2011 Legislative Session: Fourth Session, 39th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

official report of


Debates of the Legislative Assembly


(hansard)


Monday, October 24, 2011


Afternoon Sitting


Volume 26, Number 5

[ Page 8303 ]

MONDAY, OCTOBER 24, 2011


The House met at 1:34 p.m.


[Mr. Speaker in the chair.]


Routine Business


Introductions by Members


Hon. P. Bell: It's not very often that I get to introduce constituents, but I'm really pleased today to be able to introduce a constituent from the wonderful riding of Prince George–Mackenzie, Michael Schneider. Michael is down here to have some meetings with the Minister of Forests, Lands and Natural Resource Operations. He is a prominent guide-outfitter in the region and a tremendous contributor to the economy of the region.


[1335]

In addition, I see that both Scott Ellis, who's the executive director for the Guide Outfitters Association of B.C., and Mark Werner, who's the president or the chair of the Guide Outfitters Association, are here to join us. Would the House please make them feel very welcome.


L. Popham: It's a pleasure for me to introduce my dad, Henry, and my stepmom, Lea-Ann, who are visiting us today from Barriere, British Columbia.


R. Sultan: The insurance industry is in town today. In the galleries are Peter Norton from Intact Insurance; from Chubb Insurance Co., Anne Barnes and Tara Saunders; from Wawanesa Mutual Insurance we have Graham Haigh and Mary Dehod; from Peace Hills Insurance, Daryl Kochan; from Aviva Canada, Donna Cheeseman; and from the Insurance Bureau of Canada we have such well-known friends as Lindsay Olson, Gregor Robinson, Miranda Lee and Serge Corbeil. Would you please make them welcome.


L. Krog: Not to make the Minister of Jobs jealous, but rarely do people come from Nanaimo to attend the Legislature. I have two constituents here today, Tom and Chris Loughlin. I would like the House to make them welcome, please.


Hon. S. Cadieux: Home-share providers provide an important part of our caring society. I was lucky enough this afternoon to have lunch and conversation with a number of home-share providers from the south Island. So I would like to introduce John Williams, Kim Bergenstein, Cassandra Weins and Lois Weins, who bring a great deal of compassion, care and dedication to their work.


There are about 2,500 home shares across the province. More than half of them have been operating for more than 15 years. In fact, many of those home-share providers have been providing care to the same individual for more than 15 years. I'm happy to have them here today to help celebrate Community Living Month. Please join me in making them very welcome.


K. Conroy: I take a great deal of pleasure today in introducing an old friend — not an old friend, but a longtime friend — that is here with us today. Leo Gerard is the international president of the Steelworkers, and I ask the House to please make him welcome.


Hon. S. Bond: Today in the gallery we have a group of articling students from the Ministry of Attorney General. They are here today to take part in a Continuing Legal Education session regarding law-making and the legislative process.


They are Paula Jane Bowering, Christine Nancy Drake, Joshua Lee Ingram, John David Nelson, Anna Peacock, Denise Pritchard and Scott Webber. They are joined by Stephanie Weinhold, Margo Louise Foster and Rod Fehr, legislative counsel. Would the House please join me in making all of them very welcome.


B. Stewart: It's my great pleasure to have a chance to introduce my friend and a proud father, Kevin Dixon, and his wife, Lara O'Connor Dixon. Kevin is an extremely hard worker, but I think he'll agree with me when I say that Lara has been doing the most important work lately. Their daughter, Macy Marisa, was born on October 12, and since it has been a custom in this House to report this, she weighed in at 8 pounds 6 ounces. She has a five-year-old brother named Jace, who weighs considerably more.


Hon. Speaker, this is something of a family event. Kevin is my executive assistant, and Lara is the administrative coordinator to the Minister of Advanced Education. Kevin and Lara assure me that they gave strong consideration to Stewart and Yamamoto as middle names. Would the House please join me in welcoming Kevin and Lara and their family back to their home away from home.


D. Barnett: Today I also would like to welcome some of my colleagues' constituents, who I have had the pleasure of doing a lot of work with: Mark Werner, Michael Schneider, Brian Glaicar, Dixie Hammett and Scott Ellis from the Guide Outfitters Association of British Columbia.


[1340]

Also, I have a member of my very own constituency here today, a member that many here will recognize from his long-term association with the Tourism Association of British Columbia, a chair of COTA, a member of the Canadian tourism association and owner of the 108 Hills spa and guest ranch, one of the most beautiful places
[ Page 8304 ]
in British Columbia — a great community supporter. Please welcome Pat Corbett and the Guide Outfitters.


J. Les: I appreciate my friend from Westside-Kelowna and others trying to play catch-up, but I was informed this morning that No. 16 is on the way.


Interjections.


Mr. Speaker: Members.


One of the opposition members was going to raise a point of order with that, Member.


L. Reid: I'd ask the House to join me in welcoming a group of students who are visiting us from Portland University. They are a wonderful group that I had the absolute privilege of addressing this morning. I ask the House to please make them welcome.


Statements
(Standing Order 25B)


JACQUES HÉBERT AND
CANADA WORLD YOUTH ORGANIZATION


G. Hogg: In 1971 our world was facing significant challenges: war, social injustice and environmental degradation. Many Canadian youths were passionately protesting. They wanted change, they wanted a better world, and that has not changed.


Canadian writer, editor and politician Jacques Hébert had a vision of harnessing the passion and the energy of those youths. He wanted to help them to become changemakers — changemakers in their communities and changemakers around the world — and that's exactly what he did. He founded Katimavik and Canada World Youth.


Canada World Youth matches young Canadians with youth from developing nations and gives them an opportunity to volunteer in both a Canadian community and a community in a partner country. This unique volunteer exchange program inspires and empowers youth to be engaged as leaders in their communities, as global citizens, and to make a difference.


Volunteers like Cobble Hill's Jon Kinsley, who spent six months volunteering in Honduras and in rural Canada. He knew that he was embarking on an adventure; he didn't know that it would change his life. He is now attending Capilano University's global stewardship program. His experience with Canada World Youth has fuelled his passion to help others and to change the world.


Jon joins 34,000 youths who have developed personal relationships and have contributed to development projects in over 600 Canadian communities and 67 countries around the world.


This month Canada World Youth is celebrating its 40th anniversary, and 40 years later Jacques Hébert's vision is still relevant. Canada's youth are still concerned with community and global issues and challenges, with social injustice, with war and environmental degradation. I know that Canada World Youth will continue to harness the passion of young Canadians to help build a more just, harmonious and sustainable world.


Please join me in congratulating Canada World Youth for 40 years of building youth leadership and a closer, better world.


LITERACY AND SCHOOL LIBRARIANS


R. Austin: Today is National School Librarian Day, an opportunity to honour the important work of these specialized teachers. Literacy matters to all of us in so many ways — almost too many to mention in detail. Here are just a few.


It's the building block of all learning. It is instrumental in increasing our health, both clinical as well as social. It is critical for democracy to function and is important in reducing crime and recidivism. It is important for seniors, as studies show that higher literacy leads to a more fulfilling life and delays serious age-related illnesses such as dementia and Alzheimer's. It has huge economic impacts, where a 1 percent increase in literacy would increase Canada's productivity by 2½ percent — an estimated $32 billion increase to our GDP.


So where does all this important work begin? Of course, in our homes as we introduce our kids to the thrill of reading and learning about numbers. But the most significant work takes place in our public education system, where the importance of literacy is actively shown to our kids each and every day.


A former librarian-teacher that I witnessed in my home community of Terrace once said to her elementary class at the beginning of the year: "Today, boys and girls, I'm going to introduce you to power — how to increase your power and how to use it wisely. For in this room is knowledge — lots of it — and that's what library class is all about." The kids looked a little stunned at this introduction, but no truer words were ever spoken. This is just one example of the passion that library teachers bring to their work.


[1345]

All of us in this chamber say positive things about literacy, but beyond the comforting words we must also show action. So I ask for us to reverse some of the recent trends and support an increase to the numbers of these librarians and realize that for many kids, this is their only opportunity to be introduced to the wonders of increased literacy. Let's do this not just for our kids but for all of our sakes, as we strive to improve our social, economic and, dare I say it, our spiritual well-being.

[ Page 8305 ]

TRAUMA pup PROGRAM FOR
CHILDREN AT ACCIDENT SCENES


M. Dalton: I'm pleased today to speak to the House about a provincewide program which has received little recognition but has had a great impact. They say that pictures speak a thousand words. This program can be summed up by just one picture.


In December 2010 the Maple Ridge News published a photo of a young boy at the scene of a car accident. He has a man's hand on his shoulder, comforting him. He's holding a stuffed animal, a Dalmatian puppy with a red hat, and he watches as paramedics wheel his mother into an ambulance. He is tightly clutching that puppy, wondering what will happen next.


For over a decade FortisBC has funded the $10,000-a-year Trauma Pup program. This funding provides stuffed-animal Dalmatian pups to fire departments across B.C. In total, 21 departments participate in the program, which provides two trauma pups per fire truck. Timo Juurakko, assistant chief of the Maple Ridge fire department, tells me that these stuffed animals are great tools for firefighters. Quite often they are the first thing given to a child in distress. They help firefighters calm and comfort a child and build a relationship of trust in a short amount of time.


This relationship is paramount, particularly when firefighters and paramedics are attending to people when their child is present and watching. So would the House please join me in honouring our firefighters who work so bravely to keep us safe, and FortisBC, who have partnered with these local heroes to help offer our children comfort when they need it most.


CAMPBELL RIVER AND DISTRICT
ASSOCIATION FOR COMMUNITY LIVING


C. Trevena: Fifty years ago a group of concerned parents in Campbell River came together for their children. Mr. Speaker, 1961 was a time when children with developmental disabilities too often were placed in an institution, but change was underway, and Campbell River was leading it.


By January '62 eight youngsters who were previously not able to attend local school went to class in the Elm Street School. Their parents formed the Campbell River and District Association for Retarded Children. They hired and paid a teacher and organized daily transport.


The organization grew through the Campbell River Association for the Mentally Handicapped to today's Campbell River and District Association for Community Living, which provides millions of dollars in services and is a major employer in town. It supports people throughout their lives, right from when they're children, infants and toddlers, through Sunrise Resources, through their youth and into adulthood. A focus has long been linking people with developmental disabilities to the workforce, whether it's through the very popular Nifty Thrifty store or Skyline Productions, which used to make fantastic garden furniture and is now making boom boards and developing a paper shredding business.


The association also has a creative employment program, which includes a lawn mowing business, community beautification work and Let's Eat on Greenwood, providing meals to local schools and more. On top of that, the association-supported employment program facilitates job placements for people all over the community. As people age, there is a recreation and leisure program for the semi-retired and the retired. Finally, there is the assisted-living facility, Ironwood Place.


It's not easy for the association. The dedicated staff make it work at times when most people would give up. Large caseloads, growing needs and shortage of money mar the glorious picture painted. But the association does amazing work for people with developmental disabilities and has helped create a truly inclusive city over its first 50 years of existence.


DJAVAD MOWAFAGHIAN
CENTRE FOR BRAIN HEALTH


R. Sultan: Recently I attended groundbreaking for the Djavad Mowafaghian centre for brain health at UBC. Mowafaghian's largest-ever gift to the UBC faculty of medicine is helping fund construction of a $70 million research and patient care facility.


[1350]

Participating were Minister John Duncan from Ottawa and our own Health Minister. Federal and provincial governments provided a significant share of the funding for this six-storey facility adjacent to the UBC Hospital. It will change the way we do business in brain health, according to my constituent, brain health director Dr. Max Cynader. The centre will combine fundamental research, advanced clinical care, a healthy aging program, state-of-the-art technology for brain imaging and genomics. Max said: "We will improve outcomes for patients and advance brain science at the same time."


Mowafaghian's decision to support the project became more personally meaningful after he suffered a stroke in April 2010, which was successfully treated at our own Lions Gate Hospital on the North Shore. It helped motivate his additional gift to the UBC medical school at Lions Gate.


Stroke, attention deficit syndrome, autism, Alzheimer's, ALS and more, stem cell regeneration of the central nervous system, concussion, trauma and dementia — the expectations are high and, according to Max, realistically so for meaningful advances.


The brain health centre is a wonderful example of your tax dollars at work and a wonderful example of philanthropy from a citizen who, at the tender age of 60 years,
[ Page 8306 ]
moved to Canada to rebuild his fortunes — Djavad Mowafaghian.


COWICHAN INTERCULTURAL SOCIETY
AND IMMIGRANTS TO B.C.


B. Routley: The Cowichan Intercultural Society recently celebrated 30 years of welcoming and helping newcomers to the Cowichan Valley. Over the past 30 years the Cowichan Intercultural Society has served 43,000 youth, adults and families, hosted over 1,000 events and partnered with over 200 community service organizations.


Here is just a sample of the many amazing stories of how people immigrated to the Cowichan Valley. Pema Wangchen is now a coordinator of the Cowichan Intercultural Society. He made his way to the Cowichan Valley all the way from Tibet.


In their ordinary street clothes, he and a group of others hoped to make the arduous trip over the Himalaya mountains to Nepal and then on to India and eventually to Canada. He tells how some people didn't survive the trip. It was bitterly cold. They had little food or water. They endured blizzards and whiteouts along the way. Some people even fell through huge cracks in the snow.


He tells how difficult it was to deal with the new reality that he had to leave behind all of his family and many friends and how he was concerned before he got to Canada that people may not like immigrants. They might not like him because some people do not like differences.


He has come to learn there is much goodness in everyone's heart. He explains that it is just a matter of opening up that goodness that is there in your heart. New immigrants make community life so much richer. Each culture brings its gifts of diversity, joyful and exciting singing and dancing and, of course, incredible, delicious and amazing food.


Thank you, Cowichan Intercultural Society, for helping to blend and friend our community by volunteering, supporting and breaking down barriers within our communities. We all join in saying thank you.


Oral Questions


GOVERNMENT HANDLING OF
URANIUM-MINING APPLICATION
BY BOSS POWER CORP.


A. Dix: In April 2008 Boss Power applied to the government to begin exploration on its uranium claim near Kelowna. Three days later the government brought in a moratorium on uranium mining. The result of all this was a $30 million payout to Boss Power, the result of a settlement reached on the courthouse steps just as Boss Power's suit was going to go to court. The government's own submission to the courts admits that the government broke the law in refusing to consider Boss Power's application.


So my question to the Government House Leader is this. Can he tell this House who directed the deputy minister to break the law?


[1355]

Hon. R. Coleman: The latter part of this member's question does not deserve a response. It's an insult to the great public service of the province of British Columbia.


But I am happy to discuss this issue with the member opposite. It goes back a lot longer than just April of 2008. The actual land issue, the tenure itself, was actually going back to 1976. It was actually 1979 when the Socreds appointed a royal commission to consider uranium mining. The province announced at that time there'd be a seven-year moratorium on uranium mining, which expired in April 1987.


The claim was still there all during that period of time. Subsequent to that the former government did not renew the moratorium, and it came through the 1990s to today. The government made the decision — we did a press release in April of 2008 — to do what I think the public interest was and the public of British Columbia wanted. We would finally let people know that we would not become a nuclear energy place, nor would we be mining uranium in the province of British Columbia.


Interjections.


Mr. Speaker: Members.


The Leader of the Opposition has a supplemental.


A. Dix: Hon. Speaker, my supplemental to the minister is this. It's crystal-clear. It's in the court documents that the deputy minister instructed the inspector of mines not to consider Boss Power's application. It's crystal-clear that the inspector of mines sought advice from the government's own lawyers, who told him the law required him to consider the application. Yet the inspector of mines was still instructed to ignore the application, despite the fact his superiors knew this to be against the law.


So I ask the minister again. It's a simple question. Who directed the deputy minister to ignore the advice of the Attorney General's own lawyers and deliberately not follow the law?


Hon. R. Coleman: The next step in this particular issue is that the government actually did a press release on April 24, 2008, where we confirmed our position on uranium development. Now, normally within government that would pretty much instruct your public service as to what the wishes and direction of government were going to be, which is what it was.

[ Page 8307 ]

I can quote. Basically, the registration reserve "will ensure any future claims do not include the rights to uranium. Government will also ensure that all uranium deposits will remain undeveloped. These changes support the B.C. energy plan commitment of no nuclear power."


The process from there would have been different areas of government understanding that policy direction from government. It was confirmed by an OIC by government in early 2009 with regards to that, which actually set the reserve.


Of course, the piece that we don't control is mining of uranium in British Columbia, because it is actually under federal jurisdiction. But the fact of the matter is we did what we did because we felt it was the correct thing to do on behalf of the province of British Columbia.


At the same time, we said that anybody who had tenures with regards to this particular activity would be kept whole, or we would be negotiating with them simply because we felt that would be the right thing to do if government is going to make this shift.


Interjections.


Mr. Speaker: Members.


The Leader of the Opposition has a further supplemental.


A. Dix: The question is actually quite simple. I mean, the government's own documents were submitted to the court. They made it very clear. I'll quote from the documents. "The province admits that the official knew he did not have authority to take the action and that he took the action anyway."


The actions of the government at a time when the government is saying no — for example, to many parents of adults with developmental disabilities — have cost the taxpayers $30 million plus legal costs. Taxpayers deserve to know who gave the order that led to this debacle. Now, hon. Speaker, you know….


Interjections.


Mr. Speaker: Members.


A. Dix: The government's response is typical, frankly, of the arrogance that we have come to expect from them. But this is a very simple question that requires a simple answer. Who instructed the Deputy Minister of Energy, Mines and Petroleum Resources to break the law in not considering Boss Power's application?


[1400]

Hon. R. Coleman: I hope the member is not saying that the members opposite don't believe that people should be compensated for tenures when government does a taking with regards to changing government policy. I hope not, because that really….


I don't know what the member's policy is with regards to uranium mining, but we actually made the decision in 2008 that we were going to let everybody know we're confirming our position on uranium development in the province of British Columbia, for the future of the taxpayers of the province of British Columbia, that we would not be mining uranium in British Columbia.


When we made that decision, a number of things would have gone into order, but our professional public servants did their job in the best way they could as we came through this.


Quite frankly, to the member opposite, if you're asking who gave the direction with regard to the change in uranium mining, it was a decision by the government of the province of British Columbia. I'm proud of the decision, hon. Member, because you know what we did? We finally told people we're not going to mine uranium in the province of B.C.


Interjections.


Mr. Speaker: Members.


J. Horgan: The line of questioning today is not about whether we support uranium or not. We do not. The line of questioning today is not to walk down memory lane with the Minister of Energy and Mines. The question today is about a government that acknowledged that they deliberately and with intent broke the law.


Court documents. You've all seen them. We've all seen them; we've all read them. The government of British Columbia directed…. Someone directed the Deputy Minister of Energy to go to a statutory authority and say: "Disregard your obligation." When that individual refused, he was removed from his position and someone who would listen to the bullies in the minister's office said: "Go ahead."


In the subsequent court documents…. Perhaps we can get right to the chase here. A document tabled in court by the lawyers for the plaintiff said the following.


Interjections.


Mr. Speaker: Members.


J. Horgan: The plaintiff, in court filing, states the obvious: "We understand that the minister of state told Dr. Sweeney that if a work permit were granted to Boss Power, he would never survive the political firestorm rooted in the Okanagan."


My question is a simple one to the Minister of Energy. Tell the public that you gave away 30 million bucks to protect the backside of the member from Kamloops south.

[ Page 8308 ]

Hon. R. Coleman: I hope the adjective I thought the member used in describing the member from Kamloops is wrong, because in that case he would be owing that member an apology.


The fact of the matter is that when government made this decision, we actually knew there could be a possible claim with regards to uranium. It had nothing to do with when a notice of work was passed or moved along, because the claim was longstanding in the province of British Columbia.


We actually, for the member's information, reserved the dollars for potential costs to the decision to get rid of uranium many years ago, in order that we had that money there in case we did have some legal action.


When there's a legal action taking place, there's a to and fro. The original proposal by Boss Power was exceptionally high. Ours was lower. There was a negotiation over time. At some point in time during the negotiation, actually, there was a stepping back from the negotiation because it wasn't going anywhere. They decided to proceed to court.


A decision was made on the recommendation of the lawyers for the Attorney General that we would accept the settlement offered to us last week. We accepted that settlement. It was well within the fiscal plan to do so, and what we did is meet our responsibilities by making this change to the tenure holder with regards to the financial obligations.


Mr. Speaker: The member has a supplemental.


J. Horgan: Twelve months ago the B.C. Rail corruption trial was shut down on the courthouse steps by a deal that was cut, which cost the taxpayers $6 million in legal fees for a confessed corrupt insider of B.C. Liberals.


[1405]

Twelve months later a uranium mining company that was going through due process, was going through the courts, was offered $30 million on the courthouse steps to settle.


Why do you think they did that, hon. Speaker? Because it was wildly above what any reasonable evaluation of their sunk costs would have been. Punitive damages were forthcoming because the government did not discharge its statutory obligation. They broke the law. The government of British Columbia, in court documents, acknowledges that they broke the law.


Now, in the interest of protecting the reputations of the public servants that the House Leader spoke so laudably about at the start of question period, will he stand in place today and tell us: was it the minister's office that interfered, was it the Premier's office that interfered, or was it the Attorney General's office that interfered? Who told Greg Reimer to break the law?


Hon. R. Coleman: What we did do is that we negotiated, in good faith, a settlement between us and Boss Power with regards to a tenure that would be affected by a decision of the government to not do uranium mining.


You know, the member opposite should not try and be holier than thou. But I will remind him of a little thing. Government a few years ago….


Interjections.


Mr. Speaker: Minister.


Interjections.


Mr. Speaker: Members.


Continue, Minister.


Hon. R. Coleman: What we did was make a decision that we thought was the right decision for the people of British Columbia. Anybody in my riding that's ever written me about this issue is happy with the fact that we're not going to mine uranium in the province of British Columbia.


Interjections.


Mr. Speaker: Continue, Minister.


Hon. R. Coleman: We felt it was appropriate that we would negotiate with a tenure holder who had a tenure that was longstanding in the province of British Columbia for an amount of money that was decided by both parties, which was within mandate. Everybody made the decision last week with regards to the settlement.


I know the member opposite wants to get up and prattle on, and I'm just going to do this quickly.


The Carrier Lumber deal in the 1990s. We had to clean up the NDP's mess. We had to clean up….


Interjections.


Hon. R. Coleman: I've got more, Member, but this is just one of them.


The government settled for $32 million, two parcels of land the Crown acquired from B.C. Rail and 1.5 million cubic metres of lumber stumpage-free. This is what the judge said in the ruling leading to this settlement. He said, about the provincial government: "…chose to cover its own failings and to orchestrate matters to conceal their own breach. Through a series of manoeuvres and self-serving documents, they sought to frustrate harvesting activities and then to pursue the suspension and eventual cancellation of the licence."


K. Conroy: Let's bring it back to this decade, Mr. Speaker. I am well aware of the political firestorm that was brewing over the uranium mine. The residents of the area did not
[ Page 8309 ]
want it. But that's not the point. What the court documents reveal is that the Liberals botched the implementation of this moratorium, and it cost taxpayers $30 million.


Interjections.


Mr. Speaker: Members.


Continue, Member.


K. Conroy: The point is that there's a right way to do things, and there's a wrong way to do things.


Again, to the minister: which member of the caucus or cabinet chose to do it the right way or the wrong way?


[1410]

Hon. R. Coleman: Like I said, this was a government decision. The government takes responsibility for the decision. It was the right decision to make the decision to not go ahead with uranium mining in British Columbia, and we accept our responsibility too.


But I should tell the member opposite — because I did tell you a minute ago — that this claim goes back to 1976. So the period of time between when we put the moratorium in place and the period of time that this lawsuit took place was not the main piece of the strength of claim of somebody who may have had a claim in British Columbia since 1976.


I get a kick out of the….


Interjection.


Hon. R. Coleman: The member opposite was yelling at me that I should come into this decade, so I will.


CKNW yesterday. October 21, the MLA for Juan de Fuca: "Now, I have no quarrel with that. In fact, I would support that initiative. I would not want to see a uranium mine open up here in British Columbia, and I don't think many British Columbians would."


Mr. Speaker: The member has a supplemental.


K. Conroy: Without the admitted government wrongdoing, this claim surely would not have cost the government, cost taxpayers, $30 million — $30 million that should have rightfully been spent on a desperate need at Community Living, on health care, on the struggling education system.


The Attorney General's office advised that the mines inspector had a statutory obligation to consider the permit, but that never happened. So let's get to the root of this problem. Who ordered professional public servants to break the law, against the advice of the Attorney General's ministry?


Hon. R. Coleman: I've got so many things here that I have to try and pick which one to use. It shows….


Interjections.


Mr. Speaker: Members. Members.


Take your seat, Minister.


Member for Fraser-Nicola, would you stand and withdraw that remark.


H. Lali: I withdraw.


Mr. Speaker: Continue, Minister.


Hon. R. Coleman: I don't know whether it's just a lack of knowledge on the other side of the House, but if anybody thinks that the strength of claim with regards to a settlement on a tenure in British Columbia is only predicated to a few short months versus decades when you're negotiating a deal with regards to a decision of government, which is what this was about….


That's what we did. We actually reserved the money at the time we were making the decision in order to have enough mandate that we could negotiate any tenures with regards to the decision to get out of uranium mining in British Columbia.


We are well under that mandate. We made a settlement with the people that had the claim. I know maybe the member opposite doesn't believe that we should have.


You know, I've also got to ask the member opposite — who talks about the $30 million for people who have a tenure and we have taken that away by expropriation, by virtue of getting out of uranium mining in British Columbia — whether she felt the same way when, in the 1990s, you gave a mining company $165 million because you created a park and took away their rights.


Interjections.


Mr. Speaker: Members.


N. Macdonald: So the minister talks about knowledge, and here's what we know. Let's just go through and see exactly what we know. We know the government knew the law. We know the government was given legal advice laying out the only possible course of action. We know that the government decided to break the law. We know that they punished a public servant who insisted on doing what was right, and we know that it cost taxpayers $30 million.


The larger question, of course, is: why does this government feel entitled to purposely break laws? That's the larger question. But the more specific question to the minister is: what does this say about the integrity of our permitting system going forward?


[1415]

Hon. R. Coleman: I think that our permitting process in British Columbia is quite sound, frankly, and it
[ Page 8310 ]
will continue to serve the taxpayers of British Columbia for a long time to come.


The members opposite, I guess, want uranium mining in British Columbia. We made a decision in April of 2008 to advise people that we were not going to proceed with uranium mining. We had a claim. We had a tenure in somebody's hand in the province of British Columbia, and we ended up actually negotiating a settlement of that claim so that we could bring back that land tenure to government so nobody else could go out and mine that in the future, because we actually took it back into the assets of the province of British Columbia. We did that appropriately.


We also appropriately made the information known to our public service, who I think…. I know people want to question what happened here, but I do believe that they were acting on the basis that government had made a decision, and within their own operation they were working through that decision as we moved to the OIC.


I think that we actually got to where we had to deal with this thing in the courts in a manner that made some sense, and that was to be fair, negotiate, come to a settlement with regards to a tenure that government took back, in order for them to protect the fact we will not be doing uranium mining in the province of British Columbia.


Interjections.


Mr. Speaker: Members.


The member has a supplemental.


N. Macdonald: The minister is trying to defend the indefensible. I'll tell you what this speaks to. It speaks to a culture within this government where laws are casually cast aside for political gain. That's what this is about. A culture where a civil servant who is determined to do the right thing has his career destroyed. That's what we're talking about, and by any measure, that is totally unacceptable.


The question that's been asked again and again and the minister doesn't answer is: who decided to disregard the law in this matter? Where did the political directive come from? That's the question.


Hon. R. Coleman: I was a member of executive council at the time this decision was made. Cabinet made this decision. The decision was not to do uranium mining in British Columbia. We made that decision. We knew at that time there may be some tenures that would have some claim. We reserved the dollars. We negotiated over time with the people. We came to a settlement which is appropriate, which is much better that I can say for some of the issues with regards to how the NDP handled land decisions in the 1990s.


GOVERNMENT SETTLEMENT
WITH BOSS POWER CORP.


L. Krog: A very specific question to the Attorney General about the amount of the settlement, $30 million. We know Boss Power raised the stakes on their claim when they learned of the government's misfeasance, admitted to in court documents. So the question is very simple. Can the Attorney General tell us: of the $30 million, how much was going to compensate Boss for the uranium mine, and how much was going to pay for the government's wrongdoing?


Hon. R. Coleman: It was all with regards to a negotiation that started long before the issues the member mentioned. With regards to the tenure, it started with parties a long way apart in dollars coming together, over a period of time, to some middle ground to where the two parties, prior to going to trial, came to the conclusion and recommended the lawyers of the Attorney General settle the claim. That's what we did.


Mr. Speaker: The member has a supplemental.


L. Krog: You didn't pull $30 million out of thin air. Proper process would have been to have proper, independent evaluations done. What I want to know is exactly what that evaluation was. When was it given? Who gave it? Then we'll know the real cost of this government's mishandling.


The question is to the Attorney General. Will she table the documents, the evaluations, that led the government to settle for $30 million of taxpayers' money?


[1420]

Hon. R. Coleman: It was done through negotiations. The valuation of subsurface minerals is a complicated process which requires considerable time, and the parties did not agree initially on the amount the claim was worth. That's where we started. Then there's a negotiation. Through this agreement, we delivered on our original commitment to Boss by buying back its claim to the uranium deposits that we made when we made the decision in 2008 that we were not going to do uranium mining.


I don't know what the members opposite want to say, but I think they want to say: "By George, you don't want to have uranium mining in British Columbia, but by George, we don't want to pay anybody that might have a tenure on the ground because we want to ignore their rights." That's what I hear.


HOME-SHARE ARRANGEMENTS AND
COMMUNITY LIVING SERVICES REVIEW


N. Simons: Every day it seems like some secret emerges from under the curtain of CLBC. Today it was
[ Page 8311 ]
revealed that Community Living officials who administer home-share contracts may in some cases have their own home-share contracts. These are the same people that administer and oversee these arrangements.


Does the minister recognize this as a potential conflict of interest, and what does the minister plan to do about it?


Hon. S. Cadieux: We're nearing a month now that I've been in this position as minister. I have been diligently meeting with individuals, with advocates, with folks that are telling us there are some issues with CLBC. I certainly have acknowledged that those issues do indeed exist and need addressing.


We're taking steps to address those issues, first and most importantly, for families. Last week I asked that a client services team be set up to work directly with families to address any issues that they have outstanding with CLBC. At this point we want to make sure that families are receiving services, the services they need, while we do our due diligence in terms of the deputy ministers working group that's looking at all of the services we provide cross-ministry and the internal audit that will take some time to work through.


Mr. Speaker: The member has a supplemental.


N. Simons: Well, the people of the province want more than assertions or assuaging our concerns about due diligence. They actually want an external review of Community Living B.C. because of situations like this and because of the situation of the massive bonuses that were being paid to people to reduce services to the most vulnerable in our communities.


You know, one week we have the minister being demoted. Days later everything is fantastic. That very night the CEO fired. The people who are receiving services from Community Living B.C. have every right to be concerned about the state of the agency responsible for the well-being of their family members.


My question is again to the minister. You have a potential here of individuals responsible for implementing service cuts, for implementing contract cuts, to people who are vulnerable…. They're the ones that may also be in receipt of these contracts. Is that appropriate, and does this not scream out louder than ever the need for an external review of Community Living B.C.?


Hon. S. Cadieux: In fact, we are doing an awful lot to make sure we get to the bottom of this as quickly as possible. I'm a new minister. We have a new interim CEO. In September we created a deputy ministers working group to look at the cross-ministerial supports. We've got an internal audit team that has gone into CLBC and is conducting an audit to get at the root — to help performance and that costs are managed.


I've asked for an interim update from the board that will be on my desk on November 1 regarding the vision of CLBC and how they expect to achieve that vision. A client support team has been set up to ensure that families can access answers to their questions quickly — in fact, just last Friday the announcement that CLBC variable pay compensation system will be terminated. 


[1425]

[End of question period.]


Orders of the Day


Hon. R. Coleman: We will continue committee stage of Bill 3, intituled Freedom of Information and Protection of Privacy Amendment Act, 2011. If we do complete that, we would then move to second reading of Bill 6, intituled Forests, Lands and Natural Resource Operations Statutes Amendment Act, 2011.


Committee of the Whole House


Bill 3 — Freedom of Information and
Protection of Privacy
Amendment Act, 2011


(continued)


The House in Committee of the Whole on Bill 3; L. Reid in the chair.


The committee met at 2:28 p.m.


On section 10 (continued).


D. Routley: What is the reason for allowing broad categories of information, apparently, to be stored outside of Canada?


Hon. M. MacDiarmid: There are no amendments in this legislation that allow the storage of data outside of Canada.


D. Routley: It seems that the transfer to other bodies would allow such a transfer to occur if the transfer is to a federal body. Is that not correct?


[1430]

Hon. M. MacDiarmid: The amendment allows…. In the event that a citizen sends a request or an e-mail or letter to a provincial body that should have gone to a federal body, we will be allowed to forward that. The place where it has gone to in mistake will be allowed to forward it to the federal body that has jurisdiction. The citizen actually intended it to go there in the first place. The Privacy Act of Canada will have jurisdiction, but it would have anyway.

[ Page 8312 ]

So there's not any amendment that changes anything of our act.


D. Routley: Who decides what will be transferred? If it is information that is transferred to a federal body or a body controlled under PIPA, if there is any such transfer, who decides what information will be transferred? Once it is transferred, it would, in my understanding, become vulnerable to storage outside of Canada, which would be against the directives of our own legislation here in B.C.


Hon. M. MacDiarmid: Someone in the receiving office would be who would forward this. A classic example, I'm told, is when somebody has actually addressed their letter to a federal agency but has mistakenly sent it to a provincial body. The public body in question, which had received it by mistake, would forward it to the actual addressee on the letter. That apparently does happen, and citizens wonder why we can't forward it when they've made a mistake.


I think I heard the member opposite say something about things being forwarded to a body that was covered by PIPA. That in fact could not happen. It can only be forwarded to a government institution, subject to the Privacy Act of Canada.


D. Routley: The example the minister gives is informative, and it would be a very obvious circumstance where, clearly, the letter would be addressed inside the envelope to a federal ministry but then sent to a provincial ministry.


But this amendment would allow a much broader purview for someone, as the minister describes it, within a ministry interpreting what is inside an envelope as being meant for a federal body, forwarding it — perhaps, incorrectly — and then having that information available for storage outside of Canada. The broadness of it seems designed for failure.


Does the minister not think that there should be more adequate consideration given to what would be forwarded and more clear direction from this act as to what can be forwarded and who will decide when and where it will go?


[1435]

Hon. M. MacDiarmid: This section talks about the action to be taken by a public body. It says: "the public body takes no action with respect to the information other than to…read all or a part of it and then delete, destroy or return it…."


If it wasn't clear as to where it should go but it was clear that this public body shouldn't have received it, then it would be returned, but it otherwise could be transferred in accordance with this subsection. Those are the choices that are available to the public body that is receiving the information.


D. Routley: In fact, the amendment does not in any way require, by its reading, the person, the someone in the ministry's office, to determine what was the intent of the citizen who sent the information. According to the way the amendment is written, it's entirely up to that someone in the minister's office to decide the appropriateness of where to send the information and when to send it, and there is no provision for the citizen to be notified that their information has been forwarded to whomever that someone decides is appropriate.


It's not necessarily the case that the person, someone in the ministry's office, will open the envelope and say: "Oh, this is meant for Human Resources Development Canada, not Social Development or our Housing Ministry in B.C. I'll just send it to the right person in a helpful way." In fact, it allows for the person, someone in the office, just to open it up, read all or part of it, as the minister says, and then make a determination by themselves of where that information should go.


Once that determination is made, that information is not only forwarded without the knowledge of the citizen but may be forwarded to a body that will allow the storage of that information outside Canada, which would be contrary to the standard here. That's the way I understand this. If the minister could clarify.


[1440]

Hon. M. MacDiarmid: We're talking about people, civil servants, who work for a public body and who are already entrusted with receiving and handling personal information. That is already who we are talking about — people who are entrusted with receiving and handling this kind of information.


They will use their professional judgment. They will use policy advice to make a determination, and the options open to them — as I've already stated from the amendment — will be to delete, destroy, return it or transfer it appropriately. Those are the choices open. But we are talking about people who already have knowledge and understanding and professional responsibility in handling personal information.


D. Routley: I appreciate the minister's assurance. Really, I absolutely would expect that personal information being taken in by government would be handled by people who have the appropriate training, expertise and professionalism to respond as they should. Unfortunately, according to record, that isn't always the case. Even when people are of that level of competency, mistakes are made.


As a result of that, even taking what the minister has said as being always so — always to be performed to the standard that she's indicated — without the rules and regulations that will guide those decisions, without the rules and regulations that form the architecture of how this bill will be implemented in the real world, it seems
[ Page 8313 ]
impossible to say with assurance what the minister has just said, that we should be content and feel safe that information will always be handled in a professional way, and the decisions will be made appropriately to send it, destroy it, return it.


In fact, without some detailed description of how the regulations will work, particularly around this amendment, I personally, as a British Columbian, don't feel that there's enough assurance that my personal information could be handled 100 percent of the time in a secure and safe fashion.


Can the minister tell me what regulations are contemplated in order to achieve what she's just described, the kind of certainty that she has described?


Hon. M. MacDiarmid: For this particular amendment, there would not be regulations. We would be providing policy to go with this.


D. Routley: Now, this seems very serious to me. A citizen can send information to the government, and if it's a simple matter and very obvious in the case that the minister's described, where the bureaucrat opens the envelope…. The envelope is clearly meant for Human Resources Development Canada — not the Housing Minister of this province, for example — and the person, the bureaucrat, the professional who opens that letter appropriately says: "You know what? I'll save everybody some time, and I'll forward this to HRDC rather than return it to the citizen and leave them wondering why their letter was returned. I won't notify the citizen that I've done this."


That's an obvious case, and I think there's very little room for serious error or harm. But if, on the other hand, a more serious personal issue is sent to a government ministry in British Columbia, pertaining to anything from health — perhaps not health, because this bill carves out health — social services, social development, housing, any number of personal issues that could compromise people's interests, and the bureaucrat who receives that makes a decision by themselves that that information should be forwarded outside of the province, then we and the citizen lose control of their information — how it is used, where it is stored.


[1445]

How can we embark on the trust required to endorse an amendment like this when there won't even be regulations or rules set out to determine how those decisions are to be made? There will be policy directives, but how would those be communicated to each and every bureaucrat who might receive personal information in this province? How can we be sure that they will be adequately trained and informed as to what those policies mean?


The acting commissioner, Fraser, in submitting to the committee reviewing the act, said that the major flaw in the entire process was a lack of awareness as to what the requirements are, under the act, by civil servants.


I think the minister should be able to more adequately assure me and British Columbians that that is not a risk to their personal information.


Hon. M. MacDiarmid: In section 10, in the amendments, there are a couple of things that are stated really clearly.


One is that personal information that's received by a public body is not collected for the purposes of the act if the information does not relate to a program or activity of the public body. The first thing that the individual who receives it will have to determine is that it very clearly doesn't relate to any program or activity of that public body.


Then, with the decision that they have to make, they have to determine that the information relates to a program or activity of the other public body or government institution.


So there are two tests that it has to pass in the two separate amendments, and it's very clear what the person has to determine. Those two things both have to be the case before anything would be forwarded.


D. Routley: There are two tests that now this someone in any ministry or any public body must apply to this decision. The first test is whether they are in fact collecting information or receiving it, which I've already disputed with questions on previous amendments.


If information comes into a ministry and the civil servant opens that information, reads it and makes a decision as to how to deal with that information — forward it, destroy it, return it — I still have a very big problem in seeing how that is not collecting information. It's not storing information, perhaps, but it certainly seems to me to be the collection of information.


First, this someone in a public body's office must make a rather fine decision around whether or not they are receiving or collecting. Next, this person — someone in a public body, an office — must determine the appropriateness of the information to their own ministry or program and then decide on behalf of this citizen what the intent of the citizen was and determine where they should send it. That's a lot of decision-making in the hands of someone in a public office body.


[1450]

It seems that the amendment is less than clear as to how those decisions will be made. Now we've been told by the minister that there will be no rules or regulations guiding that decision.


I have a real problem understanding why it isn't simpler, although it might take another stamp and a little bit of time, to return the information to the citizen, as would be the case under the existing act, and explain why their information was directed to the wrong destination
[ Page 8314 ]
or program — maybe even, perhaps, I could suggest to the minister, along with a suggestion as to where the information should go.


But that keeps the information in the control of the citizen. This amendment takes away the citizen's control over their own information. So I think this is an intolerable risk to the personal privacy of British Columbians. Therefore, I move to delete the entire section 10 of this amendment act, and I have an amendment here that would achieve that.


[Section 10, by deleting the following section:


When personal information is not collected


27.1 (1) Personal information that is received by a public body is not collected by the public body for the purposes of this Act if


(a) the information does not relate to a program or activity of the public body, and


(b) the public body takes no action with respect to the information other than to


(i) read all or a part of it and then delete, destroy or return it, or


(ii) read all or a part of it and then transfer it in accordance with subsection (2).


(2) For the purpose of subsection (1) (b) (ii), a public body may transfer personal information to


(a) another public body, or


(b) a government institution subject to the Privacy Act (Canada)


if the public body determines the information relates to a program or activity of the other public body or government institution referred to in paragraph (a) or (b).]


The Chair: Member, it is our practice that when you are opposing and asking to delete an entire section, that is not in order. Your option is to vote against the section.


Amendment ruled out of order.


D. Routley: Okay, thank you.


I think I've canvassed enough questions to go to a vote.


Section 10 approved on division.


On section 11.


D. Routley: It appears to me that this is simply a linguistic change, but could the minister explain what necessitated this change?


Hon. M. MacDiarmid: The member is correct. The amendment removes words that were made redundant by the addition of section 31.1 in 2004. The words were originally included to ensure that the limits that apply to public bodies in terms of how they may use personal information also apply to service providers acting on behalf of all public bodies.


But in 2004 section 31.1 was added to the act to ensure that all of the privacy requirements and restrictions that apply to public bodies also apply to their employees and service providers. Because of that, the words "must ensure" are no longer needed.


Section 11 approved.


On section 12.


D. Routley: This section appears to address section 33 in the act and the new section 33.3. Could the minister explain this change to me, please?


[1455]

Hon. M. MacDiarmid: This amendment is similar to the one we just discussed, where the words "must ensure…." It's that same removal of redundant words, but it also adds reference to a new disclosure provision that is going to be coming up as we move along. It is in 33.3.


D. Routley: This change was connected to a recommendation of the review committee?


Hon. M. MacDiarmid: The part about a public body…. Changing the words "must ensure that" to "may disclose" is the housekeeping we talked about previously. The reference to section 33.3, which we'll discuss when we come to that section, did come from the special committee.


Section 12 approved.


On section 13.


D. Routley: This section gives particular cause for concern. "A public body may disclose personal information referred to in section 33 inside or outside Canada…." Could the minister describe what the parameters are in terms of what types of information could be disclosed outside of Canada, and the circumstances that might arise?


Hon. M. MacDiarmid: This is a lengthy section, section 13. I wonder if the member opposite could direct our attention to the subsection, perhaps one at a time, that he is concerned about.


D. Routley: Well, in particular, the allowance for the purpose of reducing the.… Information disclosed on social media sites. That would be.…


[1500]

Maybe the minister could help me here. It allows for the public body to disclose personal information inside or outside Canada if the information was disclosed on a social media site by the individual the information is about — obtained and disclosed by the public body to engage individuals in public discussions or promotion of the public body's initiatives.


Am I correct in that interpretation?

[ Page 8315 ]

Hon. M. MacDiarmid: This section talks about disclosing personal information if it "was disclosed on a social media site." There is already a ministerial order in place that provides short-term authority for this purpose, and this amendment will permanently replace that order that's due to expire in December of 2012.


To ensure that citizen privacy is protected, this provision sets specific criteria that must be met before a public body can engage with a citizen through social media. A public body can only engage with an individual using social media and disclose personal information for that purpose if the individual has posted personal information to a social media site and the engagement is related to the public body's mandate.


This reflects what government is doing and what many private bodies are doing when they engage with citizens through the use of social media sites like Facebook or Twitter.


D. Routley: Would this allow, then, for the public body to collect information from social media sites that relate to a particular program or activity of the public body, without…. I mean, for example, if a citizen were to post to a Facebook site that discussed a pipeline project that's particularly controversial, would this allow the public body to collect the information of that person and then subject it to being stored outside Canada?


Hon. M. MacDiarmid: The purpose of this particular section is to allow government to engage with citizens through the use of social media sites like Facebook or Twitter. The storage outside of Canada is actually done by those sites.


[1505]

The citizen is choosing to interact with government, so they are putting their personal information on the site. What this amendment allows us to do is actually use Facebook and Twitter to engage with people. It's not everyone's choice, but it is many people's choice of a way to interact with government or with other public or private bodies.


D. Routley: I think all the members in the House appreciate the facility that social media allow us in terms of interacting with citizens, and perhaps more efficiency could be gained in terms of service provision to citizens. But the darker side…. And there is such a well-known darker side to those social media sites — everything from teenage bullying to stalking to phishing for people's personal information for any number of nefarious reasons and intents. Obviously, people are choosing to expose themselves to a certain degree when they participate in social media.


The public policy piece that I'm concerned about is the potential for government to collect and store information that people don't necessarily consider to be an engagement of government. If there is a social media site that is related to an environmental assessment that's ongoing in a particular community in the province, and if a person's participation in that social media site subjects their information to being collected by government and then subjected to storage elsewhere, that would be something well beyond what people would consider when they voluntarily participate in social media.


Am I wrong in suggesting that that might be the case, given this amendment?


Hon. M. MacDiarmid: Again, it would be Facebook or Twitter that would be storing the data outside of Canada. It would not be the government.


D. Routley: Previously, in accordance with section 35, information collected for statistical purposes could only be stored inside Canada. This seems to change that and allow information collected for statistical purposes to be stored outside Canada. Am I correct?


Hon. M. MacDiarmid: Yes.


D. Routley: Does the minister not consider that that's an additional risk? I'm anticipating that she doesn't consider it an additional risk. What assurance can she give to me and the citizens of British Columbia that storing our statistical information outside Canada is not a risk?


Hon. M. MacDiarmid: Everything in section 35 about the disclosure for research or statistical purposes all still applies, the entire part of section 35. So it's robust, as the member will be aware.


However, we do know that there is some research that's done outside of Canada, and what the amendment will ensure is that public bodies are able to participate in research initiatives that span jurisdictional borders. It will ensure that public bodies can contribute to research carried out by or involving other jurisdictions. Public bodies will also be able to utilize research services in other jurisdictions and collaborate with other jurisdictions on international research initiatives, such as those led by the World Health Organization.


[1510]

D. Routley: This section, again, brings us to the subject of information "collected by observation at a presentation, ceremony, performance, sports meet or similar event" which the individual voluntarily appeared at and was open to the public. So what is the purpose of including that particular provision in this section?


Hon. M. MacDiarmid: This section refers to disclosure inside or outside Canada. In the event, for example, that there was an opening of a new section of a hospital and photographs were taken and posted on the Internet,
[ Page 8316 ]
then because it's accessed from everywhere in the world, that is what this covers.


D. Routley: The section of the amendment removes subsection 31.1(1)(j) regarding ICBC claims investigations. Can the minister explain why and what this will mean?


Hon. M. MacDiarmid: This is one of the more technical parts of the bill. What this amendment does is it repeals the current wording and adds new wording which clarifies ICBC's authority to disclose personal information. It clarifies that ICBC's authority is not limited to disclosure for the purpose of investigating, managing or settling insurance claims, but this is in addition to its authority to disclose personal information under other sections of the act. It's coming up in 33.1(4).


D. Routley: The definition of "domestic violence" in section 33.1(m.1) — will this allow public bodies to disclose details of a sexual assault?


[1515]

Hon. M. MacDiarmid: The answer is yes, it could be done, but only for the purpose of reducing the risk that an individual would be a victim of domestic violence if domestic violence was reasonably likely to occur.


D. Routley: The ability to collect, use and disclose inside or outside of Canada any personal information of any individual from and to any public body in order to reduce the risk that an individual will be a victim seems very broad. Does the minister not feel that it may have a chilling effect on complaints and disclosures? This seems to be more broad than the reporting requirements already imposed upon doctors.


Hon. M. MacDiarmid: This amendment is about sharing information, without there being barriers, in the event that it will reduce the risk that an individual will be the victim of domestic violence. There are examples of cases where the inability to share information has actually led to the loss of life.


D. Routley: There's no dispute over the…. Currently the act, in most cases, would allow such a sharing. We heard that from the acting commissioner when we reviewed the act. It's generally a misinterpretation or a lack of understanding of the current act that prevents people from…. It may be necessary to change the act to achieve a better awareness, or it may just be that people need to be better informed in order to have the awareness necessary to proceed under the current act to share the information that's necessary. That was the opinion offered by then acting commissioner Fraser.


This does seem to facilitate the sharing of information for social services and criminal law purposes. It seems to have legalized the collection of any information from a health record by another public body on the basis of a reasonable likelihood of potential harm.


Since it allows collection of the health record based on an estimation of the reasonableness of the likelihood of potential harm, could this qualify — the minister or the professionals that are sitting with her now — as an unreasonable search if it were relied upon by law enforcement?


Hon. M. MacDiarmid: I can't hypothesize about the question the member has asked, but what I would say is that what this section is about is disclosure, and it's for the purpose of reducing the risk that an individual will be the victim of domestic violence, if domestic violence is reasonably likely to occur. That's what this is meant to cover.


D. Routley: Section 13 — I think it's amending 33.1(1)(q): "if the information was collected by observation at a presentation, ceremony, performance, sports meet or similar event."


[1520]

I still have a discomfort with that type of information collection. Can the minister please explain, aside from the example of the opening of a wing of a hospital, why it's necessary to give permission to collect information at such public events without consent or knowledge of the citizen?


Hon. M. MacDiarmid: I do remind the member opposite that we did already pass the sections 8 and 9, which were talking about the collection. This section talks about disclosure.


D. Routley: Based on my discomfort with that particular aspect of this amendment, I'd like to move to delete that section 33.1(1)(q). I have an amendment here that would achieve that.


[Section 13, by deleting the text as shown as struck out and adding the text shown as underlined:


33.1 (1) A public body may disclose personal information referred to in section 33 inside or outside Canada as follows:


(a) in accordance with Part 2;


(a.1) if the information or disclosure is of a type described in section 22 (4) (e), (f), (h), (i) or (j);


(b) if the individual the information is about has identified the information and consented, in the prescribed manner, to its disclosure inside or outside Canada, as applicable;


(c) in accordance with an enactment of British Columbia or Canada that authorizes or requires its disclosure;


(c.1) if it is made available to the public in British Columbia under an enactment, other than this Act, that authorizes or requires the information to be made public;


(d) in accordance with a provision of a treaty, arrangement or written agreement that


(i) authorizes or requires its disclosure, and


(ii) is made under an enactment of British Columbia or Canada;

[ Page 8317 ]

(e) to an individual who is a minister, an officer of the public body or an employee of the public body other than a service provider, if


(i) the information is necessary for the performance of the duties of the minister, officer or employee, and


(ii) in relation to disclosure outside Canada, the outside disclosure is necessary because the individual is temporarily travelling outside Canada;


(e.1) to an individual who is a service provider of the public body, or an employee or associate of such a service provider, if


(i) the information is necessary for the performance of the duties of the individual in relation to the public body, and


(ii) in relation to disclosure outside Canada,


(A) the individual normally receives such disclosure only inside Canada for the purpose of performing those duties, and


(B) the outside disclosure is necessary because the individual is temporarily travelling outside Canada;


(f) to an officer or employee of the public body or to a minister, if the information is immediately necessary for the protection of the health or safety of the officer, employee or minister;


(g) to the Attorney General or legal counsel for the public body, for use in civil proceedings involving the government or public body;


(h) to the minister responsible for the Coroners Act or a person referred to in section 31 (1) of that Act, for the purposes of that Act;


(i) if


(i) the disclosure is for the purposes of collecting amounts owing to the government of British Columbia or a public body by


(A) an individual, or


(B) a corporation of which the individual the information is about is or was a director or officer, and


(ii) in relation to disclosure outside Canada, there are reasonable grounds for believing that


(A) the individual the information is about is in, resides in or has assets in the other jurisdiction, or


(B) if applicable, the corporation was incorporated in, is doing business in or has assets in the other jurisdiction;


(i.1) for the purposes of


(i) a payment to be made to or by the government of British Columbia or a public body,


(ii) authorizing, administering, processing, verifying or canceling such a payment, or


(iii) resolving an issue regarding such a payment;


(j) in the case of the Insurance Corporation of British Columbia, if


(i) the information was obtained or compiled by that public body for purposes of insurance provided by the public body, and


(ii) disclosure of the information is necessary to investigate, manage or settle a specific insurance claim;


(k) for the purposes of


(i) licensing or registration of motor vehicles or drivers, or


(ii) verification of motor vehicle insurance, motor vehicle registration or drivers licences;


(l) for the purposes of licensing, registration, insurance, investigation or discipline of persons regulated inside or outside Canada by governing bodies of professions and occupations;


(m) if


(i) the head of the public body determines that compelling circumstances exist that affect anyone's health or safety, and


(ii) notice of disclosure is mailed to the last known address of the individual the information is about, unless the head of the public body considers that giving this notice could harm someone's health or safety;


(m.1) for the purpose of reducing the risk that an individual will be a victim of domestic violence, if domestic violence is reasonably likely to occur;


(n) so that the next of kin or a friend of an injured, ill or deceased individual may be contacted;


(o) in accordance with section 36 (disclosure for archival or historical purposes);


(p) the disclosure


(i) is necessary for


(A) installing, implementing, maintaining, repairing, trouble shooting or upgrading an electronic system or equipment that includes an electronic system, or


(B) data recovery that is being undertaken following failure of an electronic system


that is used in Canada by the public body or by a service provider for the purposes of providing services to a public body, and


(ii) in the case of disclosure outside Canada,


(A) is limited to temporary access and storage for the minimum time necessary for that purpose, and


(B) in relation to data recovery under subparagraph (i) (B), is limited to access and storage only after the system failure has occurred.


(q) if the information was collected by observation at a presentation, ceremony, performance, sports meet or similar event


(i) at which the individual voluntarily appeared, and


(ii) that was open to the public;


(r) (q) if the information


(i) was disclosed on a social media site by the individual the information is about,


(ii) was obtained or compiled by the public body for the purpose of enabling the public body to engage individuals in public discussion or promotion respecting proposed or existing initiatives, policies, proposals, programs or activities of the public body or respecting legislation relating to the public body, and


(iii) is disclosed for a use that is consistent with the purpose described in subparagraph (ii);


(s) (r) in accordance with section 35 [disclosure for research or statistical purposes];


(t) (s) to comply with a subpoena, a warrant or an order issued or made by a court, person or body in Canada with jurisdiction to compel the production of information;,]


On the amendment.


Hon. M. MacDiarmid: We've already passed the amendments which cover the collection of this information. They've already been passed. If we have that without having anything to govern the disclosure, I think that would be a much worse situation.


I'm opposed to the amendment that the member opposite has proposed.


D. Routley: In support of my amendment, I would suggest that my discomfort around that type of collection of information that was passed in the previous amendment hasn't been addressed.

[ Page 8318 ]

I don't feel satisfied that that's appropriate collection means. In fact, it is overly broad, and as such, I would oppose the means of disclosing. Therefore, I think the minister might want to reconsider and, hopefully, support the amendment not to allow disclosures of that type of information.


Amendment negatived on division.


Section 13 approved.


On section 14.


D. Routley: This section 14 is dealing with disclosure inside Canada. It says that disclosure of public information inside Canada to an officer or employee of an agency "if the information is necessary for the delivery of a common or integrated program or activity and for the performance of the duties...." It also allows disclosure to an employee or an officer if the information is necessary to plan or evaluate a program or activity of a public body.


This section expands the circumstances in which information may be disclosed within Canada. Why is this section needed?


[1525]

Hon. M. MacDiarmid: We've had the ability to have common or integrated programs before. What this is doing is clarifying disclosure within those programs. That is what this amendment does.


D. Routley: What types of information is the government contemplating in this amendment?


Hon. M. MacDiarmid: A common or integrated program is defined in the act. The amendment states very clearly that the information has to be necessary for the delivery of the common or integrated program.


The Chair: Shall section 14 pass? The member is on his feet.


D. Routley: Just for people who aren't aware, the process is that I ask the question. If I don't stand up immediately to ask the question, the amendment is put to a vote, and we can no longer ask questions. The minister can answer after consulting with the senior bureaucrats in her ministry for any length of time required. That is why there seems to be this sometimes disjointed flow, where I must stand up very quickly in order to keep the debate alive. Just so people know why that happens.


From my limited capacity here without the supporting resources, I will ask: is the information contemplated in this amendment information that cannot be disclosed outside of Canada?


Hon. M. MacDiarmid: That's correct. This is information that can be disclosed inside Canada.


D. Routley: If there is information that under the previous section could be disclosed outside of Canada, would it also be subject to this section?


[1530]

Hon. M. MacDiarmid: The previous section talked about some circumstances where information could be stored outside of Canada, and we have discussed that. This particular section is talking about the disclosure of personal information inside of Canada, and it hasn't been altered by the previous section.


D. Routley: Does this section seek to include individuals outside the B.C. public service?


Hon. M. MacDiarmid: This amendment does talk about employees of an agency and that an agency can be part of a common or integrated program.


We do have a definition of "agency" for the purpose of this section. The definition of "agency" is:


"(a) a government institution subject to the Privacy Act (Canada), (b) an organization (i) subject to the Personal Information Protection Act, or (ii) operating in British Columbia that is subject to the Personal Information Protection and Electronic Documents Act…(c) a public body, a government institution or an institution as defined in applicable provincial legislation having the same effect as this Act, or (d) a prescribed entity."


That's the definition of an agency, so it is possible that they could be working outside of British Columbia.


[D. Horne in the chair.]


D. Routley: So the section does seek to include individuals outside the B.C. public service, and by that definition, we heard the phrase "public body."


Earlier in the debate on this legislation the minister indicated that there are over 2,000 public bodies. When we include the other organizations the minister is talking about which are subject to the other acts — Personal Information Protection and Electronic Documents, all the acts that the minister just referred to, which I can't recount — that seems an amazingly broad number of organizations that would be affected by this amendment.


How can we ensure that all of those public bodies and all of those organizations that could potentially come under those descriptions are adequately informed, educated and understand their responsibilities under this amendment?


Hon. M. MacDiarmid: For the member opposite, I want to read the definition of "common or integrated program or activity." This means "a program or activity that (a) provides one or more services through (i) a public body and one or more other public bodies or
[ Page 8319 ]
agencies working collaboratively, or (ii) one public body working on behalf of one or more other public bodies or agencies, and (b) is confirmed by regulation as being a common or integrated program or activity."


[1535]

Maybe in more plain language, in order for something to qualify as a common or integrated program or activity, there actually would be regulation around it. It would be a specific common or integrated program or activity that could involve an agency or agencies. There would be a privacy impact assessment done early on, and the commissioner would be involved.


We'll be coming to parts of the amendment later that describe the early involvement of the Information and Privacy Commissioner when a single common or integrated program or activity was being contemplated.


D. Routley: I appreciate the narrowing of the scope of what might trigger this section, but still the number of different organizations that might be included — not just public bodies but perhaps private corporations contracted to public bodies that would then be subject to various acts and would then be part of any privacy impact assessment that might be done — just increases the number of people, processes and organizations through which information might be shared.


Again, my concern would be around educating the people involved — the public servants but also agents of those bodies — as to what the appropriate controls are over information-sharing. That's my concern, so could the minister describe — perhaps it's just part of the privacy impact assessment — how we will achieve that level of education?


Hon. M. MacDiarmid: I agree with the member opposite that the attention to detail here is very important, in particular with respect to the privacy impact assessments. They're extremely detailed as you go through them and will address, I think, the concerns that the member has. The details of that will be coming up as we discuss section 25 — as to actually how and when the commissioner is involved and the privacy impact assessments.


Section 14 approved.


On section 15.


D. Routley: Section 15 amends section 33.3 of the original act, the existing act, "Disclosure of personal information in records available to public without request." This seems to allow a proactive disclosure by public bodies in ministries. The government could always proactively release information under the existing act. I would just like to ask the minister why it's necessary to bring this amended section forward, since it was always an option for government to proactively and routinely disclose information.


[1540]

Hon. M. MacDiarmid: This is the first of a number of sections that are addressing one of the special committee recommendations. The rest of them are in section 28. The recommendation was to add a new section to acknowledge that information technology plays an important role in achieving the dual purposes of the act by facilitating the routine disclosure of general information as well as enhancing safeguards for privacy protection.


This amendment in particular will permit a public body to apply the same unreasonable-invasion-of-privacy test that it applies to a single FOI request to information that it wishes to proactively disclose to the public. Then the rest will come in that later section.


D. Routley: The guidelines for this type of disclosure by a public body were found in sections 71(1) and 71.1(1) of the Freedom of Information and Protection of Privacy Act. Given that those guidelines existed, what new categories of information might be contemplated by government for release as a result of this change?


Hon. M. MacDiarmid: This particular section that we're talking about doesn't allow the inclusion of any new categories. The member is correct that the later section that we'll come to does talk about that, but this particular section doesn't.


D. Routley: Under the current rules, if a person files an FOI request, privacy protection under section 22 is applied very strictly, whereas if the government itself chooses to release the same information, that protection of privacy was much more lax. Does this section maintain that disparity between the two processes?


[1545]

Hon. M. MacDiarmid: As the legislation currently stands, if government wants to routinely release records, the unreasonable-invasion-of-privacy test is not currently there. What this amendment does is include it so that the same considerations that would be given when an FOI request come in would pertain if government wants to proactively disclose information.


Section 15 approved.


On section 16.


D. Routley: This section talks about data linking. We see the phrase "consistent purpose" and "consistent with the purpose for which the information was obtained." That use of personal information must be consistent
[ Page 8320 ]
with the purpose for which it was obtained. Can the minister define the term "consistent purpose"?


Hon. M. MacDiarmid: The definition of "consistent purposes" is unchanged. Previously it talked about section 32(a) and some other sections, and what we're doing now is making the change so that the same definition applies everywhere that we see "consistent purposes" in the act. That's all this amendment does.


D. Routley: "Consistent purpose." Would that be an easily defined term for members of the public service who might be asked to interpret the appropriateness of disclosure of information? What guidelines would be in place for them to decide that it was consistent with that purpose?


Hon. M. MacDiarmid: The definition of "consistent purpose" is actually the same as it has been in the act since 1992, so the training around it and the understanding are unchanged. All this does is make sure that the definition applies to all the sections where those words are found.


D. Routley: The section also removes the term "legally authorized" and "or causes the information to be… disclosed" from the original section. Why was this done?


Hon. M. MacDiarmid: The words "program or activity" have been put in to be consistent throughout the act, and we've talked about that in other sections of the act. That's the reason for that change.


The "or causes the information to be used or disclosed" has been removed. That used to be there to apply to service providers, but when the act was amended so that service providers were covered by the entire act, those words no longer needed to be present. They are redundant now.


[1550]

D. Routley: What programs would now be considered to have consistent purpose that were not before?


Hon. M. MacDiarmid: There are no new programs referred to that will come out of this amendment.


D. Routley: This section and its definition of consistent purpose seem to go beyond what was recommended by the 2010 special committee. The special committee recommended: "We do not support the idea of indirect collection of personal information without consent, except for the extenuating circumstances specified in the act, nor the addition of an implicit consent clause. With regard to the recommendations promoting information-sharing, we do not think a compelling case was made in general terms to expand the consistent purpose provision."


This amendment seems to expand that provision. Why was that expansion necessary?


Hon. M. MacDiarmid: The amendments don't expand the use of consistent purposes. They just ensure that consistent purposes apply.


D. Routley: It seems that the language as stated in the amendment is more broad than what was recommended by the committee. The committee did not agree with the government submission, which called for a wholesale change to consistent purpose. I wonder if the minister considered that recommendation and whether she feels that this amendment is according to that recommendation or goes beyond the recommendation.


Hon. M. MacDiarmid: I do believe that the amendments are consistent with the recommendations of the special committee. Where we've added something to the act, such as social media, what this amendment does is ensure that the definition of "consistent purposes" applies to that. That's what this accomplishes.


It's not expanding anything. The definition remains the same, but where we've added something — like, for example, social media — to the act, it applies. The consistent purposes rules apply.


[1555]

D. Routley: Not wanting to be belabour and certainly not wanting to ask anything more than I need to, to understand, I would ask one more question. That is: how is this section proposed here different from the one that the government submission made, which was rejected by the committee? How is this different from that?


Hon. M. MacDiarmid: The government submission contemplated complete redrafting of this section, and that has not happened. What has happened is that the definition has remained the same. The change here, again, is to ensure that where there is something new — like social media — added, the definition of "consistent purposes" will remain.


Section 16 approved on division.


On section 17.


D. Routley: Section 17 eliminates the words respecting a public body causing "personal information in its custody or under its control to be disclosed" and replaces the wording because of the new definition for "data linking," I'm assuming. Am I correct in that description and assumption?

[ Page 8321 ]

Hon. M. MacDiarmid: Yes, the member opposite is correct.


Section 17 approved.


On section 18.


D. Routley: This section appears to give authority for the British Columbia Archives to disclose information pursuant to other sections — 33.1, 33.2, 33.3 and section 36. How does this change the authority of the B.C. Archives to disclose information?


Hon. M. MacDiarmid: This is really a housekeeping amendment, and what it does is clarify that the authority they have under these sections is in addition to other authorities they have. It makes that clear, and it removes some words from the act that are redundant.


D. Routley: What discussions were undertaken with the B.C. Archives, and what other consultations with researchers were made on this amendment?


Hon. M. MacDiarmid: These changes were made on the recommendation of legislative counsel to provide legislative clarity, and as such, a consultative process with the bodies that the member opposite mentioned was not undertaken.


This is to provide clarity, and these are viewed to be of a housekeeping nature, to make sure that it's clear within the legislation that what's described here are authorities that are in addition to the already existing authorities for those bodies.


[1600]

D. Routley: So the B.C. Archives submitted to the committee and have had positions on release of information that have called for a broadening of their permission to release information. Am I to understand that there was no consultation, that it's simply driven by the drafters of the amendment?


Hon. M. MacDiarmid: Again, on this particular amendment, which was recommended by legislative counsel for clarity, there wasn't consultation — just with respect to this section. These are viewed as being of a housekeeping nature.


Section 18 approved.


On section 19.


D. Routley: This is a long section dealing with data linking. There are several items that I'd like to petition with the minister. First, 36.1(1): "A public body participating in a new or significantly revised data-linking initiative must comply with the regulations, if any, prescribed for the purposes of this subsection."


When the language says "comply with the regulations, if any," is that language in this amendment because the regulations haven't been written or in the anticipation that there would be no regulations guiding this section?


Hon. M. MacDiarmid: We have committed to drafting regulations on data-linking initiatives with the Information and Privacy Commissioner. Until such time as those regulations exist, none of the data-linking initiatives can go forward. So it requires regulations.


D. Routley: The answer suggests several concerns for me around the appropriateness of so much of the guts of legislation being written into the regulations, which will not be open to this debate or to any debate in this House. That seems very problematic, when the regulations will be setting the guidelines and rules by which these amendments will be applied. I have a really big problem with that.


The regulations will be determined in consultation with the commissioner, but this subsection (2) specifically carves out the health sector from those future requirements and safeguards, whatever they might turn out to be.


[1605]

That goes directly against recommendation 25 of the special committee, which specified that privacy impact assessment requirements be applied to health authorities the same as any other public body. Why is the government exempting the health care sector from the planned safeguards on privacy?


Hon. M. MacDiarmid: I think the member has asked more than one question.


I'm going to answer the first part that I heard you ask, and then you probably are going to want to ask again the part that I didn't answer.


So with respect to the data-linking initiatives and what we have here, what we have here is actually a very detailed framework for how data linking would work. We're the first jurisdiction in Canada to have any sort of law around data linking. When you look through what is listed, and I won't read it all into the record, it's very detailed. It talks about who would be doing it, when they would do it and what must happen in order to do any kind of data linking.


What the regulations will do is they'll do the how. The framework is all here. We discussed, the last time we were speaking, about the times when things are in legislation and the times when there's regulation. It's not unusual. Quite frequently government has legislation where there's a legislative framework, but then there will be some regulations that will come in after the legislation. So it's not unusual that we're doing this.

[ Page 8322 ]

Again, to point out how much detail there is here around how the framework really is here for data linking and what will be left to regulations is how it would be done for a specific data-linking program.


D. Routley: It certainly is normal process for legislation to be introduced and for the regulations and rules to be set out afterwards. There are problems with this process and the way it has been applied by the government in the past — and, apparently, now — that so much of what a bill really means to people's lives and really means in the real world is being left to regulation.


The government under previous Premier Gordon Campbell and now in this case has been criticized quite widely for leaving so much of the important details of legislation to rules and regulations — more than was historically considered to be normal or to be acceptable. That secludes those measures from debate in the House, and that is a problem.


Additionally, this bill is implemented upon assent, before the rules and regulations are formulated with the consideration and consultation of the commissioner.


[1610]

Further, the commissioner herself has expressed unease around her role of consultation in developing regulations, given that her resources, the resources of the OIPC, are constantly pressured and must be reasserted every year before the committee on government revenue and services.


There are a number of vulnerabilities to the process, as described by the minister, and also inadequacies, in that the regulations aren't developed yet and we can't debate them here. They will have serious and significant impact as to how the bill functions and how people's private information is handled. That would be my response to the answer.


Now to the question that the minister predicted I would probably ask, and that is: why has the government chosen to carve out the health sector from these future requirements and safeguards, whatever they might be, once they're finally designed?


Hon. M. MacDiarmid: With respect to the health care sector being excluded from the rules currently on data linking, there was an acknowledgement that the delivery of health care services relies every day on the collection of data to facilitate patient care and that that's entirely appropriate.


There was a concern that new rules might have unintended consequences for the delivery of critical services, that the new rules might actually get in the way of the work that needs to be done and that it could actually be a health and safety concern. So health is not under the new rules for data linking.


There is a commitment on the part of government to continue discussing this area with the Information and Privacy Commissioner so that appropriate rules can be developed that will be unique to the health care system, again, really to ensure that there aren't unintended consequences and that patient health and safety are not jeopardized, essentially.


D. Routley: Is the minister indicating that there might be a stand-alone health information act contemplated?


Hon. M. MacDiarmid: What I've said is that there's a commitment to work with the commissioner. Where that will lead us, I wouldn't hypothesize, but the commitment has been made to work with the Information and Privacy Commissioner in this area.


The other thing I want to just say in response to what the member opposite said — not the last comment but before, about the regulations…. It's important to note in the very first part of this that any data-linking initiative must comply with the regulations. So nothing can happen from this section until the regulations have been developed.


D. Routley: I appreciate the minister's desire to reassure me, and I mean that honestly. But I just also still feel that since the regulations will never be put before the minister and myself for debate, they will be…. It is an exercise in trust, and I trust the minister, but the whole process does depend on us trusting that the recommendations and rules will meet the test.


That test will never be examined in this House. So I do continue to have an issue, and I'd suggest that we continue to disagree on that. But it seems that the government is exempting the health care sector from these safeguards, at least at this point. Am I to understand that data linking within the health sector won't be subject to privacy impact assessments?


[1615]

Hon. M. MacDiarmid: Health is not exempt from the requirement to do privacy impact assessments.


D. Routley: Who has the government consulted with on this amendment? Have they consulted with the BCMA or patient groups?


Hon. M. MacDiarmid: The concept of data linking…. There was wide consultation about that — the bodies I have described previously: universities, post-secondary institutions, ministries, etc. I've discussed those previously. The issue about the data-linking initiative not applying to the Ministry of Health — those discussions happened with the Ministry of Health and the Information and Privacy Commissioner.


D. Routley: So the government did not consult with the B.C. Medical Association or patient groups, then?

[ Page 8323 ]

Hon. M. MacDiarmid: As I said, the discussion about that particular area was with the Ministry of Health and with the Information and Privacy Commissioner.


D. Routley: Well, the minister knows that the Information and Privacy Commissioner is particularly concerned about this aspect of Bill 3, that even in her news release the commissioner did say: "I am concerned that new data-linking rules do not apply to the health sector. We recognize the unique needs within the sector, but rules for linking personal health information are needed."


That seems to indicate considerable concern. In discussing the amendment act with the commissioner, she reiterated to me her ongoing concern around the considerable carve-outs for the health sector. Those are reasonable concerns. I wonder how the minister is addressing the commissioner's concerns.


Hon. M. MacDiarmid: Again, not to be overly repetitive, the concern and the reason for health not being included was the concern that there could be unintended consequences by including them and that that could possibly have an impact on specific patient health and safety. That was the reason for it.


What we have done is made a commitment to work with the Information and Privacy Commissioner, that we'll continue discussions with her on what rules could be developed that would be unique to the health care system and to address it so that we wouldn't have a situation with unintended consequences that might impact on patient health or safety.


D. Routley: On the subject of repetitiveness, we started this debate, I think, with second reading on October 7 or something like that. I just had my BlackBerry buzz, thinking I might have a really good question being offered to me by a stakeholder or by a researcher, but it's a notice of a Christmas sale, so definitely, repetition has us in trouble. We started in early October, and Christmas sales are on my BlackBerry.


[1620]

Given the commissioner's concerns and the assurances of the minister to the commissioner that the government would work with the commissioner to formulate adequate rules governing data linking within the health care sector, why is there an urgency to rush this amendment act forward when that consultation hasn't yet occurred? Why couldn't that consultation occur before this act was put before the House?


Hon. M. MacDiarmid: We've been in consultation with the Information and Privacy Commissioner and many others for a considerable period of time before bringing this package of amendments forward. The member opposite has referenced the press release, and this is actually the only area that the Information and Privacy Commissioner expressed concern about. She is supportive of many of the other areas that are in this package of amendments and has talked about the fact that we've struck a balance between access to information and protection of privacy.


We do feel that it's important to go forward with this. We talked about modernizing the act and having a goal of better serving British Columbians.


D. Routley: Certainly, those indications were made that there's a general support for the direction of the bill. I've tried in the beginning of the second reading debate, as well as in this debate on third reading, to indicate that we support modernization and greater efficiency within government.


While we support that — while I as a member and the opposition support that — we also have considerable concerns about the unfinished work that the commissioner referred to as the devil being in the details and "much work yet to be done." Given that the House had sat four days out of 16 months prior to this sitting and that two years have elapsed since the time of the special committee's work, it just seems that there was very little notice given of this legislation coming forward, and there was very little consultation that any stakeholders were aware of, other than the committee's work.


It all begs the question of why there is a rush now, such a rush that there is not adequate time between second reading and third reading to review the second reading in order to adequately judge how it informed the particular clauses in this debate on third reading. It seems that this is being done with some haste.


One of the key issues that's left to be determined is exactly how privacy will be protected — exactly what regulations will be in place and any indication of how the mechanics will work around the protection of privacy.


Why, I would ask the minister, is this amendment act being pushed forward at this pace, without those considerations yet being made or without broad consultation yet being undertaken?


[1625]

Hon. M. MacDiarmid: I believe that this will be another one of the areas that we'll have to respectfully agree to disagree on. There's been, as the member referenced, the special committee — all the different bodies that presented to the special committee in 2010. There's been close to a one-year process of consulting with various other groups, and we bring this forward now because we think there is great value to amending the act in this way at this time.


So I think, again, I'll have to respectfully disagree with the member opposite about the timing of this. We do think the time is right to do it now.

[ Page 8324 ]

D. Routley: This section indicates that the government will be consulting with the Privacy Commissioner on all these new changes to permit data linking. How many privacy impact assessments are expected to be sent to the commissioner for review? I don't know how to request that answer — per year or immediately. What kind of workload will be placed on the OIPC, given this amendment act?


Hon. M. MacDiarmid: For sure, I can tell the member opposite that there won't be any until the regulations have been developed. And as he's pointed out, the regulations don't exist as yet. They're going to be developed in consultation with the Privacy Commissioner.


Data-linking rules didn't previously exist in the legislation. This is new for British Columbia. We're the first jurisdiction in Canada to have such rules, and as such, I can't predict to what extent they'll be used — the numbers of privacy impact assessments that will occur. It's not possible to predict that at this time.


D. Routley: Well, it's not clear how long it will take to deliver the regulations that would describe exactly what the privacy impact assessments will look like. Later in the act we'll be able to discuss them more directly.


But given that the act is intended to apply to current and future data-linking initiatives and given the number of data-linking initiatives that we already know about from government, just based on those projects that the minister must be aware of in her new role as the arbiter of these programs and also understanding that privacy impacts are meant to be done at the conceptual design and implementation stages of any of these projects, how many privacy impact assessments are there to be — based on what we already know?


Hon. M. MacDiarmid: We do privacy impact assessments in our day-to-day work today. They're already in the act, and they're already used. What this amendment talks about is a "public body participating in a new or significantly revised data-linking initiative." They are the ones that will have to comply with the regulations.


D. Routley: Just looking back at the integrated case management example where the OIPC asked for privacy impact assessments three times during the design and implementation of that program, and those privacy impact assessments were never done until very recently, so a large portion of the $180 million budget for ICM was spent before privacy impact assessments were done. So I think that they're relevant questions around how many are expected to be done.


[1630]

The complexity of those assessments is probably already well understood as the government contemplates these data-linking programs. Can the minister predict in any reasonable fashion how many privacy impact assessments will be done, based on the currently planned data-linking projects that government is contemplating?


Hon. M. MacDiarmid: Again, we do privacy impact assessments now. It is part of the practice now. Later in this package of amendments we'll come to an area where it talks about the requirement to consult and to have the privacy impact assessments early on in the process of developing.


But I think it's important to know what data linking is here. In general, "data linking" means "the linking or combining of personal information in one database with personal information in one or more other databases" where the purpose of the data linking is different from the original purpose of collecting the personal information.


While I can't answer how often this will happen, I believe that it will be infrequent. I believe that data-linking proposals will come forward infrequently, and that's a clear definition of what they are. The privacy impact assessment work will have to be done early on in the proposal if data linking is proposed.


D. Routley: Given that even if they are infrequent, they are complex processes, what additional resources have been allocated to the Office of the Information and Privacy Commissioner to undertake, or at least review, these privacy assessments? What additional resources have been allocated to the office in order to review the architecture of what a privacy impact assessment is going to look like?


Hon. M. MacDiarmid: It's difficult for me to see how this actually pertains to the amendment, but what I can tell the member opposite is that the Office of the Information and Privacy Commissioner can request a budget increase, and that would go to the Select Standing Committee on Finance and Government Services to review it and put forward a recommendation.


D. Routley: I think it does have a direct reference to the amendment, since the amendment seeks to find some of its support through — and then some of the answers from the minister seek the support of — being legitimized by the review and approval of the Office of the Information and Privacy Commissioner.


The minister has responded to several questions, saying, in a sense: "Don't worry, because the OIPC will be fully involved and will have oversight." But if the OIPC, as has been the case, finds itself challenged in terms of budget, it's difficult to see how that office will be able to undertake these.


Given the concerns raised by privacy experts in this province and the Privacy Commissioner herself with the government's exemption of health care sector from
[ Page 8325 ]
privacy safeguards, I wish to move an amendment. This amendment would delete the subsection of section 19 that excludes the health care sector from future privacy protection regulations. I have an amendment that would achieve this.


[Section 19, by deleting the text as shown as struck out:


Data-linking initiatives


36.1 (2) If all the participants in a new or significantly revised data-linking initiative are a health care body, the ministry of the minister responsible for the administration of the Ministry of Health Act or a health-related organization as prescribed, then subsection (1) does not apply to the participants. ] 


[1635]

[D. Black in the chair.]


On the amendment.


Hon. M. MacDiarmid: I would speak against this amendment. As I have said, the reason for not including the Ministry of Health in the data linking is that concerns were raised that there could be an unintended consequence of having this legislation, these amendments, actually impact on the Ministry of Health. The concern was that critical care or critical programs that would actually impact on individual patients' safety and their health, unfortunately, could be an unintended consequence.


The commitment that has been made is to work with the Information and Privacy Commissioner to develop policy to develop further ways of including the Ministry of Health without potentially jeopardizing patient care. So I would speak against the amendment.


D. Routley: In support of my amendment, I would suggest that during the debate on this section the minister indicated that there was no consultation made with the BCMA or patient groups, that it was through legal counsel that these recommendations were made.


I also note the concerns of the Privacy Commissioner. She has stated publicly as well as in conversation with me that she's very concerned about the extensive carve-outs from privacy protections for the health sector.


It seems that if the minister and the government were concerned that these amendments would impact patient safety or health, it's yet another reason that this amendment act should not have been brought with such haste, and yet more reason that more consultation should have been done before these amendments, and this particular amendment, were offered to the House for consideration.


It points to a need to come to more conclusion about what the final workings of this legislation will be. Therefore, again we're in a place where regulation and rules that are yet to be determined will not be open to debate. We're promised they'll be developed in full consultation with the Privacy Commissioner. Those rules and regulations are impacting, in a very direct way, what this means. We cannot have a debate and arrive at a reasonable conclusion whether this is good or bad without those details.


The Privacy Commissioner said that the devil is in the detail. There's still more work to be done. So if these amendments were going to potentially negatively impact patients, (1) I would think there should have been consultation with the B.C. Medical Association, (2) with patient groups, (3) that the commissioner's concerns around carve-outs be respected and that this legislation be put to some kind of broad consultation.


Therefore, I think that it's reasonable to seek to amend and strike out this subsection that furthers that carve-out and could potentially, in the opinion of privacy experts in this province, put at risk the private information of patients, British Columbians.


Amendment negatived on division.


[1640]

D. Routley: I also have concerns with subsection (4) in section 19. This regards written project plans, and it appears to also give a wholesale exemption on the need to protect privacy if a public body has put together some kind of a written plan. Can the minister explain the rationale behind this exemption?


Hon. M. MacDiarmid: Section (4) of this amendment simply makes it clear that this is not retroactive. It applies prospectively to programs going forward, but it doesn't apply to programs that are already established.


D. Routley: Thank you, Minister. What government bodies currently have written project plans in place?


Hon. M. MacDiarmid: We don't have an inventory of existing projects, but I think the member opposite is helping us to illustrate why it's so important for to us have rules around data linking. We're the first jurisdiction in Canada to actually bring them forward, and there are some data-linking projects that already exist.


What subsection (4) does is make it really clear to whom the rules will apply, that they are prospective. I would say it does illustrate how important it is to actually have some rules. We don't currently have them. Once this amendment is passed, we will.


D. Routley: I'm not sure if the minister will be pleased — I think she would be — that her answers probably saved me moving another amendment, because I agree. I think it is important that we have those plans and controls in place. It is a very good goal for us to set.


The problem I have is with the unfinished work that is evident throughout this amendment act. Even in this
[ Page 8326 ]
case, we're talking about written project plans that will obviously have an important role to play in determining what projects should go forward, how they should be assessed and on what grounds they should be assessed. But I would then ask: have these written plans been approved by the commissioner?


Hon. M. MacDiarmid: In fact, with these rules in place, that is what will happen going forward — that plans will be approved by the Information and Privacy Commissioner.


D. Routley: So none of the current written plans have been approved by the commissioner?


Hon. M. MacDiarmid: I want to correct what I said for the record. It's that the Information and Privacy Commissioner will have reviewed, not that she will have approved. As I've said, that is what will happen, going forward. We don't have an inventory of current projects, and I can't answer the question of the member opposite about what has happened already.


[1645]

D. Routley: I'm not sure I understand whether or not the minister is telling me whether there are any written plans in place now. Have any of the written plans described under the amendment act been undertaken, filed or processed by her office?


Hon. M. MacDiarmid: Again, privacy impact assessments are part of the regular work that happens in the province quite routinely and frequently. What section (4) does is make it really clear who wouldn't be covered. So the amendment talks about a public body participating in a new or significantly revised data-linking initiative, that that's what would be covered by the amendment. The section (4) talks about what would have needed already to be in place if someone wanted to say: "Well, we were already doing this data linking. It is not something new." 


What it wouldn't allow is if a public body came forward in a couple of years and said: "Oh well, we were already thinking about it, so these new amendments don't apply to us." They would have to be able to demonstrate that they had already clearly been underway with a written project plan, etc. And that's what that section is for.


D. Routley: I'm understanding, then, that the written project plans are a way of verifying that some project of a public body is exempt from the provisions of this amendment act because they can say: "Well, we're already engaged in this program, and therefore, it's not necessary to do a privacy impact assessment at the conceptual stage because we're well underway." Am I correct?


Hon. M. MacDiarmid: In fact, that's not correct. This is to make it very clear when this section is going to apply and that it's going to apply going forward. We know, or we believe, there's some data linking already that has happened, is happening, and there weren't any rules around it. Now we'll have rules, but it's to make it very clear that the rules apply going forward. So they're not going to be retroactively applied.


It does not mean that people didn't have to do…. Privacy impact assessments are standard routine. They happen in many different areas. They always have. These are some new rules around data linking, and very clearly, when we come to that section, sometime later — I'm sure before Christmas — the privacy impact assessments, that action, will be started early on in the process. The development of those things will happen early on in the process.


D. Routley: If that means that the existing programs are not subject to these rules, does that mean that the integrated case management programs are not subject to these rules? All of the rules in the amendment act, or simply this section?


[1650]

Hon. M. MacDiarmid: With respect to integrated case management, there have been multiple privacy assessments done. They've been reviewed by the Information and Privacy Commissioner, and she's stated that she's satisfied with them.


D. Routley: With the carve-outs for the health sector that we discussed earlier, the fact that the health sector data-linking initiatives wouldn't be subject to these rules, or many of these rules…. I just want to make it very clear for myself. Are the health sector and data-linking initiatives exempt from privacy impact assessments at this point? Are they exempt from this type of written proposal?


Hon. M. MacDiarmid: The data linking done in the health sector would not be exempt from privacy impact assessments. Just to make this really clear, the regulations prescribed for this purpose do not apply to a data-linking initiative that occurs solely within the health sector, but if the Ministry of Health or a health care body is participating in a data-linking initiative that extends beyond the health sector and includes other ministries or agencies, then the regulations will apply. I'm not sure if the member was aware of that, but I thought I should clarify that.


D. Routley: Since it's not explicitly laid out in the amendment act, just for one more assurance. The minister is saying that health sector data-linking initiatives will be subject to the same privacy impact assessment
[ Page 8327 ]
requirements and other requirements of privacy protection and subject to the OIPC's review.


Hon. M. MacDiarmid: The Ministry of Health requirements with respect to doing privacy impact assessments and to being respectful of privacy and to abiding by the whole act — none of those have changed at all.


Section 19 approved on division.


On section 20.


D. Routley: This section, 20 — section 42 of the FOIPPA, the general powers of the commissioner — expands the commissioner's power to conduct investigations and audits to ensure compliance with regulations, formerly just the act.


[1655]

Instead of creating a chief privacy officer position, as was recommended by the special committee — and numerous previous Privacy Commissioners, too, including the current one — the government has chosen to give more responsibility to the commissioner's office rather than creating a chief privacy officer. Why was this the choice?


Hon. M. MacDiarmid: This particular amendment empowers the commissioner to conduct investigations and audits to ensure compliance with the provision of regulations as well as any provisions of the act itself. Many would argue that the commissioner already has the power with respect to regulations. It just wasn't clear, so this amendment clarifies that.


With respect to the position of the current Information and Privacy Commissioner, the member opposite has stated support for a chief privacy officer. I'm not aware that that's true. The member opposite may want to clarify that, but I'm not aware that in fact that is the case.


D. Routley: Well, in speaking to the commissioner, she's indicated her support for that, and the office itself has made that recommendation. It continues to be a recommendation of the office.


I think it just begs the question of why the government chose to increase the duties to the OIPC rather than to create a privacy commissioner, since the government has decided to expand the duties and responsibilities of the Office of the Information and Privacy Commissioner in several different ways in this amendment act through the role of working with the government to create the rules and regulations of the bill, more clearly defined powers and ability to oversee the development of consent provisions within this amendment act, as well as the privacy assessment — the designing of these provisions.


Since all of those additional duties fall now on the Office of the Information and Privacy Commissioner — and I would argue that they have been increased — what budget increase to the office is the minister recommending as a result of these increased duties?


Hon. M. MacDiarmid: As I have said previously, should the commissioner believe that a budget increase or decrease is required, she can go and make that presentation to the Select Standing Committee on Finance. They would make recommendations.


D. Routley: We are debating an amendment act that seeks to…. The minister seeks to support these amendments by referring to the role of the Information and Privacy Commissioner being a backstop. As long as the Information and Privacy Commissioner is involved with the development of these amendments and these rules, everything will be okay.


It really begs that obvious question of how the Office of the Information and Privacy Commissioner will be supported in doing that work. It's a vulnerability to rely on the Select Standing Committee on Finance and Government Services to recognize the importance the minister has placed on that role and support it. It seems an obvious vulnerability to what's proposed in the amendment act.


[1700]

Will the minister herself be recommending an increase to the office's budget?


Hon. M. MacDiarmid: There were extensive consultations on these amendments with the Information and Privacy Commissioner. In the cases where there is increased responsibility, it was part of striving for that balance between freedom of information and the protection of privacy.


These were developed in consultation with her. They were, in many cases, her suggestions or recommendations, and we certainly appreciated having the ability to consult with her to provide amendments that we believe will protect privacy, strengthen and improve the act and make us better able to serve British Columbians. The member is aware of the route that the commissioner can take should she believe that she requires increased resources.


D. Routley: Thank you, Minister. We are privileged to have the Office of the Information and Privacy Commissioner and the fine person who occupies that office. It will greatly assist the government, in developing these plans, that her role will be, obviously, a very positive and constructive role.


Having said that, it is a huge obligation for the office to do that work to the level that, I'm sure, the commissioner would want to be able to do that work. In discussing it
[ Page 8328 ]
with the commissioner, she also told me that more and more, this work becomes complex and technical and therefore, more and more, requires outside consultation with experts in all of these fields. Therefore, more and more, it becomes an expensive proposition to add any new duty to the office.


Given those comments, given that obvious reality…. In fact, that new context of technological complexity is what this act is supposed to be responding to, given that it's obvious to me that the office will have much greater requirements and will require a much greater budget in order to achieve what the minister has indicated needs to be done.


Given that, I find it alarming that the government hasn't anticipated that and hasn't taken every step to ensure that there could be no threat to the success of these programs in protecting privacy, by ensuring that the OIPC has some kind of guarantee that the additional work will be met with additional resources.


Has the minister made recommendations to her own government, and is she prepared to recommend, to the Select Standing Committee on Finance and Government Services, increases to the OIPC as necessary to fulfil these tasks?


Hon. M. MacDiarmid: Mindful of the member opposite's previous remarks about the impending Christmas celebrations, I certainly eagerly await further questions that are pertaining to the amendments that we're proposing.


D. Routley: Yeah, I think that the question I just asked pertains directly to the amendments that we're discussing. We're discussing amendments to privacy protection, one of the most essential personal freedoms of a British Columbian, and the changes implicate the security of that freedom.


[1705]

When questions are asked of the minister, the minister has frequently throughout this debate referred to and made assurances that the Office of the Information and Privacy Commissioner would be able to assure us that our privacy is well protected through this role.


These roles are increased roles. In order for us to fully trust that the government has prudently and carefully considered these amendments and that these amendments are workable, then we must, obviously, have a position on the budget of the OIPC. So I think it's an entirely relevant question to the amendments we're discussing. Will the minister be recommending an increase to the budget of the office?


Hon. M. MacDiarmid: Madam Chair, I will accept a ruling from yourself on this.


I believe we're here to debate these amendments. This is not a budget debate. My understanding is we're here to debate and discuss these amendments, to clarify, where necessary, for any members of the Legislative Assembly, and I'm pleased to do that. I've got experts with me in order to do that, and I welcome any questions specific to this amendment package. 


The Chair: Member, we are going through section by section. If you could keep your remarks to section 20, it would be appreciated — and your questions, please. 


D. Routley: Section 20 appears to deal with…. I could be corrected if I'm wrong. It amends section 42, "General powers of commissioner," so discussing general powers of commissioner would obviously lead to questions about how the commissioner is expected to fulfil her duties, especially as her general powers are amended under this act. So I would ask: has the commissioner indicated that she will need an increased budget to deal with what seems to be an enormous increase in her responsibilities? 


Hon. M. MacDiarmid: The amendments in section 20 are really of a housekeeping nature. For example, the first one that we talked about adds the word "regulations" to 42.1(a). So it amends that section by adding "regulations." It is generally accepted that the commissioner already has this power, that this is not adding new responsibilities. All of the amendments in section 20 are of that nature, so not adding a tremendous workload, in section 20, for the commissioner. 


D. Routley: The general powers of the commissioner now are increased in terms of protecting privacy.


The third recommendation of the select standing committee reviewing the Freedom of Information and Protection of Privacy Act was that there be a chief privacy officer created, an office of chief privacy officer, and this amended section seeks to increase the duties or more clearly clarify the duties of the OIPC around privacy protection.


Why did the government, the minister, not choose to create an office of chief privacy officer rather than make this amendment? 


Hon. M. MacDiarmid: Again, my understanding is that we are here to talk about the amendments that are in the package, not to discuss other things that may have been recommended by other bodies. We're here to discuss these amendments, and particular to section 20, these are generally of a housekeeping nature, not adding a lot of new responsibilities for the commissioner. I am happy to answer any specific questions the member might have. 


The Chair: I'll ask all members to remain relevant to the sections that are under discussion.


[1710]
[ Page 8329 ]

D. Routley: Section 20 is about the powers of the office of the commissioner. It seems that a lot of the supporting arguments for this amendment act from the government in second reading and throughout the sections of third reading have been to refer to the recommendations of the special committee which reviewed the act.


The No. 3 recommendation of the committee was to create that new office. Given the general powers of the commissioner are described here and despite the claim that these are just housekeeping changes, it seems to me that there is an increase in the obligations and the responsibilities of the OIPC when it comes to privacy protection. Why is this amendment chosen over the recommendation of the special committee?


Hon. M. MacDiarmid: Just so I can make this really clear for the member opposite, when he asks me about increased resources for the Information and Privacy Commissioner, my answer will remain the same throughout, as many times as he asks me.


It will be necessary, if the commissioner believes she requires new resources, that she go to the Select Standing Committee on Finance. She's very clear that that's how it works. This is not a budget debate, and I will give that same answer as many times as I'm required to.


With respect to why we haven't included other recommendations, my understanding is that is not what we're here to do today. I will answer specific questions about the amendments for as long as I'm required to do so, and I'm happy to do that.


Section 20 approved on division.


On section 21.


D. Routley: Section 21 amends section 59(2) of the Freedom of Information and Protection of Privacy Act, the duty to comply with orders. This adds timelines for stays on judicial reviews. It's consistent with the special committee's recommendation No. 32 — if I'm permitted to refer to the special committee's recommendations to describe this amendment. This would inhibit the abuse of the judicial review process. That was the intent of the recommendation from the committee. Am I correct in that reading of this section of the amendment?


Hon. M. MacDiarmid: Yes, that is correct.


Section 21 approved on division.


On section 22.


D. Routley: This section amends section 62(1), I believe. It is the right to ask for review. If I might be permitted to refer also to the next section, 23, which amends how to ask for a review, I think I basically have a simple question. Is this simply housekeeping, and is there any change in practice as a result of these two amendments?


Hon. M. MacDiarmid: The member is correct. The amendment doesn't alter the substance of the provision. It just provides some clarity.


Sections 22 and 23 approved on division.


On section 24.


D. Routley: Section 24 amends section 66(3) of the Freedom of Information and Protection of Privacy Act, "Delegation by the head of a public body," and it repeals the subsection that excluded the application of the provision to local public bodies. It appears to implement recommendation No. 33 from the special committee. I'd like to know whether I'm reading that correctly.


[1715]

Hon. M. MacDiarmid: Yes, that's correct. 


The Chair: I want to remind the House that there was an agreement made that the sections would be passed on division, but a member should call for that all the same. Thank you very much.


Section 24 approved on division.


On section 25.


D. Routley: Section 25, amending section 69, "General information respecting use of personal information." This appears to be partially an adoption of the special committee recommendation No. 25, which was to add a requirement in the act that "privacy impact assessments must be completed at the conceptual, design and implementation phases of an electronic record project. This requirement should apply to health authorities as well as government ministries."


I'd like to ask the minister whether or not this assessment achieves that recommendation. Does this apply to health authorities as well as other public bodies, government ministries?


Hon. M. MacDiarmid: Yes, to the member opposite. This does partially address the special committee recommendation No. 25, and it does apply to health authorities.


D. Routley: So I am to understand that this amendment does not carve out health sector bodies from these provisions.


Hon. M. MacDiarmid: Yes, that's correct. Health is included in this for this amendment.

[ Page 8330 ]

D. Routley: It adds the phrase "by a public body" to the definition of "privacy impact assessment." This seems to clarify that the assessment is conducted by a public body. So the privacy impact assessment would be conducted by the public body itself?


Hon. M. MacDiarmid: Yes, that's correct.


D. Routley: It also appears to require the head of a ministry or public body to conduct privacy impact assessments "in accordance with the directions of the minister responsible for this Act." So the direction and form of the privacy impact assessments will be determined by the Citizens' Services Ministry?


Hon. M. MacDiarmid: Those directions are, in fact, already in place, and they're published.


D. Routley: Being already in place and published, the privacy impact assessments around the integrated case management program…. Were they conducted after the implementation of the program — or completion, at least in large part, of ICM? Is that correct, given the existing guidelines?


[1720]

Hon. M. MacDiarmid: Privacy impact assessments have been being done for some time. They've been part of the act. What is changing is that there is now reference to timing, as to when they need to be undertaken, and also the expansion to include public bodies. So those are the changes with the amendments before you.


D. Routley: This amendment requires the head of a ministry or a public body to submit a privacy impact assessment to the minister during the development of a proposed enactment, system, project, program or activity. So in the case of integrated case management, each privacy impact assessment was done after the stage it was reviewing was completed — the barn door being locked after the horses had fled, in a sense, if there were any problems. 


Does the minister feel that these amendments will ensure that privacy impact assessments are done at the beginning of each stage, concept, the design and the implementation of such projects?


Hon. M. MacDiarmid: With respect to the program the member is speaking about, he's actually incorrect. The privacy impact assessments have been being done at each stage. They've been being done at the appropriate time. But what the amendments do is state that the privacy impact assessments…. "The head of a ministry, with respect to a proposed enactment, system, project, program or activity must submit, during the development of the proposed enactment, system, project, program or activity, the privacy impact assessment to the minister responsible…." That is what is now laid out in the amendments.


D. Routley: I would first like to correct myself. When I said that the recommendation to create a chief privacy officer was No. 3 from the special committee, it was actually the No. 3 recommendation from the OIPC in reviewing the Wainwright privacy breach. From the special committee it was the 23rd recommendation. So just to correct my own language.


[1725]

This section 25, amending section 69, general information requests respecting use of personal information, requires the head of a body to notify the commissioner of a data-linking initiative or a common or integrated program at an early stage of developing the initiative or a program. What is meant by "an early stage"? Since the integrated case management program…. The privacy impact assessments were done after the stages were completed which the assessments were reviewing. When this refers to an "early stage," what exactly is meant by that?


Hon. M. MacDiarmid: This is one of the amendments that…. Extensive consultation with the Information and Privacy Commissioner was undertaken, and the language was developed in consultation with her. So "early" means early — early in the development of the program, as opposed to once it's been fully developed or late in the development of it.


I can't provide further clarity than that, but the intention — and it's very clearly stated here — is that it needs to be done at an early stage of developing whatever initiative, program or activity is being contemplated.


D. Routley: The language is that the commissioner must be notified. I understand that the minister said that early in the initiative is…. She's indicating that the commissioner is satisfied with the phrase "early" in the initiative, but Bill 3 is worded so that the commissioner is only notified of a new data-linking initiative. Does notification allow for input or advice from the commissioner? Does notification require the commissioner's approval of the initiative in the first place?


Hon. M. MacDiarmid: The Information and Privacy Commissioner has always had certain powers — the power to audit, to investigate, whenever she wants to, and to make recommendations. So none of that changed.


What changes here is that she has to be notified early on so that she's actually aware and then can be involved in the way that she believes she should. So her powers don't change at all. Her powers of being able to audit, investigate, etc., are the same as they always have been. But what's happening with this change is that there's currently no requirement for a public body to inform
[ Page 8331 ]
the commissioner of a planned data-linking initiative or a common or integrated program or activity. Now there will be, early on.


D. Routley: Of course, the commissioner could always investigate, at the whim of the office or at their choice, any program of government — or any public body, for that matter. This notification to the commissioner of the plan to implement a new data-linking program will somehow make the commissioner aware that the initiative is underway.


[1730]

I think what I'm trying to communicate and trying to achieve here is a commitment by the government that that will happen early on, because as we heard, whenever there's a problem with a data-linking or a data-sharing initiative, the problem gets fixed by the spending of millions upon millions of additional taxpayers' dollars.


If there is a problem, it's really difficult to engineer the fix. So it's really important, as we heard in the committee, that the privacy impact assessments be done before, not at the end of, these stages. I guess I'm seeking an assurance that that will indeed occur.


If the commissioner is expected to respond to a notification of change, that notification could happen well into any stage of a data-linking program. We only have to look to Vancouver Coastal Health Authority and the PARIS system, where basically the system had to be abandoned, at huge cost to taxpayers, because of inadequate privacy protections.


If written notice had happened at the very beginning and the commissioner had been involved and had input in the very beginning, the taxpayers of the province could have been saved millions of dollars. So I'm seeking an assurance from the minister that privacy impact assessments and notification mean that we can avoid those kinds of outcomes.


[L. Reid in the chair.]


Hon. M. MacDiarmid: This particular section, this amendment, states: "The head of a public body must notify the commissioner of a data-linking initiative or…a common or integrated program or activity at an early stage of developing the initiative, program or activity."


I would suggest to the member opposite that he's just given a compelling reason why all of us should support this package of amendments, because that's exactly what is going to happen. Something that hasn't been present in the act before will now be present. So I would really encourage the member to make sure to vote yea when it comes time to pass this package of amendments.


D. Routley: This section also exempts the health care bodies from the requirements of the section. Am I correct?


Hon. M. MacDiarmid: The amendment that the member opposite is speaking about is consequential to the section that we've already passed with respect to data linking.


D. Routley: This section also requires the minister responsible for the act — the Minister of Citizens' Services, who is participating in the debate — in consultation with the commissioner, to establish an information-sharing code of practice that makes recommendations respecting how personal information is to be collected, used and disclosed. How binding will this code of practice be?


[1735]

Hon. M. MacDiarmid: This information-sharing code of practice will be a guidance document. The idea of this is to increase awareness and understanding of privacy issues for public bodies who are engaged in or planning initiatives with a significant information-sharing component.


Increased awareness and understanding should increase compliance with the privacy provisions of the act and reduce privacy incidence. The idea of this code is that it would be a guidance document.


D. Routley: Has there been work already undertaken to develop the information-sharing code of practice?


Hon. M. MacDiarmid: The work has not begun on this. This is an amendment with a role for the Information and Privacy Commissioner, and it's one of several amendments requested by the commissioner to balance the increased information-sharing authorities included in the amendments that are in this bill.


D. Routley: Will the provisions or elements of the information-sharing code of practice be enforceable?


Hon. M. MacDiarmid: The information-sharing code of practice would be a guidance document. The commissioner, though, would use it as she went forward to do any audits that she might do. It would be her expectation that it would be complied with, but this will not have the force of law.


D. Routley: If the Information and Privacy Commissioner is expecting to move forward with investigations or audits and to use the information-sharing code of practice as a reference point for how public servants should conduct themselves, why would there not be clear, enforceable rules, rather than simply guidelines, to help that process, to help people understand and then to provide a lever point for the commissioner to make decisions?

[ Page 8332 ]

Hon. M. MacDiarmid: The act as it exists now and as it will be amended already has clear rules and laws around how information can be collected and what can be done with that information. None of that will change.


What this code will do is provide guidance, as I've said. It will be like a best-practices guideline that can be used by people who are under the jurisdiction of the act.


D. Routley: Will the information-sharing code of practice be a public document?


Hon. M. MacDiarmid: Yes, it will.


D. Routley: It seems that this section, once again, carves out health care bodies, in a sense that they will not be dealt with like other public bodies, exempting health care information from even the planned privacy provisions.


[1740]

So as I did with the previous sections, I'd like to move an amendment to remove that exemption. I have an amendment here that would achieve this.


[Section 25, by deleting the text as shown as struck out and adding the text shown as underlined:


69 (5.6) If all the participants in a data-linking initiative are either a health care body, the ministry of the minister responsible for the administration of the Ministry of Health Act or a health-related organization as prescribed, then


(a) subsections (5.3), (5.4) and (5.5) do not apply with respect to a participant that is a health care body or a health-related organization as prescribed, and


(b) subsections (5), (5.1) and (5.5) do not apply with respect to a participant that is the ministry of the minister responsible for the administration of the Ministry of Health Act.


(5.7) (5.6) The head of a ministry must prepare an information-sharing agreement in accordance with the directions of the minister responsible for this Act.]


On the amendment.


Hon. M. MacDiarmid: I would respectfully speak against this amendment. The amendment, as it stands in the package, is purely consequential to the previous amendment that we have already passed, so it is necessary to have this consequential amendment in the act.


D. Routley: Well, speaking to support my amendment, I would suggest that the reasons given for exempting and treating the health care sector differently, for carving out the health care sector from any of the provisions under the privacy protection act, are ill-considered.


If the minister is convinced that patient health might be negatively impacted by some of these amendments if they were brought into effect without the development of special rules or special regulations, those considerations should have been made before this act was brought forward, and it is unfortunate.


The commissioner has expressed her concern over the continued carve-outs of the health care sector from privacy provisions under the act, so I would encourage the minister to pull back and support the amendment. In fact, the health care sector, as the committee that reviewed the act recommended, ought to be considered exactly as other public bodies are considered when it comes to the protection of personal, private information.


Amendment negatived on division.


D. Routley: I also have concerns around the language, as I've expressed, describing the new information-sharing code of practice. The current language in the bill states that this code will only make recommendations. The answers from the minister have spoken of it as a simple guideline document about how information is to be collected and disclosed.


With this amendment, I would move that the section read instead that the code will set out mandatory requirements. I have an amendment here that would do that.


[Section 25, by deleting the text as shown as struck out and adding the text shown as underlined:


69 (9) The minister responsible for this Act, in consultation with the commissioner, must establish an information-sharing code of practice that makes recommendations sets out mandatory requirements respecting how personal information is to be collected, used and disclosed under this Act.]


On the amendment.


Hon. M. MacDiarmid: Respectfully, I would speak against this amendment. The mandatory requirements are already in the legislation. They're in the act, and they will be in the act as amended. The idea of this code is to have a best-practices or guidance document, and as such, I would speak against the amendment that the member opposite has proposed.


[1745]

D. Routley: Speaking in support of the amendment I've made, so often what we've heard from the investigations into privacy breaches is that codes of practice or understandings of what would be a professional standard of handling personal information, respecting the Freedom of Information and Protection of Privacy Act, haven't been met.


This has had drastic and damaging impacts on the lives of some of the most vulnerable British Columbians, particularly if we refer back to the Wainwright scandal, where 26 public servants were aware for as long as seven months that a breach had occurred without understanding the seriousness of the breach and without communicating up the chain of responsibility exactly what had happened. Then, even once that breach was discovered — through notification from the RCMP, in
[ Page 8333 ]
fact — the notifications to those affected were sent to the wrong addresses.


This speaks to an obvious need to increase the level of awareness. I'm sure the minister would refer to the guideline as being able to achieve that, but I think more is needed. As the acting commissioner, Paul Fraser, pointed out in his submission to the committee reviewing the act, I think that we need rules. Simply basing things on principles and guidelines is not enough when it comes to this essential matter of the protection of privacy. We must have clear and prescriptive rules.


He talked about a judge speaking to an archbishop, saying: "When you tell someone that if they don't do things properly and rightly, they'll go to hell, they may believe you. When I say, 'You don't do things properly or go to jail, they know it's true.'" That's because they're responding to rules rather than simple principles and guidelines.


So I think it's important, when we are considering this, to move forward along clearly prescriptive lines that will provide the adequate and firm assurance that in order for things to be done properly, they must be done following this set process. This amendment would achieve that, simply by ensuring that prescriptive rules are established and that enforceable standards are also implemented.


Amendment negatived on division.


Section 25 approved on division.


On section 26.


D. Routley: This section amends section 69.2 and establishes the provincial identity information services provider. It allows the minister to designate a public body as a provincial identity information services provider.


This designation…. We've discussed this in previous sections, but I would like to clarify. Does this section permit the minister to delegate that responsibility to other public bodies?


Hon. M. MacDiarmid: Yes.


D. Routley: What is the restriction on that power of delegation? What type of public body could be delegated the responsibility of being a provincial identity information services provider?


[1750]

Hon. M. MacDiarmid: The way it reads is that the minister responsible for the act "may designate a public body as a provincial identity information services provider." The member opposite has canvassed this before, and we've talked about what the definition of a public body is. It's very clear what that is.


The member opposite talked about, potentially, a library being the…. It is true that if you strictly interpret this, that is possible. The intention would be that the minister would only give this power to a public body that was actually capable of managing the extensive direction that comes in this part of the amendments. But if you strictly interpret it, then the definition for "public body" would be the same that it would be in any other place in the act.


D. Routley: It is an entirely new section and a new government entity, this provincial identity information services provider. Can the minister explain in plain language what the government hopes to achieve? What are they doing in creating this new provincial identity information services provider?


Hon. M. MacDiarmid: The aim of the ability to have a provincial identity information services provider is to set up a trusted method of identifying citizens so that they can interact with government on line in a secure manner.


A provincial identity management system will allow people to access government services on line with the same level of security they expect when they are accessing in-person services. One example of this might be the new B.C. services card that's contemplated, which would have the CareCard and driver's licence in one piece of identification.


D. Routley: This information. This potential card. Earlier in debate on the legislation, including the minister's submission in second reading, we heard that this bill contemplates the establishment of these new cards, but it's not designed specifically for them. I believe I'm correct in saying that. Could you confirm that, Minister?


Hon. M. MacDiarmid: The card is one example of what would be possible with this amendment.


D. Routley: So this amendment provides the power of a provincial identity information services provider to provide the following services — and I'll read them into the record:


"(a) identifying an individual; (b) verifying the identity of an individual; (c) updating personal identity information about an individual; (d) issuing a physical or an electronic credential to an individual; (e) managing the information associated with a physical or an electronic credential; (f) any other service related to personal identity information that the minister responsible for this Act considers appropriate."


[1755]

The minister, then, through the delegating powers of her office and this amendment, can thereby delegate that range of personal information collection to any public body. I know a library may be an overextension of the possible, but it seems that very broad sets of information,
[ Page 8334 ]
then…. If we are to look at (f) — "any other service related to personal identity information that the minister responsible for this Act considers appropriate" — a very broad scope can be delegated to a very broad set of public bodies — correct?


Hon. M. MacDiarmid: The member opposite's interpretation, as I understand it, is not correct. If we look at the list of things that are included, the minister responsible for the act can designate a public body as a provincial identity information services provider. There can be one of those, and all of these functions would be encompassed by that. They can't be picked and chosen and sent various different places. That is actually not possible. So the member is not correct about that.


D. Routley: So we can't disintegrate the bodies and the responsibilities, but it still is the case that it would be up to the minister to select one provider of those services and that that one provider could come out of a very broad set of public bodies — even contractors to public bodies, if I understand this correctly — and that the information that might be collected could be broadly expanded if the minister responsible for the act considers that to be appropriate. Am I correct?


Hon. M. MacDiarmid: The provincial identity information services provider will still be under the jurisdiction of the act, which has very definite constraints around the collection, use and disclosure of personal information. None of those are going by the wayside. The act is still all going to be there. We are not removing the act, obviously.


Also, as I have mentioned previously in the House, the intention is that, as minister responsible for the act, in fact it will be the ministry that is going to be the provincial identity information services provider. That's the intention.


D. Routley: While it may be the intention — standing here today, debating with this minister and this critic — that the sole identity information services provider be the Ministry of Citizens' Services, there is nothing in this act, nothing in this amendment, that would prevent the minister or the government from delegating that authority to a different public body. If I am further correct, that also could mean a contracted service provider to a public body — in other words, a private corporation. Am I correct?


[1800]

Hon. M. MacDiarmid: The member opposite is not correct. The provincial identity information services provider cannot be a contracted service provider. Further, I'd like to say that this is one of the many sections that the Information and Privacy Commissioner was consulted upon, and she is supportive of this amendment.


D. Routley: The minister brings up, again, the word "commissioner." If we go back, if you'd allow me just for reference, to section 25, "...the commissioner for the commissioner's review..." it's clear that the commissioner in this case would be the head of a public body.


It's not clear to me. In some parts of the act "commissioner" refers to the head of a public body or to the Office of the Information and Privacy Commissioner. Am I correct that those two definitions of the same word exist in the act?


Hon. M. MacDiarmid: The previous amendment that the member refers to doesn't have any connection with the amendment we're talking about right now. Yes, the Information and Privacy Commissioner is the head of a public body.


D. Routley: Can the word "commissioner" in this act refer to the head of any public body?


Hon. M. MacDiarmid: As defined here in the act, "commissioner" means "…the commissioner appointed under section 37 (1)…." So when we refer to the "commissioner" in this act, we are talking about the Information and Privacy Commissioner.


D. Routley: Does the minister not feel that in section 26(2)(f) — which reads, "any other service related to personal identity information that the minister responsible for this Act considers appropriate" — the act, the amendment and the people would be better served by making that "in association or in consultation with the Office of the Information and Privacy Commissioner?"


Hon. M. MacDiarmid: I would not think that the commissioner should be included here. The commissioner needs to be arm's length, separate and independent from the minister and from the ministry.


D. Routley: Well, given that the minister has referred to the role of the Information and Privacy Commissioner so many times as support for so many of these amendments, that we are asked to trust the outcomes because the Information and Privacy Commissioner will be involved in the designing of various aspects of the rules and regulations and that we are assured the role of the Information and Privacy Commissioner will protect us from any potential harm that might come from various aspects of this legislation, it seems to me that it's — if you will forgive me — a weak justification to say that the officer should be at arm's length in this instance.


[1805]

When we're talking about the establishment of a personal identity information services provider that will handle so much personal information, store so much personal information, I feel that in fact the words "in
[ Page 8335 ]
consultation with the commissioner" should be added to subsection (f), and I have an amendment here that would achieve this.


[Section 26, by deleting the text as shown as struck out and adding the text shown as underlined:


Provincial identity information services provider


69.2 (2) A provincial identity information services provider, by exercising its powers respecting the collection, use and disclosure of information, may provide the following services:


(a) identifying an individual;


(b) verifying the identity of an individual;


(c) updating personal identity information about an individual;


(d) issuing a physical or an electronic credential to an individual;


(e) managing the information associated with a physical or an electronic credential;


(f) any other service related to personal identity information that the minister responsible for this Act, in consultation with the commissioner, considers appropriate.]


On the amendment.


Hon. M. MacDiarmid: I am, respectfully, not supportive of this amendment. This is a section — as many others, but this is one in particular — that the commissioner was consulted very extensively on. This is not something that she raised. She was supportive of the amendments in this area, and I'm not supportive of the amendment proposed by the member opposite.


D. Routley: The minister helps me make the case that the consultation with the commissioner should be a piece of this clause. Even in her assurance of why the amendment should stand, she refers to the consultation with the commissioner as justification. Well, the commissioner has been consulted, and the commissioner has expressed no misgivings, or has approved or what have you, of several sections, including this one.


Even in arguing an amendment that would allow or would provide a role for the commissioner to consult, with the expansion of information that could be collected under this amendment, the minister argues against that by citing the role of consultation with the commissioner.


It seems to make my case that in fact it would be entirely appropriate and desirable to include a consultation with the commissioner as to the appropriateness of any expansion of the information that could be collected by the provincial information services provider. I think the minister has made my case, and I hope she'll support the amendment on second thought.


Amendment negatived on division.


D. Routley: Section 26 also gives very broad latitude to changes to subsection 69.2(3) of the act. It seems a very broad power that "The minister responsible for this Act may give directions to a provincial identity information services provider or a public body…." What did the government contemplate in moving this amendment to the act in this fashion?


[1810]

Hon. M. MacDiarmid: The part of the amendment that the member opposite refers to is put in place to make sure that identity information services are provided in a privacy-enhancing and secure manner. That's the reason for all of those recommendations.


Again, this is an area where there was extensive consultation with the Information and Privacy Commissioner, and she was satisfied that these provisions got us there — to ensure that identity information services are done in a privacy-enhancing way with best practices in mind. That is the point of that section.


D. Routley: Well, it seems the description of what the point is can, in some cases, be reassuring and has been, in some cases. But what really matters to this discussion is exactly what the amendments will allow, not necessarily what is intended today or intended by this minister or intended by this government. Heaven help us if there were another government that were to interpret this differently, if it isn't adequately spelled out.


I think it's important, again, to be very clear about how these rules are meant to be interpreted, and the current wording of section 26 allows for a very broad interpretation of what those directions might be from the minister to a provincial identity information services provider or a public body. It is something that I think needs to be narrowed and something that I think could benefit from further consideration.


When the minister considers these words, "The minister responsible for this Act may give directions to a provincial identity information services provider or a public body," what limitations would there be on those directions?


Hon. M. MacDiarmid: It is very explicit as to what the limitations would be, and I'm happy to read it into the record. What it talks about is, "(a) the type and quantity of personal identity information required to identify, or verify the identity of, individuals seeking access to government services," and it goes on like that. They are all very specific and very direct about what the limitations would be, and that's exactly why this is here.


D. Routley: Well, in the spirit of the many arguments offered to me by the minister that have been supported by references to consultation with the commissioner, and in the spirit of what has been recommended throughout this amendment act — that the commissioner be consulted, that the commissioner have additional roles of input — then I think that I would like to move to add the words "in consultation with the commissioner." I have an amendment here that would achieve this.

[ Page 8336 ]

[Section 26, by adding the text shown as underlined:


Provincial identity information services provider


69.2 (3) The minister responsible for this Act, in consultation with the commissioner, may give directions to a provincial identity information services provider or a public body respecting]


On the amendment.


Hon. M. MacDiarmid: The Information and Privacy Commissioner is independent of government. She is not part of the ministry. Respectfully, I don't agree with this amendment because this would put the commissioner right in the act, right in working with the ministry.


[1815]

I could certainly see there being great problems if it then came around to auditing or other areas where the commissioner has jurisdiction. So I'm opposed to this amendment that's been proposed.


D. Routley: This type of debate is like a slow-speed cat and mouse in a sense because so often the minister has responded to questions by referring to the role of the commissioner. Throughout the amendment act the role of the commissioner is enhanced. The commissioner is called upon to provide input and consultation throughout this act, in several amendments. So I can see that the commissioner, the OIPC, is asked to work with government very directly in many different parts of this amendment act.


Again, the minister, I think, supports my amendment, in a sense, in her argument that in fact the Office of the Information and Privacy Commissioner could have a very constructive and positive role.


I hope the minister will reconsider on second thought that perhaps her own support for her own amendment act should lend her support to my amendment, as well, which seeks to also involve the Office of the Information and Privacy Commissioner consulting in very important aspects of how this bill will be operated and constructed in terms of rules and regulations.


Amendment negatived on division.


Section 26 approved on division.


On section 27.


D. Routley: Now, section 27 amends section 71 of the Freedom of Information and Protection of Privacy Act, records without request. It requires the head of a public body to establish categories of records in the custody of a public body for proactive disclosure. In other words, they would be available to the public without a request.


This is a discretionary provision under the current act, so the obvious first question would be: why is this amendment necessary when it is currently a discretionary power within the existing act?


Hon. M. MacDiarmid: This amendment and the one that we're going to come to after this one come from the special committee's recommendation No. 7, which has asked to add a new section at the beginning of part 2 of the act requiring public bodies, at least at the provincial government level, to adopt schemes for the routine proactive disclosure of electronic records.


[1820]

The other thing that the amendment we're talking about now does is it supports our open information and open data policy and initiatives by actually requiring public bodies to establish categories of records rather than leaving it to their discretion. That's the reason for this particular amendment.


D. Routley: It's clear the amendment makes some forms of proactive disclosure mandatory rather than discretionary. But what will determine which kinds of information public bodies should…? What will determine how public bodies decide what types of information should fall under this nondiscretionary mandatory disclosure?


Hon. M. MacDiarmid: The section that we're talking about now is talking about public bodies. So they will have discretion. It's the following section that talks about ministries, and I think that may be more what the member is wanting to know about.


D. Routley: I'm aware that it's speaking of public bodies, but what will determine what kind of information public bodies should release under this provision? What will direct them? Will it simply be left up to the discretion of the head of each public body?


Hon. M. MacDiarmid: What section 27 does is it makes it mandatory for a public body to establish categories of records that will be routinely available to the public and that it's mandatory rather than permissive. So it's required that they actually look at the kinds of records they have and make a determination about which of those will be proactively disclosed.


D. Routley: It seems that a reasonable goal of this exercise would be that there be some consistency from public body to public body about which categories of information should be routinely and proactively disclosed. Does the amendment act offer us any consistency as to what categories will be released?


[1825]

Hon. M. MacDiarmid: The kinds of public bodies that we're talking about are so diverse that it's difficult to
[ Page 8337 ]
see how you would be able to mandate something that would make consistent the disclosure, when we think about the kinds of bodies that are represented in those over 2,000 public bodies.


What I can say is that we're really breaking ground here in our endeavouring to be open with respect to government and what's available to the public. This is something that isn't happening in any other jurisdiction, and we feel very proud of that — that we are doing this, once these amendments are passed.


One of my colleagues is pointing at his watch, and I will say that, noting the hour, I move that the committee rise, report progress and ask leave to sit again.


Motion approved.


The committee rose at 6:26 p.m.


The House resumed; Mr. Speaker in the chair.


The Committee of the Whole, having reported progress, was granted leave to sit again.


Hon. T. Lake moved adjournment of the House.


Motion approved.


Mr. Speaker: This House stands adjourned until 10 a.m. tomorrow morning.


The House adjourned at 6:27 p.m.

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