebody, you take away from them the opportunity to do as much of it as they can for themselves. But doing it with them makes it totally different, because then they are the ones who drive the program and achieve the success that it brings.
Another concern that is stressed within the bill is the confidential nature of the programming. Confidentiality is very important to a lot of people. They want to have control of their own lives and to share it with a limited number of people, but to know that's as far as the information goes. Fortunately, the confidentiality is such that the caregiver, the guardian or the associate has the legal authority to get the information needed -- health information or whatever it may be -- that the person could normally get for themselves. Simply because the person isn't able to get that information for themselves, others will be able to get it for them. That's very important, because time and time again we find, even in our constituency offices, that people are struggling to make decisions in their own lives. They cannot get the information that's needed to help them make those decisions, because the bureaucracy is closed to them: a health or legal record isn't available, or they can't get to the bank for their banking records. But here there are people who, in a confidential manner, will have legal authority to get that information and be able to use it on the person's behalf. This kind of confidentiality, with openness to be able to go into otherwise closed doors, is very important.
Another important part of this act is its close relationship to the living conditions -- the residential care home, the long term care facility or whatever other situation in which the person is living. There is a feeling among many people that when you move into this kind of situation, the doors are locked, the key is thrown away and they are locked in. This program is trying to do just the opposite: to open the doors and enable people from "the outside" to flow in and out of the community where you are living, who can go in and out with you whenever you are able and who can go in and out on your behalf so that the outside connection with the larger world -- family, friends and business -- is maintained in as full a capacity as possible.
There is also an awareness of the rights and responsibilities of all the people involved. It's this kind of cooperation, of combining rights and responsibilities for everybody involved, and that people are not doing it primarily because it's a "duty" but because they want to, because they care and they're concerned. As well as the written document, it's the attitude that's there because of the thousands of community people who have been and will be involved in implementing it. I have no doubt that there will be changes even as it's implemented, because as people begin to use any kind of document they discover it can be done differently. My simple illustration in that regard is that after you've lived in many homes you sit down to design the perfect home, and you put into it all the things you've ever wanted. The first day you're there, you suddenly discover that everything you designed was not so perfect, and now you want to redo it. That's what this bill is. It's not a finished document; it's a living document.
That's something we need to get across to people in the community. This is not a "legal" document; it's a serving document. It's a document that belongs to the people. If we can get this kind of attitude across, it will go a long way toward ensuring that the volunteers use it. It will enable the professionals, those who are part of it, to take a non-professional attitude, if you like. When we are dealing with people in their living situation, it's most important that we become non-professional.
[ Page 8367 ]
Let me give an illustration in that regard. It was a lesson taught me by the mental health facility in Boston, Massachusetts. They had a community reception desk that interacted with the people who came to them for service and assistance. The receptionists on the desk were ordinary community people who had no particular expertise except that they were able to interact with people and talk their language. Within two years they discovered that they had to change those people, because the receptionists began to talk like the professionals. They began to use professional language and were no longer able to relate to the people who came in off the street. It's this non-professional attitude.... In the technical sense, the ministry has talked about doing it in plain language. I know we've tried, but try as we might, legal language never quite becomes the everyday, plain language of the community. So in community activities, new translation apart from this will need to go out. I think it's an excellent program. It's moving fairly rapidly and has the trust and cooperation of all the constituencies taking part in it. But to be honest, it is not complete; yet it is moving in the right direction.
With that, I commend those who have brought it forward, and trust that we will continue to listen and work with the community as we work and live with those who will make use of this document. Perhaps I wax a little eloquent, because there's probably only one or two in the House who may be as close as I am to actually using the facilities in this document. I'm aware of how soon I may use it. I want to make sure I'm doing it not just for somebody else but also for myself.
C. Serwa: I am pleased to rise and speak about the philosophy and principles of Bill 49, the Adult Guardianship Act. I consider this act to be a form of last resort. I'm not quite as enthusiastic or confident about this particular bill as I was on the first bill, for a number of reasons. It is rather a court of last resort, and the court appoints the various levels of decision-makers. The Representation Agreement Act, Bill 48, that we discussed in second reading a few minutes ago, is about allowing people who voluntarily and wilfully decide to choose someone to represent them. They are of a frame of mind and have the capacity to do that -- and the will -- and the responsibility is transferred to their chosen representative. In this particular case we're calling on the court to designate a decision-maker. When I look at a court system where the decision-maker will be dealing with sensitive areas such as health, financial and other personal concerns and affairs, I start to wonder about the actual benefits and strength of this particular tack.
The reason I have those concerns is that a judge and jury system is often the chosen route for an individual in a criminal trial, in spite of all the failings and fallacies of that system where the judgment is made by your peers. We would think that a trial by judge alone -- or perhaps by a group of judges -- would be superior to a judgment by your peers. But the reality is that it is still clearly evident in our court system that there is some degree of skepticism about the court and the professional -- the judge -- rendering a decision that is balanced and fair. There is a great deal of confidence in the 12 jury members who are a peer group -- not professionals or lawyers, but laypeople in a variety of situations. So when we're going with the Adult Guardianship Act to the courts, then there's some rightful need for concern with this particular bill.
This bill that we're discussing tonight is the second of a package of four. The third part of the package that was discussed today and much of the bill are devoted to replacing and improving the Patients Property Act. I recognize that this was developed in a similar process, with three and a half to four years of consultation in the communities throughout the province, and recognize and appreciate the literally thousands of individuals who have contributed the substance to this and the other set of bills.
Again we're going to continue with the court, and the court making the decisions on behalf of an individual. Once the proper procedures have been followed, the court can appoint a variety of different levels. They can appoint the associate decision-maker, a substitute decision-maker, guardians, temporary guardians, or alternate decision-maker or guardian. The court will appoint someone in cases when there is no representation agreement, and that would be the most desirable route to take. Or perhaps the court will become involved when there is no representation, the representation agreement has broken down or an adult needs help making decisions or is found to be incapable. The checks and balances of the representation agreement are going to have to be fine-tuned to make an absolute determination of when that representation agreement breaks down.
A number of areas in this legislation are vague in identification. In plain language it's very easy to talk about a representation agreement breaking down, as if there is a straight line and you are all right to a point that is clearly and readily recognizable and visible -- all of a sudden we find that the system has broken down and now the court has to get involved, which is a time-consuming process. In actual fact, I don't think that the line is going to be that clear or that evident.
The adjudication of what is capable and incapable is another aspect that is not defined. It will have to be more accurately and clearly defined in regulations. Just the choice of the word "incapable" in plain language is very vague and abstract. Obviously a great deal of work will have to be done to make a definitive interpretation of what constitutes "incapable" as far as the court system is concerned. I suggest that a great deal of care and attention has to be paid to that, because while it's easy to use the word, there are various degrees and diverse interpretations of what constitutes being incapable.
A substitute decision-maker or guardian will be able to make decisions regarding the adult's health care, financial affairs, legal affairs and a variety of other items. It's a very responsible job for the substitute decision-maker, and clearly a very responsible obligation on the part of the court to choose people with the appropriate capacity and credentials to accept that type of responsibility.
[10:30]
[ Page 8368 ]
The bill also provides for the appointment of a monitor. The monitor will be charged with ensuring that the decision-maker or guardian is fulfilling his or her duties. I don't know just how this is going to transpire. Again, from the legislative package it appears to be fairly easy, but in actual practice I suggest it will be substantially more difficult. How many decision-makers will a monitor be looking after? How close will the control be? How much will transpire in the way of audit functions in financial matters, for example? What are the checks and balances? What will encourage the monitor to have a closer look? When we are discussing the philosophy and the principles of this piece of legislation, a number of areas have to be looked at effectively and challenged. It is incumbent upon the government and the minister to ensure that the legislation accurately directs, controls and influences the scope of the monitor as well as the decision-maker.
The bill also tries to protect dependent adults from abuse and neglect. As we know and have all heard repeatedly in this Legislature, abuse and neglect of adults who do not have control over their lives occurs all too frequently in our modern society. While we agree with the intent of this section of the bill, we have serious reservations that the bill will aggressively attend to those concerns and problems with abuse and neglect. I will be addressing that aspect in a few minutes.
The bill raises a whole host of questions, some of which I will leave for committee stage, and some of which deserve mention now. There has been some concern raised by a variety of observers that the adult guardianship legislation should not apply to the mentally ill. Bills 48 and 51 have override clauses, which indicate that the government did not want that legislation to apply to the mentally ill, but Bill 49 has no such clause. I would like to know why, and I think that the public would like to know why. There has been a great deal of concern from individuals that the long-awaited mental health act has not arrived in concert with this package of legislation. There are real concerns there. Does the government actually intend that Bill 49 will apply to those that are mentally ill? That is one of the questions. Will the adult guardianship legislation apply to the mentally ill when the province is in the process of creating new mental health legislation? Will this fulfil an interim role until the mental health legislation is brought to the Legislature? That is another reasonable question. The Attorney General, I note, indicates that the answer is negative to that, but we will be looking at it as we go through section by section.
Many things in the bill are left unexplained. The designated agencies, for example, play a very important role in this bill, but I have no idea of how the designated agencies will be constituted or what the government is talking about. Another example, one I referred to earlier, is the explanation of how an adult will be tested for capability. That is clearly a problem of significant magnitude, especially in some cases. I had mentioned earlier, on the other bill, that at some point an individual is capable and then is judged incapable, and then perhaps capable again. That will occur, because we are not talking only about degenerative diseases of the very aged, where it may be a terminal situation. There are a number of valid concerns in those specific areas.
There are also some concerns that the persons who are appointed as decision-makers or guardians will not have the qualifications. I recognize that the court will be responsible for appointing those individuals, but the responsibility and the qualifications of those guardians have to be fairly significant and fairly substantial. It is not an easy task to accept responsibility in the wide and diverse range of decisions that you and I take for granted and make for ourselves every day. To off-load that to someone who you may not necessarily have the same type of quiet confidence in that you would have had under the representation act is substantially different.
Concerning the health care decisions that have to be made, it is always questionable if the decision-maker chosen would have more than a layperson's ability or an understanding of medicine, to make those decisions. We may have to require medical doctors, but they still have to be ratified by the decision-maker. There are some legitimate concerns there.
Some of the powers of the decision-maker or guardian need to be better clarified. For example, the guardian who has control over an adult's legal affairs should not be allowed to tamper with the adult's will. There are a number of concerns there as well that will become evident certainly in financial matters, and perhaps that's where the monitor's role comes in.
While the mechanisms are easy to describe in general terms, to implement them in actual practice will pose a substantial challenge -- a challenge that has to be confronted successfully. When it comes to committee stage the government and perhaps all the members have an obligation to make suggestions on how this can be put together. Obviously there has been a lot of input in the legislation to this point, and certainly it has gone through the drafters, and we will be looking very intently at each section during committee debate.
As I said earlier, one of the most serious aspects about this bill appears to be the section on abuse and neglect. The government has decided that the reporting of abuse and neglect should not be made mandatory. I recognize that this was a government decision, not a decision of the committee that was responsible for that. The reason I'm so concerned about this is that the definition of abuse in the front of the bill includes physical and sexual assault. That means that the government of the day thinks people are under no obligation to report sexual or physical assault. From my perspective, and I think anyone else's, this is clearly wrong. There should be a compulsory requirement for reporting of physical or sexual abuse of individuals. This is something that we will work on during committee stage. But I think what we're hearing right now and reading in the bill is fundamentally wrong.
I've heard a number of reports that the government has completely ignored the recommendations of the abuse and neglect working group, which was part of the overall group. This working group, whose members represent thousands of concerned British Columbians, voted unanimously for the mandatory reporting of
[ Page 8369 ]
abuse and neglect. That vote has been ignored by the government in this particular bill. We demand to know why it was ignored by government in the drafting of this bill.
We will be putting forth an amendment that makes reporting of physical and sexual assault mandatory. It is mandatory to report the assault of children, and there is no reason why that practice should not be extended to adults, especially adults who are dependent on others. Furthermore, if it is suspected that a criminal offence has been committed, the designated agencies will have investigated the case before it is handed over to the police. In the structure of the bill, prior to the reporting of an assault to the RCMP or a police agency, the designated agencies will have the opportunity to investigate the case. From my perspective, this would waste precious time and could harm the evidence. We should have mandatory reporting directly to the police.
We are in support of the intent of the legislation. We're certainly not fundamentally opposed to the adult guardian legislation or specifically to this bill, but this particular bill warrants close scrutiny because it raises many questions that we are going to have to look at collectively and answer in this particular chamber prior to approving this piece of legislation. With that, I conclude my remarks on second reading of Bill 49, Adult Guardianship Act.
The Speaker: The minister upon rising closes debate.
Hon. C. Gabelmann: It's fair to say first of all that this is the most complex of the four bills and the one that requires the closest scrutiny by all members. A number of important questions have been raised. Rather than trying to answer the questions in second reading context, I would prefer to do that during committee stage debate. I am going to ask the people who have been involved in this process and are advising the government on the legislation to take careful note of all the comments made in second reading debate and make sure that one way or another we come back with clear and specific answers to the concerns raised. Where concerns have been raised that may generate further change, I'm certainly open to that as well. I seek the advice of our advisers in that respect, rather than replying now and perhaps locking myself into a position that I may not want to take upon further reflection and advice.
I do respect the views of the members. I can tell members as well that inheriting this project well into its development was a daunting task, one that it took me considerable time over the last year to get up to speed on to try to understand all of the details. I think there's a wide variety of issues contained in all of the bills, particularly this one, that could go either way on a number of points. We've tried to reach the best consensus possible, given a wide variety of views on many issues. Some of the tougher issues dealt with mental health, and there's no question that the inability of the community to come together on changes to the Mental Health Act hampers this process. Rightly or wrongly -- I think rightly -- we decided that it was better to wait and attempt to get a consensus rather than going ahead on our own path. There are some problems with respect to that, but the existing Mental Health Act does apply in its full way as long as it's on the statute books, and it supersedes this legislation in the current context. Members should be comforted by that, pending the continuing discussion.
With that, I would move second reading of the bill.
Motion approved unanimously on a division.
Bill 49, Adult Guardianship 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.
[10:45]
Hon. C. Gabelmann: And finally, I call second reading of Bill 50.
PUBLIC GUARDIAN AND TRUSTEE ACT
Hon. C. Gabelmann: Hon. Speaker, the Public Guardian and Trustee Act is the final piece of legislation within the adult guardianship package. This act redefines and recreates the role of the current public trustee, allowing for public participation and affirming the spirit of the new legislation. As a result, the Public Trustee Act will be repealed, and this new act....
Interjections.
The Speaker: Order, please. I regret to interrupt the Attorney General. Perhaps we could wait until the House comes to order.
Please proceed, Attorney General.
Hon. C. Gabelmann: Apparently the odd member is exhausted. If they'd like to go and have a nap in their office, it would be with my full blessing. But I'm not exhausted, and I'm ready to do the public's business.
This new act will establish a public guardian and trustee to carry out all the functions presently performed by the public trustee in addition to the new functions assigned to the public guardian and trustee under the package of adult guardianship legislation. Consequently, the public guardian and trustee's duties will include: protecting the financial interests of young people by holding funds in trust or by acting as guardian of the estate of wards of the province; investigating trusts in which young people or vulnerable adults have an interest; protecting the legal interests of young people by acting as litigation guardian when no other adult is willing to act on their behalf; acting as executor under a will or as administrator of the estate of a deceased or missing person when no other adult is willing or able to act; acting as the personal representative of a vulnerable adult, either under a representation agreement or by court appointment; making health care decisions for adults who have no family members available to act on their behalf; and assisting the court in ensuring that
[ Page 8370 ]
evidence placed before the court is appropriate and that individuals appointed by the court carry out their duties.
In fulfilling these functions, the act stipulates that the public guardian and trustee has the same fiduciary duties as a private trustee. This is consistent with accepted trust principles in case law. As such, the act requires the public guardian and trustee to abide by the Trustee Act of British Columbia unless given exemption in regulations to this act or by a court order, deed, will or other instrument of appointment.
As in the case of a private trustee, clients of the public guardian and trustee have redress through the courts where there may be negligence or mismanagement. The act therefore establishes the public guardian and trustee as a corporation which may be sued. While the corporation is separate from government, the act provides for indemnification of the public guardian and trustee by the government for any liabilities incurred in carrying out these trustee duties.
One of the important duties of the public guardian and trustee is to hold and invest moneys on behalf of clients. This bill provides for the public guardian and trustee to establish an investment advisory committee to give advice on formulating and implementing strategic investment policies. Consistent with private trust companies, the public guardian and trustee is given authority to aggregate client funds for investment purposes. The actual investment of the moneys will be managed by the Minister of Finance and Corporate Relations.
The broad community participation in the development of this legislation has been noted. This bill ensures that the participation of the community continues through the establishment of an advisory board to the office of the public guardian and trustee. The purpose of the advisory board is to assist the public guardian and trustee in establishing appropriate and relevant policies to carry out the responsibilities of the office.
In terms of the fiscal operations of the office, this bill establishes a requirement for the public guardian and trustee to prepare, in consultation with the advisory board, an annual service delivery plan for review by the Attorney General. This service delivery plan will specify the objectives of each program area, the services to be delivered, measurable performance targets and estimates of both revenues and expenditures. Once approved by my ministry, this plan will be forwarded to Treasury Board.
I would like to elaborate on the matter of revenues. Historically the public trustee has charged fees for trustee services consistent with those charged by private trustees. In addition, nominal fees have also been charged for statutory functions such as advising the court or acting as litigation guardian.
The province has contributed funding to cover the costs of services not provided for by these fees. All revenues are directed to a special account within consolidated revenue from which the operating costs of the office are funded. The Public Guardian and Trustee Act establishes these same funding arrangements for the new office of the public guardian and trustee.
There is an important feature to which I would like to draw the attention of the House. As is currently the situation with the public trustee, the public guardian and trustee will be authorized to reduce or waive fees when such fees will result in unfairness or hardship to clients.
The community groups which have worked with government in developing this new adult guardianship system have indicated that while the public guardian and trustee must have independence to act effectively as the personal representative of the people it serves, it must also be accountable. This bill provides for new accountability measures. On an annual basis, the public guardian and trustee must present a report to the Attorney General containing statements on both the financial stewardship of the office and the extent to which the office has met its objectives, as set out in the service delivery plan. The annual report will contain the outcome of an annual audit by the auditor general. The auditor general's independent scrutiny will provide full assurance and confidence that statements presented by the office, with respect to both the financial and operational results achieved by the office, are substantially accurate.
Finally, this bill requires the public guardian and trustee, in consultation with the advisory board, to arrange for an independent evaluation of all the components of the adult guardianship system as set out in the four bills. The purpose of the evaluation is to determine whether the system is working to the satisfaction of all stakeholders and the general public. The first evaluation will take place at the end of three years of operations, and evaluations will be conducted every five years thereafter.
In terms of the appointment of an official, the act provides for the public guardian and trustee to be appointed by the Lieutenant-Governor-in-Council for a fixed term of six years, renewable for one term. The fixed term was added at the request of community groups, who feel it will complement the planning evaluation cycle, and will provide stability for the office.
This bill is necessary to create an office which will play a key role in the effective operation of the new adult guardianship system. Through the provisions of this bill, I feel the new office of the public guardian and trustee will be able to carry out its functions in an exemplary manner and will be able to demonstrate to the satisfaction of the public the independence and accountability of the office.
A. Warnke: This is the third in a package of bills that we've dealt with tonight. Incidentally, I'm somewhat surprised. I normally am one who puts up with a lot of noise, but given the nature of the bills before us, I'm rather surprised that some government members are pretty noisy tonight -- and at their apparent lack of interest in these bills. That is somewhat surprising, especially since the Attorney General, in my view, has worked extensively to put together very elaborate introductory remarks. As we have pointed out on this side of the House, we are highly supportive of those remarks.
[ Page 8371 ]
The comments that I have about Bill 50 are an extension of the introductory remarks I made on Bill 48. The purpose of Bill 50 is to transfer the current duties of the public trustee, with regard to children and estates of deceased and missing persons, to the new office of the public guardian and trustee.
[11:00]
I don't want to pre-empt my colleague the member for Vancouver-Langara, but I want to mention that I thought the comments made by that member earlier about the office of the public guardian and trustee were pretty eloquent. We ought to note that this is a new office that is being created, and we certainly want to be supportive of its establishment. The member for Vancouver-Langara put it eloquently when he stated that what we really need is to ensure that this new office has the confidence and respect of people, in order to gain support.
There are parts of the bill that I would really like to explore, particularly part 3. I'm sure my colleague for Vancouver-Langara will want to do that as well, and perhaps other members. Unfortunately, due to some of the noise.... Normally I don't complain about the noise, but I must admit that I had a hard time hearing the Attorney General when he was going through part 3 dealing with planning, financing and accountability. This is an extremely important part of the bill, one that I think we will have to canvass very closely.
What I did hear from the Attorney General makes one not reticent, but cautious, as to whether some aspects of part 3 need further exploration and explanation. Whenever government or a ministry, in this case one with the responsibility of the Attorney General, begins to fool around with accounts or trusts and estates under administration, naturally we have to be very careful. The public has this in mind, too. Any time that money is being handled, particularly when we deal with estates and so forth, we want to be very careful that it's handled responsibly. This goes back to the point that the member for Vancouver-Langara made earlier: there has to be respect for and trust and confidence in the new office. This must be uppermost.
The intention of establishing such a new office to operate the registry of representatives as outlined by the Representation Agreement Act, and also to operate the registry of court-appointed decision-makers and so forth, is an appropriate responsibility of this office, and we can only wish it well.
I notice that the new office responsible for educating representatives and decision-makers is institutionalized in this bill. I don't want to elaborate and overly encourage it, but if the office even wanted to embark on a direction of educating and advising the public, perhaps that would be appropriate. Again, it goes back to the eloquent remarks of my colleague. If we want to make this new office really work, a lot of education is necessary. That's one point I wish some members would appreciate. The education even begins tonight to a certain extent, and it's extremely important. On that point, we can laud the remarks made by the Attorney General and, in principle, support the establishment of this new office.
Again, to reinforce the point made by the Attorney General, this new office stems from an impetus by the communities that we referred to earlier as being the driving force behind not only this bill but the other bills. It shows as well what the communities were thinking in terms of establishing a fairly elaborate process and appropriate institutions and agencies that are needed to make this kind of legislation work.
C. Serwa: It's grand to be speaking on Bill 50. If wishes were horses, I would have wished that the hon. Attorney General spoke a little bit slower in his second reading preamble, in that it was not possible with the rather hasty volume of words to pick up the Attorney General's interpretation. But I will use the opportunity tomorrow morning to look at Hansard and apprise myself of his words prior to debate in Committee of the Whole.
This particular bill, Bill 50, is less substantive in nature than the other bills that we discussed earlier this evening in second reading. It is more process-oriented than anything else. There are a number of areas, and from what I have heard of the Attorney General's interpretation of the legislation, there are a number of checks and balances as well.
The newly created trust fund account and the investment advisory committee certainly warrant the type of checks and balances, and the scrutiny, that I think I heard are contained within this particular bill, and a firm eye obviously has to be kept on the trust accounts. I am confident that that aspect as part of the process will be looked after, and that it has been looked after in this legislation.
The public guardian and trustee is given quite extensive powers of investigation, to be used to protect the assets of young persons or dependent adults. It is also given powers to investigate personal-care and health care decisions made by a representative, decision-maker or guardian. It is not clear, however, whether these powers of investigation are to be used only when the public guardian and trustee receives a complaint, or if it is responsible for keeping tabs on all of the guardians, decision-makers and representatives. I don't know quite where the monitor on the court-appointed representative fits into this particular situation.
The public trustee can also step into situations where someone's assets need immediate protection. It is rather an interesting area as well, and there is valid concern. One of the valid concerns in this particular section has to do with situations that can occur, and have occurred, with individuals who function quite ably in society, who perhaps are married individuals and functioning quite ably, and the spouse who has taken the heavier portion of the load in financial matters and decisions dies. Then the surviving spouse, who may have problems, perhaps with fiscal management, is left holding assets but is really not fully capable of managing and handling those assets. One of the areas that is not covered in this particular series of legislative packages is that type of situation, because we're talking about being capable and making a determination.
[ Page 8372 ]
With the public guardian and trustee, there are many situations that are almost a neutral ground but that will have to be looked after. As the hon. member in the opposition ranks has said, this has to be living legislation, and I agree with that, as we progress. It is brand-new legislation by the government in this particular area, so we're all cognizant that there will be amendments as the learning process goes on and the strengths and weaknesses are identified and taken care of appropriately in succeeding amendments.
As the minister was saying, the public guardian and trustee is responsible for initiating an independent evaluation of the adult guardianship legislation package after it has been in operation for three years, and then every five years. I would hope that the public consultation process and those outlined parameters ensure that the currency of the need of this particular legislative package is maintained. As I stated earlier about the other pieces of legislation, we have no difficulty with the intent of the adult guardianship legislation. This bill probably causes us less concern because it deals with the matter of process and we are emotionally detached from it. Consequently the objectivity surfaces, and from what I've heard in the discourse and the brief study of this legislation, these matters have been fairly well attended to.
V. Anderson: I rise on the last of the four bills that actually work together, Bill 50, the Public Guardian and Trustee Act. In many ways I see this as the management of the whole system. The other four depend upon the validity of this particular bill, and the credibility of the public trustee who will oversee the whole system is very crucial.
In that regard, I notice that the public trustee will be appointed by the Lieutenant-Governor-in-Council. There should be some way for nominations to come in to this council either through a legislative committee or a special representative committee in the community, because it's very important that the community feels that this person is representative and neutral. When we have so much concern about patronage in government appointments, I would not want to see this particular person caught up in any way, shape or form in that, because I think it's too important.
This person is crucial not only because they will be managing the whole of the process, but also because they will be directly the guardian and the trustee for a certain number of individuals who have no other guardian and trustee to work with. In that regard, this person will also be responsible for their charges' relationships. Hopefully, there might be a plan of the care that's been given to a person for whom one is a guardian and a trustee, and people can see it in advance.
Also, I think it's important not only that the guardian and trustee do that for the person they are responsible for, but also that it be a model to help others to develop a plan or process for each person for whom they are responsible. I think that planning process is important, and there need to be some models for it.
[11:15]
The other part that I'm concerned about is the advisory board, because the advisory board will be the key element in overseeing all four bills as they work through to a successful conclusion. The members of the advisory board, and the representation and the kind of authority that they bring, will be very important. I would trust that these advisory board members will not only have financial and business management skills, which they will need, but also personal management, counselling and planning skills, because they're also going to be responsible for overviewing the kind of process which takes place through the other bills that have been brought forward. The kinds of counsellors or advocates that they are -- and being able to share that with the larger community -- would be very important, as is their kind of educational skill, which has also been mentioned by the hon. member for Richmond-Steveston.
Another idea I would like to suggest is that.... I did not hear the minister indicate that there would be regular reporting to the Legislature, and I think that that regular reporting will be important.
Also, the question of fees and expenses is a concern, I know, for some people in the community. Money is coming out of estates that they feel properly belongs to the estates themselves. One idea I'd like to put forward, because I'm sure it would be workable, is that the corporation might have an endowment fund. I'm sure there are people who would contribute to the endowment fund, in order that the operating expenses of this account might come out of the endowment fund. They would be able to say, as does the United Way, that all of the money that comes from the estates goes back to the estates. The endowment fund, which is money donated by people who would be interested in it, becomes the bedrock for the funds for operating the project itself. I think this has possibilities, which would create interest in the fund. It would also be seen, as the United Way is, as a public service fund. Then it would also have a greater public interest, participation and endorsement. I just throw that out because I think the nature of the public guardian and trustee is crucial. The operation of this fund is the model by which all the rest of the fund will be managed and the image created.
With that, I would agree with colleagues that this is significant, and I would disagree with one member that it's less substantive. I think it's just as substantive as the others because it's so basic, the bedrock upon which the others will finally stand or fall.
D. Mitchell: I am sure that the Attorney General believes he has had a good day's work here in the Legislature. It is not quite over yet, but I think he has had a good day's work. Included with all the brickbats that have been thrown his way today have been some well-deserved bouquets for this particular package of legislation -- Bill 50 is the final of four pieces of legislation -- dealing with a very substantive issue. The hon. Attorney General, his colleague the Minister of Health and the government generally deserve some credit for bringing forward this legislation. It has been the focus of unprecedented consultation and collaboration with thousands of British Columbians over a
[ Page 8373 ]
four-year period. Given the nature of that four-year period, I believe that the previous administration probably deserves some of the praise and some of the plaudits that are being thrown around here today, because the previous administration started the process. The current administration now gets to see the culmination with this package of legislation.
I think that the commendations are worthy. The Public Guardian and Trustee Act is the culmination of a package of legislation that attempts to give British Columbians who are mentally and physically disabled a greater say in managing their own lives, and I think that is a laudable goal. If the built-in safeguards of this legislation -- including those in Bill 50: the public guardian and trustee's office and the new advisory board that is been established -- are effective, then certainly the process will have been well served by the consultation and collaboration. Only time will tell how effective they are, and I guess that is a question that could be raised in terms of the effectiveness of those safeguards -- how well they will work. But I think the good wishes of all British Columbians will be with this process. I think the commendations, praise, plaudits and bouquets are well deserved, and now we need to step aside from the process and allow it to work.
As I have listened to the debate during the course of the day and this evening, one of the things that has been missing is a concern for the cost-effectiveness of the process. We all want to support this process and believe that the goals are laudable. How cost-effective will this new process be? Is a new level of bureaucracy going to be established with Bill 50, for instance, in setting up this new advisory board and in dealing with the public trustee's office? Is there going to be a significantly increased cost as a result of this? That has not been substantiated. When this legislation was first tabled, the Attorney General indicated in a different forum that the cost of establishing this new process of adult guardianship in the province might be somewhere in the neighbourhood of $12 million. If in fact that $12 million is well spent and that investment is going to result in greater savings, I think we will be able to say one day that this was a very good investment for British Columbia, not only in terms of meeting the social goals that are set out but also in terms of cost-effectiveness to the taxpayer. It needs to be put on the record during this second reading debate that there is a concern for the taxpayer, who ultimately pays the costs of these and other government programs.
One thing that came up in one of the briefings previous to the tabling of the legislation was the number of British Columbians who will be affected by this package of legislation. I thought it was interesting that approximately 3,000 British Columbians currently have court-appointed guardians. Apparently some 9,000 British Columbians now have public trustees acting for them. So that would give us a total of approximately 12,000 British Columbians under the old system who are directly affected by those two processes. When a question was asked about how many British Columbians would be affected by the new system under this package of legislation -- Bill 49, the Adult Guardianship Act; Bill 48, the Representation Agreement Act; and the health care act dealt with by the Minister of Health earlier today -- the number was a staggering 170,000. We're going from approximately 12,000 British Columbians dealing with the current process to a new process where 170,000 British Columbians are going to be affected. That's why the concern with cost-effectiveness must enter into the debate at some point.
As I indicated earlier, the Attorney General set a specific estimate. No one knows if that estimate is going to be accurate. We hope that that's a wise investment of tax dollars in this process, which we all want to support. But when we move these bills into committee stage and review them clause by clause, I hope the hon. Attorney General will be able to be more specific about the specific investment of tax dollars and the cost-effectiveness of that investment, and hopefully the justification will be there. Perhaps he might want to address that in his closing remarks this evening -- I'm not sure.
With those few comments, I'm pleased to have spoken in this debate, to support the package of legislation. I wish the Attorney General and the government well and acknowledge that this process, which has lasted some four years, has involved many British Columbians. I congratulate the Attorney General for being one of the ministers who was able to shepherd this legislation through this process, the culmination of a very wide-ranging process involving at least two governments and thousands upon thousands of British Columbians -- a job well done.
The Speaker: The Attorney General closes debate.
Hon. C. Gabelmann: I want to express my thanks to all members who have been expressing their thanks not to me or the government so much as to the people who have actually done an immense amount of work which, as has been previously mentioned, included thousands of people in the community and also a large number of public servants in several ministries and in the office of the public trustee. An immense amount of work has been done.
In closing, I want to make several comments. First of all, my apologies if I spoke too quickly when introducing the bill -- I gather I did. Several members have mentioned it, and others have nodded their head in agreement. I was actually trying to move it along a little faster than I perhaps should have done. I will remember that in the future.
I'm going to pick up on two or three of the major points, and we'll deal with the rest in committee stage. Given that I went through the introduction fairly quickly, I should say that I think a significant feature of this bill is the added protection it provides to people in the care of the public guardian or trustee: the added protection for them, the added protection for their money that's being looked after and the added protection to the public in respect of monitoring the way the public guardian and trustee's office operates. Far more accountability is built into this system now than has existed to this point.
[ Page 8374 ]
As for reports, I'm not precisely sure how the Legislature will get a report. It will either be as a direct report of the office or as part of the annual report of the Ministry of Attorney General. Nonetheless, there will be a reporting to the Legislature on the annual activities.
I should also say that while we've had four years to date and we've had this debate in the Legislature, which is not yet finished, we have some years of work on this before it's going to be fully operational. The process to develop regulations and the process for implementation will, in some elements of this package, take the next three years. In that sense it is going to be a slow process to implement, for several reasons. Firstly, it's complicated; it introduces an entirely new way of dealing with these issues. Secondly, it's costly. The member for West Vancouver-Garibaldi raised the issue of cost. We have been concerned throughout about the costs that could be incurred in introducing this kind of program, and in fact have deliberately chosen a slower implementation model -- for cost reasons as well as to make sure we get it right as it is developed. The numbers the member for West Vancouver-Garibaldi cited are generally accurate. We are looking at an amount of $11 million to $12 million by the time of full implementation of this package of legislation.
As a result of this, given the 150,000 or 160,000 British Columbians who will have access to this procedure who haven't had proper access to date, I think that it's a very good investment. In fact, if you could calculate the costs that are saved in other ways that government inevitably ends up spending, I suspect we will find that this will be a very cost-effective program in every way. But even if it isn't, it will be a very good program for British Columbians, and that's what's important at this point.
[11:30]
The appointment of the public guardian and trustee cannot be a political one. This must be an appointment that the community is involved in. It's an order-in-council appointment, but any government that chose to appoint a public guardian and trustee who did not have the full confidence and support of the community would be stupid. It would be foolhardy for any government to embark on that kind of direction, and I can assure members that it's certainly this government's intention that the appointment be made in a way that ensures that the community is completely confident in the person. This whole process, particularly the office of the public guardian and trustee, will not work if there isn't full public confidence. As I think is obvious, we want this to work and are therefore not going to do anything to jeopardize it.
The appointment of the advisory board -- the membership -- is crucial. This is not a new bureaucracy; this is a....
Interjection.
Hon. C. Gabelmann: I'm sorry, I must have a very soft voice. Is it the microphones, I wonder, hon. Speaker, or is it me? It's probably me.
Interjection.
Hon. C. Gabelmann: Yes. Again, I apologize. I'm used to the old system, where the mikes came to here. I think they picked us up a little more effectively, without us paying attention to the microphones, than this new system does.
In any event, I don't think the advisory board members can be perceived as being a new bureaucracy. These are volunteers in the community who will not be part of the bureaucracy and will not be paid to do this job other than through the usual approach of honorariums. Again, the appointment of members to the advisory board will be similar, I think, to the way in which the advisory board to the development of the legislation proceeded. Clearly, either with the old government or with us, that was not a partisan process. It was very much a community-driven process, and I'm convinced that will continue.
There were a number of other points made by members, but I think most of those can be dealt with better in committee. So with that, I would call second reading.
Motion approved unanimously on a division.
Bill 50, Public Guardian and Trustee 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. D. Miller: I call second reading of Bill 56.
FOREST AMENDMENT ACT (No. 2), 1993
Hon. D. Miller: Bill 56 introduces amendments to two areas of the Forest Act. The first area addressed in the bill involves minor amendments relating to the act's basic silviculture provisions. Under the Forest Act there is a legal obligation for forest tenure holders, in the case of major licences, or the Crown, for small business licences....
Interjections.
The Speaker: Order, please. I regret that I must interrupt the minister until the House comes to order.
Please proceed, hon. minister.
Hon. D. Miller: As I was saying, there is a legal obligation for forest tenure holders, in the case of major licences, or the Crown, for small business areas, to reforest harvested areas. The methods and standards for carrying out basic silviculture are laid out in regulation....
Interjections.
Hon. D. Miller: I'm having some trouble, hon. Speaker....
[ Page 8375 ]
Interjections.
The Speaker: Order, please, hon. members.
Hon. D. Miller: It's somewhat bemusing to hear people who spend about six hours on bills they support complaining about one minor amendment to the Forest Act. We're here to work.
Interjections.
The Speaker: Order, please. I would remind hon. members that all members will have an opportunity to debate. At this point the Minister of Forests has been recognized.
Please continue, hon. minister.
Hon. D. Miller: The methods and standards for carrying out basic silviculture are laid out in regulations or ministry-approved silviculture prescriptions. Bill 56 amends the definition of basic silviculture to clarify the legal validity of basic silviculture methods and standards set out in these prescriptions. This change will not alter existing government policy regarding basic silviculture. Let me reiterate that it simply clarifies the legal obligations of licensees....
Interjections.
The Speaker: Order, please. Again, I regret that I must interrupt the minister. I would ask members of the House to please come to order as we proceed with the debate that has been called.
Interjection.
The Speaker: Order, please. I will ask the hon. member for Richmond-Steveston to come to order.
Hon. D. Miller: This change will not alter existing government policy regarding basic silviculture.
Interjections.
Hon. D. Miller: Hon. Speaker, I will leave my comments at that and allow the opposition members to speak on the bill.
V. Anderson: Hon. Speaker....
Some Hon. Members: Speak up!
V. Anderson: I will speak up so you and everybody across this province will hear me. I think this contemptible! [Applause.]
The Speaker: Order, please.
Interjections.
The Speaker: Order, please.
V. Anderson: Hon. Speaker, after we have cooperated with this government all day, they bring in a bill at 11:45 in the evening without notice, without preparation. Bringing this bill forward tonight is contemptible on the part of this government.
Interjections.
The Speaker: On a point of order, the Minister of Forests.
Hon. D. Miller: We're not here to complain about a bill; we're here to debate a bill. I'd ask members to debate the bill.
The Speaker: Before I recognize the hon. member, I'm sure all members can appreciate that the hour is late. A bill has been called for debate in the House. The Chair must insist that members conform to the rules of debate in this House and wait to be recognized in order to enter into the debate.
The hon. member for Vancouver-Langara has the floor. I would ask him to address second reading of Bill 56.
V. Anderson: This government cannot see the forest for the trees. We'll talk about the Forest Amendment Act if they want to. But at this particular point in the evening, with the kind of government we have here tonight.... I'm ashamed of the minister who brought this forward. After we've had such good representation from the Attorney General, I'm ashamed.
Hon. D. Miller: A point of order.
Some Hon. Members: Sit down!
The Speaker: Order, please. I would call this House to order and ask the hon. members who are speaking out of turn to desist.
[11:45]
I will recognize the point of order from the hon. Minister of Forests. However, if it is the same point of order that has been dealt with, the Chair can only remind the House of the rules of debate.
The hon. member for Vancouver-Langara.
V. Anderson: Hon. Speaker, this government tries to represent the people of British Columbia. They try to represent them. In their decisions about clearcutting and the Clayoquot and all of the other things in this province, they say that they're being representative in the bills they're bringing forward. But the kind of childish actions they're undertaking this evening have nothing to do with the forests and serving the province of British Columbia. What they're doing this evening is
[ Page 8376 ]
childish, and the whole province needs to be aware of that. They have no jurisdiction at all.
Yes, hon. Speaker?
The Speaker: I only want to remind the hon. member to please quickly bring his comments into the debate around second reading of Bill 56.
An Hon. Member: Do the principle of the bill.
V. Anderson: Hon. Speaker, the people across the way in the government want to know the principle of the bill. The bill doesn't have a principle. The government doesn't have a principle with this bill. They talk about regulation-making power in the bill. The only regulation power that they make at this time of night is to try to put their own government cause forward. They're not trying to serve the people of British Columbia at this time of night. In section 7 they talk about regulation-making power. They don't have any concern about regulation of power. They're not even concerned whether this bill gets properly dealt with or executed. They just want to get another notch on their gun.
Hon. Speaker, this government is contemptible. And if you want me to say that....
The Speaker: Order, order. I regret that I am interrupting the member. I think members will agree that the Chair is trying to be as patient as possible. But I must insist that debate be confined to second reading of Bill 56, which has been called for debate at this time. I again would urge the....
Interjection.
The Speaker: If the hon. member for Surrey-Cloverdale will not desist from speaking out of turn, I will have to ask him to leave the House. At this point I would again invite the hon. member for Vancouver-Langara to continue with debate on second reading of Bill 56.
Interjections.
V. Anderson: Hon. Speaker, my difficulty is to think up something to say that would be polite at this time of night.
An Hon. Member: Try it.
V. Anderson: Why would I try? With the way this government is trying to govern this province, with the kind of forests legislation they're trying to put through.... This government says they're responding to the people of this province. What kind of response do we have here in the actions of this forest legislation that are brought forth to us this evening? It's not the kind of action that the people of this province are asking for.
Hon. D. Miller: Point of order, Hon. Speaker.
Some Hon. Members: Sit down, sit down.
The Speaker: Order, please.
Hon. D. Miller: Hon. Speaker....
Interjections.
The Speaker: One moment, please. I must ask hon. members to come....
D. Jarvis: You're allowing him to interfere with our speaker. Sit down.
The Speaker: The hon. member for North Vancouver-Seymour will refrain from interrupting the Chair, who is recognizing a point of order that all hon. members know is legitimately raised. I ask the hon. members to come to order.
Point of order, Minister of Forests, and I hope this is a new point of order.
Hon. D. Miller: Not to be repetitious, but clearly the member...
D. Jarvis: Sit down, sit down, sit down.
Hon. D. Miller: ...is not....
D. Jarvis: Sit down, sit down. If you can't control it, he will. Sit down.
Interjections.
The Speaker: I would ask the hon. member for North Vancouver-Seymour, who has challenged the ruling of the Chair, to respectfully withdraw his remarks.
I will ask the hon. member for North Vancouver-Seymour again. The Chair has repeatedly reminded hon. members that a bill has been called for second reading debate. The Chair can only urge hon. members to stay within the rules of debate. The hon. member has made direct remarks to the Chair, which are offensive to the Chair, and he knows full well that these are not allowed under our standing orders. I appreciate members may feel strongly about this matter, but I again ask the hon. member to withdraw those remarks so that we can proceed with debate.
If the hon. member for North Vancouver-Seymour refuses to withdraw, then the Chair has no option but to ask him to leave the House for the remainder of the session this evening. I now do so.
Having now given the hon. member a few extra moments to reflect on the situation, I will ask him one last time to please withdraw from the House in accordance with the order of the Chair. His failure to do so will leave no option for the Chair but to invoke
[ Page 8377 ]
standing order 19 and ask the Sergeant-at-Arms to assist him out of the House.
I would ask the Sergeant-at-Arms to assist the member from the chamber.
D. Jarvis: I'm leaving the House, hon. Speaker.
The Speaker: Thank you, hon. member.
We will now continue with the debate on second reading of Bill 56.
The member for Richmond-Steveston on a point of order.
A. Warnke: The point of order I want to raise is that on three occasions the Minister of Forests rose on similar points of order, and you, hon. Speaker, made it very clear that the minister is not to raise repetitive points of order. Since you've made that clear to the minister, hon. Speaker, I hope you will tell the minister to refrain from any more frivolous and repetitive points of order.
The Speaker: Thank you for that point of order. I'm sure all hon. members are hopeful that we can now continue uninterrupted with second reading debate. The hon. member for Vancouver-Langara had the floor.
G. Farrell-Collins: Hon. Speaker....
The Speaker: A point of order, hon. member?
G. Farrell-Collins: Not a point of order, hon. Speaker.
The Speaker: Is the member rising to speak in debate on the bill?
G. Farrell-Collins: I'm moving that the House do now adjourn.
The Speaker: At this point the hon. member for Vancouver-Langara has the floor. With the agreement of the member who has risen without being recognized for debate, I must defer to the hon. member for Vancouver-Langara.
V. Anderson: I move the House do now adjourn.
Motion negatived on the following division:
| YEAS -- 11 | ||
|
Chisholm |
Farrell-Collins |
Serwa |
|
Weisgerber |
Mitchell |
De Jong |
|
Neufeld |
Symons |
Warnke |
|
Anderson |
K. Jones | |
| NAYS -- 29 | ||
|
Priddy |
Cashore |
Charbonneau |
|
Beattie |
Schreck |
Lortie |
|
Lali |
Giesbrecht |
Evans |
|
Pullinger |
Ramsey |
Lovick |
|
MacPhail |
Barnes |
Cull |
|
Clark |
Gabelmann |
Miller |
|
Smallwood |
O'Neill |
Doyle |
|
Hartley |
Streifel |
Lord |
|
Krog |
Randall |
Simpson |
|
Brewin |
Janssen | |
The Speaker: The hon. Minister of Forests is rising on what matter?
Hon. D. Miller: I would move the House do now adjourn, hon. Speaker.
Motion negatived on the following division:
| YEAS -- 11 | ||
|
Chisholm |
Farrell-Collins |
Weisgerber |
|
Serwa |
Mitchell |
De Jong |
|
Neufeld |
Symons |
Warnke |
|
Anderson |
K. Jones | |
| NAYS -- 29 | ||
|
Priddy |
Cashore |
Charbonneau |
|
Beattie |
Schreck |
Lortie |
|
Lali |
Giesbrecht |
Evans |
|
Pullinger |
Ramsey |
Lovick |
|
MacPhail |
Barnes |
Cull |
|
Clark |
Gabelmann |
Miller |
|
Smallwood |
O'Neill |
Doyle |
|
Hartley |
Streifel |
Lord |
|
Krog |
Randall |
Simpson |
|
Brewin |
Janssen | |
Hon. C. Gabelmann: Given that I haven't had time to do the adequate research to make the appropriate speech on this, I would move adjournment of the debate until the next sitting of the House.
Motion approved.
Hon. C. Gabelmann moved adjournment of the House.
Motion approved.
The House adjourned at 12:11 a.m.
[ Return to: Legislative Assembly Home Page ]