1994 Legislative Session: 3rd Session, 35th Parliament
HANSARD
The following electronic version is for informational purposes only.
The printed version remains the official version.
(Hansard)
THURSDAY, JUNE 16, 1994
Morning Sitting
Volume 16, Number 14
[ Page 12017 ]
The House met at 10:05 a.m.
Prayers.
D. Streifel: It is my pleasure to rise and introduce two longtime friends of the hon. Speaker, Mr. Philip Tong and Mr. Fred Joy, both of Vancouver. Would the House please make them welcome on behalf of the Speaker.
Hon. G. Clark: I call committee on Bill 46.
CHILD, FAMILY AND COMMUNITY SERVICE ACT
(continued)
The House in committee on Bill 46; D. Lovick in the chair.
The Chair: I call the committee to order. It seems appropriate to start with a line from Macbeth, in terms of looking at the two sides and the Chair: "When shall we three meet again?" And this is the moment.
On section 14.
J. Tyabji: With regard to section 14, I'd like to know why there's.... The way that it reads right now, if a person believes that a child needs protection, it becomes incumbent on that person to provide the information to a director or to someone designated by the director -- which is very good. What I find interesting is that the only information that is not eligible for reporting to the director is information that may be "privileged...as a result of a solicitor-client relationship" or "is confidential and its disclosure is prohibited under another Act." Considering that disclosure of the information doesn't require, for example, written disclosure, but could be where someone happens to believe or know that a child needs protection and wants to provide that to a director, is a person really going to stop and wonder if that information is privileged because of a solicitor-client relationship? Could the minister tell me why that's been put in here? It almost seems as if that's unnecessarily cautious.
Hon. J. MacPhail: I just want to say that I'm glad to be here.
This is important to discuss; I'm glad you raised it. The solicitor-client exemption from reporting is an historically entrenched right -- I'm sure we all know that -- and the basis for that historical exemption is that lawyers perform a different role than other professionals. Parents have to be free to disclose to their lawyer without fear that their lawyer would report that information to the director. By changing the privilege, we would be depriving parents of their right to counsel. If we remove the rule prohibiting disclosure of solicitor-client information, we would create uncertainty and ambiguity. But just to reassure you, the exemption only applies to lawyers themselves, not to those who receive information from lawyers.
J. Tyabji: I just want to be clear on this point. You're saying that if a lawyer has received information that a child is in need of protection, they cannot go to a director and tell the director that the child needs protection.
What I find interesting is that in a lot of cases a lawyer who's acting on behalf of a family is in effect acting on behalf of the children as well as the parent. In the case where that might be happening, if it turns out that the parent says something to the lawyer and the lawyer then understands that the child may be in danger, that lawyer is not allowed under this act to.... I'm not saying pass on the information. It's not a case of saying that the lawyer phones the director and says: "This is the information I've received from this person." The way it's written here, the lawyer couldn't even provide an anonymous tip to a director. They couldn't provide a tip without saying how that information was gleaned. They couldn't say to the director: "There is a child who needs protection, and this is the child. Could you investigate?" Because of the way the rest of the act is worded, I almost feel as if there's.... Notwithstanding the fact that a client has to have the ability to confide in a lawyer for the purposes of actions to protect that client, if that's not the circumstance in which information has been received by a solicitor, why would a solicitor not be able to have some communication with the director?
Hon. J. MacPhail: Actually, under family law, lawyers only act for parents and not for families; the relationship is in a parental context. But let me be very clear about what this is. This provision applies if the lawyer has a client relationship with the particular individual that we're talking about -- and only under those circumstances. It has to be a solicitor-client relationship, as well. So it is only the very narrowest of that kind of relationship that is exempt, and others are not.
J. Tyabji: Last night was a long night, and I'm trying to remember this off the top of my head. There are provisions for someone under the age of minority, even in this bill, to have certain rights. Although technically speaking a solicitor would usually act only for the parent, I know we have passed sections where, if a child happens to also be a parent, there ends up being another dimension involved. So I think there may be cases where, depending on the circumstances, the solicitor may actually be acting for the family. I'll leave that aside for now.
[10:15]
Subsection (2) says: "...even if the information on which the belief is based...is confidential and its disclosure is prohibited under another Act." Could we have some examples of that, please?
Hon. J. MacPhail: We'll get a more complete list for the hon. member. But just to start, the GAIN Act and the Mental Health Act have confidentiality provisions. There are larger lists as well, but we don't have them here.
J. Tyabji: I'd like to get it on the record that this section starts off by providing protection to the child, and then moves into an area where there's quite a bit of information, which, if someone were a solicitor and were provided with information that a child was being abused, cannot be given by a solicitor to the director. This bill is written, for the most part, to be preventive, and in being preventive it is saying that if you believe that a child is likely to be harmed or to be in danger....We took exception to some of the language, thinking it was too strong. Now I find myself in the funny position of arguing the other way. For example, subsection (3) says: "A person who contravenes subsection (1) commits an offence...." This section is saying they commit an offence if they believe a child needs protection and they don't say that to the director -- except if they happen to be a solicitor, who ironically may be one person in a position to know that
[ Page 12018 ]
a child may need protection. They may have a belief that they need protection.
What would happen in a case where a parent had a solicitor who, through the course of doing business on another matter -- for example, property division or access -- came to understand that the child needed protection and didn't pass on the information that was part of the solicitor-client relationship but did report to the director that they should investigate the circumstances, for the purpose of the rest of the act? If the parent then said, "My lawyer said they thought the child needed protection because of discussions we had on access and didn't reveal the discussions on access but did report that the child might need protection," what would happen to the solicitor in that case? What would happen to that lawyer if a complaint were launched? Is that an offence?
Hon. J. MacPhail: Any information that comes as a result of a solicitor-client relationship is exempt under this section. I'm advised that lawyers themselves would be subject to penalty if that relationship were breached.
However, let me reassure you that our extensive studies of other jurisdictions show this provision is there in every single jurisdiction. Also -- to reassure us all about the 30,000 complaints of child abuse we have per year -- the system works well, in my view. This has not been a factor, and I'm hopeful that will continue.
J. Tyabji: I have a last question on subsection (2). I understand that when we talk about other jurisdictions that may have in place.... Sometimes I think we go a bit too far in imitating other jurisdictions. Did the minister consider having a clause wherein...? I'm a little worried about what can be interpreted as information gleaned by virtue of the solicitor-client relationship. That's why I draw a distinction between what may be communicated directly and what that person may have picked up.
I do know of cases in my riding where a solicitor could easily see that a parent was potentially abusive to the child. When doing a property division, they stuck to those provisions and couldn't be one of the people to back up a report or even provide information to a director. Did the minister think of perhaps putting a different provision in whereby a solicitor would be free to provide information to a director on that person's belief -- just like the rest of the act is worded -- and that it could not contravene the discussions that took place in a solicitor-client relationship? Does the minister understand the distinction there?
What I'm trying to say is that there's a solicitor who's acting in a solicitor-client relationship. There's also an individual who is in receipt of information about another individual. From the observations of the solicitor in conducting, for example, a property division or an access schedule, there may be information that that person has about this individual. It may be something where they could pick up the phone and say to the director: "Look, I can't possibly get involved in this; however, this might be worthy of investigation." There could actually be a clause in here that would allow for that.
The way it's worded here, I imagine solicitors would just have to be quiet. Even though they may personally believe that a child might be harmed, they couldn't even put that into an anonymous tip, because they could be committing an offence and could be disciplined by the Law Society or whatever. I'm just wondering if the minister thought about that as one avenue to pursue. Information could be provided as long as it's not part of their discussions.
Hon. J. MacPhail: I'm sorry; that would reverse the fundamental intent of this clause.
R. Neufeld: This is not on subsection (2) but on subsection (1): "A person who has reason to believe that a child needs protection must promptly report the matter to a director or a person designated by a director." Earlier in the legislation, we went through some pretty broad definitions of what harm or emotionally harmed or development would mean. Under that section, maybe the minister can explain how, if she were downtown, she may handle her child or I may handle mine. Let's say you were standing in line behind someone, and you don't believe a child should be struck at all, and some child gets a bit of a slap, or a slap, from a parent. Do you have to report that to a director? How is everyone supposed to define what they think harm really is? I'm not saying that we shouldn't be cognizant of those things, or that we shouldn't watch for them, but it's an awfully broad definition, and you can bring charges against someone for things that they think are normal but that you may not.
Hon. J. MacPhail: I suspect the hon. member has been faced with such a situation, and I agree that it's a difficult one. We'll be able to get into how we handle those situations further on in the act. Let me reassure the member that the community standard determines the view on child abuse complaints now, not what an individual thinks about how a child is being treated. That's not to say that the initial complaint can't be made, because you can't restrict individuals from reporting what they think is a crime or whatever, even though their perception may be wrong. After the initial complaint has been made -- and we talked earlier about the 30,000 allegations per year -- an investigation is done. Our experts and professionals have years of experience in this area, and in doing their investigation they will be guided by section 16, which we'll see later on. Certain tests have to be made, and certainly there is not necessarily a negative implication after the investigation. It may be determined that some other support is needed for the family, not necessarily a charge. But it may also be that the perception of the complainant is dealt with in such a fashion that no further investigation is needed, and that does occur right now.
R. Neufeld: I'm interested in hearing the minister talk about the community standard, and how the complaint will not be about what she thinks or what I think, but more about a community standard. Could she enlighten me a little more on what she means by a community standard?
Hon. J. MacPhail: Well, in fact it's not my community standard. I wouldn't dare impose my community standards on anyone.
Interjection.
Hon. J. MacPhail: No, no, I understand that. But I mean, it is a concept held in the practice of child protection right now, and community standards evolve as we change the way we view our parent-child relationships. It's a test that is applied not only in the courts but in practice, where your neighbours, your family and the community in which you live -- I'm talking about now in North America, basically, and as Canadians -- have a certain standard for the way we treat our children. So it's a concept that is widely held.
But also let me reassure you that section 13 much more clearly defines and gives greater certainty to what abuse is.
[ Page 12019 ]
Therefore it is not left open to the perceptions of those who should not be allowed to have their perceptions carry forth.
R. Neufeld: Then, as I understand it, the community standard that we're trying to set out in this bill is not going to be applied equally to all children. It's going to depend on what community they come from. Obviously that's the only way I can interpret what the minister is saying. We're going to have different standards for one community than for another community. That's not what I thought the intent of the bill was. I thought the intent of the bill was to look after children and to try to be as equal as possible. What you're bringing in now is that in some areas -- in different communities, races or religions -- we're going to adopt different rules. Is that correct?
Hon. J. MacPhail: No, and I don't mean to mislead the House. I'm sorry you understood me that way. Community standard is not neighbourhood by neighbourhood. I'm saying that the way community standards across the jurisdiction are determined is by how the community within your neighbourhood perceives that and adds to the greater picture. The community standard, from an expert point of view, is not different in Fort St. John from what it is in Vancouver. But it has evolved in our culture from the way we set up our neighbourliness.
Now let me just try to clarify a little bit more for you. It's not as if the community standard is going to prevail in determining what abuse is. Section 13 governs that, and it's clearer than it has ever been before. "Community standard" is a tool we use to assess whether a spanking in a lineup is abuse. So far, our community standards have not prevented that, if a child isn't injured through it. I hesitate to get down that road, because there are exceptions to every situation. It will be one method of assessing the amount of the abuse.
[10:30]
Let me reassure you that a provision for the requirement to report is in the act that we currently deal with; the system works effectively. In situations where perceptions are wrong, upon an investigation, nothing further is necessary in terms of affecting the families' lives by charges being laid.
R. Neufeld: That's what I'm getting at right from the start. Section 13 broadly defines some areas that I have a bit of difficulty with. I think all communities will have some difficulty with it, but that remains to be seen.
The second part of section 14 that I had some concern about was the fine of $10,000 -- and I'm not disputing the $10,000 or anything like that. If there were 30,000 complaints of child abuse before, now that we have more broadly defined what child abuse is in previous sections of this act, could there be an increase in reports to the director about child abuse? Do we investigate each and every one of those complaints of child abuse? I don't see in that section -- or anyplace else in the bill -- how we enforce the ministry to look at each case. I am not going to bring any names into it, but we know of some issues that have taken place quite recently, and in the past -- and I think we're all aware of other ones that we personally know about -- that may not have been researched or looked into as closely as they should have been. I find some difficulty with that. How are we going to handle it? How are we going to have the staff to handle it, and how are we going to know all the community values and different cultures that we seem to want to bring into it and deal with this broader definition of child abuse?
Hon. J. MacPhail: We will be able to discuss this more under section 16, which says that the director must assess the information received in the report.
I understand that we have been through difficult times, and that investigation is at issue, and we will be exploring that further in other forums. Right now, let me reassure you that through our policies and procedures within the ministry, there are very specific guidelines and procedural requirements as to how one investigates a complaint; what takes place in the assessment -- again, I don't want to impose my layperson's social work ability on the House, so please don't take this as the final word on this; who is making the call; what the historical pattern has been, if any; what support services the family is in receipt of; what the risk indicators are in the particular situation; and whether the physical circumstances of the family have changed recently.
You raised an excellent point: we require the resources to do this. I continue to advocate that, on behalf of our ministry staff. That will be a factor for all of us to share in as our budget discussions unfold -- we have completed our estimates, though -- and in the ensuing years, with the implementation of this act. I will continue to advocate for adequate resources to do the job.
R. Neufeld: I am sure the minister will advocate for the resources. I'm not going to belabour that any further.
We lay a fairly stiff penalty -- a $10,000 fine -- against people if they do not comply with legislation regarding abuse or neglect of a child. Later on in the bill, we'll discuss what happens when people who are responsible don't comply with their own legislation. We absolve them of responsibility, in a way. Here, we are saying to the public: "If you don't report it, there will be a $10,000 fine." On the other hand, if for some reason it doesn't get looked after by the ministry, you cannot find fault with anyone in the ministry. It's kind of one-sided, Madam Minister. That's really what I'm trying to get through.
V. Anderson: Following up on that discussion and in relation to subsection 14(5), perhaps the minister might indicate what percentage of false information reports have been coming to light. I think that's important. Then, perhaps in relation to that, does subsection (6), which includes the $10,000 fine, refer mainly to people who make false reports, or does it refer to the people who fail to report? If a neighbour is suspicious of something but is on the borderline as to whether to report or not, does that mean that the neighbour has to report if he has any doubt? If they don't report because of that doubt, then they will end up with a major fine. I can understand how that's proved for false reporting, but it's a different thing if a neighbour is not sure. Is the benefit of the doubt in this act saying that you must report if you have any inclination, rather than saying that you must wait till you have some kind of proof? Because you can get caught on both sides: if you don't wait till you get the proof, then you're giving false reports and can therefore be fined; and if you wait when you're suspicious but don't have any proof.... Either way you can get caught.
Hon. J. MacPhail: Section 6 applies to both those who fraudulently or maliciously report and those who fail to report. Let me just describe to you, first of all, what the current circumstances are for people who report fraudulently. They're very small.... Again, it has to be that they knowingly report false information, and it has to be malicious. Those are legal tests, as I understand it.
[ Page 12020 ]
On your next point, which is a good one, about when you're just neighbourly and concerned as part of a community, you don't want to have to go out and get a professional assessment about whether you should report or not in order to avoid being fined $10,000. It's an excellent point. But when we determine under this act whether or not a report is false, we will again assess the information. That will involve the credibility and motives of the reporter and whether there has been any past history of unfounded reports. It goes to the test of malice, and that's where you would then be accused of making a false report. I would suspect -- again, just in discussions here without having my words used in a court later on -- that if a neighbour who had concerns and was anxious about them actually reported them and it turned out there were other circumstances that could be easily explained away, that would not be the circumstance for this act being invoked.
The other requirement under the act -- and I hope my staff will correct me if I'm wrong -- is that for the first time ever we are required to report back to the complainant. I know there have been situations where people made allegations and then never heard again, and that's not fair to the community. Now it's our requirement to report back, so that's good news.
V. Anderson: In hearing a report from a neighbour, teacher or whoever else it might be, is that person required to give their name, or will you still be accepting anonymous reports? Is the person who does give their name at a disadvantage? It might be helpful in follow-up, compared to the person who does it anonymously. If you do it anonymously, there is no threat of the fine. But if you give information for follow-up, you put yourself in jeopardy of fines. Does it work against people being free and forthright about coming forth?
Hon. J. MacPhail: I have just been reassured that the test for malice is a legal, criminal test, and it's a pretty high test that one has to meet. That will be the test that's applied here.
In terms of a person being advantaged or disadvantaged if he or she makes his or her name known, just for the statistical record, about 4 percent -- give or take a few -- are anonymous reports. So the vast majority of people who make reports do give their names for further follow-up. If a person gives their name for further follow-up, I would suggest that that goes to the credibility of the complainant as an advantage, in that they are being sincere. It's an indicator on the positive side.
W. Hartley: I ask leave to make an introduction at this time.
Leave granted.
W. Hartley: There are a number of young people visiting the Legislature today: students from Laity View Elementary in Maple Ridge. They are accompanied by several adults and their teacher, Ms. Homer. Would members please welcome them.
J. Tyabji: I want to move to the other side of the equation from what we were talking about a few minutes ago under subsections (2)(a) and (b) to the way that subsections (1), (4) and (6) can be read together, and further to some of the comments by the member for Peace River North. When we talk about a person who has reason to believe that a child needs protection -- recognizing that the Alliance members and the minister had a fundamental difference in the previous section about how we define some of the terms of protection and how arbitrary they are -- we see that under subsection (3) a person who has reason to believe that a child needs protection commits an offence if they don't report it to a director. Then we take it to subsection (6), where it states that the person then might go to prison for six months or get a $10,000 fine.
Some of the debate that's been going on makes me a little more uneasy when we start to talk about community and provincewide standards and some of the definitions we've gone into. It seems fairly arbitrary, as far as someone having reason to believe.... I don't know how that would be determined, so maybe the minister could help us with this. How do we know that someone who doesn't report it has reason to believe that a child might need protection? What is the process by which that person would end up going to jail or being fined $10,000?
Hon. J. MacPhail: It's an objective test that will be determined by the courts.
J. Tyabji: What would the process be? Would the director name someone who the director believed had information? Based on naming that person, does the state then take action against that individual and take him or her to court?
Hon. J. MacPhail: To establish the importance of this social policy and the fact that we are committed to protecting our children, that sanction has to be available to us. That's why section 14, with its subsections, is there. It is the premise on which we have the penalty. Be reassured, however, that any charge laid under this section -- the offence -- goes to the facts in just the same way that any other charge of commission of an offence goes to the facts. The same test will be applied here.
J. Tyabji: I'm still not clear. Is it the director who determines that there is a person who hasn't fulfilled the requirements of subsection (1), and is it therefore the director who lays the charges? In terms of the courts, is it the director taking them to court? Is it the Attorney General? I'll wait for the minister's response.
[10:45]
Hon. J. MacPhail: Let me clarify that these are rare occasions. If, however, our social workers are in receipt of information, then that information will be passed on to the criminal justice branch of the Attorney General, and the test will begin to be applied.
J. Tyabji: The director would be in receipt of information. Perhaps the minister has an example, because she says that this occurs in rare instances. Maybe she could provide us with an example of where this provision, lacking in the previous bill, could have been used, or, if it's in the previous bill, where it has been made use of in that bill. I imagine that the investigation and prosecution would be passed over to the criminal justice branch, so the director ceases to be involved at the point where it's passed over to the branch. Or is the director then a witness for the purposes of the court proceedings?
Hon. J. MacPhail: The director will maintain his or her involvement as is necessary. This is a section that has been in our act, and it has been enhanced because of the importance of the social policy issue. There is case law from other
[ Page 12021 ]
jurisdictions in Canada where in rare instances, for example, physicians have not reported abuse.
J. Tyabji: A physician would clearly not be covered by subsection (2) in terms of privileged information. The minister could perhaps clarify that.
Unless there are further questions from the minister's answer about whether a physician is covered by subsection (2), the last question on the section is on the limitation period, which it says does not apply. Does that mean that there is no limitation at all for commencement of proceedings under the Offence Act? Could it be ten or 15 years before someone makes a charge to the director, who then reports it to the criminal justice branch as potential negligence under subsection (1)?
I'm still waiting for a response about whether physicians are covered, or to what extent they'd be covered by subsection (2).
Hon. J. MacPhail: Not covered.
Section 14 approved on division.
Section 15 approved on division.
On section 16.
J. Tyabji: In this section, we're talking about the procedure through which we find out if a child needs protection. We see under subsection (3) that "the director must make all reasonable efforts to report the result of the investigation under subsection (2)(c) to (a) the parent apparently entitled to custody of the child...." I'm wondering, with the definition of parent that's in here, since it would cover a guardian or someone who is believed to be one, why we have "apparently entitled to custody"? Is that to cover all the examples? The way I read the definition of parent, not that we want to revisit that section, is really so open that to say "apparently entitled to custody" leaves it even more in a grey area. I'm just wondering if that could be misinterpreted in terms of the investigation. If there is no apparent person entitled to custody, what would the procedure be? Why would both parents not be immediately reported in an investigation?
Hon. J. MacPhail: I believe there is a sentiment in the House that this bill should not intrude into family matters that we have no business being in the middle of. That's what this is saying. The parent of whom we know and who is responsible for the children through a custody order is the parent we will notify. There are circumstances where we won't know who the parent is; nor do we want to insert ourselves in an issue that shouldn't be before us.
J. Tyabji: Let's look at an example where there are perhaps two parents. Let's take out "apparent" for a minute. Let's take out that adjective and say that there is one parent with custody, or a guardian with custody, and a parent who does not have custody. It seems from this section that the director could actually be investigating the parent who has custody, in terms of the child possibly being in danger, yet the other parent would have no knowledge of an investigation going on. It seems to me you would want to have a parent know that the state is investigating the child's potential safety in that circumstance. This section is saying that the parent who has custody would be entitled to know that they're under investigation, but the other parent would not. I'm wondering why that was put in.
Hon. J. MacPhail: I want to reiterate that we are trying to make this bill responsible only in the areas for which the state should have responsibility, and not to intrude in other areas where it shouldn't. Let me try to give some comfort to those of us who may be thinking as parents. This is merely notification of the original issue to the parent who has custody. For us to try to determine who else might be eligible at that point would complicate the system beyond what I think British Columbia taxpayers would have the resources to support. If there is further involvement in the courts, or whatever, we've already gone through the situation where parents would have broader entitlement, whether they have custody or not.
J. Tyabji: In previous debate under this bill, we've seen that for the purposes of this bill a parent could be somebody where there's an agreement in place for them to take care of the child. As we go through this bill, we see that that agreement may actually be with the director: in the event that a parent who has custody is temporarily unable to take care of the child, then the child is already in the state's care. What I'm concerned about are the instances when, in addition to the part that I've already outlined, we could by agreement have a child in the care of someone who isn't either parent. When we look at section 15 -- and of course, we haven't gotten to section 27 yet, but section 27 even more so -- it's a police officer going to a director and reporting that the child has killed, assaulted or endangered another person. In the event of that child being in the care of someone.... We're on section 16, but section 16 makes specific reference to sections 14, 15 and 27. It says: "On receiving a report...."
Interjection.
J. Tyabji: What I'm trying to say is that if we're talking about investigations of the need for protection that are under subsection 2(c), we're also making reference to sections 14, 15 and 27. It would seem to me that the director, in the event of a child.... It's not covered here -- the child could be in an agreement with someone who isn't even the parent. Then the director is going to be talking directly with the person who has an agreement, who isn't the parent, and the parents have no idea that the person who's caring for their child may be under investigation. I would assume that an investigation isn't going to occur unless there are some reasonable grounds. If it's not going to occur unless there are reasonable grounds, at the point where there are reasonable grounds, the parent who has an agreement with this person to care for their child should be informed that the state is investigating that person. That's the point under this section, where.... Somebody who isn't related to the child could have more rights to knowledge than the parent himself or herself, and that causes me a problem.
Hon. J. MacPhail: Be reassured: the parent will be notified.
V. Anderson: First of all, relating to subsections 16(1) and (2), the director must assess whether a child needs protection when a complaint is laid, and I appreciate that. I ask two questions. I know that in the past, social workers doing that assessment have taken a child out of class and have talked to the child without the parents being aware of it. They are
[ Page 12022 ]
strangers coming in. It seems to me that that assessment needs to be covered. There needs to be some protection for both the parent and the child at the point where that assessment is being made. Once the assessment has been made and that interview has taken place, it is already biased one way or the other. The parent is frightened, because that has happened; somebody has gone and asked the child questions without their knowledge. Depending on how the questions were asked, that puts the child in jeopardy as well as the parent -- and the teachers in the school who gave permission for this. So it seems to me that we should have been looking at how the assessment is done. This may be done by a regulation, so a person is involved that does not put the child or the teacher or the school in jeopardy.
Subsection (2) says that after the assessment is done.... That's the second part of my concern. Perhaps we'll deal with the assessment first.
Hon. J. MacPhail: Subsection 16(1) actually deals with assessing the information in the report before even going out to do the investigation. But your point is well taken. It's a practice issue -- a policy and procedure issue. You make a very important point that the sensitivity of the investigation -- or the lack thereof -- will have an effect on the results. Other investigation circumstances have those same sorts of dilemmas as well. I actually have confidence that in rewriting our policy and procedure manual, we will not only build upon our past experiences but will correct our past failures.
V. Anderson: In your response you indicated.... The words change, because in subsection (1) it's "assess" and in subsection (3) it's an "investigation." It has moved from an assessment to an investigation without any intervening stages. So that's a concern. One doesn't report the assessment to the parents; one is then moved from assessment to investigation without an intervening stage. In between those two stages, one may "refer the child and family to a community agency...." Is that a referral that takes place without the family's knowledge? Do you refer them to an agency? The way it's written, you do an assessment, and then you go to agency A and say, "Will you follow up on this family?" without the assessment necessarily having taken the family into account. What I am trying to require here is that the family is in the forefront. The way this is written, the family is not in the forefront.
Hon. J. MacPhail: I'm just going to walk us through how this would apply. First of all, the information is assessed. That's in subsection 16(1), and then a report is done and directed through social workers by front-line staff. The report is tested for its reliability or for the circumstances on which we should proceed, if at all. Then we determine the degree of risk. At that point, we decide whether we go to subsection 16(2)(a) or (b), or whether we go immediately to (c). If it's determined that we go to subsections (2)(a) or (b), the family is involved. The child is not separate and apart from the family, because it's not an issue of risk at that point. It's an issue of family support, and therefore you cannot do that without the family's involvement. However, if it is determined that there is an element of risk and that further investigation has to be done, that's when subsection (3) kicks in, because it only refers to subsection (2)(c).
J. Tyabji: Under subsection 16(1), it says that after receiving a report "under section 14, 15 or 27, a director must assess the information," and then in subsection 16(2), it says that "the director may" -- and there are three choices. One of the choices is: "...refer the child and family to a community agency...." What is that process, and what are the family's options at the point where a director refers them to an agency?
Hon. J. MacPhail: Subsection 16(2)(b) is a voluntary supportive section. The reason we offer the family support at this point is the many other issues that we've discussed earlier on. It may have to be an outside agency, because some of the problems facing the family are not within the ambit of our ministry -- for instance, alcohol and drug, or mental health agencies, or whatever. The referral will be with the cooperation of the family only.
[11:00]
The Chair: Could I leap in for just a moment? I just want to offer a caution. It seems to me that a number of the questions in the last hour have effectively been opening the door to processes that will be undertaken by other agencies -- by the courts and by other bodies. The legislation merely establishes the enabling mechanism for those processes to occur. I don't think detailed questions on precisely how those processes unfold are really germane or part of the legislation. Therefore I want to offer that caveat. What we're focusing on here is the legislation and not the process enabled by the legislation. Having said that, I recognize the member for Okanagan East.
J. Tyabji: When the minister says that the referral becomes a voluntary compliance, in the event that the family does not take the director up on the referral, would there be an ongoing investigation or is the file closed? In the event of it ever coming up again, does the fact that the family did not take the director up on that become part of it possibly going to subsection (2)(c)? Basically what I'm asking is: does it become part of the permanent family record for the purposes of the rest of the bill?
Hon. J. MacPhail: The family is not placed in a position of future or current harm because of a refusal. However, it would be our view that if a situation reoccurs and we see that a family has refused a particular kind of service, then we might try to encourage involvement through a referral of another kind of service. The file being closed is not the way I would describe it.
J. Tyabji: What I'm trying to ask relates to a preliminary investigation -- I refer here to subsection (2)(b) -- where the director has made an assessment, possibly under section 14, and where someone has reported the possibility of protection. The director says: "I don't see any immediate danger, and I don't see any record of anything, but if there's a problem I will refer you to this agency." The family might respond by saying: "Thanks, but no thanks. We don't want to go."
It could be a person who is trying to harass the family. In the event of someone reporting them again, would the director take into account the fact that the family had said that they didn't need a referral, and then use that as the basis of a possible investigation? Or would they basically start from scratch with that report?
Hon. J. MacPhail: Each report comes to us with a requirement for a complete assessment. This is done on the basis of what's occurring at that moment. I understand the point the hon. member is making, and the fear that someone may be harmed by later events which really had nothing to
[ Page 12023 ]
do with the previous issue. I can reassure her that that is not the intent or, even on the face of it, the fact of this section at all. This is an attempt to correct the imbalance of the current act, under which we do the assessment and the investigation, and either the child needs to be apprehended or not -- and that's the end of it.
V. Anderson: In saying that's the end of it, does that mean that once the report and the assessment have been made, and the director has decided that each of them was frivolous, irrelevant, a mistake, or a misunderstanding, there's no reason to follow up? Does that mean it can and will be taken off the record, so it doesn't stand there as a blemish against persons who have never had anything against them, and 20 years from now, if something totally unrelated comes up, and the family's...? There is a lot of concern that someone could live under this cloud, and that even though he or she has never been assessed as having done anything wrong, there could be a negative spot on his or her record. I would trust that when that assessment is made and there is no reason to go forward, it will be stricken from the record altogether and won't exist on any computer.
Hon. J. MacPhail: I can't say that, for this reason. The length of time we keep reports is determined not only by the Document Disposal Act but by our own procedures. Again, we can't get into issues of social work practice here, but what we keep on file is the complete assessment -- not only the initial report, but our follow-up to it, which indicates that no further action should be taken. However, there may be circumstances.... And there are allegations from the public that we're not good enough at keeping our records consistent and at assessing those records over a continuum of time; for those reasons, we won't delete it. But it's not the case that if you're accused often enough, you become guilty. We can assure you of that. Also, I want to assure you that the record is considered personal information. People can always see their own record to assess the validity of the information.
V. Anderson: I would like to clarify that for those who do have a just concern in this regard. If I understand the minister, under subsection 16(3), where a report is given back to the parent, the report would say, in essence, that the parent has been cleared, that there has been no justification, and the parent has a copy of that. So the parent has that justification and that clarity because they have received a report, which in the past they didn't get. It's that reporting back which would make this somewhat defensible, because they do have a copy, and they have that clearly in front of them.
Hon. J. MacPhail: That was clearer than I had made it. So I thank you for that, and the answer is yes.
Section 16 approved on division.
D. Streifel: I request leave to make an introduction.
Leave granted.
D. Streifel: I have more visitors from Mission-Kent, some students from Fraserview Elementary School. They're accompanied by Mr. Ewert. I bid the House make them welcome, and I'll see them outside in a while.
On section 17.
V. Anderson: I move the amendment to subsection 17(4) standing in my name on the order paper:
[SECTION 17(4), to be amended to read: (4) If the child is taken away from the premises for an interview or medical examination, the director must allow an adult known by the child to accompany the child and be present for any interview or medical examination until completed unless the director proceeds under section 30.]
The concern here is that children taken away by people who are unknown to them are put in a very difficult position, as well as is the person who has taken them away. Particularly in our multicultural society, we have many children who have grown up experiencing situations where, if you were taken away, you did not come home. It's a very frightening and uncertain situation for them and their parents. So it seems important to me to protect the child, first of all, but also to protect the persons who are taking the child away -- to make sure that there is another adult known to the child who is able to accompany them and vouch for the fairness and justice of what is taking place.
I know, with my own grandchildren, that if somebody runs off with them.... Particularly when children are advised these days not to go with strangers, I think this is very important. It's a contradiction if we say not to go with a stranger, but then suddenly we, as a stranger, take them all by ourselves without anybody there. I think we must cover that.
On the amendment.
Hon. J. MacPhail: Actually, I know from our front-line staff that that's an issue that each and every social worker struggles with: the balance of ensuring that the child knows not to go with strangers, and yet having to carry out the requirements of the law.
The intent of your amendment is well-taken from a policy and practice point of view. It's an excellent policy and practice issue, one that I can reassure you we will incorporate into our practice. However, it's argued that we can't incorporate it into the law for a couple of reasons: (1) in some circumstances it may unnecessarily hamper us in terms of timeliness and speediness; and (2) in medical examinations and investigations into sexual abuse, it has been determined that any known adult could have a chilling effect on the investigation. However, your point is absolutely accepted, and you can keep that Hansard by your side to say that we will incorporate it as a practice as we implement this. Lastly, there is an opportunity for the courts, under subsection 17(3), to attach such a condition, if the courts determine that that's a requirement.
Amendment negatived.
J. Tyabji: Under subsection 17(2)(a), we see that a court may "authorize the director...to enter specified premises by force if necessary and to search for the child." What I have a problem with in this section is that if the director is going to the trouble of going to a court to get an order to have access to the child.... And when we look under subsection (5), it says: "At the request of a director, a police officer must assist in enforcing an order under subsection (2)." Directors are not trained as police officers. Entering private premises by force requires some training and understanding of how that is done. I don't understand why the director has the option of having a police officer accompany them. I would assume the purpose of the section is so that if a court, in a premeditated and legal way, says, "Yes, because of the imminent danger to the child, there is the option of entering by force," the court
[ Page 12024 ]
would also say "when accompanied by a police officer who has the training to assist in the access of the child."
First, I think that is putting a lot of responsibility on a director to do it properly. Second, that may also be putting the director in danger, because the director is not a police officer. I would hope the minister would amend it so that subsection (5) would actually be under subsection (2)(a), and we wouldn't have the director going by herself or himself to obtain access to a child who has been proven to be in danger.
Hon. J. MacPhail: Let me just give the background to this. I hope it will meet your concerns. Subsection (2)(a) is permissive, so the director will determine whether force is indeed necessary. It would not be necessary in all circumstances, but that will be determined. If it is determined that assistance is necessary, the police must do it under subsection (5) when the request is made. They can't say: "Sorry." The officer must assist in making the order. It's certainly our practice that assistance is always used, so that the director -- as well as other people -- is not at risk. It isn't necessarily so, but when it is necessary, it happens.
[11:15]
J. Tyabji: I'm somewhat reassured by the minister's intent in the section, but I'm sure the minister will agree with me that when you read the section, it's quite clear that subsection (2) is independent of subsection (5). Subsection (5) says: "At the request of a director, a police officer must assist in enforcing an order made under subsection (2)." It doesn't say that if force is necessary, a police officer must accompany the director.
I have a problem with this because in this instance we have the director going to the court, and the court is obviously bound by the legislation. The legislation doesn't say anything about somebody accompanying the director. In fact, the legislation is specific in saying that it's up to the director. A police officer may or may not come at the director's wish; once the director wants them to come, they must accompany the director. That's where I have a problem. If the minister's intent is as stated, the minister should see that the section is certainly not written that way and that it is left up to the director's whim. Being guided by this section, in that instance the court may very well allow the director to enter by force -- in fact, it has to let them enter by force if the director chooses to -- without being accompanied by a police officer.
V. Anderson: I would comment on the same issue, because I agree with the point. Perhaps it could simply be rewritten to say that in enforcing an order made under subsection (2)(a), a police officer must accompany the director. Just take out "at the request" and rewrite the sentence, because that is what the minister has said. It's just a rewrite, but it would clarify and agree with what the minister has said. It would make it much clearer for everyone if the minister would be willing to do that.
Hon. J. MacPhail: I absolutely appreciate the concern the members have for our staff. However, let me also reassure them that this actually incorporates present practice -- and it works. Be assured that it does, and it works with the most efficient use of the resources of our police and our own staff. It is not always necessary to use force in a search and therefore to have a police officer present; but when it is necessary, the police have to come. That's what this section says.
Secondly, subsection (5) applies to all of subsection (2), (a) through (e). We want to have the availability of the police officer in all those subsections. I remind the House that the order is a court order, and the assistance arises from that. Rest assured that it works.
J. Tyabji: I wish the minister had accepted the amendment, but she didn't. It should be recognized that we're dealing only with subsection (2)(a), and in all the other instances we are not even talking about entering by force -- so a police officer obviously wouldn't be necessary in those instances.
With regard to section 17 -- and to some extent I have to make reference to sections 18, 19 and 30; we'll get to section 30 later -- why do we even need section 17? I can ask the same question of sections 18 and 19, when section 30 is in place. I have a problem with section 30, but we'll get to that later. Why do we have section 17 when it's overridden by section 30?
Hon. J. MacPhail: Section 17 is key to the new intent of the act, which is that we should remove the child from her home only as a last resort. Section 30 actually deals with what, in the current language, is called apprehension, but we're moving toward using the term "removal." Section 30 requires that the child be removed. Section 17 allows the flexibility of an investigation, perhaps allowing the child to remain in the home at the end of the process.
J. Tyabji: Recognizing that bills are generally written so that the first section you encounter takes precedence, are we to understand that section 17 would be the first avenue of resort in assessing a situation for potential removal of a child?
Hon. J. MacPhail: It is not necessarily in numerical order that this act would be applied. This does, however, allow for a step between investigation and perhaps apprehension in that it allows for flexibility, but if in the interview, a decision has been made to remove the child under some other circumstances, then section 30 would apply.
J. Tyabji: What recourse does a family have if it turns out that section 17 should have been applied and wasn't, and it ends up being another section of the act that is applied? The reason I ask that is that section 17 provides for a court of law to determine whether the state should intervene. It therefore allows for a hearing from all parties involved, including the parents, on whether their children should be removed from them. In the event of someone arbitrarily bypassing section 17 and going to another section, and if it's found later that this was done in a cavalier way that was insensitive to the family, what recourse is there? What is the accountability of the director in bypassing section 17?
[N. Lortie in the chair.]
Hon. J. MacPhail: It's good to see you in the chair, hon. Chair.
I find it difficult to deal with hypothetical situations. I'm not sure what you mean by: what recourse is available? There is always recourse available in the courts, I guess. This section is permissive. It's not required; it's an available option. If public officials are not doing their job properly in some way, there are ways of holding them accountable.
J. Tyabji: Recognizing that we're dealing with the family unit and its right to self-determination, the minister has said throughout this debate that she believes we should be as
[ Page 12025 ]
non-interventionist as possible. Let's assume for a minute that the minister is not a minister but is an individual. She is in her home with two -- or however many -- children, and rather than the state going to a court of law to apprehend the child and allowing her to have a fair hearing, it removes the child under section 30, without a fair hearing. It is later determined that there was enough time and that there was no immediate danger. What avenue does the public have to hold responsible a person who, without going through any court of law, bypassed this section and decided to enter the house by force?
We're talking about incredibly powerful provisions in this bill. We want some comfort that this section has more weight, because it allows all the parties involved to have some say. It allows the parents to have some way of saying: "It is not necessary to apprehend my child." In the event that this section is not used and the director chooses to exercise the full force of this bill -- which means apprehension without a court order, force if necessary and an arbitrary decision by the director -- there should be some way of saying: "Wait a minute. The bill allowed you to be more cautious, you chose not to be and you were wrong."
Hon. J. MacPhail: Section 35(1)(b) takes care of your concerns.
V. Anderson: I realize that we're belabouring this at this point, quite honestly, on sections 17 and 30. This concern has been raised most often in the community, partly because the wording in the two sections is so similar. Perhaps if section 30 had different wording, such as "in emergency situations or unexpected situations...." Section 17 seems to apply if you go to a court. There is a reasonable process in place, and it takes time to do it. The wording in section 30 is almost identical. So if you're lazy -- to put it negatively for the moment -- and you don't want to take the time to do that, or it's getting close to the weekend, instead of going through 17, you would automatically go to 30. The situation is not necessarily any different, and the wording in 30 doesn't imply an emergency or a critical situation that is different from 17. Part of the confusion is that the wording is so similar that it doesn't clarify in which situation you would use 30 and in which you would use 17. I think the intent is unclear partly because of the way it's written.
Hon. J. MacPhail: I'll answer this question if we can pass section 30 at the same time as we do 17 -- just kidding.
There are differences, and let me clarify them for you. I actually think the language is different, so let's go through it.
Section 17 applies only under circumstances where there is an investigation required to determine whether there is a need for protection, and the parent is refusing to allow us that investigation. It really is a section that may not have to be used at all when parents cooperate -- or whatever. It is also still part of the process before the decision has been made.
Section 30 is specific in that it applies when "(a) the child's health or safety is in immediate danger" -- so a determination has already been made -- or (b) it's already been determined that "no other less disruptive measure that is available is adequate to protect the child." So that is the protection.
R. Neufeld: I don't have a lot of trouble with section 17, but when you take it in relation to section 30, that's where the concern in my community comes also -- those two sections that the member for Vancouver-Langara spoke about. What can happen? As has been stated, the removal of a child can be done under section 30 at the whim of the director.
Really, section 17 is good wording. It really relates to what we should be doing to look after the interests of the child. But it's superseded by section 30, so you might as well take section 17 out. I'm not trying to be negative or suggest that in all cases it will be used, but I'm afraid that in some cases it can be very easily and simply used just for expediency. So there is a direct relationship, and we do have difficulty with sections 17 and 30 combined.
J. Tyabji: When I was asking what recourse the parent would have for accountability in the event of.... We're talking about section 17, and the minister is saying that section 17 is actually new, that section 30 was the more common practice and that section 17 has been added as a safeguard. Section 17 is something we would prefer to have amended so that the police have to accompany the director. In the absence of that amendment, section 17 is still a good way to go because it allows for a hearing by the parent.
When asking if the director arbitrarily bypasses section 17 and goes to section 30.... I promise the minister we won't redebate these issues in section 30; we'll have other issues there. If the director says, "I'm not going to do section 17 on my decision; I'm going to section 30," the minister assured me that that's covered under section 35(1)(b). Section 30(1)(b) is where the director provides information at a hearing about less disruptive measures that were considered before removing the child. I also promise that we won't redebate this when we get to that section as well, but you have to refer to it. Again, the question is: where does the parent have an opportunity for a hearing? Section 35(1)(b), which the minister said covers the concerns I had about the child being removed, bypasses section 17 -- so no court hearing or parent input. Clearly it doesn't, because the only person who can make a presentation at a hearing for removal under section 30 is the director. That's it. There's no avenue for the parent to say, "Wait a minute, you could have gone to court," or for the other side of the argument to be argued.
[11:30]
If the minister wants to wait until we get to that section to argue it, that's fine. But because we've brought it up here and the minister has said that section 17 is entrenched because of those provisions, I disagree with that. If we're going to argue it later, that's fine, but I want to put her on notice that I don't think that it provides that protection. If section 17 is to have more weight, there should be something indicating that it has more weight or something allowing for an accountability procedure for the parent.
Hon. J. MacPhail: I can reassure you only so many times about what this is. We shouldn't try to pretend that we're social workers here. We should deal with the substantive policy issues, hon. Chair, so let us do that.
Interjection.
Hon. J. MacPhail: No, your point is absolutely well taken, hon. member, and I'm going to answer your question. Your point is well taken because it's a policy issue. Your policy issue is children being removed from their home without proper investigation and the proper right of the parent to have an explanation about what's going on -- if indeed it's the parent that the crime is alleged against. The circumstances which you describe are covered by the current act. I agree with you that the state can go in and take a child out, with proper recourse to an investigation.
[ Page 12026 ]
The new act is dealing with those circumstances on several fronts; one is section 17. But section 17 is a situation where the parent has refused to participate in that investigation, so the act provides for that input. Only where we're unable to interview the child in the home do we have to use that section. That isn't a tool we would want to use all the time, because the parents may very well cooperate and allow us into the home.
Section 30 is the breaking point after which the courts are involved; prior to that the courts are not involved. Throughout this act you will see a requirement on the state -- i.e., our social workers and child protection workers -- to ensure that less disruptive measures are taken. There is a legal requirement for them to prove that point first. So I believe the substantive issue which the member for Peace River North raises is addressed in the act.
Section 17 approved.
On section 18.
R. Neufeld: If the person doesn't disclose the location of a child, they have to go to court. This seems fairly strong language. Is this normal to use in legislation? And -- just correct me if I'm wrong -- is it normal that the legislation determines the extent of time a person can be incarcerated? Or is that, in degree of severity, done through the courts?
Hon. J. MacPhail: Actually, yes, it is normal. The courts have to have their authority established somewhere, and it's in a piece of legislation.
Section 18 approved.
On section 19.
J. Tyabji: The concern I have in section 19 is fairly basic, in that there's no written trail of any kind of communication with the judge for an order. I know the member for Peace River North talks about there being remote areas where fax machines might not be an option in the short term. But it seems to me that for the protection of all parties, the option of a written trail.... It means that there is communication in writing by fax -- whether it's followed up by a phone call or makes reference to a phone call -- and there's something in writing detailing what was discussed with a director and a judge -- because it's a judge of the court, and there's going to have to be a hearing afterwards on the basis of that phone call. If a phone call to a judge results in an order for removal of a child, you can bet that there's going to be a discussion about it afterwards. So for the protection of everyone involved, there should be something in writing. It could be a letter sent out that states: "Further to our conversation, this is to verify that I have been authorized to remove the child on the basis of this information I provided you." Or it could be by fax, because many urban centres will fax out the information -- and obviously the basis of the fax should take precedence in providing the order. I understand the need for expediency in some cases, but unless there's something in writing, there's really a large opportunity for misrepresentation of what went on in something as crucial as removing a child from a family.
Hon. J. MacPhail: I just want to make sure that the member understands that it's the application that may be made by phone, not the order itself. It's in order to speed up the process, and the justice may make the order in place of a judge.
Just let me clarify....
[D. Lovick in the chair.]
The Chair: Does the member for Vancouver-Langara wish to clarify something before the minister proceeds?
V. Anderson: This deals directly with the discussion.
On the same topic, I'd like to move the amendment which is on the order paper.
[SECTION 19 (2), to be amended to read: (2) If a judge of the court is not available, a director may apply to a justice of the peace in person, by telephone or by other means of telecommunication for an order under section 17 and the justice may make the order in place of a judge, which order must be available in print when exercised.]
If one has phoned and got a justice of the peace or a judge to make an order over the telephone, which is available in an emergency, that can be faxed. When the provision is exercised, it's in print, and you can hand it to the person.
On the amendment.
Hon. J. MacPhail: Here's how it is. Yes, we can apply.... These are circumstances where time is of the essence, usually on weekends or in remote areas, where there isn't the same access to the written system of the law that there is in urban areas.
So here we are. The director can apply by phone or by other means of telecommunication -- which could be a fax -- and the judge has to make a verbal order. It is only an order when the judge says so; the paper is the confirmation of that verbal order. So where time is of the essence, the verbal order has to take place. It is our practice not to proceed unless we have something in hand. It just makes sense, and it goes more smoothly. But there may be circumstances.... I wouldn't want the law to be limited by the rare circumstance where it just is not possible to have that legal verbal order confirmed in writing on a weekend or whatever, and we need to take action just prior to that. But it is our practice to always have the written order in hand.
R. Neufeld: Speaking on the amendment, is there a time frame set for when a written order has to be...? I understand when you talk about the telephone and those kinds of things. There's nothing wrong with that. But is there a time frame? I guess our amendment read into it that there has to be an order in writing.
Hon. J. MacPhail: We are dealing with the courts here, but a written order is always given. It is the court's practice to do that immediately, within their own administrative constraints, and that is given to the parents right away.
I seek leave to make an introduction.
Leave granted.
Hon. J. MacPhail: It is great that I get to do this during the time that I'm also debating in the Legislature. I am delighted to have students from Thunderbird Elementary School -- my neighbours in Vancouver -- here with their teacher Ms. Duncan. We have 52 visitors from grades 5 and 6, accompanied by some adults. I wish the House to make them welcome on this day.
Amendment negatived.
[ Page 12027 ]
Section 19 approved on division.
On section 20.
V. Anderson: I move the amendment to section 20(4) standing in my name on the order paper, adding at the end of the sentence, "at which the family may have another adult attend with them."
[SECTION 20(4) (4) If the offer is accepted, the family conference coordinator may, after talking to the parent or other family member, convene a family conference at which the family may have another adult attend with them.]
It is our experience that it's often helpful to a family to have an advocate or other person who can help them understand what is happening. I want to make that option available so that people may have another person in the family conference if they so wish. The family often feels outweighed by the pressure of the authorities, so for them to have another person in attendance is important. As it reads, it could be implied that they are not able to have that person there. We just want them to have the option to have another advocate there. We believe that will be helpful to the whole process, if the family so chooses.
On the amendment.
Hon. J. MacPhail: Let me begin by saying that the way we proceed on these new methods of practice will be subject to regulation. The reason we are doing it that way is that if you try to include practice in legislation, you leave yourself open to perhaps excluding other practices that are not listed in the legislation. Let me reassure the hon. member that when we get to section 103, I will be tabling an amendment that will be amending the language to say that regulations can be made respecting family conferences and mediation. I hope that takes care of some of his concern. It did say "respecting procedures," but we have expanded it to say "respecting all aspects of family conference and mediation." I am sure that we will be able to take care of the hon. member's point in that section.
Amendment negatived.
On section 20.
J. Tyabji: We referred to the definition of family conference just slightly in the definitions section. To some extent some of that has been answered by addressing the amendment, but now that we are on this section, could the minister tell us what it is, who participates, and to what extent it is going to be a voluntary compliance? It says that if the offer is accepted they may convene a family conference. Who defines it? What is it?
The Chair: Member, just before I recognize the minister, we spent three hours on the definitions section, I'm sure you will recall. To my recollection, we have devoted considerable time to elucidation of the definition of family conference. I am therefore going to offer that caution to all members before we proceed to have another long discussion on how we define our terms.
Hon. J. MacPhail: Your point is well taken, hon. Chair, because we were also offered the assurance that once we got through the definitions section we would not revisit that later on in the act. I really did take that member at her word when she said that to us.
Interjection.
Hon. J. MacPhail: When we discussed the definitions, you needed that assurance so that we wouldn't revisit that issue, and we can refer to Hansard about the fact that we did discuss these matters. Having said that, not to limit debate, we will go through it again.
Interjections.
The Chair: Brevement.
Hon. J. MacPhail: As I said earlier, these family conferences have been used in other jurisdictions, specifically New Zealand, since 1991.
[11:45]
We are providing family conferences to ensure that families and others concerned about the child are provided with alternatives to the court, as a method of reaching consensus on a plan to protect the child. This section provides the family, including extended family members and advocates -- hon. member for Vancouver-Langara, just to confirm that, I've included advocates in the description -- with an opportunity to meet, to discuss circumstances that cause a child to need protection and to develop the plan. Conferences can be held anywhere and will take into account the circumstances of the family. The process will vary depending on cultural considerations. The ministry will ensure that the plan meets the child's safety needs, prior to agreeing and assisting in the implementation of the plan.
J. Tyabji: I really take exception to the minister saying she took me at my word in the definitions section and finds me in contravention of that now. I remind her -- and we will look it up in Hansard, since that's where we've been referred -- that when we were in the definitions section and tried to get a definition of family conference, we were told that when we got to that section we would discuss it. So I've waited. We're here, and we want to discuss it.
Interjection.
J. Tyabji: The minister says that's not true.
The point is that for the purposes of the definitions -- and I don't want to revisit that -- there were some very nebulous definitions of what a family constitutes. Who's in a family? Who participates in a family conference? These family conferences, I still.... That which was just read into the record adds some ideas on it. But who's determined by a family? We've passed some sections of this bill where there can be written agreements. There can be agreements with the director. The child can be in the care of someone other than who's defined as the parent. There could be extended family if there is a cultural component, but we haven't defined what culture is. We haven't defined community.
If the purpose of a family conference is voluntary compliance for a consensus, are the issues brought to a family conference defined by the family? Are the people who participate in the family conference the ones identified by the family? And to what extent is the director the person who sets the agenda? Or does the family set the agenda and the people who participate?
Hon. J. MacPhail: The convener of the conference is the keeper of the process. The agenda is set by the participants.
J. Tyabji: I assume that the keeper of the process will be the director. I'm seeing a no and a yes. If the keeper of the
[ Page 12028 ]
process is not the director, the minister might want to clarify that.
In much of this section, we've dealt with aboriginal families, community and structure. To what extent will there be people involved in the family conference who are not people that the family.... When I talk about family, I'm talking about the parental units, and possibly the grand-parents and the children; especially when a parent is of minority age, the grandparents would be part of the family conference. So I'm not sure who the keeper of the process is. But in the event of the child, for the purposes of this act, being an aboriginal, to what extent will the participants be people invited by the director rather than members of the family, as we conventionally think of the family?
Hon. J. MacPhail: Section 20(4) refers to the family conference coordinator. That person will be the keeper of the process.
This family conference is a method by which those who have a wish to see the plan properly laid out for the child can participate at the family's wish. If the director feels there will be necessary information, then that can be added to the family conference plan. However, this is a step short of a court order and short of removal. It's a voluntary process that has worked very successfully for reaching consensus. Those invited to the table are those who can assist.
J. Tyabji: I want to refer to that part of the bill which deals specifically with aboriginal communities. As we go even further into this bill, we'll see that the rights of the aboriginal community at large are defined by the minister -- the minister is the one who defines the aboriginal community and who is going to be in reference to the aboriginal child as has been defined in this bill. To what extent will the director be inviting people to participate?
I should state for the record that a family conference, if we are talking about people that the family deems to be relevant to the process.... A consensus process is an excellent way of resolving things and is obviously the first way that should be pursued.
I have to absent myself from the debate for the last few minutes.
I'd like to get to the issue of aboriginal jurisdiction and to what extent the director will be determining who should be at the table for a family conference and will therefore be driving the agenda, when the minister is the one who decides which aboriginal community is relevant to an aboriginal child.
Hon. J. MacPhail: I suspect that the hon. member, in light of previous discussions we've had in this chamber, is trying to get at whether the director will give notice or somehow invite the aboriginal community to the table in this case. There's no provision for that whatsoever. This is a voluntary process, without any orders being issued. The people invited to the table will be those who can assist. Certainly I have families in my community where this has been asked. If in some way the family feels that the aboriginal leaders of the community can assist in planning for the family, then the family has a right to ask such persons to be present. The director will not be establishing who will be present; it will be the family conference coordinator, in consultation with the affected parties.
G. Wilson: I have just a couple of questions on this section. I realize that as debate progresses and as time moves on, especially when some members were up until about 1:20 a.m. last night debating bills, it can get a little testy. But I would like to remind the minister, as per the Hansard on this question, that when this issue came up for discussion, at that time the minister said: "The definition of family conference refers to section 20 -- which we will have an opportunity to debate...." She further went on to say: "This is appropriate discussion for section 20. Before we get to section 20, let me reassure the hon. member...." And she talked about questions of....
Hon. J. MacPhail: And then what, Gordon? Then it describes the family conference.
G. Wilson: No. Then what it says is:
"...let me reassure the hon. member for Okanagan East that it is our intent to widely consult with the community and the stakeholders to design a good process that is based on a practice conducted elsewhere in many other jurisdictions with a great deal of success; we want to build upon that success in other jurisdictions. We can certainly explore options under section 20 as well."
It refers to section 20. So with respect to section 20, which we are now on, I would like to talk about the exploration for providing flexibility with respect to this family conference process. Section 20(2) says -- and we have just been talking about this: "If a director concludes after an investigation that a child needs protection, the director must offer" -- it doesn't say "may offer," it says "must offer" -- "to refer the parent or, if the parent is unavailable, another family member to a family conference coordinator." Clearly, if there is a process where discussions revolve around a family where there is a mixed ethnic background or different cultural backgrounds, there may be linguistic differences. In fact, there may be a situation where, in the case of the aboriginal community as defined in this act, the government is going to have to have wider flexibility when this family conference coordinator is brought in, with respect to permitting references to all aspects of the "cultural definition" and the cultural background of that child in that conference process. I'm using the language of this bill, which I don't necessarily subscribe to, because we have to.
I wonder if the minister can tell us what the process is going to be for identifying where those lines may be drawn in the event there is a conflict between the communities concerned if it's an aboriginal question and the child is of mixed parentage. If we're dealing with a child in whom there may be linguistic or other cultural variants because the child is of mixed parentage, how is this family conference coordination process going to function? This bill -- and this minister in introducing this bill -- has opted not to treat all children equally in this process. In fact, this bill provides for special rights, privileges and jurisdictional authorities to rest with some children and not others. I wonder if the minister can tell us how this family conference coordination process is going to work in a manner that will allow both sides in a dispute to be effectively heard and adjudicated, if that's what it comes down to.
Hon. J. MacPhail: The family conference coordinator will determine that this section is not used in an adversarial, confrontational or disputative way. It is an area where we're trying to strengthen the family, and the participants themselves will decide with the family conference coordinator who should be at the table.
G. Wilson: We don't necessarily take issue with the fact that there should be an opportunity for family members to decide who's there. The difficulty we may have is that in the
[ Page 12029 ]
event that this offer is accepted -- the parents and family members convene this conference after talking with this family conference coordinator -- and if at that point there is a dispute with respect to how there is going to be resolution of some of the questions.... In fact, that's quite likely, because it would be an unusual family in which there would not be some -- I don't know if we would necessarily use the word "adversarial" -- differences of opinion as to the way to proceed. Who prevails in this question? Is it going to be the family conference coordinator? Is it ultimately the director? Or is it going to be...? Does the family have the right to say: "Okay, the process doesn't work, so you guys take off; we're going to do it our way"?
Hon. J. MacPhail: This is a section that's used in a way that is not meant to have a winner and a loser. If it is determined that the family conference model is not going to be successful by virtue of it being unable to be set up in the first place, then it won't be used. No one prevails. Everyone comes to it from a point of view of equality.
Hon. Chair, I move that the committee rise, report progress and ask leave to sit again.
Motion approved.
The House resumed; the Speaker in the chair.
The committee, having reported progress, was granted leave to sit again.
Hon. J. MacPhail moved adjournment of the House.
Motion approved.
The House adjourned at 12 noon.
[ Return to: Legislative Assembly Home Page ]