Orders of the Day

Hon. M. Farnworth: I call committee stage on the Miscellaneous Statutes Act (No. 2), Attorney General and other ministries.

[2:30 p.m.]

At the same time, I would remind members that this being election day and the statutory requirement for employees is to have three clear hours to vote, the House will be adjourning at four o’clock so that employees may exercise their franchise.

Committee of the Whole House

BILL 35 — MISCELLANEOUS STATUTES
AMENDMENT ACT (No. 2), 2019

The House in Committee of the Whole (Section B) on Bill 35; R. Chouhan in the chair.

The committee met at 2:33 p.m.

On section 1.

M. Lee: I just wanted to ask the Attorney about the current status of the number of family maintenance–type orders that are going through arbitration, as opposed to through the courts.

Hon. D. Eby: We don’t have the number of all of the arbitration orders made under family law, but we’re aware of two awards that are affected by this amendment that would specifically list family law arbitration awards as being enforceable under the Family Maintenance Enforcement Act.

[2:35 p.m.]

M. Lee: Thank you for the response. Is there an expectation by the government that there be a greater use of this forum in terms of obtaining family maintenance awards?

Hon. D. Eby: The efforts of government have been focused on trying to encourage families into non-court processes to resolve their disputes, including arbitration. Our hope is that more and more families that need to resolve family disputes are using arbitration to do that and, therefore, that more and more families would then, if necessary — hopefully not but if necessary — turn to the Family Maintenance Enforcement Act and the folks who work with the director of maintenance enforcement to enforce those awards, if necessary.

M. Lee: Just while we’re on this in terms of the actual process of enforcement. I know that through the ministry’s office, when they arranged a briefing for me about a year ago and I met with the director about this…. What level of tracking are we finding in this particular area of family maintenance, in terms of finding potential debtors, and what sharing of information is the ministry seeing in this regard?

Hon. D. Eby: The process of an arbitration is a private one. Families can engage an arbitrator privately and come to an agreement between themselves about child custody, division of assets, and so on. As a result, because it’s private, it’s not like a court process, where there’s tracking through the registry of a number of certain kinds of orders or a number of certain kinds of appearances on a matter.

We don’t actually know how many are out there in terms of families taking advantage of this. It’s difficult to track. We do have our pilot project in Victoria, where we’re encouraging families to work through mediation and come to agreements outside of court. We’re tracking that very carefully through the pilot program. But as for the number of family law arbitrations, we don’t have a number for that because it is a private agreement between family members as they resolve their differences outside of court, in a private process.

Section 1 approved.

On section 2.

M. Lee: In the context of the current and ongoing dispute in respect of compensation for members of the judiciary, what’s the government’s view in terms of bringing forward these particular amendments, understanding and appreciating that they do stem from the Judicial Compensation Commission of 2016? I’m wondering if there’s any particular concern regarding the timing and the sequence of the adoption of these particular amendments at this time.

Hon. D. Eby: This is intended to be a non-controversial amendment, in relation to judicial compensation. In October 2017, the Legislative Assembly adopted the 2016 judicial compensation report and, as a result, adopted this language.

In this particular section, or the section related to the pension wording here, the pension recommendations were adopted without amendment by the Legislative Assembly in October 2017. So that stands as essentially creating the change. This is to bring the language consistent with what the Legislature has already done.

It’s our hope, certainly, that this is not controversial, because this is what the committee recommended. This is what was adopted by the Legislature and so on.

M. Lee: Thank you for that response. I just ask, then, in terms of the timing of this…. That resolution of the House, which was adopted back in October of 2017, was close to two years ago. Why is it at this time this particular amendment has been brought forward and not at an earlier juncture than this?

[2:40 p.m.]

Hon. D. Eby: As I outlined in the first response, this is not the change itself. The change itself was made when the House adopted the JCC report in October 2017. This is housekeeping to ensure that the language in the act reflects the intention of the committee in the Legislature, when it accepted those recommendations.

The public service saves up these housekeeping-type amendments, and they come forward in miscellaneous statutes amendment bills. The change itself here is not a change to any substantive rights. Those have already been made. This is just change to the language to ensure that it reflects what the practice is now.

M. Lee: My only comment is that there certainly have been miscellaneous statutes amendment bills that were brought forward in the House in the last two-year period. I know we’ve been up on our feet discussing many of those bills. So again, I think there was an earlier opportunity to bring this forward. But I understand the response from the Attorney General.

Were there any particular elements of complexity here that needed to be considered in implementing this, by the way of the amendment in the act itself?

Hon. D. Eby: I’m not sure that I can provide a better answer than I have. It’s just a matter of staffing and priorities and housekeeping around the bill.

Sections 2 to 4 inclusive approved.

On section 5.

M. Lee: Could I ask the Attorney General to identify the location of the section that’s being amended here or repealed — that is, subsection 31(7)(b) of the Professional Governance Act?

Hon. D. Eby: I wonder if the member could just rephrase this question, so we can ensure we get the right answer for him.

M. Lee: Just to be more specific, when I look at the act, above section 32 and below subsection 31(6), you should find sub 31(7), but I can’t find it.

Hon. D. Eby: I don’t have an easy answer to this one. The copy that we’re looking at comes from the leg.bc.ca website, with up-to-date B.C. statutes on it. The Professional Governance Act, 2018, which was then Bill 49 as passed, has a subsection (7) in it, with a subsection (a) and (b).

Then this change that’s proposed strikes out (b) and replaces it with: “…in respect of any exceptions to the application of this section.” The previous section was: “…in respect of any exceptions in respect of the application of this section.”

It’s a housekeeping amendment that broadens the specific regulation-making authority described in sub 31(7)(a) to any exceptions to the application of section 37.

If the member wants, we can stand this down and get a copy of the page over to him, if that’s easiest. I’m in his hands about the importance of seeing subsection (7) in order to be able to ask questions.

M. Lee: That would be helpful. Thank you.

Hon. D. Eby: Mr. Chair, can we stand down section 5 until the member gets a copy of subsection 31(7)(b), which is the section being amended here?

The Chair: Okay, we’ll proceed with section 6. Section 5 is stood down.

Section 5 stood down.

On section 6.

[2:45 p.m.]

M. Lee: In respect of specifically adding the paragraph to subsection 118(2)(k.1) in terms of providing the ability, under the transitional provisions for prescribing rates of increase of fees, this presumably is broadening the regulatory authority to do so. Can I ask the Attorney General to provide some explanation for the reason and the need for this provision?

Hon. D. Eby: I just want to introduce staff who are with me. To my right is Neil Reimer, director of policy and legislation. To my left is Paul Craven, who is the superintendent, office of professional governance. To his left is Kate Phillips, legal counsel. I thank staff for their assistance here today.

The change in subsection 118(2)(f)(vi) corrects a cross-reference. The member refers to sub 118(2)(k.1). There is a period of time between when the act was passed and when it comes into full force. It’s kind of an interregnum, essentially. To prepare for the act to come into force, some of the professional associations require the resources in order to be able to implement the full act as intended. The concern was that there wasn’t clear regulation authority for them to be able to charge the fees to their members that’d allow them to implement the act as government would hope that they would.

This creates the ability for them to set a fee during this interim period before the act comes into full force, so that they can be prepared for that. Also, as a safeguard, there is the ability to set a cap on that annual increase, to ensure that the fees are fair for the membership, if any concerns are raised. This is exclusively for that period between the passage of the bill and the full force of the bill, so that the professional associations can be ready for full implementation once that happens.

M. Lee: The Attorney General just mentioned that there would be a setting of a cap. Who determines those caps?

Hon. D. Eby: It’s the Lieutenant-Governor-in-Council, which is a fancy way of saying “cabinet.” That is done on the basis of feedback and consultation with the superintendent of the office of professional governance — here to my left, Paul Craven — who would advise cabinet on fees and regulations related to fees.

M. Lee: In looking at this interim period, is it that the process, when there’s a new superintendent, would be to review the fee structure across these professional associations? To what degree is there some level of consistency? What are the particular considerations around the setting of fees for these associations?

[2:50 p.m.]

Hon. D. Eby: There’s a very significant range of organizations that are captured by this new legislation. They range from the Engineers and Geoscientists, who have about 30,000 members, to much smaller groups, like the College of Applied Biology. The capacity of these groups varies as well. The College of Applied Biology, for example, hasn’t had fees in place, the capacity in place, that would enable them to be able to implement this act. Groups like the engineers and geoscientists have much greater capacity.

The intention here in the framework of the regulation is that the superintendent can meet with and consult with these organizations and prepare submissions to cabinet on recommendations related to interim fees. Then cabinet can consider that and pass regulations as cabinet sees appropriate, based on that input from the superintendent’s office, based on the feedback of membership and the regulatory body in question. There’s no current large-scale review of these kind of things, given the wide disparity in the capacity of each of the organizations.

M. Lee: I appreciate that there is a process that the superintendent is embarking on to do that. But since the end of May, when the House last sat and we had the opportunity to talk to the Attorney General about the implementation going forward….

If I could ask: just in the context of this level of consultation going on with the associations, with the fee structure and the capacity-building there necessary for some of the smaller associations, is there any particular update as to the overall timing as to the next steps with this new governance act and what we can expect with these associations and the degree to which they’re having to go through these processes to determine fee structures and governance processes?

Hon. D. Eby: The superintendent is currently meeting on a monthly basis with all of the associations together as a group as well as individually. The goal is in force in 2020. The superintendent, certainly with my full support, has offered, if the member is particularly keen on this, a full briefing on anticipated timelines and implementation of the act so that he’s up to speed on what the plan is.

Section 6 approved.

On section 7.

M. Lee: Let me just say that I appreciate the offer of a full briefing with the new superintendent on the progress against this act and certainly would like to follow up with the Attorney General’s office to arrange for that briefing. So thank you for that.

In terms of section 7, when I look at the amendments here to add section 124.1, in sub (2) of this addition…. Just trying to understand the words at the end of that section, which provides for the ability to set fees “despite any requirement for ratification or other approval of bylaws or resolutions in respect of fees under the affected Act.”

In terms of how this transition is working, to what degree do these associations continue to have the ability, with their members, to ensure that for good governance purposes, they’re still getting the right level of approval by the members of a particular association for a new fee that might be prescribed or imposed on them?

[2:55 p.m.]

Hon. D. Eby: This amendment is in relation to that interim period that I was talking about earlier as well. The new approach of the act is to provide consistency around fees so that all the professional associations follow the same process in relation to fees for their membership — adjusting fees, whether ratification is required and whether consultation takes place, and so on.

This amendment brings those same principles, while it addresses and ensures that this can be addressed in the interim period that I was talking about earlier between the introduction of the law and full implementation. For organizations that, for whatever reason, feel that they don’t have capacity and that they need capacity and that their existing structure doesn’t allow them to get that capacity to implement this, we won’t allow that to be a reason for not bringing in these provisions that protect the public and ensure consistency.

All professional associations that are captured here must participate in the act. This gives the authority to collect the fees necessary to implement the act properly in that interim period.

M. Lee: I just would like to ask a little further in terms of that response. In terms of these professional associations that have been operating in this province in a good governance context, I appreciate the additional layer that this government chooses to impose on these associations. But isn’t it the case that members of these individual associations ought to have the opportunity and the ability to approve of the new governance structure, including the fee structure that is being imposed on them?

Again to the Attorney General: do you not see the concern around, from a good governance point of view, giving the opportunity to these members of these associations to have the right to vote to approve any fee structure that’s being imposed on them?

Hon. D. Eby: I understand that with respect to professional associations in B.C., the performance with respect to fees has been mixed. The ability to collect fees to complete the work necessary to protect the public…. Obviously, if you can’t get the money to hire the staff to do the oversight of your members, then you’re not going to perform well as a regulator. And that’s a pretty serious issue.

There are cases in history in B.C. where members have not agreed to any fee increase, including inflationary increases, and have caused serious concern about the ability of the professional body to oversee their members, which is the whole point of the professional body. So sometimes it’s unfortunately necessary for fees to be imposed in order that the body can do the work necessary to oversee its members and protect the public.

It’s not the ideal scenario. Ideally, the members would see the benefits for both themselves and the public to have adequate oversight to deal with any issues within their profession, but that’s not always the case. So we need provisions like this in the law for those scenarios.

M. Lee: Thank you for the response. I appreciate that the notion of the Professional Governance Act, as proposed and implemented by this government, is in the interests of protecting the public. We’ve had various considerations in this House around the level of complexity and bureaucracy that’s being imposed on professional organizations that have been operating within their professional duties, and I appreciate there’s a range of size of associations.

[3:00 p.m.]

In terms of the nature of the review that’s being conducted with the superintendent, ultimately, when we come back to this, the fee structure itself is there to, as I’m hearing the Attorney General explain the thinking, provide for greater capacity for these associations. So in the context of understanding the governance structure that is being discussed between the superintendent and these individual associations, could I ask for the basic parameters around what is occurring with associations that have their own governance structures in place and the sort of capacity that’s being required in order to meet what the superintendent may be imposing on these associations?

What is that capacity gap and any fees that might be necessary to collect in order to fund that gap?

Hon. D. Eby: Just to clarify, it’s not the superintendent’s job to impose conditions on these bodies. The superintendent’s job is to ensure that the act is implemented as intended. The intent of the act is that the governance of professional bodies should be by registered members of those bodies, along with members of the public who are appointed to protect the public interest. The act actually decreases the size of these oversight structures in order to be efficient both in decision-making and in cost.

The whole engagement process and the implementation of this act has been structured to facilitate engagement between the superintendent and the professional bodies as they have a discussion about how to best implement the intention behind the act of effective oversight of registered members by registered members and public appointees.

R. Sultan: I should declare my conflict of interest here as a member of the Engineers and Geoscientists of B.C. Beyond that, I have taken a keen interest in the panoply of the new world which has been sketched out by this government for five different professional organizations, not all of which, by any means, in fact have a legally defined field of practice so far.

Certainly, there are many challenges ahead, which I think all participants, government and association members, are beginning to endeavour to do in a spirit of cooperation and goodwill. I think that’s the good news, although we should not underestimate the ambiguities, the rambling scope of many of these professions and the drafting challenges ahead.

Turning to the matter of fees, my question is: has the government taken into account that, in the instance of the association of which I’m a member, for example, EGBC, the financial model upon which this association operates is a blend of both the historical promotional activities of the association, which I think are now being phased out, and the purely regulatory intent of the act, which is to be emphasized, perhaps exclusively, in the future?

As I poked around trying to understand the financial model of this particular association, in the past I’ve been made aware of some peculiarities which struck me as being unexpected, shall we say, involving, for example, liability insurance — premiums paid which somehow get paid into a fee structure for the regulators. A bit of a circular reasoning there somehow.

[3:05 p.m.]

All I am asking the minister is whether the government has considered the complexities of a rather complex historical funding and economic model for at least one of these associations — which, indeed, may be typical of all of them, if you look at it closely — in suggesting that the superintendent is going to sit here in Victoria and just command certain fees. Or is the intent of the government to really roll up its sleeves and get into the business of developing a viable financial model for each of these five organizations?

Hon. D. Eby: Just to clarify things. The councils set fees, not the superintendent in Victoria. The regulatory oversight body sets the fees for its registered members. This provision is strictly in relation to the transition period, between now and when the act comes into force.

Now, the member also raised questions about issues of advocacy versus issues of regulatory oversight. There is a transition period for some bodies that have been engaging in work that may be considered to be more in the nature of advocacy than in the nature of regulatory oversight. The goal is to separate those things. There’s a conversation that’s taking place in partnership with the bodies about how to ensure that they are focused on the regulatory role that they have and that the advocacy work happens somewhere else.

It’s an issue that is part of the ongoing discussion between the superintendent’s office and the regulatory bodies. It’s a live issue, as the member notes. It’s exactly part of the superintendent’s work right now — not just sitting in Victoria but sleeves up, as the member says, engaging in conversations with regulatory bodies that represent professionals across the province.

R. Sultan: I would like to acknowledge that I think the answer does provide some clarification. Thank you, Minister.

Section 7 approved.

On section 8.

M. Lee: Just on this next set of sections making amendments to the Provincial Court Act, I understand from the briefing that the Attorney General’s office arranged within about two hours of this bill being introduced on the first day that the House came back…. We went for a good 2½ hours, and I appreciate the time of all the staff, including those present with the minister currently, to do that.

I just wanted to go back to one point that was raised, in terms of framing these sections. In terms of the recommendations coming forward from the chief justice — from which, we understand, these sections are being derived — can I ask: in terms of the background around that transition, were there any differences between the recommendations that were provided by the chief justice in 2017 and these sections that are being tabled in this House?

[3:10 p.m.]

Hon. D. Eby: This is exactly what we understood that the chief judge asked for. It was a request in relation to the reappointment of judicial justices, and we don’t believe that we missed anything in relation to the chief judge’s recommendations on this.

Mr. Chair, we do have…. Mr. Craven is still here, and we haven’t done section 5. That was my mistake before we went on to section 8. I wonder if my colleague on the other side has had a chance to have a look at the section, section 5, and whether we could deal with that and Mr. Craven could head on his way to engage with professional bodies across the province.

On section 5.

M. Lee: Thank you for providing a copy of that provision. Perhaps I could just ask, then, while I review it, if the Attorney General can provide the reason for which this section 31(7)(b) of the Professional Governance Act is being repealed and replaced by what’s included in section 5 of Bill 35.

Hon. D. Eby: I think the technical legislative term for what’s being done here is that this is a typo. The section as written says: “…in respect of any exceptions in respect of the application of this section.” There are two “in respect ofs,” and it makes it, at best, confusing and, at worst, not achieving the intent of the section.

One “in respect of” has been deleted, so it now reads, “…in respect of any exceptions to the application of this section,” which should hopefully be clearer for the users and achieve the intention of the Legislature.

Section 5 approved.

Sections 8 to 11 inclusive approved.

On section 12.

M. Lee: I understand, from the Attorney General’s comments in response to my second reading speech, that the Ombudsperson’s office has been working through the implementation of this new act and that that’s the reason why there has been a delay in bringing into force this particular act.

Could I ask the Attorney General again to restate the process that the Ombudsperson is following in terms of the implementation of this act? Obviously, in the context of that, certain adjustments to this act are being done. But if I could ask the Attorney General again to comment exactly on what that process is and why it has taken this long to bring this act into force.

Hon. D. Eby: This legislation, this whistle-blower act for government that creates protections for people who bring forward concerns about issues that they’ve identified in their workplace and who are concerned about retribution if they do bring it forward — this creates protections for them.

The legislation is very high-level. Underneath it, a series of policies are needed for implementation within offices of government across the province — and not just within government but also within the Ombudperson’s office. The Ombudperson’s office is the office that’ll be receiving any of these concerns that come forward from members of the public service.

The Ombudperson’s office has been working closely with the Public Service Agency to ensure that there are policies in place on the ground. As they’ve been doing this work, they’ve identified some areas where, in the act, there could be clarification or there’s some ambiguity about what’s intended or there’s something missing, like in this section.

[3:15 p.m.]

A new development since the act was passed is the re-establishment of the Office of the Human Rights Commissioner. So that has been added to ensure that “office” includes the definition of the Office of the Human Rights Commissioner so the act could apply there as well.

That is the process that has been worked through, and that’s how we ended up with amendments like the one that’s in front of the House right now.

M. Lee: In response to the Attorney General’s comments, is there any concern between the Attorney General and the Ombudsperson in terms of employees of government being put in a lesser position because this act has not been in place for the last 16 months?

Hon. D. Eby: The government has had protections in the standards of conduct for public servants that already exist. It was the feeling of this government that there was an opportunity to enhance those protections, especially….

The member may know the history of this. This was one of the recommendations that came out of a report done by the Ombudsperson’s office into the health firings scandal. The finding of the Ombudsperson’s office was that we needed additional protections. It was a finding that, certainly, the then opposition and the now government agreed with very strongly, so we’re quite proud that this has come in.

I share the member’s concern. I would have liked to have seen it in on day one. But I also understand the importance of ensuring that it works properly on implementation, that it actually protects the people it’s intended to protect and that the Ombudsperson’s office is ready to accept information from members of the public service.

I am sure that if anyone had any concerns, they would feel comfortable now, on implementation date, that the policies are in place, that the Ombudsperson is ready, that the PSA is ready for these concerns to come forward — that they will be protected — and that we’ve done everything possible to ensure that the system works as intended.

Sections 12 to 14 inclusive approved.

On section 15.

M. Lee: As I look at section 15 of the bill, it’s substituting a reference to section 19 under section 25(2)(g). So my question to the Attorney General is…. When I look at section 19, on its face, those powers provided in terms of the conduct of investigation by the Ombudsperson seem to be set out in the entirety of section 19, as opposed to just the first subsection, section 19(1). I’d like to understand the reason for limiting this power of investigation to just section 19(1).

Hon. D. Eby: I’m leaning over to my left to talk with Alex Stirling, who’s legal counsel, Ministry of Attorney General. I thank Alex for his assistance here.

The request for this amendment came, as I understand it, from the Ombudsperson’s office. Section 19(1) is consistent with the whistle-blower legislation. It’s in the Ombudsperson Act, and it is imported into this act by the effect of this section.

The problem is that sections 19(2) through 19(5) conflict with other sections of the whistle-blower act, also called PIDA, because in the Ombudsperson Act, it says, for example, in 19(2), that if you have to keep confidentiality under another law in B.C., that applies as well under an investigation done by the Ombudsperson.

[3:20 p.m.]

Under the whistle-blower act, we’ve made it as broad as possible that people be able to bring forward information without being concerned that it might be confidential under another act if they believe there’s wrongdoing that has been done. So the two…. The Ombudsperson Act contradicts the whistle-blower act. Only subsection 19(1) is consistent. That’s why only subsection 19(1) is being imported in here, rather than subsections 19(2) through (5).

The amendment here is to change section 19 to exclusively subsection 19(1), so that there’s not that inconsistency between the Ombudsperson Act provisions that are imported in and the provision in the whistle-blower act, which has a much broader ability for people to bring forward information that would otherwise be confidential.

Section 15 approved.

On section 16.

M. Lee: This, of course, Mr. Chair, goes back to the concern I expressed. The Attorney General has replied in terms of the concern about the delay in implementing PIDA for the last 16 months. As I said in my second reading speech — and I’d just like to give the opportunity for the Attorney General to reply — section 31 of this act is: “Protection of employee from reprisals.”

It includes where a person who is an employee, who in a sense is a whistle-blower, makes a disclosure and cooperates in an investigation, that a person in response should not terminate that person’s employment. In the juncture since the time that this act was introduced in the House, we’ve had various incidents, with this government, where whistle-blowers have come forward.

Of course, the one that we’ve been debating quite a bit in this House, including in question period, has been the employee who worked in the constituency office for the member for Surrey-Panorama, the former Minister of Citizens’ Services. That individual started employment on January 8 and raised a concern on February 15 with the BCGEU and, as we hear, the executive director of the New Democratic B.C. government caucus. We’ve learned, in the course of what’s been disclosed, that on February 22 that individual’s employment was terminated.

In terms of looking at this particular section, when it’s operative, that individual would have had the benefit of this particular protection. Yet there was a delay by this government in bringing this act in force. To the Attorney General: in the context of other whistle-blowers that have come forward in the last 16 months, is there not a concern, in terms of the fairness with which this government has conducted itself, at the delay in bringing forward an act that, arguably, would have protected that individual in the context of the termination of her employment?

Hon. D. Eby: I can advise the member that this act, on implementation, is retroactive. If people became aware of wrongdoing prior to the implementation of the act, they could bring it forward at any point after implementation and have the protections that the act provides.

The act applies to core government — ministerial staff and people within core government. The intention is that eventually over time, the circles will expand, including to Crown corporations and so on. So it would far better apply to the scenario of Tim Duncan, who worked in the Ministry of Transportation, who tried to preserve records related to the Highway of Tears responsive to an FOI request by the then opposition and who was instructed to triple-delete them.

[3:25 p.m.]

If Mr. Duncan, who resigned — he had a job in Alberta — then brought forward the concerns about the conduct of the then B.C. Liberal government, he could have, theoretically, brought forward his concerns, because he was ministerial staff, to the Ombudsperson’s office. Perhaps he would have still been able to work in British Columbia.

In a similar way, employees aware of what had happened around the health firings scandal, involving the previous B.C. Liberal government, would have been able to bring forward those concerns at that time. That was the intent of the Ombudsperson’s report that resulted in this legislation here.

I hope that assists the member.

M. Lee: Well, I certainly understand the nature of the reason why we can always improve the legislation to protect employees of government. Certainly this is the latest example of that. What has happened in the past and what has happened over the last 16 months is what we’re talking about here. I still believe that there’s a concern regarding how this government has delayed in the implementation of this act over the last 16 months.

Could I ask the Attorney General, though: the striking of the word “solely” here in subsection 31(1) — is that intended to make this test easier or harder for the employee to meet?

Hon. D. Eby: It expands the protections for employees. The action taken by the employer previously had to be only because the employee took forward the concern. Even if it’s just partially related to the employee bringing forward the concern, that retaliation — whether it’s a disciplinary measure, a demotion or anything else — is now prohibited by the act.

Section 16 approved.

On section 17.

M. Lee: In terms of the protections here, in this case, in section 32, this is for the person who is contracting with government but does not contravene the section if certain actions are taken by adding the subsection. Could I ask the Attorney General: what level of protection is this adding?

Hon. D. Eby: It’s a very similar amendment to the last section, except in this case the word being removed isn’t “solely.” The word being removed is “only.” It expands the protection available to someone who’s working on contract. The reason for cancelling the contract could be partly due to the fact that the person had provided this information or otherwise cooperated with an investigation under the act. This expands the protections.

The additional subsection adds in this provision that says that government doesn’t have to continue on with a long-term contract with an entity simply because a single whistle-blower came forward — you don’t have to keep renewing the IBM contract or whatever it is — that good-faith management of contracts is still allowed by government, but it can’t be in part or in whole because of the cooperation with an investigation.

Sections 17 and 18 approved.

On section 19.

M. de Jong: I wonder if the Attorney could tell us about section 19 and the rationale, the genesis for why it’s here. For anyone that’s following, it’s an amendment that adds “aircraft” to the definition under the Trespass Act. What prompted the Attorney General to bring that amendment to the House?

[3:30 p.m.]

Hon. D. Eby: The member asked an interesting question. Perhaps, like most counsel, he knows the answer before he asks it. In the event that he doesn’t, it’s an interesting story — as interesting as stuff gets around here, I guess.

The Parliamentary Reform, Ethical Conduct, Standing Orders and Private Bills Committee met Monday, May 28, 2018. As part of it, the Trespass Act came up for discussion with legal counsel Tyler Nyvall, who’s assisting the committee.

[J. Isaacs in the chair.]

The member for Chilliwack-Kent asked a question about the definition of “premises” under the Trespass Act. He notes in his question that the Trespass Act had restrictions related to “anything on the land, including…a ship or vessel, train, railway car” and so on.

He noted that airplanes were not in existence at the time the act was created. What about an airplane staying on the tarmac? Should that not be included as a different kind of conveyance? There was some back and forth. Mr. Nyvall noted that it would be the responsibility of his office, as legal counsel of the Ministry of Attorney General, to assist. He thought it was a substantive change to the legislation. Staff had a look at it. They thought it was a good suggestion for completeness. So that is how this shows up in front of members in the House today.

It’s an amendment to the Trespass Act to include aircraft in terms of premises upon which might be trespassed by an individual.

M. de Jong: Thanks. That is helpful. I was aware of the exchange and gratified that it has manifested itself into something that the House can turn its mind to.

I’m not aware, and I don’t ask this to be cheesy or mischievous, that there has been a proliferation of trespass activity on aircraft. I haven’t read about such things, but if I’m mistaken, maybe the Attorney…. If he is aware that that has been a problem, per se, then I’m happy to hear about it, and the House would be happy to hear about it now.

Hon. D. Eby: I’m advised that this section is purely preventative.

M. de Jong: All right. Well, that, too, is helpful. My questions, then, relate to its place within the act. And the act itself — I take it there has not been a prosecution or a failed prosecution around aircraft trespass. As the Attorney had said, it’s preventative.

I wonder if we might just take a moment. I’m interested to know to what extent the act itself has been utilized and its provisions have given rise to prosecutorial activity in British Columbia over the last year, over the last decade? I’m not aware of much activity, but again, I may be mistaken.

Hon. D. Eby: I don’t have that information with me. I can advise the member, if he is keenly interested, that I’m glad to go back and see what we can put together in terms of any kinds of information about the use of the Trespass Act in British Columbia. I simply don’t know.

M. de Jong: I am interested. I don’t want to keep the Attorney in suspense, and I also want to assure him that I wouldn’t ask him to do that merely to create work for him, because I have some appreciation for the extent of the burden the Attorney General has within government. But I wonder….

I’ll ask a series of these questions. I’ll do so relatively quickly. The prosecutorial provision, I think, is contained within subsection 2(1). I presume the Attorney isn’t in a position to indicate to the committee the extent of prosecutions under section 2(1), but it sounds like he’s prepared to obtain that information.

[3:35 p.m.]

My guess is we’re going to have a chance to pick this up tomorrow. So if that’s correct, maybe the minister can assure the House that he will get that information.

Hon. D. Eby: I’m glad to get the information to the member. But we’re not holding up the act that I know of. We’re doing our best to get through the House’s business here, and the section that’s in front of the House is the definition of “premises,” to which we’re adding the term “aircraft.”

M. de Jong: The definition, of course, is relevant in several sections of the act. In section 6, there are powers created under section 7.

I don’t want to keep the Attorney General in suspense. I saw the reference to aircraft, and the Attorney has, I think, candidly indicated that it is preventative. He’s not aware of a huge problem that has given rise to this proposed amendment, but there is a problem that I’m going to suggest, ultimately, the Attorney will want to respond to. And since we are amending the section, I am particularly curious, and others are, about his reaction to that problem and whether he sees it as something that is worthy of consideration, as we propose to amend this.

That is the situation facing farmers. There is trespass activity taking place on the lands of families who work the land. And by way of background, there are people and groups out there who have some very pronounced views about what people should eat. Nothing wrong with that. People are entitled to their views about what they think people should eat, and they are permitted to protest, and they are permitted to advocate, and that is all proper activity within our democratic society.

What they are not entitled to do — not just in my view but according to provisions of the Trespass Act, as I understand them — is that they are not entitled to invade someone’s home. They are not entitled to invade a farm and, in effect, terrorize the occupants of that farm.

That is happening in B.C. We have seen the stories. It is happening in my constituency. You know, we use words in the case…. It’s been in the news, so I don’t have to be hesitant. We all saw the stories about Excelsior Hog Farms. That’s a corporate name. Excelsior is a family, three generations of families, that lives on a farm and raise hogs that many people eat.

Now, there are some people who don’t want to eat hogs. That’s their right. But I wanted to take advantage of this opportunity to ensure that the Attorney General for British Columbia knows that in the case of that family, someone broke onto their property. Someone broke into their farm. Someone broke into their farm buildings, planted cameras and put video of their children all over the Internet. They woke up one morning to find that there were close to 100 people that had decided to arrive at their farm and trespass.

Where I’m ultimately going to go, after I ask a few more questions, is to propose that since we have decided, for the reasons that the Attorney General has candidly conceded, that it’s a worthwhile endeavour to add “aircraft” to the definition, in a few moments or at some point during the…. The purpose is not to prolong this, but I think it is an important enough issue to bring to the Attorney General’s attention and to solicit his views on the matter.

[3:40 p.m.]

I am going to suggest an amendment to the section that would address, specifically, not a theoretical problem but a threat that actually does exist. But I’m getting ahead of myself.

Maybe in the context of discussing and advancing the section that seeks to amend the definition within the Trespass Act, can I ask the Attorney General: is he aware of the problem that I’ve tried to describe and summarize, and is he aware of the prosecutorial activity that is taking place around people and groups who purposely seek to trespass and invade private property owned by farmers in B.C.?

Hon. D. Eby: Well, I certainly thank the member for drawing this to my attention again. I recall receiving some correspondence in June about this issue. I may have the month wrong.

I do wonder a little bit about the member’s approach. He provided no notice of the amendment. He said that his intent wasn’t mischievous, but he didn’t ask a straightforward question and instead made light of one of his colleagues’ amendments that was made in good faith.

I think it’s a serious issue. He knows where to find me. He can come to my office. Let’s have a conversation about the proposed amendment. I don’t understand why he feels that the current act doesn’t capture the activity he describes.

The act says clearly that “premises” means land. It includes enclosed land; it’s not limited to enclosed land. It includes anything on the land, including a building on the land, like a barn. There are several criminal offences the member described: breaking and entering; watching and besetting; trespass by night; potentially, assault by trespass. This raises the question for me: is this a policing issue? Is this a prosecution issue? The law doesn’t seem to be missing anything that would prevent a prosecution from taking place.

I want to take the member at his advice to me that this is brought forward in good faith. In that sense, I’ll say to him that I take it seriously. I’m happy to talk to him about how we can deal with this. I’ll say that odds are very good that whatever amendment he has drafted that I haven’t seen — I have no idea what it is — that he’s proposing on the day and that staff haven’t provided any policy advice on…. I don’t know what to say about it. We’ll have a look.

I would just urge the member and all members that if you have a serious issue like this, if you think there’s an opportunity for government to improve, to do something to address a gap — a serious issue like this family faced — don’t hesitate to reach out. Believe it or not, there are non-partisan matters in this place that we can address together.

M. de Jong: Well, the good news is that I agree profoundly with a good part of what the Attorney has said. I, too, wonder about whether the challenge we’re facing — more particularly, the challenge that farm families are facing, who are feeling vulnerable right now — relates to an absence of proper legal structure or hesitation around utilizing the legal provisions that are there and whether that is a prosecutorial decision or whether that is a policing and investigative provision.

I think the Attorney General is asking the right questions in that regard, and I hope he will accept and take seriously the notion that this is a matter that has been in the news. For those of us who reside in parts of the province where the agrifood sector is very important and where the folks are being attacked — and I use that word — the effect on those families is profound. I won’t read into the record the kinds of messages that I have received and other members of the House have received.

[3:45 p.m.]

Other jurisdictions have recognized what is taking place. This is not a scenario — I will take advantage of making these comments to the Attorney General in a public setting — unique to British Columbia. These organized groups actively recruit people seeking their consent to break the law and to intimidate people who are involved in the agrifood business. It’s happened in Alberta. It’s happened in Ontario. It’s happened elsewhere in Canada. It’s happened elsewhere in the world.

Other jurisdictions are taking steps to address it. Ontario is proposing some significant amendments to their legislation. Alberta is taking steps to impose significantly increased fines. In Australia, they are now taking steps to impose jail sentences.

I should say to the Attorney that my impression — and this dates back to a day when I sat in his seat — is that the act itself has not been used very much. Maybe that’s changed since I was there. My question to him about the act in general, since we are amending it…. We’re presumably amending it with a view to using it. That’s what gave rise to my question to begin with: do we use the act now?

I can think of reading lots of situations that would fall into the legal categories covered by the act, trespassing. But candidly, I don’t recall much in the way of prosecutorial activity around the Trespass Act. Maybe I’m wrong, and this might be an opportunity for the Attorney, with the assistance of his staff, to disabuse me of that.

Hon. D. Eby: This is a revision to the act in a miscella­neous statutes bill. It’s not a rewriting of the Trespass Act. Nor is it a comprehensive policy analysis of the same.

The member raises interesting questions. Is this the right venue for it? I wonder. I could have brought that information to the House if he’d let me know. I’ll do my best to get him the information about it. It’s one of many tools available to prosecutors. There’s criminal mischief; there’s assault by tres­pass, trespass by night — several criminal offences. There’s the provincial Trespass Act that can be used. So there are a number of different avenues available, potentially, to police and prosecutors.

As I’ve advised the member, I’ll do my best to tell him how the act is being used to the extent that we can figure it out. If he’s sincere in his intent about this issue that’s taken place in relation to this farm, which I recall is in Abbotsford — and I have no reason to believe that he’s not — I think we should definitely see what we can do on it if he doesn’t feel the act is sufficient.

I do worry that it’s not a legal issue, that it is a policing and prosecution issue, in which case we need to have conversation with my colleague the Minister of Public Safety as well as the independent prosecution service of B.C. That’s okay. We can have those conversations and try to come to some resolution of this for this family so that they feel at least that their suffering was not in vain and other families are protected from this kind of activity.

M. de Jong: That all sounds hopeful and promising. I hope…. Look, I’ve been around here a little bit. I know we endeavour to make use of our privilege of sitting in this chamber to raise issues in a way that conveys to the public that the issues are being taken seriously and are being dealt with.

[3:50 p.m.]

I have had it explained to me by some, from both the legal community and the policing community, that they think there is a deficiency in the Trespass Act. I would not ever endeavour to speak for the Attorney General, but I think my view of that is closer to his than theirs. I think the provisions exist within the Trespass Act, but some other folks, apparently, don’t think that, which is what has given rise to my proposal to be a little bit more explicit and to amend section 19 as follows, by adding to (b) a (v).

Maybe I’ll table it.

[Section 19 (1) (b) by adding the underlined text as shown:

(v) a building, permanent structure, trailer or portable structure designed or used to shelter animals;]

I can table that and send one over to the Attorney.

On the amendment.

M. de Jong: My purpose is not to place the Attorney in an awkward position. I think we’re getting close to adjournment. I have a few more comments, and I think one or two of my colleagues, at least, have some things that they would like to say. The Attorney will have to take some time to consider the nature of the amendment.

He’s already indicated, I think, the argument for and against, which is that the act is already sufficient. This would add particularity and specificity to a type of building or permanent structure or portable structure. There’s no question about that. But I will take just a few more moments to try and impress upon the committee and the House and the Attorney General the seriousness of the issue that is being faced here.

There are organized groups. There is nothing wrong with being an organized group, and there is nothing wrong with being an organized group that wants to advocate for a certain dietary approach to life. But there is something profoundly wrong with organized groups who want to advocate for a particular dietary approach to life who think it’s okay to descend upon a family on their farm and intimidate and terrorize them. And that’s what’s happening.

You know, I know that governments and cabinet members and ministers frequently speak out about activities — illegal activities and criminal activities — that take place in society and make clear their opposition. But I think that what a lot of the farming community is disappointed by is that in this case and in these situations, we haven’t heard a lot. We haven’t heard a lot from people in positions of authority to denounce this kind of activity.

Yes, I’m hoping, in the context of this debate and this discussion around the Trespass Act, that the Attorney will take advantage of the opportunity to make clear that the kind of activity that this family and others have been subjected to is wrong. It is contrary to the law. There should be sanctions. There should be penalties, and those penalties should be serious.

By the way, these groups who also seem to — some of them, at least — want to deploy children in these situations because, quite frankly, it looks better…. It’s still wrong, and it still intimidates and frightens the families that produce the food that we, as a society, rely upon and many of us eat and enjoy eating. There is the human dimension to this.

Then, finally, I would say this. The part of B.C. that I call home and that some of the other members call home…. We take great delight in proclaiming us to have the most fertile and productive farmland in Canada, and it’s true. But we’d better protect the people that work that farmland. Right now they’re feeling unprotected, and I think the tools to protect them exist.

[3:55 p.m.]

When he’s had a chance to properly study what I proposed, the Attorney General may say: “Yes. I think the amendment is not necessary because I think the tools do exist.” Well, then, let’s start using the tools. Let’s start using the tools so that these families — it’s a tough business — who want to do nothing more than raise their families and produce food and grow crops and raise animals….

If we have issues about the standards…. I want to say this: the farm that was attacked had a reputation for employing the best standards — leading-edge standards in animal husbandry and farming.

If we, as a parliament, want to address those standards and create new ones, that’s all legitimate as well. What is not legitimate is for people to invade private property — someone’s private home, someone’s farm — and terrorize them. I’m hopeful that, over a few minutes, we’ll be able to make clear that that is not what the House stands for, it’s not what the government stands for and it’s certainly not what the opposition stands for.

That’s my presentation in support of the amendment. Again, the Attorney may wish to reply briefly or hold his powder. There are a few other members of the opposition that would like to speak further to the amendment.

Hon. D. Eby: I’ve heard the member’s comments. I understand that he’s moved this amendment, I think. I didn’t hear him say the words, but I think he’s moved it. So I will definitely have a look at it.

Noting the hour, I move the committee rise, report progress and ask leave to sit again.

Motion approved.

The committee rose at 3:56 p.m.

The House resumed; Mr. Speaker in the chair.

Committee of the Whole (Section B), having reported progress, was granted leave to sit again.

Hon. D. Eby: Today is a special day. It’s federal election day, and we’re keen to give staff an opportunity to exercise their democratic rights and privileges to go out and vote today.

Hon. D. Eby moved adjournment of the House.

Motion approved.

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

The House adjourned at 3:58 p.m.